M.V.Muddaveeriah and others, Accused Nos.2 to 4 v. State of Mysore, Complainant

The mortgagee, that is the present appellant, filed a suit on 11th December, 1948 O. S. No. 142 of 1948-49 in the Court of the Second Munsiff, Mysore for the recovery of not only the principal amount but also interest, in all a sum of Rs. 2,000/-from out of the mortgaged properties. In the meanwhile the mortgagor and his undivided brothers had sold one of the items of the properties to the 5th respondent (12th defendant) for a sum of Rs. 1,000/- to discharge the debt of the present appellant and this amount of Rs. 1,000/- was paid to the present appellant by the 5th respondent (12th defendant) at the request of respondents 1 to 4 an 9th January 1949 that is after the institution of the suit. Respondents 1 to 4, that is the mortgagor and his brothers resisted the suit on the ground that the appellant was not entitled to recover any interest from them in view of the fact that the properties had been delivered over to his possession on the date of the bond and that he had in turn leased them to one Basappa, son of Nanjedevaru. They alleged further that they were cultivating the lands for wara under Basappa and had paid the share of the landlord and therefore the appellant had no right to recover any interest from them. They further alleged that they are agriculturists and as such they are entitled to ask the Court to re-open the previous money transaction of the suit mortgage-debt and fix up the amount that is actually due to him. It was disclosed by them that only a sum of Rs. 650/- was the original principal amount and the balance of Rs. 350/- that constituted the consideration of the suit mortgage bond was the interest due on the original sum of Rs. 650/-which is merged in a decree passed against the first defendant. It was conceded by the appellant that respondents 1 to 4 (defendants 1 to 4) were agriculturists and that his father had originally lent a sum of Rs. 650/- to the 1st defendant and had subsequently obtained a decree against the 1st defendant and that it is in satisfaction of that decree that the suit mortgage bond was executed by the first defendant in his favour. The learned Munsiff held that the present appellant was entitled to recover not only the principal but also the interest from out of the suit schedule properties and decreed the suit. The 12th defendant (5th respondent) had prayed for right of marshalling. The present appellant had no object on for marshalling being allowed in his favour and hence that relief was granted. Respondents 1 to 4 preferred an appeal against that decision to the Court of the Additional Subordinate Judge, Mysore and the learned Additional Subordinate Judge allowed their appeal and dismissed the suit filed by the present appellant on the ground that the present appellant was not entitled to recover any interest from respondents 1 to 4 and that his remedy was to seek for possession of the properties and to claim interest or damages by way of interest on account of any default on the part of respondents 1 to 4. It is against this decision that the present Second appeal has been filed by the appellant.

2. It is interesting to note that respondents 1 to 4 had not averred in their written statement that the appellant was not entitled to recover any interest from them on account of his default in having not sought to enforce his right to possession of these properties by means of a suit. They did not allege in their written statement that the appellant was not entitled to recover the principal amount and his remedy was only to file a suit for the recovery of the suit schedule properties and be in possession of them till they discharge the debt as is now contended on their behalf. On the other hand, respondents 1 to 4 had unequivocally stated in their written statement that what had been lent to the 1st respondent by the deceased father of the present appellant was only a sum of Rs. 650/- originally; that the appellant was not entitled to recover any interest on the balance of Rs. 350/- which constituted the consideration amount of the suit mortgage-debt and all that the appellant was entitled to claim and get was Rs. 650/- at six per cent per annum. They had no objection for decree for the amount found on calculation on the above-said basis to be passed in favour of the appellant. They had asked for eight years time to pay the amount in instalments. On the face of this written statement, there is no substance in the contention of the learned counsel for respondents 1 to 4 that the suit filed by the appellant for recovery of interest by way of damages or interest as such was not maintainable and was liable to be dismissed.

3. The only ground which was pressed by the learned counsel for respondents 1 to 4 was that the appellant was not entitled to institute a suit for the recovery of the mortgage-money from out of the suit schedule properties and much less to recover any interest from respondents 1 to 4 or from out of the suit schedule properties. It is clear from a reading of Section 68 Sub-sec. (1) cl. (d) of the Transfer of Property Act that a mortgagee has a right to sue for the mortgage-money when he being entitled to possession of the mortgaged property the mortgagor fails to deliver the same to him or to secure the possession to him without disturbance by the mortgagor or any person claiming under a title superior to that of the mortgagor. It cannot be disputed that the properties were not delivered over to the appellant by the 1st respondent immediately after executing Exhibit A. Respondents 1 to 4 have failed to establish that the appellant took possession of the lands and leased them to one Basappa and that they were cultivating the lands under Basappa as wara tenants and have paid the wara or lease amount to the said Basappa. It was urged by Sri B. Kanakasabhapathy, the learned Counsel for respondents 1 to 4 that what all the appellant was entitled to recover was only the mortgage-money which did not include the interest and in the absence of any stipulation in the mortgage deed the suit filed by the appellant for recovery of not only the principal amount but also the interest was not maintainable. He cited some decisions in support of his contention. There was some conflict of decisions as to whether the expression mortgage-money as defined in Section 58(a) of the Transfer of Property Act included the principal money and also the interest the payment of which is not secured in the document specifically. The Madras and the Calcutta High Courts held that a mortgagee was entitled to recover interest referred to in Section 58 (a) of the Transfer of Property Act and that the interest referred to included the interest awarded by way of damages also. The Bombay, the Nagpur and the Allahabad High Courts, on the other hand, held that a mortgagee was not entitled to recover any interest in the absence of any specific condition in the document itself. The following passage from the book by Sir Dinshah Fardunji Mullas Transfer of Property Act (4th edition) at page 345 makes it clear that the contention of respondents 1 to 4 that a mortgagee is not entitled to recover any interest in the absence of any specific term in the document is no longer good law : The expression mortgage-money is defined in Section 58 (a) as the principal money and the interest, the payment of which is secured for the time being. There were conflicting decisions as to whether the interest referred to in this section included interest after due date awarded by way of damages or under the Interest Act. Some Courts held that it did while others held that it did not and that interest awarded by way of damages was not recoverable out of the mortgaged property but was to be treated as a decree for damages. The amended Order 34 Rule 11 of the Code of Civil Procedure now makes it clear that such interest is included in mortgage-money..........................The general rule is that in the absence of a contract to the contrary, the mortgagee is entitled to treat the interest due under the mortgage as a charge on the estate. The learned Additional Subordinate Judge was not, therefore, right in holding that the present appellant was not entitled to recover any interest from out of the mortgaged properties since he had not taken an action to recover possession of the suit schedule properties from respondents 1 to 4.

4. The question for consideration is as to what exactly is the amount that the present appellant is entitled to recover from out of the mortgaged properties. As already stated, it is conceded by the present appellant that respondents 1 to 4 are agriculturists as defined under the Mysore Agriculturists Relief Act. There is no basis for the observation of the learned Munsiff that respondents 1 to 4 were not entitled to ask for re-opening the accounts and for ascertainment of the exact amount that is due by them. It is admitted by the appellant that a sum of Rs. 650/- had been advanced as loan to the first respondent by his deceased father and that his father filed a suit against the first respondent and obtained a decree for a sum of Rs. 1,500/-. It is also conceded by him that it is to discharge that debt that the first respondent executed the suit mortgage deed in his favour. It is, therefore, clear that a sum of Rs. 650/- is the actual principal advanced originally and that the balance of Rs. 350/-is the interest. In the absence of any specific contract, the appellant is entitled to recover interest at six per cent. per annum from out of the mortgaged properties. This is conceded by the respondents in their written statement itself. Calculated on that basis, the appellant would be entitled to recover a sum of Rs. 468/- by way of interest only. The result is that the appellant is entitled to recover a sum of Rs. 1,468/- (one thousand four hundred and sixty eight only) from out of the mortgaged properties. The 12th defendant (5th respondent) who purchased an item of the mortgaged properties from respondents 1 to 4 has paid a sum of Rs. 1,000/- towards the discharge of this debt on 9th January 1949 to the appellant. The present appellant is, therefore, entitled to recover only a sum of Rs. 468/- (four hundred and sixty eighty from out of the mortgaged properties with proportionate costs throughout and nothing more.

5. In the result, therefore, this Second Appeal is allowed. The decree passed by the learned Additional Subordinate Judge, Mysore, dismissing the suit filed by the present appellant is set aside and in modification of the decree passed by the learned Second Munsiff, Mysore, there will be a decree in favour of the present appellant for a sum of Rs. 468/- (Rupees four hundred and sixty eight only) to be recovered from out of the mortgaged properties with proportionate costs throughout. The other directions in the decree of the learned Second Munsiff, Mysore, namely, allowing the claim of marshalling by the 5th respondent (12th defendant) and the grant of five equal annual instalments to pay the decree amount to respondents 1 to 4 are confirmed with the modification that the first instalment will fall due on 1-4-1958. Appeal allowed. AIR 1958 MYSORE 34 (VOL. 45, C. 10) "State v. Anjani" MYSORE HIGH COURT Coram : 2 HOMBE GOWDA AND MALIMATH, JJ. ( Division Bench ) State v. Anjani, Accused. Criminal Referred Case No. 6 of 1956, D/- 12 -8 -1957, from Addl. Asst. S. J., Bangalore, D/- 28 -9 -1956. (A) Criminal P.C. (5 of 1898), S.307(1) - CRIMINAL PROCEDURE - Grounds of reference to be recorded. A reference under S. 307 is not a proper reference if it does not set out the grounds of opinion of the Judge. A reference made under S. 307 should be so complete and self-contained that it ought not to be necessary for the High Court to refer to the evidence or charge to the Jury or to the order-sheet for passing suitable orders. (Para 3) Anno: AIR Com. Cr. P. C. S. 307, N. 7. (B) Criminal P.C. (5 of 1898), S.307(1) - CRIMINAL PROCEDURE - "Disagrees with the verdict. The verdict of the Jury, particularly when it is unanimous, should not be disturbed unless it can be demonstrated beyond a peradventure that it is manifestly perverse or unreasonable. Section 307 is intended to provide against a clear case of miscarriage of justice at the trial and is not meant for indiscriminate use of over-zealous judges to make references. This power must be sparingly used. (Para 3) Anno: AIR Com. Cr. P. C. S. 307, N. 3. (C) Criminal P.C. (5 of 1898), S.307(3) - CRIMINAL PROCEDURE - HIGH COURT - Defective reference - Powers of High Court. A High Court has, when dealing with a reference under S. 307, the powers of an appellate court and there being no specific provision in the Code compelling the court to remit the case to the trial court whenever defective references are made by the trial Judge, the Court can proceed to consider the entire matter as it is before it and pass necessary orders. (Para 4) Anno: AIR Com. Cr. P. C. S. 307, N. 11. (D) Criminal P.C. (5 of 1898), S.297 - SUMMONS - EVIDENCE - Summing up evidence - Manner of. It is necessary, in a case tried with the aid of a Jury, that the trial Judge should present the evidence to the Jury in as dispassionate and impartial manner as is expected of a presiding officer without expressing his personal opinion on question of fact of which the jury are the judges, or in any way indicating that they should return a particular verdict for or against the accused person. (Para 5) Anno: AIR Com. Cr. P. C. S. 297, N. 6. (E) Criminal P.C. (5 of 1898), S.307(3) - CRIMINAL PROCEDURE - Due weight to be given to opinion of Jury. Jurors are the judges of fact and so far as their findings of fact are concerned, they are entitled to weight. (Para 5) Anno: AIR Com. Cr. P. C. S. 307, N. 13. CASES REFERRED Paras (A) AIR 1921 Cal 252 (V 8): 66 Ind Cas 180 4 9:1CriLJ743">(B) (04) 6 Bom LR 599: 1 Cri LJ 743 4 2:">(C) (08) 7 Cri LJ 192: 10 Bom LR 173 4 (D) AIR 1940 Nag 17 (V 27): 41 Cri LJ 289 (FB) 4 (E) AIR 1936 Cal 451 (V 23): 38 Cri LJ 174 4 9:1CriLJ586">(F) (04) 6 Bom LR 519: 1 Cri LJ 586 4 Addl. Asst. Advocate-General for the State. M. V. N. Raj (on behalf of the Legal Aid Society), for Accused. Judgement ORDER: This is a reference under Section 307 of the Code of Criminal Procedure made by the Additional Assistant Sessions Judge, Bangalore in Bangalore Sessions Case No. 12 of 1956 in the following circumstances:

2. The accused Anjani was put on his trial for an offence under Section 436 of the Indian Penal Code on the allegation that he intentionally committed mischief by setting fire to the dwelling house (hut) belonging to one Poojamma in A. K. Hatti attached to Thimmasandra village, Nelamangala Taluk on 24-5-1956, before the Additional Assistant Sessions Judge, Bangalore. The case was fried with the aid of Jury. The Jury returned an unanimous verdict of net guilty. The learned Additional Assistant Sessions Judge disagreed with the verdict of the jury. He was of the opinion that the accused was guilty and has therefore made this reference under Section 307 of the Code of Criminal Procedure to this Court for such orders as this Court may deem fit in the circumstances of the case.

3. It may at once be stated that the reference made by the learned Additional Assistant Sessions Judge is not a proper reference as the letter of the learned Judge does not set out the grounds of opinion of the Judge. It is doubtless that a reference made under Section 307 of the Code of Criminal Procedure should be so complete and self-contained that it ought not to be necessary for this Court to refer to the evidence or charge to the Jury or to the order-sheet for passing suitable orders. In the letter of reference the learned Judge ought to have stated the facts of the case, the verdict of the Jury and also the ground or grounds on which he differed from the verdict of the Jury and found it necessary in the interests of justice to submit the case to this Court for suitable orders. He should have categorically stated what material portions of the evidence he believes to be true, his opinion about the credibility of witnesses examined in the case and his reasons for arriving at his conclusions so as to enable this Court to appreciate and give due weight to them. He was bound to disclose the reasons for his opinion in as clear a manner as he would have done if the case had not been a jury case and he had to write out a judgment in the case. The order of reference of the learned Judge is abnormally short and is as follows: "I find no grounds to agree with the unanimous verdict of the Jury that the accused is not guilty. The charge delivered to the Jury warrants the verdict that the accused is guilty for offence under Section 436 I. P. C. I, therefore, disagree with the verdict for acquittal. The case in respect of the accused shall therefore be submitted tea High Court under Section 307 Cr. P. C. for suitable orders. It is clear beyond doubt that the order of reference made by the learned Additional Assistant Sessions Judge does not satisfy the requirements of the law. He has neither set out the facts of the case nor expressed his clear opinion as to the credibility of the witnesses and disclosed the grounds on which he holds that the verdict of the Jury is manifestly unreasonable. The result is, in the absence of the opinion of the learned Judge it is not possible for this Court to say that the verdict is against the weight of evidence without examining the evidence and the charge to the Jury. The verdict of the Jury, particularly when it is unanimous should not be disturbed, unless it can be demonstrated beyond a peradventure that it is manifestly perverse or unreasonable. Section 307 of the Code of Criminal Procedure is intended to provide against a clear case of miscarriage of justice at the trial and is not meant for indiscriminate use of over-zealous judges to make references. This power must be sparingly used. It is only in cases where the judge thinks that it is absolutely necessary for the ends of justice to submit the case to the High Court he must do so after recording the grounds of his opinion. It is highly regrettable that the learned Judge has not understood the scope of Section 307 of the Code of Criminal Procedure and has made this imperfect reference to this Court.

4. It was suggested by Sri Shankara Chetty, the learned Additional Assistant Advocate-General for the State that the records may be remitted to the learned Additional Assistant Sessions Judge for making a proper reference in accordance with the provisions of law and that the matter may be dealt with on merits by this Court after receipt of further reference in the matter. He urged that in the absence of proper reference this Court cannot go into the merits of the case or into the evidence or look into the charge to the Jury and arrive at any conclusion and that this Court was bound to remit the matter to the trial Court for the needful being done. He was unable to cite any decision in support of his assertion. We have carefully considered this argument. We are of the opinion that the circumstances in tins case do not compel us to the necessity of remitting the records to the trial Court. No doubt, there are cases in which references of the type on hand were remitted to the trial Court by some of the High Courts for making proper references. There are also cases in winch courts have proceeded to pass final orders either accepting the verdict of the Jury or rejecting the verdict of the Jury even though the letter of reference was defective and was not in accordance with law (viz., Emperor v. Taribullah Shekh, AIR 1921 Cal 252 (A), Emperor v. Irya Doddappa 6 Bom LR 599 (B); Emperor v. Chandra Krishna 7 Cri LJ 192(C); Dattatraya Sadashiv v. Emperor AIR 1940 Nag 17 (D); Emperor v. Abul Hossain Sikdar AIR 1936 Cal 451 (E) and Emperor v. Dyama Naik Annappa Naik 8 Bom LR 519 (F). So long as it is conceded that this Court has, when dealing with a reference under Section 307 of the Code of Criminal Procedure all the powers of an appellate court and there is no specific provision in the Code of Criminal Procedure compelling the court to remit the case to the trial court whenever such defective references are made by the trial Judge, we feel that this Court can proceed to consider the entire matter as it is before us and pass necessary orders. We, therefore, proceed to pass orders on the materials before us.

5. The charge delivered by the learned trial Judge to the Jury is full of misdirections and is almost in the nature of a direction to the Jury to return a verdict of guilty, against the accused. It betrays the anxiety of the learned Judge to help the prosecution and his inexperience in the principles of criminal procedure. It is necessary, in a case tried with the aid of a Jury, that the learned trial Judge should present the evidence to the Jury in as dispassionate and impartial manner as is expected of a presiding officer without expressing his personal opinion on questions of fact of which the jury are the judges, or in any way indicating that they should return a particular verdict for or against the accused persons. The charge in the present case falls short of the standard prescribed. (Their Lordships considered the evidence of the alleged eye-witnesses and rejecting their evidence proceeded:) The gentlemen of the Jury in the circumstances were perfectly justified in coming to the conclusion that the accused is not guilty of the charge of which he was tried. Jurors are the judges of fact and so far as their findings of fact are concerned, they are entitled to weight. The unanimous verdict of the Jury in this case cannot be characterised as manifestly perverse or unreasonable so as to call for interference by this Court. The reference made by the learned Additional Assistant Sessions Judge, Bangalore is, therefore, rejected. The unanimous verdict of the Jury is accepted and the accused is acquitted and is directed to be set at liberty forthwith. Reference rejected. AIR 1958 MYSORE 35 (VOL. 45, C. 11) "Srikantiah Setty v. A. Basha Saheb and Co" MYSORE HIGH COURT Coram : 2 SOMNATH IYER AND SADASIVAYYA, JJ. ( Division Bench ) Srikantiah Setty and others, Appellants v. Abdulla Basha Saheb and Co. and another, Respondents. Appeal No. 81 of 1952-53, D/- 6 -9 -1957 against Order of Second Additional Dist. J, Bangalore, D/- 15 -11 -1951. (A) Provincial Insolvency Act (5 of 1920), S.53 - INSOLVENT - EVIDENCE - Good faith and consideration Onus. Evidence Act (1 of 1872), S.101,S.102, S.103, S.104. In proceedings under Section 53 of the Insolvency Act the onus of proving that the impugned transactions were not entered into in good faith and for valuable consideration is on the Official Receiver. (Para 4) Anno. AIR Man. Pro. Ins. Act, S. 53 N 24 C.J. I. Evid. Act, Ss. 101-104 N. 38, 27. (B) Provincial Insolvency Act (5 of 1920), S.53 - INSOLVENT - Good faith. @page-Mys36 If it was within the knowledge of the transferees that the transferor was in insolvent circumstances at the time of the sale and there was pressure from his creditors for the payment of the moneys due to them and transferees purchased from him his entire stock-in-trade and assets without making any substantial contemporaneous payment and without undertaking to make any such payment in future in order that he might be able to continue his business so that he would be in a position to pay off his creditors, it would be very difficult to hold that the transfer was one entered into in good faith. ILR 19 Cal 223 (PC), Foll. (Para 9) Anno. AIR Man. Pro. Ins. Act, S. 53, N. 2. (C) Provincial Insolvency Act (5 of 1920), S.53, S.4 - INSOLVENT - Transfer from insolvents transferee. It cannot be said that Section 53 of the Insolvency Act does not apply to a transfer by a transferee from the insolvent. If the transfer to a transferee from the insolvent is declared invalid and not binding on the Official Receiver and if the later transfer by the transferee from the insolvent is held to form only a link in the chain of a fraudulent scheme to defraud the other creditors of the insolvent, the insolvency Court has clearly the power to annul the second transfer as not binding on the Official Receiver not only under Section 53 of the Act, but also, if necessary by the exercise of its powers under Section 4. AIR 1936 Bom. 176 and AIR 1938 Mad 370 and AIR 1935 All 671 Rel. on. (Para 12) Anno. AIR Man. Pro. Ins. Act, S. 53, N. 6 ; S. 4, N. 13. (D) Provincial Insolvency Act (5 of 1920), S.53 - INSOLVENT - Nature of order to be made. If the transferees took possession of the assets of the insolvent and handed them over to their transferee and latter in his turn dealt with those assets and stock-in-trade in the course of his business the proper direction to be given in those circumstances would be a direction that the transferees and each of them shall deliver to the Official Receiver all the assets and stock-in-trade purchased by them and that they should also render an account to the Official Receiver and to the Court of all their dealings with the insolvent in respect of the impugned transfers and also of all their dealings in respect of the assets and stock-in-trade which they purchased and also in respect of the proceeds of those assets and stock-in-trade. Any amounts found due by transferees after such an accounting shall be paid by them to the Official Receiver for distribution by him among the creditors of the insolvent. AIR 1925 Cal 640 Rel. on. (Para 13) Anno : AIR Man. Prov. Ins. Act, S. 53, N. 25. (E) Provincial Insolvency Act (5 of 1920), S.53 - INSOLVENT - Defence. It would not be open to transferees to urge a contention that out of the consideration paid to the insolvent by transferees large number of creditors were paid, as a result of a composition between the creditors and the Insolvent, by way of an answer to an application under Section 53 of the Act when they had not opposed the application for the adjudication of the insolvent on that ground. (Para 10) Anno. AIR Man. Prov. Ins. Act, S. 53, N. 20. CASES REFERRED Paras (A) (92) ILR 19 Cal 223 : 19 Ind App 15 (PC) 9 (B) AIR 1936 Bom 176 (V 23) : 162 Ind Cas

659 12 (C) AIR 1938 Mad 370 (V 25) 12 (D) AIR 1935 All 671 (V 22) : ILR 57 All 900 12 (E) AIR 1925 Cal 640 (V 12) : 29 Cal WN 374 13 S. Rangaraj, for Appellants; Venkataramiah, for Respondent No. 2. Judgement SOMNATH IYER, J. :- On 18-3-1942, four creditors of one S. M. Zackria whom I shall hereafter refer to as the insolvent, made an application to the District Judge, Bangalore, under S. 9 of the Mysore Insolvency Act for getting him adjudged insolvent. On that application he was so adjudged insolvent on May 29, 1942. On July 7, 1942, the Official Receiver made an application (I. A. 2) under the provisions of Ss. 5, 53 and 54 of the Act for a declaration that transfer made by the insolvent of his properties in favour of respondents 1 to 4 on January 5, 1942, and a subsequent transfer of those properties by respondents 1 to 4 in favour of the fifth respondent was voidable and should be annulled. He also added a further prayer to his application that the Court should direct the said properties or their value to be handed over to him by the respondents.

2. Respondents 1 to 5 opposed that application and the learned District Judge allowed it. Respondents 1 to 4 have appealed and respondent 5 has not.

3. It is admitted that on January 5, 1942, by a document of sale which is not exhibited in this case the insolvent transferred to respondents 1 to 4 who were some of his creditors, all his assets belonging to a business which he was conducting. It is stated, although it is not admitted by the Official Receiver, that the consideration for the transfer was a sum of Rs. 3,800. On the next day, i.e., on January 6, 1942, respondents 1 to 4 in their turn transferred all those assets which they had purchased from the insolvent to respondent 5 and it is stated that the consideration for that transfer was a sum of Rs. 5,500. The case for the Official Receiver is that both these transfers were neither made in good faith nor for valuable consideration but were made for the purpose of defrauding the other creditors of the insolvent. As I have mentioned above, a little more than two months after the dates of these transfers some other creditors of the insolvent presented the application for getting Zackria adjudged insolvent. In the meanwhile, the insolvent himself had issued a notice (Ex. III) oh January 29, 1942, twenty-five days after he had transferred his assets to respondents 1 to 4, repudiating the transaction of transfer and also alleging that a document in that regard had been fabricated by respondents 1 to 4. I. A. 2 filed by the Official Receiver for getting these transfers annulled, was made as I have mentioned above, on July 7, 1942.

4. The alienation in favour of respondents 1 to 4 by the insolvent and that in favour of respondent 5 by respondents 1 to 4 were within two years from the date of the presentation of the petition for getting Zackria adjudged insolvent. It is therefore not disputed that this was a case to which S. 53 of the Insolvency Act applied and under which the transfers could be annulled provided it was established by the evidence that those transfers by them were found to be not made in favour of the purchasers in good faith and for valuable consideration. It is now settled law that in proceedings under S. 53 of the Insolvency Act the onus of proving that the impugned transactions were not entered into in good faith and for valuable consideration is on the Official Receiver. The question to be decided in this appeal is whether the learned District Judge was right in coming to the conclusion that these two transfers assailed by the Official Receiver were not entered into in good faith and for valuable consideration.

5. It is undisputed that Zackria who was adjudged insolvent on May 29, 1942, was in extremely difficult financial straits at the time when he transferred all his assets in favour of respondents 1 to 4 as stated above. Schedule A to the application presented by his creditors for getting him adjudged insolvent, enumerates as many as twenty-two persons who were his creditors. Respondents 1 to 4 are only a few of them and it will be seen from that Schedule that the debt due to respondent 1 was only Rs. 300 while that due to respondent 4 was only Rs. 400 and it is not clear how much was due to respondent 2 or to respondent 3.

6. It appears from the evidence of P.W. 3 that some time before the presentation of the application for the adjudication of Zackria as insolvent, there was a panchayat in the shop of one Appajiah and Sons, in the course of which the creditors came to an understanding that the insolvent should continue to conduct his business in his shop and pay his creditors, the amounts due to them, in easy instalments. He also gives evidence that respondents 1 to 4 and another Abdul Wahab were appointed trustees as they are described, for the supervision of the business which the insolvent was so permitted to conduct. His evidence is that sometime after the arrangement was so reached, some of the creditors of the insolvent discovered that a transaction had been surreptitiously entered into between respondents 1 to 4 on the one hand and the insolvent on the other, as a result of which the entire stock-in-trade and assets of Zackria had been sold to respondents 1 to 4. Having felt disconsolate at the transfer of those assets in that clandestine manner, they arranged for the presentation of an application for getting Zackria adjudged insolvent, and this they appear to have done after they made an unsuccessful attempt through the good offices of P.W. 4 Kota Kamakshiah Setty for getting the transfer cancelled by consent of parties. It is therefore clear from this evidence and also from the other evidence to which I shall refer in the course of my judgment, that Zackria on the date he transferred ail his assets to respondents 1 to 4, was undoubtedly in insolvent circumstances and that his creditors were putting pressure upon him for the payment of their debts. Although there is some variation between, the story told by P.W. 3 Narayana Setty and what is stated in Ex. III, the notice issued by the insolvent himself on January 29, 1942, to which I have made reference above, as to who were the trustees appointed, there does not appear to be any doubt that some understanding was reached between the insolvent and his creditors as a result of which the insolvent had to continue to conduct his business and pay off his creditors from out of the profits he would make from it. It is not difficult to hold that respondents 1 to 4 were fully aware of not only of the insolvent circumstances of Zackria but also of the above arrangement entered into between him and his creditor. While that was so, the question is whether it was proper for respondents 1 to 4 to have purchased from the insolvent soon after the arrangements reached in that way all his stock-in-trade and assets and as to what would be the proper inference to be drawn if they did enter into that transaction in that way. The answer to that question would depend upon whether respondents 1 to 4 paid any money for what they purchased from the insolvent and if so, whether they entered into the transaction of sale in good faith.

7. On the question as to whether respondents 1 to 4 paid any consideration at all to the insolvent, it must be pointed out at the outset that it is one of the most curious features of this case that the document evidencing the sale by the insolvent in favour of respondents 1 to 4 is not produced before the Court nor is the document recording the sale by respondents 1 to 4 in favour of respondent 5 produced either. When P.W. 1 who is no other than respondent 5 was, by what I consider a most unusual procedure quite often discountenanced, examined by the Official Receiver as his own witness, it was elicited in his cross-examination that there was only one document evidencing both these sales and that that piece of paper on which the sale transaction had been recorded, was handed over to the advocate who appeared for respondents 1 to 4 in this case, that learned advocate who was conducting the cross-examination of P.W. 1 promptly denied that he had received that piece of paper and P.W. 1 in another part of his cross-examination admitted that when the Official Receiver made the application (I. A. 2) to the Court below he was in possession of that piece of paper. Whatever might be the truth of the story told by P.W. 1 about his having handed over the document of sale to the hands of the advocate for respondents 1 to 4, what is material for the purposes of this case is that the sale chit is not forthcoming and therefore it is impossible for the Court to know what that sale chit recited, how much consideration it mentioned and how it was paid. To my mind, the story of respondents 1 to 5 that on the very document executed by the insolvent in their favour recording the transfer to them, a further endorsement was made by respondents 1 to 4 for the purpose of transferring those very assets to respondent 5 and that they retained in their possession no evidence in respect of the payment of Rs. 3,800 which they claim to have paid to the insolvent on that date, is utterly incredible. While respondents 1, 2 and 4 who have examined themselves as R. Ws. 1, 4 and 2 respectively have given evidence that they paid the sum of Rs. 3,800 towards the consideration for the first sale to the hands of the insolvent on January 5, 1942, the evidence of respondent 3 who has been examined as R.W. 5 is materially different from the evidence given by the other respondents. According to him no money was paid to the hands of the insolvent on the date of the sale by him but that it was only on the next day, after respondents 1 to 4 had in their turn made a sale to respondent 5, that a sum of Rs. 3,800 was so paid to the insolvent out of a sum of Rs. 5,500 paid by respondent 5 to respondents 1 to 4. To my mind it appears that the circumstance that although the insolvent purports to have sold all his assets for Rs. 3,800 on January 5, 1942, the fact that respondents 1 to 4 were able on the very next day to sell the same assets to respondent 5 for a sum of Rs. 5,500 making a profit of Rs. 1,700 overnight, is itself a circumstance which has been rightly regarded by the Court below as one that should excite the suspicion of the Court. But the more important question is whether it is true that when the insolvent sold his properties to respondents 1 to 4, the transferees made any payment at all to the insolvent. It appears to me that the answer to that question should be against respondents 1 to 4.

8. As I have mentioned above, they have not retained in their possession any evidence of any such payment. R.W. 1 who is the first respondent in the case admits that there is no entry in his accounts to show that he paid any part of the sum of Rs. 3,800 to the insolvent. The second respondent RW. 4 and the third respondent R.W. 5 also give similar evidence and admit that their accounts also do not evidence any payment of any portion of the purchase money for that transfer. What is even more awkward for the respondents is that the fourth respondent Subramanya Setty when he gave evidence as R.W. 2 made a very curious admission that the consideration for one of the sales although it is not clear to which sale he was making reference was really Rs. 5,500 but was nominally mentioned as Rs. 3,800. If the transaction was free from all taint and was quite above board, it is difficult to understand why an artificial figure should have been mentioned in the sale chit as the consideration. The insolvent himself is dead and therefore the only evidence available to prove the payment of the consideration for the first sale is the evidence of the respondents who have given evidence as stated above. It is admitted that no other creditor of the insolvent was present at the time of the transaction. Having regard to the unsatisfactory character of the evidence given by the respondents, it would not be proper for us to differ from the finding of the learned District Judge that the sale by the insolvent to respondents 1 to 4 was not for valuable consideration. That this would be a proper inference would be clear from the evidence of P.W. 4 Kota Kamakshiah Setty which appears to my mind to be quite trust-worthy evidence that on his intercession in connection with the controversy relating to the disputed sales during which he advised respondents 1 to 4 to return the pronotes and the cash they had taken from P.W. 1, respondent 4 returned the pronote executed in his favour.

9. The next question is whether the purchase made by respondents 1 to 4 was one made in good faith. If as I have mentioned above, it was within the knowledge of respondents 1 to 4 that Zackria was in insolvent circumstances at the time of the sale and there was pressure from his creditors for the payment of the moneys due to them and respondents 1 to 4 purchased from him his entire stock-in-trade and assets without making any substantial contemporaneous payment and without undertaking to make any such payment in future in order that he might be able to continue his business so that he would be in a position to pay off his creditors, it would be very difficult to hold that the transfer was one entered into in good faith. The law on this question is contained in the well-known rule of law enunciated in the judgment of Lord Hobhouse in Khoo Kwat Siew v. Wooi Taik Hwat. ILR 19 Cal 223 (PC) (A), at p. 231, which is as follows: The well-known rule of law is that if a trader assigns all his property, except on some substantial contemporaneous payment, or some substantial undertaking to make payment in future, that is an act of bankruptcy and is void against the creditors and the assignee simply because nothing is left with which to carry on his business, whereas if he receives substantial assistance, something is left to carry on the business." So tested, the conclusion is irresistible that the transfer to respondents 1 to 4 was one which was not entered into in good faith.

10. Sri Rangraj, learned counsel for the appellants, has argued before us that the learned District Judge was in error in recording a finding that the transaction was not for valuable consideration, or was one not made in good faith for the reason that according to him, the evidence in the case establishes that out of the consideration paid to the insolvent by respondents 1 to 4 a large number of creditors were paid, as a result of a composition between the creditors and the insolvent, their debts pro rata, calculated at the rate of 0-1-6 in the rupee. I must state at once that in the first place, it would not be open to respondents 1 to 4 to urge a contention of this type by way of an answer to an application under S. 53 of the Act as they had not opposed the application for the adjudication of Zackria as insolvent on that ground. The explanation offered by Sri Rangraj that his clients were not aware of the insolvency proceedings and had no opportunity to put forward any such contention before the insolvency Court is thoroughly unconvincing. The simple answer to that argument is that the insolvency application having been duly advertised and published, it would not lie in the mouth of respondents 1 to 4 to plead that they had no notice of it. Assuming for a moment that it would still be open to them to urge that contention on its merits, it appears to me that the evidence in this case relating to this composition is neither satisfactory nor adequate. The witnesses who have spoken to that composition have given evidence that the dividends paid to the creditors were paid at four annas in the rupee whereas in the statement of objections presented by respondents 1 to 5 they stated that it was at 4-1/2 annas in the rupee. Secondly, no evidence has been adduced that all the creditors of Zackria were paid in that way. The only witnesses who have spoken about it are P. W. 1 and R. W. 4. P. W. 1, as I have mentioned above, is none other than the 5th respondent himself and he admitted in the course of his cross-examination that he received towards his debt the amount mentioned in Ex. 1(a), a note-book containing an entry to that effect and which represented a fraction of what was due to him. I am not disposed to attach any importance to that admission made by him remembering that he was vitally interested in supporting the impugned alienations. R.W. 4 is another witness who gives evidence that he was paid a sum of Rs. 3-1-6 which represented the amount due to him towards his debt of Rs. 10-14-6 calculated at 0-4-6 in the rupee. He did not produce his accounts to support his evidence and having regard to the extremely small sum of money said to have been paid to him, it is difficult to believe that he received that sum of money as a result of a composition to which all the creditors of Zackria were parties. The other creditors who are said to have received their dividends in that manner are not examined by the respondents and the receipts said to have been executed by them are therefore not proved. Respondents 1 to 4 who according to them received towards their debts similar sums, admitted in cross-examination that their accounts do not contain any entries to evidence such receipts. I am, therefore, of opinion that the proper inference to be drawn from the above circumstances is that the story of respondents 1 to 4 that any such composition as pleaded by them between the insolvent and all his creditors took place, is not established. The result of the discussion of the evidence to which I have referred above is that the transfer by the insolvent to respondents 1 to 4 must be held to fail within the ambit of S. 53 of the Insolvency Act and was therefore, rightly annulled by the Court below.

11. Although respondent 5 has not appealed from the order annulling the transfer in his favour, the next question is whether the alienation by respondents 1 to 4 in favour of respondent 5 was also similarly liable to be annulled and whether the Insolvency Court had jurisdiction to so annul it. Sri Rangraj has argued before us with great emphasis that S. 53 of the Insolvency Act can have no application to a transfer of that description. In my opinion, if is difficult to accept that contention. The case for the Official Receiver was that the alienation in favour of respondents 1 to 4 and that in favour of respondent 5, both formed part and parcel of one fraudulent scheme and that they had been entered into for the purpose and with the intention of defeating the other creditors of the insolvent. It may be that respondent 5 paid a sum of Rs. 5,500 towards the transfer in his favour upon which it is very difficult to express any definite opinion. But there can be no doubt that when respondent 5 purchased the entire assets and stock-in-trade of the insolvent from respondents 1 to 4, he was aware of all the facts relating to the financial difficulties of the insolvent and also of his insolvent circumstances and it is difficult to escape the conclusion that he must also have been aware of the fraudulent character of the alienation by the insolvent in favour of the respondents 1 to 4 and must have been a party to a scheme to defraud the other creditors of the insolvent. There is some evidence that in respect of the promissory notes executed by respondent 5 in favour of respondents 1 to 4 towards a portion of the consideration for the transfer to him, suits were filed against him for the recovery of the amounts due under them and that he had to discharge those debts. It may be that the evidence establishes the existence of some consideration for the transfer to respondent 5 although it is difficult to find how much it really was. But that does not to any extent establish that the transaction between respondents 1 to 4 and respondent 5 was one entered into in good faith. For the reasons for which I have held that respondents 1 to 4 were not transferees in good faith, it has to be held that respondent 5 was not a transferee in good faith either.

12. If therefore it can be said that S. 53 of the Act controls a transfer like the one in favour of respondent 5, his transfer would similarly have to be annulled. I have no doubt in my mind that Sri Rangraj, learned counsel for the appellants, is not right when he contends that S. 53 of the Insolvency Act does not apply to a transfer by a transferee from the insolvent. If the transfer to a transferee from the insolvent is declared invalid and not binding on the Official Receiver and if the later transfer by the transferee from the insolvent is held to form only a link in the chain of a fraudulent scheme to defraud the other creditors of the insolvent, the Insolvency Court has, to my mind, clearly the power to annul the second transfer as not funding on the Official Receiver not only under S. 53 of the Act, but also, if necessary, by the exercise of its powers under S. 4 of the Act. (Vide: Isamoddin Ajmoddin v. Ajmoddin Shamsoddin, AIR 1936 Bom 176 (B); Kandaswamy Goundan v. Rangaswamy Goundan, AIR 1938 Mad 370 (C); and Amir Ahmad v. Syed Hasan, ILR 57 All 900: (AIR 1935 All 671) (D).) In my opinion the transfer in favour of respondent 5 was also rightly annulled.

13. The only question that survives for determination is as to what really is the scope and effect of the order made by the learned District Judge. All that he stated was that he allowed I. A. 2, the application filed by the Official Receiver holding that the sales were not made in good faith and for valuable consideration. But it does not appear to have been noticed by him that one of the prayers made by the Official Receiver in I. A. 2 was that the respondents should be directed to hand over to the Official Receiver the properties sold to the respondents or their value. Although the prayer in the form in which it was made by the Official Receiver was somewhat clumsily worded, there is no doubt that What he wanted the Court to direct was that the respondents should render an account to the Court of all their dealings with the insolvent under the impugned sales in respect of What they had purchased under them so that the Court might eventually pass appropriate orders after taking into account all the circumstances in the case and after making necessary adjustments which the equities of the case demanded. What exactly is the relief granted by the District Judge is not clearly formulated. Anyhow, having regard to the manner in which he made his order, it must be taken that there is a direction made by the District Judge as prayed for in I. A. 2. It appears to me that that direction is not an appropriate one. Respondents 1 to 4 if they took possession of the assets of the insolvent and handed them over to respondent 5 and respondent 5 has in his turn dealt with those assets and stock-in-trade in the course of his business, the proper direction to be given in those circumstances would be a direction like the one which appears to have been given by the learned Judges of the High Court of Calcutta in Official Assignee of Bengal v. Yokohama Specie Bank Ltd., 29 Cal WN 374 : (AIR 1925 Cal 640)(E). The proper direction to be given therefore is that the respondents and each of them shall deliver to the Official Receiver all the assets and stock-in-trade purchased by them and that they should also render an account to the Official Receiver and to the Court of all their dealings with the insolvent in respect of the impugned transfers and also of all their dealings in respect of the assets, stock-in-trade which they purchased and also in respect of the proceeds of those assets and stock-in-trade. Any amounts found due by respondents after such an accounting shall be paid by them to the Official Receiver for distribution by him among the creditors of the insolvent. In my opinion, we should substitute a direction on the above terms for the direction which must be deemed to have been given by the District Judge. This is the only modification that we need make in the order of the District Judge.

14. The order annulling the transfers in favour of respondents 1 to 4 and in favour of respondent 5 is therefore confirmed and this appeal, except for the modification made above, is dismissed with costs. SADASIVAYYA, J. :-

15. My learned brother has discussed at length the facts and the evidence in the case. In most of the cases in which parties come forward before the Court under S. 53 of the Insolvency Act attacking alienations by the debtor on the ground that the transferee is not a transferee in good faith, it will be very difficult to prove by direct evidence the lack of good faith on the part of the transferee. It is essentially from the circumstances surrounding the transaction that the Court has to gather as to whether the transferee is a transferee in good faith. In the present case the evidence, through which we have been taken by the learned counsel in the case, shows that the transferees are not transferees in good faith. Respondents 1 to 4 are some of the creditors of the debtor who has effected the alienation of all the properties in his shop in their favour. The fifth respondent is a transferee of the same properties from respondents 1 to 4. The evidence in the case shows that at the time when the transfer was effected by the debtor in favour of respondents 1 to 4, the alienor was under the pressure of debts which he was unable to discharge. All the respondents were, at that time, aware of the plight in which the debtor had been placed. Though respondents 1 to 4 have made an attempt to show that the purchase by them was something in the nature of a public auction, they have not succeeded in establishing the same. That the debtor must have been in very bad circumstances at that time can be gathered from the fact that in less than five months thereafter he was adjudged an insolvent. That the respondents 1 to 4 could not have paid the full value of the goods which they purchased from the debtor, is also clear from the circumstance that almost overnight they were able to sell these goods for a profit of Rs. 1,700 to the 5th respondent. Having regard to these and the other circumstances in the case the conclusion reached by the learned District Judge that these transferees were not transferees in good faith, must be supported.

16. Having reached this conclusion, it has to be seen as to whether the Court has not the power to ensure that the properties which were the subject-matter of these alienations would be made available to the Receiver for being dealt with in accordance with law. It was contended by the learned counsel for respondents 1 to 4 that the Court, while acting under S. 53 of the Insolvency Act is not competent to make an order in respect of the properties which have been subsequently sold away in favour of a second or a subsequent transferee by the original alienee from the debtor. I am unable to accept the proposition that in a case where the Court is satisfied that the original alienation and the subsequent alienations are all in favour of transferees who are not transferees in good faith, the Court is powerless to make such appropriate orders as may be necessary in the interests of justice. When once the alienations are found to be not sustainable, the benefits which had accrued to the alienees by such transfers should be made available to the Receiver for being dealt with in accordance with the provisions of the law of Insolvency. Section 4 of the Insolvency Act gives very wide powers to the Court. I agree with my learned brother that this is a fit and proper case in which the Court should not hesitate to have recourse to the powers that are available under S. 4 of the Insolvency Act. It is only just and proper that those alienees who have purchased the goods from the debtor should render accounts into Court. I agree with the judgment which has been just now delivered by my learned brother. Appeal dismissed. AIR 1958 MYSORE 41 (VOL. 45, C. 12) "Subramaniyam, v. Ponnakshiammal" MYSORE HIGH COURT Coram : 2 HOMBE GOWDA AND MALIMATH, JJ. ( Division Bench ) M. P. Subramaniyam, Petitioner v. T. T. Ponnakshiammal, Respondent. Criminal Revn. Petn. No. 293 of 1956, D/- 17 -9 -1957 against order of First Class Magistrate, Civil Station, Bangalore, D/- 6 -7 -1956. Criminal P.C. (5 of 1898), S.488(4) - MAINTENANCE - ADULTERY - "Living in adultery" - What is. It is not a stray act or two of adultery that disentitles a wife from claiming maintenance from her husband but it is a course of continuous conduct on her part by which it can be called that she is living an adulterous life that takes away her right to claim the said maintenance. (Para 5) Anno: AIR Com. Cri. P. C. S. 488, N. 22. CASES REFERRED: Paras (A) AIR 1928 Bom 59 (V 15): 29 Cri LJ 314. 3 (B) (10) ILR 34 Bom 278: 5 Ind Cas 960. 3 (C) AIR 1938 Mad 833 (V 25): 39 Cri LJ 951. 3 2:5CriLJ359.">(D) (07) ILR 30 Mad 332: 5 Cri LJ 359. 4 (E) AIR 1925 Cal 794 (V 12): 26 Cri LJ 1184. 4 (F) AIR 1936 Rang 446 (V 23): 37 Cri LJ 1115. 4 (G) AIR 1938 Mad 66 (V 25): 39 Cri LJ 228. 4 (H) (56) 1956-2 Mad LJ 289. 4 G. M. Rego, for Petitioner; N. K. Gopala Iyengar, for Respondent. Judgement ORDER: This revision petition raises an interesting point of law regarding the interpretation of the term is living in adultery appearing in cl. (4) of S. 488 of the Criminal Procedure Code. The respondent filed petition No. C. Mis. 37 of 1955 in the Court of the First Class Magistrate, Civil Station, Bangalore, claiming maintenance from her husband under S. 488, Cr. P. C. The husband, viz., the present petitioner, contended that he was not bound to maintain her and that she had disentitled herself to any maintenance by reason of her infidelity to him inasmuch as on 9-5-55 she was found to be in criminal intimacy with oner Raman. The Magistrate came to the conclusion that adultery was proved on the part of the present respondent on two occasions. Relying on the rulings of certain High Courts, he further held that it does not amount to living in adultery as contemplated under S. 488 of the Criminal Procedure Code. On 6-7-56 he awarded maintenance at Rs. 15 per month from the present petitioner to the respondent. Being aggrieved by this order, the present revision petition has been filed by the husband.

2. When the matter came up for hearing before Padmanabhiah, J., apparently his Lordship was not quite satisfied with the interpretations of the High Courts on which the learned Magistrate had relied. One of the reasons that appears to have weighed with his Lordship is that almost all the Judges who decided those cases were English Judges whose notions and standards of morality may not be the same as ours. He, therefore, thought it fit to refer the case to a Division Bench to have an authoritative ruling of this Court on this point. The case has therefore come to be placed before a Division Bench.

3. Clause (4) of S. 488 of the Criminal Procedure Code provides: No wife shall be entitled to receive an allowance from her Husband under this section if she is living in adultery......................." The term living in adultery appearing in this clause has been the subject-matter of decision of various High Courts. In re, Fulchand Maganlal, AIR 1928 Bom 59 (A), it has been held: "A single act of adultery does not necessarily amount to living in adultery within the meaning of cl. (4) of S. 488 and will not justify a Magistrate in refusing maintenance, because the words living in adultery refer to a course of conduct and mean something more than a single lapse from virtue." Although the judgment in this case was written by Fawcett, J., Mirza, J. (who was an Indian), has endorsed that he holds the same opinion. It may be mentioned here that in coming to the above conclusion, their Lordships relied upon the observations of Justice Chandavarkar made in the case of Parami v. Mahadevi, ILR 34 Bom 278 (B). That was a case of maintenance under Hindu Law where Chandavarkar, J., observed: "The general rule to be gathered from the texts is that a Hindu wife cannot be absolutely abandoned. If she is living an unchaste life, he is bound to keep her in the house under restraint and provide her with food and raiment just sufficient to support life. These are, no doubt, considerations that are to be applied in the case of maintenance to be granted under the Hindu Law and not strictly those that are to be considered under the provisions of S. 488, Cr. P. C. The interpretations in the above case of Fulchand Maganlal (A), have been fully endorsed by Pandrang Row, J., in Kista Pillai v. Amirthammal, AIR 1938 Mad 833 (C), where it is observed: The clear implication from the words used by the Legislature in S. 488 is that unless the wife is actually living in adultery at or about the time of the application she is not disentitled to obtain maintenance. It is nowhere said in the section, and there is no need to introduce additional words therein, that living in adultery must be in the house of the adulteror. The words "living in adultery" are merely indicative of the principle that occasional lapses from virtue are not a sufficient reason for refusing maintenance. Continued adulterous conduct is what is meant by living in adultery."

4. As early as in 1907 it was held by the Madras High Court in Patala Atchamma v. Patala Mahalakshmi, ILR 30 Mad 332 (D), that " living in adultery refers to a course of conduct and means something more than a single lapse from virtue." The same interpretation has been given to that term living in adultery in various subsequent decisions, e.g., Jatindra Mohan v. Gouri Bala, AIR 1925 Cal 794 (E); Ma Mya Khin v. N. L. Godenho, AIR 1936 Rang 446 (F); and Lakshmi Ambalam v. Andiammal. AIR 1938 Mad 66 (G). The said term has been explained more clearly by Ramaswami, J., in the case of Maha-lingam Pillai v. Amsavalli, (1956) 2 Mad LJ 289 (H). This was, however, a case under the Madras Hindu (Bigamy Prevention and Divorce) Act and the Hindu Marriage Act. Section 13 of the latter Act provides that only living in adultery is a ground for dissolution of marriage. At p. 294, his Lordship observes: There is a distinction between committing adultery and living in adultery. Living in adultery means, following in a course of adulterous conduct more or less continuous; a single act of adultery cannot be considered as living in adultery. The words living in adultery used in sub-s. (4) of S. 488, Criminal Procedure Code, and S. 13 of Act XXV of 1955, are merely an indication of the principle that occasional lapses from virtue are not a sufficient reason either for refusing maintenance under S. 488 of the Code of Criminal Procedure, or for granting divorce under Act XXV of 1955, as distinguished from judicial separation. The question, therefore, for Courts to decide is whether there had been such adulterous conduct at or about the time of the application, that is to say, shortly before or shortly after the application was made, interpreting the word shortly in a reasonable manner." As against these rulings, no other case has been cited to us where any of the High Courts or the Supreme Court in India has taken a contrary view or has held that a single lapse or two on the part of a wife would disentitle her from claiming maintenance under S. 488 of the Criminal Procedure Code.

5. After a careful consideration of the law on the point, we are of opinion that it is not a stray act or two of adultery that disentitles a wife from claiming maintenance from her husband; but it is a course of continuous conduct on her part by which it can be called that she is living an adulterous life that takes away her right to claim the said maintenance. It is significant to note that the wording in S. 488, cl. (4) of the Criminal Procedure Code is not if she commits adultery but if she is living in adultery. To our mind, there is a certain amount of emphasis on the term living. A mere lapse, whether it is one or two, and a return back to normal life cannot be said to be living in adultery. If the lapse is continued and followed up by a further adulterous life, the woman can be said to be living in adultery.

6. Turning to the facts of the present case we have heard the learned advocate for the petitioner at length. He has taken us through a number of letters alleged to have been written by the present respondent to her alleged lover Raman. The learned First Class Magistrate, after consideration of this evidence, has reached the conclusion that the evidence goes to establish two acts of adultery only. The learned advocate for the petitioner, however, wants us to reach the conclusion that the course of adulterous conduct on the part of the present respondent continued right from the date when her husband left Bangalore on Military Service on 25-11-54 to 9-5-55 when she was caught redhanded. Firstly, this is a finding of fact on which we would be very slow to interfere. Even if we go into the question of evidence, we do not find that there is sufficient material to reach the conclusion which he wants us to reach. In our opinion, the conclusion arrived at by the Magistrate is correct. It establishes only two acts of adultery, the last being 9-5-55. The evidence in this case has been recorded in Court from 26-8-55 to 21-6-56. No allegation has been made that after 9-5-55 till any date prior to 21-6-56, the present respondent betrayed any tendency of continuing or reviving her adulterous connection with her alleged paramour. Under such circumstances, what is proved is nothing more than two instances of lapses. The Magistrate has rightly held that she is not disentitled from getting maintenance. The petition is dismissed. Petition dismissed. AIR 1958 MYSORE 43 (VOL. 45, C. 13) "P. Kempegowda v. Channaveeriah" MYSORE HIGH COURT Coram : 2 S. R. DAS GUPTA, C. J. AND HEGDE, J. ( Division Bench ) Patel Kempegowda and others, Appellants v. Channaveeriah and others, Respondents. Second Appeal No. 615 of 1953, D/- 27 -9 -1957, against decree of Dist. J, Mysore, in Appeal No. 120 of 1952-53. (A) Limitation Act (9 of 1908), S.20(2) - LIMITATION - MORTGAGE - EVIDENCE - Mortgagee in possession of mortgaged land and raising crops - Separate evidence of receipt of produce not necessary. Evidence Act (1 of 1872), S.114. Once it is established that the mortgagee was in possession of the land mortgaged with him and he has raised the crops thereon during the years in question, the inference naturally flows that he gathered the produce of the crops raised by him. It is a normal and natural human conduct. The receipt of the income by him is satisfactorily established thereby, and no positive evidence that he was in receipt of rent or the produce is necessary. (Para 5) Anno : AIR Com., Lim. Act, S. 20, N. 28; CJI Evid. Act, S. 114, N. 130. (B) Limitation Act (9 of 1908), S.20(2) - LIMITATION - MORTGAGE - Essentials - Possession need not be in pursuance of terms of mortgage. All that S. 20 (2) requires is that the mortgagee should be in possession of the whole or a portion of the mortgaged property and he should be in receipt of the rent or produce. It is wholly unnecessary that he should be in possession in pursuance of the terms of the mortgage bond. Otherwise S. 20 (2) would not apply to any mortgage other than usufructuary mortgage or anomalous mortgage. (Para 6) Anno: AIR Com., Limitation Act, S. 20, N. 28. (C) Evidence Act (1 of 1872), S.92 - MORTGAGE - POSSESSION - EVIDENCE - Simple mortgage - Subsequent oral agreement putting mortgagee in possession for interest - Admissibility. Where in the case of a simple mortgage the parties, by a subsequent oral agreement, put the mortgagee in possession of the mortgaged lands for recovery of interest, it is merely an agreement creating a machinery for discharging interest and it is not hit by S. 92. (Para 7) Anno: C.J. I., Evidence Act, S. 92, N. 10, 23. (D) Limitation Act (9 of 1908), S.20(2) - LIMITATION - OBJECT OF AN ACT - MORTGAGE - Scope - Proviso does not govern sub-s. (2) - Mortgagee in possession receiving rent - Acknowledgment not necessary. On examination of the scheme of the section, it is clear that the proviso requiring acknowledgment has been placed immediately after subsection (1) which contemplated payment of interest or payment of principal. Sub-section (2) comes after the proviso and is not governed by it. If the legislature wanted the proviso to govern both the sub-sections there would have not been any difficulty to have the proviso after subsection (2). (Para 13) Even from a commonsense point of view there is no justification for requiring any acknowledgment when mortgagee receives rent or produce as in such a case there is no person making the payment. The mortgagee is paying himself if there is any payment at all. No acknowledgment is therefore, necessary in the case of receipt of the produce or rent of the mortgaged land by the mortgagee in possession of the property. (Scheme and history of the section explained). (Paras 14, 16) Anno: AIR Com., Limitation Act, S. 20, N. 28. (E) Limitation Act (9 of 1908), S.21(2), S.20 - LIMITATION - MORTGAGE - APPLICABILITY OF AN ACT - Applicability of S.21 (2) to payments by a co-mortgagor. The bar of S. 21, cl. (2) is applicable not merely to personal debts, but also to mortgaged debts as the words "joint contractors" includes "co-mortgagors" and the word "chargeable" refers to not merely the personal liability but also the liability on the property. Section 21 is really an explanation to Ss. 19 and 20 and its object is to provide that only one of the contracting parties shall not ordinarily impose a liability on the other by anything done by him. Limitation, whether treated as a right or as liability, is prima facie personal and unless the legislature so provides, a co-operative right or liability should not be imposed. Case law Referred. (Para 17) Anno: AIR Com., Limitation Act, S. 20, N. 16 ; S. 21, N. 11, Pt. 3. (F) Transfer of Property Act (4 of 1882), S.76(g) - MORTGAGE - POSSESSION - Mortgagee in possession of mortgaged land - Duty to keep accounts. Where the case of the mortgagee is that he is in possession under a specific understanding that the entire income of the year was to go towards the interest due in that year, but the evidence does not establish such understanding and only shows that the property in question was to be in possession of, ,the mortgagee primarily for the purpose of paying interest, it is necessary that the mortgagee should account to the mortgagors for the income received by him during the period he was in possession. (Para 18) Anno: AIR Com., T. P. Act, S. 76, N. 12, 13. (G) Transfer of Property Act (4 of 1882), S.82, S.101 - MORTGAGE - Purchase by mortgagee of portion of mortgaged property - Deduction of mortgaged amount - When to be allowed. Civil P.C. (5 of 1908), O.34, R.2. Where the mortgagee acquires a portion of the mortgaged property by way of purchase, there is a merger of rights and the mortgagors are entitled to a pro rata deduction from the amount due under the mortgage in respect of the property sold. The correct procedure is to give the necessary deduction even before passing the decree. To pass a preliminary decree for the entire amount claimed and to direct the Court to enquire into the value of the property and to give deduction in the Anal decree is not proper. (Para 19) Anno: AIR Com., T. P. Act, S 82, N. 18; S. 101, N. 5. AIR Com., Civil P. C., O. 34, R. 2, N. 5, 7. CASES REFERRED : Paras (A) AIR 1951 SC 477 (V 38) : 1952 SCR 116 12 (B) AIR 1940 Pat 512 (V 27) : 187 Ind Cas 484 16 (C) AIR 1953 Trav-Co 63 (V 40) : ILR (1952) Trav-Co 696 16 (D) AIR 1920 Mad 418 (V 7) : 55 Ind Cas 763 17 (E) AIR 1929 Mad 881 (V 16) : ILR 53 Mad 119 17 (F) AIR 1943 Bom 381 (V 30) : ILR (1943) Bom 486 17 (G) AIR 1939 Rang 287 (V 26) : 184 Ind Cas 622 17 (H) AIR 1936 Pat 361 (V 23) : 163 Ind Cas 808 17

(I) AIR 1938 Pat 383 (V 25) : 174 Ind Cas 156 17 (J) AIR 1938 Mad 111 (V 25) : 175 Ind Cas 426 17 (K) AIR 1938 Cal 129 (V 25) : 176 Ind Cas 191 17 E. S. Venkataramiah, for Appellants; V. Krishnamurthy, for Respondents. Judgement HEGDE, J. :- This is a second appeal filed by the defendant against the decision of the District Judge of Mysore in R. A. No. 120 of 1952-53. The suit is for recovery of Rs. 3000/- principal and Rs. 3000/- interest, claimed as clue on a registered hypothecation bond dated 4-3-1927. The learned Sub-Judge tried the case as O. S. No. 27/50-51 and dismissed the suit as being barred by limitation. On other material issues the Courts below have concurrently found against the defendants. As against this decision the legal representatives of the plaintiff, (Original plaintiff having died by that time) took up the matter in appeal to the Court of the District Judge, Mysore. The learned District Judge allowed the appeal and decreed the sum claimed in the suit. The defendants have come up in Second Appeal. As the appeal is governed by S. 100 of the Mysore C. P. C, the appellants are entitled to canvass the correctness of the decision on questions of facts as well, as the judgment appealed against is a reversing one. The only question for consideration in this Second Appeal is one of limitation.

2. The material contentions raised by the learned advocate appearing for the defendants are: (1) that the finding of the First Appellate Court that the mortgagee-plaintiff was in possession of Survey No. 190 during the years 1936-37 to 1941-42 is unsustainable on the evidence on record. (2) that even if the said possession is proved there is no proof of any receipt of income and consequently limitation is not saved by S. 20 (2) of the Limitation Act. (3) that even if there has been any receipt of income or rent there being no acknowledgement of the payment appearing in the handwriting or in a writing signed by the person making the payment, limitation is not saved. In other words his contention is that the proviso in S. 20 governs not merely S. 20, Sub-s. (1), but also sub-s. (2) of the said Section.

3. On the other hand the learned Counsel appearing for the respondents questions the correctness of the conclusions of the Courts below in arriving at the finding that the endorsement dated 26-2-1943 does not save the bar of limitation. His contention is that when any one of the co-mortgagors make the payment and acknowledges the same, then the limitation is saved by S. 20 (1) of the Limitation Act. It is necessary to examine these contentions in detail.

4. The most important question to be decided in this appeal is whether the original plaintiff was in possession of any portion of the mortgaged property between the years 1936-37 to 1941-42 as contended by the plaintiff. The plaintiffs case is that the defendants were not in a position to pay the interest. Hence they put him in possession of Survey No. 190 item No. 3 of the mortgaged property for the purpose of paying himself the interest due under the mortgage. His further case is that he was in possession of the said property for a period of six years and enjoyed the income of the said property. The defendants deny this. Unless the plaintiff establishes that he was in possession of the property during this period his suit according to the findings of the Courts below would be barred by limitation. To establish his possession for six years, the plaintiff has examined a large number of witnesses. P. Ws. 1, 2, 5, 6, 7 and 8 speak to the fact that the plaintiff was in possession of item No. 3 of the mortgaged property during these years and was enjoying the income thereof. P. W. 8 is one of the supplemental plaintiffs. As such his evidence could be considered as interested; but apart from the evidence of P. W. 8 there is the evidence of the other witnesses who speak to the fact of possession of Survey No. 190 by the plaintiff during the years 1936-37 to 1941-12 and amongst them P. Ws. 6 and 7 speak also to the terms of the agreement under which the property was put in possession of the mortgagee. They claimed to have been present at the time of the agreement. These witnesses are disinterested witnesses. They are neighbours and persons likely to know both the fact of possession as well as the terms of the agreement spoken to by them. Nothing is brought out against them and there is no reason to disbelieve their evidence. Apart from the oral evidence in this case there is considerable circumstantial evidence which supports the case of the plaintiff. It is proved that for the years 1937 to 1941 the plaintiff paid the assessment in respect of this property. This is proved by Ex. C-1 to C-4. There is no satisfactory explanation on behalf of the defendants as to how the plaintiff happened to pay the assessment in question. It is not the case of the defendants that they have paid the assessment during these years. This is a material circumstance in favour of the plaintiff. It is also important to note that the 1st defendant was the Patel of the village in which the suit property is situated and he would have been the best person to speak to the fact as to how the mortgagee happened to pay the assessment of the said property during those years. He has not been examined in the case. The endorsement dated 26-2-1943 which is proved also remains unexplained. As against the evidence adduced by the plaintiff, there is only the interested testimony of D. W. 2 and the evidence of D. W. 3. D. W. 2 is the second defendant and as such much value cannot be attached to his evidence. It is true that D. W. 3 speaks to the fact that the second defendant has been cultivating the property in question during the relevant period. He is said to be a person not belonging to the village and there is no reason to prefer his evidence to that of the P. Ws. above referred to. But the learned Counsel for the defendants has pressed before us the fact that the plaintiff is a rich man, lending monies and as such must be maintaining accounts. From the fact that he has not produced his account books an adverse inference must be drawn against him. It is further contended that there is admission from some of the plaintiffs witnesses that he had some sort of an account. Even these have not been produced. P. W. 8 swears that no accounts were kept. It is true that his evidence does not carry conviction. This is certainly a circumstance in favour of the defendant. But I do not think this circumstance by itself is sufficient to outweigh the evidence adduced on behalf of the plaintiffs. It is quite unlikely that the plaintiff who is a man of means would have allowed his claim to be barred by sleeping over his rights unless he had the possession of the property as claimed by him. The learned District Judge has elaborately discussed the evidence on this question and has come to the conclusion that the plaintiff has proved that he was in possession of Survey No. 190 (item No. 3 of the plaint property) from 1936-37 to 1941-42, and I entirely agree with his conclusion. Normally I should have given some weight to the opinion of the trial judge in accepting or rejecting the oral testimony adduced in a case like this. But unfortunately there is nothing in the judgment of the learned Sub-Judge to indicate as to why the evidence of P. Ws. 1, 2 and 5 to 8 should be rejected. All that he says is that they do not lose anything by coming and deposing. This is an irrelevant consideration. Hence I come to the conclusion that the plaintiff was in possession of item No. 3 of the mortgaged property for the period 1936-37 to 1941-42.

5. This takes me to the next question as to whether there is proof that the plaintiff was in receipt of the income from the mortgaged property during this period. The contention of Mr. Venkataramiah appearing for the appellants is that it is not sufficient to prove that the mortgagee was in possession of the mortgaged property. It must also be proved that his possession was qua-mortgagee and in pursuance of the terms of the mortgaged document. His further contention is that it must be proved that he was in receipt of the rent or produce of such land. Taking the first question as to whether there is proof of the receipt of the rent or produce of the land, it is contended by the learned advocate for the appellants that the account books if produced would have proved the receipt of the rent or produce. The non-production of the account books raises a presumption or at least an inference that no rent or produce has been received during the period in question. He has also taken us through the evidence of the witnesses and he says, the evidence even if accepted in its entirety merely establishes that (a) plaintiff was in possession of the land (b) was enjoying the same and (c) has raised crops thereon. It is his contention that this evidence is not sufficient, but there must be positive evidence that he was in receipt of the rent or produce. This contention Is highly technical. When once It is established that the plaintiff was in possession of the land and he has raised the crops thereon during the years in question, the inference naturally flows that he gathered the produce of the crops raised by him. It is a normal and natural human conduct. The receipt of the income by the plaintiff is satisfactorily established.

6. All that S. 20 (2) requires is that the mortgagee should be in possession of the whole or a portion of the mortgaged property and he should be in receipt of the rent or produce. It is wholly unnecessary that he should be in possession in pursuance of the terms of the mortgage bond. If the contention of the appellants are accepted, S. 20 (2) would not apply to any mortgage other than usufructuary mortgage or anomalous mortgage. The wording of the Section does not support this contention, it has been uniformly held by all the Courts that even a simple mortgagee who has been put in possession of the mortgaged property and who has received the rent or produce therefrom is entitled to the benefit of S. 20 (2).

7. The appellants contention that the agreement being oral is not admissible in evidence does not merit serious consideration. By the subsequent agreement the parties merely created a machinery to discharge the interest. This is not hit by S. 92 of the Evidence Act.

8. The next contention raised by Mr. E. S. Venkataramiah on behalf of the appellants is that the proviso in S. 20 governs both Ss. 20 (1) and S. 20 (2). S. 20 (2) is as follows : "When mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment for the purpose of Sub-s. (1)". He emphasises the words "deemed to be payment for the purpose of sub-s. (1)" and he wants us to dovetail the sub-section to S. 20 (1) and read it as a part and parcel of S. 20 (1). Once having read so, he would say that the proviso governs the whole of the section. His further contention is that sub-section (2) by itself does not provide for the extension of the period of limitation. If we read it independently i.e. independent of S. 20 (1) it makes no meaning. He wants us to construe this sub-section as an explanation to S. 20 (1) i. e. as an explanation of the word "payment" appearing in S. 20 (1). It follows from that the proviso governs both the sections. The argument looks attractive at first sight. There is no authority in support of the proposition contended for on behalf of the appellant. Such authorities as are available are against the appellants contention.

9. Section 20 of the Limitation Act has undergone considerable change. Prior to the amendment in 1929 the Section was as follows: "When interest on a debt or legacy is, before the expiration of the prescribed period, paid as such by the person liable to pay the debt or legacy, or by his agent duly authorised in this behalf, or when a part of the principal of a debt is, before the expiration of the prescribed period, paid by the debtor or by his agent duly authorised in this behalf, a new period of limitation, according to the nature of the original liability, shall be computed from the time when the payment was made; Provided that, in the case of part payment of the principal of a debt, the fact of the payment appears in the handwriting of the person making the same." "Where mortgaged land is in the possession of the mortgagee, the receipt of the produce of such land shall be deemed to be a payment for the purpose of this section."

10. The amending Act of 1929 made material changes in this section. Until then only the part payment of the principal of a debt need appear in the handwriting of the person making the payment. It was not necessary in the case of payment of interest as such. The amending Act put both classes of payment in the same category. Another important change that was made was that in the place of the words "the payment appears in the handwriting of the person making the same" which has given rise to considerable conflict of opinion the amended Act used the expression "appears in the handwriting of or in a writing signed by the person making the payment." The last paragraph of the old section was numbered as sub-section (2) and instead of the words "for the purpose of this section", the words used are "for the purpose of sub-section (1)". This section was further amended by Act XVI of 1942 which is unnecessary for our purpose.

11. Under the Section as it stood prior to the amendments in 1929 three factors extended the period of limitation: (1) payment of interest as such (2) part payment of the principal when duly acknowledged and (3) when mortgaged land is in the possession of the mortgagee, and he received the produce of the said land. Neither in the case of the payment of interest as such nor in the case of the receipt of the produce of the mortgaged land acknowledgment was necessary.

12. The question whether a particular payment is towards interest or towards principal gave rise to considerable controversy and gave room for adducing false evidence. To shut out this controversy and to remove the artificial distinction between the payment of interest as such and part payment of principal the legislature enacted the present proviso which laid down that both in the case of payment of interest or the part payment of the principal the only mode of proof shall be that the payment should appear in the handwriting of or in the writing signed by the person making the payment. Payment is one thing, acknowledgment is another. What extends limitation is payment, acknowledgment is a mere proof of the payment. See Sant Lal v. Kamla Prasad, AIR 1951 SC 477 (A). Both in the case of payment of interest or part payment of principal a statutory proof is stipulated by the proviso. In the case of receipt of the produce by the mortgagee the very possession of the property is a good proof. It was a different category of payment. That part of the section had not given rise to much difficulty in the matter of proof. Hence legislative interference was not called for. But the question is did the legislature in fact interfere and call for the statutory proof as in the case of other payment contemplated in S. 20 (i).

13. It will be seen that under S. 20 as it stood prior to the amendment in 1929 where the mortgaged land is in possession of the mortgagee, the receipt of the produce of such land "shall be deemed to be a payment for the purpose of this section". (Underlining here into " is mine). The section, as it stood provided for two types of payments, payment of interest as such and part payment of the principal. The payment of interest as such did not require any acknowledgment. Hence it cannot be argued that when the last paragraph of the section said "shall be deemed to be a payment for the purpose of this section" it also attracted the further concept of "acknowledgment." It merely referred to payment. The cases decided under this section prior to the amendment unanimously held that the receipt of the produce by the mortgagee in possession of the mortgaged land did not require any acknowledgment. There is no reason to think that the law was changed in this respect alter the amendment by the Amending Act of 1929. On the other hand by convening the last paragraph of S. 20 into a separate sub-section it is made quite independent of S. 20 (1). On an examination of the scheme of the section, it would be seen that the proviso requiring acknowledgment has been placed immediately after sub-s. (1) which contemplated payment of interest or part payment of principal. Sub-section (2) comes after the proviso. If the legislature wanted the proviso to govern both the sub-sections there would not have been any difficulty to have the proviso after sub-s. (2). It will not be correct to presume that the legislature was either negligent or the proviso has been placed in between Ss. 20 (1) and 20 (2) by oversight. Both the history of the section and the scheme thereof is against such a contention.

14. Even from a commonsense point of view there is no justification for requiring any acknowledgment when mortgagee receives rent or produce. In the case of receipt of rent or produce there is no person making the payment. The mortgagee is in possession of the property and is enjoying the income. He is paying himself, if there is any payment at all. It would be unreasonable to expect that whenever the mortgagee realises income out of the mortgaged property, the mortgagor should come and acknowledge the payment. It is difficult to imagine that the legislature would have intended such course of conduct.

15. On a fair reading of the section, it would be clear that the words "shall be deemed to bo a payment for the purpose of sub-s. (1)" merely relate to payment and not acknowledgment. As stated herein above, it would be seen that sub-s. 20 (1) merely speaks of payment. It is the proviso that requires that such payment as is specifically referred to in sub-s, (1) to be acknowledged and not all types of payment.

16. The question whether the proviso governs merely S. 20 (1) or both S. 20 (1) and S. 20 (2) had come up for consideration before their Lordships of the Patna High Court in the case reported in Mathura Singh v. Palakdhari Rai, AIR 1940 Pat 512 (B). Their Lordships rejected the contention that the proviso governs both Ss. 20 (1) and 20 (2). Their Lordships proceeded on the footing that this is a well accepted proposition. They rightly remarked that it did not seem to them that the intention of the legislature in enacting this proviso was to abrogate the long established and traditional practice by which the mortgagee in possession of a land is deemed to be in receipt of interest and to have a fresh start of limitation from the period when his possession ceases. This question again came up for consideration before their Lordships of the Travancore-Cochin High Court in the case reported in Kumari Ittaman v Bhaskara Menon, AIR 1953 Trav-Co. 63 (C). The relevant discussion is found in paragraph 5 at page 66. They are also of opinion that no acknowledgment is necessary. I am clearly of opinion that no acknowledgment is necessary in the case of receipt of the produce or rent of the mortgaged land by the mortgagee in possession of the property. This contention of the appellant is rejected.

17. The above findings are sufficient to dispose of the appeal before us. But Mr. Krishnamurthy appearing on behalf of the respondents pressed before us the contention that the endorsement made by one of the co-mortgagors on 26-2-1943 must be deemed to be an acknowledgment under Sub-s. 20 (1) of the Limitation Act and the same is sufficient to save limitation. The point raised being some what important I shall examine the contention. His contention is that on a proper reading of S. 20 (1) it would be clear that the acknowledgment in question could be made by any of the co-mortgagors as any one of them is a "person liable to pay the debt or legacy". According to him it is not necessary that all the persons liable to pay the debt or legacy should be parties to the acknowledgment. If the mortgagors could take the benefit of the payment made by anyone of the co-mortgagors they should equally be bound by such payment coupled with the acknowledgment. According to him their rights are co-extensive with their liability. But the main difficulty in the way of Mr. Krishnamurthy is S. 21, Cl. (2) of the Limitation Act. The said section reads as follows: "Nothing in the said sections renders one of several joint contractors, partners executors or mortgagees chargeable by reason only of a written acknowledgment signed or of a payment made by, or by the agent of any other or others of them." This section specifically lays down that the acknowledgment made by anyone only of the joint contractors cannot bind the other joint contractors. But Mr. Krishnamurthys contention is that the word "joint contractors" does not include "joint mortgagors". He says that while the section mentions "mortgagees" there is no reference specifically to "mortgagors". He further contends that if the word "joint contractors" is intended to include "mortgagors" there was no necessity for specifically mentioning "mortgagees" as the "mortgagees" are also "joint contractors". It is not necessary for me in this case to decide as to why the "mortgagees" were specifically included in this section. Legislature possibly intended that Ss. 19 and 20 read with S. 21 should, govern not merely the contractual obligations of the mortgagees but also their other obligations Undoubtedly the mortgagors are "joint contractors" and there is no valid reason to exclude them from the category of "joint contractors". It has been held in a number of decisions that the mortgagors are "joint contractors" within the meaning of S. 21 clause (2). See Muthu Chettiar v. Muhammad Hussain, AIR 1920 Mad 418 (D), Thayammal v. Muthu Kumaraswami Chettiar, AIR 1929 Mad 881 (E), Dashrath Motiram v. Gajanan Keshav, ILR (1943) Bom 486: (AIR 1943 Bom 381) (F), U so Maung v J. Thorn, AIR 1939 Rang 287 (G) No case has been brought to our notice which has taken a contrary view. Next point that is urged before us is the import of the word "chargeable". What Mr. Krishnamurthy wants us to conclude is that while the personal liability of the "joint mortgagors" cannot be kept alive by the acknowledgment made by one of the co-mortgagors, the liability on the property can be kept alive by such acknowledgment. He contends that the mortgagee is one and indivisible, and if for any reason once the mortgage is kept alive it is kept alive in its entirety. He further contends that the legislature has advisedly used the words "joint contractors" and "chargeable". His case is that what the legislature tried to protect by S. 21, sub-s. (2) is the contractual liability of the joint contractors which according to him is only personal liability. This argument cannot be accepted as sound. The co-mortgagor enters into a contract not merely about his personal liability, but also about the liability of the property that he offers as security. As a result of that contract he is chargeable not merely in respect of his personal liability, but also in respect of the liability of his properly. What reason is there to give a restricted meaning to the word "chargeable"? There is no justification to allow the period of limitation being extended by one of the co-mortgagors as against the property of the other co-mortgagors. This might open the door for fraud. Mr. Krishnamurthy seeks considerable support for his argument from the decision of Justice James in the case reported in Sripati Samanta v. Lalji Sahu, AIR 1936 Pat 361 (H) and also from the observations made by Wort J. in the case reported in Baijnath Prasad v. Satilal Sahu, AIR 1938 Pat 383 (I). The observations of Wort J. are obiter. The question for decision in that case was whether the personal liability of one of the co-mortgagors can be kept alive by the payment and acknowledgment made by the other co-mortgagor. Their Lordships came to the conclusion that it cannot be done. Incidentally his Lordship Justice Wort remarked : "It is hue that the mortgage itself may be kept alive by payment by one of the mortgagors, but when the question which arises is a matter not of the liability on the mortgage, but the liability on the personal covenant, the matter which has to be determined is whether the payment by one joint contractor can be deemed to be the payment of the other joint contractors and that as S. 20 in my judgment quite clearly implies quite apart from S. 21, can only arise where the payment is made by the one as the agent of the other." In this decision there is no discussion about the import of the words "joint contractors" and "chargeable" as appearing in S. 21 (2). Neither the decision of James J. nor the observations in case reported in AIR 1938 Pat 383 (I) could be considered as correct. There is a long catena of decisions which have laid down that the bar of S. 21, clause (2) is applicable not merely to personal debts, but also to mortgaged debts. They specifically lay down that the word "joint contractors" includes "co-mortgagors" and the word "chargeable" refers to not merely the personal liability but also the liability on the property. It was so held in the cases reported in AIR 1920 Mad 418 (D). Spencer and Seshagiri Rao JJ. after an elaborate discussion of the relevant provisions opined that the distinction between simple debts and real debts mentioned in the English law of Limitation is abrogated by S. 21 and that there is no distinction made by the section between the co-mortgagors and co-mortgagees. They further held that the word "joint contractors" in the section include "joint mortgagors" also. They are of opinion that S. 21 of the Limitation Act is really an explanation to Ss. 19 and 20 of the Act. According to them the object of the explanation is to provide that only one of the contracting parties shall not ordinarily impose a liability on the other by anything done by him. Limitation, whether treated as a right or as liability is prima facie personal and unless the legislature so provides, a co-operative right or liability should not be imposed. I am in full agreement with the views expressed in this case. This view was shared by Ramesham and Jackson JJ. in AIR 1929 Mad 881 (E), their Lordships opined that the word "chargeable" in S. 21 prima facie means all kinds of chargeability under a contract and that it cannot be limited to personal liability only. In the case reported in Nagayya Naidu v. Duraiswami Naidu, AIR 1938 Mad 111 (J), Burn J followed the decision reported in AIR 1920 Mad 418 (D). The Madras view is shared by the other High Courts. The High Court of Rangoon accepted the correctness of the Madras view in the case reported in AIR 1939 Rang 287 (G). The same is the opinion of the Bombay High Court as could be seen in the case reported in ILR (1943) Bom 486: (AIR 1943 Bom 381) (P). The Calcutta view seems also to be the same as could be seen by the decision reported in Azizur Rahaman v. Upendra Nath, AIR 1938 Cal 129 (K). In fact there seems to be more or less a unanimity of opinion amongst the different High Courts on this point. Whatever the stray observations may be in some of the cases reported, the weight of authority is heavily against the view contended for by Mr. Krishnamurthy. The said contention has no basis either an principle or on authority.

18. It is argued on behalf of the appellant that if we should hold that the mortgagee was in possession of the property from 1936-37 to 1941-42 then he must account for the income for that period and should give appropriate deductions from the amount due. The case of the mortgagee is that the mortgagee is in possession under a specific understanding that the entire income of the year was to go towards the interest due in that year. We have been taken through the evidence on this point. I do not think that the evidence is such as to accept the specific understanding contended for. All that the evidence establishes is that the property in question was to be in possession of the mortgagee primarily for the purpose of paying interest. Hence it is necessary that the mortgagee should account to the mortgagors for the income received by him during the period he was in possession of the mortgaged property. An account will have to be taken before a decree for specific amount could be passed.

19. The next point urged before us is that the fourth defendant has sold Item No. 4 of the mortgaged property to the plaintiff on 29-1-1932 under Ex. VII. To this extent there has been a merger of the rights of the mortgagee and mortgagor. Hence the defendants contend that out of the amount due under the mortgage pro rata deduction will have to be given in respect of the property sold. This plea of the defendants has been accepted by learned District Judge, but he has decreed the entire amount claimed and directed the Subordinate Judge of Mandya to enquire into the value of the properties before passing the final decree and give credit to that portion of the debt as Item No. 4 bears to the whole property mortgaged. This is not a correct procedure and it would be more desirable to give the necessary deduction even before a decree is passed. Hence I set aside the decrees of the lower Courts and remand the case to the District Judge, Mysore to pass a fresh decree in the light of the findings given herein above.

20. If the parties desire to adduce additional evidence on the question of accounting by the plaintiff-mortgagee in respect of his possession of the property from 1936-37 to 1941-42 (as directed in para 18 of the Judgment) and also in respect of the deduction that the defendants are entitled to, in view of the alienation of Item No. 4 of the mortgaged property to the plaintiff as per Ex. VII (as found in para 19 of the Judgment) they may be allowed to do so. The additional evidence may be recorded either by the District Judge himself or through the Trial Court.

21. The appellants have substantially failed in this appeal. Hence the cost of this appeal shall be paid by them to the respondents, (one set). The appellant will be entitled to certificate under section 10 of the Mysore Court-fees Act for a refund of the Court fees paid by them on the appeal Memo.

22. DAS GUPTA, C.J. : I agree. Order accordingly. AIR 1958 MYSORE 48 (VOL. 45, C. 14) "State of Mysore, v. Nanja" MYSORE HIGH COURT Coram : 2 HOMBE GOWDA and MALIMATH, JJ. ( Division Bench ) State of Mysore, Appellant v. Nanja, Accused-Respondent. Criminal Appeal No. 44 of 1956, D/- 16 -9 -1957, against order of S. J., Mysore, in Mandya Sessions Case No. 9 of 1955. (A) Criminal P.C. (5 of 1898), S.417 - EQUALITY - APPEAL - If contravenes Art.14. Constitution of India, Art.14. The right given by Art. 14 is one about equality before the law and equal protection of the laws. It cannot be said that a private complainant as an appellant under sub-s. 3 of S. 417, and the Government as an applicant under sub-s. 1, do not get equal opportunities or equal protection of the law. The appeals filed by both of them will meet with the same consideration at the hands of law Courts. The term "equal protection of the laws" means the right to equal treatment in similar circumstances, both in the privileges conferred and In the liabilities imposed by the law. The entire problem under the equal protection clause is one of classification or of drawing lines; classifications are no doubt permitted but it has to be seen that a classification is reasonable, and it is reasonable when it is not an arbitrary selection but rests on differences pertaining to the subject in respect of which classification is made. There is no doubt that the classification in favour of the State made in S. 417 inasmuch as the State can file an appeal against acquittal without first obtaining leave of the High Court but the private complainant cannot, is not unreasonable. It does not offend against Art. 14 of the Constitution : AIR 1952 SC 75 and AIR 1951 SC 318 and (S) AIR 1957 Andhra Pra 163, Rel. on. (Para 5) Anno: AIR Com., Constitution of India Art. 14, N. 27, 42. Cr. P. C, S. 417, N. 1. (B) Criminal P.C. (5 of 1898), S.417 - APPEAL - Scope of appeal against acquittal. In an appeal against an order of acquittal, it is open to the High Court to review the entire evidence and to come to its own conclusion. But in so doing, the High Court has to keep in view the well-established rules laid down by the Privy Council in AIR 1934 PC 227 and reiterated by the Supreme Court in several cases. It would not be correct to assume that in such appeals the Appellate Court can only interfere if the judgment of the lower Court is perverse : Case law Ref. (Para 7) Anno: AIR Com., Criminal P. C., S. 423, N. 15; S. 417, N. 1, (C) Penal Code (45 of 1860), S.300 - MOTIVE - CRIMINAL TRIAL - Motive. Criminal trial. Motive is not a necessary ingredient of an offence. If evidence of motive is produced, it may support the prosecution in showing that the other substantial evidence on which an offence can be established is more probable. Hence the evidence of motive is one which helps the appreciation of evidence by showing whether the evidence could be more or less probable. There may be cases where the evidence is strong enough to sustain a conviction but where there may be little or no evidence in respect of motive or where the motive suggested may itself be very weak. (Para 16) Anno: AIR Man., Penal Code, S. 300, N. 42. (D) Penal Code (45 of 1860), S.304 and S.324 - CULPABLE HOMICIDE - HURT - Offence held fell u/S.324 and not S.304. There was nothing to establish that the accused intended to kill his father or that he intended to cause such bodily injury as was likely to cause his death. He hit his father in a fit of rage, possibly on account of the fathers denial to pay him money. Held that the accused could not be charged under S. 304, but that the offence fell under S. 324. (Para 18) (Considering the youth of the accused a lenient view was taken and the accused was sentenced to six months R. I.). (Para 20) Anno: AIR Man., Penal Code, S. 304, N. 1 ; S. 324, N. 1. CASES REFERRED : Paras (A) AIR 1952 SC 75 (V 39) : 1952 SCR 284 : 1952 Cri LJ 510 5 (B) AIR 1953 SC 404 (V 40) : 1953 SCA 835 : 1953 Cri LJ 1621 5 (C) AIR 1951 SC 318 (V 38) : 1951 SCR 682 : 52 Cri LJ 1361 5 (D) (S) AIR 1957 Andhra Pra 163 (V 44) : 1957 Cri LJ 813 5 (E) AIR 1934 PC 227 (2) (V 21) : 36 Cri LJ 786 6, 6A (F) AIR 1952 SC 52 (V 39) : 1952 Cri LJ 331 6, 7 (G) AIR 1953 SC 122 (V 40) : 1953 Cri LJ 662 6, 7 (H) AIR 1953 SC 459 (V 40) : 1953 Cri LJ 1925 6

(I) AIR 1953 SC 478 (V 40) : 1954 Cri LJ 102 6 (J) AIR 1954 SC 15 (V 41) : 1954 Cri LJ 230 6 (K) AIR 1954 SC 322 (V 41) : 1954 Cri LJ 910 6

(L) AIR 1954 SC 637 (V 41) : 1954 Cri LJ 1656 6 (M) (S) AIR 1955 SC 585 (V 42) : 1955 Cri LJ 1300 6 (N) AIR 1953 SC 76 (V 40) : 1953 Cri LJ 521 6A (O) (S) AIR 1957 SC 216 (V 44) : 1957 Cri LJ 481 6A (P) AIR 1957 Bom 10 (V 44) : 1957 Cri LJ 48 6A (Q) (S) AIR 1956 SC 217 (V 43) : 1956 Cri LJ 426 6A (R) AIR 1945 PC 151 (V 32) : 47 Cri LJ 1 6A (S) AIR 1957 All 53 (V 44) : 1957 Cri LJ 32 7 (T) (S) AIR 1955 SC 807 (V 42) : 1955 Cri LJ 1653 7 Addl. Asst. Advocate-General, for Appellant; B.L. Ramanathan, for Respondent. Judgement This is an appeal by the State of Mysore against the order dated 9-3-1956, passed by the Sessions Judge, Mysore Division, in Mandya Sessions Case No. 9 of 1956, acquitting the accused of an offence under S. 304, I. P. C.

2. The case for the prosecution is that on 29-11-54 when all the inmates of the house had gone out to the fields leaving the accused and his old father, the former is alleged to have beaten the latter with an axe and a stone. The result was that the old man lay unconscious and was taken to the hospital at Malavalli. The Doctor found that his condition was serious and that it needed X-Ray examination. He was therefore, sent to the Mandya Hospital the same day. But he died there at 6-15 p.m. on 2-12-1954. The respondent is a boy aged about 20 years. He was charged with the offence under S. 304, Part II but he pleaded not guilty. The learned Sessions Judge held that the prosecution has failed to bring home the guilt to the accused beyond all reasonable doubt and acquitted him by giving him the benefit of doubt. The State has filed this appeal under S. 417, Cr. P. C. against that order. 3.As abovesaid, there was no one inside the house barring the deceased and the accused when the offence is said to have taken place. The principal witness in the case is one Nanjegowda son of Chikkamadegowda, P.W. 12. He states that at about 8 Oclock in the morning while he was passing by the house of the deceased, he heard some groaning sound. Through curiosity he went to the front door and as it was closed, he pushed it. It was found that it was bolted from inside. But through a crevice in the door he could see that the deceased Nanjegowda had fallen and that the accused was standing there with an axe and hitting Nanjegowda again. He could, however, only see the waving of the hand of the accused with an axe. Thereupon he proceeded by the side of the house towards the hind door and as that door was open, he entered and found the accused standing by the side of his father who was lying. The accused had an axe in his hand which the witness snatched and asked him why he assaulted the old man. The accused told him that he somehow did it without giving any reason for the assault "(Expression in Kanaries Ed.)". He was immediately followed by Kempegowda P. W. 11 who questioned P. W. 12 as to what had happened. The latter replied that the accused beat his father with an axe. By that time, the accused was found sitting in the corridor about 5 or 6 feet away. A stone M. O. 1 and an axe M. O. 2 were found to be blood-stained and lying nearby. In the meantime, Nanjegowda P.W. 10, the brother of the accused, also arrived and some others also came in. They brought a car and removed the injured person to Malavalli Hospital. P. W. 13 is Patel Chikkegowda He states that P.W 11 came to his house and informed him that the accused beat his father. He went to the house and found the bleeding injuries on the person of the deceased. He wrote the report Ex. P-28 and carried the report himself after sending the accused with Thoti Uriya. P.W. 28 is said to have reached the Police Sub-Inspector at 4-20 p.m. as the latter had returned by that time after visiting another village.

4. So far as the motive is concerned, the prosecution case is that the accused who was the youngest of the three brothers was an idler. He was often in need of money and used to demand the same from his father; sometimes the father gave and sometimes he rebuked. The suggestion is that on the date of the offence, the father must have refused to give money and rebuked the accused, and enraged at that, the accused must have given some blows to his father.

5. The learned Advocate for the respondent raised a point of law. According to him, the provisions of S. 417, Cr. P. C, are discriminatory and they contravene the provisions of Art. 14 of the Constitution of India. He contends that whereas Cl. (3) of S. 417 requires that a private complainant wanting to file an appeal against an order of acquittal should take special leave from the High Court, the State is under no such obligation: since under Cl. (1) thereof it can directly present an appeal to the High Court against an order of acquittal through the Public Prosecutor. It is contended that this offends against the equality before the law guaranteed by the Constitution by Art. 14. According to him the State is a juridical person and as such it should be treated on the same level as any other citizen. Now that S. 417 gives different treatment to the two, it is hit by Art. 14 and hence that section should be held to be ultra vires of the Constitution and, therefore, illegal. He also contends that there is a further discrimination in that an ordinary citizen who has filed a complaint has to file his appeal within a limit of sixty days from the date of the order of acquittal, while under Cl. (1) the Public Prosecutor has a period of three months by virtue of Art. 157 of the Limitation Act. This is another discrimination contrary to the provisions of Art. 14. The provisions about discrimination as such are to be found in Art. 15, where it is provided that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. The right given by Art. 14 is one about equality before the law and equal protection of the laws. It cannot be said that a private complainant as an appellant under sub-s. 3 of S. 417, and the Government as an appellant under sub-s. 1, do not get equal opportunities of equal protection of the law. The appeals filed by both of them will meet with the same consideration at the hands of law Courts. It has been held by Mukherjea J. in the State of West Bengal v. Anvar Ali, 1952 SCR 284: (AIR 1952 SC 75) (A), that the term "equal protection of the laws" means the right to equal treatment in similar circumstances, both in the privileges conferred and in the liabilities imposed by the law. The learned Judge has also observed that the entire problem under the equal protection clause is one of classification or of drawing lines, that classifications are no doubt permitted but it has to be seen that a classification is reasonable, and that it is reasonable when it is not an arbitrary selection but rests on differences I pertaining to the subject inrespect of which classification is made. It has been held in Kedarnath v. The State of West Bengal, 1953 SCA 835: (AIR 1953 SC 404) (B), that Art. 14 does not insist that legislative classification should be scientifically perfect or logically complete. When a contention is raised against a particular law that it offends against equal protection, the question for determination by the Court is not whether it has resulted in inequality but whether there is some difference which bears a just and reasonable relation to the object of the legislation. It is generally acknowledged that classification may be based on the difference in the nature of the trade, calling or occupation which is sought to be regulated by the legislation. In the case of the State of Bombay v. F. N. Balsara, 1951 SCR 682 : (AIR 1951 SC 318) (C). it was held that the differentiation between the Civil Military personnel, between foreign visitors and Indian citizens etc., made by the law of prohibition in Bombay was justifiable. In view of these considerations, there is no doubt that the classification in favour of the State made in S. 417 is not unreasonable. In our opinion, it does not offend against Art. 14 of the Constitution. We are supported in this view by the judgment of the Andhra Pradesh High Court In re: B. Krishnayya, reported in (S) AIR 1957 Andhra Pra. 163 (D). A similar question was raised in that case, and Bheemashankaram J. held "that there was no contravention of Art. 14 as it did not preclude the State being treated by the Legislature on a footing different from an individual citizen and that the difference was based upon grounds of high policy."

6. The next point to be considered is the scope of an appeal to the High Court under S. 417 of the Cr. P. C. The principles which should guide the Court while dealing with an appeal against an acquittal have been summarised by Lord Russel of Killowen in the case of Sheo Swarup v. Emperor, reported in AIR 1934 PC 227 (2) (E). His Lordship observes : "No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the view of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." These same principles have been reiterated by the Supreme Court in several rulings reported in Surajpal Singh v. The State, AIR 1952 SC 52 (F), Wilayat Khan v The State of U. P., AIR 1953 SC 122 (G), Puran v. State of Punjab, AIR 1953 SC 459 (H), Narayan Ittiravi v. State of Trav.-Co. AIR 1953 SC 478 (I), Zwinglee Ariel v. State of Madhve Pradesh AIR 1954 SC 15 (J), Shiv Bahadur Singh v. State of V. P., AIR 1954 SC 322 (K), Madan Mohan Singh v. State of Uttar Pradesh, AIR 1954 SC 637 (L) and Bansidhar Mohanty v. State Of Orissa, (S) AIR 1955 SC 585 (M). 6A. In the case of Ajmeer Singh v The State of Punjab, AIR 1953 SC 76 (N), Justice Mahajan (as he then was) has observed : "After an order of acquittal the presumption of innocence in favour of the accused is further reinforced and that order can be reversed not on the ground that the accused had failed to explain the circumstances appearing against him but only for very substantial and compelling reasons." The same views have been reaffirmed in the recent judgment delivered by Justice S. K. Das in the case of Balbir Singh v. State Of Punjab, (S) AIR 1957 SC 216 (O), and by Justice Dixit in the case of State v. Babulal, AIR 1957 Bom 10 (P). The term "compelling reasons" is vague and indefinite to some extent. It is, however, explained by Justice Venkatarama Ayyar in the case of Aher Raja Khima v. State Of Saurashtra ., (S) AIR 1956 SC 217 (Q). "If these words import a limitation on the powers of a Court hearing an appeal under S. 417 not applicable to a Court hearing appeals against conviction, then it is merely the old doctrine that appeals against acquittal are in a less favoured position, dressed in a new garb, ana the reasons for rejecting it as unsound are as powerful as those which found favour with the Privy Council in AIR 1934 PC 227 (2) (E) and Nur Mohammad v. Emperor, AIR 1945 PC 151 (R). But it is probable that these words were intended to express, as were the similar words of Lord Russel in AIR 1934 PC 227 (2) (E), that the Court hearing an appeal under S. 417 should observe the rules which all appellate Courts should, before coming to a conclusion different from that of the trial Court. If so understood, the expression compelling reasons would be open to no comment." No doubt, these views appear in the minority judgment: nevertheless they do expound the real import of the words "compelling reasons".

7. On a careful consideration of the case law on the point, we come to the conclusion that in an appeal against an order of acquittal, it is open to the High Court to review the entire evi-dence and to come to its own conclusion. But in so doing, the High Court has to keep in view the well established rules above referred to laid down by the Privy Council and reiterated by the Supreme Court. It would not be correct to assume that in such appeals the appellate Court can only interfere if the judgment of the lower Court is perverse. A similar view has been taken by the Allahabad High Court in the case of State v. Murli, AIR 1957 All 53 (S), where it is observed: "It follows that no limitation is placed on the power of the High Court under Ss. 417, 418 and 423, Cr. P. C. to review at large the evidence upon which the trial Courts order of acquittal is founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed, provided that proper weight and consideration is given to these four matters." In the case of Atley v. The State Of Uttar Pradesh , (S) AIR 1955 SC 807 (T), the Supreme Court further observed : "It is also well settled that the Court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial Court continues even upto the appellate stage and that the appellate Court should attach due weight to the opinion of the trial Court which recorded the order of acquittal. If the appellate Court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. AIR 1952 SC 52 (P) and AIR 1953 SC 122 (G), Ref."

8. Bearing in mind the above principles as to the scope of the powers of an appellate Court in cases of appeal against an order of acquittal, we proceed to consider the evidence in this case. 9-10. We have already referred to the facts of this case, and in doing so, we have referred to some of the salient evidence. That shows that there is no direct evidence to the assault unless it be what P.W. 12 claims to have seen by peeping through the crevice in the front door. The learned Sessions Judge commenting upon the evidence in this case has remarked : "the prosecution appear to have manufactured an artificial, unnatural and stage managed story." It has to be considered whether these remarks are justified by the evidence in the case. The first comment is against the first Information Ext. P-28. Before considering this report, it should be necessary to say how it has come into being. (After reviewing evidence, the judgment proceeded:) We have no hesitation in accepting the above evidence as true. None of the witnesses has any reason to falsely implicate the accused nor can it be said that any of them was wrongfully induced by the brothers of the accused into giving a false story, as suggested by the accused in the course of his statement under S. 342, Criminal P. C. 11.We next come to consider the first information and the comments against it. When the incident was witnessed by the above witnesses, many more persons arrived at the spot and the front door was opened for them. In the meantime, one of the persons assembled, by name Kempegowda, is said to have gone to the Patel Chikkegowda P. W. 13 who was then near his wet land and to have informed him of the incident. P. W. 13 returned to the village and went to the house where the offence took place. He states that he found Nanjegowda lying with bleeding injuries on his person. He wrote out the report Ext. P-28 and sent it to Malavalli Police Station. In fact, he states that he carried it himself after arranging to send the accused with Thothi Uriya. It appears that some mistake has crept in respect of Kempegowda who is said to have given the information to the Patel. In the course of the latters deposition, the reference to Kempegowda has been made as P. W. 11. It is doubtful if this reference is correctly made. Since Kempegowda P. W. 11 does not state that he went to the Patel and gave the information, it is urged on behalf of the respondent that the above statement is not true. In Ext P-28 it is noted that the person who save information to the Patel was one Kempegowda, son of Nanjegowda. From this it is clear that the informant cannot be P. W 11. It appears that when one witness P. W. 13 spoke about the informant as Kempegowda the Court might possibly have wrongly noted the said Kempegowda as P. W. 11. That appears to be the only reasonable way to account for the mistake. This is further supported by the fact that in the charge-sheet at Sl. No. 31, is mentioned the name of Kempegowda, son of Nanjegowda, as the person who was to speak to the fact of having gone to the scene of offence and then reported the same to the Patel Chikkegowda. Much capital cannot be made out of this simple mistake which is clearly explainable as above.

12. The next comment against the first information report is that, although it is said to have been written soon after the assault i.e., at about 10 a. m., it did not reach the Police Sub-Inspector till 4.20 p. m. that day. The distance between the village Madahalli and Malavalli where the Police Station is situated is about 3 miles. From this delay, it is suggested that the first information report Ext. P-28 must itself have been a concocted one so as to suit the other evidence which also must have been stage-managed. It is difficult to accept such a conclusion (Their Lordships discussed the circumstances, and continued). Whatever be the circumstances for the delay, it cannot be inferred that the delay was due to the fact that any story was to be concocted and the evidence cooked up.

13. Comparing the First Information Report Ext. P-28 with the statement of P. W. 12 and that of P. W. 9, the learned Sessions Judge has observed that there have been many omissions and contradictions in Ext. P-28 which are later on tried to be supplemented by the evidence of the above witnesses. Before considering the various points urged by the learned Sessions Judge, it is necessary to note that Ext. P-28 was not a document written or dictated by P. W. 12. It has been written by the Patel P. W. 13, not on the information directly given to him by P. W. 12 but from the information given to him by one Kempegowda, son of Nanjegowda. How this witness came to know of the facts stated by him to the Patel is not clearly known because he has not been examined. However, Ext. P-28 itself mentions the information given by P. W. 12 to this Kempegowda which the latter reported to the Police. Hence it is not unlikely that in the course of transmission of the information from P. W. 12 to the informant Kempegowda, son of Nanjegowda, and from him to the Police Patel, and in the course of its being put into writing by the Patel. there might have crept in certain alterations owing to the differences in the powers of appreciation, retention, expression and of putting forth in writing. The omissions or alterations, if any, are explainable on this score. Apart from this, it should also be noted that at the time when possibly P. W. 12 asked Kempegowda to inform the Patel of the incident so that the latter may come to the spot and take steps for informing the Police, all that P. W. 12 must be concerned with was to indicate that death had occurred at a particular place at the hands of a particular person. It could not be his anxiety or idea to put forth each and every detail of the incident he had seen or heard. This accounts for the omissions. With these circumstances in view, we shall consider the differences in the two versions.

14. In his statement in Court, P. W. 12 stated that his attention was attracted by the groaning sound coming from the house of the deceased. On going to the door, he pushed it, found that it was bolted from inside; then he peeped through the crevice in the door and saw that Nanjegowda had fallen and that accused was standing with an axe and also that his hand was waving with the axe as though in the act of beating. He further states that there was a side door by which he could go up to the hind door and as that door was open, he went inside to the place where the deceased was lying injured. He also stated that on seeing the accused with a blood-stained axe in his hand he immediately snatched it from the hands of the accused. At the same time, he states that he questioned the accused to which the latter replied that he did something "(Expression in Kanaries Ed.)". All these are not to be found in Ext. P-28. The learned Sessions Judge considers that these were purposefully introduced in the course of the deposition of P. W. 12 "to put forward a make-believe theory". We cannot agree with this remark. They are clearly explainable on the considerations dealt with above. The learned Sessions Judge also considers it a material discrepancy, in that P. W. 9 states that he questioned the accused as to why he beat his father and that the latter replied, he somehow beat him "(Expression in Kanaries Ed.)", while P. W. 12 does not refer to this conversation in the course of his deposition. Apart from the fact that no such specific questions have been put to P. W. 9 or to P. W. 12, it is not unlikely that as soon as P. W. 12 snatched the axe from the hands of the accused, he engaged himself with giving some first aid to the injured person. It is not unlikely if he was not mindful of the above said conversation between P. W. 9 and the accused. The learned Sessions Judge further comments on the absence of this conversation in Ext. P-28. It is impossible to expect the same in that document. On these considerations, he further comes to the conclusion that: "When the so-called direct evidence is at variance with the first information report, a shadow of doubt must be said to have cast on the prosecution case." It is difficult to reach this conclusion by any stretch of imagination.

15. The learned Sessions Judge then considers certain discrepancies in the evidence of the Patel P. W. 13 and that of the Police Sub-Inspector P. W. 15 and of the affidavit of Thoti Uriya Ex. P. 26. P. W. 13 says that he carried the report himself after arranging to send the accused with Thoti Uriya. Ext. P-28, however, mentions that it was received by the Police Sub-Inspector at the Police Station at 4.20 p. m. through Thoti Uriya. Before the Court P. W. 13 first stated that he himself delivered Ext. P-28 to the Malavalli Police Sub-Inspector. To the Court, he states that at about 11 a. m. or 12 noon he went to the Police Station but that it was Thoti Uriya that went to the Police Station and delivered the report. Thoti Uriya states at Ext. P-26 that the Patel gave him the report and that he handed it over to the Duffedar. at the Police Station. The Duffe-dar P. W. 3 does not speak to the receipt of Ext. P. 28 at all. The Police Sub-Inspector, P. W. 15, states that Uriya presented Ext. P-28 to him at the Police Station at about 4-20 p.m. It is so noted on that document. No doubt, there are these discrepancies: they are of a minor nature and nothing hinges on them. Not much importance can be attached to the same. At any rate, they do not, in any sense, make the prosecution version improbable.

16. That the death is homicidal is clearly established by the medical evidence. No objection has been raised even in the trial Court on this ground. Hence we need not discuss that part of the evidence. The learned Sessions Judge has, however, commented upon the motive in this case as being very thin and too weak to substantiate such a grave offence as that of murdering his own father. He, at the same time, concedes that motive evidence is not so very essential for establishing the guilt. But he considers that where it exists, it must be in consonance with the evidence on record. He does not, however, show how in this particular case it is not to be found so. After all, motive is not a necessary ingredient of an offence. If evidence of motive is produced, it may support the prosecution in showing that the other substantial evidence on which an offence can be established is more probable. Hence the evidence of motive is one which helps the appreciation of evidence by showing whether the evidence could be more or less probable. There may be cases where the evidence is strong enough to sustain a conviction but where there may be little or no evidence in respect of motive or where the motive suggested may itself be very weak. In the present case, there is some evidence about motive as given by P. Ws. 8 and 10, brothers of the accused, and other witnesses. However, it is a slender one. But it is not unlikely that being enraged by the refusal to meet his demand, the accused might have given a blow or two to the old man. Immediately thereafter, it is also possible he might have felt that he did an act of indiscretion. But that was possibly too late. There is no reason why the other evidence for the prosecution should be considered as improbable by the mere fact that this motive is not such as to be a strong urge for a desperate act. We see no infirmity in this part of the evidence.

17. We have already mentioned in detail the evidence of the witnesses in this case. P, Ws. 9, 11 and 12 immediately came to the spot and have seen not only the father lying injured but also the son standing by his side with a bloodstained axe in his hand. That the stains on it were of human blood has been established by the reports of the Chemical Examiner and of the Serologist, Exts. P-18 and P-23 respectively. There was no third person then in the house all having gone away to the fields. The front door was closed. Under these circumstances, the only inference is that the accused must have been the person responsible for the injuries. Even the replies given by the accused to P. W. 12 and to P. W. 9 practically concede the act. As abovesaid, there is no reason why the above three witnesses should depose falsely against the accused. Even taking into consideration the fact that the innocence of the accused is confirmed by the fact of his acquittal, we still find that there is no doubt about his guilt being established. Keeping in view all the four points necessary for consideration in an appeal against acquittal, we feel satisfied that the guilt is brought home to the accused by the evidence on record.

18. We have, however, to say something about the section under which the accused could be convicted. There is nothing to establish that the accused intended to kill his father or that he intended to cause such bodily injury as was likely to cause his death. If he hit his own father, he did so in a fit of rage, possibly on account of the fathers denial to pay him money. In the trial Court, he was charged only with an offence under S. 304, I. P. C. The learned Additional Assistant Advocate-General who appears for the State before us frankly concedes that no offence under S. 304, I. P. C. also can be said to have been established against the accused. According to him, the offence could only fall under S. 324, I. P. C. We agree that the offence established is one that falls under this section.

19. So far as the sentence is concerned, looking to the nature of the injuries and to the fact that the accused is a raw youth, we are of opinion that a lenient sentence will serve the ends of justice.

20. In the result, the appeal is allowed; the order of acquittal is set aside. The accused is convicted under S. 324, I. P. C. and sentenced toundergo Rigorous Imprisonment for six months. Appeal allowed. AIR 1958 MYSORE 53 (VOL. 45, C. 15) "V. K. Srinivasa Setty v. M/s. P. L. and G. I. Co." MYSORE HIGH COURT Coram : 2 SOMNATH IYER AND SADASIVAYYA, JJ. ( Division Bench )

V. K. Srinivasa Setty, Plaintiff-Appellant v. Messrs. Premier Life and General Insurance Co., Ltd., Madras-1, Defendants-Respondents. Regular Appeal No. 225 of 1951-52, D/- 9 -10 -1957, against decree of Principal, Dist. J., Bangalore in O. S. No. 6 of 1950-51. (A) Insurance Act (4 of 1938), S.45 - INSURANCE - CONTRACT - Misstatement. Contract Act (9 of 1872), S.19. Where there is evidence that during the relevant period there was a steady rise in the price of motor cars, a person who insures a car would be justified and particularly if he had made an advantageous bargain when he himself made the purchase, to give as his estimated value of the car a sum in excess of what he himself paid for its purchase. If he did that, it cannot be said that he was either making a false or incorrect statement. (Para 25) Anno: AIR Man., Insurance Act, S. 45, N. 1. Contract Act, S. 19, N. 2. (B) Insurance Act (4 of 1938), S.45 - INSURANCE - Insurance agent filling up proposal form - Effect. A person who affixes his signature to a proposal which contains a statement which is not true, cannot ordinarily escape from the consequence arising therefrom by pleading that he chose to sign the proposal containing such statement without either reading or understanding it. That is because, in filling up the proposal form, the agent normally, ceases to act as agent of the insurer but becomes the agent of the insured and no agent can be assumed to have authority from the insurer to write the answers in the proposal form. If an agent nevertheless does that, he becomes merely the amanuensis of the insured, and his knowledge of the untruth or inaccuracy of any statement contained in the form of proposal does not become the knowledge of the insurer. Further, apart from any question of imputed knowledge, the insured by signing that proposal adopts those answers and makes them his own and that would clearly be so, whether the insured signed the proposal without reading or understanding it, it being irrelevant to consider how the inaccuracy arose if he has contracted, that his written answers shall be accurate : Case law rel. on. (Para 30) Anno: AIR Man., Insurance Act, S. 45, N. 1. (C) Insurance Act (4 of 1938), S.45 - INSURANCE - CONTRACT - Material inaccuracy in proposal. Contract Act (9 of 1872), S.19. Where the parties have agreed that the truth of the statements in the proposal shall be foundational to the enforceability of the contract of insurance, the argument that what avoids the contract is only a material inaccuracy which would influence the insurer in determining whether or not to accept the risk or in fixing the amount of the premium would be unavailable. (Para 35) Anno: AIR Man., Insurance Act, S. 45, N. 1. Contract Act, 8. 19, N. 2. (D) Insurance Act (4 of 1938), S.45 - INSURANCE - CONTRACT - Misstatement. Contract Act (9 of 1872), S.19. If the description of a motor vehicle in the proposal, the statements in which are incorporated in and made the basis of a contract of insurance are pure words of description, then such description being neither a definition of the risk nor a warranty will not, even if inaccurate, entitle the insurer to avoid his liability under the policy. If such description is however in the nature of a definition of the risk, then any untrue statement in such description will not vitiate the policy, the only consequence of such mis description being that the risk in the case of the vehicle is not covered when the vehicle does not correspond to that description and is covered again when it corresponds to it. If the description however amounts to a warranty, a breach of that warranty disentitles the insured to recover. (Para 41) Anno: AIR Man., Insurance Act, S. 45, N. 1. Contract Act, S. 19, N. 2. CASES REFERRED : Paras (A) AIR 1954 Mad 636 (V 41) : ILR (1955) Mad 285 29, 30 (B) AIR 1944 Mad 559 (V 31) : ILR (1945) Mad 150 29 (C) (1929) 1929-2 KB 356 : 98 LJ KB 751 30 (D) AIR 1931 Bom 146 (V 18) : ILR 55 Bom 124 30 (E) AIR 1932 Bom 582 (V 19) : 140 Ind Cas 575 30 (F) (1933) 1933 AC 240 : 102 LJ KB 164 35, 37, 39 (G) (02) I L R 25 Mad 183 : 11 Mad LJ 379 35, 40 (H) (1922) 1922-2 AC 413 : 91 LJ PC 210 35, 36, 37, 38, 39, 40

(I) (1932) 1932-2 KB 70 : 101 LJ KB 538 37, 38, 39 (J) (1920) 1920-3 KB 669 : 90 LJ KB 215 37, 38, 40 (K) (1927) 137 LT 243 : 96 LJ K B 590 37, 38, 43

(L) AIR 1937 All 535 (V 24) : 170 Ind Cas 983 43 E. S. Venkataramiah, for Appellant ; N. Bheemacharya, for Respondents. Judgement SOMNATH IYER, J. :- The plaintiff was the owner of a Studebaker Champion Motor Car. On June 24 1949 he signed a proposal (Ex. I) for insuring this motor car with the defendant, (hereinafter called the company) against loss or damage to it and third party liability arising from its use. On that proposal, a policy (Ex. II) dated July 26, 1949 was issued by the Company insuring the car for one year, so far as material to this case, against any damage occasioned by accidental external means. The policy contained a recital that the proposal and declaration as stated in the schedule to that policy shall be the basis of the contract between the parties and shall be deemed to be incorporated in it. The policy was made subject to the conditions contained in it or endorsed thereon. One of those conditions provided that the due observance and fulfilment of such conditions and the endorsements and the truth of the statements and answers in the proposal shall be conditions precedent to the liability of the company under the policy.

2. On the night of November 15, 1949, while the car was being driven by the plaintiffs driver Pushparaj P. W. 5, when the plaintiff was returning from Kolar to Bangalore, it met with an accident at a place eighteen miles from Bangalore. This accident, according to the other evidence which the plaintiff adduced in the case, was the result of an attempt made by his driver to avoid two cyclists coming from the opposite direction on the wrong side of the road without lights. The car then, according to the plaintiffs story dashed against a stone culvert and capsized. The car, according to the plaintiff, was very seriously damaged although the plaintiff and his driver escaped with minor injuries.

3. It is undisputed that the plaintiff Immediately reported this accident to Sreeramulu P. W. 1, who was the then Chief Agent of the company and its Branch Manager when he was examined by the plaintiff as his witness. The car was then removed with the aid of a crane to the premises of a firm known as Shanti Kiran Motors, although the company does not admit that it was so removed by P. W. 1 on its behalf. The plaintiffs case is that the Company neglected either to effect the necessary repairs to the damaged car or to substitute a new car in its place as it was, according to him, bound to do. He therefore, brought this suit for the recovery from the company of a sum of Rs. 15,660/- which is the aggregate of the sum of Rs. 13,500/- the value of the car insured, charges claimable for removing the car from the place of accident to the premises of Shanti Kiran Motors and compensation for the period during which the car was unavailable to him. The learned District Judge dismissed the plaintiffs suit and the plaintiff has appealed.

4. In the Court below the company denied the plaintiffs story that the car was damaged as a result of the accident mentioned by the plaintiff. The company also contended that it was entitled to avoid its liability under the contract of Insurance on account of two false statements made by the plaintiff in his proposal for the insurance. The company contended that the statement made by the plaintiff in that proposal that his car was a new car, was admittedly incorrect and that the plaintiff when he gave his estimate of the value of the car as Rs. 13,500/-, although he had paid a smaller sum of money for its purchase, had made another incorrect statement. The company further contended that it was the plaintiffs omission to remove the car, as he was bound to do, to the place selected by the company for getting the necessary repairs effected, that prevented the company from performing its part of the contract and that the plaintiff was therefore not entitled to recover.

5. It is not disputed that the car was found in a badly damaged condition at the place mentioned by the plaintiff on November 16, 1949 when it was removed to the premises of Shanti Kiran Motors. The learned District Judge however, did not believe the plaintiffs story that the car was damaged in that way as a result of an accident as described by the plaintiff. It was argued by Mr. Venkataramiah learned Advocate for the plaintiff that this finding of the learned District Judge was unjustified.

6. The evidence in the case relating to this accident is that given by the plaintiff who examined himself as P. w. 3 and his driver Pushparaj P. W. 5 who, according to the plaintiff, were the only two persons travelling in that car on the night of the accident. P. W. 5 has given evidence that he was driving the car on that night when the plaintiff was travelling from Kolar to Bangalore, and that when he found two cyclists coming from the opposite direction riding their bicycles without any lights on the wrong side of the road, he made an attempt to avoid them and in doing so, dashed against a culvert. The car then capsized and was badly damaged. He has given evidence that he was a licensed driver and produced his licence (Ex. MM). He further stated that this accident was immediately reported to the police authorities who recorded his statement. According to him, he sustained an injury on his eye and on his knee for which he treated himself.

7. The plaintiff who examined himself as P. W. 3 also gave similar evidence and added that the report of the accident was made to the police authorities at a place called Hoskote which was proximate to the scene of the accident. P. W. 4, Venkatasami who was the writer at the Police Station of Hoskote has given evidence that an accident report was made by one Sreenivasa Setty which is the name by which the plaintiff is known on November 16, 1949 at the police station house at Hoskote and that Ex. LL-1 is the entry relating to that accident in the Station House Diary maintained in that Police Station. He also produced Ex. LL-2, the report relating to the enquiry about that accident.

8. Mr. Bheemacharya learned Advocate for the company has strenuously contended that this evidence was rightly found to be insufficient by the District Judge to reach the conclusion that the car met with an accident in the way stated by the plaintiff. He has urged that the learned District Judge was justified in refusing to believe the plaintiffs story on account of the omission on the part of the plaintiff to produce more evidence in support of his story which according to Mr. Bheemacharya, was available in this case. He has argued that the two cyclists who were responsible for the accident should have been examined by the plaintiff. He has also urged that the persons who admittedly were posted near the car to keep watch over it until it was removed to Bangalore and also the large number of other persons who collected near the scene of accident sometime after it happened should also have been examined. He has further contended that since P. W. 4 the Police Station Writer did not write the entries in the Station House Diary, those entries had not been proved as required by law.

9. It appears to me that these criticisms made by Mr. Bheemacharya suffer among others from the infirmity that the company at no stage after the accident and before it produced its defence in the suit suggested in any part of the voluminous correspondence which passed between it and the plaintiff that the story of the plaintiff about the accident was not true. This correspondence, to which I shall allude in another context, proceeded on the assumption that the damage caused to the car was the result of the accident described by the plaintiff. Further it appears to me that it is unreasonable to suggest that the evidence of the plaintiff and his driver who were the only persons in the car when it met with the accident, should be discarded on the ground that no other witness has been examined to corroborate their evidence. No reasons have been suggested by Mr. Bheemacharya nor do I find anything in the cross-examination of these two witnesses as to why their evidence should be disbelieved. There is nothing in the evidence to suggest that the plaintiff and his driver were able to identify the cyclists who were about to collide against the plaintiffs car. in which event alone an inference adverse to the plaintiffs case could be drawn by reason of his omission to examine them. Likewise, the omission by the plaintiff to examine the watchmen or any of those who assembled near the scene of the accident sometime after it happened cannot be regarded as of any significance when it is remembered that it is not disputed by the company that the car was found in a badly damaged condition at the place where it is stated to have met with the accident, before its removal to Bangalore. Similarly, the omission to examine the Sub-Inspector of the Hoskote Police Station who wrote Exs. LL-1 and LL-2 in the Station House Diary is not one on which the Company could ask the Court to disbelieve the plaintiffs story for the reason that it is clear from the evidence of P W. 4 that immediately after the accident a report about it was made by the plaintiff and his driver, although the statements made by the plaintiff and his driver during the enquiry made by the Sub-Inspector may not be said to have been proved as required by law.

10. I do not think that any serious argument can be constructed out of the fact that the plaintiff and his driver did not get themselves treated for the injuries which according to them, they sustained during the accident. I do not see any reason for disbelieving their story that those injuries were so trivial that they were able to treat themselves for it.

11. Mr. Bheemacharya although at one stage he urged that the entries in the Station House Diary (Ex. LL-2) had not been properly proved also urged that the evidence of the plaintiffs driver P. W. 5 as to the cause of the accident was at variance with what was recorded in the Station House Diary (Ex. LL-2). Whereas in Ex. LL-2 it was recorded that the Daffedar who visited the spot was informed that the car went out of control and went into halla and so got damaged, the evidence of P. W. 5 was that it dashed against a culvert. I do not consider Ex. LL-2 as affording any basis for such an argument for the reason that Ex. LL-2 recorded only what the Daffedar heard from someone, about whose identity nothing is known as to how the accident happened.

12. It is important to notice in this context that on November 16, 1949, the day next to the date of the accident, plaintiff wrote a letter (Ex. III) to P. W. 1 the then Chief Agent of the Company in which he mentioned that the car dashed against a small bridge when his driver attempted to avoid two cyclists who were coming in the opposite direction and was damaged as a result thereof. P. W. 1 who immediately visited the place of the accident, sent a report about it (Ex. S) to the company that very day. He made a similar report (Ex. U) that very day to D. W. 4, the General Manager of the company. While these four letters provide, in my opinion, abundant corroboration of the evidence of the plaintiff and his driver, it appears to me very difficult for anyone to reasonably suggest that the serious damage caused to the plaintiffs car was attributable to a cause other than that stated by the plaintiff or that the accident had been, as suggested by Mr. Bheemacharya at one stage during his argument, staged by the plaintiff a theory never put to the plaintiff or his driver when they were in the box with the fraudulent intention of securing a new car in place of his old. It appears to me therefore, that the finding of the District Judge that the plaintiff had not proved the accident as pleaded by him was not justified.

13. The next contention urged on behalf of the company is that in this case there was no breach on the part of the company of the performance of any of its obligations under the contract of insurance. Mr. Bheemacharya has urged that it was the plaintiff that prevented the company from performing those obligations. His argument is that it was the duty of the plaintiff, under the terms and conditions of the policy and as provided by S. 1 of it, to remove the damaged car to the place selected by the company for the purpose of getting it repaired and that the plaintiff had failed to so remove it. It was argued by Mr. Bheemacharya that it was as provided by S. 3 of the policy of insurance, optional for the company to either replace the car or to repair it. The company, he argued, was always ready and willing to get the necessary repairs effected by a firm known as Addison and Co. Ltd., to whose premises the plaintiff had been more than once requested to remove the damaged car, which it is urged, he failed to do.

14. The finding of the learned District Judge on this branch of the companys case was against it, but Mr. Bheemacharya has canvassed before us its correctness. A discussion of the evidence on this part of the companys case requires a scrutiny into the letters that passed between the plaintiff, the company and the companys agent P. W. 1. 15.There is undisputed evidence that on November 16, 1949, the damaged car was, as I have mentioned above, removed from the place of the accident to the premises of Shanti Kiran Motors. Mr. Bheemarcharya has strenuously urged before us that it is the plaintiff who so removed it and that he failed to remove it further to Addison and Co. Ltd., although repeatedly required by the company so to do. It was urged on the other hand for the plaintiff that it was P. W. 1 the companys represenative that took the car to Shanti Kiran Motors and that he did so in his capacity as the Chief Agent of the Company. To my mind, it is clear from Exs. S and U, the two letters addressed by P. W. 1 to the Company and to its General Manager respectively that P. W. 1 who removed the car to Shanti Kiran Motors did so in the discharge of his duties as the Chief Agent of the Company. In Ex. S dated November 16, 1949 addressed to the Company P. W. 1 has stated that after getting the information that the car was seriously damaged, he went to the spot to inspect the car and having found the car in a condition in which it could not be removed, he returned to Bangalore, and arranged it to be brought and left with Shanti Kiran Motors who were the then agents for the Studebaker cars. He also stated in that letter that Shanti Kiran Motors would be giving an estimate of the damage and the required repairs on the next day. In that letter P. W. 1 also requested the Company to send one of their representatives to do the needful, as according to him, the car could not be repaired and needed replacement by a new car. In Ex. U the letter addressed to D. W. 4 he has stated that he had made arrangements with Messrs. Simpson and Co., to take the damaged car to Shanti Kiran Motors. In Ex. A dated November 16, 1949, a letter written by P. W. 1 to the plaintiff, he has stated as follows: "x x x x x As desired by you, we have made arrangements with M/s. Simpson and Co., for removal of the damaged car to the workshop of Shanti Kiran Motors. We have this day intimated of all these facts in detail, both to our head office as well as to our General Manager who is at present at Mysore and are awaiting necessary instructions from them. x x x This letter purports to have been written by P. W. 1 in his capacity as the Chief Agent of the Company. It is argued on behalf of the Company that P. W. 1s removal of the car to Shanti Kiran Motors was, as stated in Ex. A, done at the request of the plaintiff and that the car was, after its removal in that way to Shanti Kiran Motors, still in the custody and possession of the plaintiff. It was also argued that even otherwise, P. W. 1 had not the authority of the company to remove it from the place of accident to Shanti Kiran Motors as he did. 16.In support of the argument that it was the plaintiff who removed the car to Shanti Kiran Motors, our attention was drawn to two letters addressed by the plaintiff to the Company Exts XIX and V. In Ex. XIX which the plaintiff wrote on December 6, 1949 to the Company, he has stated that with the help of P. W. 1 he had the car removed through Simpson and Co., to Shanti Kiran Motors. In Ex. V, which he wrote to the Company about a week later he stated that the car was removed from the place of accident in the presence of P. W. 1 to Shanti Kiran Motors and that although he had removed the car to that workshop, it was strange that he should again be asked to remove it to another place. These two letters do not in my opinion, support the contention of the company. All that they state is that for the removal of the car, plaintiff and P. W. 1 both collaborated, but they do not support the contention of the company that P. W. 1 did not either arrange for its removal or that he did so unauthorisedly. On the contrary, the evidence of D. W. 4 the General Manager of the Company and the other documentary evidence in the case fully negative that contention.

17. D. W. 4 Basavarajiah, the General Manager of the Company has given evidence that after he received the report from the Chief Agent P. W. 1 about this accident he and the plaintiff had a talk about it in Madras. What happened during that conversation is best described in his own words. "A week after the accident, I met the plaintiff in Madras Hotel where the plaintiff wanted 8000 rupees in full settlement of his claim. By that time I had seen the vehicle. I have not referred to this offer of plaintiff to accept Rs. 8000 in any of my letters. Our Chief Agent S. V. Ram was present when the plaintiff offered to accept Rs. 8000. On the clay on which I and plaintiff went to Shanti Kiran and Company that he demanded a new car. Ex. L is our letter to Shanti Kiran and Co. in it we have under-taken to pay garage charges. I offered first 7000 to plaintiff and at the instance of S. V. Ram I raised it to Rs. 7,500/-". Neither D. W. 4 nor anyone on behalf of the company at any time repudiated the action of P. W. 1 removing the car to Shanti Kiran Motors. On the contrary, it is P. W. 1 who corresponded with the company and D. W. 4, in regard to the manner in which the plaintiffs claims against the company should be settled. In Ex. Y a letter addressed by P. W. 1 to D. W. 4 on November 23, 1949, he suggested that the company may keep the damaged car and buy a new car after making some further necessary adjustments. In Ex. W, a reply sent by D. W. 4 to that letter on November 24, 1949, D. W. 4 refused to consider that proposal but offered to make a payment of Rs. 7000/- to the plaintiff so that he might utilise that amount for the purchase of a new car. In Ex. BB, a letter written by P. W. 1 to the Company on November 30, 1949, referring to the controversy between the General Manager and the Plaintiff in regard to the amount payable to the plaintiff as compensation in respect of the accident he said this:- "Since we have left the damaged car at the workshop of M/s Shantikiran Motors for the last 15 days and more and have not instructed them to do anything in the matter, and they are sending word to us either to remove the same from there or arrange for its early repairs or any such thing. Personally the undersigned feels that at least we should pay them a compensation of Rs. 8,500/- if at all we want to settle it amicably................." To this the company sent a reply Ex. AA bearing the date December 2, 1949 to the effect that they had instructed D. W. 4 their General Manager to contact P.W. 1 and have a personal discussion for the purpose of hastening a settlement, it is of the greatest significance that neither D. W. 1 nor the company took exception in any of their above letters to the removal of the car by P. W. 1 to Shanti Kiran Motors.

18. This is not all that has to be said about this matter. The further correspondence that passed between the Company, the plaintiff and Shanti Kiran Motors, reveals, what in my opinion is utterly irreconcilable with the stand now taken by the company. It is seen from this correspondence that in the early part of December 1949 by his letter (Ex. XIV), the plaintiff asked Shanti Kiran Motors to furnish an estimate of the repairs required for the damaged car to the company. On the same date, he wrote another letter (Ex. XIX) to the company asking them to secure such an estimate from that firm. On the next day, i.e., December 7, 1949 the company wrote to P. W. 1, the letter Ex. CC. asking him to ascertain from Shanti Kiran Motors certain particulars about the hire payable to them for having garaged the vehicle with them. The plaintiff again wrote on December 14, 1949 to the company (EX. V) in which he urged on the company to have the car removed to any place where it could satisfactorily be repaired and to have it repaired without any further delay. The companys reply to this letter (Ex.VI) of December 17, 1949, is a very important piece of evidence in this case which in my opinion, fully establishes the unsustainability of the complaint made by the company against the plaintiff in this suit. That letter reads :- "We are in receipt of your letter dated 14th instant giving your views regarding the repairs by M/s. Shanti Kiran Automobiles and Engineers. We note that you want the car to be satisfactorily repaired and delivered to you. We have this, day instructed our Chief Agents M/S. Jai Hind Co., to send their representative and ascertain what the garage charges claimed by M/S. Shanti Kiran Automobiles are and on receipt of the information, we shall make arrangements to take delivery of the car and get it repaired as early as practicable. When things are being expedited by us in all possible ways, we do not find any justification in your writing threatening letters about your inconvenience and expenses and hope that you will co-operate with us to see to the satisfactory disposal of this matter without unnecessary correspondence on either sides." The company, quite consistently with what they said in Ex. VI, wrote the letter Ex. G. to Shanti Kiran Motors on January 5, 1950 asking them to send an estimate of the cost of repairs required for the damaged car. The plaintiff who was getting impatient in the meanwhile, caused a lawyers letter (Ex. XXIV) addressed to the company on January 24, 1950 demanding performance of their obligations under the contract to which the company sent a reply Ex. (XXIII) on January 28, 1950 to the plaintiff. In that letter, the plaintiff was told by the company that the delay in the settlement of the plaintiffs claim was due to causes beyond its control and that actually there had been a delay in its getting an estimate of the cost of repairs for the damaged motor car from Shanti Kiran Motors. The company further suggested to the plaintiff that he might assist them by advising Shanti Kiran Motors to expedite the despatch of the estimate.

19. Shanti Kiran Motors appear to have however, demanded in their letter Ex. D. dated February 7, 1950 for the payment of a sum of Rs. 150/- towards the cost of the preparation of the estimate which the company it appears was unwilling to pay. The company accordingly took the strange step of advising Shanti Kiran Motors in its letter dated. February 21, 1950, not to send any such estimate.

20. It was the payment of this sum of Rs. 150/- which Shanti Kiran Motors demanded that appears to have brought about a change in the attitude of the Company which until that date had been willing to either pay the garage hire to Shanti Kiran Motors and take the car to Addison and Co. Ltd., or to get the car repaired by Shanti Kiran Motors after getting their estimate for that purpose. The company having changed its mind in that way, asked the plaintiff in its letter (Ex. Q) dated February 21, 1950 to make arrangements to take the car from Shanti Kiran Motors and send it to Addisons, which the company itself had undertaken to do in its letter Ex. VI referred to above. Not unnaturally the plaintiff pointed out in his reply Ex. XXVII dated 28, 1950 that that was a matter which had to be attended to by the Company and not by him. Thereafter, Shanti Kiran Motors wrote to the Company (Ex. K) on March 1, 1950 asking for the payment of the amount due to them and requesting the company to remove the car after the payment of the amount due to them. Ex. L dated March 6, 1950 is the companys reply to it and this again is another document which strikes at the root of the defendants case. In that letter the company states this "Re: Vehicle No. MY-1658-Z belonging to Mr V. K. Srinivasa Setty, Bangalore Policy No. 19957 We shall thank you to kindly deliver the abovesaid vehicle to M/s Addison and Co., Bangalore, on our behalf at an early date and send us your Bill of towing and garage charges when we shall be glad to do the needful. Please give your immediate attention to this matter and oblige." In response to this request made by the company, Shanti Kiran Motors wrote to the company (Ex. MO on March 9, 1950, claiming a sum of Rs. 590/- towards the garage and towing charges and requesting the company to authorise Addison and Co., to take delivery of the car against the payment of that amount.

21. The claim made by Shanti Kiran Motors for the payment of this amount appears to have brought about a further change in the attitude of the company. It is remarkable that on the very day on which Shanti Kiran Motors wrote Ex. M. claiming the amount due towards garage rent and towing charges, the company wrote to the plaintiff in its letter No. XXVIII, suggesting for the first time, contrary to what they had agreed to do in Exts. VI and M, that it was the plaintiff that had on his own responsibility handed over the car to Shanti Kiran Motors and that it was therefore for the plaintiff to take delivery of the car from them and hand it over to Addison and Co. Ltd. It is obvious that the attempt of the company when it wrote this letter was to evade its liability for the payment of the amount due to Shanti Kiran Motors which it had already undertaken to pay. The plaintiff then caused another lawyers letter (Ex. JJ) to be addressed to the company on March 16, 1950 in which he repudiated the stand taken by the company as aforesaid. The company having further neglected to do anything in this matter, the plaintiff invoked in the letter Ex. KK, the arbitration clause contained in the contract of Insurance. But the companys Advocate in Ex. HH written by him on April 24, 1950, very strangely repudiated that there was any dispute between the company and the plaintiff in respect of which the arbitration clause could be invoked. It was thereupon that the plaintiff filed this suit.

22. It is clear from the above documentary evidence that although the Company had in Ex. VI and Ex. I, consented and undertaken to take delivery of the damaged car from Shanti Kiran Motors after payment to them of the amount due towards garage rent and other charges for the purpose of getting it repaired by Addison and Co. Ltd., it suddenly resiled from that position and repudiated its obligation to do so after Shanti Kiran Motors sent their claim for a sum of Rs. 590/- towards such charges in its letter Ex. M. The position therefore was that when the company wrote Ex. L. to Shanti Kiran Motors and also wrote Ex. VIII on March 9, 1950 to Addison and Co., instructing them to take the car from Shanti Kiran Motors and undertaking to pay the expenses of such removal, the company was the custodian or had assumed the custody of the plaintiffs car for the purpose of implementing its obligations under the contract of insurance. Its failure to take any action to get the car repaired as it was bound to do, was clearly attributable to its unwillingness to incur its indisputable liability for the garage rent and other charges claimed by Shanti Kiran Motors. That being so, it is, I think, extremely difficult for the company to sustain its stand that the plaintiff was in any way responsible for its failure to get the necessary repairs effected to the damaged car. The finding of the learned District Judge on this issue which is against the defendant, is, in my opinion, unassailable and there is nothing in the evidence of D. W. 3 Jayarama Reddy on which Mr. Bheemacharya depended, justifying a contrary view. D. W. 3, a Salesman in Shanti Kiran Motors gave no eviedence which was of any assistance to the defendant but admitted on the other hand, that after his firm wrote Ex. K to the company requiring it to take the car after payment of the amount due by it, the company made no arrangement to take delivery of the car in spite of a reminder (Ex. M) sent to it to which the company sent no reply.

23. The only other contention urged by Mr. Bheemacharya is that the company was entitled to avoid its liability under the policy by reason of two mis-statements made by the plaintiff in his proposal for the insurance of his car. As I have already mentioned, the first incorrect statement according to the company was that the plaintiff had described his car as a new car, whereas he was actually its second owner. The estimated value of the car which the plaintiff mentioned in that proposal as Rs. 13,500/-was, it is urged, another incorrect statement. It was argued that the plaintiff had purchased the car for a smaller sum and that therefore the higher estimate given by him was a misstatement. To test the validity of this contention urged on behalf of the company, it would be necessary to refer to the relevant particulars of the proposal (Ex. I) and the policy issued by the Company Ex. II. Ex. I the proposal is a printed form in which the particulars were entered, according to the evidence of P. W. 1, the then Chief Agent of the company, by him although the plaintiff has affixed his signature to it in English at the end of it. In that form the name, address and occupation of the plaintiff are first set out. Then follows the description of the car in a tabular form in which the registered letters and numbers of the car, the make of the car its horsepower, type of body, year of manufacture, seating capacity, estimate of the cars value, its cost price to the present owner and the information whether the car is a new or second hand car at the time of delivery are all entered in their sequence. The entry made under the heading relating to the estimate of the value of the car and that made under the further heading whether the car was a new or second-hand car at the time of delivery were, according to the contention of the company, untrue statements vitiating the policy and entitling it to repudiate it. As I have mentioned above, under the former heading the estimate is given as Rs. 13,500/- and under the latter, the word new is written.

24. I may mention here, although I shall advert to it in another context, that the words whether new or second hand at time of delivery constitute the question in the eleventh column of the tabular statement under which P. W. 1 wrote the word new. I doubt whether the question put to the plaintiff in that way without the proponent being clearly asked to state whether the car was new or second hand when it was delivered to him can be regarded as an unambiguous question.

25. There is no evidence in this case that the plaintiff had purchased his car for a price less than Rs. 12,700/-. Even if there had been such evidence, I see no reason why and particularly in a case like this where there is evidence that during the relevant period there was a steady rise in the price of motor cars, a person who insures a car would not be justified and particularly if he had made an advantageous bargain when he himself made the purchase, to give as his estimated value of the car a sum in excess of what he himself paid for its purchase. If he did that, it is difficult to understand how it could be said that he was either making a false or incorrect statement. It appears to me therefore that the contention that the plaintiff made any untrue statement in that way has to fail, particularly when it is seen that in the proposal form (Ex. I) the plaintiff has not concealed the fact that he had purchased it for Rs. 12,700/-. The learned District Judge appears to have fallen into a small error when he was considering the contention of the company in this regard. He appears to have thought that the companys contention was that when the plaintiff mentioned in his proposal that he had purchased the car for a sum of Rs. 12,700/- he was making a misrepresentation. It is not denied by Mr. Bheemacharya that that was no part of the defence of the company.

26. The question then is whether the statement in the proposal that the car was a new although it was not so, entitles the company to repudiate its liability under the policy and avoid it on that ground. As I have mentioned above, this information that the car was new is given by the plaintiff in his proposal under the heading "description of motor car". Under that description there are a number of questions against which the plaintiff has set out his answers. In that part of the proposal the plaintiff is asked to state many particulars about the car, its use, its location and ownership together with particulars of accidents and loss during a period of three years antecedent to the date of proposal. Towards the end of the proposal, the plaintiff has subscribed to a statement agreeing that the proposal and declaration made by him shall be the basis of and be considered as incorporated in the policy to be issued by the Company.

27. The policy issued by the company persuant to this proposal is divided into three sections. The first section sets out the indemnity agreed to be provided by the company to the insured against loss or damage to the car. The second section deals with the liability to third parties and it is the third section that enumerates the general exceptions and conditions of the policy. It is stated again in the preamble of this policy that the proposal of the insured and the declaration as stated in the Schedule shall be the basis of the contract and deemed to be incorporated in the policy. The schedule of course, refers to the proposal (Ex. I). To this policy again, is another schedule attached, which contains many other matters particulars of the insured, the period of insurance and the motor car which is the subject matter of insurance.

28. Mr. Bheemacharya, in support of this branch of the argument has relied strongly on condition 8 of S. 3 of the policy which reads : "The due observance and fulfilment of the terms, conditions and endorsements of this policy is so far as they relate to anything to be done or complied with by the insured and the truth of the statement and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy." It is argued by him that the truth of the statements and answers in the proposal (Ex. I) are conditions precedent to the validity of the policy (Ex. H) and to the liability of the company to make any payment under it. His contention is that the statement in the proposal that the subject-matter of the insurance was a new car was admittedly not a true statement. That being so it is argued, that the company is under no liability to make any payment under the policy.

29. This contention is met on behalf of the plaintiff by pointing out that the impugned statement in the proposal was not untrue or made by the plaintiff, but by P. W. 1 the companys then Chief Agent. It is submitted that P. W. 1 was informed by the plaintiff that the car was his new acquisition and not that it was a new car. P. W. 1, who, when he gave evidence, was still in the employment of the company and had been promoted to a higher position as Branch Manager, has fully supported that part of the plaintiffs case. The contention for the plaintiff is that the statement made by him to P. W. 1 that the car was his new acquisition was quite a correct statement and that if P. W. 1 stated, however, in the proposal that the car was new, the company would not be entitled to repudiate its liability on the basis of a statement made by its own employee P. W. 1 when he filled up the form Ex. I. It was urged that the knowledge of P. W. 1 that the car was really not a new car has to be imputed to the company. Mr. Venkataramiah for the plaintiff has relied in support of this contention on a decision of the High Court of Madras in Kulla Ammal v. Oriental Government Security Life Assurance Co. Ltd., AIR 1954 Mad 636 (A). In that case Mack J., referring to the decision in East and West Life Insurance Co. v. Venkiah, AIR 1944 Mad 559 (B), said this: "With respect, we are unable to regard that as a general proposition of law binding on every insured person who merely puts his signature to forms in a language quite unknown to him when these forms are filled in by an agent of the Insurance Company without proof that the document was properly interpreted and explained to him." X X X X X X In this case, the plaintiff has affixed his signature to the proposal in English although he has given evidence that he knows only how to sign his name in that language.

30. Now it is clear that a person who affixes his signature to a proposal which contains a statement which is not true, cannot ordinarily escape from the consequence arising therefrom by pleading that he chose to sign the proposal containing 6uch statement without either reading or understanding it. That is because, in filling up the proposal form, the agent normally, ceases to act as agent of the insurer but becomes the agent of the insured and no agent can be assumed to have authority from the insurer to write the answers in the proposal form. If an agent nevertheless does that, he becomes merely the amanuensis of the insured, and his knowledge of the untruth or inaccuracy of any statement contained in the form of proposal does not become the knowledge of the insurer. Further, apart from any question of imputed knowledge, the insured by signing that proposal adopts those answers and makes them his own and that would clearly be so, whether the insured signed the proposal without reading or understanding it, it being irrelevant to consider how the inaccuracy arose if he has contracted, as the plaintiff has done in this case that his written answers shall be accurate. (Newsholme Brothers v Road Transport and General Insurance Co. Ltd., 1929-2 KB 356 (C); Great Eastern Life Assurance Co. Ltd. v, Bai Hira. AIR 1931 Bom 146 (D); Lakshmishankar Kanji Rawal v. Gresham Life Assurance Society Ltd., AIR 1932 Bom 582 (E); 18 Halsburys Laws of England, Hailsham Edn. 420). The decision in AIR 1954 Mad 636 (A), on which Mr. Venkataramiah has strongly relied which does not, as I understand it, enunciate any principle to the contrary is therefore of little use to him. The result in that case depended on its own facts.

31. The plaintiff cannot therefore, hope to escape from the consequence arising out of his statement in the proposal that the subject-matter of the insurance was a new car merely on the ground that he signed the proposal filled up by P. W. 1 in a language in which he knew only how to sign.

32. But the more important question is whether that statement was untrue and if so whether the company is entitled to avoid its liability under the policy on that ground.

33. Now it is admitted by the plaintiff that the car had, when he purchased it. run 2000 miles and ran another 5000 miles and more after his purchase. P. W. 1 has given evidence that the plaintiff informed him that he had purchased it from a doctor. It is therefore argued for the company that when the plaintiff described his car as a new car in the form of proposal, he made a false statement to the company. The truth of the statements in the form of proposal which were agreed to be incorporated in the policy to be issued by the company, it is contended, was made the basis of the contract and that the legal effect therefore was that the contract was avoided if any of those answers were untrue irrespective of their materiality.

34. The policy issued by the company in. this case commences with the recital that the proposal for the policy of insurance shall be the basis of this contract and is deemed to be incorporated herein. The eighth condition among the conditions set out in S. III of the policy provides that the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy. The accuracy of the answers in the proposal was thus by special stipulation, made a condition precedent to the validity of the contract of insurance.

35. As observed by Lord Buskmaster in Provincial Insurance Company Ltd. v. Morgan and Foxon, 1933 AC 240 at p. 246 (F), "now it is old and well known law that parties to an insurance contract are at liberty to contract upon the footing that any statement can be made the basis of the contract, and if the statement be inaccurate its materiality does not arise." In Oriental Government Security Life Assurance Co. Ltd. v. Narasimha Chari, ILR 25 Mad 183 (G), Bhashyam Ayyangar J., referring to a similar stipulation in a policy of insurance that any untrue statement made by the insured in his declaration would make the policy void, said that "according to authorities it is now well established that the question for the consideration of the Court is not the materiality or otherwise of such statement or allegation but its truth." In Dawsons Ltd. v. Bonnin, 1922-2 AC 413 at p. 421 (H), Viscount Haldane said: "If the respondents can show that they contracted to get an accurate answer to this question, and to make the validity of the policy conditional on that answer being accurate, whether the answer was of material importance or not, the fulfilment of this contract is a condition of the appellants being able to recover." So, in a case like this where the parties have agreed that the truth of the statements in the proposal shall be foundational to the enforceability of the contract of insurance, the argument that what avoids the contract is only a material inaccuracy which would influence the insurer in determining whether or not to accept the risk or in fixing the amount of the premium would be unavailable. 36.Mr. Bheemacharya has strenuously contended on the authority of 1922-2 AC 413 (H), that apart from the materiality of the plaintiffs statement in the proposal that the vehicle to be insured was a new car at the time of its delivery, its untruth rendered the policy void.

37. The decision in 1922-2 AC 413 (H), which has been referred to by the Court of appeal in re, Morgan v. Provincial Insurance Co. Ltd., 1932 2 KB 70 (I), and also by the House of Lords in 1933 AC 240 (F), has to be understood, as pointed out in the later cases, as one which rested on the construction of the policy of insurance in that case. That was what Lord Buckmaster emphasised in 1933 AC 240 (F). In 1922-2 AC 413 (H), the insured had by inadvertence, stated in his proposal that the vehicle would be garaged at a place where it was never so garaged during the currency of the policy. It was held by the House of Lords that the assured could not recover as he had broken the condition of the policy as to the place where the car was to be garaged. It was, as pointed out toy Lord Wright in 1933 AC 240 (P), held, by the House of Lords that the incorporation of the wrong answer into the contract as its basis constituted it a condition. Viscount Haldane himself made it very clear that it is not every untrue statement made by the assured, but a statement which itself imports a condition that must be shown to have been complied with by the assured, whether material from an ordinary business stand point or not. In illustration of what he said, the noble Lord pointed out that a mere slip in a christian name for instance would not be held to vitiate the answer given if the answers were really in substance true and unambiguous. So, the question which lies at the root of the matter is, as pointed out by Viscount Haldane in 1922-2 AC 413 (H), simply one of construction. Indeed, in 1933 AC 240 (P), in referring to this observation of the noble Lord, Lord Buckmaster said this : "He then continues in words which I think must have been overlooked in some of the other cases, for he says that the question which lies at the root of the matter is simply one of construction. From that it follows that unless some other contract of insurance is either couched in identical terms or terms the effect of which cannot be distinguished from those which were there considered, this authority, except so far as it shows that a contract as to future conduct can equally be made the basis of a contract with a statement of existing fact, does no more than apply well established principles to a special state of facts. It is for that reason that I cannot see that either the antecedent case of Parr v. Motor Traders Mutual Insurance Society Ltd., 1920-3 KB 669 (J), or the consequent case of Roberts v. Anglo-Saxon Insurance Association, 1927-137 LT 243 (K), are affected by the decision. In each of these cases it was held that a description as to the use to which a vehicle was to be put was descriptive of the character of the risk rather than a warranty that that particular use and no other was the one to which the vehicle was confined, and this depended upon the meaning of the words in a particular document." So the question in every case is one of the interpretation of the particular policy and its true construction. 38.Two years before the decision in 1922-2 AC 413 (H), in 1920-3 KB 669 (J), a policy of Insurance containing what may be called the usual basis clause was the subject-matter of interpretation. That wag a case in which the plaintiff who was the owner of two taxicabs which he insured with the defendants, made a statement in the proposal which was agreed to be the basis of the contract and to be considered as incorporated therein, that one of the cabs was driven in one shift only. During the currency of the Policy of insurance and for a short time that cab was driven In two shifts for twentyfour hours. But when the cab was destroyed by an accident it was being driven in one shift only. In an action on the policy to recover in respect of the damage so caused, the defendants contended that the statement in the proposal that the cab was to be driven in one shift only was not true and amounted to a warranty and upon breach thereof the insurance came to an end. The Court of appeal however, repelled that contention holding that the statement was not a warranty but was merely descriptive of the risk insured against. Bankes L. J. in reaching that conclusion pointed out that it was doubtful how much is to be inferred from the mere description of the premises or goods insured. He referred to a passage in Macgillivray on Insurance Law which was as follows: "It is a little doubtful how much is to be inferred from the mere description in a fire or burglary policy of the premises or goods insured. It may be put in three ways: (i) that the description is a representation of the state of the premises or goods; (ii) that the description is a definition of risk; (iii) that the description is a warranty that the premises or goods shall correspond thereto." He eventually reached the conclusion that if the description embodied in the policy is merely descriptive of the risk undertaken by the insurer in the sense that it embodies a limitation of the risk or defines it, it is not a warranty of which the insurer could take advantage, for avoiding his liability under the policy but would entitle the insured for recovering under the policy provided that it was a true description of the risk at the time of the accident. Although this case was cited during the arguments in 1922-2 AC 413 (H), there is no reference to it in the decision. Then again, in (1927) 137 LT 243 (K), a case decided four years after the decision in 1922-2 AC 413 (H), the insurance policy incorporated a proposal form signed by the respondent which contained a stipulation that the statement in the proposal shall be held promissory and shall form the basis of the contract of insurance. In that proposal the insured had stated that the purpose for which the vehicle was to be used was only commercial travelling. At the time of its destruction by fire it was found that the motor vehicle was being used for carrying passengers. The Insurance company resisted the claim of the insured on the ground that they were not liable in respect of an accident while the motor car was being used to carry passengers as that was not within the risk described. Although the claim made by the insured failed on the ground that the contract between the parties definitely stated as a condition thereof that the user of the vehicle shall be only for the purpose indicated and therefore amounted to a warranty, it is important to notice that Romer J pointed out that the words constituting the description of an insured motor vehicle are capable of three constructions. He said as follows: "I understand from the decision of this Court in 1920-3 KB 669 (J), a case which I gather was not drawn to the attention of the Divisional Court, that those words are. capable of three constructions, that is to say, they must bear one of three constructions; either they are pure words of description words of description only or they constitute a definition of the risk, or the words amount to a warranty or promise that the motor car will bp used in a particular way only. That the solution of that question is not an easy on is apparent from the fact that Salter J., thought that the words constituted a warranty when he came to the conclusion on the facts, on the construction of the warranty, that there had been no breach of it, and MacKinnon J. thought that the words were description only. But the question is not an insoluble one. If it were, then I suppose the policy would be void for uncertainty. There can be, if the question is soluble, only one real answer to it, and, therefore, there can be in law only one construction of the words in question." It is clear what he said that if the words were mere words of pure description they could not be construed as a definition of the risk or a warranty and so would not, even if incorrect, render the policy void. In 1932-2 K B 70 (I), was another case in which there was another similar basis clause in the policy of insurance. The question was whether if the proposal contained a statement that the insured motor vehicles would be used only for the purpose of delivering coal, the company had a right to avoid the contract on the ground that the insured, during the period covered by the policy, was using the lorry for carrying loads of timber together with coal although when the accident happened the vehicle was only carrying coal. In an action by the insured on the policy, the insurer resisted the claim on the ground that since the statement made by the assured that the vehicle would be used only for carrying coal was the basis of the contract and had been incorporated in the policy, its untruth avoided the contract. It was held by the Court of appeal that the plaintiff was entitled to recover on the ground that the statement in the Policy would not amount to a warranty but was only a definition or description of the risk insured against. In that case the two earlier cases, 1920-3 KB 669 (J) and (1927) 137 LT 243 (K), were cited on behalf of the assured, while the decision in 1922-2 AO 413 (H), was strongly relied upon on behalf of the Insurance company. Indeed, it was contended on behalf of the Insurance company that the decision in 1920-3 KB 669 (J), must be taken to have been over-ruled by the decision in 1922-2 AC 413 (H). But the Court of appeal came to the conclusion that there was nothing in 1922-2 AC 413 (H), which was incinsistent with the decision in 1920-3 KB 669 (J), or in 1927-137 LT 243 (K). Lawrence L. J., pointed out that the only point decided in 1922-2 AC 413 (H), was that on the true construction of the particular contract there in question it was made a fundamental condition of liability under the policy that the car should be usually garaged at a place throughout the currency of the policy. He also pointed out that the question which arose in 1920-3 KB 669 (J), and (1927) 137 LT 243 (K), whether the statement in the proposal amounted to a description of the risk or to a warrant was not raised or decided in 1922-2 AC 413 (H). Scrutton L. J. emphasised the distinction between statements which are conditional and those that are merely descriptive.

39. It was the decision of the Court of appeal in 1932-2 KB 70 (I), that was affirmed by the House of Lords in 1933 AC 240 (P), to which I have already made reference. It was there that Lord Buckmaster drew attention to words uttered by Viscount Haldane in 1922-2 AC 413 (H), which he thought had been over-looked in other cases, that the question in each must depend upon the true construction of the particular contract of insurance and that the decision in any one particular case cannot be of assistance in construing a contract of insurance in another unless the terms and conditions in policies in both the cases are couched in identical terms.

40. The decision in 1922-2 AC 413 (H), as explained in the later cases to which I have referred rested on the construction that the statement in the proposal was a warranty, the breach of which vitiated the policy. That was also the basis of the decision in ILR 25 Mad 183 (G). That a policy becomes void in such a case is also what was held in those later decisions. But what was further decided in 1920-3 KB 669 (J), and in the other later cases, is, that if a motor vehicle is described by the insured in his form of proposal in a particular way and that description is contained in words which are merely and purely words of description, such description will neither amount to a description of the risk nor to a warranty, not in the sense in which the word warranty is used in the law relating to sale of goods but as it is understood in the Insurance Law. The proper significance of that word in Insurance Law as quite often explained is an agreement which refers to the subject-matter of a contract but not being an essential part of it either intrinsically or by agreement is collateral to its main purpose. Any statement of fact bearing on the risk or a promise that a certain state of things shall continue or a certain course of conduct shall be pursued during the whole period covered by the policy is to be construed as a warranty. It was this construction that was placed by Viscount Haldane in 1922-2 AC 413 (H), to reach the conclusion that the plaintiff in that case could not recover because the statement that the motor vehicle would be usually garaged in a particular place amounted to a condition or a warranty and that the risk did not attach to the vehicle garaged in a place different from the one where it should have been.

41. It is clear that if the description of a. motor vehicle in the proposal, the statements in which are incorporated in and made the basis of a contract of insurance are pure words of description, then such description being neither a definition of the risk nor a warranty will not, even if inaccurate, entitle the insurer to avoid his liability under the policy. If such description is however in the nature of a definition of the risk, then any untrue statement in such description will not vitiate the policy, the only consequence of such misdescription being the risk in the case of the vehicle is not covered when the vehicle does not correspond to that description and is covered again when it corresponds to it. If the description however amounts to a warranty, a breach of that warranty disentitles the insured to recover.

42. The statement in the form of proposal in this case that the car was new at the time of its delivery has no bearing on the risk and does not by itself import a condition precedent to the validity of the policy. Nor can it be construed as a promise by the plaintiff that a certain state of things shall continue or a certain course of conduct shall be pursued during the currency of the policy. That being so, it is impossible to construe that statement as either a definition of the risk insured against, or as a warranty.

43. Indeed, it is not the case of the company that that statement is a warranty or has to be construed as one. The company did not say so in its written statement It merely relied on its untruth. The statement in the proposal that the vehicle was new when delivered is, in my view, a mere statement of description and a statement of description only. That was the construction placed in Gopal Singh v. Mutual Indemnity and Finance Corporation Ltd., AIR 1937 All 535 (L), by Sulaiman C. J. when he was interpreting a policy of insurance which incorporated a statement in the proposal that the purpose for which the vehicle would be used was to carry passengers, whereas at the time of the accident, the vehicle was carrying tins of oil in addition to passengers. Sulaiman C. J. construed those words as mere words of description and said this: "The proposal form certainly contains some parts which are merely descriptive. For instance, the registered number was 3893 as entered in the proposal. In point of fact the real number as now found is 3993. It will be difficult to contend that a mistake of this kind would exonerate the defendant from all liability. x x x x In(1927) 137 LT 243 (K), it was pointed out on P. 248 by Romer J., that it was to be inferred by Farrs case (J) that the words used in the proposal form may be capable of three constructions, that is to say; they must bear one of three constructions: (1) either they are pure words of description words of description only or (2) they constitute a definition of the risk, or (3) the words amount to a warranty or promise that the motor car will be used in a particular way only. In the first case the words would not affect the liability of the insurance company at all." In this view of the matter and in my opinion, the company would not, in the present case, be entitled to avoid the policy on the ground that the plaintiff had given an incorrect description of his car in the form of proposal.

44. It is I think an important feature of the policy in this case that it contains another schedule in which the subject matter of insurance is again described. Although in the description of the car contained in the proposal (Ex. I) it is described as a new car. the schedule to the policy in which the description is repeated makes no mention of it. Again, in the proposal (Ex. I), under the heading Old Number. MYX 1525 is mentioned along with what was presumably its new number MY 1658 Z mentioned under the heading Registered letters and Numbers. It was disclosed in the proposal that the car had been the subject-matter of insurance once before and that the year of its manufacture was 1948 There is no evidence in this case nor was it suggested during the course of arguments by Mr. Bheemacharya that the company would have declined the insurance on the ground that it was not a new car when delivered to the plaintiff or that the premium payable by the insurer in the case of a second hand car was higher than that chargeable in respect of a new one. That being so, it is clear that the description of the vehicle, while it had no bearing on the risk insured against, so to make it a warranty, was substantially accuate

45. Indeed in the protracted and long correspondence which the company carried on with the plaintiff and with its agent P. W. 1, there is no suggestion at any stage that there was any inaccurate statement in the proposal or that there was a breach of any warranty. At no stage and not even when it sent its replies to the notices (Exs XXIV and JJ) issued to the company on behalf of the plaintiff by his Advocate, did the company repudiate its liability on that ground. This contention was raised for the first time when it produced its defence in the suit and even when it did so, it did not plead that the statement in the proposal was a warranty, the breach of which had freed it from its liability. The conduct of the company after the accident in which the car was involved was reported to it by P. W. 1, makes it plain that while the company did not seek to avoid the policy on the ground that it raised for the first time in its defence, it adopted a course of action entirely inconsistent with any such intention, for very nearly four months after it became, as I have found, the custodian of the plaintiffs car for the purpose of getting it repaired as it had agreed to do, under the contract of insurance, the company gave repeated assurance to the plaintiff that it would do so.

46. In my opinion, the finding of the learned District Judge on the second issue that the plaintiff is not entitled to recover, cannot be sustained and has to be reversed.

47. The only other question is as to what should be the measure of compensation payable by the defendant to the plaintiff. The effect of the evidence of D. W. 4 is that in the year 1949 there was a steady rise in the price of Studebaker Cars. The damaged car in this case was admittedly manufactured in the year 1948 and its value in the market at the time of the accident must have been comparatively high. Indeed, in the correspondence between P. W. 1, D. W. 4 and the company it appears to have been assumed that the damaged car was, before it met with the accident, worth nearly Rs. 13,000/- (Ex. Y) and that even in its damaged condition it was likely to fetch in the market a price of Rs 4,000/- to Rs. 4,500/-. D. W. 4 has admitted that in the negotiations between him and the plaintiff at Madras, he was walling to pay a sum of Rs. 7,500/- to the plaintiff in full settlement of his claim. Even in his letter (Ex. V) to P. W. 1, he expressed his willingness to consider the payment of Rs. 7,000/-to the plaintiff. Unfortunately, the company appears to have resiled from that stand in the hope of being able to get the damaged car repaired. The Company eventually refused to do even that.

48. The proper measure of compensation payable to the plaintiff by the defendant is, in my opinion, the difference between the price of the car before it was damaged and its value when it was removed to Shanti Kiran Motors and by what must be regarded as highly disingenuous conduct on the part of the company, no steps were taken by it to get it repaired or restored it to its original condition. As I have mentioned above, Ex. Y provides what I consider as some, though not very accurate, data on this matter according to which the price of the car about Rs. 13,000/- before it was damaged and about Rs. 4,000/- to Rs. 4,500/- after the accident to it. This appears to have provided the basis on which the plaintiff and D W. 4 negotiated for a settlement of this matter while they were in Madras. Taking into account all the circumstances of the case, it appears to me that a sum of Rs. 7,500/- which D. W 4 appears to have been at one stage willing to consider as a reasonable payment to be made to the plaintiff, would be the compensation properly payable by the defendant to the plaintiff as damages to which the plaintiff would be entitled under the Insurance policy.

49. In my opinion, the dismissal of the plaintiffs suit by the learned District Judge was unjustified. His decree dismissing the suit should be set aside and there should now be a decree in favour of the plaintiff and against the defendant for this sum of Rs. 7,500/- together with interest thereon at six per cent, per annum from the date of the institution of the suit till its payment. As the plaintiff has not fully succeeded in his suit, the proper order as to costs should be that the parties shall pay and receive in this Court and in the Court below, costs proportionate to their success or failure.

50. SADASIVAYYA J. : I agree. Appeal allowed. AIR 1958 MYSORE 64 (VOL. 45, C. 16) "I. S. and Refineries v. State of Mysore" MYSORE HIGH COURT Coram : 2 S. R. DAS GUPTA, C. J. AND K. S. HEGDE, J. ( Division Bench ) Indian Sugars and Refineries Ltd., Hospet, Petitioner v. State of Mysore and another, Respondents. Writ Petn. No. 182 of 1956, D/- 18 -10 -1957. (A) Madras Sugar Factories Control Act (20 of 1949) (as amended by Madras Sugar Factories Control (Mysore Amendment) Act (7 of 1954)), S.14(4) - ESSENTIAL COMMODITIES - LEGISLATURE - FACTORIES - Levy of tax on entry of sugarcane within particular area - Selection of persons from, whom tax is to be imposed - Function whether can be delegated to administrative body. Constitution of India, Art.245. A legislature cannot delegate its essential legislative functions, although ancillary matters may be delegated to other bodies. (Para 4) The question whether the determination of the person from whom a tax is to be realised is an ancillary matter which can be delegated to another body has to be determined in each case on its own facts. (Para 4) Having regard to the scope, object and the provisions of the Sugar Factories Control Act, it cannot be said that the selection of persons from whom the tax which is to be imposed on the entry of sugarcane within a particular area under the Act is an essential legislative function which cannot be delegated to an administrative body. AIR 1957 Pat 40, applied. (Para 5) Anno: AIR Com. Const, of India Art. 245 N. 9. (B) Madras Sugar Factories Control Act (20 of 1949) (as amended by Madras Sugar Factories Control (Mysore Amendment) Act (7 of 1954) ), S.14(4) and S.17(2)(8) and R.11 (framed u/S.14 (4) ) - ESSENTIAL COMMODITIES - Rule 11 whether mentions persons from whom cess is to be effected. It cannot be contended there is no rule framed by the Government under S. 14(4) which mentions the persons from whom the cess shall be collected under S. 14, for R. 11 read with S. 17 (2) (8) makes it clear that the person from whom the cess shall be collected is the occupier of the factory. (Para 6) (C) Madras Sugar Factories Control Act (20 of 1949) (as amended by Madras Sugar Factories Control (Mysore Amendment) Act (7 of 1954) ), S.14(4) - ESSENTIAL COMMODITIES - PREAMBLE - INTERPRETATION OF STATUTES - Rules under - Strict construction. Interpretation of statutes Civil P.C. (5 of 1908), Pre.,S.14(4). relates to the manner of realisation of cess and is not a charging section and, that being so, strict construction of the rules framed thereunder is not necessary. (Para 6) Anno: AIR Com. C. P. C. Pre. N. 7. (D) Madras Sugar Factories Control Act (20 of 1949) (as amended by Madras Sugar Factories Control (Mysore Amendment) Act (7 of 1954) ), S.14 - ESSENTIAL COMMODITIES - INDUSTRIAL DEVELOPMENT - CESS - Power to impose cess given by Act, is not hit by or repugnant to, Essential Goods (Declaration and Regulation of Tax on Sale or Purchase) Act (52 of 1952), Essential Commodities Act. (1955) and Order D/-27-08-1955, passed pursuant to that Act and Industries Development and Regulation Act (1951). Essential Goods (Declaration and Regulation of Tax on Sale or Purchase) Act (52 of 1952), S.1. Essential Commodities Act (10 of 1955), S.1. Industries (Development and Regulation) Act (65 of 1951), S.1. (Para 7) (E) Madras Sugar Factories Control Act (20 of 1949) (as amended by Madras Sugar Factories Control (Mysore Amendment) Act (7 of 1954)), S.14 - ESSENTIAL COMMODITIES - LEGISLATURE - CESS - Power of Provincial Legislature to impose cess u/Section. Govt. of India Act (1935) (25 and 26 Geo Vi and 1 Edw VIII Cl. (2)), Sch.7, Provincial Legislative List , Item 49. Under Item 49, tax is to be levied "on the entry of the goods, not "as and when they enter" into a local area. The Provincial Legislature, therefore, has the power to impose cess under S. 14 on goods which have entered into a local area under Item 49. (Para 8) (F) Madras Sugar Factories Control Act (20 of 1949) (as amended by Madras Sugar Factories Control (Mysore Amendment) Act (7 of 1954)), S.14 - ESSENTIAL COMMODITIES - Notification under - Construction. Where by a notification issued under S. 14 cess had to be levied on sugar cane crushed by a sugar factory for the season 1955-56, an objection was taken that the cess was not levied on sugarcane as such entering into the said factory, Held that the notification, read with S. 14, made it clear that cess was levied on all sugarcane which had been brought into the factory and Which had been crushed during the said crushing season. (Para 9) (G) Constitution of India, Art.14 - EQUALITY - ESSENTIAL COMMODITIES - S.14 Madras Sugar Factories Control (Mysore Amendment) Act whether offends Article. Madras Sugar Factories Control Act (20 of 1949) (as amended by Madras Sugar Factories Control (Mysore Amendment) Act (7 of 1954)), S.14. If the policy and object of the Act can be discovered within the four corners of that Act including the preamble and discretion is vested in the Government to make a selection in furtherance of that policy and object for the application of the Act, then the provision confer ring such a power is not void as offending against Article 14 of the Constitution. AIR 1954 Mad. 690 Foll. (Para 10) The object and policy of the Madras Sugar Factories Control (Mysore Amendment) Act being to provide for licencing of sugar factories and regulating the supply and prices of sugarcane used in such factories and other incidental matters, any action which the Government would take under section 14 of the said Act must be in consonance with, and in furtherance of, the said object. It is not an unguided and arbitrary discretion given to Government. The Government must act in accordance with the object and the policy laid down in the said Act and any action contrary thereto would be void under Art. 14 of the Constitution. (Para 10) Anno: AIR Com. Const, of India, Art. .14 N. 42. CASES REFERRED Paras (A) AIR 1957 Pat 40 (V 44): ILR 35 Pat 743 3, 5 (B) (S) AIR 1957 All 159 (V 44) 3 (C) AIR 1951 SC 322 (V 38): 1951 SCR 747 5 (D) AIR 1954 SC 569 (V 41): 1955 SCR 290 5 (E) (49) 53 Cal WN 725 6 (F) (1908) 1908-1 KB 705: 77 LJKB 467 6 (G) AIR 1940 PC 124 (V 27): ILR (1940) 2 Cal 215 6 (H) AIR 1952 SC 75 (V 39): 1952 Cri LJ 510 10

(I) AIR 1952 SC 123 (V 39): 1952 Cri LJ 805 10 (J) AIR 1953 SC 404 (V 40): 1953 Cri LJ 1621 10 (K) AIR 1954 Mad 690 (V 41): ILR (1954) Mad 616 10 D. Venugopalachari, for Petitioner; Advocate General, for Respondents. Judgement S. R. DAS GUPTA, C.J. :- The petitioner before us is the India Sugars and Refineries, Ltd., Hospet. In this petition the petitioner is challenging the validity of S. 14 of the Madras Sugar Factories Control (Mysore Amendment) Act and the rules framed thereunder. The facts leading up to this petition may be shortly stated as follows: The Government of Madras had passed an enactment known as the Madras Sugar Factories Control Act No. XX of 1949 dated 13-7-1949. The object of the said Act, as it appears from the preamble thereof, was to provide for the licensing of sugar factories and regulating the supply and the prices of sugarcane used in such factories and for other incidental matters. Sub-section (1) of S. 14 of the said Act authorised the Government, after consulting the Advisory Committee to be set up under the said Act, to levy a cess not exceeding four annas per standard maund as defined in the Standards of Weight Act, 1939, on sugarcane brought into any area specified in such notification, for consumption, use or sale therein. Sub-section (4) of S. 14 empowered the Government, after consulting the said Advisory Committee, to make rules specifying the authorities by which, the persons from whom, and the manner in which, the cess levied under the said section shall be collected. In exercise of the powers conferred by S. 14(1) of the Said Act, the Government of Madras, on 23-11-1950, issued a notification whereby it directed that a cess of annas eight per ton shall be levied on sugarcane brought into any factory within the State of Madras for consumption, use or sale therein. The said rate of cess was subsequently enhanced to rupee one per ton by a notification dated 13-8-51. Thereafter, on the lerger of the District of Bellary, which was originally a district of the State of Madras, into Mysore, the Government of Mysore passed the Mysore Adaptation of Laws Order, 1953, bringing into force as from 1-10-1953 the Madras Sugar Factories Control Act (XX of 1949) without any modification. Thereafter, the Rajpramukh promulgated an ordinance, being Ordinance No. III of 1953 amending S. 14 of the Madras Act XX of 1949 by removing the clause enjoining the State Government to consult the Advisory Committee before issuing a notification under S. 14(1) of the Act. This Ordinance was replaced by the mysore act vii of 1954. Thereafter, the Government of Mysore issued from time to time notifications, the first of such notifications being published on 8-1-1954, in exercise of its powers under the said Act. The notification with which we are concerned in this application was published by the Government on 9-4-1956. It reads as follows: "In exercise of the powers conferred by S. 14 of the Madras Sugar Factories Control Act, 1949 (Madras Act No. XX of 1949), as in force in Bellary District as amended by the Madras Sugar Factories Control (Mysore Amendment): Act, 1954, the Government of Mysore direct that a cess at the rate of three annas and six pies per standard maund (as defined in the Standards of Weight Act, 1939) of sugarcane crushed by the Hospet Sugar Factory (The India Sugars and Refineries Ltd.) be levied for the crushing season 1955-56". It is the issue of this notification which has led the present petitioner to move this court for a writ or other appropriate order in the nature of a writ declaring the said notification and S. 14 of the Madras Sugar Factories (Mysore Amendment) Act and the rules framed thereunder as bad in law, ultra vires of the powers of the State Legislature and otherwise invalid.

2. The learned Advocate appearing in support of this petition urged several grounds before us. The principal ground urged by him was that in enacting S. 14 of the Act the legislature has delegated essential matters, e.g. the power to determine the persons to be taxed, to an executive body without laying down any discernible policy or principle on which the said body is to act. The learned Advocate contended before us that the Government, by the said section, was given unfettered discretion to determine the persons who are to be taxed under the said section. This, he contended, would appear from the provisions of sub-section (4) of the said section which has empowered the Government to make rules inter alia specifying the persons from whom the cess levied under this section shall be collected. In all cases of taxation, the determination of a question as to the persons to be taxed is, according to him, an essential function of the legislature and cannot be delegated to an executive body. It is a matter of policy which the legislature alone can determine.

3. The learned Advocate-General appearing for the State of Mysore did not dispute before us the proposition that essential legislative functions must be discharged by the legislature and cannot be delegated to an executive body, although ancillary things may be left to such body or to others. What he, however, contended was that the levy of taxation, i.e. the basis on which tax is to be levied, is a matter for the legislature to determine and forms part of its essential function; but the person from whom such tax is to be collected, the time, manner and the instrumentality of such collection are ancillary matters which can be left to an executive body. The learned Advocate-General further contended that if a tax has to be levied upon a person (e.g. under the Income-tax Act), then the legislature must determine the persons to be taxed and cannot delegate this matter to any other body; but if, on the other hand, the tax is to be levied on articles, then the persons from whom such tax is to be realized can be left to a subsidiary body. In support of this last proposition he referred us to the material sections in the Cotton Cess Act, Indain Lac Cess Act, Central Excise and Salt Act and to the rules made thereunder. The learned Advocate-Generals contention was that, in the present case, tax is to be levied on the entry of certain goods to certain specified areas and that being so the question as to the person from whom such tax is to be realised relates to the mode of realization thereof appertaining to administrative convenience and can be left to an executive body. In support of his contention the learned Advocate-General relied on B. L. Chaudhury v. State of Bihar, AIR 1957 Pat 40 (A) and Murli Manohar v. State of U. P., (S) AIR 1957 All 159 (B).

4. Thus the broad proposition of law, viz. that the legislature cannot delegate its essential legislative functions, although ancillary matters may be delegated to other bodies is not in dispute before us. What, however, is disputed is whether the determination of the person from whom the tax in question is to be realized is an ancillary matter relating to mode of relization of such tax which can be conveniently left to the executive body. It was urged on behalf of the petitioner that the determination of the person from whom a tax is to be realized can in no case be left to an executive body, it being an essential function of the legislature. In my opinion, it is not possible to accept this extreme contention of the petitioner on this point. I am not prepared to hold that the legislature can in no case leave it to the executive body to determine the person from whom the tax in question has to be realized. I am, however, equally unable to subscribe to the view that in every case the determination of the person from whom such tax is to be realized is an ancillary matter which can be delegated to another body. In my opinion, the question has to be determined in each case on its own facts. It may be that in a particular case the determination of the person from whom the tax has to be realized becomes an ancillary matter which relates to administrative convenience and to the mode of realization of the tax in question and in another case such determination is an essential matter forming the essential function of the legislature which cannot be delegated to some other body. In my opinion, the determination of this question depends in each case on its own facts. In other words, the nature of the Act in question, its object, scope and its provisions have to be seen in order to determine whether the legislature could leave it to some other body to determine the person from whom such tax has to be realized. In this case, the object of the Madras Sugar Factories Control (Mysore Amendment) Act, as stated therein, is to provide for the licensing of sugar factories and regulating the supply of prices of sugarcane used in such factories and for the other incidental matters. It is for the fulfilment of that object that the different provisions of the Act have come to be enacted. For example, S. 6 inter alia provides that, on or after such date as the Government may by notification specify in this behalf, no sugarcane shall be crushed in any factory, unless a licence for that purpose has been obtained in respect of that factory from the Government. S. 7 sets out the conditions of such licence. S. 8 provides that every occupier of every factory shall submit to the Sugarcane Commissioner on or before the date specified by him in this behalf an estimate in the prescribed form the quantity of sugarcane which would be required by that factory during the crushing season immediately following. S. 9 authorises the Sugercane Commissioner to declare any area to be a reserved area for such factory and during such crushing season. Section 10 is meant to regulate sales by sugarcane grower in a reserved area to the occupier of a factory for which the area has been reserved Section 11 prohibits certain transactions in a reserved area. Section 12 authorises the Government to fix prices which the occupier of a factory shall be bound to pay for any sugarcane purchased by him during the season or the method of calculating such price. Section 13 mentions the penalty to be imposed for contravention of the provisions of S. 6 and of S. 11 of the Act. Section 14. which is the material section for the present purpose, authorizes the Government by notification to levy a cess on sugarcane brought into any area specified in such notification for consumption, use or sale therein. Sub-section (4) of S. 14, as I have already mentioned, gives power to the Government to specify the authorities by which the persons from whom and the manner in which the cess levied under this section shall be collected. Section 15 provides that when a person committing any offence punishable under this Act is a company or an association or a body of persons, the manager, secretary, agent or other principal officer managing the affairs of such company shall be deemed to be guilty of such offence. Section 16 protects the Government, any officer or person from the liability of being sued, prosecuted or being subjected to other legal proceedings in respect of an act done in good faith and intended to be done under the Act or rules made thereunder. S. 17 gives the power to make rules.

5. These being the object, scope and provisions of the Act in question, what has to be determined is whether the determination of the persons from whom the cess in question shall be collected is an ancillary matter not relating to essential functions of the legislature. In my opinion, the selection of persons, from whom such tax is to be collected under the Madras Sugar Factories Control (Mysore Amendment) Act having regard to the scope, object and provisions thereof, is an ancillary matter which can be delegated by legislature to the Government. I have already mentioned that the object of the said Act, as stated in its preamble, is to provide for the licensing of sugar factories and regulating the supply of the prices of sugarcane used in such factories and for other incidental matters. From the said preamble and from the provisions of the Act, to which I have referred, it appears that imposition of tax mentioned in S. 14 thereof has to be on sugarcane brought into such factory. That being so, determination of the persons from whom and the manner in which the cess, levied under the section, shall be collected becomes an ancillary matter relating to administrative convenience and not appertaining to the essential functions of the legislature. Such a matter can be left to the Government for determination. I am unable to accept the view urged before us by the learned Advocate for the petitioner, viz. that the determination of the question as to the persons from whom such cess shall be collected relates to the essential functions of the legislature and cannot be delegated. The view, which I am taking on this point, was also the view which was taken by their Lordships of the Patna High Court in the case of AIR 1957 Pat 40 (A). The Act, which their Lordships had to consider in that case, contained provisions exactly similar to those of S. 14 of the present Act. Sub-sections (2) and (3) of S. 29 of the Bihar Sugar Factories Control Act, 1937 (Bihar Act VII of 1937), as amended by the Bihar Sugar Factories Control (Amendment) Act, 1950, the effect of which their Lordships had to consider, provided as follows: "29(2) The Governor may, by notification impose a cess not exceeding thirty six pies a maund on the entry of sugarcane into a local area, specified in such notification for consumption, use or sale therein. Provided that such cess shall not be imposed on the entry into any such area of any sugarcane in respect of the sale of which a tax imposed under sub-section (1) is payable; Provided further that the State Government may, by notification reduce or remit in whole or in part such cess in respect of sugarcane, intended to be used in a factory for any purpose specified in such notification. (3) The State Government shall make rules specifying the authority empowered to collect the tax or cess and the person from whom, and the manner in which, the tax or cess shall be collected". It was argued before their Lordships, as it is argued before us now, that S. 29(3) was invalid because there was an excessive delegation of legislative power to executive authority by the said section. That contention was not accepted. Chief Justice Ramaswami held that S. 29(3) only delegated the rule-making power to the State Government with regard to collection of sugarcane and not with regard to the assessment of cess. His Lordship observed as follows: "The authority granted under S. 29(3) is only of the machinery type. The authority conferred upon the State Government is to supplement the Legislative enactment and to provide the administrative mechanism necessary for the execution of the law. In my opinion, the power of legislating on policy or principle has not been delegtaed to the State Government. What is delegated by S. 29(3) is only the power to set up an administraive machinery for the execution of the law. I think such a delegation is constitutionally permissible". His Lordship referred to two decisions of the Supreme Court, i.e. In re. Article 143, Constitution of India and Delhi Laws Act (1912), AIR 1951 SC 332 (C) and Rajnarain Singh v. Chairman, Patna Administration Committee, AIR 1954 SC 569 (D) in support of his said view. The observations of his Lordship made in the said case can, in my opinion, be applied with equal force to the case which we are now considering. In my opinion, the policy and object of the legislature in this Act have been sufficiently laid down and what the Government has been called upon to do is to provide administrative machinery for the execution thereof. In the circumstances of the present case, it cannot be said that the selection of persons from whom the tax which is to be imposed on the entry of sugarcane within a praticular area is an essential legislative function which cannot be delegated to an administrative body. I therefore hold that this contention of the learned Advocate for the petitioner must fail. 6.The next contention urged by the learned Advocate for the petitioner was that the Government was required under Sub-section (4) of S. 14 to make rules specifying amongst others the persons from whom the cess levied under this section shall be collected, but there is no rule framed by the Government which mentions the persons from whom such cess shall be collected. He urged that taxing statutes have to be ntrictly construed and in the absence of any such specific rule the cess in question cannot be levied. The learned Advocate referred to Commissioner of Agricultural Income-tax West Bengal v. Tarak Nath, 53 Cal WN 725 (E), Whiteley. v. Burns 1908-1 KB 705 (F) and Maxwell on Interpretation of Statutes (1953) page 288 in support of his aforesaid contention. The only rule which, according to him, can be thought of as having given some indication on this matter is rule 11 of the rules framed by the Government. But all that the said rule says is that the occupier of every factory shall maintain accounts in the manner indicated therein of the sugarcane entering the factory for consumption or use by the factory and within a fortnight of the close of each month the occupier shall submit to the Sugarcane Commisioner a return in the form mentioned therein showing the quantity of sugarcane that has entered the factory during the month and the amount of cess paid by him into the treasury on account of sugarcane together with treasury receipt in support thereof and any failure to comply with these provisions of the said rule will make the occupier of a factory punishable with a fine which may extend to Rs. 2000/-. The said rule, according to the learned Advocate, does not specifically say that the cess shall be collected from the occupier of the factory. In any event, he urged, the rule is not free from doubt and in case of doubt a taxing statute should be construed in favour of the subjects. In my opinion, rule 11 makes it clear as to the person from whom the cess in question is to be collected. As already mentioned, it provides, in the first place, that the occupier of every factory shall maintain a correct daily account in the form prescribed of the sugarcane entering a factory for consumption or use by the factory and that within a fortnight of the close of each month the occupier shall submit to the Sugarcane Commissioner a return in the form mentioned in the said rule showing the quantity of sugarcane that has entered the factory during the month and the amount of cess paid by him into the treasury on account of that quantity of sugarcane together with the treasury receipt in support thereof. Sub-rule (3) of rule 11 provides that, if the occupier of a factory fails to keep correct daily accounts in the prescribed form or to submit on or before the due date the monthly return in the prescribed form he shall be punishable with fine which may extend to Rs. 2000/-. The provisions of rule 11, to my mind, make it clear that the person from whom the cess in question shall be collected is the occupier of the factory. In this connection, reference may be made to clause (8) of sub-section (2) of S. 17 of the Act itself which provides that the rules to be framed by the Government to carry out the purposes of this Act may provide for giving the form of the records to be kept and of the returns to be made and the information to be furnished by the persons liable to pay cess under S. 14. Rule 11 read with this clause makes it clear as to the persons from whom the cess is to be collected under S. 14. In answer to the contention of the learned Advocate for the petitioner, viz. that a charging statute should be strictly construed, the learned Advocate-General appearing on behalf of the State urged before us that Sub-section (4) of S. 14 was not a charging provision but deals with the mode of realization of the cess and in interpreting provisions of this kind a construction should be preferred which makes the machinery workable and in support of that proposition he relied on a decision of the Privy Council in Commissioner of Income-tax, Bengal v. M/S. Mahaliram Ramjidas, AIR 1940 PC 124 (G). I have already expressed my views on the question as to whether or not Sub-section (4) of S. 14 is a charging provision. In my opinion, the said sub-section relates to the manner of realization of cess to be levied under sub-section 1. That being so such strict construction of the rules as was insisted upon by the learned Advocate for the petitioner is not necessary. In any event, as I have already held, rule 11 sufficiently makes it clear as to the person from whom tax shall be collected. This contention of the learned Advocate for the petitioner therefore fails.

7. The next ground urged before us by the learned Advocate for the petitioner was that, in view of the various Central Acts which have since been enacted, this Act has been made nugatory. The Central Acts on which he relied for the aforesaid purpose are the Essential Goods (Declaration and Regulation of Tax on Sale or Purchase) Act (LII of 1952) which came into operation on 9-8-52, Essential Commodities Act, X of 1955, Order dated 27-8-55 passed pursuant to the Essential Commodities Act whereby sugarcane became a controlled commodity and Industries Development and regulation act, lxv of 1951 (by this act sugar became a controlled commodity). The learned Advocate contended that these Acts have made the Madras Sugar Factories Control Act, XX of 1949 nugatory. In order to determine this question, it would be necessary to see whether or not the provisions of the Act now in question are in any way repugnant to the provisions of any of the said Central Acts. I have carefully gone through the provisions of the central acts on which the learned Advocate for the petitioner relied and I am unable to see any such repugnancy. The Essential Goods (Declaration and Regulation of Tax on Sale or Purchase) Act (LII of 1952) merely provides that no law made after the commencement of the said Act by the legislature of a State imposing or authorising imposition of a tax on the sale or purchase of any goods declared by the said Act to be essential for the life of the community (which are specified in the Schedule to that Act), shall have any effect, unless it has been reserved for the consideration of the President and it has received his assent. In the first place, the goods enumerated in the said schedule do not include sugarcane and therefore sugarcane does not come within the purview of the said Act. What is mentioned in Item 6 of the schedule is Gur. Gur is not the same thing as sugarcane. In the second place, no law has been made after the commencement of the said Act by the Legislature of the Mysore State imposing the cess in question but the Government of Mysore has passed an order, being the Mysore Adaptation of Laws Order, 1953, bringing into force as from 1-10-53 the Madras Sugar Factories Control Act (XX of 1949) without any modification. The subsequent legislation which was passed by the Mysore Legislation, being Act, VII of 1954, only removed the clause which enjoined the State Government to consult the Advisory Committee before issuing a notification under S. 14(1) of the Act. The Essential Goods (Declaration and Regulation of Tax on Sale or Purchase) Act (LII of 1952) therefore does not hit, nor is it repugnant to the provisions of the Act which is in question in this petition. By the Essential Commodities Act X of 1955 and by the Order dated 27-8-55 made pursuant thereto, the Central Government was empowered to fix in respect of any area a price or minimum price to be paid by the producer of sugar or his agent for sugarcane purchased by him and direct the manner in which the said price is to be paid. That Act also empowers the Central Government to prohibit or restrict or otherwise regulate the export of sugarcane from any area for supply to different factories and to direct that no gur or sugar should be manufactured from sugarcane except under, and according to, the conditions specified in a license issued in that behalf. I do not see how the provisions of that act conflict with the provisions of the present act. That Act in no way restricts the power given to the Government by the present Act to impose cess on sugarcane entering into a factory. The remaining Act on which the learned Advocate relied, viz. the Industries Development and regulation act lxv of 1951 is not also, in my opinion, in any way repugnant to the provisions of the present Act. It only empowers the Government to exercise its control in respect of the industries specified in the schedule to the said Act. The power to impose cess given by the Act in question is not in any way hit by, or is repugnant to, the provisions of the Industries Development and Regulation Act, 1951. In my opinion, therefore, in none of the Acts to which the learned Advocate referred in his argument there is any such repugnancy as is contended by him.

8. The next ground urged by the learned Advocate for the petitioner was that the Mysore legislature had no legislative competency to pass the present Act. His contention was that the subject-matter of the present Act does not come either within the State laws or in the concurrent list. It should be remembered that, in order to determine the competency of the legislature to levy tax under this Act we have to examine the provisions of the Government of India Act, 1935. One of the items mentioned in the provincial Legislative List in Schedule VII of the Government of India Act and on which the provincial legislature can legislate is "cess on the entry of goods into a local area for consumption, use or sale therein" (Item 49 of the said list). It is therefore clear that the Mysore Legislature had the power to impose by legislation cess on the entry of goods into a local area for consumption, use or sale therein. What the learned Advocate for the petitioner contended before us was that the cess imposed by s. 14 of the present act is not a cess imposed "on the entry of goods into any local area" but is a cess "on goods brought into an area specified in a notification". The argument of the learned Advocate for the petitioner is that the provincial legislature could only impose a cess "on the entry of goods imported into a local area", that is to say, cess on goods "as and when they enter a local area" but cannot impose a cess on goods already brought into an area. I am unable to accept this contention of the learned Advocate for the petitioner. The tax is to be levied on the entry of the goods. That, to my mind, implies that the goods which have entered are to be taxed. It does not mean, as the learned Advocate contended, that the goods in question are to be taxed only as and when they enter and after the goods have entered the same cannot be taxed. This, in my opinion, is not a possible view to take. Tax is to be levied "on the entry of the goods", not "as and when they enter" into a local area. In my opinion, the Provincial Legislature has power to impose cess on goods which have entered into a local area under Item 49 of the Provincial Legislative List in Schedule VII of the Government of India Act, 1935. That being my view, this contention of the learned Advocate for the petitioner fails.

9. The next ground urged by the learned Advocate for the petitioner was that by the notification in question cess had to be levied on sugarcane crushed by the Hospet Sugar Factory for the season 1955-56 and not on sugarcane as such entering into the said factory. It was argued that section 14 authories a cess to be levied on sugarcane as such and not on sugarcane crushed. The short answer to this contention seems to me to be that when it is said "sugarcane crushed" it means "sugarcane brought and crushed". The notification, if read along with S. 14 of the Act, makes the position clear. In other words, cess is levied on all sugarcane which had been brought into the factory and which had been crushed during the said crushing season.

10. The last contention of the learned Advocate for the petitioner was that the Act is discriminatory and offends the provisions of Article 14 of the Constitution. He contended that the Act leaves it open to the Government to decide which area should be taxed and from which person or persons the tax should be collected. Besides, the Government was entitled, by virtue of sub-section 3 of the said section, to remit in whole or in part any cess paid or payable under the said section, in respect of any sugarcane specified in such order. The learned Advocate urged that the section leaves a wide discretion to the Government without laying down any principle on which the said discretion could be exercised. In other words, there is no objective test which would guide the Government in coming to a decision on any of the matters mentioned in the said section. The learned Advocate mainly relied on the decision of the Supreme Court in State of West Bengal v. Anvar Ali Sarkar, AIR 1952 SC 75 (H) and contended that unles the Act lays down a principle on which the Government could exercise its discretion, the Act becomes discriminatory and offends the provisions of Art. 14 of the Constitution. It appears that subsequent to the said decision of the Supreme Court in Anvar Alis case (H), there have been two more decisions by the said Court viz. cases reported in Kathi Raning Rawat v. State Of Saurashtra AIR 1952 SC 123 (I) and Kedar Nath Bajoria v. State Of West Bengal AIR 1953 SC 404 (J) and the result of these three decisions, as pointed out by Chief Justice Raja-mannar in a case decided by the Madras High Court in Globe Theatres Ltd. v. State of Madras, AIR 1954 Mad 690 (K), is that, if the policy and object of the Act can be discovered within the four corners of that Act including the preamble and discretion is vested in the Government to make a selection in furtherance of that policy and object for the application of the Act, then the provision conferring such a power is not void as offending against Article 14 of the Constitution. It has therefore to be seen whether or not in this Act the policy and object of the enactment have been sufficiently indicated so as to enable the Government to exercise the power conferred by S. 14 of the Act consistently with, and in furtherance of, such policy. I have already referred to the preamble of the Act and other material provisions thereof. The object and policy of the Act, in my opinion, have been sufficiently indicated by the preamble and by the provisions thereof. It is an Act to provide for licensing of sugar factories and regulating the supply and prices of sugarcane used in such factories and other incidental matters. That being the object and policy of the Act in question, any action which the Government would take under S. 14 of the said Act must be in consonance with, and in furtherance of, the said object. It is not, as mentioned in the said Madras case, an unguided and arbitrary discretion given to Government. If the discretion is abused in any particular case, that is to say, if the action of the Government does not happen to be consistent with the policy and object laid down in the Act, such an action would undoubtedly be a discriminatory one and can be challenged and declared void under Art. 14. That is the safeguard against any arbitrary and unreasonable conduct of the Government in exercising its powers under the said section. Shortly put, the Government must act in accordance with the object and the policy laid down in the said Act and any action contrary thereto would be void under Art. 14 of the Constitution. It has not been argued before us that the present notification of the Government is not in consonance with, or in furtherance of, such policy and object laid down by the Act. That being so, this contention of the learned Advocate for the petitioner must also fail.

11. In the result, therefore, all the grounds urged in support of this petition fail and the petition is dismissed with costs.

12. K. S. HEGDE J. : I agree. Petition dismissed. AIR 1958 MYSORE 70 (VOL. 45, C. 17) "M. Parmanand, v. Addl. I.-T. Officer" MYSORE HIGH COURT Coram : 2 S. R. DAS GUPTA, C. J. AND A. R. SOMNATH IYER, J. ( Division Bench ) M. Parmanand, and another, Petitioners v. Addl. Income-tax Officer, Bengalore, Respondent. Writ Petns. Nos. 134 and 135 of 1955, D/- 6 -11 -1957. (A) Income-tax Act (11 of 1922) (as amended by S.19 of Act 25 of 1953), S.35(5) - INCOME-TAX - Mistake in assessment relating to period prior to 01-04-1952 - Assessment completed after 01-04-1952 Power of I. T. Officer to correct. The power given by the provisions of the amending act, to the Income-tax Officer is to correct a mistake in an assessment. If at the time when the order of assessment was made the law gave him power to correct such mistake then he can do so. The question as to what was the year of assessment in respect of which the assessment order is made becomes immaterial for the purpose of determining Income Tax Officers power to correct mistake in his assessment. The assessee is bound to disclose all his assets and all his income and the Income Tax Officer has to make a correct assessment. If the income tax officer has not included in the said assessment the share of the assessee in certain profit or loss and if at the time when he made the assessment he was vested with the power to Include the same at any time within the period mentioned in the Act, then he can exercise that power and rectify the mistake irrespective of the question as to the year of, assessment. (S) AIR 1955 Bom. 80 and AIR 1957 Mad. 719 and AIR 1957 And. Pra. 159, Rel. on. AIR 1953 S. C. 439, Expl. and Disting. (Para 6) (B)Income-tax (Amendment) Act (25 of 1953), S.19 - INCOME-TAX - CONSTITUTIONALITY OF AN ACT - Constitutionality - Taxation law Constitution of India, Art.14 - Income-tax Act (11 of 1922), S.35 (5). Section 19 of the Amending Act does not violate Art. 14 of the Constitution and is not void on that ground : (S) AIR 1955 S. C. 191, Applied. (Paras 9, 10) Anno : AIR Com. Const, of India, Art. 14, N. 17. CASES REFERRED : Paras (A) AIR 1953 SC 439 (V 40) : 1951-20 ILR 572 5 (B) (S) AIR 1955 Bom 80 (V 42) : ILR (1954) Bom 971 6 (C) AIR 1957 Mad 719 (V 44): 1957-2 Mad LJ 191 6 (D) AIR 1957 Andh Pra. 159 (V 44) : 1956 Andh WR 243 6 (E) (S) AIR 1955 SC 191 (V 42) : 1955 Cri LJ 374 8 G. S. Ullal, for Petitioners, D. M. Chandrasekhar, for Advocate-General, for Respondent. Judgement S. R. DAS GUPTA, C. J. :- There is only one point raised in these two petitions and it arises in this way. The petitioner in W. P. No. 134 of 55 is the son and the petitioner in W. P. No. 135 of 55 is his father. Both of them were partners in a firm known as Chandiram Brothers" dealing in Silk goods at Bangalore. The son was assessed on 31-3-1954 and the father was assessed on 30-12-1954, in respect of their income for the assessment year 1950-51. In the order of assessment, which was made under Sec. 23 (3) of the Indian Income tax Act, it was stated that the assessment was made subject to revision under Sec. 35 of the Income Tax Act on determination of the correct share of income in the firms accounts. Thereafter on 29th March 1955 the firm was assessed, and the total income assessed was Rs. 93,461/-. On such assessment it was found that the previous assessments of the petitioners were less than what they should have been, and thereupon the Income Tax Officer, purporting to act under Sec. 19 of the Indian Income Tax (Amendment) Act, 1953 gave notices to the petitioners asking them to appear before him, to show cause as to why the mistakes made in the assessment order already made should not be rectified. The Income Tax Officer did rectify the mistake on 23-8-1955. The present petitions have been filed challenging the jurisdiction of the Income tax officer to make the said rectifications.

2. It would be necessary at this stage to set out the relevant provisions of the Indian Income tax Act. Sec. 35 of the Indian Income tax Act as it originally stood and which empowered the income-tax authorities to correct mistakes which were apparent on the face of it inter alia provided as follows : "The Commissioner or appellate Assistant Commissioner may, at any time within four years from the date of any order passed by him in appeal or, in the case of the Commissioner in revision under Sec. 33-A and the Income Tax Officer may, at any time within four years from the date of any assessment order or refund order passed by him on his own motion rectify any mistake apparent from the Tecord of the appeal revision assessment or refund as the case may be, and shall within the like period rectify any such mistake which has been brought to his notice by an assessee." 3.Sec. 19 of the Indian Income Tax (Amendment) Act (Act XXV) of 1953 which came into force on 1st April 1952, inter alia provided as follows : "In Sec. 35 of the principal Act, after sub-s. (4), the following sub-section shall be inserted, namely: (5) Where in respect of any completed assessment of a partner in a firm it is found on the assessment or re-assessment of the firm or on any reduction or enhancement made in the income of the firm under Sec. 31, Sec. 33, Sec. 33-A, Sec. 33-B, Sec. 66 or Sec. 66-A that the share of the partner in the profit or loss of the firm has not been included in the assessment of the partner or, if included, is not correct, the inclusion of the share in the assessment or the correction thereof, as the case may be, shall be deemed to be a rectification of a mistake apparent from the record within the meaning of this section and the provisions of sub-s. (1) shall apply thereto accordingly, the period of four years referred to in that subsection being computed from the date of the final order passed in the case of the firm.

4. Thus S. 19 of the amending Act introduced a further provision to Sec. 35 of the principal Act. The Income tax Officer purported to act under this section. The contention of the petitioners before us is that the Income Tax Officer had no such power.

5. The grounds on which the said contention was based are two-fold. In the first place, it was argued before us that the power given to the Income Tax Officer to correct mistakes under the said provisions of the amending act can be exercised only if the assessment year in question was after 1st April 1952. In other words, it was contended that if the assessment year relates to a period prior to 1st April 1952, then the Income Tax Officer has no power to correct the mistakes under the said provisions of the amending act. In this case the assessment year was 1950-51. The Act came into force on 1st April 1952, and that being the position it was contended that the assessment, although it was made after the Act came into force, related to a period prior to the date when the said Act came into force i.e. 1st April, 1952; and in such a case the said provisions of the amending act would not apply and the income tax authority will have no power to correct the mistakes referred to therein. In suport of that contention the learned Advocate for the petitioners relied on the observations made by their Lordships ot the Supreme Court in Commr. of Income Tax, West Bengal v. Isthmian Steamship Lines, 1951-20 ITR 572: (AIR 1953 SC 439) (A), namely, that in income tax matters the law to be applied is the law in force in the assessment year unless otherwise stated or implied. It was contended by the learned Advocate for the petitioners that in the Assessment year in question the amending Act was not in force and, therefore, the provisions of the amending act cannot be applied to the assessment made in respect of that year. 6.Before I deal with this contention of the learned Advocate for the petitioner I should mention that some of the other High Courts took a contrary view on this point. In Bombay Dyeing and Manufacturing Co., Ltd. v. M. K. Venkatachalam, (S) AIR 1955 Bom 80 (B), their Lordships of the Bombay High Court came to the conclusion that the test which must be applied for the purpose of application of Section 35 is what was the law when the order of assessment was made. The same view was also taken by the Madras High Court in S. K. Habibullah v. The Income Tax Officer, AIR 1957 Mad 719 (C) and by the Andhra Pradesh High Court in Lakshminarayana Chetty v. First Additional Income Tax Officer, AIR 1957 And Pra :159 (D). In my opinion, the view taken by these High Courts on tins point is the correct view to take. The power given by the provisions of the amending act to the Income-tax Officer is to correct a mistake in an assessment. If at the time when the order of assessment was made the law gave him power to correct such mistake then he can do so. The question as to what was the year of assessment in respect of which the assessment order is made becomes to my mind immaterial for the purpose of determining Income Tax Officers power to correct mistake in his assessment. The assessee is bound to disclose all his assets and all his income and the Income Tax Officer has to make a correct assessment. If the Income tax officer has not included in the said assessment the share of the assesseee in certain profit or loss and if at the time when he made the assessment he was vested with the power to include the same at any time within the period mentioned in the Act then he can exercise that power and rectify the mistake irrespective of the question as to the year of assessment.

7. In the Supreme Court case referred to by the learned Advocate for the petitioners, the assessee claimed that the unabsorbed depreciation at the end of the year 1938-39 should be deemed part of the depreciation allowance for the subsequent year, that is, 1939-40, and should be allowed to be further carried forward under Section 10 (2) (vi) of the Income Tax Act, 1922. In the assessment year in question the assessee had that right and their Lordships of the Supreme Court accepted the said contention of the assessee on the ground that the law to be applied is the law in force in the assessment year unless otherwise stated or implied. As for the proposition that in income-tax matters the law to be applied is the law in force in the assessment year unless otherwise stated or implied there cannot possibly be any manner of doubt. But the question in this case is somewhat different. The question in this case is not whether the assessment can be justified, and for that purpose the law to be applied must be the law prevalent at the date of assessment, but the question is whether a mistake in the assessment can be rectified. For that purpose the law to be applied is the law which was in force at the date of assessment. The question as to what was the law in the assessment year becomes irrelevant for the present purpose. In this case the Income tax authorities at the date of assessment had such power and therefore, they could exercise it irrespective of the question as to whether or not in the year of assessment it had such power. The relevant point of time to be taken into consideration for the purpose of deciding this matter is the time when the assessment is made and not the year of assessment. That being so, I am clearly of the opinion that this contention of the learned Advocate for the Petitioners must fail.

8. The second contention urged before us was that the amending Act violates the provisions of Article 14 of the Indian Constitution, in as much as it makes a discrimination for which there is neither an objective test nor a rational relationship to the object to be achieved by the enactment. Shortly put the contention of the learned Advocate for the Petitioners on this point was as follows: By the provisions in question made in the amending Act a discrimination has been made between persons whose assessment have already been completed prior to 1st April 1952 and the persons whose assessments although also of the same year have not been completed before that date. It was urged before us that between two persons, both of whose year of assessment is the same, there is a discrimination based merely on that fact that in the case of one the assessment has already been completed prior to first April 1952 while in the case of the other the assessment has not been completed. This distinction, it was contended in the first instance, has no objective basis, and in the second instance has no rational relationship to the object achieved. The learned Advocate for the petitioners relied on the decision of the Supreme Court reported in Budhan Choudhry v. State Of Bihar, (S) AIR 1955 SC 191 (E) wherein Mr. Justice S. R. Das (as he then was) observed as follows: "It is now well established that while Art. 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that the differentia must have a rational relation to the Object sought to be achieved by the statute in question." With regard to the second condition his Lordship further observed that what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. The learned Advocate for the Peittioner contended before us that neither of these two conditions has been satisfied and therefore, the Act in question offends against the provisions of Art. 14 of the Constitution and should be held to be void. I am unable to accept this contention of the learned Advocate for the Petitioners.

9. In the first place, it seems to me to be clear that there is an objective test which deter mines the basis of the classification made in the said Act. The objective test is whether or not the assessment of persons in question has already been completed by 1st April, 1952. The classification has been made on that basis and it is quite possible by applying this objective test to determine the class. In my opinion this condition has been fulfilled.

10. Coming to the second condition on which the learned Advocate for the petitioners laid more emphasis in his arguments before us, it seems to me that the Act in question also satisfies the second condition which has been laid down by their Lordships of the Supreme Court in the case mentioned above. The difference, in my opinion, has a reasonable relationship to the object to be achieved. There is a nexus to use the expression of his Lordship between the basis of classification and the object under consideration. In other words, it is not a mere fanciful classification. There is a justifiable reason for the difference which has been made between a person whose assessment has already been completed by the time the Act came into force and the person whose assessment has not been completed. The person whose assessment has been completed is entitled to a sense of security by the fact that it is complete, the Act in question not having come into force at the date when the said assessment was completed. There is thus justifiable reason for exempting such persons from the operation of this Act; but the persons whose assessment has to be made after the Act comes into force cannot claim the same justification for exemptions. It should be noted that the power which has been given to the authority concerned is after all the power to rectify a mistake in the assessment. It is not a power to leavy fresh or excess tax, and there is no increase in the taxing liability of the assessee. In my opinion, the difference which has been made between the classes of persons mentioned has a rational relationship to the object which the Act wanted to achieve. In that view of the matter I am of the opinion that the contention of the learned Advocate for the Petitioners must fail on both these grounds.

11. In the result, these two Petitions are dismissed, with costs (Advocates fee Rs. 250/-).

12. SOMNATH IYER, J. : I agree. Petitions dismissed. AIR 1958 MYSORE 73 (VOL. 45, C. 18) "S. B. Javaregowda v. Lakkigowda" MYSORE HIGH COURT Coram : 2 A. R. SOMNATH IYER AND K. S. HEGDE, JJ. ( Division Bench ) S. B. Javaregowda, Appellant v. Lakkigowda and others, Respondents. Misc. Appeal No. 78 of 1957, D/- 30 -10 -1957, against order of Sub. J., Mysore, D/- 20 -6 -1957. (A)Mysore Town Municipalities Act (22 of 1951), S.12(2) - ELECTION - MUNICIPALITIES - Elections - Residence. Municipalities. Mysore Town Municipalities Act (22 of 1951), S.12(2). It is not impossible for a person to reside in more places than one. It is true that the High Court cannot go into the correctness or otherwise oil the finding of the Election Commissioner on a question of fact; but it is open to it to consider whether the finding arrived at is sufficient to meet the requirements of law. (Para 3) (B) INTERPRETATION OF STATUTES - PREAMBLE - Interpretation of Statutes - Decisions! under different statutes. Civil P.C. (5 of 1908), Pre.. In an election petition the parties are not agitating a common law right nor is it an action in equity. The rights of the parties are those conferred by the concerned statutes, nothing more or nothing less. Hence, cases arising under somewhat different statutes will not be of substantial assistance unless the relevant provisions are in pari materia with the provisions concerned. (Para 11) Anno : AIR Com. C. P. C. Pre. N. 7. (C) Mysore Town Municipalities Act (22 of 1951), S.13, S.14 - ELECTION - MUNICIPALITIES - Elections - Powers of Election Tribunal. Municipalities Mysore Town, Municipalities Act (22 of 1951), S.13, S.14. The Election Tribunal has no jurisdiction to go behind the electoral roll and decide whether the particular voter has been validly enrolled or not. Jurisdiction of the Election Tribunal at best extends to the consideration of the validity or otherwise, (a) of the acceptance or rejection of the nomination and (b) of the holding of the election. It does not extend to a consideration of the correctness or otherwise of the electoral roll. (Para 9) CASES REFERRED : Paras (A) AIR 1954 SC 520 (V 41) : 1955 SCR 267 12 (B) AIR 1938 Bom 377 (V 25) : ILR (1938) Bom 515 13 (C) 2 Dhobias Indian Election Cases 24 14 (D) AIR 1925 Mad 160 (V 12) : 85 Ind Cas 322 14 (E) AIR 1957 Nag 63 (V 44) : ILR (1956) Nag 251 14 (F) AIR 1954 SC 653 (V 41) : ILR (1955) Mys 109 15 (G) AIR 1957 Mys 87 (V 44) : ILR (1957) Mys 27 15 M. S. Ranganathan, for Appellant; E. S. Venkataramiah, for Respondents. Judgement K. S. HEGDE, J. :- The appellant before us was the respondent, in Miscellaneous Case No. 54 of 1956 on the file of the Subordinate Judge, Mysore, who tried this case as Election Commissioner under S. 20 of the Mysore Town Municipalities Act, 1951 (Act XXII of 1951). The said petition was filed by the respondents who claimed to be persons qualified to vote at the election held on 8-3-1956 to the Saligrama Town Municipality. The respondent in that petition and the appellant herein was declared elected to the VIth Division of the said Municipality. The election was duly notified in the Mysore Gazette on 10-5-1956.

2. The validity of the election of the appellant was challenged on as many as 7 grounds. The learned Election Commissioner rejected 6 out of the 7 grounds urged but set aside the election on the ground that the appellant was not duly qualified to be a voter and as such could not validly offer himself as a candidate in the said election. The appellant questions the correctness of this decision. From the arguments advanced in the course of the hearing three points emerge for consideration: (1) Whether on the facts found by the learned Election Commissioner it is established that the appellant was not duly qualified to be a voter for want of necessary residential qualification as required by S. 12(2) of the Mysore Town Municipalities Act which will hereinafter be called the Act. (2) Is the electoral roll as finally published final and conclusive, and not open for examination and scrutiny by the Election Commissioner. (3) Whether on a proper reading of S. 14 and S. 20 of the Act, the only grounds on which an election could be set aside by the Election Commissioner are those mentioned in S. 20(4) of the Act. First Point:

3. The appellant contends before us that the findings of the Commissioner are not sufficient to hold that he did not possess the residential qualification required by S. 12(2) of the Act to be enrolled as a voter in Exhibit P-6. Section 12(2) of the Act is as follows: "No person shall be included in such electoral roll as qualified to vote at such election unless he has resided in such division for one hundred and eighty days in the aggregate in the official year preceding that in which the electoral roll is published," (the underlining (here into is mine). The words "Official year" are defined in S. 3(14) as meaning the year commencing on the 1st day of April. We have to consider whether the findings of the learned Election Commissioner are sufficient to come to the conclusion that the appellant had not resided in the division in question for 180 days in the aggregate in the official year preceding that in which the electoral roll is published. Nowhere in his order the learned Election Commissioner comes to the conclusion as to what exactly is the official year preceding nor does he arrive at the conclusion that the appellant had not resided in the division for 180 days in the aggregate in the said year. The learned Election Commissioner never directed his enquiry to these questions. On a reading of the order, it is clear that the oral evidence adduced by the respondents in this appeal did not commend itself to the learned Election Commissioner but he based his conclusions mainly on the documents produced before him. From these documents his conclusions are as follows: "The above documentary evidence unmistakably indicates that the respondent is in fact residing at Hosa Agrahara long prior to the relevant period". This finding is certainly insufficient to hold that the appellant was not residing in the division in question for 180 days in the aggregate in the official year preceding that in which the electoral roll is published. It is not impossible for a person to reside in more places than one. More than that what is required to be considered is whether in the aggregate he resided in the division for 180 days in the official year preceding that in which the electoral roll is published. The learned Election Commissioner had not placed before himself the requirements of the section and consequently he totally missed the point that he had to decide. No doubt in a general way he found that the appellant was not residing in the Saligrama Town during the relevant period. But there was no finding as to what was the relevant period. The appellant is not a stranger to this Town is clear from the fact that he was the President of the said Municipality during the term preceding to the election in dispute. It is true that this Court cannot go into the correctness or otherwise of the finding of the learned Election Commissioner on a question of fact; but it is open to us to consider whether the finding arrived at is sufficient to meet the requirements of law. I have examined the documents produced in this case on which the learned Election Commissioner has placed reliance. These documents are insufficient to establish that at the material time the appellant did not reside in the division in question for the required period to be entitled to be enrolled in Exhibit P-6. Second Point:

4. The second contention of the appellant is that the learned Election Commissioner had no jurisdiction to consider the question whether he had been properly enrolled as voter in Exhibit P-6 or not. According to him the electoral poll is not open to scrutiny by the Tribunal which enquires into the election petition. In order to properly appreciate this contention, it is necessary to place before ourselves certain provisions of the Act and the Rules framed thereunder. Section 11 of the Act makes provision for carving out the territorial divisions of the Municipality. Section 12 lays down the qualification for enrolment in the electoral roll. Section 13 stipulates the period during which the electoral roll will be in operation. Section 12 reads as follows: 12(1) Every person of either sex who has attained the age of 21 years in the official year preceding that in which the electoral roll is published and who is not otherwise disqualified under this Act shall be included in the electoral roll as qualified to vote at the election for any of the divisions referred to in sub-section (1) of S. 11. (2) No person shall be included in such electoral roll as qualified to vote at such election unless he has resided in such division for one hundred and eighty days in the aggregate in the official year preceding that in which the electoral roll is published: Provided that a person shall not be deemed to be disqualified under this sub-section if he is employed in the town municipality and non-residence in the division for the period aforesaid is due to his absence on leave out of the State. Explanation: For the purpose of this sub-section, no person shall be deemed to reside in more than one division. Section 13 reads as follows: (1) When, in accordance with the rules made under clause (b) of sub-section (2) of S. 208, a list of voters has been prepared or revised, a copy thereof signed by such person as may bedesignated in this behalf in the rules aforesaid, shall be the municipal electoral roll. The electoral roll shall come into force from the date of its publication and shall continue in force for a period of four years or for such less period, if any, as the Government may by order direct in any case, and after the expiration of such period, a new electoral roil shall be published: Provided that: (a) in the case of an election held after an electoral roll has ceased to have force and before the publication of the new electoral roll, the old electoral roll shall continue to operate as the electoral roll; (b) at any time any person whose name is not in the electoral roll and who claims to have it enrolled may apply to the prescribed authority to enter his name therein and the prescribed authority shall enter in the electoral roll the name of every such person whose claim is proved to its satisfaction; (c) the prescribed authority shall at any time expunge from the electoral roll the name of every person proved to its satisfaction to be dead or no longer to possess the qualification of a voter and may likewise correct any clerical error or omission in the electoral roll after affording the person affected an opportunity of being heard; (d) no change in the electoral roll shall be made under provisions (b) and (c) within one month preceding the date fixed for an election. (2) At every election of councillors, every person enrolled in the muincipal electoral roll as for the time being in operation under subsection (1), shall be deemed to be entitled to vote, and every person not so enrolled shall be deemed to be not entitled to vote. (3) A person shall not be qualified to be elected as councillor unless he is enrolled in the municipal electoral roll and a person who is aready a councillor shall not be qualified to be a candidate at a bye-election held before his term of office as councillor, expires.

5. Section 14 sets out certain disqualifications for becoming a councillor. The disqualifications so enumerated make no reference to residential qualification. The only qualification laid down in the said Act is that he should have been enrolled as a voter in the Municipal Electoral Roll.

6. Rules have been framed providing for the preparation of the electoral rolls. The relevant rules are: Rule 6 to R. 10. These Rules | have been published on 25-9-1951. Rule 6 lays down that the electoral roll shall be published at the Municipal Office, in the Taluk Office and in such other conspicuous places in each division as the Returning Officer may deem fit. Rule 7 says that any person whose name is not entered in the roll or is entered in an incorrect place or manner or with incorrect particulars, or any person whose name is entered in the roll and who objects to the inclusion of his own name or the name of any other person in the roll, may prefer a claim or objections to the Returning Officer. Sub-rule (2) of rule 7 provides that all such claims and objections shall made in writing and not later than three O clock in the afternoon of the 14th day from the date of publication of the electoral roll; claims and objections received after that time shall be rejected by the Returning Officer. Sub-rule (3) provides for the production of the documents on which the claimant or objector relies. Rule 8 provides for enquiry into claims and objections. I shall quote in detail Rules 8 to 10 as they are important for the decision of this case. Rule: 8(1) The Returning Officer shall hold a summary enquiry into the claims or objections preferred and shall record his decision in writing. (2) For the purpose of the Returning Officers enquiry, the roll as published, shall be presumed to be correct and complete until the contrary is proved. (3) No party shall be represented by any legal practitioner at any proceeding under the provisions of this rule. (9) The Returning Officer shall amend the roll in accordance with his decisions on all claims and objections. He may also on his own motion order the correction of any clerical error or printing mistakes therein. (10) The orders passed by the Returning Officer under rules 8 and 9 shall be final. The finality provided under Rule 10 does not merely relate to the decision arrived at by the Returning Officer on a summary enquiry into the claims and objections preferred; it includes all orders passed under rules 8 and 9.

7. In the light of the above provisions we have to consider whether the Election Tribunal has jurisdiction to go behind the electoral roll and decide whether the particular voter has been validly enrolled or not.

8. The findings of the learned Election Commissioner on this point are lacking in clarity. He says "that so far as this aspect is concerned, even at the outset it can safely be stated that according to law on the point when once the name of a person is on the roll and the Returning Officer has accepted it there could be no revision by him or any other authority so far as the said inclusion is concerned. In other words the decision of the Returning Officer with regard to the inclusion of the name of the person in the concerned voters list has to be deemed as final and conclusive. The authorities even go to the extent of pointing out that even in cases where there is improper acceptance of the nomination of the candidate, the inclusion of his name in the electoral roll that by itself will not be sufficient to make the election void on the said ground. But in the present case it is contended that the respondent has a fundamental disability to stand as a candidate for the election that is, on account of his non-residence in the locality." From the foregoing I take it that the learned Election Commissioner opines that though the electoral roll qua electoral roll is final and conclusive yet the person who intends to be a candidate should possess in addition to his name being in the electoral roll the residential qualification required by the Act. If this is the view of the learned Election Commissioner, it is certainly incorrect. The only qualification that is required by the Act and the Rules framed thereunder is the one laid down in S. 13(3) i.e. to be enrolled in the Municipal Electoral Roll. The want of residential qualification is not made a disqualification under S. 14 of the Act. Hence if the electoral roll is final qua electoral roll and if the appellants name has been entered in that roll rightly or wrongly, he could be duly nominated as a candidate and he is qualified to be elected as councillor unless he possesses or incurs any of the disqualifications set out in S. 14 of the Act.

9. The learned Election Commissioners view that the Election Tribunal has jurisdiction to examine the correctness or otherwise of the Electoral Roil for the purpose of deciding whether the person is duly nominated or not is unsustainable. From the scheme of the Act and Rules as set out hereinabove, it is clear that there are two clear stages in an election proceeding. First there is the preparation of the electoral roll. On a proper reading of Ss. 12 to 14 and Rules 6 to 10 it is clear that the Legislature intended that the preparation of the electoral roll should be made final and conclusive before the elections are held. The second stage is the stage of filing nominations and holding of the elections. Jurisdiction of the Election Tribunal at best extends to the consideration of the validity or otherwise (a) of the acceptance or rejection of the nomination and (b) of the holding of the election. It does not extend to a consideration of the correctness or otherwise of the electoral roll.

10. Rule 10 is not happily worded. It would have been better to state that the electoral roll finally published is final and conclusive. But I have no doubt in my mind that this was the intention of the Legislature. The Act and the Rules that we are called upon to consider bear substantial resemblance to the corresponding Acts and Rules in the other States. Decisions under those Acts have also taken the view that the correctness of the electoral roll does not come up for consideration in an election petition.

11. On behalf of the respondents reliance has been placed on a number of decisions to show that the Election Tribunal can go behind the electoral rolls and examine its correctness. Before I consider these decisions it is necessary to emphasize that in an election petition the parties are not agitating a common law right nor is it an action in equity. The rights of the parties are those conferred by the concerned statutes, nothing more or nothing less. Hence cases arising under some what different statutes will not be of substantial assistance unless the relevant provisions are in pari materia with the provisions with which we are concerned.

12. Reliance was placed on the decision of the Supreme Court in the case reported in Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520 (A). This case was cited as an authority for the proposition that the Election Tribunal ought to consider whether the candidate nominated possessed the qualification required by the statute. In that case their Lordships were considering the scope of S. 100 (2) (c) of the Representation of the People Act. They came to the conclusion that as per that section the possessing of the qualification prescribed by the Constitution is a necessary pre-requisites otherwise the election is liable to be set aside. But no such qualification is prescribed by the Act nor is there any provision in the Act or the Rules corresponding to S. 100(2) (c). Hence the decision in the said case is of no assistance to the respondents.

13. The next case on which reliance was placed by the learned Advocate for the respondent is the case of Vinayak Vasudeo v. Gopal Chimnaji, AIR 1938 Bom 377 (B). But the relevant provisions of the Bombay Local Boards Act are somewhat different. His Lordship in his judgment has clearly brought out the distinguishable features. His Lordship at page 380 says: "It has been conceded by the learned Counsel on behalf of the appellant that there is no express provision in this or any other Section of the Act according to which the names of the persons appearing in the list are to be treated as conclusive in the sense that they cannot be challenged after there has been a final publication of the list of voters; and it is contended that looking to the scheme of the Act as a whole, that must be the intention of the Legislature. All that I can say is that, even if that was the intention of the Legislature, the words of the relevant Sections from which alone it is to be gathered, are entirely inadequate to convey such intention, and that it could have been positively expressed by the provision, as we find in some other Acts relating to elections of public bodies, that once the final list ofi voters was published after the objections are duly heard, it is to be treated as final and conclusive, and that it was not open to any person to challenge it thereafter. But I do not find any such intention even by implication in these Sections." In my judgment, the provisions of the Mysore Town Municipalities Act do afford material to come to the conclusion that the Legislature intended the list to be final and conclusive.

14. Both the lower Court as well as the learned counsel for the respondent placed certain reliance on the decision of the Election Tribunal in the case of Sir K. G. M. Faroqui v. Mohammad Habib Ullah, as reported in 2 Dho-bias Indian Election Cases 24 (C). This case does not help the respondent. The Tribunal in that case held that one of the qualifications required by a candidate is that he should be entitled to vote. That was the required qualification. The Tribunal interpreted these words "as being lawfully entitled to vote". In the present case the only qualification required as I have said before is that the candidates name should be in the Electoral roll. Each case will have to be decided on the basis of the relevant statute. The conclusion that I have arrived at though based on the relevant provisions of the Act and the Rules framed thereunder, find support from the decision of the Madras High Court in case reported in R. V. Palanisami Pillai v. R. Srinivasaranga-chariar, AIR 1925 Mad 160 (D) and of the Nagpur High Court in the case reported in Vithaldas Kunwarji v. Sadanand, AIR 1957 Nag 63 (E). Third point: 15.It is urged on behalf of the appellant that on a proper reading of S. 14 and S. 20 of the Act the only ground on which the election can be set aside by the Election Commissioner is that mentioned in S. 20 (4) of the Act. The arguments proceed thus: Section 14 (1) enumerates disqualifications which debar a person from seeking election. Section 14 (2) details the disqualifications which may be incurred during the terms for which the candidate has been elected or appointed. Section 14(1) and (2) further provide that whether a person is disqualified from seeking election or incurs disqualification after election his seat shall be either deemed to be vacant or shall become vacant as the case may be. Section 14 (3) requires that if any question or dispute arises whether a vacancy has occurred under this Section, the orders of the Government shall be final for the purpose of deciding such question or dispute. From the wording of this sub-section we are asked to conclude that all questions relating to the disqualifications are matters for determination by the Government under sub-s. (3) of S. 14 and none of them are matters for adjudication by the Tribunal enquiring under S. 20. It is further contended that the Election Commissioners jurisdiction is limited to enquiring into the corrupt practices set out under S. 20 (4). In support of this argument reliance is placed on the decision of the Supreme Court in the case Ravanna Subbanna v. G. S. Kagge-erappa, reported in AIR 1954 SC 653 (F). In that case their Lordships had to consider the scope of S. 14 and S. 20 of the Act. Undoubtedly the observations of his Lordship B. K. Mukherjea J. (as he then was) is of great assistance to the appellant but it must not be overlooked that weighty as these observations are his Lordship very specifically said that it would not be necessary for him to give any final opinion on the relative scope of S. 14(3) and S. 20 (5). On behalf of the respondents it is urged that though Ss. 14 and 20 are not happily worded. S. 20(5) read with explanation confers on the Tribunal power to investigate into all disqualifications falling under S. 14 (1). The learned Counsel contends that the scope of sub-s. 3 of S. 14 must be limited to the disqualifications incurred under sub-s. (2) of S. (14) and should not be extended to disqualifications possessed under sub-s. (1) of S. 14. Otherwise according to him sub-s. (5) of S. 20 would become meaningless. He relies on the decision of this High Court reported in Narasingappa v. Siddappa, AIR 1957 Mys 87 (G). Their Lordships in the said case considered the respective scope of S. 14(3) and S. 20(5). They had before them the observations of their Lordships of the Supreme Court in Ravannas case (F). They held, that on reading of Ss. 14 and 20 together the Election Commissioner has jurisdiction to investigation into the alleged disqualification falling under S. 14 (1). All that I need say is that the question is not free from difficulty and sooner the Legislature clarifies its intention the better it is.

16. In the light of my findings on points one and two this appeal is allowed and the order of the lower Court setting aside the election is reversed and the Election Petition is dismissed with cost throughout. (Advocates fee Rs. 100). 17.SOMNATH IYER, J : I agree. Appeal allowed. AIR 1958 MYSORE 77 (VOL. 45, C. 19) "Ullal Dinkar Rao, v. M. Ratna Bai" MYSORE HIGH COURT Coram : 1 A. R. SOMNATH IYER, J. ( Single Bench ) Ullal Dinkar Rao, Petitioner v. M. Ratna Bai, Respondent. Civil Revn. Petn. No. 465 of 1957, D/- 27 -9 -1957, against order of Dist. J., South Kanara, D/- 7 -3 -1957. (A) Civil P.C. (5 of 1908), S.115 - REVISION - HOUSES AND RENTS - Court subordinate to High Court - Competency of revision. Houses and Rents. Madras Buildings (Lease and Rent Control) Act (25 of 1949), S.12B. The District Court which hears the revision petition under S. 12-B of the Act is a Court subordinate to the High Court and not a persona designata. Hence a revision under S. 115, C. P. C. against his order is competent. (Para 3) Anno: AIR Com., C. P. C, S. 115 N. 6. (B) Madras Buildings (Lease and Rent Control) Act (25 of 1949), S.11(2) - HOUSES AND RENTS - WORDS AND PHRASES - Houses and Rents - "Repair" Meaning explained Distinction between repair and reconstruction - Words and Phrases. The meaning to be given to the word repair in S. 11 (2) depends upon the context in which it occurs. A repair may require a renewal or replacement but all replacements or renewals are not necessarily repairs. There is an essential difference, in the case of a building, between a repair and a construction. While the restoration of the stability or safety of a subordinate or subsidiary part of a building or any portion of it, can, in law be considered as a repair, the reconstruction of the entirety of the sub - atter cannot be so regarded. Thus, the restoration of the entire cow-shed or the bath-room cannot be said to be in the nature of a repair within the meaning of S. 11 of the Act, though the replacement of the roof or the floor or a wall of the cow-shed or the bathroom would be a repair. (1911) 1 KB 905 and (1933) AC 368 and AIR 1952 Mad 689, Rel. on. (Paras 5, 6) (C) Madras Buildings (Lease and Rent Control) Act (25 of 1949), S.8 and S.11 - HOUSES AND RENTS - OBJECT OF AN ACT - Houses and Rents - Scope. The rights or remedies under Ss. 8 and 11 are necessarily mutually exclusive. (Para 7) (D) Madras Buildings (Lease and Rent Control) Act (25 of 1949), S.8 - HOUSES AND RENTS - Houses and Rents - Amenities - Bath-room and cow-shed. It is indisputable that a bath-room undoubtedly enhances the desirability of a house for purposes of residence and contributes to the enjoyment of the occupants. The mere fact that it might also form an indispensable need does not take away from it the character of an amenity. Likewise, to a tenant owning a cow, a cow-shed forming part of a leased building is a similar essential amenity. What is or is not an amenity, is a question to be decided on the facts of each case. (Paras 7, 8) CASES REFERRED : Paras (A) (1911) 1911-1 KB 905: 80 LJ KB 713 5 (B) (1878) 3 AC 552 5 (C) (1882) 20 Ch D 251: 51 LJ Ch 259 5 (D) AIR 1952 Mad 689 (V 39): 1952-21 ITR 191 5 (E) (1933) 1933 AC 368: 102 LJ PC 72 5 (F) (1893) 1893-2 QB 212: 62 LJ QB 583 5 (G) (1903) 19 TLR 510: 6S JP 34 5 (H) (55) 1955-2 Mad LJ (NRC) 31 (2) 7 G. K. Govind Bhat, for Petitioner; K. R. S. Karanth and K. R. D. Karanth, for Respondent. Judgement On an application made by the respondent under S. 8 of the Madras Buildings (Lease and Rent Control) Act, her landlord the petitioner was directed by the Controller to restore to the respondent the amenities of a cow-shed and a bath-room both of which had been destroyed by heavy rains in the year 1954. The finding of the Controller was that it was the continued neglect on the part of the Petitioner, who had made an unsuccessful attempt to evict the Respondent, to prevent erosion of the walls of a storm water drain, that caused the destruction of these portions of the leased building.

2. The Petitioners appeal to the appellate authority against that order failed, and his revision petition to the District Court of South Kanara under S. 12-B of the Act was also dismissed. This further revision petition is directed against the order of the District Court, under S. 115 of the Code of Civil Procedure.

3. Mr. Karanth learned Advocate for the Respondent raised a preliminary contention that this revision petition was not maintainable. His argument was that the order of the District Court dismissing the revision petition presented by the Petitioner could not be further assailed under the provisions of S. 115 of the Code of Civil Procedure. It seems to me that this preliminary objection has to fail for the reason that the District Court which heard the Petitioners revision petition under S. 12-B of the Act is a Court subordinate to this Court and not a persona designata.

4. Mr. Govind Bhatt learned Counsel for the Petitioner has contended that the Courts below were in error in regarding the cow-shed and bath-room as amenities cut off or withheld by the petitioner within the meaning of S. 8 of the Act. He contended that an amenity has to be distinguished from a necessity and that the two destroyed parts of the leased building fell within the latter category and not in the former. He also argued that in any event the Petitioner could not be accused of having cut off or withheld them after they had ceased to exist for the reason that no person could cut off or withhold what is not available or in existence.

5. In support of his argument that the destroyed portions of the building were not amenities, Mr. Bhatt relied on the provisions of S. 11 of the Act, which empowers the Controller to authorise a tenant to make, at the cost of the landlord, necessary repairs neglected to be made by the landlord. His submission was that the repairs so permitted included the replacement of the destroyed parts of the leased premises and that the only remedy of the Respondent in this case was to apply for permission to do so under S. 11 of the Act. Reliance was placed by him on Lurcott v. Wakely, (1911) 1 KB 905 (A); A. and J. Inglis v. John Buttery and Co., 1878-3 AC 552 (B): Truscott v. Diamond Rock Boring Co., (1882) 20 Ch D 251 (C) and Commissioner of Income-tax, Excess Profits Tax, Madras v. Rama Sugar Mills Ltd., Bobbili, AIR 1952 Mad 689 (D), to support his contention that a repair may be a renewal or replacement. The relevant sections of the Act read as follows : "Section 8 : (1) No landlord shall, without just or sufficient cause, cut off or withhold any of amenities enjoyed by the tenant. Section 11 : (2) If a landlord fails to make the necessary repairs to he building within a reasonable time after notice is given by the tenant, it shall be competent for the Controller to direct on application by the tenant that such repairs may be made by the tenant and that the cost thereof may be deducted from the rent which is payable by him." It seems to me that the meaning to be given to the word repair depends upon the context in which it occurs. A repair may require a renewal or replacement but all replacements or renewals are not necessarily repairs. There is, I think, an essential difference, in the case of a building, between a repair and a re-construction. While the restoration of the stability or safety of a subordinate or subsidiary part of a building or any portion of it, can, in law be considered as a repair, the reconstruction of the entirety of the subject matter cannot be so regarded. In (1911) 1 KB 905 (A), referred to with approval in Rhodesia Rly Ltd. v. Income-tax Collector, Bechuanaland, (1933) AC 368 (E), Buckley L. J. said : " Repair and renew are not words expressive of a clear contrast. Repair always involves renewal; renewal of a part, of a subordinate part. A skylight leaks; repair is effected by hacking out the putties, putting in new ones, and renewing the paint. A roof falls out of repair; the necessary work is to replace the decayed timbers by sound wood: to substitute sound tiles or slates for those which are cracked, broken or missing; to make good the flashings and the like. Part of a garden wall tumbles down; repair is effected by building it up again with new mortar, and, so far as necessary new bricks or stone. Repair is restoration by renewal, or replacement of subsidiary parts of a whole. (The underlining (here in inverted commas) is mine). Renewal, as distinguished from repair, is reconstruction of the entirety meaning by the entirety not necessarily the whole but substantially the whole subject-matter under discussion. I agree that if repair of the whole subject-matter has become impossible a covenant to repair does not carry an obligation to renew or replace. That has been affirmed bv Lister v. Lane, (1893) 2 QB 212 (F) and Wright v. Lawson, (1903) 19 TLR 510 (G). But if that which I have said is accurate, it follows that the question of repair is in every case one of degree, and the test is whether the act to be done is one which in substance is the renewal or replacement of defective parts, or the renewal or replacement of substantially the whole." In a case decided under the Income-tax Act, AIR 1952 Mad 689 (D), Satyanarayana Rao J. who followed the decision in the above case observed : "On a careful analysis of this passage of Buckley L. J. it would be seen, a renewal may be a repair or a reconstruction. Renewal is a repair if it is only restoration by renewal or replacement, or subsidiary parts of a whole. If, on the other hand, it amounts to a reconstruction of the entirety or of substantially the whole of the subject-matter it is not a repair but a reconstruction. The test, therefore, which decides the question whether a thing is a "repair" or not is to see whether the act actually done is one which in substance is a replacement of defective parts or a replacement of the entirety or a substantial part of the subject-matter a reconstruction of a wall, it was held in that case, was a repair and was covered by the obligation of the tenant who was under a covenant to repair the leasehold property. The reason given for this conclusion appears at page 927. It was held to be a "repair" because it merely restored the stability and safety of a subordinate part of the whole like replacing a new floor of a house." Applying these principles to the present case, the replacement of the roof or the floor or a wall of the cow-shed or the bath-room would be a repair but not their entire reconstruction.

6. I am, therefore unable to agree with the contention of Mr. Bhatt that the restoration of the cow-shed or the bath-room for which the respondent applied, was in the nature of a repair within the meaning of S. 11 of the Act. Nor do I find anything in the definition of the word building contained in S. 2 of the Act, to which Sri Bhatt referred, justifying a contrary view.

7. Assuming that such restoration can be considered a repair which a tenant can make under S. 11 of the Act, it does not follow that he cannot apply under S. 8, for their restoration as amenities unless it could be said that the cow-shed and the bath, cannot be regarded as amenities at all the rights or remedies under the two sections not being necessarily mutually exclusive. Mr. Bhatt has therefore strenuously urged that they are not amenities. He drew my attention to the meaning of that word contained in 3 Corpus Juris Secundum 1044 which is as follow: "Amenity: In real property law, such circumstances, in regard to situation, outlook, access to a water-course, or the like as enhance the pleasantness or desirability of an estate for purposes of residence, or contribute to the pleasure and enjoyment of the occupants, rather than to their indispensable needs; restraining the owner from doing that with and on his own property which, but for a grant or covenant, he might lawfully have done." Indeed, the above definition of an amenity far from helping Mr. Bhatt, appears to negative his contention. It is indisputable that a bathroom undoubtedly enhances the desirability of a house for purposes of residence and contributes to the enjoyment of the occupants. The mere fact that it might also form an indispensable need does not take away from it the character of an amenity. Likewise, to a tenant owning a cow, a cow-shed forming part of a leased building is I think, a similar essential amenity. It is seen from the short notes of recent cases published in Naravanan v. Appukutty, 1955-2 Mad LJ 31 (2) (H), to which Mr. Bhatt drew my attention, that Ramaswami J. appears to have taken the view that a bath was an amenity which a landlord cannot cut off or withhold.

8. What is or is not an amenity, is, it, seems to me, a question to be decided on the facts of each case. The Courts below have, on a careful consideration of the facts of this case reached the conclusion that in this case the cow-shed and the bath-room were amenities within the meaning of the Act. It does not seem to me that that finding was unjustified.

9. The implication of the finding of the Controller that the unavailability of the amenities enjoyed by the respondent was attributable to the wilful omission of the petitioner to repair the walls of the storm water drain, is that these amenities were cut off or withheld by him. I believe this finding to be well founded. That being so and having regard to the fact that the petitioner expressed his willingness before the Controller to restore those amenities for a higher rent which the respondent was willing to pay, it does not appear to me that I would be justified in disturbing in revision the concurrent decisions of the three Courts below. This revision petition is, therefore, dismissed with costs. V.S.B. Revision dismissed. AIR 1958 MYSORE 80 (VOL. 45, C. 20) "State of Mysore v. N. A. S. and Co" MYSORE HIGH COURT Coram : 2 H. HOMBE GOWDA AND M. SADASIVAYYA, JJ. ( Division Bench ) State of Mysore, Appellant v. N. A. Saravathulla and Co. and another, Respondents. Criminal Appeals Nos. 103, 104 and 105 of 1953, D/- 22 -11 -1957. (A) Mysore Sales Tax Act (46 of 1948), S.5(VI) - Mysore Sales Tax Rules, R.23(5) - SALES TAX - CONSTITUTIONALITY OF AN ACT - Sales Tax - Validity - Rule does not conflict with S.5 (vi) and is intra vires. AIR 1957 Mad 33, Dissent, from. Rule 23 (5) of the Mysore Sales Tax Rules, which pertained to the sales of hides or skins by dealers other than licensed dealers in hides or skins, does not conflict with S. 5 (vi) of the Act and is not ultra vires on that ground; AIR 1957 Mys 22 and AIR 1957 Andh Pra 408, Rel. on; AIR 1957 Mad 33, Dissent, from. (Para 4) The benefit of liability to tax at only a single prescribed point, under Cl. (vi) is not an unconditional or unrestricted benefit. The right to the said benefit being dependent on compliance with prescribed conditions and restrictions, it will be reasonable to make a distinction in the rules as between those dealers who, in order to get the benefit are prepared to comply with the prescribed restrictions and conditions, and those dealers who are not desirous of either complying with those restrictions and conditions, and those dealers who are not desirous of either complying with those restrictions and conditions or of availing themselves of the said benefit. This distinction has been achieved by classifying the dealers in hides or skins, into licensed dealers and dealers other than licensed dealers. The latter category of dealers, not being entitled to the benefit of taxation only at a single point in a series of sales would be liable to tax under S. 3. This position results from the combined effect of Ss. 3, 5 and 7 of the Mysore Sales Tax Act 1948. Sub-rule (5) of R. 23 is merely to the effect that the sale of hides or skins by this category of dealers shall, subject to the provisions of S. 3, be liable to taxation on each occasion of sale, and the sub-rule (R. 23 (5)) cannot be said to be in conflict with the provisions of S. 5. (Para 4) (B) Mysore Sales Tax Rules, R.37 - SALES TAX - Sales Tax - Non-compliance with R.37 - Effect. In the absence of compliance with R. 37, and in the absence of proper proof of the alleged dissolution prior to the date of assessment, the party who failed to comply cannot make a grievance that the assessment order was not valid as it was made after the dissolution of the assessee firm. (Para 5) (C) Mysore Sales Tax Act (46 of 1948), S.20 - SALES TAX - Sales Tax - Assessment order pertaining to more than 4 quarters - Validity. An order of assessment would not be invalid, merely because it pertained to more quarters than four, particularly when for the purpose of the assessment of the tax, the turnover of each quarter had been taken separately into consideration. (Para 6) CASES REFERRED: Paras (A) AIR 1954 SC 314 (V 41): 1954 SCJ 390 2 (B) AIR 1957 Mys 22 (V 44): ILR (1956) Mys 266 2, 4 (C) AIR 1957 Andh Pra 408 (V 44): 1956-7 STC 465 2, 4 (D) AIR 1957 Mad 33 (V 44): 1956-2 Mad LJ 374 2 D. M. Chandrasekhar for Advocate General, for Appellant; G. S. Ullal, for Respondents. Judgement

2. Rule 23 (5) runs as follows : "(5) Sale of hides or skins by dealers other than licensed dealers in hides or skins shall, subject to the provisions of S. 3, be liable to taxation on each occasion of sale." This sub-rule clearly makes the sales of hides or skins by unlicensed dealers in hides and skins liable to taxation on each occasion of sale (subject to the provisions of S. 3). The view taken by the learned Magistrate is that this rule comes into conflict with S. 5 (vi). Section 5 (vi) runs as follows : "5. Subject to such restrictions and conditions as may be prescribed, including conditions as to licenses and license fee:

(vi) the sale of hides and skins, whether tanned or untanned ........, shall be liable to tax under S. 3, sub-s. (1) only at such single point in the series of sales by successive dealers as may be prescribed." The learned Magistrate having accepted the contention that according to this section the sales of hides and skins should be taxed only at such single point as may be prescribed, held that it would not be within the competence of the Government to make a rule like R. 23 (5) which would take away the benefit conferred under S. 5. Sub-rule (5) of R. 16 of the Madras General Sales Tax Rules, which is similar to sub-r. (5) of R. 23 of the Rules under the Mysore Sales Tax Act, 1948, was referred to by their Lordships of the Supreme Court in V. M. Syed Mohammad and Co. v. State of Andhra, 1954 SCJ 390 at p 393: (AIR 1954 SC 314 at p. 316) (A), but, the validity of the said R. 16 (5) was not considered and decided; because, the appellants in that case were licensed dealers who were unaffected by the said sub-rule, and also because the learned Advocate General of Madras did not dispute before the High Court and the Supreme Court that R. 16 (5) was repugnant to S. 5 (vi) of the Madras General Sales Tax Act. It may be stated that the contentions urged on behalf of the appellants are all based on grounds which have been accepted in a case reported in Abdul Rahman v. State of Mysore, ILR 1956 Mys 266: (AIR 1957 Mys 22) (B) (which was a case decided by the High Court of the former State of Mysore) and in a decision of the Andhra High Court, V. M. Syed Mohamed and Co. v. State of Andhra, reported in 1956-7 STC 465: (AIR 1957 Andh Pra 408) (C). Sri Ullal, the learned counsel appearing for the respondents has based his arguments on a decision of the Madras High Court reported in M. A. Noor Mohamed and Co. v. State of Madras, AIR 1957 Mad 33 (D), wherein the learned Judges have not agreed with the reasoning adopted by the Andhra High Court in the case of V. M. Syed Mohamed and Co. v. State of Andhra (C), referred to above, and have reached the conclusion that R. 16 (5) was ultra vires of the rules-making authorities as it contravened S. 5 (vi).

3. The contention advanced on behalf of the State in these appeals, briefly, is that under Cl. (vi) of S. 5, the liability to tax only at a single prescribed point in a series of sales of hides and skins by successive dealers, is not a benefit which has been granted by the Legislature unconditionally or absolutely; it is urged that this benefit is governed by the opening words in S. 5 and that therefore the benefit under Cl. (vi) regarding the liability to tax only at a single prescribed point is subject to such restrictions and conditions as may be prescribed or imposed by the rules. Therefore, it is urged, the benefit under Cl. (vi) in regard to the liability to tax at only one prescribed point cannot be claimed independently of any restrictions and conditions that may have been prescribed in the exercise of the powers conferred by the opening words of S. 5. Sri D. M. Chandrasekhar for the Advocate General has argued that the restrictions and conditions subject to which the single point at which the sale of hides and skins is liable to tax, have been set out in Rr. 22 and 23. Where the dealers in hides and skins choose not to subject themselves to such conditions and restrictions, then, the sales of hides and skins by them will be covered by sub-r. (5) of R. 23. The contention of Sri Ullal on behalf of the respondents, is to the effect that the benefit of liability to be taxed at only a single prescribed point in a series of sales of hides ana skins, is a benefit which is available under Cl. (vi) of S. 5 to all dealers in hides and skins and that no restrictions or conditions can be imposed in the rules so as to take away this benefit.

4. The benefit of liability to tax at only a single prescribed point, under Cl. (vi), is not an unconditional or unrestricted benefit. The right to the said benefit being dependent on compliance with prescribed conditions and restrictions, it will be reasonable to make a distinction in the rules as between those dealers who, in order to get the benefit are prepared to comply with the prescribed restrictions and conditions, and those dealers who are not desirous of either complying with those restrictions and conditions or of availing themselves of the said benefit. This distinction has been achieved by classifying the dealers in hides or skins, into licensed dealers and dealers other than licensed dealers. The latter category of dealers, not being entitled to the benefit of taxation only at a single point in a series of sales, would be liable to tax under S. 3. This position results from the combined effect of Ss. 3, 5 and 7 of the Mysore Sales Tax Act, 1948. Sub-rule (5 of R. 23 is merely to the effect that the sale of hides or skins by this category of dealers shall, subject to the provisions of S. 3, be liable to taxation on each occasion of sale, and we are not convinced that a rule like this would be in conflict with the provisions of S. 5. To accept the contentions urged on behalf of the respondents would be to ignore the effect of the opening words of S. 5 and the inter-relation between Ss. 3, 5 and 7. Having regard to the scheme of the entire Act and the combined effect of Ss. 3, 5 and 7, we find much force in the contentions that have been put forward on behalf of the appellants. In these circumstances, we prefer to adopt the reasonings which have been accepted by the High Court of Mysore (of the former State of Mysore) in ILR 1956 Mys 266 : (AIR 1957 Mys 22) (B), and by the Andhra High Court in 1956-7 STC 465 : (AIR 1957 Andh Pra 408) (C). We are satisfied that sub-r. (5) of R. 23 is intra vires and that the learned Magistrate erred in reaching the conclusion that the said rule was ultra vires.

5. Certain other arguments have also been addressed by the learned counsel for the respondents. It is urged by him in regard to the respondent in Criminal Appeal No. 103/53 that the order of assessment is not a valid order, since it was made after the dissolution of the respondent-firm. The learned counsel relies on the statement of P.W. 1, in the course of his cross-examination, that the partnership firm was dissolved on 13-6-1951 and it is contended by the learned counsel that the order of assessment which was made on 10-7-52, subsequent to the dissolution, is illegal. We find it difficult to accept this contention. Rule 37 of the Mysore Sales Tax Rules requires that if a partnership is dissolved, every person who was a partner shall send a report of the dissolution to the assessing authority within 30 days of such dissolution. It is not disputed in this case that no such report was sent within 30 days as required under R. 37. When this rule has not been complied with, the party who failed to comply, cannot make a grievance of the result of such noncompliance. P.W. 1 is a clerk in the Sales Tax Office. Any knowledge on his part in regard to the alleged dissolution of this firm cannot be treated as a sufficient substitute either for the report required under R. 37 or for the proper proof before the Assessing Authority of the dissolution of the firm. In the absence of compliance with R. 37 and in the absence of proper proof of the alleged dissolution prior to the date of assessment, we do not find any substance in this contention.

6. In regard to the respondent in Criminal Appeal No. 105/53, it was urged that the order of assessment pertained to the taxes payable for more than four quarters and it was urged that on this ground the order of assessment is not valid. It is seen from the said order of assessment that the assessment of tux has been made separately in regard to the turnover of each quarter. The learned counsel was unable to show any provision, on the strength of which it can be said that an order of assessment like this would be invalid, merely because it pertained to more quarters than four, particularly when for the purpose of the assessment of the tax, the turnover of each quarter had been taken separately into consideration. The learned counsel was also unable to show how any prejudice was caused by this procedure which had been adopted by the Assessing Officer. In any event, this was a matter, which should have been agitated by the respondent before the proper authorities created under the Sales Tax Act and the Rules thereunder, if he felt aggrieved in regard to the inclusion of the tax for more than four quarters in the order of assessment. We are not satisfied that the said order of assessment is illegal.

7. Lastly, it was contended on behalf of the respondents that the turnover of export sales or sales outside the State had also been taken into consideration by the Assessing Authority and that therefore the orders of assessment in these cases were not legal, but, it is seen that the turnovers in regard to these export sales in all these cases, are confined only to periods prior to 31-3-1951. When that is so, the levy of tax in regard to such sales, is rendered lawful by reason of the Sales Tax Continuance Order, 1950 which has been made by the President in exercise of the powers conferred by the proviso to Cl. (2) of Art. 286 of the Constitution. Therefore, this contention also has to fail.

8. For all the reasons mentioned above, we are satisfied that these appeals should be allowed Therefore, we allow these appeals and set aside the order of acquittal passed in each of these three cases and we sentence the accused in each of these cases to pay a fine of Rs. 50/-and in default to undergo simple imprisonment for a week.

9. Further, under S. 20 of the Mysore Sales Tax Act, 1948, we specify: (1) a sum of Rs. 14,807-9-0 as the tax due from the accused in C. C. No. 857/52-53; (2) a sum of Rs. 19,743-6-9 as the tax due from the accused in C. C. No.1342/51-52, and (3) a sum of Rs. 13,494-1-3 as the tax due from the accused in C. C. No. 1410/1951-52. Appeals allowed. AIR 1958 MYSORE 82 (VOL. 45, C. 21) "K. Siddappa v. State of Mysore" MYSORE HIGH COURT Coram : 1 S. R. DAS GUPTA, C. J. ( Single Bench ) Karnam Siddappa, Petitioner v. State of Mysore, Respondent. Criminal Revn. Petn. No. 286 of 1956, D/- 31 -7 -1957, against decision of S. J., Bellary Division in Cri. Appeal No. 25 of 1956. (A) Penal Code (45 of 1860), S.406 and S.409 - BREACH OF TRUST - MISAPPROPRIATION - Retention - Inference of misappropriation. It is true that normally mere retention is not such a circumstance from which there can be an inference that there has been misappropriation. But there may be cases where it is possible to draw such an inference. It is not possible to lay down a hard and fast rule to the effect that in no case retention would lead to an inference of misappropriation. In other words whether or not an inference of misappropriation from the fact of retention would be drawn would depend on the particular facts of each case. (Para 5) Anno: AIR Man., Penal Code, S. 406 N. 1; S. 409 N. 1. (B) Penal Code (45 of 1860), S.21 - PUBLIC SERVANTS - President of Co-operative Society. The President of a Co-operative Society is not a public servant within the meaning of the expression in the Penal Code. AIR 1935 Bom 36 and 1935 Mad WN 1337, Rel. on. (Para 6) Anno: AIR Man., Penal Code, S. 21 N. 7. CASE REFERRED: Para (A) AIR 1956 Mys 40 (V 43): 1956 Cri LJ 630 5

V. Krishnamurthy, for Petitioner, Advocate-General, for State. Judgement In this petition, Mr. V. Krishnamurthy, Advocate for the Petitioner-Accused raised several contentions. One of such contentions, in my opinion, requires consideration.

2. The accused was charged under S. 409 of the Indian Penal Code and was convicted and sentenced to six months Rigorous Imprisonment and to pay a fine of Rs. 500/- and in default of payment to undergo Simple Imprisonment for one month more. He was the President of a Co-operative Society. The charge against him was that he misappropriated between 30th June 1953 and 18th January 1954 a sum of Rs. 7,849-2-8. He was previously convicted on the same allegations and against that conviction he preferred an appeal to the Sessions Court at Bellary and the Sessions Judge set aside the conviction and sent the matter back for framing the charge properly, he being of opinion that the charge framed was not proper. Thereafter the present charge was framed and the trial took place and he was convicted and sentenced as mentioned before.

3. It appears that as President of the Society the Petitioner had in his hands the said sum of Rs. 7,849-2-8. On 18th January 1954, the Assistant Registrar of Co-operative Societies inspected the accounts of the Society and the money in the hands of the President was not then forthcoming. He took time to produce the same till 31st January 1954 but failed to do so. The Assistant Registrar again visited the Society on 11th April 1954 and on 13th April 1954. On these days he made enquiries whether the money had been repaid. But it was found that money had not been repaid. It was only on 19th April 1954 that the whole sum was repaid, except a small sum of Rs. 149-2-8 which was alleged to have been applied for the purchase of a carpet for the Society.

4. It may be mentioned that this repayment of the sum in question was made before the charge sheet was filed. The charge sheet was filed on 30th June 1954. The present revision petition has been filed against the conviction and sentence to which I have already referred.

5. The principal point in the argument of Sri Krishnamurthy, Advocate for the Petitioner, was that on the facts proved a case under S. 409 of the Indian Penal Code was not made out. He contended that the essential element of a case under that section was dishonest misappropriation. In other words, it must be proved that the accused dishonestly misappropriated or converted into his own use the property in question before a case under S. 409 can be said to have been made out. In this case Sri Krishnamurthy contended what had been proved was mere retention of the property for a particular period and not misappropriation. He relied on the observations made in a decision of this Court in P. Durgappa v. State of Mysore, AIR 1956 Mys 40 (A), where Padmanabhiah J. observed as follows: "Where it is not clear from the evidence what the accused did with the money during the period he was in possession of it, the Court cannot assume, in absence of any evidence to show or circumstances to infer, that he misappropriated the amount dishonestly." In this case, Sri Krishnamurthy contended, it was not at all clear from the evidence that the accused misappropriated the money. What is clear is that he did not deposit the money though asked to do so but retained it for only a few months and that by itself, according to him, would not justify a conviction either under S. 406 or S. 409, I. P. C. He contended that although it is true that there may be circumstances from which it could be inferred, as observed by Padmanabhiah J. in the above-said case, that there has been misappropriation, such circumstances must relate to the fact of misappropriation itself. The circumstances showing that there was mere retention was not enough for that purpose. In other words, his contention was that the mere fact that the money was retained for some time was not such a circumsance from which it can be inferred that there has been misappropriation. By way of illustration Sri V. Krishnamurthy mentioned that such an inference may be permissible in a case where the accused is found to have been leading such a life which but for such misappropriation was not possible for him to lead. That would be a circumstance from which it can be inferred that there has been misappropriation of the amount in question. Shortly put, his contention was that mere delay in returning the money was not a circumstance as to justify such an inference. In my opinion, it is not possible to held that extreme view which was propounded by Sri Krishnamurthy before me. It is true that normally mere retention is not such a circumstance from which there can be an inference that there has been misappropriation. But there may be cases where it is possible to draw such an inference. It is not possible to lay down a hard and fast rule to the effect that in no case retention would lead to an inference of misappropriation. In other words in my opinion whether or not an inference of misappropriation from the fact of retention would be drawn would depend on the particular fact of each case. In this case under S. 38, Sub-s. (2), Sub-cl. (A) of the Madras Co-operative Societies Act, the Assistant Registrar, was empowered to summon any person in possession of the cash of the Society to produce the same at any place at the headquarters of the Society or any branch thereof. On several occasions the accused was called upon to produce the money. But he failed to do so, on the plea that the money was kept with his father who had gone out on a pilgrimage. I hold that it is possible to infer from such circumstances that there was misappropriation.

6. Sri Krishnamurthy contended before me that a charge under S. 409, I. P. C. would not lie against his client for the obvious reason that he was not a public servant. He relied on a decision of the Bombay High Court* and also a decision of the Madras High Court* to show that the President of a Co-operative Society is not a public servant within the meaning of that expression in the Indian Penal Code. In my opinion this contention of Sri Krishnamurthy should be upheld. The authorities to which he has referred make that position quite clear. But it has been urged by the learned Advocate-General that the conviction if not maintainable under S. 409 of the Indian Penal Code can be sustained under S. 406 of the Indian Penal Code. Sri Krishnamurthy frankly conceded before me that he has nothing to say on this point; in other words, he did not dispute that the conviction in question although not maintainable under S. 409, I. P. C. could still be sustained under S. 406 of the Indian Penal Code. The matter, therefore, proceeded before me on the footing that the conviction was sustainable under S. 406 of the Indian Penal Code.

7. In the result, therefore, the conviction of the accused is altered from under S. 409 of the Indian Penal Code to one under S. 406 of the Indian Penal Code.

8. As for the sentence, there are some extenuating circumstances which, in my opinion, should be taken into consideration for the *See AIR 1935 Bom 36 and 1935 Mad WN 1337. Ed. purpose of determining whether or not the sentence in this case should be reduced. I have already pointed out that the entire sum was paid except a small sum of Rs. 149-2-8 which as been accounted for and such payment was made before the charge sheet was filed. So, although there may be in law a case of misappropriation, substantially the accused has made good the amount which he was liable to do. In these circumstances the sentence which has been passed by the lower Court seems to me to be rather harsh and in the ends of justice I would reduce the said sentence. I, therefore, order that the accused do pay a fine of Rs. 200/- only and in default he will undergo simple imprisonment for a fortnight. With this modification, the Revision Petition is dismissed. Petition dismissed. AIR 1958 MYSORE 84 (VOL. 45, C. 22) "Devarajiah v. Padmanna" MYSORE HIGH COURT Coram : 1 N. SREENIVASA RAU, J. ( Single Bench ) Devarajiah, Complainant-Petitioner v. B. Padmanna, Accused-Respondent. Criminal Revn. Petn. No. 95 of 1957, D/- 10 -9 -1957, against order of City Magistrate, Bangalore, in C. C. No. 1716 of 1956. Untouchability Offences Act (1955), S.3, S.4 - ABOLITION OF UNTOUCHABILITY - WORDS AND PHRASES - Untouchability - Meaning. Constitution of India, Art.17. Words and Phrases. The Act is obviously a law passed by Parliament in accordance with the provisions of Art. 17 of the Constitution of India. It is to be noticed that that word untouchability occurs only in Art. 17 and is enclosed in inverted commas. This clearly indicates that the subject-matter of that Article is not untouchability in its literal or grammatical sense but the practice as it had developed historically in this country. (Para 4) In the Act in question also, the word untouchability has been used in the same sense. (Para 5) Comprehensive as the word untouchability In the Act is intended to be, it can only refer to those regarded as untouchables in the course of historical development. A literal construction of the term would include persons who are treated as untouchables either temporarily or otherwise for various reasons, such as their suffering from an epidemic or contagious disease or on account of social observances such as are associated with birth or death or on account of social boycott resulting from caste or other disputes. The imposition of untouchability in such circumstances has no relation to the causes which relegated certain classes of people beyond the pale of the caste system. Such relegation has always been based on the ground of birth in certain classes. (Para 6) Where the acts and conduct complained against may at the most amount to an instigation to social boycott in relation to a particular community (Jains in this case) and with reference to the conduct of those persons from the point of view of the religious or social observances of that community and has no relation solely to their origin in a particular class, it cannot be said that such conduct can come within the mischief of the Act. (Para 7) Anno: AIR Com., Constitution of India, Art. 17 N. 1. S. Gundappa, for Petitioner; B. Vedantha Iyengar, for Respondent. Judgement ORDER: The petitioner has lodged a complaint with the City Magistrate, Bangalore, against the Respondent alleging that the latter had issued a printed pamphlet according to the contents of which the complainant had no right to worship or enter into any Jain temple and the Complainant should be prevented from entering such places of public worship belonging to the Jain community and offering prayers and religious services in those places. He also alleged that the accused was encouraging untouchability by instigating the Jains not to have social or religious intercourse with others of the same religion like the Complainant. According to the Complainant, the accused has contravened Ss. 3, 7 and 10 of the Untouchability Offences (1955) Act by such conduct and he prays that the matter be enquired into and that the accused be punished according to law. The learned Magistrate took the case on file in respect of an offence under S. 500 of the Indian Penal Code. The complainant went up in revision to this Court. The Revision Petition was dismissed with the observation that the Petitioner might urge before the learned Magistrate his contention that the case should be registered for offences under the Untouchability Offences Act, 1955, and obtain a decision. The learned Magistrate after hearing arguments made an order holding that no offence under that Act was disclosed. This petition is directed against that order.

2. If the pamphlet is left out of account, there is no specific averment about the allegation against the accused that he was instigating the members of the Jain community to practise untouchability. The pamphlet itself consists of twelve closely printed pages and appears generally to deal with the way in which three temples of the Jain community are being managed and the way in which the Jain Mathadhipathies associated with those temples are functioning. The substance of the accuseds grievance appears to be that the rigid rules of Jaina religions and practice are being infringed, that heterodoxy is being encouraged and that non-Jains are admitted to food and worship contrary to the tenets and practice of Jain religion. There is also a narration of a particular incident alleged to have occurred on 24-3-1955 in a Jain temple in Bangalore. There are also suggestions in regard to the action to be taken for the general benefit of the Jain community. So far as the present Complainant is concerned, the only part of the pamphlet which refers to him says that he and two other persons were not Jains and were not fit to associate themselves with any Jain temple or the Jain community.

3. It is urged by the learned Advocate for the petitioner that the tendency of the pamphlet is to promote untouchability in the Jain community by suggesting that particular persona who were not conducting themselves in a manner that commended itself to the Complainant should be excluded from worship, religious services, fond etc. The learned Magistrate has taken the view that the provisions of thf Act anplv only in the context of untouchabilitv practised by imposing disaualiflcations and disabilities on a person by reason of his birth.

4. It appears to me that the Petitioners contention has no force. The Untouchability Offences Act, 1950, does not define the word untouchability. This Act is obviously a law passed by Parliament in accordance with the provisions of Art 17 of the Constitution of India, which abolishes untouchability and forbids its practice in any form and provides for punishment, according to law, of the enforcement of any disability arising out of untouchability. There is no definition of the word Untouchability in the Constitution also. It is to be noticed that that word occurs only in Art. 17 and is enclosed in inverted commas. This clearly indicates that the subject-matter of that Article is not untouchability in is literal or grammatical sense but the practice as it had developed historically in this country. The existence and practice of untouchability in this country and the efforts made for its eradication during the past several decades are matters of common knowledge and can be taken judicial notice of. The framers of the Constitution dealt with this feature, which in their view constituted a blot on Indian Society, in two ways. They provided for withholding legal recognition to this form of social discrimination and for punishing such discrimination as an offence. This is Art. 17 of the Constitution. They also enacted special provisions for the amelioration of the untouchables. These are to be found in Par 15, v hich deals mainly with special measures for securing adequate representation for this class of people, in the Legislatures of the Country, for recognising their special claim to services and posts and for their uplift. In that context they are described as "Scheduled Castes, which term is defined in terms of Art. 341. which in turn authorises the President to specify the castes, races or tribes, etc., which shall be deemed to be "Scheduled Castes" and also enables Parliament to make appropriate modifications. It was obviously necessary to make such a provision to facilitate the preparation of electoral rolls and to implement other matters relating to election as also to facilitate the undertaking of the ameliorative measures dealt with in that part of the Constitution. But Art. 17 which was intended to give effect to the decision to abolish the practice of untouchability, as mentioned above, does not define that term, nor is a definition contained anywhere else in the Constitution. This omission would appear to be deliberate as the intention presumably was to leave no room or scope for the continuance of the practice in any shape or form.

5. In the Act in question also the same term untouchability i. e., in inverted commas, is employed. The effect of this device is the same as using the phrase the practice known as untouchability", which necessarily refers to the meaning of the term in the context of the historical development of the practice and does not connote its literal meaning. It may be mentioned that prior to the promulgation of the Constitution several enactments had been passed by various Legislatures for the removal of the disabilities from which the untouchables suffered. For example, the Madras Removal of Civil Disabilities Act 1938 refers to them as "any particular community or class known as Harijans, Untouchables. Depressed Classes or the like The Coorg Schedule Castes (Removal of Social Disabilities) Act, 1940, as the title indicates refers to them as Scheduled Castes, which terms is defined not only with reference to the Government of India (Schedule Castes) Order, 1936, but also includes Yerravas or any class or community known as Harijans, Untouchables and Depressed Classes. It is thus seen the Madras and Coorg enactments also leave the classes to be gathered from the prevailing practice as the Act in question does.

6. Comprehensive as the word untouchability in the Act is intended to be, it can only refer to those regarded as untouchables in the course of historical development. A literal construction of the term would include persons who are treated as untouchables either temporarily or otherwise for various reasons, such as their suffering from an epidemic or contagious disease or on account of social observances such as are associated with birth or death or on account of social boycott resulting from caste or other disputes. The imposition of untouchability in such circumstances has no relation to the causes which relegated certain classes of people beyond the pale of the caste system. Such relegation has always been based on the ground of birth in certain classes.

7. The acts and conduct referred to in the complaint petition may, at the utmost, amount to an instigation to social boycott in relation to a particular community and with reference to the conduct of those persons from the point of view of the religious or social observances of that community and has no relation solely to their origin in a particular class. It cannot therefore be said that such conduct can come within the mischief of the Act.

8. The petition has thus no substance and is dismissed. Petition dismissed. AIR 1958 MYSORE 85 (VOL. 45, C. 23) "Bangalore W. C. and S. Mills v. Mysore State" MYSORE HIGH COURT Coram : 2 S. R. DAS GUPTA, C. J. AND M. SADASIVAYYA, J. ( Division Bench ) Management of Bangalore Woollen, Cotton and Silk Mills Co. Ltd., Petitioner v. State of Mysore and others, Respondents. Writ Petn. No. 229 of 1956, D/- 14 -11 -1957. (A) Industrial Disputes Act (14 of 1947), S.17A(1) and S.17A(4), S.19(3) - INDUSTRIAL DISPUTE - TRIBUNALS - Jurisdiction of Tribunal to give its award retrospective operation. In view of the clear provisions of the Industrial Disputes Act, the jurisdiction of the Tribunal to give its award a retrospective operation cannot be questioned. (Para 21) The true effect of sub-s. (4) of S. 17-A read with sub-s. (1) of the said section is that in an award the date with effect from which its terms shall come into operation may be a past date but the period from which those terms can be enforced will be the period mentioned in sub-s. (1) of S. 17-A. In other words, the terms of an award may be retrospective in operation but the period from which those terms may be enforceable will be the period mentioned in S. 17-A. (Para 21) There is no conflict between the provisions of S. 17-A and S. 19. AIR 1949 PC 151, Rel. on. (Para 23) (B) Constitution of India, Art.226 - WRITS - Writ of certiorari - Jurisdiction. If the Tribunal has jurisdiction to give its award a retrospective operation, then the validity of the award cannot be questioned in a petition for the issue of a writ of certiorari on the ground that the provisions of the said award from their very nature are incapable of being given such a retrospective effect. (Para 24) Anno: AIR Com., Constitution of India, Art. 226 N. 167. (C) Constitution of India, Art.226 - WRITS - Writ of certiorari - Error apparent on face of record. No error could be said to be apparent on the face of the record if it was not self-evident and if it required an examination or argument to establish it. AIR 1953 Bom 133, Foll. (Para 24) Anno: AIR Com., Constitution of India, Art. 226 N. 171. (D) Industrial Disputes Act (14 of 1947), S.10 - INDUSTRIAL DISPUTE - TRIBUNALS - EMPLOYMENT STANDING ORDERS - Industrial dispute concerning certified standing orders - Jurisdiction of Tribunal is determined by reference to Industrial Disputes Act and not by Industrial Employment (Standing Orders) Act 1946. Industrial Employment (Standing Orders) Act (20 of 1946), S.10.. Where the Tribunal is called upon to make an award on the disputes which have arisen between the workers and the management concerning standing orders after they were certified under the Industrial Employment (Standing Orders) Act, the jurisdiction of the Tribunal in making the award is not fettered by the Industrial Employment (Standing Orders) Act. It can go beyond that Act, although the certifying officer cannot do so and the latter has to restrict himself within the Act. Hence an award of the Tribunal in an industrial dispute modifying some of the Standing Orders after they were certified by the certifying authority cannot be held to be void because it does not fall within the four corners of the Industrial Employment (Standing Orders) Act. The jurisdiction of the Tribunal has to be determined by reference to the Industrial Disputes Act and not by the Industrial Employment (Standing Orders) Act which determines the jurisdiction of the authority created by that Act, that is to say, the certifying Officer. (Para 25) It is the order of reference which gives jurisdiction to the Tribunal: (S) AIR 1956 SC 231, Foll. (Para 28) The Industrial Employment (Standing Orders) Act does not prohibit inclusion of matters not mentioned in the said Act. What the said Act requires is the minimum to be provided for in a standing order to be framed under the said Act and if such a minimum has been provided for and if found to be reasonable, then the certifying officer is bound to certify the same. It does not follow therefrom that the workers cannot insist on further terms being provided for and if they do so the dispute which arises out of their insistence may be referred to for adjudication by the Industrial Tribunal under the Industrial Disputes Act and the Tribunal in such a case would be competent to give its award on such a dispute. (Para 29) (E) Industrial Disputes Act (14 of 1947), S.2(k) - INDUSTRIAL DISPUTE - Disputes regarding medical relief to aged parents of workmen. A dispute whether or not medical relief should be granted to the aged parents of the workmen comes within the definition of industrial dispute as given in S. 2 (k). Standing Orders are really the terms and conditions of employment. Therefore, if there is a dispute as to whether or not this particular condition, viz., relief to aged parents, would find a place in the standing orders to be framed, such a dispute would be a dispute connected with the terms of employment and would come within the definition of industrial dispute as given in S. 2 (k). (Para 28) Anno: AIR Man., I. D. Act, S. 2 (k) N. 1. CASES REFERRED: Paras (A) AIR 1949 FC 151 (V 36): 1949 FCR 361 23 (B) (S) AIR 1955 SC 233 (V 42): 1955-1 SCR 1104 24 (C) AIR 1953 Bom 133 (V 40): ILR (1953) Bom 191 24 (D) (S) AIR 1956 SC 231 (V 43): 1955-2 SCR 1315 28 K. Raja Iyer, for Appellant; D. M. Chandrasekhar, for Advocate-General, for Respondents 1 and 2; G. V. Ramachar, for Respondent. Judgement S. R. DAS GUPTA, C. J. :- The petitioner before us is the Bangalore Woollen, Cotton and Silk Mills Co. Ltd., managed by Messrs. Binny and Co. Ltd., The prayer of the petitioner is for the issue of writs and directions and in particular a writ of certiora and for quashing the award of the Industrial Tribunal, Bangalore, in I. C No. 11/55 dated 25-9-1956. The facts on which this petition is founded may be shortly stated as follows: 2.The petitioner had applied, under the provisions of the Industrial Employment (Standing Orders) Act - Central Act XX of 1946 to the certifying authority constituted under the said Act for certification of draft standing orders which were submitted by the petitioner. The authority concerned, after due notice, certified the same on 16-7-1955. The 3rd respondent (The Binny Mills Labour Association) having taken exception to a number of standing orders submitted by the Management, and certified by the certifying authority raised an industrial dispute with reference thereto, Thereafter by notification dated 2-8-1955 issued by the Government the said dispute was referred for adjudication to the Industrial Tribunal, Bangalore. The points of dispute mentioned in the said notification and referred to the said Tribunal for adjudication were as follows: "Whether the Standing Orders filed by the Management and now certified by the Certifying Authority be modified as a modification to the existing Standing Orders as demanded by the employees through their Association in the light of the views and as indicated in the annexure to this Notification." In the annexure to the said notification the particulars of such objections were set out. There after the said Tribunal made its award which was published in the Mysore Gazette on 18-10-1956. By that award the Tribunal modified some of the Standing Orders which had been certified by the certifying authority under the Industrial Employment (Standing Orders) Act of 1946. The present petition has been filed challenging the said alterations.

3. At the hearing before us the learned Advocate for the petitioner confined his clients case only to three items of the sward. He informed us that the rest of the items, which were originally in dispute between the parties, have subsequently been settled. Before I mention the points urged by the learned Advocate for the petitioner before us and in order to appreciate the same it would be necessary to set out the material provisions of the Industrial Employment (Standing Orders) Act, 1946, and of the Industrial Disputes Act, 1947.

4. Section 3 of the Industrial Employment (Standing Orders) Act, 1946, provides that within six months from the date on which this Act becomes applicable to an industrial establishment, the employer shall submit to the certifying officer five copies of the draft standing orders proposed by him for adoption in his industrial establishment.

5. Section 4 of the said Act inter alia provides that standing orders shall be certifiable under this Act if (a) provision is made therein for every matter set out in the schedule which is applicable to the industrial establishment; and (b) the standing orders are otherwise in conformity with the provisions of this Act.

6. Section 5 lays down the procedure which has to be followed before the certifying officer certifies the said standing orders. It inter alia provides that under S. 3 the certifying officer shall, after giving the parties concerned a copy thereof and after giving the empolyer and workmen an opportunity of being heard, shall decide whether or not any modification of, or addition to, the draft submitted by the employer is necessary to render the draft standing orders certifiable under this Act, and thereupon the certifying officer shall certify the draft standing orders after making such modifications therein as he may decide and shall within seven days thereof send certified copies of the standing orders authenticated in the prescribed form to the employer and to the trade union or other prescribed representatives of the workmen.

7. Section 6 gives a right of appeal to the party who may be aggrieved by the order of the certifying officer to be filed within the time mentioned in the said section to the appellate authority. The said section inter alia provides that the appellate authority shall, by order in writing, confirm the standing orders either in the form certified by the certifying officer or after amending the said standing orders by making such modifications thereof or additions thereto as it thinks necessary to render the standing orders certifiable under this Act and shall within seven days of its order send copies thereof to the certifying officer, to the employer and to the representatives of the workmen, accompanied, unless it has confirmed without amendment the standing orders as certified by the certifying officer, by copies of standing orders as certified by it and authenticated in the prescribed manner. 8.Sec. 7 provides that standing orders shall, unless an appeal is preferred under S. 6, come into operation on the expiry of 30 days from the date on which the authenticated copies thereof are sent under sub-sec. (3) of S. 5 or, where an appeal as aforesaid is preferred, on the expiry of seven days from the date on which the copies of the order of the appellate authority are sent under sub-section (2) of S. 6.

9. Sub-section (1) of S. 10 provides that standing orders finally certified under this Act shall not, except on agreement between the employer and the workmen, be liable to modification until the expiry of six months from the date on which the standing orders or the last modifications thereof came into operation.

10. S. 13 inter alia provides that an employer, who modifies the standing orders otherwise than in accordance with S. 10, shall be punishable with fine which may extend to Rs. 5000/- and, in the case of a continuing offence, to a further fine which may extend to Rs. 200/- for every day after the first during which the offence continues. sub-s. (2) of this section provides that an employer who does act in contravention of the standing orders finally certified under this Act for his industrial establishment shall be punishable with a fine which may extend to Rs. 100/- and in the case of a continuing offence with a further fine which may extend to Rs. 25/- for every day after the first during which the offence continues. Subsection (3) lays down that no prosecution for an offence punishable under this section shall be instituted except with the previous sanction of the appropriate Government.

11. The schedule to this Act mentions matters to be provided in Standing Orders under this Act.

12. The sections of the Industrial Disputes Act which I need refer to for the present are Ss. 10, 17, 17A and 19 of the said Act.

13. Sub-section (1) of S. 10 inter alia provides that, where the appropriate Government is of opinion that any industrial disputes are apprehended, it may at any time by order in writing refer the dispute to a Board for promoting a settlement thereof or refer any matter appearing to be relevant to the dispute to a court of enquiry or refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the second schedule, to a Labour Court for adjudication or refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the second schedule or the third schedule, to a Tribunal for adjudication.

14. Section 17 inter alia provides that every award of a labour Court, Tribunal or National Tribunal shall within the time mentioned in the Said section be published in such manner as the appropriate Government thinks fit.

15. sub-section (1) of S. 17A provides that an award (including an arbitration award) shall be enforceable on the expiry of 30 days from the date of its publication under S. 17. sub-section (4) of S. 17A inter alia provides that, subject to the provisions of sub-section (1) regarding the enforceability of an award, the award shall come into operation with effect from such date as may be specified therein but where no date is specified it shall come into operation on the date when the award becomes enforceable under sub-sec. (1).

16. Sub-section (3) of S. 19 reads as follows: "An award shall subject to the provisions of this section, remain in operation for a period of one year from the date on which the award becomes enforceable under S. 17A."

17. The first objection of the learned Advocate for the petitioner relates to clause 130 of the award wherein the Tribunal directed that the said award will come into operation from 2-8-1955, The learned Advocate contended that standing orders from their very nature are incapable of being given a retrospective effect. Standing orders, according to him, only relate to future terms of service and can operate prospectively. According to him the said term of the award conflicts with the provisions of the Industrial Employment (Standing Orders) Act, 1946, and runs contrary to the policy laid down in the said Act. In other words, the learned Advocate contended that once a standing order has been certified in accordance with the said Act, it shall not, except on agreement between the employer and the workmen, be liable to modification until the expiry of six months from the date on which the standing orders or the last modifications thereof came into operation. The Tribunal, according to the learned Advocate, in making its award retrospective in its operation, has violated the said provisions of the Act and has acted contrary to the policy laid down therein. 18.The learned Advocate further contended that this question as to whether, or not the award of Tribunal adjudicating disputes between the parties relating to the standing orders will have a retrospective effect was not referred to the Tribunal and therefore the Tribunal had no Jurisdiction to make any award in respect thereof.

19. Lastly it was urged on behalf of the petitioner that the workers themselves did not claim that the award should have a retrospective effect except only with regard to one matter, viz. the benefits to be given under Standing Orders 9(1) and 9(2), i.e. standing orders relating to leave with wages and medical leave and even this claim was not pressed at the hearing before the Tribunal.

20. Before I deal with these contentions of the learned Advocate for the petitioner, I should mention that the learned Advocate appearing for the respondent stated before us that the only item, in respect of which their clients were claiming a retrospective operation of the award, was with respect to wages for the holidays they enjoyed in the years 1955 and 1956. Under the standing orders, as they originally stood, the workers were entitled to only ten festival holidays and in respect thereof they would not be entitled to receive pay but would be eligible for dearness allowance only. By the award the Tribunal directed that there shall be eleven festival holidays and the Management should pay wages and Dearness Allowance for five such holidays and for the remaining six holidays they would only get Dearness Allowance. It was submitted before us on behalf of the workers that the wages for the holidays which the workers have already enjoyed in the years 1955 and 1956 and in respect of which both dearness allowance and wages are payable under the award should be paid to them. This is the only item in respect of which retrospective effect of the award was claimed before us.

21. The first question which I shall deal with is whether the Tribunal had any jurisdiction to direct that its award will have a petrospective operation in view of the fact that the question as to the date from which the award will come into operation was not specifically referred to the Tribunal. It seems to me that, in view of the clear provisions of the Industrial Disputes Act, the jurisdiction of the Tribunal to give its award a retrospective operation cannot be questioned. I have already referred to the material provisions of S. 17A and S. 19 of the Industrial Disputes Act. By virtue of sub-section (1) of S. 17A an award shall become enforceable on the expiry of 30 days from the date of its publication under S. 17. Sub-section (4) of the said section inter alia provides that, subject to the provisions of sub-section (1) regarding the enforceability of an award, the award shall come into operation with effect from such date as may be specified therein but, where no date is specified, it shall come into operation on the date when the award becomes enforceable under sub-section (1). The true effect of sub-section (4) of S. 17A read with sub-section (1) of the said section, to my mind, is that in an award the date with effect from which its terms shall come into operation may be mentioned which may be a past date but the period from which those terms can be enforced will be the period mentioned in sub-section (1) of S. 17A. In other words, the terms of an award may be retrospective in operation but the period from which those terms may be enforceable will be the period mentioned in S. 17-A. In other words, in saying "that the award shall come into operation with effect from such date as may be specified in the award" and in saying that "the award becomes enforceable under sub-section (1) of S. 17A" the legislature meant two different things. An award, whether its terms are prospective, or retrospective, shall only become enforceable on the expiry of 30 days from its publication under S. 17. This is indicated by the starting words of sub-section (4) viz. "Subject to the provisions of sub-section (1)". In other words, the enforceability of an award was not meant to be the same thing as the coming into operation of an award in the said section. The last portion of sub-section (4) makes this position quite clear. It is said that "where no date is specified (meaning thereby in the award) the award shall come into operation on the date when the award becomes enforceable". Thus the award coming into operation and the award becoming enforceable are meant to be two different things. This, in my opinion, is the correct reading of sub-section (4). Some difficulty has no doubt been created by the wordings of Sub-section (3) of S. 19 of the Act.

22. The learned Advocate for the petitioner placed considerable reliance on the said clause in order to show that the interpretation, which I am giving to sub-section (4) of S. 17A, cannot be so given to it. Sub-section (3) of S. 19 provides that an award shall, subject to the provisions of this section, remain in operation for a period of one year from the date on which an award becomes enforceable under S. 17A. The learned Advocate contended that the period during which the award shall remain in operation is one year and that period shall commence from the date on which the award becomes enforceable under S. 17A, i.e. on the expiry of 30 days from the date of the publication of the award. The learned Advocate also referred to the proviso to the said Sub-section (3) of S. 19 wherein it has been laid down that the appropriate Government may, before the expiry of the said period, extend the period of operation for any period not exceeding one year at a time as it thinks fit provided however that the total period of operation of any award does not exceed three years from the date on which it came into operation. The learned Advocate contended that, on the view which I am taking in this matter, Sub-section (3) of S. 19 would be in conflict with sub-section (4) of S. 17A, because, under Sub-section (3) of S. 19 the period of operation of the award has to commence from the date on which the award shall become enforceable under S. 17A, whereas, according to the interpretation which I have put on sub-section (4), the said period of operation can commence from an earlier date. He then urged that such a construction of sub-section (4) of S. 17A would also lead to anomalous results. For instance, if the date specified in an award with effect from which the award is to come into operation happens to be mors than three years prior to the date of the making of the award, then Sub-section (3) of S. 19 would not come into operation at all because by the time the award becomes enforceable under S. 17A, the maximum period of 3 years allowable under S. 19 would already expire.

23. I am unable to accept this contention of the learned Advocate for the petitioner. The period of one year, which may be reduced or extended by appropriate Government, is the period subsequent to the award itself. In the case reported in Roberts Maclean and Co. Ltd., v. A T. Das Gupta AIR 1949 FC 151 (A), it has been expressly held that "the maximum period of one year starts from the date of award and does not cover the period antecedent to the award". There is, in my opinion, no conflict between the provisions of S. 17A and S. 19 of the Industrial Disputes Act. In my view, therefore, this contention of the learned Advocate, viz. that the Tribunal had no jurisdiction to make its award retrospective in its operation must therefore fail. 24.As for the contention of the learned Advocate for the petitioner, viz. that standing orders from their very nature are incapable of being given a retrospective effect, I am also unable to accept the same. I am unable to hold that in no case a standing order can be given a retrospective effect. It is possible to give at least some standing orders a retrospective operation. As in this case the wages, which have been made payable for festival holidays mentioned in the award, by virtue of their being given a restrospective operation, may have to be paid in respect of previous years although such holidays have already been enjoyed. It is, however, not necessary for me to express any final opinion on this question in this petition. It would, in my opinion, be sufficient to say for the purpose of this petition that, if the Tribunal has jurisdiction to give its award a retrospective operation, then the validity of the award cannot be questioned in a petition for the issue of a writ of certiorari on the ground that the provisions of the said award from, their very nature are incapable of being given such a retrospective effect. In the case of Hari Vishnu v. Ahmad Ishaque (S) AIR 1955 SC 233 (B). their Lordships of the Supreme Court have laid down the grounds on which a writ of certiorari can appropriately be issued. The following propositions were laid down by their Lordships in the said case: (1) Certiorari will be issued for correcting errors of jurisdiction as when an inferior court or Tribunal acts without jurisdiction or in excess of it or fails to exercise it. (2) Certiorari will also be issued when the court or Tribunal acts illegally in the exercise of its undoubted jurisdiction as when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice. (3) Certiorari can be issued to correct an error of law but it is essential that it should be something mere than a mere error and it must be one which is manifest on the face of the record. In the present case, this particular provision in the award cannot be challenged on any of the grounds as aforesaid. I have already held that the Tribunal had jurisdiction to make its award retrospective in operation. It has not been suggested before us that the Tribunal acted illegally in the exercise of its jurisdiction or that it has decided the matter without giving an opportunity to the parties to be heard or has violated the principles of natural justice. I am also unable to hold that in making such a provision there is an error apparent on the face of the award. Although, as observed by their Lordships of the Supreme Court in the case to which I have referred, what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature and it must be left to be determined judicially on the facts of each case, the test laid down by Chief Justice Chagla in Batuk K. Vyas v. Surat Borough Municipality, AIR 1953 Bom 133 (C) may be taken to be a satisfactory basis for a decision on this question. Chief Justice Chagla observed in that case that no error could be said to be apparent on the face of the record if it was not self-evident and if it required an examination or argument to establish it. It seems to me that it is not possible to say that, so far as this provision in the award is concerned, there is an error apparent on the face of the record. This contention of the learned Advocate for the petitioner must therefore fail.

25. As for the contention of the learned Advocate for the petitioner, viz. that the said provision in the award conflicts with the provisions of the Industrial Employment (Standing Orders) Act, 1956, and runs contrary to the policy laid down in the said Act and must therefore be held to be void, I am also unable to accept the same. On this point I accept the contentions of the learned Advocate for the workers. In my opinion, the jurisdiction of the Tribunal has to be determined by reference to the Industrial Disputes Act and not the Industrial Employment (Standing Orders) Act which determines the jurisdiction of the authority created by that Act, that is to say, the certifying officer. What the Tribunal has been called upon to do is to make an award on the disputes which have arisen between the workers and the management after the standing orders were certified under the Industrial Employment (Standing Orders) Act. In making such an award the jurisdiction of the Tribunal is not fettered by the Industrial Employment (Standing Orders) Act. It can go beyond that Act, although the certifying officer cannot do so and the latter has to restrict himself within the Act. I am therefore unable to hold that the award in question is void because it does not fall within the four corners of the Industrial Employment (Standing Orders) Act. Acceptance of the contention of the learned Advocate for the petitioner on this point would amount to holding that the Government had no power to make the present reference to the Tribunal. But it should be mentioned that the reference itself in this case has not been challenged. In any event, as already mentioned, I am unable to hold that such a dispute cannot be referred to the Tribunal or that the Tribunal would have no jurisdiction to decide the same.

26. The only other contention that remains to be considered on this part of the petitioners case is that, having regard to the fact that the workers, although they claimed that the benefits under Standing Orders 9(1) and 9(2) should be given with retrospective effect as from 4-2-1950, did not at the hearing of the matter before the Tribunal press for the same, the award cannot have any retrospective operation with regard to these items, it was also contended before us that the fact that retrospective operation was claimed with regard only to two items of the disputed standing orders shows that the workers themselves did not intend that the award should be given retrospective effect with regard to other items. I am unable to accept either of these contentions. In the first place, we are not called upon to decide In this petition whether or not having regard to the fact that the retrospective operation of Standing Orders 9(1) and 9(2) were claimed but the said claim was not pressed, the workers would be still entitled to claim the said benefits with effect from 2-8-1955. This question would be properly decided in any claim that may be made hereafter by the workers in respect thereof. This fact, in my opinion, would not affect the jurisdiction of the Tribunal to make such a provision in the award and would not entitle us to interfere in an application for the issue of a writ. It, however, appears that the claim for retrospective operation, made in respect of the said benefits, was with effect from 4-2-1950 and that claim was not pressed but what was awarded was retrospective benefit with effect from 2-8-1955. It is therefore not possible for me to hold that, having regard to the fact that the claim for retrospective effect from 4-2-1950 was not pressed the Tribunal had no jurisdiction to give the award a retrospective operation. I am also unable to accept the other contention of the learned Advocate, viz. that the fact that retrospective operation was specially claimed with regard to these items showed that there was no intention on the part of the workers to claim a retrospective benefit of the other items of the disputed Standing Orders. In my opinion, it was a special claim made with regard to these two items to have the benefit as from 4-2-1950. This only shows that with regard to other items the workers did not think it necessary to claim retrospective effect as from 4-2-1950 and this fact, to my mind, does not show that there was no intention on the part of the workers to claim that the award should be operative as from the date of the reference, i.e. 2-8-1955. I therefore hold that all these grounds urged by the learned Advocate for the petitioner in support of his contention, that the clause in the award whereby the Tribunal directed that the said award would come into operation from 2-8-1955 is void, must fail. 27.The next ground urged by the learned Advocate for the petitioner relates to the provision in the award whereby medical relief for aged parents of workmen was allowed by the Tribunal. It was contended before us by the learned Advocate for the petitioner that such a dispute, viz. whether or not medical relief should be granted to the aged parents of the workmen is not an industrial dispute within the definition of that expression as appearing in S. 2(k) of the Industrial Disputes Act, nor is it an item mentioned in the schedule of the Industrial Employment (Standing Orders) Act It was therefore contended by the learned Advocate that the Tribunal had no jurisdiction to grant such a relief. He further pointed out that the Tribunal itself has come to the conclusion that it can by no means be said that medical aid to children or aged parents is a condition of service. Nevertheless, the said Tribunal has come to the conclusion that, though technically this demand may not be tenable, yet from human point of view that the amenities so far given by the Management may be continued in favour of aged parents. The learned Advocate therefore urged that this provision in the award is void having been made without jurisdiction and should be deleted.

28. I am unable to accept this contention of the learned Advocate for the petitioner. This particular dispute, viz. whether or not medical aid should be given to aged parents of the employees was specifically referred to the Tribunal for determination. The Tribunal therefore had jurisdiction to determine this question. As already mentioned, the jurisdiction of the Tribunal has to be determined by reference to Industrial Disputes Act and not by reference to the Industrial Employment (Standing Orders) Act. In other words, it is the order of reference which gives jurisdiction to the Tribunal (Vide J. K. Iron and Steel Co. Ltd. v. Iron and Steel Mazdoor Union, (S) AIR 1956 SC 231 (D) ). Whether or not a particular order of reference is void is however a different question. In this case, the order of reference has not been challenged by the petitioner. The Tribunal therefore had jurisdiction to decide this question which had been specifically referred to it by the order of reference. Apart from this, I am also of the opinion that this dispute comes within the definition of "industrial dispute" as given in S. 2(k) of the Industrial Disputes Act. The expression "industrial dispute", according to the said definition, means any dispute or difference between employers and employees, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. I do not see why an employee cannot insist as one of the terms of his employment that medical relief should be given to his aged parents and, if there is a dispute between the employer and the employee on this point, why such a dispute cannot be said to be a dispute connected with the terms of his employment. Standing Orders are really the terms and conditions of employment. Therefore, if there is a dispute as to whether or not this particular condition, viz. relief to aged parents, would find a place in the standing orders to be framed, such a dispute would be , a dispute connected with the terms of employment and would come within the definition of "industrial dispute" as given in S. 2(k) of the Industrial Disputes Act. In any event, as I have already pointed out, there is no want of jurisdiction on the part of the Tribunal in awarding medical relief to the aged parents of the employees.

29. As for the contention of the learned Advocate for the petitioner, viz. that such a dispute is not covered by the schedule, I would mention once again that, in making an award under the Industrial Disputes Act, the Tribunal can go beyond the Industrial Employment (Standing Orders.) Act, whereas the certifying officer under the latter Act has to restrict himself within the said Act. What the Industrial Tribunal was called upon to do in the present case was not to frame standing orders under the Industrial Employment (Standing Orders) Act but to make an award on the matters specifically referred to it. I accept the contention of the learned Advocate for the respondent that the Industrial Employment (Standing Orders) Act does not prohibit inclusion of matters not mentioned in the said Act. What the said Act requires is the minimum to be provided for in a standing order to he framed under the said Act and if such a minimum has been provided for and if found to be reasonable, then the certifying officer is bound to certify the same. It does not follow therefrom that the workers cannot insist on further terms being provided for and if they do so the dispute which arises out of their insistence may be referred to for adjudication by the Industrial Tribunal under the Industrial Disputes Act and the Tribunal in such a case would be competent to give its award on such a dispute. I therefore hold that this ground urged before us by the learned Advocate for the petitioner must also fail.

30. The third and the last ground urged by the learned Advocate for the petitioner relates to the retirement clause in the certified standing order. Under the said clause the company may in its discretion retire from its service an employee who has completed 35 years of full time service in the company or has attained the age of 55 years, whichever event shall first occur, and no employee would have any claim to be continued in the service of the company thereafter. The Tribunal has deleted that clause. The learned Advocate for the petitioner contended before us that in deleting the said provision the Tribunal acted without jurisdiction, inasmuch as the Industrial Employment (Standing Orders) Act itself as it appears from Item 8 of the Schedule to that Act requires such a provision to be made in the standing order. He contended that the schedule to the said Act indicates the matters to be provided for in the standing orders under this Act and the matter mentioned in Item 8 is termination of employment and that retirement is a mode of termination of employment. 31.The short answer to this contention again is that this matter, namely, whether or not the said clause should be deleted was specifically referred to the Tribunal for determination by the order of reference and the Tribunal has given a finding in respect of such a matter. The learned Advocate for the respondent contended before us that in giving its finding on this matter the Tribunal has in fact performed its jurisdiction and cannot be said to have acted without jurisdiction. The grounds of such a decision may be erroneous but the Tribunal cannot for that reason be said to have acted without jurisdiction. As already mentioned, the jurisdiction of the Tribunal is to be determined by the order of reference. In my opinion, therefore, this contention of the learned Advocate for the petitioner must fail.

32. The learned Advocate then urged before us that there is an error apparent on the face of the award so far as it relates to this question. He drew our attention to the fact that the Tribunal has come to the conclusion that the Management is not competent to introduce any standing order relating to the fixation of age for retirement of an employee and on that view has held that the Tribunal has no power to empower the Management to retire the workmen after they attain a certain age. The learned Advocate for the petitioner contended that this view taken by the Tribunal, viz. that the Management is not competent to introduce any standing order relating to the fixation of age for retirement of an employee and that the Tribunal has no power to empower the Management to retire the workmen is on the face of it erroneous. I am also unable to accept this contention of the learned Advocate. It is true that the Tribunal in dealing with this question has not expressed itself quite clearly in its award but it is not possible to say that there is any error on the face of the award. In my opinion, it is possible to support the view taken by the Tribunal, viz. that the Management is not competent to introduce any standing order relating to the fixation of age for retirement of an employee. The Tribunal, in support of that view, has referred to S. 25 (f) of the Industrial Disputes Act. That section lays down that no workman, who has been in continuous service for not less than one year under an employer, shall be retrenched by the employer until amongst others the workman has been given one months notice in writing and has been paid at the time of retrenchment such compensation as is mentioned in the said section. The word retrenchment has been defined in sub-section (00) of S. 2 of the said Act as meaning termination by the employer of the service of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action but not including amongst others retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf. On the basis of these provisions it is possible to argue that the result of allowing the said clause of retirement to be retained in the standing orders would amount to giving the Management the power to retrench on the workman attaining a certain age without complying with the conditions mentioned in S. 25(f) of the said Act. Such a contention has to be investigated before any final opinion can be given on it and in any event it is not possible to say that it is erroneous on the face of it. To my mind there is no such error on the face of the award which would entitle us to interfere on an application of this nature. It cannot therefore be said that the Tribunal in holding that the Management was not competent to introduce any standing order relating to the fixation of age for retirement of an employee committed an error which was apparent on the face of it.

33. I should mention that the Tribunal has also taken other matters into consideration in arriving at its said decision. It has held that it is open to the Management to consult their medical officers regarding the physical capacity of a workman to continue in employment after a certain age and that, as a matter of fact, even now there are cases in which the Management on medical advice is dispensing with the services of disabled workman and therefore it cannot be said that the Management is without a remedy when it feels that the workman is physically unlit to hold the employment on account of advancing age. The Tribunal has taken these matters also into consideration in coming to its aforesaid conclusion.

34. I am therefore unable to hold that this part of the award is void or that it should be deleted.

35. In the result, all the contentions of the learned Advocate for the petitioner fail and the petition is dismissed with costs.

36. Before concluding my judgment I should mention one matter. When this petition was opened by the learned Advocate for the petitioner it was found that the order of reference in question was issued in the name of my learned brother Justice Sri Sadasivayya, who was then the Law Secretary to the Government. We then brought this matter to the notice of the parties and both the parties informed us that they have not the slightest objection to this petition being taken up by this Bench. Thereafter the matter was proceeded with. Petition dismissed. AIR 1958 MYSORE 92 (VOL. 45, C. 24) "Dinanath v. Chandrabhagabai" MYSORE HIGH COURT Coram : 2 A. R. SOMNATH IYER AND S. S. MALIMATH, JJ. ( Division Bench ) Dinanath and another, Appellants v. Chandrabhagabai and another, Respondents. Misc. Appeal No. 117 of 1957, D/- 25 -2 -1958, against order of Dist. J., Belgaum, D/-3 -5 -1957. Guardians and Wards Act (8 of 1890), S.41(2) - GUARDIANS AND WARDS - APPOINTMENT - Joint family consisting of minor coparceners - Appointment of guardian of property - One coparcener attaining majority - Guardianship ceases to operate. Where a joint Hindu family consists of coparceners who are all minors, and the Court appoints a guardian of property, for that group as a whole, as soon as one of the coparceners attains majority, the guardianship ceases to be operative and the Court is bound to hand over the joint family property to such coparcener, who has attained majority, although the other coparceners are minors. ILR 32 Bom 259 and ILR 30 Bom 152, Relied on. (Paras 5, 6, 7) (The property was ordered to be handed over to the adult coparcener, after fixing the maintenance to be paid to his widowed mothers and unmarried sisters and step brothers and after taking adequate security from him in respect of amount due to the family under the Government securities and it was also ordered to impose a condition that the property should not be alienated without sanction of the Court until all the minor brothers attained majority.) (Para 8) Anno: AIR Man., Guardians and Wards Act, S. 41 N. 1. CASES REFERRED: Paras (A) (08) ILR 32 Bom 259: 10 Bom LR 279 5 (B) (06) ILR 30 Bom 152: 7 Bom LR 809 5 (C) (95) ILR 19 Bom 309 (FB) 5 A. V. Albal, for Appellants; V. S. Gunjal, for Respondent 1. Judgement SOMNATH IYER, J: On an application made under the provisions of the Guardians and Wards Act, the Deputy Nazir of the Court of the District Judge, Belgaum, was appointed guardian of the properties of the four minor sons of one Shripad Deshpande, who left behind him those four minor sons, his two widows and also a daughter by his first wife Laxmibai and another daughter Gulab by his second wife Chandrabhagabai. Pursuant to a notification issued under the provisions ot sub-s. (6) of S. 4 of the Guardians and Wards Act by the Government of Bombay in the year 1954, the personal Assistant to the Collector of Belgaum was appointed guardian of the properties of those four minor sons in place of the Deputy Nazir of the District Judges Court, Belgaum, who had been originally appointed as such guardian.

2. The eldest of those four brothers completed the age of 21 years on April 25, 1957, whereupon he made an application (Ex. 44) in the Court below that possession of the properties in respect of which the said guardian had been appointed should be restored to him. In that application he undertook to abide by such terms as might be imposed by the Court in regard to the payment of adequate maintenance to his step sister Gulab, to his step mother Chandrabhagabai and to his mother Laxmibai and his two sisters who were still unmarried.

3. The Court below, although it came to the conclusion that on account of appellant 1 Dinanath Shripadrao Deshpande having completed the age of 21 years and having therefore ceased to be a ward, the guardianship in respect of the properties belonging to himself and his three brothers had terminated, nevertheless declined to gran the application made by the first appellant on the ground that he was a person who was employed in a place other than that in which the properties of the family were situate and also on the ground that the first appellant should be allowed some time to attain sufficient maturity although he had attained majority and directed that the properties should continue to be in the possession of the guardian. Against that order the appellant Dinanath Shripad Deshpande, the eldest son and his mother Laxmibai have both appealed.

4. On behalf of the appellants it is argued by Mr. Albal that the order of the Court below is opposed to the provisions of Ss. 39 and 47 of the Guardians and Wards Act. He has urged before us that under the provisions of Cl (J) of S. 39 of the Act, the Court ought to have removed the Personal Assistant to the Collector of Belgaum from the Guardianship of the properties of the minors by reason of such guardianship having ceased under the law to which the minors were subject. His argument was that the four minora, when a guardian was appointed for their property, being governed by the Hindu Law, soon after any one of them attained majority as indeed appellant 1 did in this case, the guardianship of respondent 2 who is the Personal Assistant to the Collector, Belgaum, at once terminated notwithstanding the facts that three of his brothers continued to be minors.

5. In support of his contention, he has drawn our attention to two decisions of the High Court of Bombay in Ramchandra v. Krishnarao, ILR 32 Bom 259 (A), and in Bindajee v. Mathurabai, ILR 30 Bom 152 (B). In the latter case ILR 30 Bom 152 (B), it was observed as follows: "The reason of the rule that when the joint family originally comprises an adult, a guardian of the property cannot be appointed, (in our opinion) involves the conclusion that as soon as there is an adult coparcener any guardianship of the property previously constituted either ceases or is liable to cease, for then there is no longer any property in respect of which there can be a guardian. Justice Chandavarkar in ILR 32 Bom 259 (A), referring to that observations said that he accepted it as laying down the correct law in such cases. Justice Chandavarkar also proceeded to observe as follows : "Where a joint Hindu family consists of coparceners who are all minors, the coparceners forming one group the Court has jurisdiction to appoint a guardian of the property for that group as a whole. But when, subsequently, one of that group arrives at the age of majority the ruling of the Full Bench in Virupakshappa v. Nilgangava, ILR 19 Bom 309 (C), must apply and the guardianship of the person so appointed by the Court must cease. The District Judge is right in the present case in holding that as soon as the respondent arrived at the age of majority, the order appointing the Collector guardian of the property ceased to be operative, and the Court was bound to hand over the joint family property to the coparcener who had become an adult, although the other coparcener is a minor."

6. It appears to me that the above cases lay down the correct law.

7. The first appellant, who it is admitted, is an educated person holding an employment of trust and responsibility in a Bank at Hubli can well take care of himself and his family properties. Further, his guardianship, at any rate of appellant 1s properties ceased under the provisions of sub-s. (2) (c) of S. 41 of the Act, the moment the first appellant attained the age of majority and completed the age of 21 years. 8.The order of the Court below is therefore quite unsupportable and must be and is set aside; hut subject to this condition that before the Court below hands over the family properties to the possession of the first appellant to which he is entitled, it will enquire into the question as to how much maintenance should be paid to the step sister, the three brothers of the first appellant and to the appellants two sisters and mother Laxmibai. It will hold the necessary enquiry into those matters and fix up adequate and suitable sums of maintenance to be paid to those persons and direct that such sums of money shall be paid to them. The Court below will also take adequate security from the first appellant in regard to the amounts due to the family under the Government securities whose face value is stated to be about Rs. 37,000/-. It will also impose a condition on the first appellant that he will not alienate without the sanction of the Court any of the family properties handed over to his possession until his three brothers complete the age of 21 years. 9.This appeal is allowed to the extent indicated above. Since the respondents did not contest the application of the first appellant in the Court below, there will be no order as to costs.

10. MALIMATH, J.: I agree. Appeal allowed. AIR 1958 MYSORE 93 (VOL. 45, C. 25) "Mariyappa v. Puttaramayya" MYSORE HIGH COURT Coram : 2 N. SREENIVASA RAU AND K. S. HEGDE, JJ. ( Division Bench )

V. Mariyappa and others, Appellants v. B. K. Puttaramayya and others, Respondents. Regular Appeal No. 51 of 1951-52, D/- 8 -10 -1957, against decree of Second Addl. Dist. J., Bangalore, in O. S. No. 84 of 1948-49. (A) HINDU LAW - RELIGIOUS AND CHARITABLE ENDOWMENTS - Hindu Law - Religious endowments - Mutts - Tests for determining whether institution is mutt. It is no doubt true that the Hindu Law recognises institutions known as Mutts whose "primary purpose is the maintenance of a competent line of religious teachers for the advancement of religion and piety, for the promotion of religious knowledge, the imparting of spiritual instructions to the disciples and followers of the Mutt and the maintenance of the doctrines of particular schools of religion or philosophy". But the mere use of the word Mutt to describe an institution does not make it a Mutt such as is contemplated by the Hindu Law, with its specific incidents as regards the rights and duties of a Mathadhipathi or Mahant, Mathas and temples are, no doubt the most common forms of Hindu religious institutions. But dedication for religious or charitable purposes need not necessarily take one of these forms. The maintenance of Sadavartas tanks, seats of learning and homes for the disabled or the destitute and similar institutions is recognized by and well known to Hindu Law, and when maintained as public institutions, they must be taken to have a legal personality as a Matha or the deity in a temple has, and the persons in charge of the Management would occupy a position of trust. In the case of institutions which have come down through antiquity their activities, their tradition and usage would indicate whether they are Mutts or not. In the case of institutions whose origin can be traced and particularly those which are governed by provisions incorporated in a document, the real character of the institution has to be gathered from circumstances of its origin and the provisions of the document. (Para 12) (B) Civil P.C. (5 of 1908), S.92 - PUBLIC TRUST - TRUST - Settling a scheme - Powers of Court. The Court has discretion under S. 92 of the Code of Civil Procedure to frame a scheme in such a manner as commends itself to the Court so long as the scheme fulfils the objects sought to be achieved by the institution. (Para 14) Anno: AIR Com., C. P. C., S. 92 N. 21. N. Bheemacharya, for Appellants; V. R. Vasudeva Sastry, for Respondents 1 to 5; M. Chinnaswamy, for Respondent 6. Judgement N. SREENIVASA RAU, J. :- This appeal relates to an institution known as the Sahajananda Bharathi Mutt situated in Bangalore City. There is a temple of the deity Omkareswara in the Mutt. The plaintiffs claiming that they were the disciples of the Mutt which was a public institution, filed the suit out of which this appeal arises for the formulation of a scheme for the proper and efficient Management of the institution after removing defendants 1 to 11 who claimed to be in charge of the institution as members of the Managing Committee. Defendant 12, according to the plaintiffs, was the presiding Swami of the institution, having succeeded to that office according to tradition and usage which required that a Sanyasi should be the head of the Mutt, and had been in charge of its management with the help of an advisory Board. This Board did not function properly and later on two of the members i.e., defendant 1 and one Narayana Rao deceased, purported to appoint the others as members of the Managing Committee. This Committee had no legal or moral sanction behind it. They were seeking to oust defendant 12 from the Mutt. It was in these circumstances that they approached the Court for the removal of defendants 1 to 11 and for the formulation of a scheme. Defendants 1 to 11 in resisting the suit took up the stand that the institution was not a public one, that it had been founded by Sahajananda Swami who, under his will, had provided for its management by a Board of Trustees, that Defendants 1 to 11 constituted the present Board of Trustees, that the institution was not a Mutt which, according to tradition and usage, had to be presided over by a Sanyasi, that defendant 12 was an appointee of the Board charged with certain duties relating to the institution, that he had acted against the interests of the institution in consequence of which the Trustees had filed a suit for his removal and that the present suit was a Counter measure instigated by Defendant 12. They also denied that the plaintiffs were disciples of the Mutt and contended that the Mutt had no disciples as such. Defendant 12 supported the case of the plaintiffs.

2. The learned Second Additional District Judge, Bangalore, found that the institution had to be presided over according to tradition and usage by a Sanyasi, that defendant 12 was the present holder of the office, that the plaintiffs were disciples of the Mutt, that the institution was in the nature of a public trust and that the circumstances called for the framing of a scheme. He accordingly formulated a scheme by the terms of which the management of the institution had to vest in a Committee of management consisting of seven persons including the Sub-Division Officer Bangalore Sub-division, who was to be its ex-officio President. The members had to be chosen at a general meeting of the devotees of the Mutt to be held for the purpose. The Committee was to hold office for three years and would have the right of filling up by co-option any vacancies that might occur in the interval. An interim Committee was also appointed to hold office for one year. The Swami occupying the seat by succession was to be the spiritual and religious head of the Mutt and was liable to be removed for misconduct or other sufficient cause by a majority of 75 per cent, of the disciples present at a meeting called for the purpose by the committee of Management. Defendants 1 to 5 and 7 to 11 have preferred this appeal challenging the decision on various grounds.

3. In the course of arguments the learned Advocate for the Appellants stated that he would not press that the institution was not a public institution and the parties were agreed that the question of the alleged mismanagement by defendants 1 to 11 need not be gone into and that an appropriate scheme may be framed vesting the management in a committee consisting of 11 persons chosen by common agreement from lists filed in this Court by the Advocates. It was also agreed that in addition to the above persons the Sub-division Officer, Bangalore Sub-division, should be a member and ex-officio President of the Committee, and in the event of its not being possible to secure him the Committee of Trustees will consist only of the eleven persons mentioned above and would elect their own President. The Committee would have the right of filling up vacancies whenever they occur. The Sub-division Officer, Bangalore, was notified and requested to intimate to the Court whether he would be agreeable to be on the Committee and to be its ex-officio President. He appeared in person before the Court on 26th of September 1957 and expressed his willingness. 4.The main question that remains for consideration is whether the institution is a Mutt presided over by a Sanyasi succeeding to the office by tradition and usage, as it is in the light of a decision on this question that the scheme for the management of the institution has to be settled.

5. A large volume of oral evidence has been adduced by the plaintiffs and by defendant 12 in support of their case that the institution is a Matha Presided over by Sanyasi Swamis succeeding each other by tradition and usage. Defendant 12 has examined himself and his evidence will have to be dealt with later in some detail. 6.It might at once be mentioned that most of this evidence is not of much value as the witnesses are hardly in a position to speak from personal knowledge. It has been sought to be made out on behalf of the plaintiffs that the Mutt was founded by a Swami known as Venkatavadhuta who nominated Sahajananda Swami as his successor, that the latter in turn nominated one Veerananda Swami and that defendant 12 is the successor of Veerananda Swami having been nominated by him. P. W. 1 Munitareppa speaks to his fathers uncle one Muniappa alias Gejjappa having gifted a new Mutt an old mutt and some vacant site to Sahajananda Swami. He has produced an uncertified copy of the will by Gejjappa in which a reference is found to the above-mentioned gift. This witness is stated to have been about 50 years of age at the time of his examination i.e. in 1950. Gejjappas will is of the year 1887. The witness obviously cannot speak from personal knowledge. P. W. 2 Narayana Gowda has given evidence to the effect that the founder of the mutt was Venkatavadhuta Swami who was succeeded by Sahajananda Swami, that Veerananda Swami succeeded the latter and was in turn succeeded by Defendant 12. He says that he is the daughters son of one Irulappa. According to the plaintiffs, Irulappa gifted a piece of land on which the Omkareswara temple was got built by Venkatavadhuta Swami. This witness also speaks to defendant 12 having been ordained as a Swami by Veeni-nanda Swami. He says that Brahmins attended the function and poojas were performed, that defendant 12 was made to sit on a plank and a garland was put around his neck. The witness has given his age as 70 years, but the - learned Judge has noted that he appears to be 50 or 55 years. The document relied on to establish Irulappas connection with the land is Ex. 12 which is of the year 1872. The witness could have no personal knowledge of the matter. In cross-examination he first admitted that he had not seen Venkatavadhuta Swami but later stated not only that he had seen him but that he was present when Venkatavadhuta Swami ordained Sahajananda Swami. He says he was 18 years of age at the time. It has already been mentioned that there is a reference in Gejjappas will which is of the year 1887 to a gift of mutts and land made to Sahajananda Swami. Therefore Sahajananda Swami must have been initiated much earlier. It is doubtful whether the witness had even been born on the date of the will. Hence no importance whatever can be attached to the statement that he was present at the time Sahajananda Swami was initiated by Venkatavadhuta Swami. The witness goes so far as to say that Sahajananda Swami did not acquire any property for the mutt and did nothing for its improvement. This is contradicted by other oral and documentary evidence of the plaintiffs themselves. He says that Sahajananda Swami entrusted the management to Veerananda Swami. P. W. 3 Doddegowda alias Kunte Gowda speaks to his presence at the time defendant 12 became a swami. He says that the latter was seated on a plank, that a Rudrakshimala was put around his neck, that he was given kavi cloth and that pooja was performed and that it was Veerananda Swami who installed defendant 12. He denies the existence of a Committee of Management. The witness says that it was Sahajananda Swami that acquired property for the mutt while it was Venkatavadhuta Swami who acquired the mutt itself. But this is admittedly hearsay. P. W. 4 Manche Gowda also speaks to the initiation of defendant 12 by Veerananda Swami. He says that Venkatavadhuta administered Dharmaopadesha to his father but this can only be hearsay as the witnesss age is given as 55 years. P. W. 5 Kadegowda is another witness who speaks to the, initiation of defendant 12 by Veerananda Swami. He says that defendant 12 was in the mutt even before he became a sanyasi and that he was helping Veerananda Swami by bringing flowers, etc. P. W. 6 Siddalinga Gowda says that there will always be a sanyasi in the mutt, that Veerananda Swami educated defendant 12 and initiated him into sanyasa. P. Ws. 8 and 9 speak to their being sishyas of the Mutt. P. W. 10 says that the Mutt is- a sanyasi mutt and that one sanyasi after another becomes the head of the mutt and that Mysore Linganna brought defendant 12 to the mutt, mantropadesha was administered to him and ceremonies were performed. In cross-examination he says he did not ask defendant 12 as to who appointed him Swami of the mutt. This would seem to indicate that the initiation of defendant 12 into sanyasa did not necessarily mean his being made the Swami of the mutt. P. W. 11 says that Gejjappa founded the Mutt and so also did Venkatavadhuta but admits that he has no personal knowledge of these matters. P. W. 12 Venkatesha Sastri says he is a purohit of the mutt. He speaks to Veerananda Swami initiating defendant 12 into sanyasa asharama and japa and homa being performed on the occasion. He claims to have been one of the persons who officiated at the time under the principal purohit. He no doubt seems to suggest that the pattabhisakha of defendant 12 also Took place at the time and this would seem to imply that defendant 12 became the head of the mutt. But it is difficult to believe the evidence of this witness as he says that Veerananda Swami was ill at the time and died a few days after the initiation ceremony. It is in evidence and there can be no doubt whatever that Veerananda Swami lived for many years after defendant 12 began to reside as a sanyasi in the mutt. P. W. 13 Gurappa also speaks to the initiation of defendant 12. He says that Veerananda Swami was looking after the mutt at Madivala as also the suit mutt after defendant 12 became the Swami. This is not even the case of defendant 12. P. W. 14 Muniswaminayakar resides opposite the mutt and says he goes there every Monday to offer puja. He says that defendant 12 is managing the affairs of the mutt, that there was no meeting of any committee and that defendant 12 does not maintain any account of income or expenditure. In cross-examination he says that Sahajananda Swami did not acquire any property for the temple or the mutt and that he does not know if he was writing any book. It is in evidence that Sahajananda Swami wrote and published books and the sale of his philosophical works has been regarded as one of the important activities of the mutt. P. W. 15 Buttasame Gowda is the second plaintiff and claims to be one of the disciples of the mutt. He says that it is a sanyasi mutt, i.e. a mutt in which one sanyasi becomes a swami after another. P. W. 16 Venkategowda is plaintiff 4. He also claims to be a Bhaktha of the mutt. He was one of the persons who applied to the Deputy Commissioner for permission to file the suit. In the course of cross-examination he states, strangely enough, that their petition to the Deputy Commissioner was to the effect that defendant 12 was not properly managing the mutt and that therefore a scheme should be prepared.

7. Though eight persons have been examined as defence witnesses, the first three are witnesses examined for defendant 12, who supports the plaintiffs case and D. W. 8 is defendant 12 himself. D. W. 4 is a formal witness who speaks to the entry of Gejjappas will in the wills register of the Sub-Registrars office. D. W. 1 Nanjundappa is an archak in the Omkareswara temple situated in the mutt. He says that he has been the archak there for 12 years and that his father was archak for nearly 20 years before him. He says that it was Veerananda Swami who appointed him as archak and that defendant 12 became the Swami of the mutt after Veerananda Swami. D. Ws. 2 and 3 are tenants of shops belonging to the mutt and speak to their paying rent to defendant 12.

8. D. Ws. 5, 6 and 7 are the three witnesses examined for the contesting defendants and all of them are members of the committee of management and have been arrayed as defendants 8, 1 and 11 respectively. D. W. 5 M. L. Naganna Nagappa says he was appointed a trustee or a member of the committee of management of the mutt in 1938 and speaks to the entry in Ext. III (the proceedings book of the committee) relating to his appointment and to subsequent entries. He speaks to the entry Ext. III (a) according to which defendant 12 had to maintain accounts under the direction of the President and one other member of the committee. He says that Exts. 4, 4 (a) and 5 are reports given by defendant 12 and that Ext. 5 (a) is the statement of account accompanying Ext. 5. He says that the members of the Committee not feeling satisfied with the accounts submitted by defendant 12 decided to take suitable action against him. D. W. 7 Singannachar and D. W. 6 Mariyappa are the only two surviving members of the committee appointed by Sahajananda Swami under his will. D. W. 6 Mariappa says that he was a disciple of Sahajananda Swami in the sense that he along with some others was being taught Vedanta by the Swami. He says that the Swami had no other kind of disciples. He states that there was no guru-parampara i.e. succession of Swamis, presiding over the mutt either before or after Sahajananda Swami. He speaks to Ex. II which is a certified copy of the will or trust deed executed by Sahajananda Swami. He says that amongst the five sanyasis mentioned in Ex. II who were residing in the mutt, only Veerananda Swami stayed on in the mutt and the rest left it and that Veerananda Swami was sent out of the Mutt by the Committee of Management appointed under the above-mentioned document of Sahajananda Swami. He says that Veerananda Swami was so removed on the complaint made by defendant 12. He speaks to Ext. III, the proceedings book of the committee, and to the subsequent litigation between defendant 12 and the Committee members in respect of an item of property claimed by defendant 12 as his own as also in regard to other disputes. He says that he became a sishya of Sahajananda Swami in 1902 or 1903 and that he does not know who initiated Sahajananda Swami or Veerananda Swami into sanyasa. In the course of cross-examination he says that Sahajananda Swami founded the mutt and the temple about 50 years previously that he was about 17 or 18 years old then and that the mutt was built first and the temple was built two or three years later. Later in his deposition, however, he says he does not know if the temple was built in 1872 by Venkat-avadhuta or if the mutt was built by Gejjappa at about the same time. He admits that he does not know how Sahajananda Swami got the mutt and the temple. He also admits his previous statement Ex. E-2 to the effect that defendant 12 was managing the mutt property and that he is referred to as the swami of the mutt in the proceedings book Ex. III. D. W. 7 Singannachar speaks to Ex. II, Sahajananda Swamis will, under which he was appointed as one of the members of the committee to look after the management of the mutt. He admits that he does not know the previous history of the mutt or the temple in the mutt though he also says that he had come to the mutt when Sri Omkareswara Swamis image was installed. 9.Defendant 12 has examined himself as D. W. 8 in support of his claim that he is the head of the mutt by virtue of succession. He says that the mutt was founded by Venkatavadhuta, that the latter also founded the Omkareswara temple, that Gejjappa built the mutt and entrusted it to Venkatavadhuta, that the site on which the temple was built originally belonged to Jrulappa and that it was gifted by the latter to the mutt. He has produced Exts. 12 to 15 in support of these statements. He says that after Venkatavadhuta his disciple Sahajananda Swami succeeded him and that the latter in his turn was succeeded by Veerananda Swami who later on installed defendant 12 as the Swami. It is clear, however, that he could have no personal knowledge of the origin of the mutt or the temple and that he could speak from first hand knowledge only in regard to matters that transpired subsequent to his entering the Mutt, which was admittedly long after the death of Sahajananda Swami.

10. It will be seen from the above evidence that it is D. W. 6 Mariyappa and D. W. 7 Singannachar who can speak with some firsthand knowledge of the institution. But it is clear that even by the time they came to know about the institution, which appear to be about 1901 or 1902, Sahajananda Swami had been there for many years.

11. The plaintiffs and defendant 12 rely also upon same documentary evidence in support of their case about the origin of the Mutt and the temple. The earliest document is Ext. 12, dated 11-1-1872, which is a letter addressed by the Bangalore Town Municipal Board to Erulappagowda and directs him to approach the Deputy Superintendent of Survey for further action in regard to his request for erecting a mantap, constructing a well and a compound wall in the land measuring 23 yards gifted by him to Venkatavadhuta Swami. There is no indication in it of the location of the plot. There is some oral evidence to the effect that Erulappa is buried in the Mutt premises. The next document is Ext. 15 which is of the year 1880 and is an endorsement issued by the Bangalore Town Municipal Board to Venkatavadhuta Swami informing him that orders have been issued for the grant of a licence to him to put up a structure as applied for by him and that the plan has been returned to him duly signed. That plan is Ext. 14. Venkatavadhuta Swami is described in Ext. 13 as being a resident of Kalasi Lines. Ext. 14 is another endorsement by the Bangalore Town Municipal Board to Venkatavadhuta Swami. It is dated 24-11-1880 and states that he has been granted an extension of three months time for completing the work of his Mutt. The suit Mutt also is situated in Kalasi Lines or what is now called Kalasipalyam. But in the absence of any material to show the exact location of the plot it would be difficult to identify Venkatavadhuta Swamis Mutt as the suit Mutt. It may also be mentioned that Defendant 12 himself has stated that another mutt is situated opposite the suit Mutt. The next document is Ex. A-1, copy of the will of Muniyappa alias Gejjappa, entered in the Wills Begister of the Sub-Registrar. It is dated 1-8-1887 and there is a recital in it to the effect that the testator had previously given to Sahajananda Swami a new Mutt and an old Mutt, cocoanut trees and land by the side of it, situated at Doddabailkhana, Bangalore. It is not seriously disputed that Kalasipalyam forms part of Doddabailkhana. But it Gejjappa made a gift of the structures and land above referred to Sahajananda Swami it follows either that the Mutt occupied by Venkatavadhuta was different or that it had come to be owned by Gejjappa. Defendant 12 seeks to make out that Gejjappa gifted the property to Sahajananda Swami, even when Venkatavadhuta was alive and gives the latters old age as the reason. Defendant 12 had not even seen Sahajananda Swami. Therefore, the above statement is an obvious effort to establish some sort of identity between Venkatavadhutas Mutt and Sahajananda Swamis Mutt. There is no evidence as to when Venkatavadhuta died. Ex. A-1 Gejjappas will does not indicate when the gift of land garden and the old and new mutts was made by Gejjappa to Sahajananda Swami though it must have been some time before 1887, the year of the will. The language employed in the will would seem to show that the old and new mutts gifted were buildings and not running institutions. Some reliance is also placed upon the statement in the preface to Ext. D, a book entitled "Karnataka Vritti Prabhakaram" written by Sahajananda Swami to the effect that the latter reached Bangalore with his mother with the help of Venkatavadhuta. An account of the life of Sahajananda Swami is given in the preface. Apart from the question of the admissibility of this statement it would seem to show that that was all the part played by Venkatavadhuta in Sahajananda Swamis career. For, it would be totally unlikely that if Sahajananda Swami was the disciple and successor of Venkatavadhuta those facts would fail to be mentioned. On the other hand the same account of Sahajananda Swamis life states that he was the direct disciple of Sri Gundabramhananda Swami. This is confirmed by the recitals in Ext. III, proceedings book of the Committee, in which Sahajananda Swami is described as the disciple initiated into the Ashrama by Gundabramhananda Swami. (Text in Kannada omitted.) Defendant 12 has stated in the course of his evidence that Gundabramhananda Swami had three disciples one of whom was Venkatavadhuta who founded the suit mutt and that Sahajananda Swami succeeded him. This account is obviously an attempt to reconcile the discrepancies and has admittedly no basis in personal knowledge. In the light of this state of evidence there is no basis for accepting the plaintiffs case that the Mutt was founded by Venkatavadhuta and that Sahajananda Swami was his successor and in that capacity was in charge of the Mutt and its property.

12. Ext. II is a copy of the Will dated 17-7-1912 executed by Sahajananda Swami. In this he describes himseit as the Dharmakartha of Sri Omkareswara Deity. It is recited in the document that the Swami got the Mutt and temples built. It gives a schedule of six items of immovable property, amongst which item 5 is the premises of the Mutt and temple. It was contended by the plaintiffs that as Sahajananda Swami only succeeded to the headship of the Mutt, he had no right to dispose of by will the property belonging to the institution. This contention cannot be accepted since as found above, Sahajananda Swami did not succeed Venkatavadhuta. There is no reason to disbelieve the recital in the Will that Sahajananda Swami founded the Mutt and all the Schedule items of property were acquired by him. In so far as the case for the plaintiffs and Defendant 12 is based upon tradition and usage, it has no substance, since that question would arise for consideration only in the case of an institution of immemorial origin. We have therefore to look to the terms of Ext. II for ascertaining the rights and responsibilities in regard to the management of the institution and its property. Plaintiffs and Defendant 12 have come forward with the case that Sahajananda Swami was succeeded by Veerananda Swami as the head of the Mutt and that the latter appointed Defendant 12 as his successor. The oral evidence in the case has already been discussed above, and it has been indicated that it does not establish that Veerananda Swami was appointed by Sahajananda Swami as his successor. The terms of Ext. II seem to show not only that Veeranandaswami was not appointed as his successor by Sahajananda Swami, but that the latter contemplated no such arrangement. The document recites that five disciples, viz. Nithyananda Swami, Yogananda Swami Veerananda Swami, Byrappa Swami, and Akhandananda Swami were residing in the Mutt, that they had been initiated into Sanyasa by Sahajananda Swami and that they were studying under him and performing duties assigned to them by him. It provides for their residence in the Mutt, their continuing to carry on the worship of the deity, the celebration of Utsawas, etc. If it was in the mind of Sahajananda Swami that one of these five should be his successor as the head of the institution it would have been the most natural thing for him to make definite provision for it in the document and for future succession. No such provision is made. This cannot be regarded as an inadvertent omission. Nor is any sort of differentiation made amongst these five sanyasi disciples. On the other hand another provision in the document contemplates the contingency of their being sent out of the institution in the event of misconduct. The natural inference to be drawn from these circumstances is that Sahajananda Swami did not intend a succession of Sanyasi Swamis to preside over the institution. The learned District Judge seems to have been greatly influenced by the institution being described as a mutt. He says that a Mutt cannot exist without a swami and a temple without a deity and a country without a king. It is no doubt true that the Hindu Law recognises institutions known as Mutts whose "Primary purpose is the maintenance of a competent line of religious teachers for the advancement of religion and piety, for the promotion of religious knowledge, the imparting of spiritual instruction to the disciples and followers of the Mutt and the maintenance of the doctrines of particular schools of religion or philosophy". But the mere use of the word Mutt to describe an institution does not make it a Mutt such as is contemplated by the Hindu Law, with its specific incidents as regards the rights and duties of a Mathadhipathi or Mahant. Mathas and temples are, no doubt the most common forms of Hindu religious institutions. But dedication for religious or charitable purposes need not necessarily take one of these forms. The maintenance of Sadavartas, tanks, seats of learning and homes for the disabled or the destitute and similar institutions is recognized by and well known to Hindu Law, and when maintained as public institutions, they must be taken to have a legal personal it, as a Matha or the deity in a temple has, and the persons in charge of the management would occupy a position of trust. In the case of institutions which have come down through antiquity their activities, their tradition and usage would indicate whether they are Mutts or not. In the case of institutions whose origin can be traced and particularly those which are governed by provision incorporated in a document, the real character of the institution has to be gathered from the circumstances of its origin and the provisions of the document. The evidence in the case makes it clear that Sahajananda Swami engaged himself in studies and in imparting spiritual instructions to those who came and sought it. He also appears to have founded a temple as an integral part of the institution and arranged for the daily worship of the deity, and for periodical celebrations, etc. Provision also appears to have been made for the maintenance of the inmates as also for the feeding of occasional visitors, particularly those regarded as holy men and for feeding during celebrations. Even though he founded and built the institution, he seems to have regarded himself as a trustee "Dharmakarta". The expenses seem to have been met from the income from the property attached to the institution and from gifts and offerings. The activities of the institution and his own life of piety and devotion to learning appear to have attracted visitors who, as is usual and natural amongst the people at large, made offerings to the Swami and to the temple. But it is clear that there was no particular class, group or community who could be described as the disciples of the Mutt. Those who studied under him were his actual disciples. Others who visited the Mutt and the temple either frequently or casually did not and could not acquire any special status as Sishyas. Some witnesses for the plaintiffs have stated that they were the disciples of the Mutt and that such disciples are spread over various parts of the Mysore State. This description can only mean that such persons visited the mutt to make offerings to the deity or the swami as an act of piety. The provisions of the Will Ext. II, as already mentioned above, also make it clear that Sahajananda Swami did not contemplate a succession of swamies to be in charge of the institution. His intention was to provide for the continuance of religious study, worship of the deities in the premises, the feeding of the people who gathered during occasions and other similar activities. It is, therefore clear that the institution, though one dedicated to religious purposes, was not a Mutt in the legal sense of the term.

13. Some reliance is placed upon the existence of a Gaddige or Gadi in the Mutt and referred to in Ext. 2 as indicating the recognition of a peetha or sacerdotal office. It is clear, however, from the evidence in the case that the word "Gaddige" is used in the same sense as a "Samadi" or a mound or monument over the grave of a revered person. The course of events after the death of Sahajananda Swami also makes it clear that the institution was not run as a Matha. It is seen from Ex. 17 that the Swami passed away on 29-1-1914. Ext. 18 is an appeal dated 7-1-1915 issued under the signatures of Nithyananda Swami and Veerananda Swami for the celebration of the first aniversary of Sahajananda Swamis death. The fact that it is signed by two of the five sanyasis, who as shown in Ext. II were resident disciples of the deceased Swami, shows that Veerananda Swami did not become the head of the institution. Under Ex. II, Sahajananda Swami appointed a Committee of 17 persons to be in charge of the institution and its property. The day to day activities of the institution were to be carried on by the five disciples. It may incidentally be remarked that no exclusive responsibility or right is given to any one of these five. They were enjoined to carry on these duties subject to the rules to be framed by the Committee. It is the members of the Gommittee that were authorised to meet the expenditure for the worship of the deity, for the Deeparadhana, puja, feeding of pious guests, etc. It is also specifically stated that the members have full liberty and authority to realise the dues and to regulate the income and expenditure. Ext. III the proceedings book, maintained by the Committee shows that the members began to function in accordance with the terms of Ext. II soon after the death of Sahajananda Swami. The first entry is dated 19-4-1914 and appoints the various office bearers and directs the Secretary and the Assistant Secretary to prepare an inventory of the property belonging to the Mutt. Some of the resolutions deal with the printing and sale of the works of Sahajananda Swami. It is also seen that at a meeting held on 23-7-1926 Veerananda Swami who as the man on the spot had been in charge of the affairs of the mutt was called upon to render an account of his management, and that Veerananda Swami has signed the proceedings of that date. The proceedings of the Committee held on 29-12-1927 show that Defendant 12 reported to the Committee that Veerananda Swami had left the mutt and gone away to Madivala, that nevertheless he was making secret visits to the Mutt and removing articles. It was resolved on that day that Veerananda Swami should not be allowed to enter the mutt and that defendant 12 should prevent him if he should try to do so. The proceedings held on 22-7-1928 show that as in the view of the Committee defendant 12 had satisfactorily looked after the duties entrusted to him his appointment was continued subject to his good conduct. These entries are enough to show that Veerananda Swami did not function as the head of the Mutt. It is the case of the Plaintiffs and Defendant 12 that the latter was initiated by Veerananda Swami into Sanyasa and appointed by him to be his successor as head of the mutt. The proceedings of the Committee above referred to totally contradict this version. For, it states that Defendant 12 had his Bramopodesha from Chikkalingannaswami, the principal disciple of Sahajananda Swami. It may be added that Defendant 12 has signed the proceedings of the above meeting. It is interesting to note that Defendant 12 himself has got exhibited Ext. 46 a letter dated 28-7-1926 addressed to him by Chikkalinganna. It is written from Bangalore to Defendant 12, who is described as Siddiah, care of Tirupathi Sri Nagavadhootha Swamis mutt. It asks Defendant 12 to go to the suit mutt to relieve Veerananda Swami. The mode of addressing Defendant 12 in the letter would indicate that Defendant 12 had not yet become a Sanyasi by that time. Ext. 9 is "Sri Vedanthapanchadesi with a Kannada commentary of Sahajananda Swami published in 1930. Defendant 12 has got incorporated in that book a note on the publication of the second edition. That note is interesting for more reasons than one. It states that Veerananda Swami had not rendered proper accounts to the Trustees. It refers to his (defendant 12) having been asked by the Trustees to look after the affairs of the institution. It further states that in taking up the task he had obeyed the commands of his Guru Sri Chikkalingaswami, the dear disciple of Sahajananda Bharathi Swami. These statements are in the nature of categorical admissions in regard to the status of the Committee, his own status and his initiation by Chikkalingaswami and not by Veerananda Swami. That is the reason why Defendant 12 was later on at pains to delete this note from the copies of the book. It may be mentioned that, as late as 9-6-1947, Defendant 12 in the notice got issued by him through his Advocates to the Committee members had stated that he was nominated as Swami of the Mutt by Swami Linganna about the year 1926. The effort of Defendant 12 to disclaim responsibility for the note Ext. 9 (a) in the book Ext. 9 is on a par with his statement that he was not aware of the existence of the will Ext. II till litigation started between him and the Committee and that he signed the entries in the proceedings book Ex. III at the dictation of the Committee Members. It is interesting to note that one of such members was Chikkalinganna or Chikkalingaswamy himself, the guru of defendant 12. Not only the entries in the proceedings book but the report Ext. IV and account patti Ext. IVA indicate that Defendant 12 was fully aware of the nature and details of the proceedings and of the fact that the Committee was functioning under the terms of Sahajananda Swamis will. It also shows that he was appointed by the Committee acted under the directions of the Committee and submitted reports in respect of matters entrusted to him. There are also entries to show that he himself took the initiative in drawing the attention of the Committee to several matters. It is, therefore, idle for defendant 12 to contend that he is the head of the institution and that he can function independently of the control and directions of the members of the Committee. Apparently the persons who constituted the members of the Committee from time to time, having regard to the fact that they were themselves men engaged in various trades and occupations and to the trust reposed by them in Veerananda Swami and later on in Defendant 12, allowed them not only to carry on the day to day activities of the mutt but to deal with the property belonging to the mutt also. Many documents have been exhibited by Defendant 12 to show that various public bodies and functionaries such as the Municipality, the Land Acquisition Officer, the Electrical Department and the Revenue Department have addressed letters to Veerananda Swami and later on the Defendant 12 himself as persons in charge of the mutt. Veerananda Swami and Defendant 12 have even drawn the compensation amounts granted for the acquisition of some items of property belonging to the mutt. It is also seen that Veerananda Swami obtained letters of administration in regard to a small amount standing in the name of Sahajannda Swami in the Post Office Savings Bank Account. It is also in evidence that Defendant 12 had leased out shops belonging to the Mutt. These facts, however do not indicate any recognition of the right either of Veerananda Swami or of Defendant 12 to the unfettered Management of the institution. As already mentioned above the Committee Members took steps to remove Veerananda Swami when they found that he was abusing his position of trust. It is ironical that Defendant 12 who brought the misdeeds of Veerananda Swami to the notice of the Committee Members, should later on have tried to arrogate to himself the status of the head of the mutt when in his turn he was called upon to render an account of his dealings in regard to the matters relating to the mutt. It is significant that the plaintiffs who support the stand of defendant 12, nevertheless, have prayed that the property and assets of the institution may be vested in the Board of Trustees to be appointed, though they add, that his rights need not be curtailed. Defendant 12 also in his written statement says that he has no objection for a scheme being prepared, provided his rights are not interfered with. Neither the plaintiffs nor Defendant 12 specify the rights. If they are those of the head of a mutt, a Committee or a Board would have no locus standi at all. Defendant 12 came out with the version that he appointed a board of advisers to assist him in the management of the Mutt. This has been found rightly by the learned District Judge to be totally unfounded. The matter, however, does not need any further consideration in view of our finding that Defendant 12 has no right at all other than that of residing in the mutt carrying on the day to day duties of worship, study, Dasoha, etc., under the directions and control of the Committee of Management and subject to his good conduct. Whether he has conducted himself in such a way as to render himself liable to be sent out of the mutt does not arise for consideration in this appeal.

14. In the light of the above finding and the agreed statement by the Advocates for the parties to this appeal we think that a scheme should be framed for the management of the institution. It has been urged before us that any scheme to be formulated must be strictly in conformity with the terms of Sahajananda Swamis will. We do not think that that is the correct legal position. The Court has discretion under S. 92 of the Code of Civil Procedure to frame a scheme in such a manner as commends itself to the Court so long as the scheme fulfils the objects sought to be achieved by the institution. It is seen from the material on record that Swami Sahajananda founded and built up the institution and acquired substantial property for it and was in charge of it for three decades. One of the witnesses has stated that he was a Brahmin. But it would appear from the account of his life given in Ext. D the book Karnataka Vritti Prabhakaram" that he was a Saiva Kshatriya by birth. But the matter does not appear to be one of any material importance since it is clear that he was a man of catholic outlook and made no distinction of caste or community in extending the benefit of his teachings or in regard to the access to the mutt or temple. The only classes of persons who were not visiting the institution are stated to be Mohamadans and "untouchables". Those who came to him for instruction in Hindu Philosophy seem to have belonged to various castes and persuasions by birth. Amongst the 17 persons who are appointed by him under his will as members of the Committee of management not only were there his own disciples but other men of standing and even a Swami who owed allegiance to another guru. His idea seems to have been to see that men of substance and commanding esteem should be in charge of the management of the institution. We have also mentioned above that the institution has no definite class of disciples or bhakthas, though it is not unnatural that persons of the neighbourhood and others constantly coming to the institution for the worship of the deity or offering their respect to the Swami there might have regarded themselves as disciples. It is seen from the evidence on record that many of the witnesses examined on behalf of the plaintiffs come from the area from which defendant 12 originally hailed. That may account for a number of persons from that area quite honestly regarding themselves as disciples of the mutt. But that circumstance in itself would not place them in a different category from others who might go to the institution to offer worship to the deity and respect to men of religion whom they found there. Quite clearly Sahajananda Swamy did not have it in mind to confine the membership to his disciples. In any event that would not have been possible after all his direct disciples had passed away. It is seen that Sahajananda Swami also provided for vacancies as and when they arose being filled up by the surviving members of the Committee. It is natural that he should have expected the five sanyasis whom he had initiated into sanyasa and who were residing in the mutt to carry on the day to day duties in the mutt under the supervision of the Committee. The evidence shows that only two of them were in the mutt when the appeal, Ext. 18, for the first anniversary was issued and that the others had left. Later on it was only Veerananda Swami that remained in the mutt. It was, therefore, natural not only that he should be looking after the day to day work of the institution but that the persons who came to the mutt should think of him as the Swami of the mutt, and that they should think in the same terms of Defendant 12 also when he began to reside in the mutt and look after the work there. But it is seen, however, from Ex. III and other documents exhibited in the case that the Committee continued to function till litigation started between them and Defendant 12, though it did not concern itself with the day to day affairs of the institution. It is also seen from Ex. III that vacancies arising from the death of the original members were periodically filled up and that even a lady figured as a member of the committee.

15. We have held that the institution is not a mutt in the sense in which it is used in the Hindu Law, and that it has no specific or definite class of disciples. Hence, no question of some one being the head of the mutt arises and no provision is necessary for election by the disciples or bhakthas, as no such definable class exists. It appears to us that a body like that suggested by agreement amongst the parties with authority to fill up vacancies and with the Sub-divisional Officer, Bangalore, as a member and Ex-officio President would be the most appropriate body for the management of the institution, and for a substantial fulfilment of the objects indicated in the Will of Sahajananda Swami. All the parties are agreed that the inclusion of the Sub-divisional Officer, Bangalore, will conduce to the stability of the Committee, to its functioning in a regular and methodical way and as a deterrent to the development of factious spirit and it is but appropriate that the only two surviving members of the original Committee should find a place on the new Committee. We accordingly set aside the scheme formulated by the learned District Judge and in its place substitute the following Scheme : A Committee of Trustees consisting of 12 members shall be vested with the management of the institution. The first members of the Committee shall be :

1. The Sub-divisional Officer, Bangalore (Ex-officio President).

2. Sri Y. Mariyappa, son of Venkataramappa, residing in Manavarthapet, Bangalore City, (member of the original committee, Defendant 1).

3. Sri Singannacharya, residing in Kalammana Temple Street, Mysore City, (member of the original committee, Defendant 11).

4. Sri Sreenivasa Rao Mane, son of Narayana Rao Mane, Visveswarapuram, Bangalore City.

5. Sri A. T. Thimmarayappa, son of Anekal Thimmiah, Mandi Merchant, New Tharagupet, Bangalore City (Defendant 8).

6. Sri Durgada Krishnappa, son of D. Venkatappa, Mandi Merchant, New Tharagupet, Bangalore.

7. Sri H. K. Munivenkataswamappa, Mandi Merchant and President, Grain Merchants Cooperative Bank, Bangalore City.

8. Sri G. Ananthasagaraiah, B. A., Retd. Asst. to the Director of Industries, Dodda-mavalli, Bangalore City (Plaintiff 2).

9. Sri Narayan Gowdaru, Dharmadarsi of Sri Dharmaraja Temple, Thigalarpet, Bangalore City.

10. Sri G. C. Basappa, son of Chennaveerappa, Cloth Merchant, and Dharmadarsi of Sri Kailaseswara Temple, Basavangudi.

11. Sri G. Gurubasappa, son of G. Chikkaveerappa Banker, Visweswarapuram, Bangalore City.

12. Sri Mari Nanjundappa son of Mariyappa, Jail and Hospital Contractor, Jayachamarajendra Road, Bangalore City. The Sub-Divisional Officer, Bangalore, shall be a member and Ex-Officio President of the Committee. The management of the institution including the temple and the deities in the institution shall be vested in the Committee and it shall have the power to elect office bearers other than the President. In the event of the death or resignation of any member other than the President, the remaining members of the Committee shall have the right to fill up the vacancy by appointing any suitable person. The Committee shall have the power to frame rules and bye-laws regulating its own proceedings and for the administration of the institution not inconsistent with this scheme. The institution shall be administered so as to promote the following objects :

1. The daily worship of the deities in the Math temple and the performance of Utsavas;

2. The performance of the daily pooja at the Samadhis and of the aradhana;

3. Feeding of guests and sadhus in particular;

4. The study and teaching of Hindu religion and Philosophy;

5. Publication of literature pertaining to Hindu religion and philosophy; and

6. Any other activity calculated to promote the above objects. In taking steps to implement the above objects, the Committee shall have due regard to the resources of the Institution by way of income from its property, and such income as may be derived in the form of gifts and offerings. The Committee will have power to employ such persons as are necessary for carrying out the above objects and to regulate the admission to and residence in the Math of suitable persons for the purpose of study and teaching. This is without prejudice to the generality of the powers which the Committee will necessarily have to discharge its duties. It will also have authority to delegate to its office bearers or Sub-Committee, generally or for specific purposes, such powers as may be deemed necessary by the Committee. The Committee shall take over the management of the Institution from the existing Committee consisting of Defendants 1 to 11 and obtain from them and from Defendant 12 all particulars and accounts necessary to prepare an accurate statement of the assets and liabilities of the Institution. The Committee may, when deemed necessary by it, seek the direction of the Court (District Court, Bangalore) on any matter relating to the administration of the Scheme.

16. The decision of the lower Court is modified as indicated above. There will be no order as to costs. Order accordingly. AIR 1958 MYSORE 102 (VOL. 45, C. 26) "C. P. Appanna v. State of Coorg" MYSORE HIGH COURT Coram : 2 A. R. SOMNATH IYER AND K. S. HEGDE, JJ. ( Division Bench ) C. P. Appanna, Petitioner v. State of Coorg and another, Respondents. Writ Petns. Nos. 95 and 96 of 1954, D/- 28 -11 -1957. (A) Government of India Act (1919), S.77, S.47, S.45A and S.129A - LEGISLATIVE COMPETENCE - PARLIAMENT - Coorg Legislative Council Competence to legislate on subjects classified as provincial subjects in the Coorg Devolution Rules. Govt. of India Act (1935) (25 and 26 Geo Vi and 1 Edw VIII Cl. (2)), S.97. Constitution of India, Art.242. By the extension to the province of Coorg, in exercise of the powers conferred by S. 77 of the Act, the provisions of the Act relating to Legislative Councils of Lieutenant-Governors and by the constitution of a Legislative Council for Chat province by the Coorg Electoral Rules framed under S. 47 (5), the Chief Commissioner in Legislative Council of the province of Coorg became the local Legislature for that province. And as a result of the classification made by the Coorg Devolution Rules made by the Governor-General in exercise of his powers under Ss. 45-A and 129-A, the subjects enumerated in Schedule 2 to those rules became the Provincial subjects as distinguished from the central subjects enumerated in Schedule 1 to those rules. (Para 10) The Coorg Legislative Council as the local Legislature had the power, in view of S. 80-A, subject to the provisions of the Government of India Act, to legislate on the provincial subjects enumerated in Schedule 2 of the Coorg Devolution Rules. When either after the commencement of the Government of India Act of 1935 or after the commencement of the Constitution of India and until 15-1-1951, the date of the passing of the legislation by the Legislative Council, no law providing otherwise had been made, its powers and functions remained unchanged by reason of the provisions of S. 97 of the Government of India Act of 1935 and subsequently on account of the provisions of Art. 242 of the Constitution. So the Legislative Council had the competency on that date to legislate on the subjects classified as provincial by the Coorg Devolution Rules. (Paras. 11 and 12) Anno: AIR Com. Const. of India, Art. 242, N. 1. (B) Constitution of India, Art.245 and Art.246 - LEGISLATIVE COMPETENCE - LEGISLATURE - CONSTITUTIONALITY OF AN ACT - INCOME-TAX - Constitutional validity of Act - Tests - Validity of Coorg Agricultural Income-tax Act. Coorg Agricultural Income-tax Act (1 of 1951). It is well established that when the validity of an Act is called in question, the court has to examine whether it passes three tests. The first is whether the Act is a law with respect to a topic assigned to the particular Legislature which enacted it. Next if the Act is one passed by a provincial Legislature whether its operation extends beyond the boundaries of the Province because its laws cannot in the absence of a territorial nexus, have any extra-territorial operation. Lastly it must be seen whether there is nothing in any other part of the Constitution which places any fetter on the legislative powers 01 such Legislature. (Paras 15, 16 and 18) The Coorg Agricultural Income-tax Act satisfies the second test. It also satisfies the first test because it is intra vires the Coorg Legislative Council. The object of the law being the levy, assessment and collection of taxes on agricultural Income, it is a legislation with respect to tax on agricultural income and the Coorg Legislature was competent to enact the law by reason of Entry 44 of Schedule 2 of the Coorg Devolution Rules read with Entry 10 of the same. That being so, even if Entry 8 of Part. I which related to the subject of income-tax which is a central subject includes tax on agricultural income, that subject becomes excluded from the topic of the 8th Entry by reason of sub-R. (2) of R. 2 of the Coorg Devolution Rules. Further while the powers and functions of the Coorg Legislative Council and therefore its competence to legislate on the matters enumerated in Part 2 of the Schedule to the Devolution Rules were preserved by S. 97 of the Government of India Act. 1935 and Art. 242 of the Constitution the powers of the Governor-General in Council and Indian Legislature under those Rules including the overriding power of the Indian Legislature to legislate on a provincial subject bestowed by proviso to R. 2 were not preserved in that way. The result was that while the Coorg Legislative Council had, when it enacted the Agricultural Income-tax Act on 15-1-1951, the competence to make laws relating to the subjects classified as provincial subjects and enumerated in Part 2. the machinery provided by the rules for legislation relating to the Central subjects enumerated in Part I had become non-existent, its place having been taken by Art. 246 of the Constitution which placed no fetter on the otherwise plenary competence of the Coorg Legislative Council to legislate on those provincial subjects. Hence the contention that the Act was ultra vires of the Coorg Legislative Council has to fail. (Paras 21, 22, 25, 27 and 28) Anno: AIR Com. Const, of India, Art. 245, N. 15. 16; Art. 246, N. 23. (C) Constitution of India, Art.246 - LEGISLATIVE COMPETENCE - Interpretation of legislative entries - General Principles. It is well settled that an exhaustive enumeration being unattainable and so numerous being the subjects of possible legislation, no subject enumerated in a legislative list, which necessarily described in general terms, is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. In interpreting an entry in a list conferring legislative powers, that construction which has most beneficial amplitude must be adopted. AIR 1941 FC 16 and (S) AIR 1955 SC 58 and (S) AIR 1955 SC 367 and (S) AIR 1957 SC 768 Rel. on. (Para 24) Anno : AIR Com. Const. of India, Art. 246, N. 7. (D) Government of India Act (1935) (25 and 26 Geo 6 and 1 Edw 8 Cl. (2)), S.97 - LEGISLATURE - Effect of previous sanction. The previous sanction of the Governor-General to an Act does not have the effect of a declaration that the subject of the law even if it related to the subject of an entry of the Central subject was merely of a local or a private nature within the province and so had moved into the provincial list. AIR 1942 PC 44 explained. (Para 29) (E) Coorg Agricultural Income-tax Act (1 of 1951), S.3, S.17, S.18 and S.62 - INCOME-TAX - Income of previous year ending on 31-03-1951 - Assessability - Effect of the Act not being in existence on 01-04-1951. There is no justification for the construction that S. 3 did not, as it read when enacted, permit an assessment being made for the financial year commencing from 1st April, 1951. That being so it cannot be said that the assessment of a persons income for the previous year ending on the 31st day of March 1951 when made will be without authority because the Act came into force on the 10th August, 1951 and therefore was not in force on 1st April, 1951. It has to be borne in mind that the liability to tax arises from S. 3 of the Act which is the charging section and Ss. 17 and 18 and the rules made under S. 62 merely create the machinery for the determination of the amount of the tax. So, when on a true construction of S. 3 of the Act, the income of the assessee for the previous year ending on the 31st March, is chargeable to tax under the Act, the incongruities in the machinery sections which arise as a result of the Act not having been in force earlier than 10th August, 1951 would be of no assistance to the assessee for repudiating his liability to tax. What S. 3 means is that income-tax at the rates specified in the schedule to the Act, shall be charged for each financial year on the income of the previous year. Although the financial year commencing on the 1st day of April, 1951 had already commenced when the Act came into force, it was still running and had not expired. If, as it is clear from the scheme of the Act, what is chargeable to tax is the agricultural income of a year and for the purpose of computing such income each year is a separate self-contained period of time, it is difficult to understand why it should be held that the income of the previous year is not chargeable to tax merely because the law imposing it came into force some time during the currency of the financial year and not at the date of its commencement. (S) AIR 1955 Bom 230 and AIR 1945 PC 89 explained and distinguished; AIR 1947 PC 32 Rel. on. (Paras 31 and 34) (F) Coorg Agricultural Income-tax Act (1 of 1951), S.3 - INCOME-TAX - AMENDMENT - Assessment on income derived during year ending 31-03-1951 - Assessment made prior to Amending Act - Principal Act not in force on 01-04-1951 - Assessment not an act made without authority Coorg Agricultural Income-tax (Amendment) Act (2 of 1955), S.2. The effect of the enactment of the Coorg Agricultural Income-tax (Amendment) Act was that the principal Act must be deemed to have come into force on the first day of April 1951 and as stated in the explanation to sub-s. (3) of S. 1 of the amended Act the income derived by a person from 1-4-1950 to 31-3-1951 is the income on which the income-tax should be charged under the Act for the assessment year 1951-52. The amending Act is not merely a curative Act. The effect of that legislation is that the principal Act as amended must be regarded and treated as having come into force even on 1-4-1951 and therefore even though the Income-tax Officer had completed the assessment before the Amending Act was passed he was to be regarded as having made the assessment under the Act as amended. It is not open to the assessee to contend that the Act in force was not the Act as it stood after the amendment and that there was no authority in the income-tax officer under the law as it stood when he actually made the assessment. Similarly the Court also was bound to treat the law as it stood amended as the law which was in force on 1-4-1951 when called upon to decide whether the Income-tax Officer had authority to make the assessment or not when he actually made it. (Paras 35, 36 and 38) (G) Constitution of India, Art.236 - WRITS - INCOME-TAX - Subsequent events. Coorg Agricultural Income-tax Act (1 of 1951), S.3. The assessee was" assessed to agricultural income-tax under the Coorg Agricultural Income-tax Act on the income derived during the year ending 31-3-1951. He appealed against the order on the ground that on the date of the assessment year, namely 1-4-1951 the Act was not in force and therefore the Income-tax officer had no authority to make the assessment. The appeal as well as his application in revision before the commissioner were unsuccessful. Subsequently the appropriate legislature passed an amending Act by which it was enacted that the principal Act as it stood amended would be deemed to have been in force from 1-4-1951. The assessee who applied under Art. 226 to have the orders of assessment quashed contended that in considering the question relating to the authority of the Income-tax Officer to make the assessment the court was limited to the consideration of the law as it stood on the date of the assessment and could not take into consideration the effect of the amendment. Held that the contention of the assessee was not correct. The test to be applied in a case like the one on hand dealing with a curative act was whether the Income-tax officer if he were then making an assessment for the year in question would not have the authority to make it. AIR 1947 PC 48 Rel. on. (Para 42) Anno: AIR Com. Const, of India, Art. 226, N. 53. CASES REFERRED: Paras (A) (S) AIR 1957 SC 699 (V 44): 1957 SCA 867 17 (B) AIR 1941 PC 16 (V 28): 1940-3 FLJ FC 97 24 (C) (S) AIR 1955 SC 58 (V 42) : 1955 SCR 329 24 (D) (S) AIR 1955 SC 367 (V 42): 1955 Cri LJ 876 24 (E) (S) AIR 1957 SC 768 (V 44): 1957-32 ITR 466 24 (F) AIR 1942 PC 44 (V 29) : ILR (1942) 2 Cal 349 29 (G) AIR 1947 FC 32 (V 34): 1947-15 ITR 302 31 (H) (1926) 1926 AC 37: 95 LJKB 165 31

(I) (1930) 16 Tax Cas 1 : 47 TLR 13 31 (J) (1925) 9 Tax Cas 445: 1925-1 KB 86 31 (K) (S) AIR 1955 Bom 230 (V 42): ILR 1955 Bom 279 32

(L) AIR 1945 PC 89 (V 32): 1945-13 ITR 221 33 (M) AIR 1927 Cal 553 (V 14) : ILR 54 Cal 630 33 (N) (1935) 294 US 600: 79 Law Ed 1082 40 (O) AIR 1941 FC 5 (V 28) : 1940 FCR 84 40 (P) AIR 1936 PC 49 (V 23): 63 Ind App 47 40 (Q) (1882) 9 QBD 672: 52 LJQB 44 40 (R) AIR 1947 FC 48 (V 34): 1947-15 ITR 311 40 G. K. Govinda Bhat and P. M. Nanaya, for Petitioner; Advocate-General, for Respondent No. 1. Judgement A. R. SOMNATH IYER, J. :- The principal question involved in these two writ petitions is the constitutional validity of an Act passed by the Legislative Council of the Chief Commissioner of Coorg, intituled the Coorg Agricultural Income-tax Act, 1951 (Coorg Act No. 1 of 1951). This is how the question arises.

2. On 15-1-1951, the Legislative Council of the Chief Commissioner of Coorg which was then a part C State in the Union of India, passed an Act called the Coorg Agricultural Income-tax Act to which the President of India accorded his assent on 13-5-1951. On the issue of a Notification dated 4-8-1951 under sub-section (3) of section 1 of the Act, the Act came into force in that State on 10-8-1951. It is stated in the preamble to the Act that the previous sanction of the Governor General had been obtained under section 97 of the Government of India Act 1935 as adapted by the India Provisional Constitution) Order, 1947, to the passing of that Act.

3. By an order made by respondent 2, the Agricultural Income-Tax Officer, Coorg, on 13-12-1952, the agricultural income of the petitioner for the previous year ending on March 31, 1951 was assessed to agricultural Income-tax. under the provisions of the impugned Act for the assessment year 1951-52. By another order made by him on the same day, he similarly assessed, for the assessment year 1952-53, the petitioners agricultural income for the previous year ending on March 31, 1952. The tax determined to be payable for the assessment year 51-52 was Rs. 346-4-0 and for the assessment year 52-53 it was Rs. 8,090-2-0. The petitioner unsuccessfully appealed under section 29 of the Act, against those orders of assessment to the Deputy Commissioner, Coorg, and his attempt to get those orders revised by the Commissioner under section 32 of the Act, also failed.

4. In these two writ petitions the petitioner has applied for writs of certiorari or other appropriate writs quashing those orders of assessment.

5. Mr. Govind Bhat, learned Advocate for the petitioner has urged that the orders of assessment made by respondent 2 were made without jurisdiction or authority. His main contention is that the Coorg Agricultural Income-tax Act, under the precisions of which the Income-tax officer made the assessment, was an unconstitutional piece of legislation for two reasons. According to him, the Legislative Council of the Chief Commissioner of Coorg, which will hereafter be referred to also as the Coorg Legislative Council, had, when it made that law, no powers of legislation and that even if it had such powers of legislation, it had no competence to impose a tax on agricultural income.

6. To understand these contentions, it would be necessary to trace briefly the history of the Coorg Legislative Council. Before its emergence as a Part C State under the provisions of the Constitution of India, the State of Coorg was a province administered by a Chief Commissioner, under the provisions of the Government of India Act. That Act also provided for the constitution of Lieutenant-Governorships and by sub-section (1) of section 77 of the Act the Governor-General in Council was empowered to constitute the Lieutenant-Governor in Legislative Council of a province governed by a Lieutenant-Governor, a local legislature for that province. sub-section (2) of that section further empowered the Governor-General in Council to extend the provisions of the Act relating to Legislative Councils of Lieutenant-Governors, to any province administered by a Chief Commissioner. 7.By a Notification issued by the Governor-General-in-Council on 30-10-1923, in exercise of the power conferred on him by sub-s. (2) of S. 77 of the Act, the provisions of the Act relating to Legislative Councils of the Lieutenant-Governors were extended to the province of Coorg. That Notification directed that the provisions of sub-s. (1) of S. 77 of the Act shall apply to the province of Coorg in like manner as they applied to a new Lieutenant-Governorship.

8. For the purpose of, giving effect to the said Notification and also in order that a Legislative Council may be constituted for the province of Coorg and to make provision for the matters referred to in S. 76 of the Act in respect of the said Legislative Council, rules known as the Coorg Electoral Rules were made tinder sub-s. (5) of S. 47 of the Government of India Act, 1919, which came into force on October 30, 1923, by a Notification issued by the Governor General in Council. Those rules provided for the composition of that Legislative Council and for elections to it.

9. By a Notification dated January 3, 1924, the Governor General in Council, in exercise of the powers conferred by sub-s. (1) of S. 77 which had been by then extended to the province of Coorg, constituted the Chief Commissioner in Legislative Council of the Province of Coorg as from January 28, 1924, to be a local Legislature for the said province. He further made in exercise of the powers conferred by S. 45A and S. 129A of the Government of India Act, rules known as the Coorg Devolution Rules providing for the classification of subjects as central and provincial subjects, for the purpose of distinguishing the functions of local Governments and the local Legislature from the functions of the Governor General in Council and the Indian Legislature. As provided by S. 45A of the Act, the expressions "central subjects and provincial subjects as used in the Act were the subjects so classified under the rules. Rule 2 of these rules provided that (1) "For the purpose of distinguishing the functions of the local Government and the local Legislature of the province of Coorg from the functions of the Governor General in Council and the Indian Legislature, subjects shall in that province be classified in relation to the functions of Government as central and provincial subjects in accordance with the lists set out in the Schedule to these rules : Provided that every subject so classified as provincial shall be subject to legislation by the Indian legislature. (2) Any matter which is included in the list of provincial subjects set out in Part II of the Schedule shall to the extent of such inclusion, be excluded from any central subject of which but for such inclusion, it would form part." Part I of the Schedule set out the Central Subjects and Part II the Provincial Subjects referred to in that Rule.

10. It is therefore clear that by the extension to the province of Coorg, the provisions of the Act relating to Legislative Councils of Lieutenant-Governors and by the constitution of a Legislative Council for that province by the Coorg Electoral Rules, the Chief Commissioner in Legislative Council of the province of Coorg became the local Legislature for that province. And as a result of the classification made by the Coorg Devolution Rules, the subjects enumerated in Schedule II to those Rules became the provincial subjects as distinguished from the Central Subjects enumerated in schedule I to those). Rules.

11. Section 80-A of the Government of India Act empowered the local Legislature of a Province, to make, subject to the provisions of the Act, laws for the peace and good Government of the territories for the time being constituting that province although by sub-s. (3) of that section legislation on certain matters without the previous sanction of the Governor-General was forbidden, it is not contended that the impugned Act related to a matter the legislation on which was so forbidden and it is not disputed that even if it did, the previous sanction of the Governor General which the Coorg Legislative Council did obtain for making that law, empowered it to do so. It is therefore plain that the Coorg Legislative Council had the power, subject to the provisions of the Government of India Act, to legislate on the provincial subjects enumerated in Sch. II to the Coorg Devolution Rules.

12. Before the commencement of the Constitution of India, this Legislative Council of the Chief Commissioner Coorg was referred to in the Government of India Act as the Chief Commissioner in Legisaltive Council of that province and also as the Chief Commissioners Legislative Council. In the Government of India Act, 1935, it was referred to as the Coorg Legislative Council and by S. 97 of that Act, it was provided that; "Until other provision is made by His Majesty in Council, the constitution, powers and functions of the Coorg Legislative Council, and the arrangements with respect to revenues collected in Coorg and expenses in respect of Coorg, shall continue unchanged." The Constitution of India also called it the Coorg Legislative Council and by Art. 242 of the Constitution it was provided that (1) "Until Parliament by law otherwise provides, the constitution, powers and functions of the Coorg Legislative Council shall be the same as they were immediately before the commencement of this Constitution." When the impugned legislation was enacted by this Legislature, Parliament had not by law provided otherwise. It is therefore clear that the Legislative Council of the Chief Commissioner of Coorg which made the impugned legislation, was, when it made it, competent to legislate on the subjects classified as provincial subjects by the Coorg Devolution Rules.

13. Mr. Bhatts contention that the Legislative Council of the Chief Commissioner of Coorg which enacted the impugned legislation, had no powers of legislation and was not the local Legislature referred to in the Government of India Act, a contention raised for the first time during the argument, has thus no substance and must fail. As the learned Advocate-General has pointed out, it is clear from the provisions of sub-s. (2) of S. 78 and sub-s. (1) of S. 80 of the Act as contrasted with those of sub-s. (3) of that section, that legislation was the normal business of this Legislative Council.

14. The next submission of Mr. Bhatt is that a tax on income derived from agriculture was not one of the provincial subjects set out in Part II of the Schedule to the Coorg Devolution Rules and so the impugned legislation made by the Coorg Legislative Council was outside its legislative competence. He further contended that the topic of that legislation fell within the 8th entry of Part I of that Schedule and so was a central subject. The learned Advocate-General contended that the subject of the impugned Act fell within the 10th Entry of Part II and also within the 44th Entry read with the 10th entry of that Part and was not within the 8th entry of Part I Now the 8th entry of Part I reads "8. Customs, cotton excise duties, income-tax, salt and other sources of all India revenues." Entries 10 and 44 of Part II read "10. Agriculture, including research institutes, experimental and demonstration farms, introduction of improved methods, provision for agricultural education, protection against destructive insects and pests, and prevention of plant diseases." "44. Taxes imposed by or under Provincial legislation."

15. It is now well established that when the validity of an Act is called in question, the first thing for the Court to do is to examine whether the Act is a law with respect to a topic assigned to the particular Legislature which enacted it.

16. If it is, then the court is next to consider whether, in the case of an Act passed by the Legislature of a Province (now a State), its operation extends beyond the boundaries of the Province or the State, for, under the provisions conferring legislative powers on it such Legislature can only make a law for its territories or any part thereof and its laws cannot, in the absence of a territorial nexus, have any extraterritorial operation.

17. If the impugned law satisfies both these tests, then finally the court has to ascertain if there is anything in any other part of the constitution which places any fetter on the legislative powers of such Legislature. The impugned law has to pass all these three tests. (State of Bombay v. R. M. D. Chamarbaugwala, (S) AIR 1957 SC 699 (A) ).

18. It is not disputed that the impugned law in this case satisfies the second test. Whether it satisfies the remaining two tests is therefore the question to be considered.

19. The impugned Act will pass the first test if it is a law with respect to a topic assigned to the Coorg Legislative Council by Part II of the Schedule to the Coorg Devolution Rules. On behalf of the Respondents it is claimed that it is a law made with respect to a topic covered by the 10th entry and also by the 44th entry read with the 10th entry of Part II.

20. An examination of the scope and purpose of the impugned legislation would now be necessary to decide under which particular entry of the legislative list of the Coorg Legislature, it was enacted. It is stated in the preamble to the Act that it was enacted to provide for the levy of tax on agricultural income in the State of Coorg. section 2 of the impugned act gives the meaning of Agricultural Income as (1) any rent or revenue derived from land which is used for agricultural purposes and is either assessed to land revenue in all the States of India or subject to a local rate assessed and collected by officers of the State Government as such; (2) any income derived from such land by

(i) agriculture, or

(ii) the performance by a cultivator or receiver of rent in kind of any process ordinarily employed by a cultivator or receiver of rent in kind to render the produce raised or received by him fit to be taken to market, or

(iii) the sale by a cultivator or receiver of rent in kind of the produce raised or received by him, in respect of which no process has been performed other than a process of the nature described in paragraph (ii); (3) Any income actually derived from any building owned and occupied by the receiver of the rent or revenue of any such land, or occupied by the cultivator, or the receiver of rent in kind, of any land with respect to which, or the produce of which, any operation mentioned in paragraphs (ii) and (iii) of sub-cl. (2) is carried on." Agricultural Income in this Act, it is seen, is defined almost exactly as it is defined in the Indian Income-tax Act, 1922. S. 3 is the charging section contained in Chapter II of the Act under which such agricultural income is chargeable to agricultural income-tax. The main features of the remaining parts of the Act follow the pattern of the Indian Income-tax Act, 1922. Chapter II also provides for the method of accounting and exemptions from assessment. Chapter III specifies the classes of Income-tax authorities. Chapter IV provides for the furnishing of returns setting forth the agricultural income, its assessment and the demand of the tax determined. That chapter also provides for an appeal against the assessment to the Deputy Commissioner and a revision petition to the Commissioner and also provides for the re-assessment of escaped income. Chapter V provides for the recovery of tax and penalties. Chapter VI provides for refund of excess taxes paid and Chapter VII for punishment of offences. Chapter VIII contains what are called miscellaneous provisions including a provision for a reference to the High Court of questions of law for its decision. These, in brief, are the main features of the Act.

21. It is plain that the object or purpose of the impugned law being the levy, assessment and collection of taxes on agricultural income, it is a legislation with respect to tax on agricultural income. It is not disputed that it is so.

22. That being so, the next step will be to examine whether the subject of the legislation is included in the provincial subjects enumerated in Schedule II to the Coorg Devolution Rules. It is urged by the learned Advocate-General that the Coorg Legislative Council being competent to legislate under entry 44 of Part II of the schedule to those rules, with respect to taxes imposed by or under provincial legislation, it was competent to make a law levying taxes with respect to all the subjects enumerated in that Part. He has argued and it is not seriously disputed by Mr. Bhatt that that is the meaning and content of entry 44 which compendiously describes in that way the taxes with respect to which the Coorg Legislature was competent to legislate. The learned Advocate-General is, I think, quite right in asking us to interpret Entry 44 in that way. It is in my view plain that. as entry 44 reads, the Coorg Legislature, had under that Entry, subject to such limitations as might exist, the power to make laws imposing taxes in respect of all those subjects enumerated in Entries 1 to 43 of Part II That being so, it is clear that the 10th Entry of that part conferring upon it the power to make a law with respect to agriculture, the 44th entry empowers it to make a law levying a tax with respect to agriculture.

23. The next question is whether the power to legislate upon a tax with respect to agriculture, includes a power to legislate with respect to taxes on agricultural income. It is argued, though faintly, by Mr. Bhatt that although the Coorg legislature was under Entry 44 read with Entry 10 of Part II competent to make legislation relating to a tax on agriculture, it was beyond its competence to pass legislation relating to a tax on income from agriculture. His argument is that tax on agricultural income being a subject only remotely related to or very indirectly connected with agriculture, the topic of the 10th Entry, it was not a tax imposed by or under provincial legislation within the meaning of the 44th Entry in respect of which the Coorg Legislative Council had the authority to make a law. It is not easy to follow this argument.

24. It is well settled that an exhaustive enumeration being unattainable and so numerous being the subjects of possible legislation, no subject enumerated in a legislative list, which is necessarily described in general terms, is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. In interpreting an entry in a list conferring legislative powers, that construction most beneficial to its widest possible amplitude must be adopted. United Provinces v. Mst. Atiqa Begum, 1940-3 FLJ (PC) 97: (AIR 1941 PC 16) (B); Navinchandra Mafatlal v. Commr. of Income-tax, Bombay City, (S) AIR 1955 SC 58 (C); Hans Muller of Nurenburg v. Superintendent Presidency Jail. Calcutta, (S) AIR 1955 SC 367 (D) and Commissioner of Income-tax, West Bengal, Calcutta v. Benoy Kumar Sahas Roy, (S) AIR 1957 SC 768 (E). As observed by Gwyer C.J., in 1940-3 FLJ (PC) 97 : (AIR 1941 PC 16 at p. 25) (B). "The subjects dealt with in the three Legislative Lists are not always set out with scientific definition, it would be practically impossible for example to define each item in the Provincial List in such a way as to make it exclusive of every other item in that List, and Parliament teems to have been content to take a number of comprehensive categories and to describe each of them by a word of broad and general import. In the case of some of these categories, such as "Local Government", "Education", "Water", "Agriculture" and "Land", the general word is amplified and explained by a number of examples or illustrations, some of which would probably on any construction have been held to fall under the more general word, while the inclusion of others might not be so obvious. Thus "Courts of Wards" and "treasure trove" might not ordinarily have been regarded as included under Land", if they had not been specifically mentioned in item No. 21. I think however that none of the items in the Lists is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. I deprecate any attempt to enumerate in advance all the matters which are to be included under any of the more general descriptions; it will be sufficient and much wiser to determine each case as and when it comes before this Court. I am moved to make this observation because of a passage in the judgment of Iqbal Ahmad, J., in which he says: "By the authority given to it to make laws about the "collection of rents" the Provincial Legislature is in my judgment authorized to provide about payment of rent in cash or in kind; to fix the instalments in which rent is to be collected, to make provision about abatement or enhancement of rent, to prescribe the conditions under which the rent may be remitted, to regulate the method by which rent is to be collected and to legislate about kindred matters. The impugned Act however is not with respect to any such matter. It is therefore outside the scope of entry 21 of the Provincial List. I do not know why the learned Judge should assume that the list of illustrations which he gives is necessarily exhaustive. I agree that, if it were his conclusion might follow logically from his premises; but such a priori assumptions are a dangerous guide for the construing of a statute. The general descriptive words in item 21 include "the collection of rents"; and if a Provincial Legislature can legislate with respect to the collection of rents, it must also have power to legislate with respect to any limitation on the power of a landlord to collect rents, that is to say, with respect to the remission of rents as well as to their collection. Item No. 22 of the Provincial List is "Forests"; could it reasonably be argued that the power to legislate with respect to forests did not include a power to legislate with respect not only to afforestation but also to disafforestation? Item No. 24 is "Fisheries"; could it reasonably be argued that this only included the regulation of fishing itself and did not include the prohibition of fishing altogether in particular places or at particular times? I have no doubt that legislation with respect to the remission of rents is legislation with respect to a matter included in item No. 21".

25. So construed, it is, I think, plain that Entry 44 which authorises legislation relating to a tax agriculture also bestows competence to enact a law relating to a tax on agricultural income.

26. But it is contended by Mr. Bhatt that tax on agricultural income was the topic of the 8th Entry of Part I and so was a central subject, outside the authorised field of the Provincial Legislature. He has argued that in the subject of income-tax which was a topic assigned by Part I to the Indian Legislature, was included tax on agricultural income and that any legislation relating to it was beyond the competence of the Coorg Legislative Council. To support his construction of that Entry he has relied on the provisions of the Indian Income-tax Act, under which, according to him, tax on agricultural income would have been exigible but for its being expressly excepted out of its operation. But, in my opinion, sub-r. (2) of R. 2 of the Coorg Devolution Rules contains the answer to that contention. That sub-rule provides that (2) "Any matter which is included in the list of provincial subjects set out in Part II of the Schedule shall, to the extent of such inclusion, be excluded from any central subject of which, but for such inclusion, it would form part."

27. If, as I consider, the 44th Entry read with the 10th Entry of Part II the text of which is explicit, includes a tax on agricultural income, it is plain that that subject was as provided by this sub-rule excluded from the topic of the 8th Entry of Part I even if it could be held to form part of it, but for such inclusion. Further, while the powers and functions of the Coorg Legislative Council and therefore its competence to legislate on the matters enumerated in Part II of the Schedule to the Coorg Devolution Rules, are preserved by S. 97 of the Government of India Act, 1935, and Art. 242 of the Constitution of India, the powers of the Governor-General in Council and the Indian Legislature under those Rules including the overriding power of the Indian Legislature to legislate on a provincial subject bestowed by the proviso to R. 2, were not preserved in that way. The result was that while the Coorg Legislative Council, had, when it enacted the impugned law the competence to make laws relating to the subjects classified as Provincial Subjects and enumerated in Part II, the machinery provided by the Rules for legislation relating to the Central Subjects enumerated in Part I had become non-existent, its place having been taken by Art. 246 of the Constitution which placed no fetter on the otherwise plenary competence of the Coorg Legislative Council to legislate on those provincial subjects.

28. That being so, the argument advanced by the learned Advocate General that the 8th Entry of Part I authorised legislation relating to taxes only on income which was a source of all India revenue, which agricultural income in Coorg was not, or that the previous sanction of the Governor-General obtained under section 97 of the Government of India Act and the subsequent assent of the President accorded to the impugned Act, amounted to a decision which was final that the impugned law related to a provincial subject, does not arise. In my opinion, the contention of Mr. Bhatt that the impugned legislation was ultra vires the Coorg Legislative Council has to fail.

29. The learned Advocate-General urged at one stage that the impugned law was within the 46th Entry of Part II. The view urged for our acceptance was that taken by the Deputy Commissioner that the impugned law related to a matter which even if assumed to be one included in 8th Entry of the Central Subject, had been declared by the Governor-General in Council to be of a merely local or private nature within the province, and so had moved into Part II, the provincial list. It was not disputed by Mr. Bhatt that if the Governor-General had made such declaration, legislation by the Coorg Legislative Council would have been undoubtedly competent. But, it is, I think, clear that no such declaration was made by the Governor-General in Council and the learned Advocate-General who had to admit that the decision of their Lordships of the Privy Council in Jogendra Narayan v. Debendra Narayan AIR 1942 P. C. 44 (P) on which the Deputy Commissioner relied, when properly understood, does not support the conclusion that the previous sanction of the Governor-General obtained under S. 97 of the Government of India Act, amounted to a declaration to that effect, did not press that contention.

30. It is next argued by Mr. Bhatt that the assessment of the petitioners agricultural income for the assessment year 1951-52 was made without jurisdiction, as even under the impugned Act, the agricultural income for that year was not chargeable to tax. The assessment year 1951-52 was the year commencing on April 1, 1951 and ending on March 31, 1952. It is Mr. Bhatts argument that the income for that assessment year was taxable only if the impugned Act was in force on April 1, 1951. The impugned Act, it is not disputed, came into force on August 10, 1951, although it had been passed by the legislature on January 15, 1951 and had received the assent of the President on May 13, 1951.

31. Now, section 3 of the Act provides that agricultural income-tax shall be charged for each financial year on the total agricultural income of the assessee of the previous year. It is not disputed that the financial year referred to in this section as defined by the General Clauses Act, means the year commencing on the 1st day of April. section 2(o) of the impugned act defines the privicus year as

(i) the twelve months ending on the 31st day of March preceding the year for which the assessment is to be made, or if the accounts of the assessee have been made up to a date within the said twelve months in respect of a year ending on any date other than the said 31st day of March, then at the option of the assessee, the year ending on the day to which his accounts have so been made up: As is also the case under the Indian Income-tax Act, the subject of charge is not the income of the year of assessment but the income of the previous year, such previous year in this case being the twelve months ending on 31-3-1951. The argument of Mr. Bhatt is that the Act not having been in existence or in force on 1-4-1951, which is the date of the commencement of the year for which the assessment has been made, no tax was exigible on the income of the previous year ending on 31-3-1951. In support of this argument Mr. Bhatt has referred to S. 17 of the Act which requires the assessee to furnish his return setting forth his income during the previous year before the 1st day of June of every year, and also to S. 18 of the Act which empowers the Income-tax Officer to make the assessment to the best of his judgment if the assessee fails to furnish such return. He has also pointed out that the Rules under the Act were made only on 20-11-1951. It is argued by him that in respect of the income of the previous year ending on 31st March 1951, compliance with the provisions of S. 17 of the Act was an impossibility, the Act which came into force on 10-8-1951 not having been in existence on the first day of June 1951. The inference, according to him, is that the legislative intent was that no tax was chargeable on the income of that previous year. It is, think, difficult to agree that such was the object of the legislation when it is remembered that the Act had been passed by the Legislature early as on 15-1-1951 although the Presidents assent to it was accorded on 13-5-1951. Further, it has to be borne in mind that the liability to tax arises from S. 3 of the Act which is the charging section and Ss. 17 and 18 of the Act and the rules made under S. 62 merely create the machinery for the determination of the amount of the tax. So, if on a true construction of S.3 of the Act, the income of the petitioner for the previous year ending on the 31st day of March is chargeable to tax under the Act, the incongruities in the machinery sections such as those referred to on his behalf, would be of no assistance to him. In Chatturam v. Commissioner of Income-tax, Bihar, 1947-15 ITR 302: (AIR 1947 FC 32) (G), their Lordships of the Federal Court of India pointed out that under the Indian Income-tax Act, the liability to pay the tax being founded on Ss. 3 and 4 of the Act, the liability to pay income-tax and the jurisdiction to make an assessment were not conditional on the validity of the notices issued under S. 22 of the Act. Kania J., (as he then was) in pointing out the distinction between the charging and machinery sections said this: "It was next contended that in the present case notices under S. 22 (1) and (2) of the Income-tax Act were already issued before the Notification of 26-5-1940. The notices were the foundation of the jurisdiction of the Income-tax Officer. At that time the Finance Act of 1940 was not operative in the area in question and the Governor, by his Notification, cannot give jurisdiction to the Income-tax Officer in respect of his ultra vires notices. This contention is founded on a misunderstanding of the jurisdiction of the Income-tax Officer and the operation of the Income-tax Act. The Income-tax assessment proceedings commence with the issue of a notice. The issue or receipt of a notice is not, however, the foundation of the jurisdiction of the Income-tax Officer to make the assessment or of the liability of the assessees to pay the tax. It may be urged that the issue and service of a notice under S. 22 (1) or (2) may affect the liability under the penal clauses which provide for failure to act as required by the notice. The jurisdiction to assess and the liability to pay the tax, however, are not conditional on the validity of the notice. Suppose a person, even before a notice is published in the papers under S. 22 (1), or before he receives a notice under S. 22 (2) of the Income-tax Act, gets a form of return from the Income-tax Office and submits his return, it will be futile to contend that the Income-tax Officer is not entitled to assess the party or that the party is not liable to pay any tax because a notice had not been issued to him. The liability to pay the tax is founded on Ss. 3 and 4 of the Income-tax Act, which are the charging sections. Section 22 etc., are the machinery sections to determine the amount of tax. Lord Dunedin in Whitney v. Commissioners of Inland Revenue, 1926 AC 37 (H), stated as follows: Now, there are three stages in the imposition of a tax. There is the declaration of liability, that is the part of the statute which determines what persons in respect of what property are liable. Next, there is the assessment. Liability does not depend on assessment, that ex-hypothesi has already been fixed. But assessment particularizes the exact sum which a person liable has to pay. Lastly, come the methods of recovery if the person taxed does not voluntarily pay. In W. H. Cockerline and Co. v. Commissioners of Inland Revenue, 1930-16 Tax Cas 1 (I). Lord Hanworth M. R. observed as follows: Lord Dunedin, speaking, of course, with accuracy as to these taxes, was not unmindful of the fact that it is the duty of the subject to whom a notice is given to render a return in order to enable the Crown to make an assessment upon him; but the charge is made in consequence of the Act, upon the subject; the assessment is only for the purpose of quantifying it. He quoted with approval the following passage from the judgment of Sargant L. J., in the case of Williams I cannot see that the non-assessment prevents the incidence of the liability, though the amount of the deduction is not ascertained until assessment. The liability is imposed by the charging section, namely, S. 38 (of the English Act) the words of which are clear. The subsequent provisions as to assessment and so on are machinery only. They enable the liability to be quantified, and when quantified to be enforced against the subject, but the liability is definitely and finally created by the charging section and all the materials for ascertaining it are available immediately. In Attorney-General v. Aramayo, 1925-9 Tax Cas 445 (J), it was held by the whole Court that there may be a waiver as to the machinery of taxation which inures against the subject. In India these well-considered pronouncements are accepted without reservation as laying down the true principles of taxation under the Income-tax Act. This contention of the appellants therefore fails".

32. The contention of Mr. Bhatt that the Act which came into force four months and more after the commencement of the assessment year cannot validly charge any tax on the income of its previous year rests not so much on the construction of S. 3 of the Coorg Agricultural Income-tax Act as it does on the interpretation placed on S. 3 of the Indian Income-tax Act. He has relied on the decision in Scindia Steam Navigation Co., Ltd., Bombay v. Commr. of Income-tax, Bombay City, (S) AIR 1955 Bom 230 (K), in which Chagla C.J., pointed out that the liability to pay tax and the authority to make an assessment under the Indian Income-tax Act arising as they do from the provisions of the finance act of each year, the liability to pay the tax on the income of the previous year depended on the provisions of the Income-tax Act as it stood on the date when the Finance Act came into force and not on the amendments subsequently made to the Income-tax Act.

33. In that case, a sum of money which could not have been properly included in the total income of the assessee, under the provisions of the Income-tax Act as it stood on the date when the Finance Act came into force was so included under the provisions of a subsequent amendment made to the Income-tax Act. Such inclusion, was, it was held without authority, there being no liability upon the assessee to pay tax on that amount on the date on which the Finance Act came into force. In his judgment, Chagla C.J., said this: "Now, turning to the merits of the case, it appears that this proviso which is relied upon by the Department was incorporated in the Indian Income-tax Act by Act 8 of 1946 which came into force on 4-5-1946. Therefore, this proviso was not in operation on 1-4-1946, when the assessment year of the assessee, viz., 1946-47. commenced; and Mr. Palkhivalas contention on behalf of the assessee is that the liability of the assessee to pay tax depends upon the provisions of the Indian Income-tax Act as they were in force on 1-4-1946, and inasmuch as on 1-4-1946, there was no liability upon the assessee to pay tax on this amount of Rs. 9,26,532, it could not be made liable by reason of a subsequent amendment of the Income-tax Act which was brought about on 4-5-1946. In order to appreciate this contention one must bear in mind two basic facts about the Indian Income-tax Act. The first is that the Indian Income-tax Act subjects to tax not the income of the assessee in the year of assessment but in the previous year, and the other basic fact is that the liability to tax arises not by reason of the provisions of the Indian Income-tax Act but by reason of the fact that a Central Act fixes the rate at which the assessee is liable to pay tax and it is by reason of the Central Act that the income of the previous year of the assessee becomes liable to tax. If these two basic facts are borne in mind, then the position in law becomes very clear and very simple. Now, the income of the previous year of the assessee is for the year 1945-46 which ended on 31-3-1946, and it was the Finance Act of 1946 that imposed a liability upon the assessee to pay tax on this income at the rate mentioned in that Act. When we turn to the Finance Act of 1946, sub-s. (9) of S. 11 makes this provision: For the purposes of this section and of the rates of tax imposed thereby, the. expression "total income" means total income as determined for the purposes of income-tax or super-tax, as the case may be, in accordance with the provisions of the Indian Income-tax Act, 1922, and the expression "earned income" has the meaning assigned to it in Cl. (6AA) of S. 2 of that Act." Therefore, the total income that has to be computed is in accordance with the provisions of the Indian Income-tax Act and it is clear that as this provision is being made on 1-4-1946, the provisions of the Indian Income-tax Act are the provisions as they obtained on that date." The principle on which the above decision rested was that under S. 3 of the Income-tax Act as it is worded, no liability to tax arises until the enactment of the annual Finance Act. That is also what their Lordships of the Privy Council pointed out in Maharajah of Pithapuram v. Commissioner of Income-tax, Madras, (1945) 13 ITR 221: (AIR 1945 PC 89) (L). Lord Thankerton in that case said "In the first place, it is clear to their Lordships that under the express terms of S. 3 of the Indian Income-tax Act, 1922, the subject of charge is not the income of the year of assessment, but the income of the previous year. This is in direct contrast to the English Income-tax Acts, under which the subject of assessment is the income of the year of assessment, though the amount is measured by a yardstick based on previous years. The difference is well illustrated by the distinction that in England the source of income must still be extant in the year of assessment but that that is not of relevance in India. Their Lordships may refer to the able judgment of Rankin C.J., in Behari Lal Mullick v. Commr. of Income-tax, Bengal, ILR 54 Cal 630: (AIR 1927 Cal 553) (M), with which they agree. In the second place, it should be remembered that the Indian Income-tax Act, 1922. as amended from time to time, forms a code, which has no operative effect except so far as it is rendered applicable for the recovery of tax imposed for a particular fiscal year by a Finance Act. This may be illustrated by pointing out that there was no charge on the 1938-39 income either of the appellant or his daughters, nor assessment of such income, until the passing of the Indian Finance Act 1939, which imposed the tax for 1939-40 on the 1938-39 income and authorised the present assessment. By sub-s. (1) of S. 6 of the Indian Finance Act, 1939, income-tax for the year beginning on 1-4-1939 is directed to be charged at the rates specified in Part I of Schedule II, and rates of super-tax are also provided for, and by sub-s. (3) it is provided that "for the purpose of this section and of Schedule II, the expression total income means total income as determined for the purposes of income-tax or super-tax, as the case may be, in accordance with the provisions of the Indian Income-tax Act, 1922." This can only refer to the Indian Income-tax Act, 1922, as it stood amended at the date of the Indian Finance Act, 1939, and necessarily includes the alterations made by the Amending Act, which had already come into force on 1-4-1939." But it is not easy to understand how these decisions can be of any use to Mr. Bhatt. In the first place, it is clear that the liability to tax under the Coorg Agricultural Income-tax arises under that very Act and does not depend on any further or other enactment to be made for that purpose. Secondly, all that was decided in those two cases was that since it is the annual Finance Act imposing the tax for a particular fiscal year that renders the Income-tax Act applicable for its recovery, the determination of the liability to pay such tax, should be in accordance with the Income-tax Act as it stood at the date of the Finance Act. That is not the same thing as saying that, no tax is exigible on the income of the previous year, unless the law charging it, is in operation on the date of the commencement of the assessment year.

34. The question whether the income of the previous year ending on 31-3-1951 was in this case chargeable to agricultural income-tax depends therefore, entirely on the construction of S. 3 of the Coorg Agricultural Income-tax Act. That section provides that "Agricultural income-tax at the rate or rates specified in the Schedule to this Act shall be charged for each financial year in accordance with and subject to the provisions of this Act, on the total agricultural income of the previous year of every individual, Hindu undivided family, Marumakkattayam tarwad or tavazhi, Aliyasantana family or branch, firm, company, association of persons, whether incorporated or not and institution capable of holding property." What that section means is that income-tax at the rates specified in the schedule to the Act, shall be charged for each Financial Year on the income of the previous year. Although the Financial year commencing on 1-4-1951 had already commenced when the impugned Act came into force, it was still running and had not expired. If, as it is clear, from the scheme of the Act what is chargeable to tax is the agricultural income of a year and for the purpose of computing such income each year is a separate self-contained period of time, it is difficult to understand why it should be held that the income of the previous year is not chargeable to tax merely because the law imposing it came into force some time during the currency of the Financial year and not at the date of its commencement. In my opinion, there can be no justification for the construction that S. 3 of the Act did not, as it read when enacted, permit an assessment for the financial year commencing from 1-4-1951. That being so, the contention that the assessment of the petitioners income for the previous year ending on 31-3-1951, was made without authority, has to fail.

35. There is, it appears, one more answer to this contention. After the enactment of the impugned Coorg Agricultural Income-tax Act, by a law made by Parliament under Art. 240 of the Constitution, known as the "The Government of Part C States Act, (XLIX of 1951)", a body called the Coorg Legislative Assembly was created to function as a Legislature for the State of Coorg. This Legislative Assembly replaced the Coorg Legislative Council which had made the impugned law. During the pendency of these two Writ petitions, this new body functioning as the legislature for the State of Coorg enacted a law called the Coorg Agricultural Income-tax (Amendment) Act, 1955, which received the assent of the President on 29-3-1955. The relevant provisions of this enactment are as hereunder: Act No. TJ of 1955 (Received the assent of the President on 29-3-1955) An Act further to amend the Coorg Agricultural Income-tax Act, 1951. Be it enacted in the Coorg Legislative Assembly in the Sixth year of the Republic of India as follows:

1. Short title, extent and commencement. (1) This Act may be called the Coorg Agricultural Income-tax (Amendment) Act, 1955. (2) It extends to the whole of the State of Coorg. (3) It shall come into force on such date as the Chief Commissioner may, by notification in the official gazette, appoint.

2. Amendment of Section 1, Act I of 1951. In S. 1 of the Coorg Agricultural Income-tax Act, 1951 (hereinafter referred to as the principal Act), for sub-s. (3), the following shall be substituted and shall be deemed always to have been substituted, namely: "(3) It shall be deemed to have come into force on the 1-4-1951. Explanation : For the purpose of calculating the tax due during the assessment year 551-52 the income derived by the assessees from 4-1950 to 31-3-1951 shall be taken as the income for assessment." It is not disputed that this amending Act came into force consequent on the issue of the required Notification under sub-s. (3) of S. 1 of the Amending Act. Nor is the constitutionality of this Amending Act assailed. It is urged by the learned Advocate-General that the effect of the enactment of this amending Act, was that, the impugned principal Act must be deemed to have come into force on 1-4-1951 and that as stated in the explanation to sub-s. (3) of S. 1 of the amended Act the income derived by the petitioner from 1-4-1950 to 31-3-1951 was the income on which agricultural income-tax was charged under the Act, for the assessment year 1951-52.

36. The learned Advocate-General has arguedthat the amendments made to S. 1 of the Act provide a sufficient answer to the contention raised on behalf of the petitioner. In my opinion,." the argument is irrefragable.

37. Mr. Bhatt has however endeavoured to meet this argument by contending that the amending Act was a curative statute and could not affect vested rights or validate an act originally done without authority. He has urged that the impugned assessment, made as it was, prior to the enactment of the amending Act, was an act done without authority and could not be validated by the amendments made under the later Act, which was enacted long after the appeal and the revision petition against such assessment had been heard and decided. He therefore contends that the only question that this Court should decide is whether respondent 2, the Income-tax Officer, when he made the assessment, had under the law then in force, the authority to make it. The amending Act, it is urged, does not contain the usual validating provision, validating assessments made under the impugned Act and could not therefore render valid an assessment which being one which could not be regarded as one made under the Act, was a nullity. Mr. Bhatt has referred to two passages on pages 577 and 578 of Crawfords book on Statutory Construction, which read "Nevertheless, there are even limitations on the extent of the retroactive operation of curative acts. Obviously, they cannot violate provisions of the constitution. Nor should they interfere with or destroy vested rights of third parties." "On the other hand a curative statute cannot validate an act originally done without authority."

38. It seems to me that this contention cannot be accepted. In the first place, it cannot be said that the amending Act is merely a curative Statute. The effect of that legislation which provides that the principal Act shall be deemed to have come into force on 1-4-1951, is that the Act should be treated as having come into force on that date although in fact it had not so came into force. Similarly the effect of the explanation to sub-s. (3) of S. 1 of the Act as amended which shall be deemed always to have been substituted is that sub-s. (3) of S. 1 of the Act which should be treated as having come into force on 1-4-1951, should also be regarded as having contained that explanation although in fact it did not. In other words, the Act as amended, must be regarded and treated as the Act under which the Income-tax Officer made his assessment and the assessee could not be allowed to contend that the law in force on 1-4-1951 was not the Act as it stood after the amendment. Similarly the decision of the Court as to the existence or otherwise of the authority to make such assessment has necessarily to rest on the provisions of the amended Act, which the Court is bound to treat as the law in force on 1-4-1951.

39. But it is contended that the assessment for the assessment year 1951-52 having been completed under the principal Act before its amendment, this Court, in these Writ petitions has only to see whether respondent 2 had the authority to make that assessment when it was made. It is argued that the only question before this Court is whether that order of he Income-tax Officer was right according to the law as it stood at the time when the assessment was made. I am unable to agree that this is the correct position.

40. On the question whether the court is entitled to take into account legislative changes during the pendency of the litigation, the rule adopted by the Supreme Court of the United States is, what was stated in Patterson v. Alabama, (1935) 294 US 600 (N). In that case, Hughes C.J., said: "We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered." As pointed out by Gwyer C.J., in Lachmeshwar Prasad v. Keshwar Lal, AIR 1941 PC 5 (O), that rule, was what commended itself to their Lordships of the Federal Court of India. In that case, in the course of his judgment, Varadachariar J. said this: "In the recent case of K. C. Mukherjee v. Ram Ratan, 63 Ind App 47: (AIR 1936 PC 49) (P), it would appear from the report of the arguments in 63 IA 47 (P), that Quiltar v. Mapleson, (1882) 9 QBD 672 (Q), was referred to, and it was observed by Lord Thankerton in the course of the argument that the duty of a Court is to administer the law of the land at the date when the Court is administering it. This adds significance to the fact that their Lordships in that case did not deal with the judgment of the Patna High Court on its merits, but dismissed the appeal on the strength of a provision contained in an enactment which was passed only during the pendency of the appeal before His Majesty in Council. In these circumstances I am of opinion that we should follow the law as laid down in the latter case". In Kamakshya Narain Singh v. Commissioner of Income-tax, Bihar, 1947-15 ITR 311: (AIR 1947 FC 48) (R), it was held by their Lordships of the Federal Court of India that if pending a litigation or pending an appeal some relevant legislation was enacted, by the appropriate legislative authority, the deciding Tribunal must give effect to it. In that case, the assessees income for the accounting year 1938-39 was assessed to income-tax on 14-2-1940. The assessee appealed against that assessment to the Appellate Commissioner. On 26-5-1940, the Governor of Bihar, acting under S. 92 11) of the Government of India Act, 1935, issued a notification that the Indian Finance Act, 1940 should be deemed to have come into force on 6-4-1940 in the area in which the assessee was residing. It was subsequently discovered that the Indian Finance Act of 1939 was not in operation on the date of the assessment. By a further regulation which was enacted by the Governor of Bihar, acting under S. 92 (2) of the Government of India Act, 1935, it was provided that the Indian Finance Acts of 1938 and 1939 should be deemed to have come into force in that area on 26-3-1938 and 30-3-1939 respectively. But by the time this regulation was enacted, the Appellate Assistant Commissioner had dismissed the appeal of the assessee and his appeal to the Income-tax Appellate Tribunal was still pending. It was contended on behalf of the assessee in that case that the Indian Finance Act of 1939 not having been made applicable to the area in which the assessee was residing at the time his assessment was completed, the order of the Income-tax Officer was a nullity. It was further argued that the appellants appeal having been dismissed by the Appellate Assistant Commissioner before that Finance Act was made applicable to that area, the subsequent regulation made by the Governor so applying that Act could not put life into what was already dead.

41. In rejecting that argument, Kania J., (as he then was) said this: "In our opinion this argument is unsound The assessment proceedings had not come to an end nor were they dead. The appellant had kept the proceedings alive by filing appeals and the proceedings were thus pending for decision. X X X X X The fact that an appeal was pending against the assessment is a material fact. When an Appellate Tribunal (whether it is the Assistant Commissioner, or the Tribunal of Appeal, or the High Court, or the Federal Court; decides the appeal it has to do so according to the law then in operation. If pending the litigation or pending the appeal some relevant legislation is enacted by the appropriate legislative authority, the deciding tribunal must give effect to it". On page 318 (of ITR): (at pp. 51-52 of AIR), he made the following further observations. "The Court has therefore to consider whether when the Income-tax Appellate Tribunal decided the appeal and when the High Court expressed its view on the question of law submitted for its opinion, the same was according to the law then in operation. The dates mentioned at the commencement of the judgment show that by Regulation IV of 1942, Cl. 3 of that Regulation was declared "as deemed always to have been substituted" in place of S. 3 of Bihar Regulation I of 1941. That clause included, inter alia, the Indian Finance Act of 1939 in the Acts which were declared as deemed to have come into force in the areas mentioned therein, on the dates therein specified. As already pointed out in the previous judgment in Civil Appeals Nos. III, IV and V of 1946, the effect of the words "deemed to have been applied " is to treat as if they were in existence, although not so in fact, from the dates mentioned in the Regulation. Giving effect to the words used in the Regulation it is therefore clear that the Finance Act of 1939 was in operation in the partially excluded area of Chota Nagpur when the Income-tax Appellate Tribunal and the High Court decided the points put before them. The orders passed by those Tribunals are valid according to the law then in force and the fact that on the date the Income-tax Officer passed the assessment order the Finance Act of 1939 had not been extended to the Chota Nagpur Division, is irrelevant." The decision in the above case is, in my opinion, a complete answer to the contention raised by Mr. Bhatt.

42. It is clear that Mr. Bhatt is not right in contending that the duty of this Court is limited to the examination of the question whether respondent 2 had the authority to make the impugned assessment according to the law as it stood when he made it. On the contrary the test to be applied in a case like this is whether respondent 2, if he was now making an assessment for the assessment year 1951-52, would not have the authority to make it. That this is the correct position is clear from the following passage in Crawfords Book on Statutory Construction at page 578 : "For instance, where a curative act became effective during the pendency of an appeal, writ of error, or motion for a rehearing, the defect sought to be cured is cured the same as if the act had become effective before the action was instituted."

43. It is therefore plain that the contention that the petitioners income for the previous year ending on the 31st day of March 1951 was not liable to assessment, is without substance and has to fail.

44. At one stage during the argument, a complaint was made on behalf of the petitioner that respondent 2, in assessing his income for the assessment year 1952-53 adopted a wrong method of accounting; but Mr. Bhatt who had to admit that this method of accounting had, as revealed by the further affidavit produced by the learned Advocate-General on behalf of the respondents, turned out to be beneficial to the petitioner, stated that he would not press that contention.

45. In my opinion, these two writ Petitions must fail and are dismissed. No costs.

46. K. S. HEGDE J. : I agree. Petitions dismissed. AIR 1958 MYSORE 113 (VOL. 45, C. 27) "Narayana Iyengar,v. Subba Rao" MYSORE HIGH COURT Coram : 1 K. S. HEGDE, J. ( Single Bench ) B. K. Narayana Iyengar, Petitioner v. H. V. Subba Rao and another, Respondents. Civil Revn. Petn. No. 1029 of 1957, D/- 9 -1 -1958 against order of Third Addl. Dist J., Bangalore, D/- 29 -10 -1957. (A)Mysore House Rent and Accommodation Control Act (30 of 1951), S.11 - HOUSES AND RENTS - WORDS AND PHRASES - ACCOMMODATION CONTROL - RES JUDICATA - Houses and Rents - Issue meaning of Identity of - matter in dispute is essential - Landlords previous application on ground of bona fide requirement oil house for his mother and brother - Subsequent application on ground that he needed it for his own use - If barred. Civil P.C. (5 of 1908), S.11. Where the matter in issue in the previous case was as to whether the landlord bona fide required the house for the use of his mother and brother at the time of that application, a subsequent application that the landlord needs the house for his own bona fide use will not be barred either by the principle of constructive res judicata or under S. 11, Mysore House Rent and Accommodation Control Act. (Para 5) What S. 11 of the Mysore House Rent and Accommodation Control Act as well as the rule of constructive res judicata prohibits is the investigation of the same point or points of dispute. The principle behind that said rule is that a question finally decided should not be re-opened. Section 11 of the Mysore House Rent and Accommodation Control Act lays down that the Court shall summarily reject any application under sub-s. (2) or under sub-s. 8 which raises between the same parties or between parties under whom they or any of them claim, substantially the same issues as have been finally decided in a former proceeding under that Act. The word "issue" is used in the same sense as is used in S. 11, C. P. C. It refers to the subject matter of the dispute. It is true that there is some difference in the phraseology used in S. 11, C. P. C. and S. 11 of the Mysore House Rent and Accommodation Control Act. It is possible to argue from this difference in the language that what was made res judicata under S. 11, C. P. C., is the matter that was substantially in issue and finally decided in the previous case but under the Mysore House Rent and Accommodation Control Act what is relevant is the "issue" and not the matter in issue. This interpretation if accepted will lead to anomalous results. The difference in the language employed in the two provisions, though could have been avoided, has not made any difference in law. They mean the same thing. Section 11 of the Mysore House Rent and Accommodation Control Act is a statutory incorporation of the well known doctrine of res judicata. The dictionary meaning of the word "issue" is, a point in question between contending parties in action; a question of fact or law on which the parties are at variance. The word "issue" in S. 11 of the Mysore House Rent and Accommodation Control Act means the dispute between the parties. Every issue must relate itself to a matter in dispute. It may be a question of fact or law. What is important is the identity of the matter in dispute. A dispute which arises subsequent to the earlier decision cannot be barred by res judicata by reason of the earlier decision. (Paras 5, 7) Anno: AIR Com., C.P.C., S. 11, N. 7, 72. (B) Transfer of Property Act (4 of 1882), S.113 - WAIVER - HOUSES AND RENTS - TENANCY - POSSESSION - Waiver of notice to quit - Acceptance of rent accruing subsequent to termination of tenancy - Intention. Mysore House Rent and Accommodation Control Act (30 of 1951), S.2(9) and S.8(3) - Landlords claim for possession u/S.8 (3) after notice to quit - Tenant becomes statutory tenant - Acceptance of rent subsequently accruing - If amounts to waiver. Under S. 113, T. P. Act there can be a waiver only if both the parties, the party who has given the notice and the party who has received the same intentionally agree to waive the notice. (Para 8) The payment of the rent by the tenant for a period subsequent to the termination of the tenancy and acceptance of the same has been laid down as a statutory proof of the intention of both the parties to treat the lease as subsisting. Undoubtedly it is one of the modes of proof of the agreement to treat the lease as subsisting. It is a conclusive proof, (Para 8) Where the landlord claims possession under S. 8 (3) of the Mysore House Rent and Accommodation Control Act after serving a notice to quit thereby terminating the contractual tenancy the tenant immediately becomes a statutory tenant as defined in S. 2 (9) and does not become a trespasser. He is still liable to pay the rent. Hence, merely because he pays the rent there can be no inference that he intended to continue the tenancy. Again the landlord cannot take possession merely on the basis of the termination of the tenancy. He must satisfy the Controller that he comes within S. 8 of the Mysore House Rent and Accommodation Control Act. Before he could occupy the house an order of the Controller is necessary. He is entitled to rent as such till the tenant vacates the house. Hence, the receipt of the rent cannot show that he intended the tenancy to continue. Illustration (a) to S. 113, T. P. Act is not applicable to leases which are subject to control laws. AIR 1954 Cal 460, AIR 1951 Cal 342, (S) AIR 1957 Cal 627, AIR 1957 Pat 206 and AIR 1948 Bom 385, Rel. on; and Mys LJ 45, Disting. (Para 8) Anno: AIR Com., T. P. Act, S. 113, N. 3. CASES REFERRED: Paras (A) AIR 1954 Cal 460 (V 41): 58 Cal WN 438 8 (B) AIR 1951 Cal 342 (V 38): 85 Cal LJ 339 8 (C) (S) AIR 1957 Cal 627 (V 44) 8 (D) AIR 1957 Pat 206 (V 44): ILR 35 Pat 894 8 (E) AIR 1948 Bom 385 (V 35): 50 Bom LR 233 8 (F) AIR 1949 FC 124 (V 36): 1949 FCR 262 8 (G) (28) 6 Mys LJ 45 8

L. S. Varadaraja Iyengar, for Petitioner; L. Krishnamurthy, for Respondents. Judgement ORDER: The petitioner before this Court is the tenant and the respondents are the landlords. The respondents applied to the learned Munsiff, Dodballapur, in H. R. C. No. 3 of 1954 to evict the petitioner on the ground that they wanted the premises for their own use and occupation and also on the ground that the premises required repairs. The learned Munsiff rejected the application. In his opinion the building did not require any substantial repairs. He arrived at the conclusion that the respondents bona fide required the house for their own use, but felt unable to grant any relief to them as in his view the petition was not sustainable. He opined that it was barred by the rule of res judicata in view of the decision in H. R. C. No. 8/49-50. He further held that the quit notice issued by the landlords has been waived as they have received rent for a period subsequent to the determination of the lease.

2. The respondents went up in appeal to the learned Third Additional District Judge, Bangalore. It was tried as H.R.C.A. No. 61 of 1956. The learned District Judge agreed with the learned Munsiff that the building needed no repairs but he differed from the learned Munsiff on the question of res judicata and also on the question of waiver. He accepted the finding of the learned Munsiff that the respondents needed the house bona fide for their requirements and consequently allowed the appeal and ordered the eviction of the tenant. The tenant has come up in revision to this Court.

3. It is necessary to mention a few more facts. The first respondent is the son of the second respondent. The first respondent had filed earlier an application to evict the tenant on the ground that be had defaulted in the payment of rent and also on the ground that the house was required for the use of his mother and brother. The said application had been tried as aforesaid as H. R. C. No. 8 of 1949-50. The Court seems to have concentrated mainly on the question of arrears of rent. No attention was focussed on the question whether the landlord required the house for his own use. In the present petition as originally filed the respondents alleged that the house was required for the use of the second respondent (second petitioner in the trial Court) as she wanted to stay at Dodballapur. It was urged that she was finding her stay in Bangalore inconvenient and also that she wanted to educate her deceased daughters son at Dodballapur. The first respondent is employed in the Electrical Department of the State Government. He was occupying Government quarters. During the pendency of the petition he was transferred to another post and the Government required him to vacate the premises which he was occupying, He got his petition amended and averred therein that he required this building at Dodballapur for his own stay in view of the changed circumstances.

4. As stated above both the Courts below have concurrently come to the conclusion that the respondents needed the house for their own use. This is a finding of fact. I have been taken through the evidence in the case and I am convinced that the conclusions arrived at by the Courts below are correct. It is true that during, the pendency of the appeal, the first respondent had been transferred from Dodballapur to Chickballapur. But the appellate Court has come to the conclusion that in spite of this transfer it is necessary for him to retain his family in Dodballapur. Hence the said transfer does not affect the merits of the case.

5. Two questions of law have been urged before me on behalf of the petitioner. It is contended that the present petition is barred both under S. 11 of the Mysore House Rent and Accommodation Control Act and also under the rule of constructive res judicata. It is further urged that the petition for eviction is not maintainable as the quit notice given by the landlords has been waived. The plea of res judicata is based on the decision of the learned Munsiff, Dodballapur in H. R. C. No. 8/49-50. As stated hereinbefore, the first respondent had applied therein asking for the eviction of the tenant on the ground that he defaulted in the payment of rents and also on the ground that the house was required for the use of his brother and mother. The decretal portion of the order in the said case is as follows: "I consider that there is no justification to evict the tenant now he has paid all arrears o rent (barring Rs. 38/- under dispute) the petitioner may establish his claim to the disputed portion in a proper court of law." On an examination of the order I do not find any discussion or decision on the question of bona fide requirement of the house by the respondents. The learned Munsiff who tried the present application was of opinion that the landlord having made the claim for the possession of the house on the ground that he needed the same for the bona fide occupation of his brother and mother, the Court having not granted the prayer it must be presumed that the same was rejected. It was a matter which was directly and substantially in issue in the said case. Hence according to him the present petition is barred. The learned District Judge differed from the conclusion of the trial Court. He held that there was no identity of parties. The second respondent was not a party in the previous petition though she was a joint owner and consequently the previous order could not affect her right. It is urged before me that this view of the learned District Judge is not correct. If is unnecessary for me to consider as to whether the learned District Judge is correct in coming to the conclusion that there is no identity of the parties in the two proceedings as I am clearly of opinion that the cause; of action in the two cases is quite different. In the H. R. C. No. 8/49-50 the first respondent claimed that he wanted the house for the use of his brother and mother. Rightly or wrongly that claim was not allowed. In the present petition the possession of the house is claimed on the ground that the respondents needed the same for their use and that in view of the changed circumstances. The necessity has arisen subsequent to the order passed in H. R. C. No. 8/49-50. The present cause of action has nothing to do with the cause of action that was urged in H. R. C. No. 8/49/50. The matter in issue in the previous case was as to whether the landlord bona fide required the house for the use of his brother and mother at the time of that application whereas in the present case the question for consideration is as to whether he bona fide requires it now for his own use. The two issues are not identical. They may be similar but not the same. What S. 11 of the Mysore House Rent and Accommodation Control Act as well as the rule of constructive res judicata prohibits is the investigation of the same point or points of dispute. The principle behind the said rule is that a question finally decided should not be re-opened. Section 11 of the Mysore House Rent and Accommodation Control Act lays down that the Court shall summarily reject any application under sub-s. (2) or under sub-s. (3) of S. 8 which raises between the same parties or between parties under whom they or any of them claim, substantially the same issues as have been finally decided in a former proceeding under that Act. The word "issue" is used in the same sense as is used in S. 11, C. P. C. It refers to the subject-matter of the dispute.

6. It is true there is some difference in the phraseology used in S. 11, C.P.C. and S. 11 of the Mysore House Rent and Accommodation Control Act. Section 11, C.P.C. lays down that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties. In S. 11 of the Mysore House Rent and Accommodation Control Act there is no reference to the matter directly and substantially in issue but on the other hand the words used are "the Court shall summarily reject any application.... which raises between the same parties.............substantially the same issues...".

7. It is possible to argue from this difference in the language that what was made res judicata under S. 11, C.P.C. is the matter that was substantially in issue and finally decided in the previous case but under the Mysore House Rent and Accommodation Control Act what is relevant is the "issue" and not the matter in issue. This interpretation if accepted will lead to anomalous results. Let us take into consideration the case where the landlord applies for the eviction of the tenant on the ground that he has defaulted in the payment of the rent. The application is rejected. Then according to the contention of the petitioner the landlord will have no further right to apply for the eviction of the tenant on the ground that he has subsequently defaulted in the payment of the rent. Again the Landlord who had applied for the eviction of the tenant on the ground that the house needed repairs, if the application is rejected cannot apply for the eviction of the tenant even if later on, it becomes necessary to repair the house. Unless there are compelling reasons it is unreasonable to accept such a construction. The difference in the language employed in the two provisions though could have been avoided has not made any difference in law. They mean, the same thing. In my judgment S. 11 of the Mysore House Rent and Accommodation Control Act is a statutory incorporation of the well known doctrine of res judicata. The dictionary meaning of the word issue is a point in question between contending parties in action; a question of fact or law on which the parties are at variance. The word "issue" in S. 11 of the Mysore House Rent and Accommodation Control Act means the dispute between the parties. Every issue must relate itself to a matter in dispute. It may be a question of fact or law. What is important is the identity of the matter in dispute. A dispute which arises subsequent to the earlier decision cannot be barred by res judicata by reason of the earlier decision. Hence there is no substance in the plea of res judicata raised by the petitioner.

8. The more important point urged before me is that the landlord have waived the quit notice given by them. The quit notice was served on the petitioner on 15-9-1954 terminating his tenancy as on 30-9-1954. It is admitted that subsequent to this date two payments of rents were made, once on 2-10-1954 and again on 25-11-1954. The payment on 2-10-1954 relates to the period prior to the termination of the tenancy and hence if not of any consequence. But the rent received by the landlords on 25-11-1954 is for the month of October, 1954 that is for the period subsequent to the period of tenancy. The tenant contends that the landlords having received the said rent must be deemed to have waived the quit notice. In such a circumstance the tenant will become a tenant holding over under S. 116 of the Transfer of Property Act or at any rate the parties have agreed to the continuance of the tenancy. Reliance is placed on S. 113 of the Transfer of Property Act and particularly on illustration (a), to the said section. Waiver is a well known idea. It means the giving up of a right. It is contractual in its content. It must be intentional and not accidental. There must be ad idem between the contracting parties. Waiver presupposes that the parties to the contract were conscious of their rights and one of the parties who is entitled to certain rights had deliberately given up the same with the consent of the other. To waive is to forbear or to relinquish or forgo a right or a claim. This common law idea is given a statutory form under Ss. 112 and 113, T. P. Act. Section 111 of the T. P. Act provides for the determination of lease; S. 111 (g) provides for forfeiture under certain circumstances but it requires the lessor to give notice in writing to the lessee of his intention to determine the lease; S. 112 provides that forfeiture under S. 111, clause (g) is waived by acceptance of rent which has become due since the forfeiture or by distress for such rent or by any other act on the part of the lessor showing an intention to treat the lease as subsisting provided that the lessor is aware that the forfeiture has been incurred and further provides also that where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver. From this it is clear that the Legislature stipulated that the waiver must be an intentional act. But one mode of statutory proof of this intention is the acceptance of the rent which has become due since the forfeiture. Clause (h) of S. 111 provides for the determination of the lease. But S. 113 lays down that a notice given under S. 111, clause (h) is waived, with the express or implied consent of the person to whom it is given by any act on the part of the person giving it showing an intention to treat the lease as subsisting. From this it is seen that there could be a waiver only if both the parties, the party who has given the notice and the party who has received the same intentionally agree to waive the said notice. Illustration (a) is as follows : "A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders, and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived." The payment of the rent by the tenant for a period subsequent to the termination of the tenancy and acceptance of the same has been laid down as a statutory proof of the intention of both the parties to treat the lease as subsisting. Undoubtedly it is one of the modes of proof of the agreement to treat the lease as subsisting, it is a conclusive proof. The reason is obvious. Once the lease is terminated the tenant becomes a trespasser. There is no question of payment of any rent. If the tenant pays any rent as such it is dear that he intends to continue as a tenant. Conversely the landlord is not entitled to any rent for that period. Hence his receiving of any rent must be only on the basis that he is willing to treat the lease as subsisting. Be it noted that the amount must be paid as rent and received as such. But in the present case the possession is claimed under sub-s. (3) to S. 3 of the Mysore House Rent and Accommodation Control Act. It is true that the notice given fey the landlord would come within the ambit of clause (h) to S. III of the T. P. Act. The notice terminates the contractual tenancy. But immediately the tenant becomes a statutory tenant as defined in sub-s. (9) of S. 2 of the Mysore House Rent and Accommodation Control Act. The tenant does not become a trespasser, He is still liable to pay the rent. Hence merely because he pays the rent there can be no inference that he intended to continue the tenancy. Again the landlord cannot take possession merely on the basis of the termination of the tenancy. He must satisfy the Controller that he comes within S. 8 of the Mysore House Rent and Accommodation Control Act. Before he could occupy the house an order of the Controller is necessary. He is entitled to rent as such till the tenant vacates the house. Hence the receipt of the rent cannot show that he intended the tenancy to continue. The reason behind S. 113, T. P. Act is wholly inapplicable to the facts of the present case. Illustration (a) to S. 113, T. P. Act as not applicable to leases which are subject to Control laws. This is also the view taken by a long line of decisions. The point is elaborately discussed by a Division Bench of the Calcutta High Court in the case reported in Panchanan Ghose v. Haridas Banerjee, AIR 1954 Cal 460 (A). This decision follows an earlier decision of the same High Court reported in Manindra Nath De v. Man Singh, AIR 1951 Cal 342 (B). It is followed by a later decision reported in Pulin Behary Shaw v. Miss Lila Dey, AIR 1957 Cal 627 (C). The same is the view taken by the Patna High Court in the case reported in Zaffar HusSain v. Mahabir Prasad, AIR 1957 Pat 206 (D). The Bombay High Court took the same view in the case reported in Baldeodas Mahavirprasad v. G. P. Sonavalla, AIR 1918 Bom 385 (E). Some support for this view can also be canvassed from the observations made in the case reported in Kai Khushroo Benerjee Capadia v. Bai Jarbai Hirjibhoy Warden, AIR 1949 FC 124 (F). No decision which has taken a contrary view has been brought to my notice The trial Court followed the decision reported in Y. V. Venkata Subbayya v. H. Rangaswamiah, 6 Mys LJ 45 (G). The said decision is not applicable to the facts of the present case. It is not a case arising out of any control laws. It was clearly a case falling under Ss. 106 and 116 of the T. P. Act. The decision lays down that if after the determination of the lease the landlord accepts the rent from the lessee such acceptance is prima facie proof of his intention to treat the lease as subsisting. It further lays down that if there be acceptance of rent even, after the expiry of the lease, and the termination of the tenancy by means of a quit notice the acceptance would afford stronger proof of such an intention on his part. It must he noted that the said decision also lays down that it would be open to the lessor to offer counter-proof of the want of such intention on his part. Such a presumption will not be available in the present case.

9. The Courts below have come to the conclusion that the rent was neither paid with the intention to continue the tenancy nor was the same received with such an intention. I am in agreement with those conclusions. Hence the plea of waiver is not available to the petitioner.

10. In the result this revision petition fails and is dismissed with costs. Revision dismissed. AIR 1958 MYSORE 116 (VOL. 45, C. 28) "Shanthamallappa v. Chandappa" MYSORE HIGH COURT Coram : 2 S. R. DAS GUPTA, C. J. AND N. SREENIVASA RAU, J. ( Division Bench ) M. C. Shanthamallappa, Appellant v. M. D. Chandappa Shetty, Respondent. Misc. Appeal No. 7 of 1957, D/- 20 -12 -1957against order passed by Commr. for Workmens Compensation, Coorg at Mercara, D/- 5 -12 -1956. (A) Workmens Compensation Act (8 of 1923), S.30 - WORKMENS COMPENSATION - EVIDENCE - APPEAL - Finding of fact - Appreciation of evidence by Commissioner - Interference in appeal. The Commissioners decision is likely to be interfered with only when a substantial question of law is involved in the appeal. A finding of the Commissioner that the accident arose out of and in the course of deceaseds employment is prima facie a finding of fact. (Para 4) Where the Commissioner after weighing all the material available to him came to the conclusion that version put forward by the employer was wholly impossible and not creditworthy, even though the employers witnesses had given a cogent and consistent version and that version was supported by the dying declaration of the deceased and was not inconsistent with the medical evidence in regard to the injuries, he was entirely within his province in doing so and there is no perversity or gross misappreciation of evidence in such a conclusion being arrived at. (Para 5) Anno: AIR Man., W.C. Act, S. 30 N. 1, 3. (B) Workmens Compensation Act (8 of 1923), S.3 - WORKMENS COMPENSATION - Accident arising out of and in the course of employment - Burden of proof. When a claim is made under the Act that the fatal accident arose out of and in the course of employment, the statute does not itself raise any presumption in the matter and it follows that when a claim is made under the Act, the burden lies upon the claimant to make out the necessary ingredients. (Para 6) But it cannot be suggested that as long as the possibility of the accident having arisen outside the scope of any employment cannot be excluded, the claimant has to fail. (Para 7) Where the workman is engaged in his employers work up to his death and the last acts known are consistent with the continuance of that work, the onus is upon the person who alleges a cessation of his work for his employer to prove it. (1911) 1 KB 1036, Rel. on. (Para 11) It is not necessary to establish, that it should be shown that the workman was engaged in doing something. There is no basis in principle or in the wording of the section for the proposition that the workman should be engaged in some positive activity at the time of the accident and that the accident should be related to such activity. The presence of the workman on the spot at the time of the accident, if such presence itself was attributable to the discharge of his duty, is enough to show that the accident arose out of his employment. AIR 1942 Bom 175, Rel. on. (Para 12) Where the accident resulting in the death of the deceased, who was a cleaner attached to the lorry, occurred when the lorry had been taken out on the road for the purpose of loading stones, the presence of the deceased in the proximity of the lorry could not be attributed to anything other than the discharge of his duty and in the absence of any credible evidence that at the time of the accident the deceased was engaged in anything outside the scope of his employment, the accident must be held to have arisen out of his employment. (Para 12) Anno : AIR Man., W. C. Act S. 3 N. 2, 8. CASES REFERRED: Paras (A) AIR 1951 Cal 145 (V 38) 7 (B) (1909) KB 41: 78 LJKB 533 9 (C) (1909) 1909-2 KB 46 9, 12 (D) AIR 1942 Bom 175 (V 29): ILR (1942) Bom 225 11, 12 (E) (1911) 1911-1 KB 1036: 80 LJKB 731 11

V. Krishna Murthy, for Appellant; C. B. Motaiya, for Respondent. Judgement N. SREENIVASA RAU, J. :- The Appellant was the owner of a motor lorry. The respondent is the father of one Annayya who died on 19-3-1956 in consequence of injuries sustained by him when the lorry had been taken out for bringing a load of stones. The Respondent claimed compensation as a dependent of Annayya under the Workmens Compensation Act on the ground that the fatal accident arose out of and in the course of Annayyas employment as a cleaner of the lorry under the Appellant. It was contended by the Appellant that Annayya had not been his employee and that the accident had not arisen out of and in the course of employment. The Commissioner for Workmens Compensation, however upheld the claim and awarded compensation on the basis that Annayya was getting monthly wages of Rs. 60/-.

2. In this appeal though the Appellant challenged the correctness of the Commissioners finding that Annayya was a workman under the Appellant and the quantum of compensation awarded, the learned Counsel for the Appellant has not pressed these two points and has confined his arguments to the question whether the accident arose out of and in the course of employment.

3. It is not disputed that the fatal accident occurred while the lorry had been taken out to the neighbourhood of a place called Thrukarahatti for transporting stones. The version put forward on behalf of the Appellant was that Annayya who had accompanied the lorry went away from, the spot where the loading was taking place saying that he wanted to answer calls of nature, that he returned without being noticed either by the driver or the labourers who had gone alongwith the lorry to do the loading, that he got underneath the lorry and went to sleep there, that the driver and the labourers shouted for Annayya to take him along with them after the work of loading was over, that Annayya did not make his appearance, that they though ho would join the lorry at a shop situated nearby at the road side that the driver started the lorry on the return journey when some obstruction was felt and they heard the cries of Annayya whom they found injured by one of the wheels of the lorry passing over a part of his body. According to the Respondent the injuries must have occurred while Annayya tried to start the engine handle when, owing to some mischance the lorry moved forward and hit Annayya. The Commissioner disbelieved the version put forward by the Appelant, thought that the probabilities were in favour of the Respondents version, but holding that it was not possible to state the exact manner in which, the injuries were caused to Annayya still opined that the circumstances of the case showed that Annayya suffered a fatal injury by doing something in his capacity as the cleaner of the lorry and that the accident, therefore, arose out of and in the course of Annayyas employment.

4. The Commissioners decision is liable to be interfered with only when a substantial question of law is involved in the appeal. The above finding of the Commissioner, viz., that the accident arose out of and in the course of Annayyas employment is prima facie a finding of fact. It is urged by the learned Advocate for the Appellant that the Commissioner has grossly misappreciated the evidence adduced by the Appellant in to tally rejecting it even though the Appellants witnesses have given a cogent and consistent version and that version is supported by the dying, declaration of the deceased and is not inconsistent with the medical evidence in regard to the injuries and that even otherwise as the burden lay upon the Claimant to establish that the accident arose out of and in the course of employment of the deceased and as no evidence has been adduced by the Respondent the claim has to fail.

5. It is no doubt true that according to the material on record the only persons present on the scene were the driver of the lorry and the labourers and that all of them have spoken in support of the appellants version. It is also true that the dying declaration of the deceased recorded on the some day by a Magistrate supports the version. But lids does not however mean that that version had to he accepted without scrutiny by the Commissioner. The accident occurred in the early part of the afternoon and the loading of stones did not occupy much time. The Commissioner has taken the view that it was very unlikely in these circumstances, that the deceased would have thought of going to sleep or would have chosen the space underneath the lorry as a place for taking rest or that the shouting of the driver and of the labourers would not have aroused him from his sleep. He has also borne in mind the fact that the drivers mind would naturally be exercised in avoiding the consequences to himself of the accident and the fact that his fellow employees would be sufficiently interested to support a version which would exonerate the driver. He has also taken the view that the dying declaration of the deceased exonerating the driver must have been induced in die same circumstances. He refers to the deceaseds statement that the driver did not observe the deceased creeping under the lorry as a tell-tale statement, as the deceased could not have known whether the driver did nor did not notice that act. As regards the medical evidence, the Medical Officer examined as P. W. 7 has no doubt stated in cross-examination that if the man was lying under the lorry and the wheel pressed against the right portion of the body, when the wheels moved, an injury like the one on the deceaseds body could also have been caused. But he has stated in examination-in-chief that if the hind wheel of the lorry had passed over the abdomen there would have been injuries to other organs also. A question was raised in the course of arguments as to the admissibility of the witnesss evidence as he was not the Doctor who treated the deceased soon after the accident or conducted the post mortem examination and as his evidence is based upon the contents of the post mortem certificate granted by the Doctor who conducted the examination. If the evidence is inadmissible it cannot be taken into consideration at all. If on the other hand it has to be treated as the evidence of an expert interpreting the data furnished by the post mortem certificate such evidence was part of the evidence which the Commissioner had to take into consideration in arriving at his own conclusion. It may also be mentioned that the Claimant, in the course of his evidence, has stated that the deceased told him that the lorry dashed against him when, after he started the lorry using the starter the lorry moved, that he was hit by the bumper on the right side of the lorry and that he was told (presumably by the driver of the Appellant) that he should not mention these facts to the authorities or others and that he would be looked after by the Appellant. The Commissioner has not referred to this part of the claimants deposition, but all this was material available to him and, if the Commissioner, after weighing all this evidence came to the conclusion that the version put forward by the Appellant was wholly improbable and not creditworthy, it appears to me that he was entirely within his province in doing so and I see nothing in the nature of perversity or gross misappreciation of evidence in such a conclusion being arrived at.

6. It is contended, however, by the learned Advocate for the Appellant that even if the Appellants version should fall to the ground the Respondent cannot succeed unless he discharges the burden that lies upon him to show that the accident arose out of and in the course of his sons employment. It has already been mentioned above that the only persons present at the time of the occurrence were the driver and the labourers and in the very nature of things the Respondent has not been able to adduce any positive evidence as to the manner in which the accident occurred except the statement made to him by his son which has been referred to above. The Statute (Workmens Compensation Act) does not itself raise any presumption in the matter and it follows that when a claim is made under the Act, the burden lies upon the claimant to make out the necessary ingredients. In this case, the Claimant has to establish that the accident arose in the course of the deceaseds employment as also that it arose out of the employment. The finding of the Commissioner that the deceased was employed by the Appelant as a cleaner and that he was working in that capacity on the date of the accident has not been challenged at the time of arguments before us. Thus the fact that the accident arose in the course of the deceaseds employment must be regarded as having been established. The question for consideration is whether the accident arose out of the employment.

7. The learned Advocate for the Appellant has drawn our attention to certain passages in Halsburys Law of England, (Lord Hailsham Edition Vol. 34). They are: "The burden of proof both that the accident arose out of and in the course of the employment rests in the first place upon the workman or his dependants.............." If the proved facts give rise to conflicting inferences of equal probability, so that the choice between them can only be arrived at by what amounts to a guess, then such a guess, though called an inference, arrived at in favour of the applicant will be set aside." The words "arising out of the employment means that, during the course of the employment, injury has resulted from some risk incident to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered". "Where the workman, though during a time when the course of his employment is subsisting, does something entirely for his own purposes and thereby incurs a risk which causes an accident, he is not entitled to compensation". "If the workman goes outside the sphere of his employment as defined by his employee he is not generally entitled to compensation if he sustains an accident whilst thus acting". "If a workman sustains an accident whilst he is doing an act which is within his sphere of employment, the mere fact that he has acted negligently or failed to adopt the safest method of working will not deprive him of compensation. Where, however, whether from recklessness or from any other reason a workman does something which it was no part of his employment to do, and thereby incurs a risk to which he was neither required nor authorised to expose himself an accident so caused will not arise out of the employment". The above extracts may be taken as substantially representing the rules that govern the matter, but what is suggested on the strength of these passages is that as long as the possibility of the accident having arisen outside the scope of employment cannot be excluded the Claimant has to fail. It is difficult to see any warrant for such a suggestion in the above passages. It is next contended that if the probabilities are equally balanced, even then the Claimant has to fail. This, no doubt, is supported by the above passages and, indeed, logically follows the proposition that the initial burden rests on the Claimant. In this connection the learned Advocate for the Appellant has drawn our attention to the decision reported in Steel Products Ltd. v. Amelda, AIR 1951 Cal 145 (A). That was a case in which it was found that the workman, a fitter, after measuring something on an almirah, went apparently outside to start work, fell down and was taken to the hospital and according to the medical evidence it turned out to foe a case of cerebral thrombosis with progressive cerebral oedema. It could not, however be stated whether the fall preceded the attack of cerebral thrombosis or whether the attack caused the fall. In the latter case the death could not be regarded as due to an accident as there was nothing to connect the attack with what the workman was doing. In the former case, the onset of the attack might be due to fall which occurred out of what he was doing as an employee. The Court held that as the facts were entirely consistent with both the possibilities and it was quite impossible to say which of those two alternative was the more probable the claim had to fail.

8. It is suggested by the learned Advocate for the Appellant that the accident which occurred in the case on hand is consistent with both the Claimants version and the employers version and that on the basis of the principle indicated in the above decision the Claimant has to fail. It may at once be stated that no question of two equally possible versions arises in this case since it has been found that the Appellants version is not true. The only question, therefore, is whether, apart from that version, the circumstances of the case justify the inference that the accident arose out of the employment.

9. The learned Advocate has also relied on two decisions reported in Bender v. Owners of Steamship Zent, 1909-2 KB 41 (B) and Marshall v. Owners of Steamship Wild Rose, (1909) 2 KB 46 (C). In the first case, the chief cook and baker of a steamship was lost overboard. The weather was fine at the time, the ship was steady and there was a four feet rail and bulwark all round. There was no suggestion that any portion of the mans duty would lead him to a position of danger on the ship. It was held that there was no evidence which would enable the court to draw the necessary inference that the accident causing death arose out of as well as in the course of the employment. In the other case, the second engineer of a ship who had gone out on deck for a breath of fresh air was missed at midnight. The next morning he was found drowned. It was held that though the accident occurred in the course of the deceaseds employment, it had not been established that it arose out of his employment since there was nothing to indicate that his duty would take him to the place where the accident must have occurred. It is suggested on the strength of these two cases that in the present case also no evidence has been let in by the Claimant to show that the accident is attributable to anything done by the deceased in connection with his employment.

10. It is seen, however, that in each of these cases the circumstances indicated that the duties of the workman did not normally expose him to the risk which resulted in the fatal accident. In the case on hand, the point for consideration is whether the workmans presence at the place of accident was normally attributable to his duties.

11. On the other hand, the learned Advocate for the Respondent has relied upon the decision reported in Vishram Yesu v. Dadabhoy Hormasji and Co., AIR 1942 Bom 175 (D). That was a case in which a khalasi employed on a barge went to sleep at night on one of the hatches in the barge and when his companion woke up he was found to be missing and later on his body was discovered in the dock where the barge had been stationed. It was in evidence that the khalasis had to sleep either in the rooms allotted to them by the employers when there was no work at night or on the hatches when there was work at night. It was held that the accident arose out of the employment since the deceased was at a place where he was discharging his duties to his employers. This apparently has reference to the fact that the khalasi was sleeping in the hatch and not in a room since he had to be ready for work during the course of the night. The learned Advocate has also referred to the case reported in Astley v. R. Evans and Co. Ltd., (1911) 1 K. B. 1036 (E). That was a case in which the brakesman of a train that was running buffer to buffer with another train towards a siding point endeavoured to climb from the truck in which he was riding on to the brake van of the train in front of his train and in doing so fell and was killed. It was urged for the employer that in trying to climb on the brake van of the train in front the workman was doing something which he was not called upon to do in the course of his employment and had needlessly exposed himself to a risk. This contention was not accepted. An examination of the decision shows that it turned upon the view taken by the learned Judges on the question whether the particular act was reasonable or not and in fact one of the Judges took a different view. The learned Advocate, however, relies on this decision for the enunciation of some principles by Fletcher Moulten, L. J. The passage reads as follows: "What then is the proper presumption in the case of death which is due to the dangers of the employment and which occurs to a person who is engaged in it, but where from the nature of the case no direct evidence can possibly be obtained as to the events immediately preceding the accident? In my opinion, the principle that we ought to apply to the presumption in such a case is, that where the workman is shown to have been engaged in his employers work and nothing else during the period prior to the accident, and the accident occurs by reason of his doing an act which is consistent with his still continuing to he doing that work, the proper presumption is that he did what led to the accident in continuing his employers work, and not that he had ceased to do his employers work and had commenced to do something for his own purposes. In other words, where the workman is engaged in his employers work up to his death and the last acts known are consistent with the continuance of that work, the onus is upon the person who alleges a cessation of his work for his employer to prove it". This, if I may say so with respect, is a fair and reasonable rule, based as it is on the principle of continuity and it is in no way inconsistent with the principles referred to earlier. Relying on the above passage it is suggested for the Respondent that as the deceased went with the lorry in the discharge of his duties it must be presumed even in the absence of any evidence on the Claimants side that the accident occurred when the deceased was discharging his duties to his employer and that, as the Appellants version as to the circumstances of the accident is disbelieved, the presumption stands unrebutted.

12. In the light of the above discussion, it appears to me that the circumstances of the case leave no room for doubt that the accident must be regarded as having occurred while the deceased was discharging his duty as a workman. He was a cleaner attached to the lorry. No evidence has been given in the case as to what the exact duties of a cleaner are. But the evidence, adduced on both sides makes it clear that his work consisted not merely of cleaning the lorry but of acting as a handyman accompanying the lorry. Indeed, the position taken up by both the Counsel in the course of arguments was that the duties of a cleaner of a lorry were analogous to those of a conductor in a passenger vehicle. It was therefore part of the duty of the deceased to be in the lorry whenever it was on the road and to be by its side to do whatever work was entailed in the work of transport. The deceased went from Mercara to the spot where the stones had to be loaded and stayed by the side of the lorry after arriving at the spot in the discharge of his duty. It is not disputed that the injuries are attributable to some mischance associated with the working of the lorry. Even if the particular circumstances under which the accident occurred and the injuries were sustained are not established, it is beyond doubt that the deceased sustained the injuries when he was present on the spot in discharge of his duty as a workman. In other words the accident arose out of his employment. It appears to me that it is not necessary to establish as suggested by the learned Advocate for the Appellant, that it should be shown that the workman was engaged in doing something. There is no basis in principle or in the wording of the section for the proposition that the workman should be engaged in some positive activity at the time of the accident and that the accident should be related to such activity. The presence of the workman on the spot at the time of the accident, if such presence itself was attributable to the discharge of his duty is enough to show that the accident arose out of his employment. It will be remembered that in the AIR 1942 Bom 175 (D), the khalasi was sleeping on one of the hatches so as to be ready for work whenever the need for it should occur in the night. It was held that his location on the hatch in those circumstances must be regarded as in the discharge of his duty as a workman. The same principle is found illustrated in the observations of Farwell, L. J. in (1909) 2 KB 46 (C) men. tioned above: "If an ordinary sailor is a member of the watch and is on duty during the night and disappears, the inference might fairly be drawn that he died from an accident arising out of his employment. But if, on the other hand, he was not a member of the watch, and was down below and came up on deck when he was not required for the purpose of any duty to be performed on the deck and disappeared without knowing anything else, it seems to me that there is absolutely nothing from which any court could draw the inference that he died from an accident arising out of his employment. The presence of the deceased in the proximity of the lorry when it had been taken there for the purpose of loading stones could not be attributed to anything other than the discharge of his duty and in the absence of any credible evidence that at the time of the accident the deceased was engaged in anything outside the scope of his employment, the accident must be held to have arisen out of his employment.

13. There is thus no reason to interfere with the decision of the Commissioner. This appeal is accordingly dismissed with costs.

14. S. R. DAS GUPTA, C.J.: I agree. Appeal dismissed. AIR 1958 MYSORE 120 (VOL. 45, C. 29) "Sangappa v. Shivamurti Swamy" MYSORE HIGH COURT Coram : 2 S. R. DAS GUPTA, C. J. AND A. R. SOMNATH IYER, J. ( Division Bench ) Sangappa and another, Petitioners v. Shivamurti Swamy and others, Respondents. Writ Petns. Nos. 197 and 201 of 1957, D/- 21 -11 -1957. (A) Representation of the People Act (43 of 1951), S.90(5) (as amended in 1956) - ELECTION - WORDS AND PHRASES - TRIBUNALS - Construction of - "Particulars" Meaning of Power of Tribunal to allow amendment of particulars. Words and Phrases "Particulars". While construing S. 83 as it stood before it was amended in 1956 their Lordships of the Supreme Court held in (S) AIR 1957 SC 444 that under S. 83 (3) the Tribunal has power to allow particulars in respect of illegal or corrupt practices to be amended, provided the petition itself specifies the grounds or charges and this power extends to permitting new instances to be given. Their Lordships held that it would be competent to the Tribunal to allow the amendment giving for the first time instances of corrupt practice, provided such corrupt practice has been made a ground of attack in the petition. (Para 9) The reasons given by their Lordships of the Supreme Court in the above case, for holding that the word particular in S. 83, before its amendment, means instances of corrupt practice, equally applies to S. 90 (5) of the Act as amended in 1956 in construing the meaning of the same word. In other words, the same principle, which has been laid down by their Lordships in construing the provisions of s. 83 of the unamended act would apply in construing the provisions of S. 83 and S. 90 (5) of the amended Act. (Para 11) Hence, the Tribunal has under the present S. 90 (5) power to allow amendment of the particulars which includes the power to allow fresh instances to be given. (Para 13) (B) Representation of the People Act (43 of 1951), S.90(5) (as amended in 1956) - ELECTION - WORDS AND PHRASES - "Particulars to be amplified" - Interpretation of. Words and Phrases. "Amplification means the act of increasing or enlarging. If the word particulars means instances then when it is said that instances of corrupt practice may be amplified, it means such instances may increased or, in other words, more instances can be given of such corrupt practice. It may be conceded that if by the word particulars is meant details of facts already stated, then amplification would mean giving more details of those facts. But if by the word particulars is meant instances, then "amplification of instances" can only mean "giving more instances". It does not mean that the Tribunal has to allow fuller details to be given of the instances which have already been sup-Plied. (Para 14) (C) Representation of the People Act (43 of 1951), S.90(5) (as amended in 1956) - ELECTION - WORDS AND PHRASES - Words "not previously alleged in the petition" - Construction of. The words "not previously alleged in the petition" occurring in sub-s. (5) of S. 90 refer to "corrupt practice" and not to "particulars". The effect of S. 90 (5), reading it as a whole, is that, if a corrupt practice has been alleged, then further instances of such corrupt practice can be given; but if a corrupt practice has not been alleged in the petition, then by trying to give particulars of a corrupt practice which has been alleged, particulars of a corrupt practice which has not been alleged cannot be introduced. (Para 5) CASES REFERRED: Paras (A) (S) AIR 1957 SC 444 (V 44): 1957 SCR 370 9, 12 (B) (1869) 1 OM and H 264 (Ir.) 9, 12 K. Rajah Iyer, for Petitioners; S. V. Patil, for Respondents. Judgement S. R. DAS GUPTA, C. J. :- The question involved in these two petitions is the same, viz., whether or not instances of a corrupt practice, which were not in the original petition, can be allowed to be filed after the time for filing an election petition has expired. There is hardly any dispute on questions of fact. The dispute centers round the construction of S. 90, sub-s. (5) of the Representation of the People Act as it stands after amendment in 1956.

2. The petitioners in both these petitions had filed their respective election petitions for setting aside the elections in which they respectively stood as candidates. The petitioners in their respective petitions referred to various corrupt practices which the respondents are said to have committed and for which the elections were sought to be avoided and gave several instances in each case of such corrupt practices. Thereafter they made the applications which have given rise to the present petitions for allowing them to give further instances of such corrupt practices. The said petitions were opposed by the respondents in each case but were allowed by the Tribunal. Hence the present petitions have been filed to this court for appropriate writs quashing the said order of the Tribunal dated 2-9-1957.

3. The principal contention raised by Mr. Rajah Iyer in support of both these petitions was that the Tribunal had no jurisdiction to allow such instances to be furnished beyond the period of time mentioned in the Act for filing the election petition. I should mention that it is not disputed before us that these applications were filed beyond such time. Mr. Rajah Iyer further contended before us that S. 90 (5) of the Representation of the People (Amendment) Act, 1956, under which the Tribunal purported to make the said order, only permits the Tribunal to allow particulars of any corrupt practice which have already been given to be amended or amplified and does not permit fresh instances of such corrupt practice to be filed.

4. Before I deal with this contention of Mr. Rajah Iyer, it would be necessary to set out the relevant sections of the Representation of the People Act as it stood after its amendment in 1956. Section 83 of the said Act provides as, follows: "Contents of petition (1) An election petition (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (V of 1908) for verification of pleadings. (2) Any schedule of annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition."

5. Sub-section (5) of S. 90, which is the material provision for our present purpose, reads as follows : "The Tribunal may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition."

6. Section 100 gives the grounds for declaring elections to be void. That section mentions amongst other grounds that if the Tribunal is of opinion "that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent, the Tribunal shall declare the election of the returned candidate to be void." The only other section, to which I need refer for the present is S. 123. It mentions what are deemed to be corrupt practices for the purpose of this Act, e. g "(1) Bribery, that is to say, any gift, offer or promise by a candidate or his agent or by any other person, of any gratification to any person whomsoever, with the object, directly or indirectly of inducing (a) a person to stand or not to stand as, or to withdraw from being, a candidate or to retire from contest, at an election: (b) an elector to vote or refrain from voting at an election;................ (2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere, on the part of the candidate or his agent, or of any other person, with the free exercise of any electoral right; ............ (3) The systematic appeal by a candidate or his agent or by any other person to vote or refrain from voting on grounds of caste, race, community or religion or the use of, or appeal to, religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of that candidates election. (4) The publication by a candidate or his agent or by any other person, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to personal character or conduct of any candidate or in relation to the candidature, or withdrawal, or retirement from contest, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidates election". I need not set out all the other items of corrupt practices mentioned in the said section.

7. For the purpose of deciding the present contention of the petitioners it would also be necessary to set out the provisions of S. 83 of the Representation of the People Act as it stood before its amendment in 1956. The said section reads as follows: "83. Contents of petition (1) An election petition shall contain a concise statement of the material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908) for the verification of pleadings. (2) The petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges including as full a statement as possible as to the names of the parties alleged to have committed such corrupt or illegal practice and the date and place of the commission of each such practice. (3) The Tribunal may, upon such terms as to costs and otherwise as it may direct at any time, allow the particulars included in the said list to be amended (or order such further and better particulars in regard to any matter referred to therein to be furnished) as may in its opinion be necessary for the purpose of ensuring a fair and effectual trial of the petition."

8. These being the material provisions of the Act as it stood before and after amendment in 1956, the material question which we shall have to decide in these petitions is what is meant by the expression, "The Tribunal may allow the particulars of any corrupt practice alleged in the petition to be amended or amplified" as used in s. 90 (5) of the amended act. Is it meant that the Tribunal may allow further instances of any corrupt practice to be given or is it meant that he would only allow fuller details to be given of the instances which have already been supplied? Mr. Rajah Iyer contended before us that s. 90 (5) of the amended act only allows further details of the instances, which have already been supplied, to be given and does not permit fresh instances to be supplied. He contended that this is clear from the fact that the said sub-section only says that the Tribunal may allow particulars to be "amended or amplified". He also drew our attention to the fact that in the last portion of the said sub-section it is definitely stated that the petitioner will not be permitted to introduce particulars of a corrupt practice not previously alleged in the petition. This last part of section 90 (5) according to him, shows that fresh instances of a corrupt practice should not be allowed to be given.

9. At the very outset it should be mentioned that in a recent decision of the Supreme Court Harish Chandra v. Triloki Singh, (S) AIR 1957 S. C. 444 (A) the effect of S. 83 of the old Act came to be considered and their Lordships held that under the said section new instances were permissible. Their Lordships held that under section 83 (3) the Tribunal has power to allow particulars in respect of illegal or corrupt practices to be amended, provided the petition itself specifies the grounds or charges and this power extends to permitting new instances to be given. Their Lordships held that if would be competent to the Tribunal to allow the amendment giving for the first time instances of corrupt practice, provided such corrupt practices have been made a ground of attack in the petition. Their Lordships in their judgment observed as follows : "In our opinion S. 81 (1) and S. 83, sub-ss. (1) and (2), when correctly understood, support the contention of the respondent that the Tribunal has authority to allow an amendment even when that involves inclusion of new instances, provided they relate to a charge contained in the petition. Taking first S. 81 (1), it enacts that a petition may be presented calling an election in question on one of the grounds specified in S. 100, sub-ss. (1) and (2) and S. 101. These sections enumerate a number of grounds on which the election may be set aside, including the commission of the corrupt practices mentioned in S. 123 of the Act, and quite clearly it is the different categories of objections mentioned in S. 100, sub-ss. (1) and (2), S. 101 and S. 123 that constitute the grounds mentioned in S. 81 (1). Then we come to S. 83 (1). It says that the petition should contain a concise statement of the material facts and that would include facts relating to the holding of the election, the result thereof, the grounds on which it is sought to be set aside, the right of the petitioner to present the petition and the like. Then S. 83 (2) enacts that when there is an allegation of corrupt or illegal practice, particulars thereof should be given in a separate list. If the grounds on which an election is sought to be set aside are something other than the commission of corrupt or illegal practices, as for example, when it is stated that the nomination had been wrongly accepted or that the returned candidate was not entitled to stand for election, then S. 83 (2) has no application, and the requirements of S. 83 (1) are satisfied when the facts relating to those objections are stated. The facts to be stated under S. 83 (1) are thus different from the particulars which have to be given under S. 83 (2). When, therefore, an election is challenged on the ground that the candidate has committed the corrupt practices mentioned in S. 123, instances constituting particulars thereof will properly fall within S. 83 (2) and not S. 83 (1). The result is that the power under S. 83 (3) to allow further and better particulars will include a power to allow fresh instances of the charges, which form the grounds on which the election is questioned." Their Lordships further observed as follows : "The substance of the matter, therefore, is that under S. 83 (3) particulars can be amended and supplemented, and the reason of it requires that the power could be exercised even when the particulars are contained in the body of the petition. And even when there is no list filed, as in the present case, it would be competent to the Tribunal to allow an amendment giving for the first time instances of corrupt practice, provided such corrupt practice has been made a ground of attack in the petition." Their Lordships referred to an English decision in Carrickfergus Case (1869) 1 OM and H 264 (B) with approval for the proposition that in ordering an application for amending particulars new matters may be added.

10. Mr. Rajah Iyer did not dispute before us that the Supreme Court did hold in that case that by particulars was meant instances of a corrupt practice and such instances can be allowed to be given under section 83 of the old act. He, however, contended before us that the said decision of the Supreme Court was given on a construction of Sec. 83 of the old Act. The law, according to him, has undergone a change and the provisions of S. 90 (5) of the amended Act are not the same as the provisions of section 83 of the old act. He contended that Sec. 90 (5) is differently worded and the effect of this change is to disallow fresh instances of corrupt practice being given. I am unable to accept this contention of Mr. Rajah Iyer. The matters contained in section 83 of the old act have been distributed in Sec. 83 and S. 90 (5) of the new Act. For the sake of convenience, I shall set out below the two sections side by side which will show at a glance that there is no substantial difference between the old section 83 on the one land and section 83 and section 90 (5) of the new Act on the other. They are as follows : BEFORE AMENDMENT. AFTER AMENDMENT.

83. Contents of petition : - 83. Contents of petition : - (1) An election petition shall contain a concise statement of the material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908) for the verification of pleadings. (1) An election petition?(a) shall contain a concise statement of the materia facts on which the petitioner relies ;(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice ; and(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings. (2) The petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges, including as full a statement as possible as to the names of the parties alleged to have committed such corrupt or illegal practice and the date and place of the commission of each such practice. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. (3) The Tribunal may, upon such terms as to costs and otherwise as it may direct at any time, allow the particulars included in the said list to be amended (or order such further and better particulars in regard to any matter referred to therein to be furnished) as may in its opinion be necessary for the purpose of ensuring a fair and effectual trial of the petition. S. 90 (5) ? The Tribunal may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.

11. It appears on a comparison of those sections that the matters contained in sub-paragraph (1) of the old section 83 have been set out in clauses (a) and (c) of the new S. 83. The matters contained in sub-s. (2) of the old S. 83 have been set out in clause (b) of the new S. 83. The matters contained in sub-s. (3) of Sec. 83 have been incorporated in section 90 (5) of the new Act. It appears to me that there is no substantial difference between the provisions of the old section 83 and the new Ss. 83 and 90 (5). The con-tents of sub-s. (1) of the old section 83 and those of sub-clauses (a) and (c) of sub-s. (1) of the new section 83 are the same. So are the contents of sub-s. (2) of the old S. 83 and the clause (b) of sub-s. (1) of the new S. 83. Both of them require full particulars of a corrupt or illegal practice which the petitioner alleges including as full a statement as possible as to the names of the parties alleged to have committed such corrupt or illegal practice to be submitted; the only difference being that, whereas in sub-s. (2) of the old S. 83 such particulars have to be set out in a separate list, in clause (b) of sub-s. (1) of the new S. 83 no such separate list is required to be filed and the particulars mentioned may be set out in the petition itself. Coming to sub-s. (3) of the old S. 83 and S. 90 (5) of the new Act, I also do not find any material difference between the two regarding the point in question. Under sub-s. (3) of the old S. 83 the Tribunal was permitted "to allow the particulars included in the said list to be amended" or "order such further and better particulars in regard to any matter referred to therein to be furnished," whereas under S. 90 (5) of the new Act the Tribunal may "allow the particulars of any corrupt practice alleged in the petition to be amended or amplified." In the first place, I see no reason as to why the meaning of the word "particulars" used in section 90 (5) should be held to be different from the meaning of that word used in sub-s. (3) of the old Sec. 83. In my opinion, the reasons given by their Lordships of the Supreme Court in the case to which I have referred for holding that the word particulars in S. 83 means instances of corrupt practice would equally apply to section 90 (5) of the new Act in construing the meaning of the same word. In other words, the same principle, which has been laid down by their Lordships in construing the provisions of s. 83 of the old act would apply in construing the provisions of S. 83 and S. 90 (5) of the new Act. They are substantially the same and I find no reason to hold that the word particulars in S. 83 and S. 90 (5) of the new Act means something different from what was meant by the same word used in Sec. 83 of the old Act. In my opinion, the word particulars in Sec. 83 and Sec. 90 (5) also means instances of a corrupt practice. As observed by their Lordships of the Supreme Court in the said case, the corrupt practices mentioned in the petition are the grounds, and instances of such corrupt practices are- particulars thereof. For instance, if it is alleged in a petition of this kind that the respondent has been guilty of any of the corrupt practices mentioned in S. 123, then he would be setting forth the ground on which he seeks to have the election set aside. But then he has to give instances of such a corrupt practice and those instances would be the particulars of that ground. It follows therefrom that when it is said that the particulars of a corrupt practice are to be stated, it is meant that instances of such corrupt practice have to be mentioned. In my opinion, therefore, in construing S. 83 and Sec. 90 (5). of the new Act, the word "Particulars" will ha to be understood in the same sense in which it was used in Sec. 83 of the old Act, as construed by their Lordships of the Supreme Court. If that be so, then the next question which arises is whether or not there is any material alteration in Sec. 90 (5) of the new Act which would justify the view that further instances of a corrupt practice are not permitted to be given under the said section. On this point Mr. Rajah Iyer laid considerable emphasis in his argument on the use of the word "amended or amplified" as distinct from the words "further and better particulars in regard to any matter referred to therein to be furnished" as used in sub-s. (3) of the old Sec. 83. He contended that, when it is said that particulars may be amended, it is only meant that whatever particulars have been given even if we hold that particulars mean instances can be corrected. According to him, amending particulars does not mean adding to them in the sense that new particulars or new instances can be given. In other words, it is the same particulars, which have been given, that can be altered by way of amendment and no new particulars can be introduced. He further contended that the word amplified used in Sec. 90 (5) of the new Act also suggests that no fresh particulars or instances can be given but what has already been given may be made more clear and fuller in details. Mr. Rajah Iyer, further submitted before us that the last portion of Sec. 90 (5) which says "The Tribunal shall not allow any amendment of the petition which will have the effect, of introducing particulars of a corrupt practice not previously alleged in the petition" also supports his contention that new instances, of a corrupt practice cannot be given.

12. In my opinion, none of these contentions of Mr. Rajah Iyer can be accepted as sound. In the first place, it should be noted that in sub-s. (3) of S. 83 of the old Act, it was also provided that the Tribunal may allow the particulars set out to be amended and, as I have already mentioned, their Lordships of the Supreme Court clearly held in the said case of (S) AIR 1957 S. C. 444 (A) that the Tribunal has power to allow particulars in respect of illegal or corrupt practices to be amended provided the petition itself specifies the grounds or charges and this power extends to new instances to be given. It should also be mentioned that Sec. 90 (5) of the new Act has made no change in this respect. In other words, section 90 (5) has also retained the power for the Tribunal to allow amendments of the particulars of any corrupt practice alleged. So in this respect there is no difference even in language between sub-s. (3) of Sec. 83 of the old Act and Sec. 90 (5) of the new Act. The contention of Mr. Rajah Iyer as now put forth before us on this point was not accepted by their Lordships of the Supreme Court in the said case and I have already mentioned that their Lordships referred to Carrickfergus case (B) with approval in holding that in ordering an application for amending particulars new matters can be included.

13. The result therefore is that on this ground, namely that the Tribunal has power to allow amendment of the particulars which include the power to allow fresh instances to be given, the contention of the petitioners must fail.

14. I am also unable to accept the other two contentions of Mr. Rajah Iyer. The dictionary meaning of the word "amplification" is to increase or enlarge. If therefore we hold that the word particulars means instances then the question is what is meant by saying that such instances can be enlarged. In my opinion, when it is said that instances of corrupt practice may be amplified, it means such instances may be increased or, in other words, more instances can be given of such corrupt practice. That seems to me to be the natural meaning of the expression amplified if it is to be read in connection with the word instances. I concede that if by the word particulars is meant details of facts already stated, then amplification would mean giving more details of those facts. But if by the word particulars is meant instances, then "amplification of instances", in my opinion, can only mean "giving more instances." Mr. Rajah Iyer further contended before us that what is stated in Sec. 90 (5) is that particulars may be allowed to be amplified meaning thereby that amplification is to be of those particulars which are already given. On this basis he contended that when it is said that the particulars can be amplified, it can only mean that the particulars already given may be amplified, that is to say, those particulars may be made fuller in details. I must concede that there is some ingenuity in this contention but it should be noted that the words used are "particulars of any corrupt practice and it is such particulars which are to be amplified. If therefore by the word "particulars of corrupt practice" is meant instances of corrupt practice," then amplification of such particulars would mean amplification of such instances. I am unable to accept this part of Mr. Rajah Iyers contention.

15. The last contention on this point seems to me to be equally untenable. Mr. Rajah Iyers contention on this part of his argument really rests on the assumption that the words "not previously alleged in the petition" governs the word particulars. It is on this assumption that he contends that if instances are not previously alleged in the petition, then such instances cannot be given. In my opinion, the words "not previously alleged in the petition" refer to "corrupt practice" and not to "particulars." It seems to me to be quite clear that the effect of S. 90 (5), reading it as a whole, is that, if a corrupt practice has been alleged, then further instances of such corrupt practice can be given but if a corrupt practice has not been alleged in the petition, then by trying to give particulars of a corrupt practice which has been alleged, particulars of a corrupt practice which has not been alleged cannot be introduced. This seems to me to be the true effect of S. 90 (5) of the new Act.

16. In my opinion, therefore, all the contentions of Mr. Rajah Iyer fail and the petitions are dismissed with costs. He allow advocates fee at Rs. 150/- in each of these petitions.

17. A. R. SOMNATH IYER, J. : I agree. Petitions dismissed. AIR 1958 MYSORE 125 (VOL. 45, C. 30) "P. Murthy v. Rachaiah" MYSORE HIGH COURT Coram : 2 S. R. DAS GUPTA, C. J. AND SREENIVASA RAU, J. ( Division Bench ) Parasiva Murthy, Defendant, Appellant v. Rachaiah and another, Plaintiffs 1 and 2, Respondents. Second Appeal No. 194 of 1953, D/- 25 -7 -1957, against decree of Addl. Sub-J., Mysore in R. A. No. 61 of 1951-52. Hindu law - Alienation - Power of guardian of minor. Under the Hindu law a widow can transfer the widows estate not merely for legal necessity but for other reasons one of such reasons being religious or charitable purposes. But in the case of the natural guardian of a minor such a guardian can only alienate the property for legal necessity and for no other purpose. Therefore the alienation by the guardian to pay the barred debts of the father of the minor is not binding on the minors interests. AIR 1934 All 1048 and AIR 1930 Cal 351 and AIR 1924 All 551 (FB), distinguished. (Para 2) CASES REFERRED: Paras (A) AIR 1934 All 1048 (V 21): ILR 57 All 422 2 (B) AIR 1930 Cal 351 (V 17): ILR 57 Cal 904 2 (C) AIR 1924 All 551 (V 11): ILR 46 All 775 (FB) 2 D. M. Chandrasekhar, for Appellant; D. S. Lingappa, for Respondents. Judgement S. R. DAS GUPTA, C.J. :-The question raised, in this appeal is whether or not an alienation by natural guardian to pay the barred debts of the father of the minor is binding on the interests of the minor. It arises in this way. The plaintiffs are the two brothers of the minor. The father of the minor had mortgaged the property in question some time in 1920. The minor was born on 15-7-1930. Some time before 1937 the exact date is not known the father died. On his death his widow Siddi became the natural guardian of the minor. On 15-7-1937. the said Siddi executed a sale deed whereby she transferred the property in question in favour of the Appellant before us for the total sum of Rs. 300/-. Out of the said sum of Rs. 300/-, Rs. 200/-were paid to discharge the debt payable by the minors father on the mortgage which, as I have already mentioned, was executed in the year 1920. That debt was on the date of the said sale already barred. Rs. 100/- were sought to have been utilised for the maintenance and other necessities of the minor. The present suit has been instituted by the other two brothers of the minor for setting aside the said transaction. The first Court held that the payment of the sum of Rs. 100/- was not supported by any legal necessity but the payment of the sum of Rs. 200/- was for legal necessity. The lower appellate Court, however, took the view that the transaction was not for legal necessity and on that view decreed the suit and set aside the judgment of the trial Court. I should have mentioned that the findings of both the Courts are that it has not been established satisfactorily that Rs. 100/- were utilised or paid for any legal necessity. The present appeal has been filed against the decision of the lower appellate Court.

2. Before us the learned Advocate appearing for the appellant contended that the view taken by the lower appellate Court was wrong. He urged that the natural guardian has always the power to transfer property of the minor to pay even the barred debts of the father of the minor. The learned Advocate stated that there is no decision directly on the point. He, however, relied on certain decisions of the Calcutta High Court and Allahabad High Court in support of his aforesaid proposition, viz., Tulshi Prasad v. Jagmohan Lal, AIR 1934 All 1048 (A) Ashutosh v. Chidam Mondal, AIR 1930 Cal 351 (B) and Gajadhar v. Jagannath, AIR 1924 All 551 (FB) (C). In our opinion, the contention of the learned Advocate for the Appellant cannot be accepted as sound. The lower appellate Court, in our opinion, took a right view of the legal position in the matter. If the minor after attaining majority was not bound to pay off the barred debts of his father we see no principle on which the guardian can compel the minor during his minority to pay the said amount. The cases cited by the learned Advocate for the Appellant do not in our opinion, touch the present question. Those cases relate to the power of a Hindu widow to transfer the property of her husband which she had inherited in order to pay off the husbands debts. It has been held by the Calcutta High Court and that view has been accepted by the High Court of Allahabad that the payment of the debt of the husband was a pious obligation on the part of the widow which she was bound to discharge. In our opinion, it cannot be said that the same principle would apply to the case of an alienation by the natural guardian of the minors property. It has been laid down in Maynes Hindu Law, 11th edition at page 770; "The obligation of a widow taking her husbands property to pay his debts has been held to be a pious duty coming under the head of religious benefit". The learned author continues : "Of course, there could be no such duty where the debts were contracted for immoral purposes or where they were repudiated by the husband during his lifetime. It was formerly held that where the debts were already barred By lapse of time, she could not burden or dispose of the estate for their discharge and this is certainly the law as regards an ordinary manager of the family." The learned Advocate for the Respondents pointed out to us that under the Hindu Law a widow can transfer the widows estate not merely for legal necessity but for other reasons; one of such reasons being religious or charitable purposes. But in the case of the natural guardian of a minor such a guardian can only alienate the property for legal necessity and for no other purpose. That being the position, we are clearly of opinion that the contention of the Appellant must fail.

3. The result, therefore, is that this appeal is dismissed with costs. Appeal dismissed. AIR 1958 MYSORE 126 (VOL. 45, C. 31) "Paschal Nazereth v. Denis Lobo" MYSORE HIGH COURT Coram : 1 K. S. HEGDE, J. ( Single Bench ) Paschal Nazereth, Plaintiff-Petitioner v. Denis Lobo, Defendant-Respondent. Civil Revn. Petn. No. (M) 13 of 1956, D/- 19 -11 -1957, against judgment and decree of Dist. Munsiff, Mangalore, D/- 23 -3 -1955. (A) Provincial Insolvency Act (5 of 1920), S.46 - INSOLVENT - OBJECT OF AN ACT - CHIT FUNDS - Scope Insolvency of proprietor of chit fund - Assignment of pronote executed in his favour - Suit by assignee - Dealings in respect of separate chit - Subscriber can claim set off. Section 46, Provincial Insolvency Act is more or less a copy of S. 39 of the English Bankruptcy Act. Hence it is proper to presume that the Indian Legislature intended to give S. 46 the same import. The rule embodied in S. 46 is a rule of equity and there are no legitimate grounds to limit its benefits solely to actions in Insolvency Courts. If that be not so it is bound to give rise to fraudulent practices with a view to evade the law. Thus where on the insolvency of the proprietor of a chit fund, the Official Receiver assigned a pronote executed by one of the subscribers in favour of the proprietor as security for future instalments, in the suit brought by the assignee on that pronote the subscriber can claim set off of a sum due to him in respect of instalments paid by him to the proprietor under a separate chit. (Para 6) Anno: AIR Man., Prov. Insolvency Act, S. 46 N. 1. (B) Negotiable Instruments Act (26 of 1881), S.9 - NEGOTIABLE INSTRUMENT - Defect in title - Knowledge of - Assignee held not a holder in due course. In order to become a holder in due course the holder should have taken the assignment without having sufficient cause to believe that any defect existed in the title of the person from whom he got the assignment. (Para 8) Where in a suit based on a pronote executed in favour of a proprietor of a chit-fund and on his insolvency assigned to the plaintiff the assignee knew at the time he got the assignment that the insolvent was running the Fund and the defendant was having dealings with the insolvent; and he also knew the circumstances under which the said pronote was executed. Held that he was not a holder in due course. AIR 1942 Mad 30, Disting. (Paras 8, 9) Anno : AIR Man., Nego. Instru. Act, S 9 N. 4. CASES REFERRED: Paras (A) (1881) 8 QBD 147: 51 LJ QB 128 6 (B) AIR 1931 Rang 25 (V 18): ILR 8 Rang 419 6 (C) (1794) 3 RR 119: 6 TR 57 6 (D) (1877) 2 AC 616 8 (E) AIR 1942 Mad 30 (V 29) : 1941 Mad WN 775 10 P. Nazereth, for Petitioner; G. K. Govinda Bhat, for Respondent. Judgement ORDER: The petitioner is the plaintiff in Small Cause Suit No. 2 of 1955 on the file of the Court of the District Munsiff, Mangalore, South Kanara. His suit has been dismissed and he has come up in revision to this Court. This revision petition raises some interesting questions of law. In order to properly appreciate the questions of law that arise for consideration it is necessary to state the facts of the case briefly.

2. In the Town of Mangalore a Chit Fund was being run which was known as the New Kerala Daily Auction Chit Fund which will be hereinafter called the "Fund". The defendant was a member of the said "Fund". He executed a demand promissory note on 28-1-1952 in favour of the "Fund" for a sum of Rs. 500/- security for the due payment of the future instalments of the chit purchased by him. The practice of this Fund seems to have been that whenever a member was a successful bidder in any of the chit auctions, he will have to execute a pronote as security for the payment of future instalments of the chits purchased by him.

3. The proprietor of the said Fund seems to have disappeared and the transactions of the "Fund" came to a sudden end sometime in 1953. On the application of the creditors, insolvency proceedings started and the Official Receiver took charge of the assets of the Fund. The Official Receiver assigned the suit pronote in favour of the plaintiff as per endorsement dated 13-8-1954 and the plaintiff filed the present suit on the basis of the said demand promissory note. Prior to the filing of the suit, the plaintiff had issued a registered notice demanding a sum of Rs. 440/- as balance due under the pronote. The defendant in his reply notice stated that only 11 instalments are due from him under the chit in question. Hence his liability under the chit was only Rs. 55/-. He claimed certain bonus deductions. He also claimed a set off of Rs. 185/-in respect of the 37 instalments paid by him to the same Fund under a separate chit. The plaintiff confined his suit only to a sum of Rs. 66-9-3 i. e., Rs. 55/- as admitted arrears of 11 instalments of Rs. 5/- each, Rs. 8-9-3 as interest thereon from 28-1-1952 at 6 per cent., per annum upto date and Rs. 3/- as the cost of demand. The learned District Munsiff dismissed the suit holding that the defendant was entitled for set off of Rs. 185 due to him under S. 46 of the Provincial Insolvency Act as mutual dealings between the insolvent and the creditor. The learned counsel for the petitioner challenges the correctness of the decision of the trial Court.

4. The first contention raised by him is that S. 46 of the Provincial Insolvency Act has no application to the facts of the case. According to him the said section relates only to insolvency proceedings and its benefit cannot be availed of in proceedings other than insolvency proceedings. It is further contended that the suit is based on a negotiable instrument; the plaintiff is a holder in due course without notice of the defendants claim, hence the plea of set off is not open to the defendant.

5. The argument of the petitioner proceeds thus: Section 46 of the Provincial Insolvency Act is in part III of the Act which relates to the administration of the property of the insolvent. The provisions of Part III are intended to provide for the proof of debts etc. According to him on analysis of the sections grouped under that head it would be clear that the benefit of S. 46 could be availed of only in an Insolvency proceeding. Section 45 relates to the proof of certain debts which had not become due. Section 46 provides for the adjustments of mutual dealings; S. 47 sets out the rights of the secured creditors; S. 48 provides for the payment of interest under certain circumstances; S. 49 speaks of the mode of proof of debts; S. 50 provides for the disallowance and reduction of certain entries in the schedule. So much for the scheme of the Act. He further contends that S. 46 itself very specifically lays down that the creditor can take the benefit of that section when he proves or claims to prove his debt.

6. But on the other hand the learned Advocate for the respondent contends that S. 46 embodies a rule of equity. Its application is not confined to Insolvency Proceedings only. He relies on the history of the section in support of his argument. This section is more or less copied from S. 39 of the English Bankruptcy Act, 1869. Section 39 of the English Bankruptcy Act is as follows: "Where there have been mutual credits, mutual debts or other mutual dealings, between the bankrupt and any other person proving or claiming to prove a debt under his bankruptcy an account shall be taken of what is due from the one party to the other in respect of such mutual dealings, and the sum due from the one party shall be set off against any some due from the other party and the balance of such account, and no more, shall be claimed or paid on either side respectively .................." Section 46 of the Provincial Insolvency Act reads as follows: "Where there have been mutual dealings between an insolvent and a creditor proving or claiming to prove a debt under this Act, an account shall be taken of what is due from the one party to the other in respect of such mutual dealings, and the sum due from the one party shall be set off against any sum due from the other party, and the balance of the account, and no more, shall be claimed or paid on either side respectively." from a perusal of these two sections it is clear that S. 46 of the Provincial Insolvency Act is more or less a copy of S. 39 of the English Bankruptcy Act. Mr. Govinda Bhat, the learned counsel for the respondent contends that the English courts have uniformly held that the benefit of S. 39 of the English Bankruptcy Act could be availed of not merely in the Bankruptcy Court but also in common law Courts and that there are no good reasons to depart from the practice of the British Courts. Mr. Nazereth for the petitioner urges that the decision of the English Courts were not founded on the wording of the Section but on the basis of the practice prevailing in those Courts, and according to him no such practice is established in so far as Indian Courts are concerned. In Peat v. Jones and Co., (1881) 8 QBD 147 (A), the learned Judges of the Court of Appeal held that the plea of mutual dealings under s. 39 of the bankruptcy act is also available in Ordinary Civil Courts. Jessel M. R. enunciates the position as follows: "The statutes, however, contemplate the set off being allowed in the Bankruptcy court. This being so, if the debtor were sued in a common law court he could apply to the court of Bankruptcy for an injunction to restrain the assignee from suing him. Then the Courts of common law, having regard to the equity of the statute, went a step further, and allowed the debtor to plead the set off in the Court of common law itself without being under the necessity of applying for an injunction. This practice has been recognised in a series of decisions. The legislature must be taken to have been aware of the effect of those decisions when it passed the Bankruptcy Act, 1869, and not to have intended to alter the law. We are therefore bound to hold that the defendant was entitled to have the benefit of the set off." The same was the opinion of Brett L. J. and Cotton L. J. The Indian Legislature when it enacted the Provincial Insolvency Act of 1920, more or less bodily lifted this section from the English Act and introduced it in the Indian Statute. The Legislature must have been familiar with the practice prevailing in the English Courts and the import of S. 39 of the English Act as interpreted by the English Courts. Hence it is proper to presume that the Indian Legislature intended to give section 46 the same import. The rule embodied in S. 46 aforesaid is a rule of equity and there are no legitimate grounds to limit its benefits solely to actions in Insolvency Courts. If that be not so it is bound to give rise to fraudulent practices with a view to evade the law. In the case reported in Official Assignee v. Ma Yait, AIR 1931 Rang 25 (B), the learned Judges referred to the case of Dickson v. Evans reported in (1794) 3 RR 119 (C), wherein Lord Kenyon Ch. J., in the course of his judgment made the following observations: "But it would be most unjust indeed if one person, who happens to be indebted to another at the time of the bankruptcy of the latter, were permitted by any intrigue between himself and a third person so to change his own situation as to diminish or totally destroy the debt due to the bankrupt by an act ex post facto. In cases of this sort the question must be considered in the same manner as if it had arisen at the time of the bankruptcy, and cannot be varied by any change of situation of one of the parties." These observations are helpful in deciding the scope of S. 46. If we are to limit the benefit of S. 46 only to proceedings in the Insolvency Courts then it would be easy for parties to prejudice the opposite side by acts ex post facto. No Indian decision on the subject has been brought to my notice. The American courts have taken the same view as that of the British Courts. I am reluctant to depart from the literal meaning of the words of the Section. But in the instant case I am convinced that I shall be carrying into effect the true intention of the legislature by following the English decisions.

7. Next contention urged before me is that the plaintiff in this case has sued on the basis of a negotiable instrument. He has taken the assignment for valuable consideration without noticing any defect in the instrument. He is a holder in due course and hence his rights cannot be prejudiced. This contention has been countered by the learned Counsel for the respondent on two grounds: (1) the petitioner is not a holder in due course and (2) that the mutual dealings between the insolvent and the creditor respondent got themselves adjusted as on the date of the insolvency. Hence there was no debt to be assigned by the Official Receiver.

8. It is clear from the facts of the case that the plaintiff even on the date of assignment knew that the said pro-note has been executed by the defendant as a security for the due payment of future Instalments. He was aware that the pronote was supported by the consideration only to the extent of the arrears of payment. That was the reason as to why he claimed only Rs. 440/- in his registered notice. In fact he filed the suit for a much lesser sum. So he knew that the negotiable instrument was not what it looked. He got the assignment from the Official Receiver. He is likely to have known the circumstances under which the insolvency proceedings had started. Hence it was his duty to make the necessary enquiries and find out the real state of affairs. He was put on notice of the defect in the instrument. In order to become a holder in due course, the holder should have taken the assignment without having sufficient cause to believe that any defect existed in the title of the person from whom he got the assignment. It is contended for the respondent that the petitioner had sufficient information to put him on enquiry. The learned counsel for the petitioner contends that his clients duty was to investigate only about the defect in so far as it related to the transaction on the basis of which the suit instrument had been executed, and he had no duty to enquire into all the dealings between the insolvent and his creditor. I am unable to accept this contention. As stated by Lord Blackbum in Jones v. Gordon, (1877) 2 AC 616 (D): "that in order to make such a defence ............... it is necessary to show that the person .. ... .... .... was affected with notice that there was something wrong about it when he took it. I do not think it is necessary that he should have notice of what the particular wrong was."

9. In this case the plaintiff knew at the time he got the assignment that the insolvent was running the Fund and the defendant was having dealings with the insolvent. He also knew the circumstances under which the said pronote was executed. He was taking the assignment from the Official Receiver and it is proper to presume that he was acquainted with the circumstances relating to the insolvency. He had a duty to find out the nature of the defect in the suit instrument. Hence it is not possible to come to the conclusion that the plaintiff is a holder in due course. 10.In this connection the learned Counsel for the petitioner has brought to my notice a case reported in Ramamurthi v. Nukayya, 1941 Mad WN 775: (AIR 1942 Mad 30) (E). Undoubtedly the facts of this case are somewhat similar to the facts of the present case. But in the Madras case the learned Judge was not required to interpret the effect of S. 46 of the Provincial Insolvency Act. The decision rested on other considerations and hence is of no assistance.

11. It is unnecessary for me to decide finally the last contention raised by the learned counsel for the respondent that the mutual dealings between the insolvent and the respondent got themselves adjusted as on the date of insolvency. It is true that the relevant date for working out the mutual dealings is the date of insolvency. But it is difficult to accept his contention that there was any adjustment on the date of the insolvency. There is no support for this contention either from the wording of the section or from any decided case. In the result this revision petition fails and is dismissed with costs Revision petition dismissed. AIR 1958 MYSORE 128 (VOL. 45, C. 32) "Syed Ahmad.v. N. P. Taj Begum" MYSORE HIGH COURT Coram : 1 K. S. HEGDE, J. ( Single Bench ) H. Syed Ahmad. Petitioner v. Naghath Parveen Taj Begum, Respondent. Criminal Revn. Petn. No. 225 of 1957, D/- 9 -1 -1958, against order of City Magistrate, Bangalore, D/- 3 -5 -1957. (A) Criminal P.C. (5 of 1898), S.488(3), Proviso - MAINTENANCE - AMENDMENT - OBJECT OF AN ACT - Amendment - Scope - Taking second wife - AIR 1953 Nag 133, Dissented from. A husband can in an application under S. 488, Cr. P. C. take the plea that he is willing to maintain his wife if she lives with him. It is a good defence if it is a bona fide one. If the main proviso is available in proceedings under (1) then it necessarily follows that the amendment made to that proviso will also be applicable to such cases. If the husband can plead that he is willing to maintain the wife, she in her turn can plead that she is not willing to live with him on the ground that he has taken a second wife. There is no particular reason as to why such a plea should be available only at the time of enforcement of the order and not at the time of its passing. Neglect or no neglect the husband is liable to pay separate maintenance to his wife on the sole ground that he has taken second wife, It is true that the personal law of the Muslims allowing four wives as such has not been changed. But if the parties come within the mischief of S. 488, Cr. P. C. they shall be governed by its provisions notwithstanding their personal law. AIR 1953 Nag 133, Dissented from. (Paras 6, 7) Anno: AIR Com., Cr. P. C., S. 488 N. 19, 20, 21. (B) Criminal P.C. (5 of 1898), S.488 - MAINTENANCE - Amount of maintenance. Visible assets are not necessary before the husband is made to pay maintenance to his wife. His capacity is sufficient. That itself is a resource. But there must be a reasonable assessment of that capacity. There is no specific criteria to measure it. The fact that a young advocate has the whole world and the future before him is both encouraging and discouraging. He may make his mark or he may lose himself in the wilderness. It is no use ignoring the realities of life. While capacity to earn is good ground for providing maintenance at a minimum rate actual earning is necessary to provide for a comparatively decent rate. Again in awarding maintenance under S. 488, Cr. P. C. the Court should see that the rate is not such as would tempt the wife to permanently live separately from her husband. (Para 8) Anno: AIR Com., Cr. P. C., S. 488 N. 13. CASES REFERRED: Paras (A) AIR 1953 Nag 133 (V 40): 1953 Cri LJ 750 5 (B) AIR 1956 Cal 134 (V 43):1956 Cri LJ 526 5 (C) AIR 1954 All 30 (V 41): 3:1953CriLJ1917">1953 All LJ 473: 1953 Cri LJ 1917 7 (D) AIR 1954 Mys 31 (V 41): 1954 Cri LJ 273 7 (E) AIR 1957 Madh Pra 221 (V 44): 1957 Cri LJ 1409 7 S. K. Venkataranga Iyengar, for Petitioner; Mohamed Haneef, for Respondent. Judgement ORDER: This revision petition is directed against the order of the learned City Magistrate, Bangalore, in Criminal Misc. No. 16 of 1956. It is an order passed under S. 48S, Cr. P. C. The petitioner is the husband. The respondent is his wife.

2. The petitioner is an advocate practising in the City of Bangalore. He is a young man aged about 28 years. He married respondent o-1955. She was about 16 or 17 years old at the time of her marriage. The parties come from very respectable families. The marriage was performed with due pomp and ceremony. The young couple started their life with love and affection. The petitioner presented a number of jewels to his wife. The petitioner says that he even purchased a car to humour his wife. But their happiness was short lived. Very soon after their marriage they seemed to have differed on small matters, and made mountains of mole hills. I have carefully scanned the evidence on record to find out the cause of this disagreement. I am unable to find any reason-able explanation. The petitioner complains that his wife was always conscious of the fact that she is the daughter of a District Superintendent of Police and she was more attached to her parents than to him. The respondents grievance is that her husband is a fault finder. She alleged cruelty. But the learned Magistrate who enquired into the case has come to the conclusion that the cruelty" alleged has not been established. I agree with him. The parties seem to have been more conscious of their rights than their obligations. It is a case of immaturity on one side and jealousy on the other; a clear case of temparamental maladjustment. They refused to bend but were willing to break. Immediately after the first flush was over they seem to have started quarrelling. It is the case of the husband that his wife went to her parents place on 1-10-1955, promising to return within a week. She refused to return. He and his relatives went to her parents house and implored her to come back and begged of her parents to send her. His further grievance is that his father-in-law did not treat him fairly and he was more or less shown the door. On the other hand the complaint of the wife is that it is the husband that had dropped her at her parents place after ill-treating her for a number of days. She also alleges that he came to her parents house in the middle of November and assaulted her and later he tried to take her forcibly. She was afraid of her life and hence declined to go. I regret that these young people have been lacking in discretion. The greater regret is that their parents who ought to know better, instead of bringing to bear their sober influence on these young people seemed to have wrecked their future by standing on prestige. Events seem to have moved in quick succession. As I said before the marriage took place on 17-4-1955, the wife went to her parents house in about the beginning of October, 1955; letters and notices passed between the parties in the month of November each accusing the other of being responsible for the unhappy impasse. The husband married a second wife in about the end of November, 1955 and the maintenance application was filed on 15-12-1955. At no stage there was any real attempt at settlement. Each one was trying to dictate to the other. They were not even willing to allow things to cool down.

3. The learned Magistrate who tried the case awarded maintenance to the wife at the rate of Rs. 50/- per month. In his judgment the very fact of second marriage which is not disputed in this case entitled the wife to claim separate maintenance.

4. Hence arguments in this Court were focused on the true scope of the amendment to the first proviso to sub-s. (3) of S. 488, Cr. P. C. It is contended before me that the Court below has misconstrued the amendment in question. According to the revision petitioner before his wife could get separate maintenance she must establish either neglect or refusal on his part to maintain her. On the finding of the Court below neither neglect nor refusal is established. It is urged that the fact of second marriage by itself does not tantamount to neglect or refusal to maintain the first wife. According to the learned Counsel for the petitioner the amended proviso merely provides an exception to the original first proviso to sub-s. (3) of S. 488, Cr. P. C. The relevant portion of S. 488, Cr. P. C. is as follows : "(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding (five hundred rupees) in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs. (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance. (3) If any person so ordered (fails without sufficient cause) to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levving fines, and may sentence such person, for the whole or any part of each months allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made; Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing; If a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wifes refusal to live with him...." Arguments on behalf of the revision petitioner proceeded on the following line.

5. Before the Court could award separate maintenance to a wife she must establish either negligence or refusal on the part of the husband to maintain her. That is the very foundation on which separate maintenance could be granted. Negligence includes cruelty. But a second marriage is no cruelty to the first wife. Section 488 (1) is independent of S. 488 (3). Sub-section (3) of S. 488, Cr. P. C. refers to enforcement of the order made trader subsection (1). During the enforcement of the order the husband could plead that he is willing to maintain his wife on condition of her living with him. This will be a good defence for him, if his plea is a bona fide one. The amendment incorporated in 1949 provides an exception to this plea. As per that amendment the wife can refuse to live with the husband if he has contracted marriage with another woman or keeps a mistress. This amendment can only come into play during the course of the enforcement of the order made under sub-s. (1) of S. 488, Cr. P. C. and it has nothing to do with the order to be made under S. 488 (1), Cr. P. C. Reliance is also placed on the scheme of the section. It is said that sub-s. (1) of S. 488, Cr. P. C. provides for the award of maintenance. Subsection (2) lays down as from what date the same could be made payable; sub-s. (3) provides for enforcement; first proviso to that sub-section gives the right to the husband to evade his responsibility of paying maintenance by offering to maintain his wife on condition of her living with him. Second paragraph of that proviso entitles the wife to refuse to live with him if he has taken a second wife or if he keeps a mistress. It is urged that if the Legislature intended to make the second marriage a per se cruelty or neglect on the part of the husband then the amendment should have been made to subsection (1) of S. 488, Cr. P. C. and not to sub-s. (3). It is also pointed out that the parties to this case are Muslims and as such the husband could take four wives according to their personal law. A Muslim taking a second wife cannot be said to be neglecting his first wife or even causing cruelty to her. It is urged that unlike parties who are monogamous, a wife of a Muslim cannot claim that her husband is her private property and that she is solely entitled to his attention and affection. After all the law enunciated under S. 488, Cr. P. C. is a law against destitution. It is not and it cannot replace the personal law of the parties. It is further urged that if the Legislature wanted to bring in monogamy for Muslims, it would have done so in a straightforward manner. There was no necessity to get it through the back door of S. 488, Cr. P. C. I am asked to read S. 488, Cr. P. C. subject to the personal law of the parties. 1 must confess that the line of arguments adopted on behalf of the revision petitioner has something new and refreshing about it. Its main virtue is its novelty and complete disregard of judicial opinion. The learned Counsel for the revision petitioner wanted me to ignore the numerous decisions on the subject. According to him these decisions have no basis on the wording of the section and they were clearly attempts on the part of Judges to impose their own views. He wants me to take the section in its pristine purity and ignore the gloss put upon it by the learned Judges. In his turn he has relied upon the cases reported in The State v. Mt. Anwarbi, AIR 1953 Nag 133 (A) and Sm. Bela Rani Chatteriee v. Bhupal Chandra Chatterjee, AIR 1956 Cal 134 (B). The Calcutta case is really of no assistance to him. It deals with a totally different aspect. It is true that the Nagpur case lends some support to his argument, though petition in that case was dismissed primarily on another ground. The view expressed in that case as regards the scope of the first proviso to sub-s. (3) of S. 488, Cr. P. C. is not in line with the generally accepted judicial opinion.

6. If I accept the validity of the petitioners argument, it would be necessary to come to the conclusion that the entire first proviso to sub-s. (3) of S. 488, Cr. P. C. will be relevant only when an action is taken under sub-s. (3). It could have nothing to do with sub-s. (1). To put it in other words no husband in proceedings under sub-s. (1) of S. 488, Cr. P. C. can take a plea that he is willing to maintain his wife on condition of her living with him. That plea will be only available to him when the order is being enforced. This would make the whole section look ridiculous. Courts have uniformly accepted the view that a husband could in an application under S. 488, Cr. P. C. take the plea that he is willing to maintain his wife if she lives with him. It is a good defence if it is a bona fide one. If the main proviso is available in proceedings under sub-s. (1) then it necessarily follows that the amendment made to that proviso will also be applicable to such cases. If the husband can plead that he is willing to maintain the wife, she in her turn can plead that she is not willing to live with him on the ground that he has taken a second wife. I see no particular reason as to why the plea in question should be available only at the time of enforcement of the order and not at the time of its passing. The learned Counsel for the revision petitioner has evaded this question. He seems to think that it is legislatures folly and nobody elses concern. I refuse to feel so helpless. The several sub-sections to S. 488, Cr. P. C. have never been considered by Courts in isolation. They are an integrated whole. They must be taken cumulatively. When the legislature amended the first proviso to sub-s. (3) of S. 488, Cr. P. C. it knew full well the scope of the first proviso as interpreted by decided cases. If the decided cases did not truly represent the legislative intention, the legislature would have certainly clarified its intention. But the fact that the legislature left the first proviso untouched excepting to provide an exception to it shows that there was no conflict between the intention of the legislature and the judicial interpretation. Judicial opinion has been uniform on this point. I unhesitatingly reject the contention of the revision petitioner.

7. The plea of personal law makes no appeal to me. The Criminal Procedure Code is a law of the land and not of any community. If there is a conflict between the law enacted by the legislature and the personal law then the former prevails. The legislative will is supreme in this land unless controlled by the Constitution. There is no constitutional guarantee to respect the personal law of any community. There is no doubt that the amendment in question is the result of the working of social forces. It is but natural in a Country like ours, the social forces make themselves felt more effectively amongst certain sections of the people; but the common will is perceptible. These changes are not accidental but are intended to usher in a new way of life. They represent a new ideal and a trend. It is true that the personal law of the Muslims as such has not been changed. But if they come within the mischief of S. 488, Cr. P. C. they shall be governed by its provisions notwithstanding their personal law. A large number of decisions have been brought to my notice in support of the view taken by the trial Court. I may usefully refer to the cases reported in Srimati Maiki v. Hemraj, AIR 1954 All 30: 1953 ALJ 473 (C); Rajeshwariamma v. K. M. Viswanath, AIR 1954 Mys 31 (D) and Bhanwarlal v. Gitabai, AIR 1957 Madh Pra 221 (E). I am in complete agreement with these decisions. Neglect or no neglect the petitioner in this Court is liable to pay separate maintenance to his wife on the sole ground that he has taken a second wife. His plea that he has been compelled to take a second wife by the conduct of the first wife and her parents, is not a plea that is open to him in law. His grievance may be genuine but law does not recognise it as a good defence.

8. This takes me to the next question as to what would be the proper rate of maintenance to be awarded. The trial Court has directed the husband to pay to the wife separate maintenance at the rate of Rs. 50/- per month and that from the date of the petition. There is no finding by the lower Court as to what, approximately is the monthly income of the husband nor is there any finding as to what his assets are. It has proceeded on the footing that the capacity to earn is itself sufficient means as contemplated in S. 488, Cr. P. C. The husband is a young advocate. The trial Court thinks that he has the whole world before him and a long future to count. Hence he ought to pay at least Rs. 50/- per month. It is true that the visible, assets are not necessary before the husband is made to pay maintenance to his wife. His capacity is sufficient. That itself is a resource. But there must be a reasonable assessment of that capacity. There is no specific criteria to measure it. The fact that a young advocate has the whole world and the future before him is both encouraging and discouraging. He may make his mark or he may lose himself in the wilderness. It is no use ignoring the realities of life. There is evidence on record to show that he has not yet made any appreciable beginnings for a successful career. He is still on the threshold. For the present he depends on his parents for his existence. His senior has been examined and according to him his monthly income averages between Rs. 50 to 80/-. He is not shown to possess any other assets. The fact that he purchased a car to humour his wife is not a proof of his capacity to earn or of his existing assets. It is clear that his father provided him with the car. While capacity to earn is good ground for providing maintenance at a minimum rate actual earning is necessary to provide for a comparatively decent rate. In my judgment the respondent and her parents are in no small measure responsible for this sorry situation. It is a combined folly of all concerned. Again in awarding maintenance under S. 488, Cr. P. C. the Court should see that the rate is not such as would tempt the wife to permanently live separately from her husband. The respondent is still in her teens. For the present it is likely that she has not fully realised the consequences of the steps she has taken. The revision petitioner has shown more bravado than wisdom. Maturity is likely to bring in mellowness and better realisation of life and its problems. I have still hopes of their patching up their differences and making their married life a success. I think the ends of justice will be met if the husband (petitioner in this Court) is made to pay at the rate of Rs. 30/- per month. He shall pay the same from the date of the petition. To show my disapproval of the conduct of all concerned in this case, I disallow costs both in this Court and in the Court below.

9. The petition is allowed to the extent hereinabove indicated.

10. Parties will bear their own costs in this Court as well as in the Court below. Order accordingly. AIR 1958 MYSORE 132 (VOL. 45, C. 33) "Chandappa v. Sadruddin" MYSORE HIGH COURT Coram : 1 K. S. HEGDE, J. ( Single Bench ) Chandappa, Defendant, Petitioner v. Sadruddin Ansari, Plaintiff, Respondent. Civil Revn. Petns. Nos. 800 and 801 of 1957, D/- 12 -12 -1957, against order of Special Subordinate Judge, Gulbarga, D/- 17 -8 -1957. (A) Constitution of India, Art.14 - EQUALITY - OBJECT OF AN ACT - Scope. Article ,14 does not guarantee a rigid and embodied equality. It merely guarantees equal laws for equal men. All that it inhibits is a hostile legislation directed against a particular class of people, may he on political, religious or other grounds. The said article in no way prohibits the legislature or the delegated authority from classifying the people and enacting measures on the basis of that classification so long as the classification is a real and bona fide one. The equality clause is subject to the well known doctrine of classification. The Constitution does not guarantee that the laws enacted by the State will have equal application to all the people. Conditions of the people differ; requirements of the several sections of people also differ. There are geographical, social and economic inequalities. All these call for separate measures. Article 14 is not a straight jacket It is not intended to preserve the existing inequalities. It is not a negative doctrine. It is positive in its contents. (Para 3) Anno: AIR Com. Const, of India, Art. 14 N. 1. (B) Hyderabad Court-fees Act 6 of 1324 F, S.39 - COURT-FEE - EQUALITY - Hyderabad Government Notification No. 1 dated 20-01-1954 exempting displaced and destitute persons from payment of court-fees - It is neither hit by Article 14 nor is it ultra vires the powers of Government u/S.39. Constitution of India, Art.14. Court-fees Act (7 of 1870), S.35. (Paras 4, 5, 10) (C) Civil P.C. (5 of 1908), S.115 - REVISION - COURT-FEE - Order as to court-fee - When revisable. It is one thing to challenge the decision of a Court as to the correct amount of court-fees payable. It is totally a different thing when the petitioner complains that a suit has been accepted without any court-fees. In the former case what is being challenged is the correctness of the decision of the Court. In the latter case the Challenge is directed against the power of the Court to receive a plaint without court-fees. The defendant can question the jurisdiction of the Court or the illegal exercise of that jurisdiction in taking on file a plaint which is no better than an ordinary sheet of paper. In such case a revision lies under S. 115 of the Code of Civil Procedure. (Para 11) Anno: AIR Com. C. P. C. S. 115 N. 27b. (D) INTERPRETATION OF STATUTES - PREAMBLE - Interpretation of StatutesAccepted legal practice is a good guide for interpreting statute and notification thereunder. Civil P.C. (5 of 1908), Pre.. (Para 9) Anno: AIR Com C. P. C. Pre. N. 7 M. Appa Rao, for Petitioner; V. Krishnamurthy and Mohammad Zakaullah, for Respondent. Judgement These two revision petitions are directed against the notification issued by the former Government of Hyderabad under S. 39 of the Hyderabad Court-fees Act. The notification is No. 1 dated 20-1-1954 and published in Gazette Ordinary, Part I-D at page 70, January 21st, 1954. The notification is issued in the name of the Rajpramukh. It is as follows : "In exercise of the powers conferred by S. 39 of the Hyderabad Court-fees Act 1324F (4 of 1324F), the Rajpramukh is pleased to exempt all displaced destitute persons in the whole of the Hyderabad State who during the period of 2 years commencing from 13th Sep. 1947 to 13th Sep. 1949 have been dispossessed of their immoveable property, from the payment of the court-fees payable under Schedule Nos. 1 and 2 of the said Act, in respect of all claims relating to the restoration of such property preferred by them in any civil Court in the Hyderabad State on production of a certificate issued by the Collector of the District in whose jurisdiction the property is situate or by the Special Officer Relief and Rehabilitation Department to the effect that the person named therein is a displaced destitute person."

2. The validity of the notification is challenged on two grounds: (1) it is opposed to Art. 14 of our Constitution and (2) that the Government exceeded the power delegated to it by S. 39 of the Hyderabad Court-fees Act. Section 39 of the Hyderabad Court-fees Act reads as follows : "The Government may reduce or remit, in the whole or any part of His Highness the Nizams Dominions, the fees chargeable under the first and second schedules to this Act." This section is more or less analogous to S. 35 of the Indian Court-fees Act.

3. It is contended for the petitioner that the benefit of this notification is confined to displaced destitute persons in the whole of the Hyderabad State (former State) who during the period of two years commencing from 13th September, 1947 to 13th September, 1949 had been dispossessed of their immoveable property. It is urged that a valuable right is conferred on a class of people and as such the Government has contravened the constitutional direction contained in Art. 14. This argument is totally void of merit. Article 14 of our Constitution does not guarantee a rigid and embodied equality. It merely guarantees equal laws for equal men. All that it inhibits is a hostile legislation directed against a particular class of people, may be, on political, religious or other grounds. The said article in no way prohibits the legislature or the delegated authority from classifying the people and enacting measures on the basis of that classification so long as the classification is a real and bona fide one. The equality clause is subject to the well known doctrine of classification. The Constitution does not guarantee that the laws enacted by the State will have equal application to all the people. Conditions of people differ; requirements of the several sections of people also differ. There are geographical, social and economic inequalities. All these call for separate measures. Article 14 is not a straight jacket. It is not intended to preserve the existing inequalities. It is not a negative doctrine. It is positive in its contents. Take this particular case; there can be no doubt that the displaced destitute persons are a class of people who deserve the sympathy of the Nation and the assistance of the State. The measure is intended to help these unfortunate men and women. The classification in question is not open to challenge and the measure is intended to carry out the objective which compelled the Government to adopt the classification in question.

4. A number of decisions on this point were cited to me from the Bar. I do not think that I need discuss them. This branch of law can now be considered as well settled. There are legislative measures which are on the border line. This is not one such measure; Viewed from any point this notification is not open to attack on the ground that it contravenes Art. 14 of the Constitution.

5. The next argument that was advanced was that the Government had no power to issue the notification in question. According to the petitioner S. 39 of the Hyderabad Court-fees Act merely authorises the Government to remit or reduce the court-fees but that reduction or remission should equally apply to the whole State or to any particular area. It is contended that its application should be area-wise and not class-wise. The notification in question being one which is intended to benefit a particular class of people was beyond the power of the Government. I am unable to accept this contention as well. The legislature delegated its power of reducing or remitting the court-fee either in respect of the State as a whole or any part thereof to the Government. This is on the lines of well-known constitutional practice followed in this country as well in other countries which are governed by Parliamentary democracies. The power to exempt from the operation of fiscal statutes is usually left to the Governments of the day. It has to be decided upon the consideration of unforeseen factors. The Government will have to weigh the requirements of the situation and its financial implications. All these cannot be foreseen and provided for, at the time of the legislation. Similar provisions are found in other fiscal statutes. The basic conception behind such delegation is that the Government is the watch-dog of the States finances and it could be trusted to watch its interests.

6. It is a well-accepted principle of interpretation that when a larger power is conferred it means and includes the exercise of lesser power included therein. The whole includes the part. If the Government could have remitted or reduced the fees for all persons living within any given area, they can undoubtedly do so to a section of the people thereof, unless their action contravenes Art. 14 of the Constitution. It is not a question of either the whole or none.

7. The aforesaid S. 39 is not a provision to regulate the powers of the Government. It is a power conferring section. It must be given its full amplitude. The section merely lays down the outer limits of the power of the Government. It is for the Government to choose both the area and the class of people to be benefited by the remission or reduction in question. Read this way the power of the Government to reduce or remit the court-fees, is co extensive with that of the legislature. It must be remembered that it is a power to reduce or remit the court-fee and not to impose.

8. If the Governments power is limited in the manner the petitioner wants me to do, the consequence might be to tempt the Government to use its power sparingly. It might compel the Government to withhold the exercise of its power even in proper cases, because of its financial implications. Such an interpretation is not in the interest of the public and should be avoided if possible.

9. The prevailing legislative practice also supports the view that I have taken. I have examined several notifications issued by different State Governments, under S. 35 of the Indian Court-fees Act. In most of these notifications the fees have been reduced or remitted with reference to a class of persons, who, according to the concerned Governments deserve remission or reduction. The State Government of East Punjab have conferred the benefit under this section to the displaced persons. The Government of Madras by its Order No. 5791 dated 17-5-1943 has reduced the fees chargeable in any suit for possession or joint possession between the trustee or between a plaintiff who claims to be a trustee and a defendant who is alleged to have ceased to be a trustee. The same is the practice adopted by the other State Governments. A well accepted legislative practice is itself agood guide in interpreting statutes and notifications.

10. In my judgment the notification in question is not hit by Art. 14 nor is it ultra vires of the powers of the Government.

11. Sri V. Krishnamurthy, appearing for the respondent contended that the revision petition is not maintainable. According to him court-fee is a matter between the State and the plaintiff and the defendant cannot complain against the order of the trial Court. This is stating the proposition too broadly. In the instant case the question for consideration is, did the Court correctly exercise its jurisdiction in accepting a suit which according to the plaintiff is not legally instituted? Every paper thrown into a Court cannot be considered as a plaint. It must comply with certain legal requirements and one such requirement is the payment of court-fees as required by law. It is one thing to challenge the decision of a Court as to the correct amount of court-fees payable. It is totally a different thing when the petitioner complains that a suit has been accepted without any court-fees. In the former case what is being challenged is the correctness of the decision of the Court. In the latter case the challenge is directed against the power of the Court to receive a plaint without court-fees. The defendant can question the jurisdiction of the Court or the illegal exercise of that jurisdiction in taking on file a plaint which is no better than an ordinary sheet of paper. In such case a revision lies, under S. 115 of the Code of Civil Procedure.

12. In the result these revision petitions fail and are hereby dismissed. The petitioners shall pay the costs of the respondent. The two petitions are heard together. Advocate fee will be one set. Each of the petitioners to pay one half of the Advocates fee. Revisions dismissed. AIR 1958 MYSORE 134 (VOL. 45, C. 34) "Abdul Rahim v. G. S. Muthiah and Bros" MYSORE HIGH COURT Coram : 2 S. R. DAS GUPTA, C. J. AND NITTOOR SREENIVASA RAU, J. ( Division Bench ) S. Abdul Rahim Sahib, Appellant v. G. S. Muthiah and Brothers and another, Respondents. Misc. Appeal No. 78 of 1953, D/- 9 -9 -1957, against decision of Ex-Offlcio Deputy Registrar of Trade Marks, Bangalore, D/- 5 -8 -1953. (A) Trade Marks Act (5 of 1940), S.10 - TRADE MARK - Prohibition of registration of similar marks - Nature of resemblance required - Matters to be considered. Where the two marks are not identical and there are obvious differences between the two the important matter for consideration under S. 10(1), is whether one so nearly resembles the other as to be likely to deceive or cause confusion. It is well established that it is not superficial differences or differences in detail that matter but that the question has to be determined bearing in mind the essential features of the two marks. In doing so, it is not the visual impression created when the two marks are seen side by side that should constitute the criterion but whether the essential features of the mark in question leave such an impression that they are likely to cause confusion or deception in relation to the customers recollection of the essential features of the other mark. AIR 1951 Bom. 147, foll. (Para 4) (B) Trade Marks Act (5 of 1940), S.8 and S.10(1) - TRADE MARK - OBJECT OF AN ACT - Scope - Registration of trade mark when can be refused. The scope of S. 8 is wider than that of S. 10 (1) since it takes into account the possibility of deception and confusion independently of similarity to any mark already registered. The appellant applied for registration of his trade mark in respect of his bidis. It consisted of a label containing the device of a pedestal supporting at its head five stems each carrying a rose, the stems being arranged fanwise. The words "Aindu Roja Poo Mark Beedi" were found above the device. The respondent opposed the registration on the ground that he had been making use of a trade mark consisting of a branch of a rose plant having a full blown rose and four buds on it, described and known as Poo Mark Beedi, and as the appellants mark also consisted of five flowers with the words "Aindu Roja Poo Mark", the appellants mark was calculated to cause confusion and to deceive. Held (i) that the salient features of the two marks were so similar as to give rise to confusion and to lead themselves to deception: (Para 4)

(ii) that there being the same similarity of the central feature in the two marks and the class of customers being the same, these factors would result in a very real danger of confusion. Therefore the registration of the appellants trade mark was rightly refused. (Para 5) CASES REFERRED: Paras (A) AIR 1951 Bom 147 (V 38): 53 Bom LR 556 4 (B) (49) Appeal No. 69 of 1949 (Cal) 5 S. G. Sundara Swamy, for Appellant; G. Rangaswami Iyengar, for Respondent No. 1. Judgement NITTOOR SREENIVASA RAU, J. :- The Appellant applied for the registration of his trade mark in respect of beedies falling under Cl. 34 of Schedule 4 to the Trade Marks Rules. The Respondent opposed the registration and the opposition was upheld by the ex-officio Deputy Registrar of Trade Marks, Bangalore, and the registration was refused. The appeal is directed, against this decision.

2. The Appellants trade mark consists of a label containing the device of a pedestal supporting at its head five stems each carrying a rose, the stems being arranged fanwise. The words "Aindu Roja Mark Beedi" (meaning five roses mark beedi) in the Tamil alphabet are found above the device. Another mark containing substantially the same device, but with the words "Aindu Roja Poo Mark Beedi" (meaning five rose flower mark beedi) is to be found in the duplicate. It is the mark with the latter set of words that was advertised in the Trade Marks Journal. The Respondents opposition was based on the ground that he had been making use of a trade mark consisting of a branch of a rose plant having a full blown rose and four buds on it, described and known as Poo Mark Beedi, and as the Appellants mark also consisted of five flowers with the words "Aindu Roja Poo Mark", the Appellants mark was calculated to cause confusion and to deceive.

3. An examination of the two marks no doubt discloses several differences in regard to particulars. The Appellants mark contains five fully developed roses arranged fanwise. The Respondents mark has only one full blown rose and four buds in different stages of development on the branch of a rose plant. The order in which they appear is also different. On this basis it is urged for the Appellant that there was no possibility of the customers being misled or deceived or any confusion being caused. It is further urged that the Appellant has been making use of the mark for many years prior to the date of his application and that therefore his mark is entitled to registration under S. 10(2) of the Act. It should be mentioned that though at the time the Respondent filed his opposition his mark had not been registered, it was on the register before the opposition came up for consideration. The Deputy Registrar thought that since, at the time of the disposal of the opposition, the Respondents mark was already on the Register it was incumbent upon him to consider the question whether the Appellants mark came within the mischief of S. 10 (1) of the Act. He accordingly considered the matter both under S. 10(1) and S. 8 of the Act and came to the conclusion that the Appellants mark offended both the provisions. As regards S. 10 (2) he was of the view that the Appellant had not established concurrent user. It appears to us that the Deputy Registrars views on all these matters are well-founded,

4. This is not a case of identity of the two marks since there are obvious differences between the two. The important matter for consideration under S. 10(1), therefore, is whether one so nearly resembles the other as to be likely to deceive or cause confusion. It is well established that it is not superficial differences or differences in detail that matter but that the question has to be determined bearing in mind the essential features of the two marks. In doing so, it is not the visual impression created when the two marks are seen side by side that should constitute the criterion but whether the essential features of the mark in question leave such an impression that they are likely to cause confusion or deception in relation to the customers recollection of the essential features of the other mark. As was observed in the case reported in James C. and Bros. v. N. S. T. Co., AIR 1951 Bom 147 (A), "It is impossible to accept that a man looking at a trade mark would take in every single feature of the trade mark. The question would be, what would he normally retain in his mind after looking at the trade mark? What would be the salient feature of the trade mark which in future would lead him to associate the particular goods with that trade mark?" In that case the essential feature in both the marks was the figure of a bird conveying the idea of an eagle. A comparison of the two marks disclosed many differences in regard to their posture, poise, position of the head, description of the wings etc. It was held that these differences did not matter since the essential feature was the eagle and it was that feature that would leave the predominant impression on the mind of the customer. In the case on hand, the essential feature of the Respondents mark is, as held by the Deputy Registrar, the device of a rosa together with four other roses in different stages of development, the mark also being known as the Poo Mark. The distinctive feature of the Appellants mark also is five roses and the Appellant called the mark "Ainu Roja Poo Mark". It appears to us that the salient features are so similar as to give rise to confusion and to lend themselves to deception.

5. As regards S. 8, the Deputy Registrars view is that the Respondents case is even stronger. It may be mentioned that the scope of S. 3 is wider than that of S. 10(1) since it takes into account the possibility of deception and confusion independently of similarity to any mark already registered. The evidence adduced by the Respondent bears out that his beedies have been in the market from 1922 and are sold in large quantities and are known as "Poo Mark Beedi" or "Poo Beedi". The question is whether the use of the mark in question is likely to cause confusion in the minds of the customers or is likely to lend itself to deception, bearing in mind the position acquired by the Respondents beedies. In this connection, reference may be made to the decision of the Calcutta High Court in Appeal No. 69 of 1949 (B). That was a case in which the applicant sought registration of a mark connected with the beedi trade and the present respondent opposed the registration. The mark, of the appellant consisted of a central feature of a flower plant in a flower pot and the plant had seven stems with flowers at the end of five of them. The Tamil expression meaning five flower mark appeared in the mark. There were thus several dissimilarities in the features of the two trade marks. The respondents trade mark was the same as the one on the basis of which he has opposed the present application also. The Court took the view that though there were dissimilarities, the central features of the two marks were so similar as to cause deception and confusion. Dealing with this aspect of the matter the learned Chief Justice said : "It is not difficult to accept this evidence on behalf of the opponents because as I have said the central feature of their mark is a Rose with four buds surrounding it and the word poo in Tamil. Anybody seeing that (Respondents) label might well describe the goods as "Poo Beedies" and I have little doubt that the goods are asked for as "Poo Beedies". It must be remembered that the market for beedies is a market made up of the poorer classes. It is the favourite smoke of coolies and such like. They are not smoked as a rule by educated, literate people and it appears to me that what is most important in a trade of this kind is the name by which the goods are known. On the evidence I am abundantly satisfied that the opponent-respondents beedies are known to the smoking public as "Poo Beedies" and when a customer asks for a "Poo Beedie" he expects to get the respondents beedies. The description "Poo Beedi" could also equally aptly be applied to the beedies of the appellant sold under the proposed mark. An illiterate man looking at the proposed mark would immediately regard it as a flower mark. He might or might not notice that there were five flowers, but what would impress itself upon his mind would be the fact that there were flowers in the forefront of the mark. A man seeing that mark might well come to the conclusion that it was the mark of the respondents beedies known as "Poo Beedies". Further it appears to me that if a customer wishing to obtain the respondents beedies walked into a shop and asked for "Poo Beedies" he might quite honestly be given the appellants beedies because the description would apply to them as well. As it was in my view established that the respondents beedies had come to be known as "Poo Beedies there would be a very real danger of confusion if the appellants proposed mark was registered." The same considerations apply to this case also. There is the same similarity of the central feature in the two marks. The class of customers is the same. These factors would result in a very real danger of confusion. The Deputy Registrars view on this matter must therefore be held to be well justified.

6. The only other question to be considered is the concurrent user of his mark by the appellant. It is true that he had his mark registered with the Madras Chamber of Commerce in 1926. But that mark, as noted by the Deputy Registrar, is not identical with the mark in question. The words "Aindu Roja Poo Mark Beedi" do not appear in it. Further there is no substantial evidence of user from that time up to about 1944. The Appellant in his affidavit has no doubt given figures of sale for the three years commencing with 1944. Those figures indicate sales of a meagre character in a very limited area and are not enough to bear out the Appellants case for concurrent user. The other evidence adduced in the form of affidavits is of a vague and general character and refers to the marketing of "Five Rose Beedies" by the appellant and does not show the use of the mark now sought to be registered. It cannot, therefore, be said that the appellant has established the concurrent user of the mark in question.

7. We thus see no reason to interfere with the decision of the Deputy Registrar. This appeal is therefore dismissed with costs. (Advocates fee Rs. 100/-.)

8. S. R. DAS GUPTA, C.J. : I agree. Appeal dismissed. AIR 1958 MYSORE 136 (VOL. 45, C. 35) "S. Setty, M/s. v. Suryanarayana Rao" MYSORE HIGH COURT Coram : 1 S. R. DAS GUPTA, C. J. ( Single Bench ) M/s.Seenappa Setty, Plaintiff-Petitioner v. M. S. Suryanarayana Rao, Defendant-Respondent. Civil Revn. Petn. No. 39 of 1955, D/- 21 -11 -1957, against order of Addl. Sub-J., Mysore, D/- 16 -11 -1954. Civil P.C. (5 of 1908), S.95 - CIVIL PROCEDURE - Petition under - Averment as to expense or injury - AIR 1940 Mad 77 Not followed. Under S. 95, the compensation can only be paid for such expense or injury which the defendant suffered by reason of such attachment. It follows, therefore, that the petitioner has to aver in his petition that by reason of such attachment he has suffered expense, or injury and he claims compensation for it. He shall have also to prove that he suffered such expense or injury. AIR 1940 Mad 77, Not followed. (Para 3) Anno : AIR Com., C. P. C., S. 95, N. 7. CASES REFERRED : Paras (A) (35) 39 Cal WN 915 2, 4 (B) AIR 1932 Cal 695 (V 19) : 36 Cal WN 323 2, 4 (C) AIR 1940 Mad 77 (V 27): 189 Ind Cas 887 5 H. K. Sreenivasa Murthy, for Appellant; P. Subba Rao, for Respondent. Judgement This petition arises out of an order made by the learned Additional Subordinate Judge of Mysore, awarding compensation of Rs. under Sec. 95 of the Code of Civil Procedure. The Petitioner before me instituted a small cause suit in the said Court of the Additional Subordinate Judge, Mysore, for arrears of rent on 1-2-1952. On that very day he obtained an order of attachment of an immoveable property of the defendant before judgment. On 6-3-1952, the defendant filed his objections to the said attachment, and on that day he also filed an application under Sec. 95 C. P. C., for compensation. On 14-11-1952 the suit was decreed. It is not clear as to what happened with regard to the attachment which had been levied. The application for compensation was, however, taken up and an order was made on 16-11-1954, by the learned Subordinate Judge awarding Rs. 100/- as compensation to the defendant. It is against that order that the present petition has been filed.

2. Before me it was urged by the learned Advocate appearing on behalf of the Petitioner that no such order could be made because the defendant in his said application under S. 95 C. P. C., did not allege that he had suffered any expense or injury and there is also no finding by the learned Judge on that point. He referred me to the provisions of S. 95 which inter alia provides as follows: "(1) Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section, (a) it appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds ...................... the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount, not exceeding one thousand rupees, as it deems a reasonable compensation to the defendant for the expense or injury caused to him." The learned Advocate for the Petitioner contended that the section itself shows that the compensation to be awarded would be the compensation for the expense or injury caused to the defendant. The defendant must, therefore, allege and prove that he had suffered some expense or injury by reason of such attachment. In this case, it was pointed out to me, the defendant merely stated in his petition that he may be awarded compensation of Rs. 100/-for wrongful attachment on insufficient grounds and he did not allege that he had suffered any expense or injury owing to such attachment. The learned Advocate, therefore, contended that this order was made without jurisdiction and should be set aside. In support of that contention, he relied on two decisions of the Calcutta High Court, being Chandulal Siraogi v. Purna Chandra Paul, 39 Cal W. N. 915 at p. 916 (A) and Jowarmull Chimanlal v. Iswardas Agarwalla, 36 Cal W. N. 323 : (AIR 1932 Cal 695) (B).

3. It seems to me that the contention of the learned Advocate for the Petitioner is sound and should be accepted. Apart from the decisions to which I shall presently refer, the section itself makes it quite clear that the compensation to be awarded shall be reasonable compensation for "expense or injury caused to him." The compensation, therefore, can only be paid for such expense or injury which the defendant suffered by reason of such attachment. It follows, therefore, that the petitioner has to aver in his petition that by reason of such attachment he has suffered expense or injury and he claims compensation for it. He shall have also to prove that he suffered such expense or injury. In this case, there is neither any averment nor proof of any expense or injury having been caused to him by reason of such attachment.

4. Coming to the decisions on this point, it appears that the Calcutta High Court has consistently held in favour of the view which I am taking in this matter. In the case of 39 Cal W. N. 915 (A), Mr. Justice Mitter held that in order that a claim under Sec. 95 be admissible, it is necessary that the Court should find that the attachment or arrest or injunction was applied for on insufficient grounds, and secondly, it can only award compensation for the expense or injury caused to the defendant. His Lordship observed that this would follow from a plain construction of the section that any claim whatsoever that the defendant may choose to put forward in such an application is not admissible, and the claim must be in respect of some damage caused to him as the proximate result of the attachment, arrest or injunction which had been applied for on insufficient grounds. In an earlier decision of the said High Court in 36 Cal. W.N. 323: (AIR 1932 Cal 693) (B), Rankin C.J. and Ghose J. took a stricter view of the provisions of Sec. 95 of the Code of Civil Procedure. Their Lordships held that where a defendant was restrained from dealing with, disposing of or alienating any of the movable or immovable properties belonging to him except in the usual course of business so far as the movable properties were concerned and the injunction was afterwards dissolved, and the defendant claimed damages basing his claim not on the ground that he had any intention or opportunity of dealing with his immovable properties or movable properties otherwise than in the usual course of business or that he has lost a chance of doing so but on the ground that this kind of injunction was a reflection on his character and upon his business stability and that as a consequence of it nobody entered into dealings with him and that his friends began to break their contracts with him and failed to do their duty, a claim of this character would not entitle the Court to direct an enquiry as to the damages suffered by the defendant.

5. The learned Advocate appearing on behalf of the Respondent, on the other hand, referred me to a decision of the Madras High Court in Palanisami Goundar v. Kaliappa Goundar, AIR 1940 Mad 77 (C) wherein the view taken was that in an application under Sec. 95 C. P. C. special damage need not be proved, and the words "expense or injury" indicate that either the particular damage upon which a monetary value can obviously be placed or the more general damage which the Court endeavours with difficulty to assess in terms of money, is contemplated by the section. It should be noted that was a decision of a single Judge of the Madras High Court. He based his conclusion on the fact that in Madras at least it appears that in a suit for damages for illegal attachment it is not necessary to prove more than general damage, e. g. mental pain, general loss of reputation, etc. With all respect to the learned Judge who decided that case, I am unable to accept the view which has been taken therein. It appears to me that we have to go by the language of the said section (Sec. 95 C.P.C.) and the same, in my opinion, fully justifies the view which I am taking in this matter and which is supported by the authorities of the High Court at Calcutta to which I have referred.

6. In my opinion, therefore, the fact that it has not been established by the defendant in this case that he suffered any expense or injury, disentitles the learned Judge from making any order on this application under Sec. 95 C.P.C. There is not even an averment in his application that he suffered any damage either general or special by reason of such attachment, nor is there any finding by the lower Court on this point. I have already referred to the averments made in the application on this point, and as for the decision of the lower Court it appears that the only thing that has been said on this point, after finding that the attachment of the property applied for was on insufficient grounds and therefore that the defendant claimed Rs. 100/- as compensation is that the defendants claim is very reasonable. There is no finding that the defendant suffered any expense or injury.

7. In these circumstances, I hold that the petitioner should succeed in this petition. I, therefore, set aside the order of the lower Court and allow this petition with costs. Petition allowed. AIR 1958 MYSORE 138 (VOL. 45, C. 36) "Muninajappa v. State of Mysore" MYSORE HIGH COURT Coram : 1 K. S. HEGDE, J. ( Single Bench ) Muninajappa and others, Accused-Petitioners v. State of Mysore, Respondent. Criminal Revn. Petn, No. 446 of 1957, D/- 13 -1 -1958, against order of 1st Class Magistrate, Bangalore, D/- 5 -12 -1957. (A) Criminal P.C. (5 of 1898), S.162 - POLICE OFFICERS - Limited use of previous statements - Use of statement for showing omissions. An omission is not a contradiction unless what is actually said contradicts what is omitted to be said. The test to find out whether an omission is a contradiction or not is to see whether one can point to any sentence or assertion which is irreconcilable with the deposition in Court. It would be quite meaningless to say that the entire statement under S. 162, Criminal P. C., contradicts the deposition. Therefore one cannot point to the entire statement as being irreconcilable with the deposition. AIR 1952 All 289, Foll., Case law Ref. (Para 7) What S. 162 prohibits is the use of any statement made under it and not the omission thereof. A statement under S. 162 is a previous statement. There is nothing in that section or for that matter in any other law which prohibits the proof of an omission in a previous statement made by the witness in question with a view to improbabilise his version. This can be done either by the admissions secured from the witness concerned or of the investigating officer or by adducing evidence aliunde. (Para 9) An omission has its own significance. Equally an omission to state an important fact at the earliest possible opportunity will be given its due weight under the circumstances of the case. (Para 9) Anno: AIR Com., Cri. P. C., S. 162 N. 10. (B) Criminal P.C. (5 of 1898), S.162 - POLICE OFFICERS - WORDS AND PHRASES - Statement - Meaning. Words and Phrases. Statement in S. 162 is the entirety of the facts stated by the witness to a police officer during the investigation. All these facts whenever and wherever stated go to constitute his statement. Prom this it follows that facts stated by a witness in the morning as well the facts stated by him in the evening to the investigating officer are both parts of the same statement. The prosecution is within its limits in making use of the later part in explaining the omission in the earlier part. But the fact that the same has been omitted in the earlier part of the statement will not be lost sight of by the Judge. (Para 10) Anno: AIR Com., Cri. P. C., S. 162 N. 3, 10. CASES REFERRED: Paras (A) AIR 1933 Mad 372 (2) (V 20): 34 Cri LJ 582 6,7 (B) AIR 1926 Pat 362 (V 13): 27 Cri LJ 796 7 (C) AIR 1938 Pat 579 (V 25): 40 Cri LJ 147 7 (D) AIR 1945 Cal 159 (V 32): 46 Cri LJ 92 7 (E) AIR 1927 Cal 257 (V 14): 28 Cri LJ 273 7 (F) AIR 1952 All 289 (V 39): 1952 Cri LJ 600 7

V. S. Sadasivan, for Appellants; B. Venkataswami Govt. Pleader, for Advocate General, for Respondent Judgement ORDER: The petitioners are the accused in C. C. No. 2038 of 1957 on the file of the First Class Magistrate, Bangalore. They are accused of an offence under S. 302, I. P. C. The case is at the stage of preliminary enquiry. In the course of the cross-examination of P. W. 2, his statement under S. 162, Criminal P. C., was marked as Exhibit D-3. Exhibit D-3 was read out to the witness. He was asked as to whether certain facts deposed to by him in court are found in that statement. By this process the learned Advocate for the accused wanted to establish certain omission. During the re-examination, the Prosecutor wanted to explain the omissions in question with reference to a further statement made by the witness to the police during the investigation. This was objected to by the learned Counsel for the petitioners. The basis of his objection was that he had contradicted the witness with reference to a statement made by him to the Police on 15-9-1957 at 7-30 a. m. whereas re-examination referred to the statement made by the same witness to the police at about 3-30 p. m. According to his contention the Police could not make use of this statement as it was a different statement from the one which he had used for the purpose of contradiction. The learned Magistrate rejected this contention holding that the two statements can be construed as part of the same statement. The petitioners have come up in revision as against this order.

2. At the very outset I would like to say that the course adopted by the learned counsel for the petitioners and permitted by the Court is wholly unwarranted by law. The accused could not have been permitted to mark the entire statement.

3. The two questions that arise for my consideration are: (1) Does an omission in a statement made and recorded under S. 162, Criminal P. C. amount to a contradiction and could the same be used as such under the said section and (2) what is meant by statement in S. 162, Criminal P. C., does it mean the entirety of facts stated by the witness to the investigating officer during the investigation or does each record constitute a separate statement?

4. It would be convenient to set out Ss. 161 and 162, Criminal P. C. Section 161, Criminal P. C., is as follows : "(1) Any police-officer making an investigation under this Chapter or any police-officer not below such rank as the State Government may by general or special order, prescribe in this behalf acting on the requisition of such officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police-officer may reduce into writing any statement made to him in the course of an examination under this section, and if he does so, he shall make a separate record of the statement, of each such person whose statement he records."

5. Section 162. Criminal P. C., is as follows: "(1) No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by S. 145 of the Indian Evidence Act, 1872 (I of 1872) and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any" matter referred to in his cross-examination." At this stage I may also conveniently quote S. 145 of the Indian Evidence Act. It is as follows: "A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. (Underlining (here in ) in all these sections are mine).

6. Prom the foregoing it is clear that the Police Officer is expected to examine the witness and the witness is bound to answer all questions which do not incriminate him. No doubt the witness can narrate the facts known to him. The police officer may reduce the answers given or facts stated or parts thereof into writing. "Statement" in S. 162, Criminal P. C., refers to what the witness had stated and not to what he had omitted to state. Before one could contradict a witness with a previous statement, there must be a statement which had been reduced into writing. In the words of Justice Burn in Ponnusami Chetty v. Emperor, reported in AIR 1933 Mad 372 (A), "Whether it is considered as a question of logic or of language, "omission" and "contradiction" can never be identical. If a proposition is stated, any contradictory proposition must be a statement of some kind, whether positive or negative. To "contradict" means to "speak against" or in one word to "gainsay". It is absurd to say that you can contradict by keeping silence. Silence may be full of significance, but it is not "diction" and therefore it cannot be contradiction. It is clear therefore that a statement under S. 162, Criminal P. C., cannot be used during an enquiry or trial in order to show that a witness is making statements in the witness-box which he did not make to the police." According to the same learned Judge, "The same conclusion follows from a consideration of S. 145, Evidence Act. If it is intended to contradict the witness by the writing, his attention must be called to those parts of the writing which are to be used to contradict him. It would be in my opinion, sheer misuse of words to say that you are contradicting a witness by the writing, when what you really want to do is to contradict him by pointing out omissions from the writing". He quotes with approval the observations of the learned Sessions Judge in that case "a witness cannot be confronted with the unwritten record of an unmade statement."

7. It is true that there is conflict of judicial opinion on this question. Decided cases can be broadly classified under three heads. A few cases have taken the view that omissions are contradictions, Vide Iltaf Khan v. Emperor, AIR 1926 Pat 362 (B). Yet other cases have taken the view that usually an omission is not a contradiction but the omission to state an important fact is a contradiction or at any rate it is a contradiction in substance, see Yusuf Mia v. Emperor, AIR 1938 Pat 579 (C) and Emperor v. Ajit Kumar Ghosh, AIR 1945 Cal 159 (D). Another line of cases have taken the view that an omission can never be a contradiction, AIR 1933 Mad 372 (2) (A) and Aseruddin v. Emperor, AIR 1927 Cal 257 (E). In my opinion the true view of the law is as enunciated by the Division Bench of the Allahabad High Court in the case of Ram Bali v. State, reported in AIR 1952 All 289 (F). An omission is not a contradiction unless what is actually said contradicts what is omitted to be said. The test to find out whether an omission is a contradiction or not is to see whether one can point to any sentence or assertion which is irreconcilable with the deposition in Court. It would be quite meaningless to say that the entire statement under S. 162, Criminal P. C., contradicts the deposition. Therefore one cannot point to the entire statement as being irreconcilable with the deposition.

8. From the foregoing it is clear that the omission in the instant case cannot be a contradiction as contemplated in S. 162, Criminal P. C.

9. Arguments have been pressed before Courts that to hold that omissions are not contradictions under S. 162, Criminal P. C. is to open the gates of fraud. It would encourage the designing investigating officers to so record the statements as to deprive the accused of the benefits of the said section and it would embolden the untruthful witnesses to develop their story with impunity. I see no room for this criticism. What S. 162, Criminal P. C., prohibits is the use of any statement made under it and not the omission thereof. A statement under S. 162, Criminal P. C., is a previous statement. There is nothing in that section or for that matter in any other law which prohibits the proof of an omission in a previous statement made by the witness in question with a view to improbabilise his version. This can be done either by the admissions secured from the witness concerned or of the investigating officer or by adducing evidence aliunde. In the present case it would be elicited from P. W. 2 as to whether the particular fact deposed to by him in Court, had been stated to the police during the investigation. If he admits that he did not the defence can rely on the admission. The same result can be achieved by eliciting the required information from the investigating officer, or by adducing evidence to establish that fact. If on the other hand all that the defence can establish is that he did not state it in his statement recorded in the morning then the defence must be satisfied with establishing that fact. It is open to the prosecution to prove that a further statement had been recorded in the afternoon. If the defence does not establish that the fact in question had not been mentioned in that statement also it is open to the Court to draw appropriate inferences. It must be noted that all the while we are in the region of proof and not the evidentiary value of the facts proved. An omission has its own significance. Equally an omission to state an important fact at the earliest possible opportunity will be given its due weight under the circumstances of the case.

10. This takes me to the next question as to what is the meaning of the word "statement" in Sec. 162 Cr. P. C. Statement means what is stated. Section 162 Cr. P. C., speaks of "statement made by any person to a police officer in the course of an investigation under this chapter." In other words it means all that is stated to a police officer in the course of the investigation. It is possible and in my experience it is common for the investigating officers to interrogate the witnesses more than once. As things unfold themselves further elucidation becomes necessary. It is not a set examination of a witness on facts collected and marshalled earlier. The investigating Officer is still at the stage of sifting materials and following clues. It may be that the entire statement is obtained at one stretch. It is equally possible that the relevancy of a particular fact may become clear after the witness had been questioned earlier on other points. Again it must be noted that the investigating officer is not required to make a verbatim record of the statement made. He merely records what he considers as important. What he considers as unimportant at one stage of the investigation may assume importance at a later stage. Consequently it may become necessary for him to question again the witness. The point of time as to when the statement is made or the method or manner of re" cording the facts stated have only relative importance. They must be judged in the circumstances of the case. In my judgment "statement" in Section 163 Cr. P. C., is the entirety of the facts stated by the witness to a police officer during the investigation. All these facts whenever and wherever stated go to constitute his "statement". From this it follows that facts stated by P. W. 2 in the morning as well the facts stated by him in the evening to the investigating officer are both parts of the same statement. The prosecution is within its limits in making use of the later part in explaining the omission in the earlier part. But the fact that the same has been omitted in the earlier part of the statement will not be lost sight of by the Judge.

11. In the result this revision petition fails and the same is dismissed. Petition dismissed. AIR 1958 MYSORE 140 (VOL. 45, C. 37) "Ramiah v. Cowdiah" MYSORE HIGH COURT Coram : 1 A. R. SOMNATH IYER, J. ( Single Bench ) Ramiah, Petitioner v. Cowdiah and another, Respondents. Civil Revn. Petn. No. 608 of 1956, D/- 26 -9 -1957, against order of 2nd Munsiff, Bangalore, D/- 28 -9 -1956. Civil P.C. (5 of 1908), O.21, R.58, R.55 and R.57 - INVESTIGATION - EXECUTION - ATTACHMENT - SALE - Claim preferred before sale - Duty of court to investigate - Effect of execution sale - Sale does not put an end to attachment: 15 Ind Cas 53 (Cal), AIR 1926 Cal 468; AIR 1937 Cal 390, AIR 1942 Bom 263, AIR 1928 Rang 80 and AIR 1938 Lah 568, Dissented from. A court cannot decline the investigation of a claim preferred before the attached property was sold in execution of a decree on the ground that the property had been subsequently sold : 55 Mys HCR 42, Distinguished; ILR (1954) Mys 187, Rel. on. (Para 11) Rule 58 of O. 21 does not contain any express prohibition against an investigation of a claim after the attached property is sold in execution of a decree. On the other hand it is plain from its provision that unless it decides to refuse to proceed with the enquiry of the claim on the ground that the claim is designedly or unnecessarily delayed it is bound to investigate. To hold that as soon as the property is sold the attachment comes to an end making it no longer possible for the court to make an order releasing the property from attachment under R. 60 of O.21 and therefore after the sale it is incompetent for the court to investigate the claim under R. 58, the court must act in plain contravention of the rule that a court cannot ordinarily add to a statute words which it does not contain. Inasmuch as rules 55 and 57 which provide for the removal and determination of attachment omits to provide that a mere sale of an attached property itself removes or determines the attachment, the attachment does not cease until the sale becomes absolute by confirmation. Hence the court is not entitled to decline to investigate the claim preferred merely on the ground that the property had been subsequently sold. 15 Ind Cas 53 (Cal), AIR 1926 Cal 468, AIR 1937 Cal 390, AIR 1942 Bom 263, AIR 1928 Rang 80 and AIR 1938 Lah 568, Dissented from; AIR 1931 Mad 782, AIR 1938 Nag 475 and AIR 1940 Nag 7, Rel. on. (Paras 8, 12 and 14) Anno : AIR Com., C. P. C., O. 21, R. 58, N. 5, R. 55, N. 2, R. 57, N. 1. CASES REFERRED : Paras (A) (50) 55 Mys HCR 42 2, 5 (B) (55) 33 Mys LJ 100: ILR (1954) Mys 187 5, 15 (C) (12) 15 Ind Cas 53: 16 Cal WN 1029 9, 10 (D) AIR 1926 Cal 468 (V 13): 87 Ind Cas 168 9 (E) AIR 1937 Cal 390 (V 24): 172 Ind Cas 503 9 (F) AIR 1942 Bom 263 (V 29): ILR (1942) Bom 636 9 (G) AIR 1928 Rang 80 (V 15): ILR 5 Rang 751 9 (H) AIR 1938 Lah 568 (V 25): ILR (1938) Lah 593 9

(I) AIR 1931 Mad 782 (V 18): ILR 55 Mad 251 10 (J) AIR 1938 Nag 475 (V 25): ILR 1940 Nag 306 10, 14 (K) AIR 1940 Nag 7 (V 27): 184 Ind Cas 797 10

(L) AIR 1937 Pesh 90 (V 24): 171 Ind Cas 302 14 G. Dayananda, for Petitioner; B. V. Rama Rao, for Respondents. Judgement In execution of a money decree obtained against respondent 2, by respondent 1 an immoveable property was attached and ordered to be sold on 22-3-1956 and five days before that date the petitioner presented a claim petition under the provisions or Order XXI rule 58 C. P. C. objecting to the attachment. In that application he asked for a postponement of the sale on which the Court below does not however appear to have made any order. The property appears to have been sold and purchased by the decree-holder for the amount due to him under the decree. On 28-9-1956 the Court below dismissed the claim petition on the ground that an investigation of the claim was not competent after the sale of the attached property. This revision petition is directed against that order.

2. Sri Dayananda learned Counsel for the petitioner contended that the view taken by the Court below that the sale of the attached property deprived the Court of its jurisdiction to investigate the claim was unsupportable. He urged that in this case the petitioner had preferred his claim before the sale actually took place and since the court did not, under the proviso to rule 58 of Order XXI C. P. C., consider that the claim was designedly or unnecessarily delayed, it was bound to investigate it. He further contended that the decision in Abdul Razack v. Jainullabudin, 55 Mys HCR 42 (A), on which the lower Court depended Was a case in which the claim petition was presented after the attached property had actually been sold and so had no application to the present case.

3. Sri Rama Rao learned Advocate for the decree-holder has argued that an attachment does not survive the sale of the attached property and that the moment the property is sold, the attachment ceases. He, therefore, submitted that an investigation of a claim after the cessation of the attachment in that way would be purposeless and therefore incompetent.

4. Rules 58, 59 and 60 of Order XXI of the Code of Civil Procedure read as hereunder : Rule 58. (i) Where any claim is preferred to, or any objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit : Provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed.

2. Where the property to which the claim or objection applies has been advertised for sale, the Court ordering the sale may postpone it pending the investigation of the claim or objection. Rule 59. The claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached. Rule 60. Where upon the said investigation the Court is satisfied that for the reason stated in the claim or objection such property was not, when attached in the possession of the judgment-debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him or that, being in the possession of the judgment-debtor at such time, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or party on his own account and partly on account of some other person, the court shall make an order releasing the property, wholly or to such extent as it thinks fit from attachment.

5. The question whether a court is competent to investigate a claim under rule 58 after the attached property is sold in execution of a decree has been the subject of considerable controversy. The High Courts of Calcutta, Bombay, Lahore and Rangoon have taken the view that such investigation was incompetent, whereas the High Courts of Madras and Nagpur have taken the view that it was not. There are also two pronouncements on this question by the former High Court of Mysore. In Abdul Razack v. Jainullabudin (A), Mallappa J., took the view that an investigation of a claim made after the sale of the attached properties, was not possible. Indeed, the order of the lower Court is made to rest on this decision. In Gangaiah v. Nagabhushana Gowda, 33 Mys LJ 100 (B), Balakrishnaiya J., took the view that if a claim had been made before the sale of the attached properties, an investigation into it was obligatory.

6. The decisions which forbid an investigation of a claim after the sale of the attached properties, rest on the theory that an attachment of a property comes to an end the moment it is sold in execution of a decree. It is pointed out in those cases that if an attachment is terminated in that way, it being no longer possible for the Court to make an order releasing the property from attachment under rule 60 of Order XXI of the Code of Civil Procedure, when it is satisfied that the attached property was not when attached, in the actual or constructive possession of the judgment-debtor in his own right, the investigation of that claim under rule 58 was incompetent. The Courts taking the opposite view have repelled the theory that the attachment of a property comes to an end when it is sold in execution of a decree for the reason that the Code of Civil Procedure which makes express provision in rules 55 and 57 for the removal and determination of an attachment, omits to provide that the mere sale of an attached property itself removes or determines the attachment.

7. Rules 55 and 57 of Order XXI C. P. C., read : Rule 55. Where (a) the amount decreed with costs and all charges and expenses resulting from the attachment of any property are paid into Court, or (b) satisfaction of the decree is otherwise made through the court or certified to the court, or (c) the decree is set aside or reversed, the attachment shall be deemed to be withdrawn and in the case of immovable property, the withdrawal shall, if the judgment-debtor so desires, be proclaimed at his expense, and a copy of the proclamation shall be affixed in the manner prescribed by the last preceding rule. Rule 57. Where any property has been attached in execution of a decree but by reason of the decree-holders default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application the attachment shall cease.

8. These rules do not provide that an attachment ceases when the attached property is sold. Normally, in the absence of a provision to that effect in the Code the assumption that an attachment is determined by the mere sale of an attached property would, to my mind, amount to a plain contravention of the rule that a Court cannot ordinarily add to a statute words which it does not contain.

9. On the question presented by this revision petition one starts with the case of Gopal Chandra Mukherji v. Notobar Kundu, 15 Ind Cas 53 (Cal) (C), in which Mookerjee J., said : "On behalf of the decree-holder auction-purchaser, it has been contended that after the sale had taken place, the Court was no longer competent to proceed with the application under rule 58 and to make on the basis thereof an order under rule 60. In our opinion, this contention is manifestly well founded and must prevail. Rule 60 of O. XXI provides that where, upon the investigation contemplated in rules 58 and 59, the court is satisfied that the claim ought to be allowed, it shall make an order releasing the property wholly or to such an extent as it thinks fit, from attachment. It is thus plain that an order tinder rule 60 must be made before the sale has taken place. This is also made clear by Sub-rule (2) of rule 58 which provides for the adjournment of a sale pending the investigation of the claim preferred under sub-rule (i). In the case before us, rule 60 plainly indicates that an order upon an application under Rule 58 must be made before the sale has taken place; upon the sale the application by which the claim has been preferred ipso facto terminates." It is not clear from the judgment in that case, why the learned Judges reached the conclusion that an attachment ipso facto terminates upon the sale of an attached property, nor is there in that judgment a reference to the provisions of Rules 55 and 57 C. P. C. It does not appear that the contention that an attachment does not come to an end except in the manner provided by those two rules was raised before those two learned Judges. The later decisions of the High Court of Calcutta and those of the High Courts of Bombay, Rangoon and Lahore rest on the same theory that an attachment ipso facto terminates upon such sale. Kali Charan Ghose v. Sm. Rani Sarojini Debi, AIR 1926 Cal 463 (D); Sasthi Charan v. Gopal Chandra, AIR 1937 Cal 390 (E); Ningauda v. Nabisaheb, AIR 1942 Bom 263 (F); Maung Po Pe v. Maung Kwa, AIR 1928 Rang 80 (G); Sant Lal v. Firm Udho Ram, AIR 1938 Lah 568 (H).

10. The observations of Jackson J., who did not agree with this view in Jagannadhan v. Pydayya, ILR 55 Mad 251: (AIR 1931 Mad 782) (I), are very much in point. He said this : "But in Gopal Chandra Mukerji v. Notobar Kundu (C), the Calcutta High Court has held it to be incompetent to an execution Court to proceed with an application under Order XXI, rule 58 after the sale has actually taken place. The reasoning is not easy to follow. Rule 60 provides for the Court releasing property from attachment after investigating a claim and "it is thus plain that an order under rule 60 must be made before the sale has taken place which would seem to assume that after the sale has taken place the property is ipso facto released from attachment, and therefore any investigation after the sale and consequent release is on the face of it absurd. But there is no warrant for this assumption. The Code is quite clear on the point when an attachment is released, and sets forth under order XXI rule 55, the three occasions when the attachment shall be deemed to be withdrawn. In the circumstances of the present case, the attachment would normally cease on satisfaction being made through the court after the full payment of the purchase-money. Until that point of time the attachment undoubtedly subsists and while it so subsists it would be a strange state of the law if a Court is to be precluded from hearing the complaint of the lawful claimant. At any rate there is nothing in the Code that precludes it." To the same effect are the decisions in Ramchandra Jagannath v. Kayam Hussain, AIR 1938 Nag 475 (J) and Ramchandra Komti v. Kondoo Jagna, AIR 1940 Nag 7 (K).

11. It seems to me that a Court cannot decline the investigation of a claim preferred before the attached property was sold in execution of a decree on the ground that that property had been subsequently sold.

12. Now it is clear that rule 58 of Order XXI of the Code of Civil Procedure which does not contain any express prohibition against an investigation of a claim after the attached property is sold in execution of a decree, provides on the contrary that when a claim is preferred, the Court shall proceed to investigate it unless it refuses to do so on the ground that the claim was in its opinion designedly or unnecessarily delayed. It is therefore plain that it is only when the Court considers that the claim was designedly or unnecessarily delayed that its investigation could be declined and not otherwise.

13. It is also not easy to understand the basis for the assumption that the moment the attached property is sold in execution, the attachment comes to an end. As I have already pointed out the Code of Civil Procedure does not provide that an attachment is terminated in that way. Rules 55 and 57 expressly enumerate the cases in which an attachment is either removed or shall cease. Rule 55 provides that where a decree is satisfied by payment into court of the amount decreed and all costs incurred or otherwise, or set aside or reversed, the attachment shall be deemed to be withdrawn. Rule 57 provides that where any property has been attached in execution of a decree but by reason of the decree-holders default the Court dismisses the application the attachment shall cease. I should be unwilling to think that a court could properly add to this enumeration or invent any further situations causing the disappearance of an attachment for reasons other than those specified in the Code.

14. In my opinion the enunciation of a rule that a sale displaces the attachment may sometimes lead to odd results. In cases where a sale does not become absolute because it is set aside under Sub-rule (3) of Rule 72 of Order XXI of the C. P. C., for the reason that the decree-holder or his agent purchased the property without the required permission of the court or when a sale is set aside under the provisions of rule 89 or 90 or when the sale does not become complete on account of the purchasers default in making the deposit of the purchase money, it is clear that the decree-holder would be entitled to again bring the properties to sale in execution of his decree without any further or another attachment of the property sold in that way, although those sales did not become complete for one reason or the other. If the supposition that when a property is sold the sale determines the attachment is correct, how is it possible for any decree-holder to bring those properties to sale once again without again attaching them? This incongruity is explained by Sri Rama Rao. the learned Counsel for the decree-holder in the same way in which it was done in Kishan Singh v. Vaishno Das Daswandi Mal (AIR 1937 Pesh. 90) (L). It was observed in that case that: "Order XXI, R. 55, Civil P. C. is not exhaustive of the modes in which attachment ceases. An attachment ceases as soon as the sale of the property attached takes place. It is wrong to suppose that an attachment subsists until the confirmation of the sale, because in the event of a resale being ordered a fresh attachment is not necessary. In a case where re-sale is ordered without a fresh order of attachment, the real reason is not that the original attachment continues, but the first sale and all subsequent proceedings are set aside, the status quo before the sale is restored and the attachment revived." Here again, it is clear that the Code of Civil Procedure contains no provision that when a sale is set aside and a resale is ordered, the attachment, if it ceased to exist on the date of sale, gets revived. It appears to me that the theory that an attachment disappears with the sale but re-appears where such sale is set aside or does not become complete for any reason has as little statutory foundation as the theory that the sale terminates an attachment. The acceptance of any such theory will only enable a refractory judgment-debtor to make a surreptitious alienation of the attached property after the termination of the attachment by sale and before its reappearance, without the decree-holder being able to do anything about it. If during this intermission there was no attachment for the reason that it had ceased when the property was sold and did not fasten itself to the property until the cancellation of the sale, the intermediate clandestine alienation would become unimpeachable for the reason that when the judgment-debtor made the alienation, there was no prohibition against it, unless the principle is further extended so as to make the revival of the attachment retroactive. An argument producing such alarming results has, in my opinion, only to be stated to be displaced by its own unsustainability. In Ramchandra Jagannath v. Kayam Hussain, (J) Niyogi, J. said this in a similar context : "If it is assumed that the attachment ceases with the execution sale, then the judgment-debtor may dispose of his property with impunity in the interval between the sale and its reversal and thus preclude the executing Court from putting up the property to sale again. A hypothesis which leads to such a startling and absurd conclusion cannot but be rejected. It must therefore follow that the attachment must be deemed to continue in spite of the sale until it is confirmed. It is only after confirmation of the sale that all fear of the judgment-debtors surreptitiously disposing of the property will cease." I am, therefore, of opinion that the attachment of a property sold in execution of a decree does not cease until the sale becomes absolute by confirmation. The conclusion, I have reached is not only in consonance with the provisions of rule 55 of Order XXI of the Code, but has the merit of not depriving a purchaser in an appropriate case of his right to apply for a cancellation of the sale under R. 91 of that order in the event of a claim turning out to be legitimate.

15. In the present case it is regrettable that the court below which did not reject the claim under the proviso to R. 58 of Order XXI of the Code allowed the sale to proceed, keeping before it an unascertained claim. Thus, is litigation protracted. But it is fortunate for the petitioner that the sale had yet to be confirmed when the impugned order was made and if only the later decision of the former High Court of Mysore in Gangaiah v. Nagabhushana Gowda (B) by which the lower Court was then bound, had been brought to its notice, it would not have proceeded to decline jurisdiction to investigate the claim as it did.

16. I set aside the order of the court below and direct that the claim preferred by the petitioner be investigated in accordance with law. There will, however, be no order as to costs.

17. Let the records be forthwith sent to the Court below. Petition allowed. AIR 1958 MYSORE 143 (VOL. 45, C. 38) "State of Mysore v. Md Ismail" MYSORE HIGH COURT Coram : 2 H. HOMBE GOWDA AND M. SADASIVAYYA, JJ. ( Division Bench ) State of Mysore, Complainant v. K. Mohamed Ismail, Accused. Criminal Referred case No. 3 of 1954, D/- 20 -12 -1957, from order of First Class Magistrate, Civil Station, Bangalore, D/- 7 -5 -1954. (A) Constitution of India, Art.254 - OBJECT OF AN ACT - REPUGNANCY BETWEEN STATUTES - Scope - Repugnancy of state law relating to state list to Union law - Art.254 does not apply. Under Art. 254, any question of repugnancy can arise only as between a law made by the Legislature of a State in regard to a matter in the Concurrent List, and a law made by Parliament in regard to the same subject in the Concurrent List; no question of repugnancy under Art. 254, could arise in respect of a law made by the Legislature of a State in regard to a subject falling entirely within the State List and the State Legislature is acting wholly within its powers under the State List. AIR 1947 P. C. 72, Rel. on. (Para 6) Anno : AIR Com., Const, of India, Art. 254, N. 12. (B) Mysore Sales Tax Act (46 of 1948), S.22 - SALES TAX - CONSTITUTIONALITY OF AN ACT - EQUALITY - REPUGNANCY BETWEEN STATUTES - Sales Tax - Constitutional validity - S.22 is not ultra vires of Art.14 of Constitution or Criminal P.C. Constitution of India, Art.14, Art.254, Sch.7, List 2, Entry 54, Entry 64, Entry 65. Criminal P.C. (5 of 1898), S.1(2), S.5. AIR 1954 Mad 833, Dissent. from. Section 22 of the Mysore Sales Tax Act, 1948, is not ultra vires of the Constitution or the Code of Criminal Procedure and the accused is not entitled to question any assessment or order made by the assessing authority under the Act or the Rules thereunder. AIR 1954 Mad 833 Dissent from; (S) AIR 1955 Trav-Co. 220 (FB); AIR 1953 Mad 105 and 1957-8 STC 365 (Mad), Rel. on. (Para 10) When the Legislature of a State has the competence to make a law pertaining to taxes on sales or purchases, it has also the competence to provide punishments in that law for the non-compliance or contravention of the provisions of that law, and may also for the purposes of the enforcement of that law vest jurisdiction in Courts. The limits of the jurisdiction of Courts may be prescribed by that law. A provision like S. 22 can be made in the exercise of the power that is available under the entries in List II. When that is so, there can be no question of any repugnancy with the provisions of any law falling under the Concurrent List. AIR 1950 F. C. 59 and AIR 1951 S. C. 69 Rel. on. (Para 8) The limitation which has been imposed by S. 22, on the powers of the Courts in the matter of questioning any assessment made or order passed under the Act or the rules thereunder by any assessing authority, cannot be viewed independently of the other provisions in the Act under which it is open to an aggrieved party to have recourse to remedies by way of appeal, revision or reference to the High Court, in accordance with procedure prescribed by the Act. It is only in consequence of a separate and adequate machinery provided for by the Act, that it is enacted in S. 22 that no such assessment or order shall be called in question in any Court. Even if it were to be assumed for purposes of argument that there has been any incidental encroachment, the same will not affect the validity of the law as long as the State Legislature is acting in the exercise of its competence arising wholly within the State List. Under these circumstances, when a provision like S. 22 could be made by the Legislature of a State in the exercise of its legislative competence derived wholly from the entries in the State List, there is absolutely no reason as to why this provision found in pre-Constitution law which is continued under Art. 372 of the Constitution, should not be held to be valid. (S) AIR 1957 SC 297 Rel. on. (Para 8) The prohibition in S. 22 of the Act applies to all persons in respect of whom any assessment has been made or any order has been passed by any assessing authority under the Act and Rules; there is no discrimination as between persons falling under that category. There is no substance in the contention that S. 22 of the Act offends Art. 14 of the Constitution. AIR 1953 Mad 105 Rel. on. (Para 9) Anno : AIR Com. Const, of India, Art. 14, N. 17, 27; Art. 254, N. 12; AIR Com, Cr. P. C., S. 1, N. 2a, 2b; S. 5, N. 6. CASES REFERRED : Paras (A) AIR 1954 Mad 833 (V 41): 1954 Mad 1:1954CriLJ1267">WN 821: 1954 Cri LJ 1267 1, 4 (B) AIR 1951 Mys 37 (V 38): 52 Cri LJ 440 3 (C) AIR 1951 Mvs 70 (V 38): 52 Cri LJ 825 3 (D) AIR 1953 Mys 12 (V 40): 1953 Cri LJ 125 3 (E) AIR 1953 Mys 18 (V 40): 1953 Cri LJ

529 3 (F) AIR 1954 Mys 17 (V 41): 1954 Cri LJ

262 3 (G) AIR 1947 PC 78 (V 34): 1947 FCR 59 3 (H) (S) AIR 1955 Trav-Co. 220 (V 42): 1955- 6 1:1955CriLJ1289">STC 331: 1955 Cri LJ 1289 (FB) 4

(I) AIR 1953 Mad 105 (V 40): 1953 Cri LJ 277: 65 Mad LW 1030 4, 9 (J) (S) AIR 1956 SC 158 (V 43): 1956 Cri LJ 331 4 (K) (57) 1957-8 STC 365: 70 Mad LW 292 4

(L) AIR 1947 PC 72 (V 34): 1947 FCR 77 6 (M) AIR 1950 FC 59 (V 37): 51 Cri LJ 921 6 (N) AIR 1951 SC 69 (V 38): 1951 SCR 51 7 (O) (S) AIR 1957 SC 297 (V 44): 1957 SCJ 6:1957CriLJ409">216: 1957 Cri LJ 409 8 D. M. Chandrasekhar, High Court Govt. Pleader, for the State; G. S. Ullal, for Accused. Judgement M. SADASIVAYYA, J. :- The question of the validity of S. 22 of the Mysore Sales Tax Act, 1948 having arisen in C. C. Nos. 288 and 289/54 on the file of the First Class Magistrate, Civil Station, Bangalore, the said Magistrate has made this reference under S. 432 of the Cr. P. C. The question which has been referred to the High Court is

"Whether S. 22 of the Mysore Sales Tax Act is ultra vires of the Constitution of India and of the Cr. P. C. and whether the accused is entitled to question the validity of the assessment order passed by the Assessing Authority, in this Court"

. A short time prior to the making of this reference, the Madras High Court had held in the case of In re Guruviah Naidu and Co., reported in 1954 Mad WN 821: ( AIR 1954 Mad 833) (A), that S. 16-A of the Madras General Sales Tax Act (which corresponds to S. 22 of the Mysore Sales Tax Act, 1948) was ultra vires of the Constitution and of the Code of Criminal Procedure. The counsel for the accused in the two criminal cases before the learned Magistrate above referred to, appears to have based his arguments on a newspaper report of the above-said decision of the Madras High Court and contended before the learned Magistrate that S. 22 of the Mysore Sales Tax Act, 1948 was ultra vires of the Constitution and the Code of Criminal Procedure. The learned Magistrate took the view that there was force in the contention of the learned counsel and has made this reference.

2. Section 22 of the Mysore Sales Tax Act, 1948, as it stood at the time when the learned Magistrate made this reference, was as follows : "Save as provided in S. 16, no assessment made and no order passed under this Act or the rules made thereunder by any assessing authority shall be called in question in any Court, and save as is provided in Ss. 14 and 15, no appeal or application for revision shall lie against any such assessment or order."

3. The question as to the effect of S. 22 of the Mysore Sales Tax Act, 1948, had come up, quite a number of times, for consideration before the High Court of the former State of Mysore (Vide Kotrappa v. Asst. Sales Tax Officer, AIR 1951 Mys 37 (B); Rama Iyer v. Govt. of Mysore, AIR 1951 Mys 70 (C); Kariappa v. Govt. of Mysore, AIR 1953 Mys 12 (D); Venkatachala Chetty v. Govt. of Mysore, AIR 1953 Mys 18 (E) and Narayana Setty v. State of Mysore, AIR 1954 Mys 17 (F). Of these decisions, the two cases reported in AIR 1953 Mys 12 (D) and AIR 1953 Mys 18 (E), were decided by Mallappa, J., and the other three cases were all decided by Balakrishnaiya, J. In these two sets of cases, the learned Judges took slightly divergent views as to what exactly would be an assessment made or an order passed under the Act, within the meaning of S. 22. For this purpose, they also relied on the interpretation of the expression "assessment made under the Act" as used in S. 67 of the Income-tax Act. Ultimately in AIR 1954 Mys 17 (F). Balakrishnaiya, J. took the view that the meaning and the scope of the expression "made under the Act", in S. 67 of the Income-tax Act, were much wider than that indicated by Mallappa, J., in the earlier decisions. For taking this view, Balakrishnaiya, J. relied on the decision of the Privy Council reported in Raleigh Investment Co. Ltd. v. Governor-General in Council, AIR 1947 PC 78 (G), wherein their Lordships of the Privy Council had held that the phrase "made under the Act" describes the provenance of the assessment, and does not relate to its accuracy in point of law, and that "the use of the machinery provided by the Act, not the result of the use is the test". But, in these cases the question of the constitutional validity of S. 22 had not come up for decision.

4. The main contentions which have been urged by the learned counsel Sri Ullal who has appeared for the accused persons in those cases is that S. 22 is repugnant to the provisions of the Code of Criminal Procedure and the Indian Evidence Act and that therefore it cannot have effect; it is also contended by him that it offends Art. 14 of the Constitution and that therefore it is void. His arguments were more or less on the lines of the arguments advanced on behalf of the petitioners in the case reported in 1954 Mad WN 821: (AIR 1954 Mad 833) (A). In that case it was held by the Madras High Court that S. 16-A of the Madras General Sales Tax Act was repugnant to the provisions of the Code of Criminal Procedure and the Evidence Act and also offended Art. 14 of the Constitution. In a Full Bench case reported in P. K. Velayudhan, In re, 1955-6 STC 331: ((S) AIR 1955 Trav-Co 220) (FB) (H), the High Court of Travancore-Cochin had to consider the constitutional validity of S. 21 of the Travancore-Cochin General Sales Tax Act. In that Full Bench Case, their Lordships did not accept the contentions similar to those which had been advanced in the case of 1954 Mad WN 821: (AIR 1954 Mad 833) (A), and did not concede that the said decision laid down the correct law. Instead, they agreed with the views which had been expressed in the earlier Madras decision viz. Syed Mohammed and Co. v. State of Madras, reported in AIR 1953 Mad 105: 65 Mad LW 1030 (I), and held that the section in question was not ultra vires of any of the provisions of the Constitution, the Code of Criminal Procedure or the Indian Evidence Act. The State of Madras had appealed to the Supreme Court against the decision of the High Court of Madras in Guruviah Naidus case (A), and the decision pertaining to that appeal is reported in State of Madras v. Guruviah Naidu and Co. Ltd., (S) AIR 1956 SC 158 (J). The Supreme Court set aside the judgment of the Madras High Court, on grounds other than those pertaining to the validity or otherwise of S. 16-A of the Madras General Sales Tax Act. In regard to the question pertaining to S. 16-A, their Lordships of the Supreme Court have expressly stated as follows : "In the view we have taken about the validity of the assessment on which the prosecutions were founded, we do not consider it necessary on this occasion to express any opinion on any of the questions raised about the validity or otherwise of S. 16-A of the Madras General Sales Tax Act." In a later decision of the Madras High Court reported in R. D. Fernandes, In re, 1957-8 STC 365 (K), Ramaswami, J., while holding that S. 16-A of the Madras General Sales Tax Act is intra vires, has followed the earlier decisions of the Madras High Court (including the decision in Syed Mohammeds Case (I), and has declined to follow the decision in Guruviah Naidus case (A).

5. The Mysore Sales Tax Act, 1948 is a preconstitution law which was passed by the legislature of the former State of Mysore, which was an Indian State subject to the sovereignty of the Maharaja. After the Constitution came into force, this law continued by virtue of Art. 372 of the Constitution. It is not disputed by Sri Ullal, that the Legislature of the former State of Mysore was competent to make a law like the Mysore Sales Tax Act of 1948. But, it is urged by Sri Ullal that S. 22 is repugnant to the provisions of the Cr. P. C. and the Indian Evidence Act which are Laws made by Parliament and it is therefore void. On the other hand, the contention of Sri D. M. Chandrasekhar the learned counsel who appeared for the Advocate-General, is that S. 22 is really a provision limiting the power or jurisdiction of the Court and that no question of any repugnance either with the Code of Criminal Procedure or with the Evidence Act, really arises.

6. The question of inconsistency between laws made by Parliament and laws made by the Legislatures of States is dealt with, in Art. 254 of the Constitution. Under Art. 254, any question of repugnancy can arise only as between a law made by the Legislature of a State in regard to a matter in the Concurrent List; and a law made by Parliament in regard to the same subject in the Concurrent List; no question of repugnancy under Art. 254, could arise in respect of a law made by the Legislature of a State in regard to a subject falling entirely within the State List and the State Legislature is acting wholly within its powers under the State List. This is the effect of the decision of the Privy Council reported in Megh Raj v. Allah Rakhia, AIR 1947 PC 72 (L). Under Entry 54 of List II of the Seventh Schedule to the Constitution, the Legislature of a State is competent to make a law pertaining to taxes on the sale or purchase of goods other than newspapers. Under Entry 64 of List II, the Legislature of a State has the competence to make a law in regard to offences against laws with respect to any of the matters in the State List. Under Entry 65 of List II, the Legislature of a State has competence to legislate in regard to jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in the State List. From a consideration of these entries taken together, it becomes clear that the Legislature of a State in making a law pertaining to the subject matter of Entry 54 of List II, is also competent to legislate with regard to offences against that law and to regulate and control the jurisdiction and powers of Courts (except the Supreme Court) in regard to any matter falling within the scope of that law. It may also be noticed that in Entry 1 of the Concurrent List which pertains to Criminal Law, offences against laws with respect to any of the matters specified in List II, are excluded; it is also seen from Entry 46 of the Concurrent List which pertains to the jurisdiction and powers of all Courts (except the Supreme Court), that the entry is confined to jurisdiction and powers of Courts only with respect to any of the matters in the Concurrent List. Sub-section (2) of S. 1 of the Code of Criminal Procedure provides that in the absence of any specific provision to the contrary, nothing contained in the Code shall affect any special jurisdiction or power conferred by any other law for the time being in force; likewise S. 9 of the Code of Civil Procedure, which deals with the jurisdiction of Courts to try all suits of a civil nature, excepts from the jurisdiction of the Courts such suits the cognizance of which is expressly or impliedly barred. In a case reported in Lakhi Narayan Das v. Province of Bihar, AIR 1950 FC 59 (M), it was contended against certain provisions of the Bihar Maintenance of Public Order Ordinance, 1949, that they were in conflict with the provisions of the Code of Criminal Procedure and were therefore ultra vires of the Provincial Government. While repelling that contention, the Federal Court has observed as follows : "It is true that violation of the provisions of the Ordinance or of orders passed under it have been made criminal offences but offences against laws with respect to matters specified in List II would come within item (37) of List II itself, and have been expressly excluded from item (1) of the Concurrent List. The ancillary matters laying down the procedure for trial of such offences and the conferring of jurisdiction on certain Courts for that purpose would be covered completely by Item (2) of List II and it is not necessary for the Provincial Legislature to invoke the powers under Item (2) of the Concurrent List....... In our opinion, if the Provincial Legislature can create offences in respect to matters which are exclusively within List II, it can also provide for arrest and trial of the offenders who violate such laws. This seems to be the clear implication of Item (37) of List II and Item (1) of the Concurrent List."

7. Again, in a decision of the Supreme Court which is reported in State of Bombay v. Narottamdas Jethabhai, AIR 1951 SC 69 (N), while considering the constitutional validity of the Bombay City Civil Court Act, the Supreme Court, with reference to entries in the Lists pertaining to the jurisdiction and powers of the Courts states as follows : "The effect of these entries is that while legislating with regard to the matters in their respective Legislative Lists, the two Legislatures are competent also to make provisions in the several Acts enacted by them, concerning the jurisdiction and powers of Courts in regard to the subject matter of the Acts, because otherwise the legislation may not be quite complete or effective. The words used in Entry 2 of List II and Entry 55 of List I are wide enough to empower the two legislatures to legislate negatively as well as affirmatively, with regard to the jurisdiction of the Courts in respect of the matters within their respective legislative ambits. In other words, they can exclude or bar the jurisdiction of the Courts in regard to those matters, and they can also confer special jurisdiction on certain Courts. They can also, apart from the general power which the Courts usually exercise, confer power on the Courts to pass certain special orders.....

8. It is thus seen that when Legislature of a State has the competence to make a law pertaining to taxes on sales or purchases, it has also the competence to provide punishments, in that law for the non-compliance or contravention of the provisions of that law, and may also for the purposes of the enforcement of that law vest jurisdiction in Courts. The limits of the jurisdiction of Courts, may be prescribed by that law. The legislature of a State can do all these in the exercise of the legislative competence available to it under the entries in List II and without being put to the necessity of having recourse to any of the powers available under the Concurrent List. A provision like S. 22 can be made in the exercise of the power that is available under the entries in List II. When that is so, there can be no question of any repugnancy with the provisions of any law falling under the Concurrent List. In a recent decision of the Supreme Court reported in A. S. Krishna v. State of Madras, 1957 SCJ 216: ((S) AIR 1957 SC 297) (O), in which the constitutional validity of certain provisions of the Madras Prohibition Act was upheld by the Supreme Court, His Lordship Venkatarama Ayyar, J. has observed as follows : "The position, then, might thus be summed up : When a law is impugned on the ground that it is ultra vires the powers of the Legislature which enacted it, what has to be ascertained is the true character of the legislation. To do that, one must have regard to the enactment as a whole, to its objects and to the scope and effect of its provisions. If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature, then it must be held to be valid in its entirety, even though it might incidentally trench on matters which are beyond its competence. It would be quite an erroneous approach to the question to view such a statute not as an organic whole, but as a mere collection of sections, then disintegrate it into parts, examine under what heads of legislation those parts would severally fall, and by that process determine what portions thereof are intra vires, and what are not" The limitation which has been imposed by S. 22, on the powers of the Courts in the matter of questioning any assessment made or order passed under the Act, or the Rules thereunder by any assessing authority, cannot be viewed independently of the other provisions in the Act under which it is open to an aggrieved party to have recourse to remedies by way of appeal, revision or reference to the High Court, in accordance with the procedure prescribed by the Act. It is only in consequence of a separate and adequate machinery provided for by the Act, that it is enacted in S. 22 that no such assessment or order shall be called in question in any Court. It merely amounts to saying that under the circumstances, except as provided under the Act itself the Courts shall not have the power to question such assessment or order made under the Act or Rules by the assessing authority. A provision like this is also ancillary or incidental to the legislative competence which the Legislature of a State has, to make a law in respect of a matter falling within the State List. We are not satisfied that by the enacting of a provision like S. 22, there would be any encroachment in regard to any matter falling under the Concurrent List. Even if it were to be assumed for purposes of argument that there has been any incidental encroachment, the same will not affect the validity of the law as long as the State Legislature is acting in the exercise of its competence arising wholly within the State List. Under these circumstances, when a provision .like S. 22 could be made by the Legislature of a State in the exercise of its legislative competence derived wholly from the entries in the State List, there is absolutely no reason as to why this provision found in a pre-constitution law which is continued under Art. 372 of the Constitution, should not be held to be valid. We do not find any substance in the contention that S. 22 of the Mysore Sales Tax Act, 1948, is void on the ground that it is repugnant to the provisions of either the Code of Criminal Procedure or the Indian Evidence Act.

9. Sri Ullal, the learned Counsel for the accused persons has also not been able to convince us as to why persons against whom any assessment has been made or any order has been passed under the Act or Rules by any Assessing Authority and who have not complied with such orders, should be placed on the same footing as offenders under other laws. Offenders against other laws would be governed by the provisions of those laws. Subject to the remedies by way of appeal or revision or reference to the High Court as provided for in the Sales Tax Act itself, the intention of the Legislature is that an assessment made or an order passed by any assessing authority under the Act or the Rules should be final. It is in order that this finality may not be disturbed, that S. 22 prohibits such an assessment or order being called in question in any Court. It cannot be said, under the circumstances, that such a provision is either unreasonable or unfair. In the case of Syed Mohamed and Co. v. State of Madras (which is reported in 65 Mad LW 1030: (AIR 1953 Mad 105) (I), a contention was advanced that S. 16-A of the Madras General Sales Tax Act was repugnant to Art. 14 of the Constitution. This contention was not accepted. His Lordship Venkatarama Ayyar, J. has observed as follows : "The contention is that the Section prevents the petitioners from showing that they are not liable to be taxed under the Act and is, therefore opposed to rules of natural justice. There would have been substance in this objection, if the petitioners had been denied an opportunity of contesting the claim before an order of assessment was made. But where, as here, the tax is determined after notice to the assessees, it is not repugnant to rules of natural justice to provide that the validity of assessment shall not be questioned at the stages of realisation of the tax". The prohibition in S. 22 of the Act applies to all persons in respect of whom any assessment has been made or any order has been passed by any assessing authority under the Act and Rules; there is no discrimination as between persons falling under that category. Having regard to all these circumstances, we are not satisfied that there is any substance in the contention that S. 22 of the Act offends Art. 14 of the Constitution.

10. We answer the question referred to us, as follows : "Section 22 of the Mysore Sales Tax Act, 1948 is not ultra vires of the Constitution or the Code of Criminal Procedure and that the accused is not entitled to question any assessment or order made by the assessing authority under the Act or the Rules thereunder." Reference answered in negative. AIR 1958 MYSORE 147 (VOL. 45, C. 39) "Channamma v. Dhalappa" MYSORE HIGH COURT Coram : 1 A. R. SOMNATH IYER, J. ( Single Bench ) Channamma, Complainant, Petitioner v. Dhalappa, Accused, Respondent. Criminal Revn. Petn. No. 424 of 1957, D/- 30 -1 -1958, against order of 1st Magistrate, Bangalore, D/- 15 -10 -1957. Penal Code (45 of 1860), S.494 - BIGAMY - MARRIAGE - Husband marrying second wife - Complaint by first wife - Maintainability - Effect of S.17, Hindu Marriage Act. Hindu Marriage Act (25 of 1955), S.17. The effect of section 17 of the Hindu Marriage Act is to make section 494 of the Penal Code applicable to Hindus. There is nothing in Act forbidding a prosecution for an offence punishable under section 494 of the Penal Code not preceded by a declaration obtained under the provisions of the Act that the second marriage is void. (Para 7) Anno : AIR Man., I. P. C., S. 494, N. I. K. V. Narayanappa, for Petitioner; A. Shamanna, for Respondent. Judgement ORDER: This revision petition arises out of a complaint filed by one Channamma who is the petitioner against her husband the respondent complaining that he had committed an offence of bigamy punishable under S. 494 of the Penal Code. The Court below dismissed the complaint on the ground that it had no jurisdiction to try the case. The view taken by the Court below was that an adjudication by the District Court under the provisions of the Hindu Marriage Act that the second marriage contracted by the accused as alleged by the complaint was void, was a condition precedent to the Magistrate taking cognisance of the complaint. The complainant has preferred this revision petition to this court against the order of the Magistrate dismissing her complaint.

2. It is urged by the learned Advocate for the petitioner that the view taken by the learned Magistrate that an adjudication by the Dist. Court under the provisions of the Hindu Marriage Act that the second marriage was void should precede a prosecution under section 494 of the Penal Code is incorrect. It appears to me that this contention has to be accepted.

3. The Hindu Marriage Act contains no provision requiring any such adjudication by the District Court. On the contrary, section 17 of the Hindu Marriage Act provides that any marriage between two Hindus solemnized after the commencement of the Act is void if at the date of such marriage either party had a husband or wife living and that the provisions of sections 494 and 495 of the Indian Penal Code shall apply accordingly. In other words, what that section provides is that if two Hindus married after the commencement of that Act and if at the date of such marriage either of them had a husband or wife living, the marriage was void.

4. The contention of the learned Advocate for the respondent that the Hindu Marriage Act requires an adjudication by a Court that the second marriage is void before the person committing the offence of bigamy could be prosecuted for that offence does not appear to me to be sound. There is nothing in section 19 of the Act which can be regarded as having reference to any petition which requires to be presented to the District Court under the provisions of that section for any declaration that a marriage which is expressly declared to be void by the provisions of section 17 of the Act, requires to be further so declared by a Court on a petition presented under that section. It is also clear from section 11 of the Act that it is not a declaration by a decree of nullity for which provision is made under that section that makes the second marriage void. On the contrary it is Sec. 17 of the Act that makes such marriages void.

5. Clause (1) of Sec. 5 of the Act provides that a marriage may be solemnized between any two Hindus, if the conditions specified in that section are fulfilled and one of those conditions specified in clause (i) of that section is that neither party has a spouse living at the time of the marriage; and S. 11 of the Act provides that a marriage solemnized after the commencement of the Act shall be null and void if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.

6. If as stated by the complainant in her complaint the accused in this case had a wife living at the time of his marriage with Lakshmamma, it is clear that as provided by section 17 of the Hindu Marriage Act the marriage between the accused and Lakshmamma is void. It may be open to the accused or Lakshmamma the second wife, under the provisions of Section 11 of the Act to apply for a decree of nullity declaring that second marriage void. But the fact that either of those two persons is entitled to apply for such a decree does not mean that either the husband or the wife who has committed an offence punishable under section 494 of the Penal Code by reason of his or her marrying again during the lifetime of his wife or her husband as the case may be cannot be prosecuted for that offence until a declaration is obtained under the provisions of S. 11 of the Act that the impugned second marriage was void. 7.It is, I think, clear that the effect of section 17 of the Act is to make section 494 of the Penal Code applicable to Hindus. There is nothing in the Act forbidding a prosecution for an offence punishable under S. 494 of the Penal Code not preceded by a declaration obtained under the provisions of the Act that the second marriage is void.

8. That being so, in my opinion, the order of the Magistrate dismissing the complaint is unsupportable and has to be set aside. I do so and direct that he should now dispose of the case according to law. Petition allowed. AIR 1958 MYSORE 148 (VOL. 45, C. 40) "A. E.Co., Ltd. v. N. S. Bathena" MYSORE HIGH COURT Coram : 1 K. S. HEGDE, J. ( Single Bench ) The Amalgamated Electricity Co., Ltd., Defendant, Petitioner v. N. S. Bathena, Manager, Kernel Products Belgaum, Plaintiff, Respondent. Civil Revn. Petn. No. 702 of 1956, D/- 11 -12 -1957, against order of 2nd Extra Asst. J., Belgaum, D/- 10 -8 -1956. (A) Electricity (Supply) Act (54 of 1948), S.76 and Sch.6, Cl.1 and Cl.16 - ELECTRICITY - OBJECT OF AN ACT - Scope - Licensee unilaterally imposing standing charges - Consumer if can challenge act in civil Courts. Clause 1 of Sch. 6 to the Act provides the basis on which the licensee should adjust his rates. The Government can compel him to abide by the requirement of this rule. But the consumer does not come into the picture excepting probably by agitating the matter before the Government and by exercising his rights as a citizen. But where the complaint of the plaintiff who is a consumer is that the defendant has no legal authority to collect any standing charges, it is not a dispute as regards the adjustment of rates but a complaint about an unauthorised levy. Again Cls. I and 16 regulate the relationship between the licensee and the Government. Only the Government or the Board can raise a dispute as regards the adjusted rate. The consumer cannot raise any dispute about it. The act of the licensee unilaterally imposing standing charges are beyond his powers and opposed to the terms of his licence and as such can be challenged before a Court of law. AIR 1955 Bom 182, Rel. on. (Para 4) Clause I of Sch. 6 as amended by the Amending Act of 1956 cannot be read as interpreting the previous clause nor can it be construed as making arbitration compulsory. (Para 5) (B) Electricity (Supply) Act (54 of 1948), S.76(2) - ELECTRICITY - INTERPRETATION OF STATUTES - Interpretation of Statutes. Section 76(2) of the Act speaks of disputes for which arbitration has been provided for. By implication it means that there are disputes for which arbitration has not been provided for. Otherwise the section could have been so worded to bring in all disputes. Again the very fact that arbitration is provided for disputes falling under Ss. 16, 21, 22 and 24 and for disputes falling under the several clauses of the schedule clearly militates against the contention that all disputes are required to be referred to arbitration. If that be so, the reference to arbitration in these sections and clauses are superflous and is a clear waste of legislative time and labour. Such a construction is opposed to well accepted principles of construction of statutes. (Para 7) (C) Civil P.C. (5 of 1908), S.9 and Pre. - CIVIL COURT - PREAMBLE - Act ousting jurisdiction of civil Court - Interpretation Onus of proof. The presumption of the law is that every citizen can approach the ordinary civil Court for the adjudication of his rights. It is for those who plead that he is excluded, to establish it by clear and cogent authority. Arbitration cannot be forced down the throats of unwilling litigants. The compulsion of the law, if any, must be clear and unambiguous. Courts will not lean for a construction ousting the jurisdiction of the civil Courts. (Para 8) Anno: AIR Com., C. P. C, Pre., N. 7, S. 9, N. 2. CASES REFERRED: Paras (A) AIR 1955 Bom 182 (V 42): ILR (1955) Bom 42 4 (B) AIR 1947 Lah 309 (V 34) 6 (C) (S) AIR 1955 All 309 (V 42) : ILR (1955) 1 All 295 (FB) 9 M.M. Ghare Khan and H.B. Datar, for Petitioner; N.C. Malkani, for Respondent. Judgement The revision petitioner before me is the defendant in Regular Suit No. 197 of 1955 on the file of the First Joint Civil Judge, J. D. Belgaum. The plaintiif is running an industrial concern in Belgaum. The defendant is a firm supplying electricity to the town of Belgaum. The suit was for injunction (1) restraining the defendant from making the minimum charges (2) recovery of Rs. 362-5-0 and (3) restraining the defendant from disconnecting the electric connections to the plaintiffs concern. The plaintiff contends that the standing charges imposed on him by the defendant are illegal and ultra vires. The defendant-petitioner apart from controverting the plaint allegations, applied to the trial Court under S. 34 of the Arbitration Act to refer the disputes to arbitration. He insisted that under CI. 16 of the VIth Schedule to the Electricity (Supply) Act, 1948 which shall be hereinafter called "the Act" read with S. 76 of the said Act, the dispute in question is required to be referred to arbitration of the "Authority mentioned in S. 3 of the Act. The plaintiff denies that there is any arbitration agreement statutory or otherwise between the parties. According to him S. 34 or S. 20 of the Arbitration Act does not come into play.

2. Hence the question for consideration is as to whether there is any arbitration agreement. The arbitration agreement pleaded is one based on the interpretation of the relevant provisions of the Indian Electricity Act, 1910 and the Act. It was contended before the trial Court that in view of S. 76(1) of the Act, arbitration is compulsory. Section 76(1) provides thus : "All questions arising between the State Government or the Board and a licensee or other person shall be determined by arbitration." underlining (here into ) is mine). The case for the defendant in the trial Court was that plaintiff who is a consumer fell within the category of "other person" mentioned in S. 76(1). This contention was rejected by the trial Court. According to that Court S. 76(1) of the Act provided for compulsory arbitration in all disputes between the Government and the Board on the one side and the licensee on the other. The word "other person" in S. 76(1) must be construed on the principle of ejusdem generis as a person who discharges the duties of a licensee. According to that Court the word "other person" in that Section refers to persons mentioned in S. 28 of the Indian Electricity Act, 1910. At this stage it may be stated that the Electricity (Supply) Act, 1948 and the Indian Electricity Act, 1910 operate simultaneously; one supplements the other excepting to the extent that the provisions of the Indian Electricity Act, 1910 or Rules made thereunder are inconsistent with any of the provisions of the later Act. In case of inconsistency the later Act shall prevail (Section 70 of the Act). So in examining the contentions of the parties in this case reference will have to be made to both the Acts. The second contention of the defendant is that dispute in question fell under Cl. 1 of Sch. 6 of the Act for which arbitration is provided for in Cl. 16 of the said schedule. His last contention is that on a true reading of the several sections of the two Acts it will be seen that all disputes arising between the Government and the Board on the one side and the licensee on the other, as well as all disputes between the licensee and the consumer are required to be referred to arbitration. The trial Court in an exceedingly well written order rejected all these contentions. The first contention was not pressed before the appellate Court. The other two were pressed but rejected.

3. In this Court the petitioner takes the same contentions which he took before the appellate Court. Reliance is placed upon Cl. 16 of Sch. 6 of the Act as well as on S. 76(2) of the Act. Sri Ghare Khan the learned Advocate for the petitioner conceded that the arbitration contemplated in S. 76(1) of the Act relates to arbitration between the State Government and the Board on one side and the licensee and the person discharging the duties of the licensee on the other side. But according to him his clients case falls under S. 76(2) of the Act which provides that where any question or matter is by that Act, required to be referred to the arbitration it shall be so referred. He further urged that disputes between the licensee and the consumer are required to be referred to arbitration as per the Act. He invited my attention to Ss. 16(3), 21, 21(2), 21(4), proviso to Ss. 22, 24(2) of the Indian Electricity Act, 1910; Cls. 5(2), 6(3) and 12 of the Schedule to the Indian Electricity Act, 1910. He also invited my attention to Cls. 1 and 16 of the Sixth Schedule of the Act, to reinforce his argument that disputes between the consumer and the licensee is not outside the scope of the arbitration provided for in the two Acts. Let me first take up the contention based on Cl. 16 of Sch. 6 of the Act. The said clause reads : "Any dispute or difference as to the interpretation of any matter arising out of the provisions of this Schedule shall be referred to the arbitration of the Authority." According to the petitioner, the dispute in hand, falls within Cl. 1 of Sch. 6 of the Act. The said clause is as follows : "The licensee shall so adjust his rates for the sale of electricity by periodical revision that his clear profit in any year shall not as far as possible extend the amount of reasonable return; Provided that the licensee shall not be considered to have failed so to adjust his rates if the clear profit in any year of account has not exceeded the amount of the reasonable return by more than thirty per centum of the amount of the reasonable return."

4. The argument on behalf of the petitioner is that the dispute in question relates to fixation of rates. As such it falls under Cl. 1. It is difficult to accept this argument. Clause 1 provides the basis on which the licensee should adjust his rates. The Government can compel him to abide by the requirement of this rule. But the consumer does not come into the picture excepting probably by agitating the matter before the Government and by exercising his rights as a citizen. But the plaintiffs complaint in this case is that the defendant has no legal authority to collect any standing charges. It is not a dispute as regards the adjustment of rates but a complaint about an unauthorised levy. Again the aforesaid Cls. 1 and 16 regulate the relationship between the licensee and the Government. Only the Government or the Board can raise a dispute as regards the adjusted rates. The consumer cannot raise any dispute about it. The act of the licensee unilaterally imposing standing charges are beyond his powers and opposed to the terms of his licensee and as such can be challenged before a Court of law. See Babulal Chhaganlal v. Chopda Electric Supply Co., Ltd., AIR 1955 Bom 182 (A). It was so done in that case.

5. It is next contended that the Amending Act of 1956 makes it clear, by the incorporation of the new Cl. 1 to Sch. 6 of the Act that the legislature intended Cl. 1 and Cl. 16 of Sch. 6 of the Act to apply to the disputes between the licensee and the consumer. The learned Counsed for the petitioner wants me to read the new clause as one interpreting the previous clause. I am unable to accept this contention. It purports to be an amendment and clearly it is one such. The wording of the clause makes it abundantly clear. Nor am I able to construe the amended Cl. 1 as making arbitration compulsory.

6. I shall now turn my attention to the arguments based on S. 76(2) of the Act. It clearly speaks of arbitration to which provisions have been made in the Act or in the Indian Electricity Act, 1910. In this connection reference may be made to Ss. 16(3), 21(2), 21(4) proviso to Ss. 22, 24(2), Cls. 6 and 12 of the Schedule of the Indian Electricity Act, 1910. These are cases for which the statute provides for arbitration. But the dispute which is the subject of the suit with which we are now concerned is clearly outside the scope of all or any of the sections herein above mentioned. No provision of the Indian Electricity Act, 1910 or the Act was brought to my notice under which the present dispute is required to be submitted to arbitration. The arguments hovered round the so called spirit of the two statutes, but there was no substance in that. My attention was invited to the case reported in Municipal Committee, Fazilka v. Fazilka Electric Supply Co., Ltd., AIR 1947 Lah 309 (B). But that case considered the interpretation of Cl. 6(3) of the Schedule of the Indian Electricity Act, 1910. The clause in question provided for arbitration. It is of no assistance to the petitioner.

7. Section 76(2) of the Act speaks of disputes for which arbitration has been provided for. By implication it means that there are disputes for which arbitration has not been provided for. Otherwise the section could have been so worded to bring in all disputes. Again the very fact that arbitration is provided for disputes falling under sections 16, 21, 22 and 24 and for disputes falling under the several clauses of the schedules clearly militates against the contention of the petitioner that all disputes are required to be referred to arbitration. If that be so the reference to arbitration in those sections and clauses are superfluous and is a clear waste of legislative time and labour. Such a construction is opposed to well accepted principles of construction of statutes.

8. The presumption of the law is that every citizen can approach the ordinary civil Court for the adjudication of his rights. It is for those who plead that he is excluded to establish it by clear and cogent authority. Arbitration cannot be forced down the throats of unwilling litigants. The compulsion of the law if any must be clear and unambiguous. Courts will not lean for a construction ousting the jurisdiction of the civil Courts. In this case nothing explicit or for that matter even implicit has been brought to my notice to deny the plaintiff the protection of the civil Court.

9. In the light of my above findings it is unnecessary for me to examine the preliminary objection raised on behalf of the respondent, as regards the maintainability of the revision. But in passing I might say that the dispute relates to the jurisdiction of the trial Court to try the case though the lack of jurisdiction contended for is for a temporary period. To such a case S. 115 is clearly applicable. See Ramrichpal Singh v. Dayanand Sarup, (S) AIR 1955 All 309 (FB) (C).

10. In the result this revision petition fails and is hereby dismissed with costs. Revision dismissed. AIR 1958 MYSORE 150 (VOL. 45, C. 41) "In re Govinda Reddy" MYSORE HIGH COURT Coram : 2 H. HOMBE GOWDA AND S. S. MALIMATH, JJ. ( Division Bench ) In re Govinda Reddy and others, Accused 1 and 3, Appellants. Criminal Appeals Nos. 133 and 136 of 1956, with Criminal Ref. Case No. 8 of 1956, D/- 20 -9 -1957, against judgment of Principal S. J. Bangalore, D/- 7 -11 -1956. (A) Criminal P.C. (5 of 1898), S.340 - PREVENTIVE DETENTION - CRIMINAL PROCEDURE - Duty of court. Constitution of India, Art.22. There is no statutory or constitutional requirement to provide legal assistance to the accused persons. An accused person has no right to demand the court to supply him with a lawyer. It is his duty to ask for a lawyer if he so desires to engage one. The choice of the lawyer is always the look out of an accused person. This right of an accused person has been guaranteed by Art. 22(1) of the Constitution of India. Section 340 of the Code of Criminal Procedure also enables him to engage a lawyer of his own choice. But what all the Court under S. 340 of the Code of Criminal Procedure is bound to do is to give the necessary opportunity to an accused person to engage a legal adviser to conduct his defence if he so desires. The Circular orders issued under the authority of the High Court in Mysore State lay down that in cases in which an accused person is charged and tried under S. 302 of the Penal Code a counsel should be appointed to defend him if he states that he has no means to engage one. Where the accused persons are not being tried for an offence of criminal conspiracy under S. 120-B I. P. C. and what all has been alleged by the prosecution is that all the three accused persons had a common intention to commit burglary and, if need be, commit murders to facilitate the commission of burglary and had consultations with each other and in pursuance of the plan had trespassed into the premises of one Belur Srinivasa Iyengar on the night of 5th June, 1956 and committed murders and robbery, it cannot reasonably be urged that the interests of the accused persons were conflicting and it cannot be said that the case of the accused had been prejudiced on account of the fact that the same Advocate was appearing for all the accused persons. AIR 1951 SC 441, Foll. (Para 6) Anno: AIR Com. Cr, P. C. S. 340, N. Const, of India, Art. 22, N. 3. (B) Constitution of India, Art.14 - Criminal P.C. (5 of 1898), S.269(4) - EQUALITY - CONSTITUTIONALITY OF AN ACT - Validity. Criminal P.C. (5 of 1898), S.269. Article 14 of the Constitution of India not only guarantees equal protection as regards substantive laws but procedural laws also come within its ambit. The classification based on the general procedure prescribed for the trial of offences even though a particular group or category of persons are singled out for special treatment for the purpose of speedy trial does not offend Art. 14 of the Constitution of India and is not in any manner violative of equality of protection of law provided by the said Article. By adding sub-s. (4) to S. 269 of the Code of Criminal Procedure the law of procedure is made applicable uniformly to all persons whose trial is likely to last for more than two weeks or whose case would involve consideration of evidence of a highly technical nature. It cannot, therefore, reasonably be urged that the speedier trial of a particular class of cases cannot be the basis for classification. It cannot also be said that the discretionary power that is vested in the High Court is necessarily a discriminatory power. It cannot reasonably be urged that sub-s. (4) of S. 269 Cr. P. C. does not indicate the policy or the standard according to which the High Court has to exercise its discretion before passing an order empowering the Sessions Judge himself to try the accused without a Jury. It is not an unguided discretion. It cannot also be said there is no substantial distinction between cases which are likely to last for over two weeks and others which are likely to be over in a few days. Accused whose cases are likely to last beyond two weeks can be taken to constitute a class. Such a classification cannot be declared to be void on the ground that it has no relation to the object to be attained and is not substantial. The right to be tried with the aid of a jury is not a fundamental right. It is a right that is created by a Statute. The Statute that creates such a right can impose restrictions or conditions relating to the exercise of such a right. The Statute can also take away such a right and as a matter of fact S. 269(1) confers such a right on the State Government. In such cases it is not open to a person to contend that his fundamental right is infringed and that he has been denied equality before the law. Case law discussed. (Paras 8, 9) Anno : AIR Com. Const, of India, Art. 14, N. 25, 42; Cr. P. C. S. 269, N. 2. (C) Criminal P.C. (5 of 1898), S.286 - EVIDENCE - Duty of Prosecution. There is no rule that every witness ought to be called by the prosecution whether he knows anything about the case or not even if the prosecution knows that the witness is not likely to give any useful information either to help the prosecution or the accused. AIR 1932 Bom 279, Rel. on. (Para 10) Anno : AIR Com. Cr. P. C. S. 286, N. 13. Evidence Act (1 of 1872), S.3. A conviction can safely be based on circumstantial evidence provided the several circumstances relied upon by the prosecution are established beyond doubt that the incriminating facts are such as to be incompatible with the innocence of the accused and incapable of explanation on any reasonable hypothesis other than that of the accuseds guilt. Case law discussed. (Para 11) Anno : AIR Com. Cr. P. C. S. 367, N. 6; C. J. I. Evi. Act, S. 3, N. 33. Evidence Act (1 of 1872), S.3. Penal Code (45 of 1860), S.34, S.120B. In cases where persons act in concert by virtue of a common intention and of a criminal conspiracy their activities cannot normally in the very nature of things be brought out in evidence by direct evidence because they are done in privacy. It is only from the members of the family or from the persons who are intimately connected with those persons or from their associates that evidence of conspiracy can be gathered. (Para 15) Anno : AIR Com. Cr. P. C. S. 367, N. 6; C. J. I. Evi. Act, S. 3, N. 30; AIR Man. Penal Code. S. 34, N. 2, S. 120-B, N. 4. (F) Criminal P.C. (5 of 1898), S.540, S.289 - SUMMONS - WITNESS - Calling prosecution witness as defence witnesses only for cross-examination. After the application under S. 540 for resummoning the prosecution witnesses for the purpose of cross-examination was rejected, the advocate for the accused made an application for summoning the witnesses defence witnesses not for the purpose of examining them as defence witnesses but only for the purpose of cross-examining them. Held that he could not do so. (Para 17) Anno : AIR Com. Cr. P. C. S. 540, N. 12, S. 289, N. 9. (G) Evidence Act (1 of 1872), S.9 - IDENTIFICATION PARADE - Identification by general impression of common things. Small and even nice points of difference distinguishing one thing from others of the same kind may merely, by the frequent sight of them, and without any special attention to them make an impression on the mind. They are component parts of the thing and go to make the whole of which the mind receives an impression. The impression about the general appearance of the thing is exceedingly common; a workman has it of his tools and most people have it of their dress, jewellery and other things they are frequently seeing, handling or using. Undoubtedly animals and things may be identified by those familiar with them. Observation teaches that such identification may be safely relied upon. But at the same time a witness would not be able to formulate his reasons for the identification since it is based upon general untranslatable impressions of the mind. It would be fatuous to discredit such identification on the ground that reasons are not being formulated for them. AIR 1954 Mad 433, Rel. on. (Para 19) Anno : C. J. I. Evi. Act, S. 9, N. 4. (H) Constitution of India, Art.20(3) - SELF-INCRIMINATION - EXAMINATION OF ACCUSED - S.342, Criminal P.C. - Validity. Criminal P.C. (5 of 1898), S.342. The provisions of S. 342 of the Code of Criminal Procedure are not ultra vires of the Constitution of India and do not in any way infringe the guarantee of Art. 20 (3) of the Constitution of India. (S) AIR 1956 All 385, Rel. on. (Para 22) Anno : AIR Com. Const, of India, Art. 20, N. 5; Cr. P. C. S. 342, N. 2.

(I) Constitution of India, Art.20(3) , S.27 - SELF-INCRIMINATION - EVIDENCE - CONSTITUTIONALITY OF AN ACT - Evidence Act Validity. Evidence Act (1 of 1872), S.27. The information furnished by an accused person after his arrest to the Investigating Officer which leads to the discovery of articles under S. 27 of the Evidence Act is admissible in evidence and does not in any way offend Article 20(3) of the Constitution of India. Section 27 of the Evidence Act is not repugnant to Art. 20(3) of the Constitution of India and does not stand abrogated by Art. 13 of the Constitution of India. Case law discussed. (Para 22) Anno : AIR Com. Const, of India, Art. 20, N. 5; C. J. I. Evi. Act, S. 27, N. 1. Evidence Act (1 of 1872), S.114. The articles of jewellery belonging to the inmates of the house of one Belur Srinivasa Iyengar, which were cither on the persons of the deceased or had been kept in the several boxes in his Ranga Vilas on 5th June, 1956 were found in the possession of accused Krishna on 9th June, 1956 and were recovered on the information furnished by him; clothes belonging to him had become blood-stained and had been bundled and secreted in the hedge in front of the house in which Krishna was living with P. W. Jayamma; a knife belonging to Krishna was traced on the information furnished by him in a well behind his house and it had mammalian blood on it, Krishna had converted some gold jewels into an ingot and sold it for cash; he had made some purchases on 6th June, 1956, and 8th June, 1956 and he had in his possession large sums of money. None of these incriminating things had been satisfactorily explained by him. Held that in the absence of any explanation, the conclusion that could reasonably be reached was that accused Krishna was one of those that broke into the house of Belur Srinivasa Iyengar on the night of 5/6th June, 1956 and committed not only the theft of the jewels and cash in the possession of the members of the family but also murdered the several inmates of the house. (Para 27) Anno : AIR Com. Cr. P. C. S. 367, N 6; C. J. I. Evidence Act, S. 114, N. 5. (K) Evidence Act (1 of 1872), S.45 - EVIDENCE - Expert. Held that though the witness did not possess any technical qualification inasmuch as he had neither obtained a degree nor a diploma in photography, his experience for over 25 years in photography was sufficient enough to call him as an expert. (Para 31) Anno : C. J. I. Evi. Act, S. 45, N. 2.

(L) Evidence Act (1 of 1872), S.45 - EVIDENCE - Finger prints Comparison. The science of comparison of finger prints has developed to a stage of exactitude. It is quite possible to compare the impressions taken from finger prints of individuals with the disputed impressions, provided they are sufficiently clear and enlarged photographs are available. The identification of finger impressions with the aid of a good magnifying glass is not difficult particularly when the photographs of latent and patent impressions are pasted side by side. (Para 31) Anno : C. J. I. Evi. Act, S. 45, N. 14. (M) Constitution of India, Art.20(3) - SELF-INCRIMINATION - Taking thumb impression of accused. The thumb impressions taken by the police during the course of the investigation can be produced in court as evidence against the accused and the same does not amount to testimonial compulsion. Even if it is assumed that the Sub-Inspector of Police and the Daffedar compelled the accused to give their thumb impressions or forcibly took their impressions on the sheets of paper during the course of the investigation, it is not hit by Art. 20 (3) of the Constitution of India since it does not amount to testimonial compulsion. Case law discussed. (Para 35) Anno : AIR Com. Const, of India, Art. 20, N. 5. (N) Evidence Act (1 of 1872), S.133 - ACCOMPLICE - EVIDENCE - POLICE OFFICERS - Evidence of Police Officer. It cannot be said that the evidence of police can never be accepted without corroboration. (S) AIR 1956 SC 217, Foll. (Paras 36, 37) Anno : C. J. I. Evi. Act, S. 133, N. 1. (O) Penal Code (45 of 1860), S.71 - ROBBERY - THEFT - Conviction for robbery and theft. Robbery is an aggravated form of theft. When the accused are convicted of an offence of robbery in respect of the articles removed from the house of a person they cannot also be convicted of an offence punishable under S. 380 of the Penal Code for having committed theft of them. (Para 40) Anno: AIR Man. Penal Code, S. 71, N. 1. (P) Penal Code (45 of 1860), S.302 - MURDER - Sentence. The question of sentence has to be determined not with reference to the volume or character of the evidence adduced by the prosecution in support of the prosecution case but with reference to the fact whether there are any extenuating circumstances which can be said to mitigate the enormity of the crime. (S) AIR 1957 SC 614 Foll. (Para 41) Anno : AIR Man. Penal Code, S. 302, N. 2. CASES REFERRED : Paras (A) AIR 1951 SC 441 (V 38) : 1951 SCR 729 : 52 Cri LJ 1491 6 (B) AIR 1952 SC 75 (V 39) : 4:1952CriLJ510">1952 SCR 284: 1952 Cri LJ 510 8 (C) AIR 1952 SC 123 (V 39) : 5:1952CriLJ805">1952 SCR 435: 1952 Cri LJ 805 8, 9 (D) (S) AIR 1955 SC 13 (V 42) : 1955 SCR 737 8 (E) (S) AIR 1957 SC 503 (V 44) : 1957 Cri LJ 605 8 (F) AIR 1951 SC 41 (V 38) : 1950 SCR 869 8 (G) AIR 1951 SC 318 (V 38): 1951 SCR 682 : 52 Cri LJ 1361 8, 9 (H) (S) AIR 1955 SC 191 (V 42) : 1955-1 SCR 1045 : 1955 Cri LJ 374 8, 9

(I) AIR 1952 SC 235 (V 39) : 0:1952CriLJ1167">1952 SCR 710: 1952 Cri LJ 1167 8 (J)AIR 1953 SC 156 (V 40) : 9:1953CriLJ862">1953 SCR 589: 1953 Cri LJ 862 8 (K) AIR 1953 SC 287 (V 40) : 1:1953CriLJ1158">1953 SCR 661: 1953 Cri LJ 1158 8

(L) AIR 1953 SC 404 (V 40) : 0:1953CriLJ1621">1954 SCR 30: 1953 Cri LJ 1621 9 (M) (S) AIR 1956 SC 44 (V 43) : 1956 Cri LJ 140 9 (N) AIR 1932 Bom 279 (V 19) : 33 Cri LJ 613 10 (O) AIR 1915 Cal 545 (V 2) : 2:16CriLJ170">ILR 42 Cal 422: 16 Cri LJ 170 10 (P) AIR 1952 SC 343 (V 39) : 1953 Cri LJ 129 11 (Q) AIR 1954 SC 660 (V 41) : 1954 Cri LJ 1679 11 (R) AIR 1954 SC 720 (V 41) : 1954 Cri LJ 1802 11 (S) (30) 8 Mys LJ 379 11 (T) (44) 49 Mys HCR 444 11 (U) (S) AIR 1955 Mys 119 (V 42): 2:1955CriLJ1274">ILR (1955) Mys 372: 1955 Cri LJ 1274 11 (V and W) AIR 1954 Mad 433 (V 41) : 1954 Cri LJ 583 19

(X) (S) AIR 1956 All 385 (V 43) : 1956 Cri LJ 841 22 (Y) (S) AIR 1956 All 341 (V 43) : 1956 Cri LJ 664 22 (Z) AIR 1952 Him P 81 (V 39) : 1952 Cri LJ 1720 22 (Z-1) (S) AIR 1957 SC 211 (V 44) : 1957 Cri LJ 328 22 (Z-2) AIR 1947 PC 67 (V 34) : 48 Cri LJ 533 22 (Z-3) (S)AIR 1957 SC 216 (V 44) : 1957 Cri LJ 481 22 (Z-4) AIR 1955 Raj 147 (V 42) : 1955 Cri LJ 1285 22 (Z-5) AIR 1954 SC 279 (V 41) : 1954 Cri LJ 743 22 (Z-6) AIR 1954 SC 300 (V 41) : 1954 Cri LJ 865 32, 34 (Z-7) AIR 1957 Mad 47 (V 44) : 1957 Cri LJ 73 33, 34 (Z-8) AIR 1955 Mad 685 (V 42) : 1955 Cri LJ 1602 33 (Z-9) (S) AIR 1957 MP 106 (V 44) : 1957 Cri LJ 855 33 (Z-10) AIR 1956 Mad 632 (V 43) : 1955-2 Mad LJ 468 : 1956 Cri LJ 1333 33, 34 (Z-11) AIR 1957 Mad 546 (V 44) : 1957 Cri LJ 976 34 (Z-12) AIR 1924 Rang 115 (V 11) : 26 Cri LJ 108 (FB) 34 (Z-13-14) (S) AIR 1956 SC 217 (V 43) : 1956 Cri LJ 421 37 (Z-15) (S) AIR 1957 SC 614 (V 44) : 1957 Cri LJ 1000 41 Maheshchander Guru, K. Bhashyam and C. B. Motaiya, for Appellants; G. Channappa, Asst. Advocate General, for The State. Judgement H. HOMBE GOWDA, J. :- These two appeals are against the judgment dated the 7th November, 1956 of the Principal Sessions Judge, Bangalore Division, in Bangalore Sessions Case No. 29 of 1956 convicting and sentencing all the three appellants Govinda Reddy, Krishna and Muniswamy (Accused Nos. 3, 1 and 2 respectively in the trial Court) of the following offences : (1) under S. 302 read with S. 34 of the Indian Penal Code on six counts and sentencing each of the appellants to the extreme penalty of law on each of those counts; (2) under S. 307 read with S. 34 of the Indian Penal Code and sentencing each of the appellants to undergo rigorous imprisonment for ten years; (3) under S. 457 read with S. 34 of the Indian Penal Code and sentencing each of the appellants to undergo rigorous imprisonment for a period of ten years; (4) under S. 380 read with S. 34 of the Indian Penal Code and sentencing them to rigorous imprisonment for a period of seven years and (5) under S. 392 read with S. 34 of the Indian Penal Code and under S. 397 of the Indian Penal Code on six counts and sentencing each of them to undergo rigorous imprisonment for a period of ten years on each of those six counts, on the allegation that these appellants broke into "Ranga Vilas", the residence of Sri Belur Srinivasa Iyengar, on the night of 5th June, 1956 and committed robbery after committing murders of Ramalingam, Ven-gadamma, Singamma, Lava, Kusha and Belur Srinivasa Iyengar and causing grievous injuries to Ran-galakshmi, daughter of Belur Srinivasa Iyengar with the intention of causing her death. All the sentences of imprisonment awarded to the appellants have been directed to run concurrently. The learned Principal Sessions Judge has submitted the proceedings of the case for confirmation of the death sentences awarded to the appellants to this Court under S. 374 of the Code of Criminal Procedure.

2. The material facts are these : Belur Srinivasa Iyengar, a rich Advocate of this Court was residing with the members of his family in a building known as "Ranga Vilas" situated in the heart of Gandhi Nagar Extension in Bangalore City. He had given up his practice on account of his old age and was leading a retired life. He was getting an income of Rs. 1,500 per mensem as rent from the shops and other buildings situated in Gandhi Nagar. The members of the family, particularly the womenfolk had got a large number of articles of jewellery prepared for their personal use on occasions. Many of the valuable jewels had been deposited in the two iron safes and other receptacles kept in the store-room or the treasury room of the house. Belur Srinivasa Iyengar, his second wife Vengadamma, his daughters Rangalakshmi, Ratna and Prasanna, his sons Lava and Kusha and his mother-in-law Singamma were all the persons of the family living in "Ranga Vilas in June 1956. Belur Srinivasa Iyengar had a son by name Muthanna by his deceased first wife. He was insane and had therefore been kept in a room constructed for him in the compound and was not residing in the bungalow with the other members of the family. A servant by name Ramalingam had been engaged by Belur Srinivasa Iyengar and he was sleeping in the verandah of the house during nights to keep watch. On the night of 5th June, 1956 all the members of the family took their food as usual and retired to bed at about 10 P.M. Belur Srinivasa Iyengar had sustained a fracture due to a fall some days prior to 5th June, 1956 and was confined to bed and therefore he was served with, food on his bed on the night of 5th June, 1956. He was sleeping in a room just adjoining the hall by the side of the Verandah on a cot. Vengadamma, her sons Lava and Kusha, her daughter Rangalakshmi and her mother Singamma were sleeping in a room adjoining the bed room of Belur Srinivasa Iyengar on three cots which had been kept close to each other. The door between the hall and the bed room of Vengadamma had been kept open. Rathna and Prasanna, other two daughters of Belur Srinivasa Iyengar were sleeping in a room in the Angala near the kitchen block of the house. Ratna was lying on a cot and Prasanna was lying on a bed spread over on the floor in that room. The doors between the hind portion of the house and the hall and the verandah had been kept open. Ramalingam, the watchman, was sleeping on the western side of the verandah of the house. Vengadamma had invited Yellamma, wife of Ramalingam, to attend to some work early on the next morning in her house. Accordingly Yellamma went to the house of Belur Srinivasa Iyengar early on the morning of 6th June, 1956 with Ammakannamma. They reached "Ranga Vilas" at about 6 A.M. on 6th June, 1956 and found that the front gate of the house had been closed but the other gate was a bit ajar. They entered the compound through that gate. Yellamma went into the verandah of the house and found that the main door of the house was open and none of the inmates of the house were moving about. She then proceeded to the place where Ramalingam, her husband, used to sleep to find out what he was doing. She found that her husband Ramalingam was lying dead in a pool of blood with bleeding injuries on his face, neck and head. She cried out for help. Ammakannamma, who was collecting some fruits in the garden ran to the place on hearing the cries of her sister-in-law Yellamma. She found that her brother Ramalingam had been murdered and was lying dead. Both the ladies then began to weep. Ratna, who was sleeping in the room adjoining the Angala near the kitchen portion of the house heard the wails and cries of the women in the verandah of the house and woke up and came out to see what the matter was. On coming out of the room she found that the front door of the house had been kept open and one of the bars of the window on the left side of the verandah had been wrenched and had come out of the socket. She rushed to the verandah and found Ramalingam lying dead in a pool of blood and that Yellamma and her sister-in-law Ammakanmamma were weeping. Having observed this ghastly scene she rushed to the bed-room of her mother Vengadamma to inform her about the incident. She found that her mother Vengadamma, her grandmother Singamma and her twin brothers Lava and Kusha were lying dead in their beds in pools of blood and with a number of injuries on their heads and necks. She found Rangalakshmi, her sister, sitting leaning against the wall close to the entrance to the store-room. She had a number of bleeding injuries on her person and was unconscious. Ratna then rushed to the bed-room of her father Belur Srinivasa Iyengar to inform him about the murders of the several persons of the house and found that Belur Srinivasa Iyengar was also lying in his bed on a pool of blood with a number of injuries on his head, face and neck. He was not dead but was unconscious. Ratna then ran to the house of one Nagaraj, who was residing in one of the outhouses belonging to Belur Srinivasa Iyengar and informed him that her father, mother, grand-mother and brothers had all been murdered and requested him to come to the house. Srinivasa and Radhakrishna, two other tenants of Belur Srinivasa Iyengar who heard the news while Ratna was narrating it to Nagaraj followed them from behind. Nagaraj went into "Ranga Vilas" through the front varendah and found Ramalingam lying dead on a mat with a number of injuries on his person. He then went into the bed-room of Vengadamma and found Vengadamma her mother Singamma and her two sons Lava and Kusha were lying in a pool of blood on the three cots kept close to each other. Rangalakshmi was sitting leaning against the wall just in front of the doorway which leads to the store-room. Nagaraj tried to call out Rangalakshmi but there was no response. Ratna then led Nagaraj to the bed-room of her father Belur Srinivasa Iyengar and showed him that her father was lying in an unconscious state and had a number of bleeding injuries on his person. When Nagaraj and his friends Shrinivasa and Radhakrishna were in the bed-room of Belur Srinivasa Iyengar observing his condition, Ratna went into the store-room and found that the ironsafes, almirah and other trunks in which they had kept their valuable jewellery and cash had all been ransacked and the boxes were lying with clothings and silver vessels scattered all round them in the room. Ratna then cried out to Nagaraj and others that the house had been burgled and all the valuable jewellery had been taken away by some persons. Ratna began to cry standing in front of the store-room. Prasanna, the other sister of Ratna who was sleeping in the room adjoining the Angala heard the cries of her sister and woke up and came to the place to ascertain why she was weeping. As she entered the bed-room of her mother, she found all the four persons that were sleeping on the beds lying dead in pools of blood and Rangalakshmi sitting leaning against the wall in front of the door leading to the store-room. Prasanna then rushed to the bed-room of her father and found that he was lying in an unconscious state with bleeding injuries. Nagaraj requested his friends Srinivasa and Radhakrishna to stay on in the house with the two girls and proceeded to the Taj Mahal Hotel, which is nearby and sent telephone message to the Control Station of the Central Police about the incident. He informed the Sub-Inspector of Police, Srikanta Reddy, who was in charge of the Control Station that 4 or 5 persons had been murdered in "Ranga Vilas" the residence of Belur Srinivasa Iyengar and requested the Police Officer to come to the place at once. He also telephoned for the Ambulance Van to remove Belur Srinivasa Iyengar and Rangalakshmi who wore lying in an unconscious state. Sub-Inspector Srikanta Reddy, who received the telephone message from Nagaraj at about 6-30 A.M. conveyed the information to Sri Sivacharan Singh, Jurisdictional Inspector and proceeded to the residence of Belur Srinivasa Iyengar with some reserve police constables in a police van. He posted the police constables round about the compound with a direction that they should not allow any one to enter into the premises. He entered into the bungalow and found Nagaraj, Srinivasa and Radhakrishna standing in the verandah and Ratna and Prasanna standing weeping in the hall of the house. As he entered the verandah he found Yellamma and Ammakannamma crying on the western verandah near the dead body of P.amalingam. Nagaraj and his friends led Srikanta Reddy into the house through trie hall and showed him the condition of the house. Srikanta Reddy observed a crow-bar (M. O. 4) leaning against the wall in the bed-room of Vengadamma and there were blood stains on it. He also found a crow-bar (M. O. 1), an iron rod (M.O. 2) and a bread knife (M.O. 5) on the bed of Vengadamma. The crow-bars and the iron rod were bloodstained. Srikanta Reddy observed that the electric light in the store-room or the treasury room was burning and that the doors of the iron safes and the almirahs were all open. Several empty jewellery boxes and clothes pulled out from the boxes were all found scattered on the floor. Sivacharan Singh, the Inspector of Police C Division, who received the message from Srikanta Reddy came to "Ranga Vilas" at about 7 A.M. in a van along with some police officers, who were with him on their way to attend a parade. By then the Ambulance Van also came to the place. Sivacharan Singh removed Belur Srinivasa Iyengar and Rangalakshmi who were injured and who were in an unconscious condition in the Ambulance Van to the Victoria Hospital for proper treatment. He then recorded the statement of Nagaraj and registered a case in Crime No. 93 of 1956 of Ooparpet Police Station and submitted the first information report to the authorities. He had by then conveyed the information through telephone to Sri Revanna, District Superintendent of Police, Bangalore North. The District Superintendent of Police and the Deputy Inspector-General of Police came to the place some time later. The Inspector of Police delivered a copy of the first information report to Sri Revanna, District Superintendent of Police. The Inspector of Police collected the panchayetdars for the purpose of conducting the preliminary investigation over the dead bodies under S. 174 of the Code of Criminal Procedure. He summoned the Finger Print Experts and the Photographer of the Police Department to the place to examine the several articles and the places to find out whether there were any foot or finger impressions of any one of them which were identifiable and to take photographs if necessary. Accordingly photographer Thimmiah and Finger Print Expert Prema attached to the Scientific Laboratory of the Police Department came to the place in a Van along with some others. Thimmiah, the photographer, took some photographs. The Finger print Expert examined several impressions on several articles that were lying scattered in the rooms including the impressions found on the cots, crowbars, and on the switch in the store-room. Many of those impressions were either smudged or overlapping or partial and were not capable of identification. He directed the photographer to take some photographs of some of those impressions to examine them in the laboratory whether they were capable of identification. On examining the several silver articles that were lying scattered in the storeroom, the Expert found that there were some marks of fingers on 19 of those articles. He showed them to the panchayetdars and with the permission of the Inspector of Police Sivacharan Singh, he took possession of those articles for the purpose of examining them scientifically in the laboratory. The photographer and the Finger Print Expert left the place at about 10 A.M. after examining all the necessary places and materials and taking necessary photographs with the 19 silver articles. Then Sivacharan Singh, the Inspector of Police, directed Ratna to examine the articles of jewellary and to furnish him a list of the articles that had been stolen from the house. Ratna went into the store-room and after examining the several receptacles gave out a list of articles which according to her had been stolen from the house. The Inspector of Police got it reduced into writing and obtained the signature of Ratna to it. He despatched it at once to the Magistrate with a request to file the same along with the first information report already submitted by him. The Police Officers and other panchayetdars observed the dog lying in a quadrangle in a dazed condition and suspected that it had been poisoned and therefore, summoned the Veterinary Doctor to the place to examine the dog. The Veterinary Doctor who came to the place found the dog had been doped and for the purpose of examining took the same to the Hospital. The Inspector of Police Sivacharan Singh commenced proceedings under S. 174 of the Code of Criminal Procedure over the dead bodies of the several persons that were lying dead Ramalingam, Vengadamma, Singamma, Lava and Kusha in the presence of the panchayetdars. The panchayetdars observed the condition of the bar which had been wrenched in the window adjoining the verandah through which the culprits had obviously gained entrance and to ascertain whether the space in between the bars in that condition admitted entry of a person, directed the Daffedar Dyaviah to pass through the opening. Daf-fedar Dyaviah easily passed through it. The panchayetdars and the Inspector of Police found a hammer kept on the chair in the hall and half portions of cinema tickets of "Himalaya Talkies" lying by the side of the chair. The hammer, crow-bar and the half portions of the cinema tickets and the bloodstained clothes were all seized during the course of the investigation in the presence of the panchayetdars. The injuries on the several dead persons, the position and the condition of the dead bodies were all noted in the several inquest reports prepared in the presence of the panchayetdars. The Inspector of Police also seized the keys of the iron safe and the wooden almirah which were in the respective key holes, 24 empty jewellery boxes and other articles that were lying scattered and which were necessary for the purpose of investigation. The bodies of Vengadamma, Lava, Kusha, Singamma and Ramalingam were sent to the Victoria Hospital with the police officers for the purpose of post-mortem examination. Dr. Narasimha Setty conducted the postmortem examination over the dead bodies of Lava, Kusha and Ramalingam. Dr. Devanniah conducted the post-mortem examination over the dead bodies of Singamma and Vengadamma. At the request of the Inspector of Police the two Doctors cut the finger tips of the deceased persons and sent them to the Police for the purpose of obtaining their impressions for the purpose of comparison with the latent impressions, if, any, that may be deciphered by the Experts. The Inspector of Police completed the preliminary investigation. Rangalakshmi who was taken to the Victoria Hospital was examined by Dr. Srinivas and was admitted as an in-patient in the Victoria Hospital.

3. Belur Srinivasa Iyengar was also admitted into the Victoria Hospital. In spite of the best medical aid given to him, Belur Srinivasa Iyengar died at about 6-30 P.M. on the same day in the Hospital. Sri Revanna, District Superintendent of Police, Bangalore North, who had jurisdiction over Bangalore City took up the further investigation of the case from the Inspector of Police Sivacharan Singh at about 4 A. M. on 7th June, 1956. The District Superintendent of Police directed Ranga Rao (P.I.) to conduct the preliminary investigation under S. 174 of the Code of Criminal Procedure over the dead body of Belur Srinivasa Iyengar in the Victoria Hospital. Sri Revanna, District Superintendent of Police, examined some witnesses on the 7th and 8th June, 1956. Rangalakshmi was unconscious and her condition was precarious. Till about the midnight of 8th June, 1956 the District Superintendent of Police was not able to get any clue about the culprits.

4. On the night of 8th June, 1956 Daffedar Vedagiri was on patrol duty in Seshadripuram. He was moving in a van in the Link Road. He observed a person moving in suspicious circumstances in that road. Therefore, he stopped the van and questioned him why he was moving about in that locality in that odd hour. He observed a bundle with the man and opened the same and found that there was a crow-bar and a steel rod which are generally used by thieves for house breaking. The Daffedar ascertained from the person that he was Channa of Chikkanayakanahalli, a previous convict and therefore put him into the Van and took him to the police station. Early on the morning of 9th June, 1956 the Inspector of Police of Seshadripuram Sri Basavarajiah came to the station. Daffedar Vedagiri produced Channa before him. Basavarajiah interrogated Channa and learnt from him that he had come to Bangalore about a fortnight before that date and had attempted along with one Krishna and Muniswamy of Ulsoor to commit burglary in the house of Belur Srinivasa Iyengar and had failed in the attempt. Basavarajiah telephoned to Sri Revanna, District Superintendent of Police, Bangalore North and conveyed to him this important clue furnished by Channa. Revanna proceeded to the Seshadripuram police Station at once. He went through the statement made by Channa which had been reduced into writing by the Inspector of Police. Channa offered to show the residence of Krishna in Ulsoor. Then the D.S.P. directed Basavarajiah to take Channa with him to Ulsoor and to arrest Krishna. Accordingly Basavarajiah proceeded to Ulsoor in the company of Channa. Channa pointed out the house of Krishna in Gurumurthi Lane just by the side of Ramakrishna Mutt Road in Ulsoor. Krishna was not in the house. Therefore Basavarajiah was waiting along with Channa and his men in mufti at some distance for the arrival of Krishna. Sometime later Krishna came into Gurumurthi Lane which leads off from Ramakrishna Mutt Road and alighted from his motor cycle and was proceeding towards the house bearing No. 21 Ramakrishna Mutt Road. Ulsoor. On being pointed out by Channa, the Inspector of Police Basavarajiah proceeded to the place and arrested Krishna and took him to the Ulsoor Police Station and produced him before the Inspector of Police in charge of that Station. The person of A-1 Krishna was searched in the presence of the panchayetdars. A sum of Rs. 1,065, a bunch of keys and two cash bills were found on his person and they were seized under a mahazar in the presence of the panchayetdars. Then Basavarajaiah brought and produced Krishna before Sri Revanna. The District Superintendent of police examined Krishna and he offered to show the trunks in his house in which he had kept the articles of jewellery and also the bloodstained clothes and took the police officers to the house bearing No. 21, Ramakrishna Mutt Road, Ulsoor. On reaching the house he took the bunch of keys that had been seized by the Police Officer and opened the trunks and produced a large number of jewels from out of tile two trunks. He also took out and produced a bundle of clothes that had been kept in the hedge of the compound of the house which were bloodstained. These articles were seized under a mahazar in the presence of the panchayetdars by the Investigating Officer. Ratna, Prasanna, daughters of Belur Srinivasa Iyengar and Dr. Srirangamma were sent for. They identified the several articles of jewellery as belonging to Belur Srinivasa Iyengar and as those that were in the house of Belur Srinivasa Iyengar on the night of 5th June, 1956. There were dhobi marks on two of the bloodstained clothes. One Motappa, a dhoby was summoned to the place and he identified the bloodstained clothes which bore the mark (Ui) as those that he had washed for A1 Krishna. Accused Muniswamy was arrested on the very same day near a toddy shop in the City of Bangalore and his person was searched. Some articles of jewellery and some cash were recovered from his person. These articles of jewellery were also identified by the daughters of Belur Srinivasa Iyengar, Ratna and Prasanna and Dr. Srirangamma as belonging to them. The house of A2 Muniswamy in Chinnayana-palya was searched on the same day and A2 Muniswamy produced a paper packet in which he had kept some articles of jewellery from out of the oven in the house which had been locked which he opened with his keys. These articles of jewellery were identified as belonging to Belur Srinivasa Iyengar. A3 Govinda Reddy was arrested by the Inspector of Police on the evening of 10th June, 1956, near the Taxi stand in front of the City Market and his person was searched. Three items of jewellery, viz., a pair of pearl bangles, one pair of gold bangles set with red stones and a necklace with red stones embedded in it, were recovered from his person. These articles of jewellery were also identified by the two daughters and by Dr. Srirangamma. From the morning of 8th June, 1956, events moved fast. The Investigating Officer Sri Revanna examined a number of witnesses and was able to collect sufficient materials about the complicity of the accused. The Finger Print Expert who had taken 19 silver articles from the house of Belur Srinivasa Iyengar to the laboratory for the purpose of a detailed examination on 6th June 1956, found on close examination that there were some identifiable marks on three of the silver articles. He developed those impressions with powdering method and instructed Photographer Thimmiah to take photographs of those impressions, develop and enlarge them for the purpose of comparison. Thimmaiah did so. The photographs (enlarged) of the impressions found on the three articles along with the other photographs of the smudged and overlapping impressions that had been taken by the photographer which were developed by him in the laboratory, were handed over to Sri Mohamed Yakoob, the A.S.P. in charge of the Scientific Laboratory for purposes of comparison. The impressions taken from the Finger tips cut from the dead bodies (of Vengadamma, Singamma, Lava, Kusha, Ramalingam and Belur Srinivasa Iyengar) by the Doctors who conducted the post mortem examination which had been sent to the Police were compared with the identifiable impressions found on the three silver wares and they did not tally with any of those impressions. Sri Mohamed Yakoob intimated this fact to the Investigating Officer Sri Revanna and requested him that he may send impressions of suspects, if any, for purposes of comparison. The Investigating Officer instructed his subordinates to take the impressions of the fingers of all the three accused persons who were kept in different lock-ups. Accordingly, the impressions of all the fingers of all the three accused were taken by P.W. 111 Nanjundiah and P. W. 112 Krishnamurthy on form No. 94 and these impressions were sent to the Finger Print Expert for purposes of comparison with the latent impressions that had been developed. The Finger Print Expert compared the photographs of the latent impressions taken from the silver wares with the finger impressions of the three accused persons and found that the identity of all the three accused persons as those that had handled them was established. The expert sent a certificate to this effect along with the enlarged photographs of the latent and patent impressions (identical) pasted on a sheet of paper to the Investigating Officer. The Investigating Officer could not examine Rangalakshmi, even after she regained her consciousness, as the Doctors who were treating her expressed the opinion that she was not competent to make a statement. After completing the investigation, the District Superintendent of Police, Bangalore North, placed a charge-sheet against the appellants for offences under Ss. 457, 459, 460, 380, 392, 394, 397, 302 and 307 and S. 34 of the Indian Penal Code before the City Magistrate, Bangalore, on the 7th day of July, 1956. Since there were no eye witnesses for the incident, the learned City Magistrate, Bangalore, perused the documents filed by the prosecution under S. 173 of the Code of Criminal Procedure and framed charges under S. 302, read with S. 34 of the Indian Penal Code, S. 307, read with S. 34 of the Indian Penal Code, S. 457, read with S. 34 of the Indian Penal Code, S. 380, read with S. 34 of the Indian Penal Code, S. 392, read with S. 34 I. P. C., S. 394 read with S. 34 I. P. C., S. 397, read with S. 34 of the Indian Penal Code and S. 460 of the Indian Penal Code against all the three accused and committed them to take their trial before the Sessions Judge, Bangalore. After perusing the records, the learned Sessions Judge found that the prosecution had cited as many as 160 witnesses and all the accused had taken time to file a list of defence witnesses. He was of the opinion that the trial was likely to last for about a month and therefore, applied to this Court under S. 269(4) of the Code of Criminal Procedure for permission to try the case himself without a jury. The reference was registered as Criminal Referred Case No. 2 of 1956 on the file of this Court and notices of the same were issued to the accused. Sri M. C. Guru, the learned Counsel for accused 1 and 2 did not oppose the application and A3 Govinda Reddy did not raise any objection. Hence this Court passed orders directing that the case shall be tried by the Sessions Judge himself without a jury. Accordingly, the learned Sessions Judge tried the case without a jury. All the appellants pleaded "not guilty" to the several charges that were read over and explained by the learned Sessions Judge and claimed to be tried. The prosecution examined 116 witnesses to establish the case against the appellants. Three witnesses were examined on behalf of A3 Govinda Reddy. A1 and A2 did not examine any defence witnesses. On a consideration of the entire evidence adduced in the case, the learned Sessions Judge came to the conclusion that the prosecution had established a clear case against the accused on all the charges framed against them and convicted and sentenced them as stated above. The learned Sessions Judge was of the opinion that since all the appellants had been convicted under S. 457 of the Indian Penal Code and also under S. 302 read with S. 34 of the Indian Penal Code no separate conviction or sentence for the offence under S. 460 of the Indian Penal Code was called for and therefore did not pass separate sentences. It is against these convictions and sentences passed against them that the present appeals have been filed by the accused. The learned Sessions Judge has also submitted the proceedings of the case for confirmation of the death sentences passed against the accused under S. 374 of the Code of Criminal Procedure.

5. That Ramalingam, Vengadamma, Lava, Kusha, Singamma and Rangalakshmi were hale and healthy on the night of 5-6-1956 and retired to bed is proved by the evidence of P. W. 79 Ratna and P. W. 80 Prasanna two daughters of Belur Srinivasa Iyengar, and by the evidence of Yellamma (P. W. 78). Belur Srinivasa Iyengar had sustained a fracture and was bedridden. He was otherwise hale and healthy and went to bed as usual on the night of 5-6-1956. That all the inmates of the house were hale and healthy and retired to bed after food, that Ramalingam, the male servant, slept in the verandah of the house on the western side while others slept in the two bed rooms adjoining each other is testified by P.W. 79 Ratna and P. W. 80 Prasanna, the two surviving daughters of Belur Srinivasa Iyengar, who were sleeping in another room of the same house on that night. Yellamma P.W. 78 and Ammakannamma have deposed that Ramalingam came to their house at about 9 P.M. on the night of 5th June, 1956 for food and left for his masters house, that is, to the house of Belur Srinivasa Iyengar as usual after taking his night meal. P.W. 78 Yellamma has further stated that Vengadamma, wife of Belur Srinivasa Iyengar, had directed her to come to her house for some work early in the next morning, that is, on 6th June, 1956 and therefore, she went to the house early at about 6 A.M. along with her sister-in-law Ammakannamma. She found the main door of the house open and a bit ajar. She proceeded to find out what her husband Ramalingam was doing and when she approached the verandah found him lying dead in his bed in a pool of blood with a number of injuries and raised a cry. P.W. 78 Yellamma, Amakannamma, P.W. 79, Ratna, P.W. 80 Prasanna, P.W. 25 Nagaraj have described how five ghastly murders had been committed in the house. The circumstances narrated by these witnesses show that the house had been burgled by some persons on the night and the culprits had ransacked the safes and other receptacles after murdering the inmates by delivering blows to their heads with crow-bars while they were asleep and carried away the loot. The several witnesses found Belur Srinivasa Iyengar was lying in an unconscious state with a number of profusely bleeding injuries on his bed and that Rangalakshmi was sitting leaning against the wall just by the side of the door of the storeroom adjoining the bed-room of Vengadamma in an unconscious condition and with a number of bleeding injuries on her person. They have also stated that a bar of the window in the verandah had been wrenched and blood stains were seen on it. It is in evidence and it is not disputed that Belur Srinivasa Iyengar, who was removed to the Victoria Hospital in an Ambulance Van and admitted as an inpatient for treatment died at about 6-30 P.M. on 6th June, 1956. P.W. 12 Dr. Nara-simha Setty and P.W. 13 Dr. Devanniah conducted the post mortem examinations over the dead bodies of these six persons and have issued certificates. Exhibit P-50, Exhibit P-51 and Exhibit P-52 are the post mortem certificates in respect of Kusha, Lava and Ramalingam respectively. Exhibits P-54 and P-56 are the post mortem certificates in respect of Singamma and Vengadamma and Exhibit P-58 is the post mortem certificate relating to Belur Srinivasa Iyengar. The two doctors, who conducted the post mortem examinations over the dead bodies, found a good number of lacerated and incised injuries on the upper portions of the bodies of the murdered persons and have expressed their opinion that the death in each case was due to shock as a result of profuse haemorrhage and the fractures of the bones on the skull. They have described the several injuries and the fractures that they observed in detail in the post mortem certificates and have also given evidence in Court. They have further stated that the injuries found on the bodies of the deceased persons might have been caused with M.Os. 1, 2, 3 and 4 M.Os. 1, 2, 4 and 5 were lying in the house and were all blood stained. The evidence of these Doctors has remained unchallenged. That these six persons, viz., Ramalingam, Vengadamma, Singamma, Lava, Kusha and Belur Srinivasa Iyengar who were alive and in normal health on the night of 5th June, 1956 had met an unnatural death at the hands of some other persons than themselves in the course of the night cannot be and as a matter of fact is not disputed. Rangalakshmi who had also received injuries and was removed to the Victoria Hospital for treatment in an unconscious state recovered later on. It is, therefore, clear from the evidence adduced by the prosecution that some persons had gained entrance to the premises of Belur Srinivasa Iyengar on the night of 5th June, 1956 after wrenching the bar of the window adjoining the bed-room of Belur Srinivasa Iyengar and with weapons like crowbars, iron-rods, hammer and knives and had caused the death of these persons by inflicting injuries with them. A faint attempt was, no doubt, made by Sri M. C. Guru in the course of his arguments to suggest that it is doubtful whether culprits had gained their entrance into the premises after wrenching the bar of the window. He based his arguments on the ground that there was some difference in the size of the gap in the window in the two photographs taken by P.W. 108 Thimmiah, who was called to the place on the morning of 6th June, 1956 to take photographs of the several places. In one of these photographs the window bar which is wrenched appears to have come out from the socket and in the other it looks as though it is sticking to it and therefore the learned Counsel suggested that it was unlikely that the gap created by the wrenching of the bar was sufficient enough to admit of any person in its original position and that it is possible the gap became big when Daffedar Dyaviah was made to pass through it by P.W. 114 Sivacharan Singh in the presence of the panchayetdars to find out whether it admitted entrance of a man. There is no substance in this argument. P.W. 79 Ratna, P.W. 78 Yellamma, P.W. 25 Nagaraj and others including the Inspector of Police who went to the place early in the morning have all stated that the bar of the window had been wrenched and the top portion of the bar had been removed from the socket and the gap created admitted of the entry of a man without any difficulty. The bar (Mi O. 39) is produced into Court. It is 3/4" in diameter and it is, in our opinion, not possible to bend the same in fixed condition while attempting to pass through it.

6. Before proceeding to consider the several circumstances relied upon by the prosecution and scrutinise the evidence adduced to establish those circumstances, we shall deal with two preliminary objections raised by the learned counsel for appellant Govinda Reddy (Cr. Ap. No. 133 of 1956). Sri Bashyam contended that the trial of accused by the learned Sessions Judge is irregular in that the learned Sessions Judge allowed during the trial the same counsel to represent all the three accused persons when it had been alleged that it was in pursuance of a plan or conspiracy that the accused had committed murders while committing robbery. It was urged that the learned Sessions Judge should have directed the third accused to engage a different counsel to defend him. It was contended that the procedure adopted by the learned Judge in allowing the same counsel to appear for all the accused is improper and illegal and prejudiced the third accused Govinda Reddy and therefore the convictions may be set aside and the case remanded for retrial. The second objection raised by Sri K. Bashyam is that the order passed by this Court in Criminal Referred Case No. 2 of 56 permitting the learned Sessions Judge to try the case himself without the aid of a jury was unjust, improper and unconstitutional as being discriminatory and therefore the trial is vitiated and should be set aside and retrial ordered. We may at once state that there is no substance in the first objection. The trial Judge had no voice in the appointment of the legal adviser by the third accused Govinda Reddy. The learned Judge was under no obligation to appoint one for him. There is no statutory or constitutional requirement to provide legal assistance to the accused persons. An accused person has no right to demand the court to supply him with a lawyer. It is his duty to ask for a lawyer if he so desires to engage one. The choice of the lawyer is always the look out of an accused person. This right of an accused person has been guaranteed by Art. 22(1) of the Constitution of India. Section 340 of the Code of Criminal Procedure also enables him to engage a lawyer of his own choice. But what all the Court under S. 340 of the Code of Criminal Procedure is bound to do is to give the necessary opportunity to an accused person to engage a legal adviser to conduct his defence if he so desires. The Circular Orders issued under the authority of the High Court in this State lay down that in cases in which an accused person is charged and tried under S. 302 of the Indian Penal Code a counsel should be appointed to defend him if he states that he has no means to engage one. But in the case on hand the facts make it abundantly clear that the third accused Govinda Reddy did not ask for any assistance or for the services of a standing counsel to defend him on the ground that he had no means to engage a counsel for him. On the other hand, it is clear from the records that Sri K. Bashyam had undertaken to appear and had filed a vakalatnama on behalf of third accused Govinda Reddy while the first and the second accused, viz., Krishna and Muniswamy were being defended by Sri M. C. Guru after the case was committed to the Sessions Court by the City Magistrate, Bangalore. Sri T. Laxmmarayana Rao on behalf of Sri K. Bashyam filed an application (I.A. No. I) before the Sessions Judge under S. 344 of the Code of Criminal Procedure praying that the trial of the case may be adjourned to about a month from 3rd September, 1956. The learned Sessions Judge heard the arguments of the parties and passed orders on 22nd. August, 1956 and posted the case for trial to 10th September, 1956. The trial actually commenced on 10th September, 1956. On that day Sri M. C. Guru filed a memo of appearance for the first accused Krishna and the second accused Muniswamy. Sri T. L. N. who had filed a memo of appearance for the third accused Govinda Reddy on 21st August, 1956 submitted to the Court that he had no instructions to appear and conduct the case for A3 Govinda Reddy and sought for permission of the Court to retire. The permission sought for by him was granted and he retired. The third accused Govinda Reddy then submitted that he expected Sri K. Bhashyam would appear for him on that day and that since he had not come he would make other arrangements on 11th September, 1956. But Sri Bhashyam had addressed a letter to the learned Sessions Judge on 30th August, 1956 to the effect that he was not appearing for the third accused Govinda Reddy in the case. In those circumstances the learned Sessions Judge appointed Sri C. L. Shivappa as a standing counsel to defend the third accused Govinda Reddy. The standing counsel requested for some time to study the records and therefore the ease was adjourned to 11th September, 1956. On 11th September, 1956 the third accused Govinda Reddy prayed for permission to engage the services of Sri M. C. Guru and the learned Sessions Judge granted the permission sought for by him and Sri Guru filed a memo of appearance for him also and conducted the case on behalf of all the three accused till 19th September, 1956 on which date Sri B. T. Sundararajan and Sri S. Krishnamurthy of Madras Bar and Sri K. R. Ramachandra Rao of Bangalore Bar sought for permission of the Court to appear for the third accused Govinda Reddy along with Sri Guru. At the request of Sri S. Krishnamurthy the examination of the witnesses was stopped on 19th September, 1956 and the case was adjourned to 20th September, 1956 to enable Sri Guru to make a statement whether he had any objection for the other advocates appearing for the third accused Govinda Reddy. On 20th September, 1956 Sri Guru submitted that he had no objection for the Advocates from Madras appearing for the third accused Govinda Reddy along with him and therefore Sri S. Krishnamurthy filed a memo of appearance on behalf and also on behalf of his other colleague for the third accused Govinda Reddy on that day. It is clear from a perusal of the proceedings on the subsequent dates that either Sri S. Krishnmurthy or Sri B. T. Sundararajan conducted the defence on behalf of Govinda Reddy. It is, therefore, clear that the third accused Govinda Reddy had exercised his right to engage a lawyer of his own choice and that the Court had no voice in the selection of the advocates concerned. In these circumstances there is no substance in the contention of the learned Counsel for the third accused Govinda Reddy that the case of the third accused Govinda Reddy had been prejudiced on account of the fact that the same Advocate was appearing for all the three accused persons up to a particular stage and had not effectively safeguarded the interests of his client. Moreover, this is not a case in which the three accused persons were being tried for an offence of criminal conspiracy under S. 120-B I. P. C. What all has been alleged by the prosecution is that all the three accused persons had a common intention to commit burglary and if need be commit murders to facilitate the commission of burglary and had consultations with each other and in pursuance of the plan had trespassed into the premises of Belur Srinivasa Iyengar on the night of 5th June, 1956 and committed murders and robbery. In these circumstances it cannot reasonably be urged that the interests of the accused persons were conflicting. In this connection reference may be made to the decision of the Supreme Court in Tara Singh v. The State, 1951 SCR 729 : (AIR 1951 SC 441) (A). In that case Tara Singh was tried for an offence of murder and his relatives refused to assist him in securing him the services of a counsel for him and the Court did not appoint any standing counsel to defend the accused. The trial therefore proceeded with without any legal assistance for the accused. The accused did not raise any objection through out the proceedings of the case and he was convicted. It was urged before the Supreme Court that since the Court had not secured the services of a counsel to defend the accused his case has been greatly prejudiced and consequently the trial has been vitiated and the same was liable to be set aside. Their Lordships repelled the arguments and stated thus : "But the appellants subsequent conduct indicates that he had no intention of engaging counsel and made no grievance of the fact. I need hardly say that the right conferred by S. 340 (1) does not extend to a right in an accused person to be provided with a lawyer by the State or by the police or by the Magistrate. That is a privilege given to him and it is his duty to ask for a lawyer if he wants to engage one and to engage one himself or get his relations to engage one for him. The only duty cast on the Magistrate is to afford him the necessary opportunity. There is no force in this contention either". In the instant case the learned trial Judge has been very considerate inasmuch as he gave permission to the accused to change the legal advisers whenever he desired and also gave full opportunities to the Advocates concerned who appeared for the first time to study the records and acquaint themselves with the facts of the case and for that purpose adjourned the trial of the case occasionally. The third accused Govinda Reddy cannot, therefore, have any valid objection in this matter. He cannot be heard to say that his case was prejudiced on account of the same Advocate appearing for him for some time during the trial. Curiously enough we notice that Sri Guru, who was appearing for the third accused Govinda Reddy in the trial Court has continued to appear for him even in this Court and has not retired for him. As a matter of fact he insisted that he should have priority in arguing the case for all the appellants including Govinda Reddy. Sri Bhashyam and Sri Motaiya appeared for the third accused Govinda Reddy along with Sri Guru and not independently of him.

7. We will now pass on to the other issue which was presented to us, viz., whether S. 269 (4) Cr. P. C. violates the equality of treatment guaranteed by Art. 14 of the Constitution of India.

8. It was strenuously urged by Sri Bhashyam that the new amendment to sub-s. (4) of S. 269 Cr. P. C. has conferred the right to discriminate between persons who are charged with the same offence and enables the High Court on reference made by the trial Judge to exempt the trial of a particular case from being tried with the aid of jury while another person charged with a similar offence will have the advantage of a jury trial. Here again it is necessary for us to state some facts before considering the important question of law raised by the learned Advocate. After the accused persons were committed to take their trial, the learned Sessions Judge, who perused the records found that the trial of the case was likely to last for about a month in view of the fact that the prosecution had cited as many as 160 witnesses and the accused had taken time to file lists of their defence witnesses made a reference to this Court under S. 269 (4) Cr. P. C. for a direction that the case shall be tried by the Judge himself without a jury. The reference was registered as Criminal Referred Case No. 2 of 1956 on the file of this Court and notices of the same were issued to all the three accused persons. Sri Guru appeared for accused 1 and 2 and did not oppose the reference. The third accused did not raise any objection. Hence this Court after perusing the records came to the conclusion that the case was not likely to be concluded within two weeks from its commencement and it involved complicated matters and it was therefore desirable that it should be tried without a jury and issued directions accordingly. It is in pursuance of the said order that the learned Sessions Judge tried the accused without the aid of a jury. The third accused Govinda Reddy did not raise any objection about the trial proceeding without the aid of a jury at any stage of the trial. As a matter of fact no objection is taken and no such ground is raised in the course of the memorandum of appeal filed on behalf of the third accused Govinda Reddy. It is only in the supplementary memorandum of appeal filed on behalf of the third appellant Govinda Reddy by Sri Motaiya for the first time such an objection is raised. It was urged by Sri Bhashyam, the learned Counsel for appellant Govinda Reddy, that the right of an accused person to be tried with the aid of a jury is a valuable right though not a fundamental right and that any order passed by the court denying that valuable right to an accused person and allowing or permitting the trial without the aid of a jury materially prejudices an accused person and violates the equality of treatment guaranteed by Art. 14 of the Constitution of India. He contended that the power conferred on the High Court to make a distinction between a man whose case is likely to last over a fortnight and another man whose case is likely to be over early, who commit the same offence is discriminatory and the classification of cases on that basis viz., on the basis of the duration of the trial or the complicated nature of the case, is highly arbitrary and is unconstitutional. 8.Section 268, Cr. P. C. lays down that all trials before a Court of Sessions shall be either by jury or by the Judge himself. The words "by the fudge himself" were substituted by act 26 of 1955 in the place of "or with the aid of assessors". Section 269, sub-s. (1) of the Code of Criminal Procedure confers a right on the State Government to direct the trial of all offences or of any particular class of offences before any Court of Session by jury in any District and also to revoke or alter such order. Sub-section (4) of S. 269, Cr. P. C. empowers the High Court to direct the trial by the Judge himself without a jury if on account of the volume or complexity of the evidence in the case, it is of the opinion that its duration is likely to exceed two weeks from its commencement or that the case would involve consideration of evidence of a highly technical nature on an application made to the High Court by a party or a reference made by the Sessions Judge in that behalf. This sub-section was inserted by act 26 of 1955 and forms part and parcel of the general law of procedure for trial of sessions cases applicable to all persons. It was urged by the learned Counsel for the accused that the standard prescribed under Sub-S. (4) of S. 269, Cr. P. C. to enable the High Court to exercise its discretion is unguided and the classification is unreasonable and therefore it offends Art. 14 of the Constitution of India which confers the right of equality or equal protection of law in the country; that the standard prescribed, viz., the speedier trial or the duration of the trial or the undesirability of the trial with the aid of Jury on account of technical nature of the evidence are not the proper standards for classification. It is now well settled that Art. 14 of the Constitution of India not only guarantees equal protection as regards substantive laws but procedural laws also come within its ambit, vide State Of West Bengal v. Anwar Ali Sarkar,, AIR 1952 SC 75 (B) and in Kathi Raning Rawat v. State Of Saurashtra, AIR 1952 SC 123 (C), and Meenakshi Mills, Ltd., v. Visvanatha Sastri, AIR 1955 SC 13 (D). We heard very able and interesting arguments of the learned Counsel on both the sides as to the scope and limitations of Article 14 of the Constitution of India. A large body of case law has been referred to us by the learned Counsel for appellant Govinda Reddy and also by the learned Assistant Advocate-General on behalf of the State. We feel that it is unnecessary for us to discuss elaborately the long catena of cases on this topie as in our opinion they have been fully and exhaustively dealt with in the latest decision of the Supreme Court in Asgarali Nazarali Singaporewalla v. State Of Bombay, (S) AIR 1957 SC 503 (E), in which Their Lordships considered the constitutionality of the Criminal Law Amendment Act of 1952. After setting out the several provisions of the Criminal Law Amendment Act (1952) their Lordships observed that the intention of the Legislature in enacting the Criminal Law Amendment Act (1952) was to amend the Indian Penal Code and the Code of Criminal Procedure with a view to provide for a more speedy trial of offences punishable under S. 161 or S. 165 or S. 165-A of the Indian Penal Code or sub-section (2) of S. 5 of the Prevention of Corruption Act, 1947. According to the provisions of the Criminal Law Amendment Act Special Judges of the Status of a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge are appointed for the purposes of trying those offences and those offences are made triable only by these special Judges. Moreover, not only are the special Judges invested with the exclusive jurisdiction to try those offences but they are also empowered while trying any case involving those offences to try any offence other than those offences with which the accused may under the Code of Criminal Procedure be charged at the same trial; Committal proceedings were also done away with and the special Judges are empowered to take cognizance of those offences without the accused being committed to them for trial and are further empowered to try the accused persons of the same by following the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrate. It is thus clear that for all purposes the Courts of the Special Judges were deemed to be Courts of Sessions trying cases without a jury or without the aid of assessors and are empowered to pass upon the persons convicted by them of any offence any sentence authorised by law for the punishment of such offences. The powers of appeal and revision vested in the High Court are to be exercised as if the Courts of Special Judges were the Courts of Sessions trying cases without a jury or without the aid of assessors within the local limits of the jurisdiction of the High Court. It is clear from the above that the procedure for trial before the Special Judges was thus assimilated to that obtaining in the case of trial of the accused by the Courts of Sessions. It was contended before their Lordships that the provisions of the impugned Act are violative of the fundamental right enshrined in Art. 14 of the Constitution of India and were therefore, ultra vires. Repelling this contention their Lordships observed as follows : "The provisions of the impugned Act in substance amended the Indian Penal Code and the Code of Criminal Procedure, 1898 pro tanto making the specified offences triable by "Special Judges and all persons who committed these offences became punishable by higher sentences and where subjected to procedure for trial of warrant cases, the Courts of Special Judges being deemed to be Courts of Sessions trying cases without a jury or without the aid of assessors. It can therefore be legitimately urged that there was no classification at all, the provisions thus enacted being equally applicable to all citizens alike without any discrimination whatever. The matter was however argued before the High Court and also before us on the basis that the offenders who committed these specified offences formed a group or category by themselves and were classified as distinct from the offenders who committed the other offences under the Penal Code. We do not want to express any opinion as to whether there is any classitication discernible within the provisions of the impugned Act but will proceed to deal with this aspect of the question on the assumption that there was such a classification intended to be made by the Legislature while enacting the impugned Act. "The principles underlying Art. 14 of the Constitution have been completely thrashed out in the several decisions of this Court ere this. The earliest pronouncement of this Court on me meaning and scope of Art. 14 was made in the case of Charanjit Lal v. Union of India, 1950 SCR 869 (AIR 1951 SC 41) (F). The principles enunciated in that case were summarised by Fazl Ali J. as follows in State of Bombay v. F. N. Balsara, 1951 SCR 682 at page 708 (AIR 1951 SC 318 at page 326) (G): "(1) The presumption is always in favour of the constitutionality of an enactment since it must be assumed that the Legislature understands and correctly appreciates the needs of its own people that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds. (2) The presumption may be rebutted in certain cases by showing that on the face of the Statute there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class and yet the law hits only a particular individual or class. (3) The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons often require separate treatment. (4) The principle does not take away from the State the power of classifying persons for legitimate purposes. (5) Every classification is in some degree likely to produce some inequality and mere production of inequality is not enough. (6) If a law deals equally with members of a well-defined class it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. (7) While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained and the classification cannot be made arbitrarily and without any substantial basis. The latest pronouncement on this topic is to be found in the judgment of this court in the case of Budhan Choudhry v. State Of Bihar 1955-1 SCR 1045 at p 1048 : ((S) AIR 1955 SC 191 at p 193) (H), where it was observed as follows : The provisions of Art. 14 of the Constitution have come up for discussion before this Court in a number of cases namely 1950 SCR 869 : (AIR 1951 SC 41) (F), 1951 SCR 682: (AIR 1951 SC 318) (G), 1952 SCR 284 : (AIR 1952 SC 75) (B), 1952 SCR 435: (AIR 1952 SC 123) (C). Lachmandas Kewalram v. State of Bombay, 1952 SCR 710: (AIR 1952, SC 235) (I), Qasim Razvi v. State of Hyderabad, 1953 SCR 589 : (AIR 1953 SC 156) (J), and Ha-beeb Mohamed v. State of Hyderabad 1953 SCR 661 : (AIR 1953 SC 287) (K). It is therefore not necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question. It is now well established that while Art. 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order however to pass the test of permissible classification two conditions must be fulfilled namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be-achieved by the statute in question. The classification may be founded on different bases, namely geographical or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well-established by the decisions of this Court that Art. 14 condemns discrimination not only by a substantive law but also by a law of procedure.

9. Their Lordships observed that the persons, who committed offences of bribery or corruption would form a class by themselves quite distinct from those offenders who could be dealt with by the normal provisions contained in the Penal Code or the Cr. P. C. and if the offenders falling within this group or category were thus singled out for special treatment, there would be no question of any discriminatory treatment being meted out to them as compared with other offenders who did. not fall within the same group or category and who continued to be treaud under the normal procedure. Dealing with the question as to whether the object of more speedy trial can be the basis of classification their Lordships observed as follows : "The next question to consider is whether this differentia had a rational relation to the object sought to be achieved by the impugned Act. The preamble of the Act showed that it was enacted for providing a more speedy trial of certain offences. An argument was however addressed before us based on certain observations of Mahajan J. (as he then was) at page 314 (of SCR) : (at page 86 of AIR) and Mukherjea J. (as he then was) at page 328 (of SCR) : (at page 91 of AIR), in Anwar Ali Sarkars case (G) (supra) quoted at page 43 (of SCR) : (at page 408 of AIR), by Patanjali Sastry C. J. in the case of Kedar Nath Bajoria v. State Of West Bengal, 1954 SCR 30 : (AIR 1953 SC 404) (L), that the speedier trial of offences could not afford a reasonable basis for such classification. Standing by themselves these passages might lend support to the contention urged before us by the learned Counsel for the appellant. It must be noted, however, that this ratio was not held to be conclusive by this Court in Kedar Nath Bajorias case (L) (supra) where this Court held : ......." It is clear from the above observations of their Lordships of the Supreme Court that the classification based on the general procedure prescribed for the trial of offences even though a particular group or category of persons are singled out lor special treatment for the purpose of speedy trial does not offend Art. 14 of the Constitution of India and is not in any manner violative of equality of protection of law provided by the said Article. As already stated by adding sub-s. (4) to S. 269 of the Code of Criminal Procedure the law of procedure is made applicable uniformly to all persons whose trial is likely to last for more than two weeks or whose case would involve consideration of evidence of a highly technical nature. It cannot, therefore, reasonably be urged that the speedier trial of a particular class of cases cannot be the basis for classification. It cannot also be said that the discretionary power that is vested in the High Court is necessarily a discriminatory power. In this connection we may refer to the decision of the Supreme Court in Matajog Dobey v. H. C. Bhari , (S) AIR 1956 SC 44 (M), wherein it was laid down that Art. 14 of the Constitution of India does not render S. 197 of the Code of Criminal Procedure which makes it necessary to obtain sanction of the Government to prosecute a public servant ultra vires as the discrimination is based on a rational classification. It was observed that a discretionary power is not necessarily a discriminatory power and abuse of power is not to be easily assumed where the discretion is vested in the Government and not in a minor official. In 1954 SCR 30 : (AIR 1953 SC 404) (L), Their Lordships held that the need for speedier trial can be the proper basis for a reasonable classification having regard to the legislative history of the enactment. In Kathi Ranings case (C), it was held that conferment of power upon the executive to select individual cases would not be la contravention of Art. 14 provided the Legislature lays down the policy and the standards according to which the executive is to make the selection. It cannot reasonably be urged that sub-s. (4) of S. 269, Cr. P. C. does not indicate the policy or the standard according to which the High Court has to exercise its discretion before passing an order empowering the Sessions Judge himself to try the accused without a Jury. It is not an unguided discretion. It cannot also be said there is no substantial distinction between cases which are likely to last for over two weeks and others which are likely to be over in a few days. Accused whose cases are likely to last beyond two weeks can be taken to constitute a class. Such a classification cannot be declared to be void on the ground that it has no relation to the object to be attained and is not substantial. It has been held by their Lordships of the Supreme Court that if the discretion is vested in a judicial officer and is subject to the revisional and appellate powers of the High Court the exercise of discretion cannot be said to be unguided or arbitrary (Vide (S) AIR 1955 SC 191 (H), and is not arbitrary and does not offend Art. 14 of the Constitution of India. A notification was issued by the erstwhile Government of Mysore under S. 269, Cr. P. C. on 9th May, l917 under the Code of Criminal Procedure which was then in force. No fresh notification has been issued by the Government of Mysore after the introduction of the Code of Criminal Procedure of 1888 and after the Criminal Procedure Code was amended by Act 26/55 declaring what offences or class of offences shall be tried with the aid of a jury. According to the notification referred to above which we presume is in force, offences punishable under Ss. 302 and 307, of the Indian Penal Code with which the accused are charged and tried are not triable with the aid of a jury. It is only the other offences punishable under Ss. 457, 380, 397, 392 and 460 of the Indian Penal Code that are triable with aid of jury. Therefore, the accused cannot raise any valid objection as regards their trial in respect of the charges under Ss. 302 and 307 of the Indian Penal Code. As already stated the right to be tried with the aid of a jury is not a fundamental right. It is a right that is created by a Statute. The Statute that creates such a right, we think, can impose restrictions or conditions relating to the exercise of such a right. The Statute can also take away such a right and as a matter of fact S. 269 (1) confers such a right on the State Government. In such cases it is not open to a person to contend that his fundamental right is infringed and that he has been denied equality before the law. We have already stated that the appellants did not oppose the reference made by the learned Sessions Judge for permission to try them himself without a jury and they also did not raise an objection during the trial. In these circumstances we hold that there is no substance in the contention raised on behalf of appellant Govinda Reddy that the trial is vitiated. Some argument was addressed to us to the effect that so long as the right to be tried with the aid of a jury is not a fundamental right and is only a privilege, the subject can waive that privilege. In the view we have taken, we feel that it is unnecessary to consider this argument.

10. It was urged by Sri Guru that the non-examination of Rangalakshmi by the prosecution was intentional and an adverse inference should be drawn against the prosecution in the circumstances of the case. He suggested that Rangalakshmi was in the nature of an eye-witness and her evidence would have thrown considerable light in the case and therefore her non-examination was fatal. There is nothing in the entire records to indicate that Rangalakshmi was an eye-witness. By the mere fact that she was one of the persons that was sleeping in "Ranga Vilas" on the fateful night and had received severe injuries it cannot be presumed that she was an eye-witness. It is not unlikely that she received injuries while she was fast asleep and lost her consciousness immediately thereafter. That it may be so is clear from the fact that P.W. 79 Ratna found Rangalakshmi sitting leaning across the wall in her bed room with a number of bleeding injuries on her person in an unconscious slate when she rushed to the room at about 6-30 A.M. on 6th June, 1956. P.W. 114 Sivacharan Singn sent Rangalakshmi in an ambulance van to the Victoria Hospital for proper treatment. She was admitted as an inpatient. P.W. 96 Dr. Adikesuvalu, the Superintendent of the Victoria Hospital, Bangalore, has stated in his evidence that Rangalakshmi was in a condition of shock and collapse at the time she was admitted into the Hospital and that her condition was precarious. Rangalakshmi regained consciousness only on 11th June, 1956 at about 12 noon and took her food voluntarily on 14th June, 1956. Though she was in the Hospital she was able to realise that she was in the Hospital for the first time on 16th June, 1956 at about 9 a.m. She was discharged from the Hospital on 11th July, 1956. P.W. 115 Revanna has stated in his evidence that he could not record the statement of Rangalakshmi, while she was in the Hospital as the Doctors who were treating her informed him that she was not in a fit condition to make any relevant statement. He has further stated that he completed the investigation and placed the charge-sheet in the Court of the City Magistrate, Bangalore on 7th July, 1956. It is clear from this that the Investigating Officer could not examine her during the investigation of the case as she was yet undergoing treatment as an in-patient. P.W. 96 Dr. Adikesavalu has stated in his evidence that Rangalakshmi was not able to recollect any of the incidents except that some one hit her on her head and twisted her left index finger. Dr. Adikesavalu examined the girl along with Dr. Govindaswamy, the Director of All India Institute of Mental Health on more than half a dozen occasions. He has given his opinion that she is not in a fit condition to give evidence or make relevant statement regarding the incident that took place nor is it desirable in the interest of her health and in view of the serious injury and damage to the brain she had sustained to examine her. Rangalakshmi had multiple fractures of the bones of the skull and of the mandible with severe concussion, irritation and compression of the brain as is clear from the opinion of Dr. Adikesavalu. There is absolutely nothing on record to indicate that the opinion of Dr. Adikesavalu is not based on proper materials. Dr. Adikesavalu is the Superintendent of the Victoria Hospital, Bangalore. He is a very highly qualified surgeon. He has put in a service of 22 years as a surgeon. There is absolutely no reason to discredit his evidence. P.W. 97 Dr. Govindaswamy, who examined Rangalakshmi along with Dr. Adikesavalu on 18th June, 1956, 22nd June, 1956, 24th June, 1956, 6th July, 1956 and 23rd September, 1956 is of the view that though Rangalakshmi is quite intelligent, she will not be in a position to give sequential and reliable statements of events preceding her injury for several months to come. Exhibit P-130 is the certificate issued by P.W. 97 Dr. Govindaswamy in this connection. He is definitely of the opinion that Rangalakshmi could not be a competent witness in the case as she is suffering from a disease technically known as Retrograde Amnesia consequent upon the serious injury that was caused to her brain. Nothing has been elicited in the course of the cross-examination of P.W. 96 and P.W. 97 to indicate that their opinion is not creditworthy. It was suggested by Sri Guru that the learned trial Judge ought not to have relied solely upon the opinion of these two Experts and ought to have directed the prosecution to produce Rangalakshmi before him and should have put a few questions to ascertain whether the opinion of the two Experts was correct. The learned trial Judge did not think it necessary as sufficient material had been placed by the prosecution by examining P.W. 96 Dr. Adikesavalu and P.W. 97 Dr. Govindaswamy to establish that Rangalakshmi was not in a fit condition to depose and could not be a competent witness in this case. The learned trial Judge was, in our opinion, perfectly justified in acting upon the evidence of these two Doctors. There is no rule that every witness ought to be called by the prosecution whether he knows anything about the case or not even if the prosecution knows that the witness is not likely to give any useful information either to help the prosecution or the accused. In Vasudeo Balwant v. Emperor, AIR 1932 Bom 279 (N), a somewhat similar contention was raised on behalf of the appellant. It was argued that the non-examination of His Excellency Sir Earnest Hotson, the acting Governor of Bombay and any one of the students who were admittedly present at the time of the offence was fatal to the case and an adverse inference should be drawn against the prosecution. This contention was repelled by Their Lordships of the Bombay High Court and the following observations of Beaumont C. J. give a complete answer to the contention raised by Sri Guru in this case : "The next point taken on behalf of the accused was that His Excellency was not called as a witness, nor were any of the students who were present at the time of the offence. The evidence is that about 200 to 250 students were in the room at the time. Mr. Patwardhan suggests that there is a rule that, at any rate in capital cases and he was bound of course to extend his contention to embrance cases of attempt to murder every eye-witness ought to be called by the prosecution and for that be relied on the case of Ram Ranjan Roy v. Emperor, ILR 42 Cal 422 : (AIR 1915 Cal 545) (O). I do not think that there is any such rule. No doubt as pointed out by the Calcutta High Court, the duty of the prosecution is not to endeavour to obtain a conviction at any cost, but to see that the facts are fairly presented before the Court. "But prima facie it is for the prosecution to call such witnesses as they think will establish their case. No doubt if the Public Prosecutor knows of a witness who favours the accused, it is his duty either to call the witness himself or to see that the defence is supplied with the name of the witness and given an opportunity of calling him. In the present case, undoubtedly, the evidence called by the prosecution was sufficient to establish the charge. Mr. Patwardhan suggests that his client was prejudiced by the fact that His Excellency did not go into the witness box. I cannot myself see in what respect His Excellency could have given any evidence which could possibly have helped the accused. I pressed Mr. Patwardhan to tell me in what respect he suggested that the evidence of His Excellency could have helped the accused, but he was unable to say more than that the accuseds pleader might perhaps have got something out of the witness in cross-examination which would have helped the accused, but he was unable to suggest any specific point in which the evidence of His Excellency would have been useful. There is evidence before the Court that His Excellency was not hurt by the bullets so that it was not necessary to call him for that purpose. It was suggested that His Excellencys evidence might have been of value on the defence set up by the accused viz., that it was not he but somebody else who fired the shots. But as the evidence is that His Excellency at once flung himself upon the accused it is perfectly obviouse that he at any rate thought that the accused was the guilty party. It seems to me that there is no substance whatever in the suggestion that the case has been in any way prejudiced by the failure of the prosecution to call any more witnesses."

11. There are no eye-witness to the occurrence and the decision in this case has been entirely based upon the circumstantial evidence adduced by the prosecution. It has been repeatedly laid down by the Supreme Court of India and by this Court that a conviction can safely be based on circumstantial evidence provided the several circumstances relied upon by the prosecution are established beyond doubt that the incriminating facts are such as to be incompatible with the innocence of the accused and incapable of explanation on any reasonable hypothesis other than that of the accuseds guilt. This principle is enunciated in the decision of the Supreme Court in Hanumant v. State of M. P., AIR 1952 SC 343 (P); Kedar Nath Bajoria v. State Of West Bengal, AIR 1954 SC 660 (Q); Kutuhal Yadav v. The State Of Bihar, AIR 1954 SC 720 (R), and in the decisions of this High Court in Chowda v. Government of Mysore, 8 Mys LJ 379 (S); Papiah v. Government of Mysore, 49 Mys HCR 444 (T); and Chikka Bvre Gowda v. State of Mysore, ILR 1955 Mys 372: ((S) AIR 1955 Mys 119) (U). In Hanumant v. State of M. P. (P), their Lordships of the Supreme Court stated as follows: "It is well to remember that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

12. In the instant case the learned Sessions Judge has based his conclusions that the appellants committed the several offences alleged against them on the following factors: (1) That the appellants conspired together to commit burglary in the house of Belur Srinivasa Iyengar and to murder the inmates for that purpose. (2) That about a fortnight prior to the date of the incident, appellants Krishna and Muniswamy (along with P. W. 44 Channa) made an unsuccessful attempt to burgle the house of Belur Srinivasa Iyengar for the purpose of committing theft. (3) That on 5-6-1956 appellants Krishna and Muniswamy purchased crow-bars M. Os. 1 and 4 in the shops of P. W. 60 Dhanalakshmi and P. W. 61 Ibrahim respectively and that these articles were found in the bedroom of Vengadamma in "Ranga Vilas" on the morning of 6-6-1956 and they were blood-stained. (4) That the appellants were found moving together on 5-6-1956. (5) That the finger prints of the appellants were found on the silver vessels M. Os. 86, 87 and 89 which were lying scattered in "Ranga Vilas" on the morning of 6-6-1956 and that those finger prints tally with those of A1 Krishna, A2 Muniswamy and A3 Govinda Reddy respectively. (6) That a large number of articles of jewellery belonging to and in the possession of the members of the family of Belur Srinivasa Iyengar just prior to the commission of the offence were found in the possession of the appellants either on their person or in their houses. (7) That blood-stained clothes were recovered from a hedge near the house of A1 Krishna on the information furnished by him and from A3 Govinda Reddys house. (8) That appellant Krishna made several purchases on the 6th and 8th June 1956 and he converted some jewels into gold ingots and disposed them of and the two bills for having purchased a cot and an almirah were found on his person on the date he was arrested, that is, on 9-6-1956. The cot and the almirah which were yet in an unpacked condition were found in the house of Krishna where he was living with his concubine P. W. 38 Jayamma, that is, in the house bearing No. 21/6-86 Ramakrishna Mutt Road, Ulsoor. (9) That the knife M. O. 3 was recovered from a well behind the house of A1 Krishna on the information furnished by him and it contained mammalian blood and was identified by several witnesses as belonging to Krishna and as the one that was in his house in premises No. 21/6-86 Ramakrishna Mutt Road, Ulsoor being used by the inmates for domestic purposes.

13. The learned Sessions Judge has accepted the evidence of the several witnesses examined by the prosecution to establish each of the above factors and has come to the conclusion that the several circumstances relied upon by the prosecution had been conclusively established and they lead to the legitimate conclusion that it is the appellants that had broken into the house of Belur Srinivasa lyengar and committed the murders of Vengadamma, Singamma, Lava, Kusha, Ramalingam and Belur Srinivasa Iyengar and attempted to commit the murder of Rangalakshmi on the night of 5-6th June 1956.

14. It is the case of the prosecution that appellant Krishna, who was originally living in Chinnayanapalaya had shifted his residence to Ulsoor and was living in the bouse bearing No. 21/6-86 Ramakrishna Mutt Road, Ulsoor with P. W. 38 Jayamma and her child born to him. P. W. 38 Jayamma had abandoned her husband Muniappa of Sunkalpet, Bangalore City and had come away to live with appellant Krishna about two years prior to the date of the incident. She has stated that Krishna had kept her in a house in Jogupalayam for sometime; that they shifted to Chinnayanapalaya Extension and were living there for about six or seven months. She further stated that appellant Krishna engaged a house of P. W. 35 Muniswamappa in Ramakrishna Mutt Road in the month of April 1956 and shifted her to the said place and that both of them were living in that house along with their child till 10-6-1956. Appellant Krishna has denied that he had anything to do with P. W. 38 Jayamma and that he had taken the house No. 21/6-86 Ramakrishna Mutt Road, Ulsoor on lease from P. W. 35 Muniswamappa for her residence. Strangely enough no questions were put to P. W. 38 Jayamma in her cross-examination to challenge her version that she abandoned her husband after developing criminal intimacy with appellant Krishna about two years prior to the date of the incident and was living with him as his wife in several places and was being protected by him. As a matter of fact, the evidence of P. W. 38 Jayamma in this regard has remained unchallenged. P. W. 35 Muniswamappa, who is the owner of premises No. 21/6-86 Ramakrishna Mutt Road, Ulsoor has given evidence that appellant Krishna took the house from him on lease in the month of April 1956 and was living in that tenement with P. W. 38 Jayamma and a child. P. W. 43 Prabhakar, who is a tenant in one of the houses of P. W. 35 Muniswamappa, has given evidence that P. W. 38 Jayamma, appellant Krishna and their child were all living in premises No.21/6-86 Ramakrishna Mutt Road, Ulsoor. P. W. 42 Venkatappa alias Motappa is a washerman in Ulsoor. He has also given evidence to the effect that appellant Krishna and P. W. 38 Jayamma were living as man and wife in house bearing No. 21/6-86 Ramakrishna Mutt Road, Ulsoor and that he was washing their clothes. There is absolutely nothing on record to indicate that these witnesses who were respectable residents of the locality and who bear no sort of ill-will against appellant Krishna are trying to implicate him by giving false evidence. P. W. 44 Channa and P. W. 41 Alamellamma have deposed that appellant Krishna was living in the house bearing No. 21/6-86, Ramakrishna Mutt Road, Ulsoor along with P. W. 38 Jayamma and a child. The fact that appellant Krishna was arrested by the police on 9-6-1956 when he was proceeding on his motorcycle and alighted from it in Gurumurthi Lane which leads to No. 21/6-86 Ramakrishna Mutt Road, Ulsoor also establishes the version of the prosecution that he was residing in that house. There is another significant factor which establishes beyond all reasonable doubt that appellant Krishna was living in No. 21/6-86 Ramakrishna Mutt Road, Ulsoor. Exhibits P-84 and P-85 two cash bills which evidence the purchase of an almirah and a cot were found on the person of appellant Krishna at the time he was arrested by the police on 9-6-1956. Reliable evidence has been adduced by the prosecution to establish that appellant Krishna purchosed the almirah M. O. 171 for Rs. 70 as per Exhibit P-85 and the cot M. O. 170 as per Exhibit P-84 on 8-6-1956. M. O. 170 and M. O. 171 were found in an unpacked condition in house No. 21/6-86 Ramakrishna Mutt Road, Ulsoor on 9-6-1956 and they were seized by the police under a mahazar in the presence of the panchayatdars. Appellant Krishna has not explained under what circumstances these two articles of furniture that he had purchased were found in that house if he had not engaged that house and was not living in the same. Similarly M. O. 118 and M. O. 119, the ready made coat and the pant which appellant Krishna had purchased for his use in the shop of P. W. 55 Mahadevasa, the proprietor of the Modern Tailoring Hall, Chickpet, Bangalore City were recovered from the same house under a mahazar Exhibit P-92. A photograph of appellant Krishna M. O. 117, the pass-book of the Basavangudi Co-operative Society Exhibit P-89 issued to appellant Krishna and the registration certificate of the motor-cycle Exhibit P-90 which relates to the motor-cycle M. O. 169 were also found in premises No. 21/6-86 Ramakrishna Mutt Road, Ulsoor in which P. W. 38 Jayamma was living. There is thus overwhelming and unimpeachable evidence to show that sometime prior to the incident and on the date of incident appellant Krishna for all intents and purposes was living in the house bearing No. 21/6-86 Ramakrishna Mutt Road, Ulsoor with P. W. 38 Jayamma.

15. It is alleged that the appellants had the knowledge of the fact that there was a lot of cash and jewellery in the house of Belur Srinivasa Iyengar and had after some deliberations planned to raid the house, kill the inmates and commit theft of those jewels and cash. It is also alleged that the appellants are related to one another and were meeting often in the house of appellant Krishna in Ulsoor to discuss how they should carry out their plan. It is also alleged that appellants Krishna and Muniswamy had along with P. W. 44 Channa made an unsuccessful bid or attempt to commit burglary in the house of Belur Srinivasa Iyengar about a fortnight prior to the date of the incident. P. W. 38 Jayamma and P. W. 44 Channa have been examined by the prosecution to establish the fact of conspiracy. It is urged before us as it was done in the trial Court that the evidence of these two witnesses should not be accepted since they are accomplices or in the nature of accomplices, without calling for corroboration. The learned trial Judge has rejected the contention of the appellants that P. W. 38 Jayamma and P. W. 44 Channa are either accomplices or in the nature of accomplices. We are inclined to agree with the conclusion of the learned Sessions Judge. In cases where persons act in concert by virtue of a common intention and of a criminal conspiracy their activities cannot normally in the very nature of things be brought out in evidence by direct evidence because they are done in privacy. It is only from the members of the family or from the persons who are intimately connected with those persons or from their associates that evidence of conspiracy can be gathered. P. W. 38| Jayamma has stated in her evidence that appellant Muniswamy is the elder brother of her paramour appellant Krishna and that appellant Govinda Reddy is their uncle and they were all constantly meeting in her house in Ulsoor and used to be talking that there was a lot of money and jewellery in the house of Belur Srinivasa Iyengar and that they should kill them or "clean" them and bring away the properties. She has also stated that about a month prior to the date of arrest of appellant Krishna, appellant Muniswamy had brought P. W. 44 Channa to her house, that all of them, namely, appellants Krishna and Muniswamy and P. W. 44 Channa went to an Iyengars house in Gandhi Nagar for the purpose of committing burglary, that appellant Krishna returned to the house at about midnight and that on the next morning appellant Muniswamy and appellant Krishna were talking that they could not succeed in their attempt as the dogs began to bark. She has further stated that later on appellant Govinda Reddy came to the house and enquired and learnt from appellants Krishna and Muniswamy that they had to abandon their attempt to commit burglary since the dogs began to bark. According to the version of P. W. 38 Jayamma all the three appellants had met in the house of appellant Krishna subsequently and decided that they should go on Tuesday night to commit burglary and she intervened and asked appellant Govinda Reddy whether it was right on his part being an elderly man to instigate the youngesters to commit such illegal acts and requested him to consider whether it would not be proper that they should eke out their livelihood by begging instead of committing such criminal acts; that appellant Krishna directed her to keep quiet and get into the kitchen and mind her business. P. W. 38 Jayamma has further stated that her husband Krishna left the house on his motor cycle at about 7-30 P. M. on the following Tuesday after performing pooja. It is on the very same night the house of Belur Srinivasa Iyengar was burgled and the inmates were killed. According to the evidence of P. W. 38 Jayamma, appellants Krishna and Muniswamy came back to her house after cockcrowing time and P. W. 41 alemelamma who was sleeping in the house on that night opened the door on being called out by appellant Krishna. P. W. 38 Jayamma has further stated that appellants Krishna and Muniswamy kept the jewels that they had brought with them in the two trunks M. O. 107 and M. O. 108 and that appellant Krishna gave a few jewels and some cash to the hands of appellant Muniswamy. She has also stated that there were some bloodstains on the clothes that were on the persons of appellants Krishna and Muniswamy, that appellant Krishna gave two of his clothes viz., shirt and a pant to appellant Muniswamy and both of them changed their clothes and put on separate clothes and then bundled up the blood stained clothes and secreted them in the hedge near the compound of her house. The version of P. W. 38 Jayamma that they came at about cockcrowing time to her house is corroborated by the evidence of P. W. 41 Alemelamma. There is absolutely nothing elicited in the cross-examination of these two witnesses to discredit them and to brand them as untrustworthy witnesses. As a matter of fact no serious attempt has been made to challenge the evidence of P. W. 38 Jayamma about the alleged conspiracy and about the appellants having brought valuable jewellery and cash on the night of Tuesday. That because P. W. 38 Jayamma did not inform the police or the other authorities about the conspiracy that was being hatched by the appellants, it cannot be said that her evidence is liable to be rejected. In the very nature of things it is too much to expect of P. W. 38 Jayamma to go and report the matter to the police and to implicate her lover. She had admittedly abandoned her husband and thrown her lot with appelant Krishna and was being comfortably maintained by him. She had no grouse or grievance against him. In hose circumstances it cannot be expected that she would go and report the matter to the police and involve her own protector to ruin him and ruin herself. The evidence of P. W. 38 Jayamma about the unsuccessful bid or attempt made by appellants Krishna and Muniswamy in the company of P. W. 4 Channa about a fortnight prior to the date of the accident has been fully corroborated by the evidence of P. W. 44 Channa. P. W. 44 Channa has stated that he was taken by appellant Muniswamy to the house of appellant Krishna in Ulsoor and that at their request had gone with them to commit burglary in the house of an "Iyengar" in Gandhi Nagar. According to his version they had brought a pair of crow-bars and an iron rod for the purpose of committing burglary and had trespassed into the compound of a house in Gandhi Nagar on that night and while they were moving in the compound dogs began to bark and that some person sleeping in the house woke up and switched on the light and called out as to who it was that trespassed into the house and therefore they took to their heels and came away. Nothing has been elicited in the cross-examination of P. W. 44 Channa to doubt his evidence about the incident and to brand him as an untrustworthy witness. The evidence of P. W. 38 Jayamma and P. W. 44 Channa about the unsuccessful attempt to commit burglary in the house of Belur Srinivasa Iyengar is corroborated by P. W. 79 Ratna and P. W. 80 Prasanna. They depose that their grand-mother Singamma had told them about a fortnight prior to the datej of the incident that some persons had entered their compound and that she woke up on hearing the barking of the dogs and switched on the light and called out as to who it was that entered the compound and observed some persons running away from the place. There is absolutely nothing to discredit the evidence of these witnesses. In the circumstances proved in the case, the learned Sessions Judge was, in our opinion, perfectly justified in his finding that the prosecution had proved the conspiracy of the appellants to commit burglary in the house of Belur Srinivasa Iyengar.

16. It was contended by Sri Bhashyam, learned counsel for appellant Govinda Reddy that the learned trial Judge was not justified in rejecting an application filed on behalf of appellant Govinda Reddy to resummon P. W. 38 Jayamma, P. W. 44 Channa and some other prosecution witnesses for the purpose of further cross-examination. P. W. 38 Jayamma and P. W. 44 Channa had been cross-examined by Sri M. C. Guru who was appearing for all the accused persons on the date they were examined by the prosecution at some length. Sri Sundararajan appeared for the third accused Govinda Reddy along with Sri M. C. Guru on and after 20-9-1956. He made an application under S. 540 of the Code of Criminal Procedure for resummoning some of these prosecution witnesses that had been examined including P. W. 38 Jayamma and P. W. 44 Channa on 28-9-1956. He stated in his application that some clarification of certain matters in the evidence of P. W. 38 Jayamma, P. W. 44 Channa and other prosecution witnesses mentioned in the application was necessary and therefore they may be resummoned for cross-examination. The learned Sessions Judge rightly rejected the prayer on the ground that the application was vague and no materials had been placed before him to induce him to summon them for the purpose of further cross-examination and that there was no indication in the application on what material particulars and for what purpose or to elicit what information they had to be resummoned for the purpose of cross examination. Sri Sundararajan preferred a revision petition to this court against the order so passed by the learned Judge on his application to resummon the witnesses in Criminal Revision Petition Number 322 of 1956. The said revision petition was dismissed by a Division Bench of this Court on 19-10-1956. In the course of the order this Court observed thus : "We find that the application under S. 540 of the Code of Criminal Procedure mentions no ground other than the opinion of the learned Advocates for accused 3 that the witnesses in question should be recalled for purposes of cross examination which is necessary and essential for a just and proper decision of the case. Section 540 of the Code of Criminal Procedure, no doubt, gives very wide discretion to the Court to summon any person as a witness or to recall and re-examine any person already examined.: But it is a judicial discretion which has to be exercised on the basis of tangible and concrete material. It may be that a witness has not been cross-examined with reference to some important aspects of his evidence and that this has occurred by oversight. It is possible that having regard to the matters involved in the case the Court might exercise its discretion under S. 540 of the Code of Criminal Procedure and recall such witness for further cross-examination. But the party who applies to the Court for the exercise of its powers under S. 540 of the Code of Criminal Procedure has to give some indication of the existing lacuna or of the circumstances which justify the exercise of discretion. This does not mean that the line of cross examination has to be disclosed. But it does appear to us to be necessary to give some objective and concrete indication of the purpose to be served so that the court might exercise its discretion with reference to such object or purpose. Otherwise, the position would be that the Court has to exercise its powers under S. 540 of the Code of Criminal Procedure not by applying its own mind but by accepting the bare statement of the accused that circumstances do exist justifying the examination of a witness or the recalling of a witness for further examination. That is not the way in which judicial discretion can be exercised. Indeed, it would not be the exercise of any discretion at all. In this case, not only do we not find any indication whatever of any purpose or object in the application before the Court, we find no such indication as placed before the learned Judge in the course of arguments. Nor is any such indication to be found in the revision petition before us. In these circumstances, we see no reason to interfere with the order of the learned Sessions Judge."

17. Sri Bhashyam submitted that the order was perfectly legal but contended that in fairness and in the interests of justice and to give full scope to the accused persons the learned trial Judge ought to have summoned these witnesses for the purpose of cross-examination. We are unable to appreciate this argument. After the application for re-summoning these witnesses for the purpose of cross-examination was rejected the learned advocate for Govinda Reddy made an application for summoning the witnesses as defence witnesses not for the purpose of examining them as his witnesses but for the purpose of cross-examining them. He submitted in the course of his argument before the learned trial Judge that he wanted those witnesses only for the purpose of cross-examination, that though he summoned them as defence witnesses they would yet continue to be prosecution witnesses and that he was entitled to cross-examine them. The learned trial Judge rejected the prayer, in our opinion, rightly. The order passed by the learned Sessions Judge, in our opinion, in the circumstances of the case, was perfectly justified.

18. It is thus clear that the appellants who are related to each other were meeting in the house of appellant Krishna in Ulsoor where P. W. 38 Jayamma was living with her child and were discussing the methods that they should adopt for committing burglary in the house of Belur Srinivasa Iyengar, that appellants Krishna and Muniswamy had secured the services of P. W. 44 Channa for that purpose and had made an unsuccessful bid or attempt to commit burglary in the house of Belur Srinivasa Iyengar about a fortnight prior to the date of the incident, that appellant Govinda Reddy had come to enquire on the following morning as to how they fared in their attempt to commit burglary; that on the date of the incident appellants Krishna and Muniswamy brought a lot of jewellery and cash and deposited them in two trunks (M. Os. 107 and 108), that the clothes that were on their persons had become blood-stained, that they removed them and tied them up in a bundle and secreted them in the hedge in front of the house, that appellant Krishna gave two of his clothes a pant and a shirt and some jewels and some cash to appellant Muniswamy on that night; that appellant Govinda Reddy came on Thursday to the place and appellant Krishna opened the two trunks (M. Os. 107 and 108) and showed him the jewels and the cash that he had kept. The learned trial Judge was perfectly justified in holding that the appellants had conspired together to commit theft in the house of Belur Srinivasa Iyengar. The learned trial Judge is also justified in arriving at the conclusion that appellants Krishna and Muniswamy had secured the services of P. W. 44 Channa about a fortnight prior to the date of the incident and made an unsuccessful attempt to enter the house of Belur Srinivasa Iyengar for the purpose of committing theft. 19.The next piece of circumstantial evidence relied upon by the prosecution to implicate the appellants is the purchase of crow-bars M. Os. 1 and 4 by appellants Krishna and Muniswamy in the shops of P. W. 60 Dhanalakshmi and P. W. 61 Ibrahim Khan in the evening bazaar on the afternoon of 5-6-1956. There in unimpeachable and almost unchallenged evidence adduced by the prosecution to establish that M. O. 1, crow-bar, M. O. 2 iron rod, M. O. 5 bread cutting knife and M. O. 4 another big crow-bar were all found in the house of Belur Srinivasa Iyengar on the morning of 6-6-1956. M. Os. 1, 2 and 5 were lying on the bed of Vengadamma. M. O. 4 was found kept leaning against the wall in the bed room. M. Os. 1 and 4 were blood-stained. The two Doctors, who conducted the post mortem examination and P. W. 14 Dr. Srinivas who examined and treated Rangalakshmi have stated in their evidence that the injuries that they observed on the persons of Vengadamma, Singamma, Lava, Kusha, Ramalingam, Belur Srinivasa Iyengar and Rangalakshmi could be caused by the use of M. Os. 1 and 4. This evidence has remained unchallenged. P. W. 79 Ratna and P. W. 80 Prasanna have stated in their evidence that these weapons, viz., M. Os. 1 and 4 do not belong to them and were not in their house on the night of 5-6-1956 when they went to bed and that these were found lying in the bed room of their mother on the morning of 6-6-1956 and were blood-stained. It is the case of the prosecution that appellants Krishna and Muniswamy purchased these crow-bars from the shops of P. W. 60 Dhanalakshmi and P. W. 61 Ibrahim Khan respectively, on the afternoon of 5-6-1956. P. W. 60 Dhanalakshmi and P. W. 61 Ibrahim Khan own shops in the evening bazaar in Civil Station, Bangalore. They sell second-hand iron materials. According to the version of P. W. 60 Dhanalakshmi, appellants Krishna and Muniswamy came on a motorcycle and alighted near her shop, that appellant Muniswamy was standing near the motor-cycle, that appellant Krishna came to her shop and purchased M. O. 1 from her for a sum of Rs. 1-8-0 on a Tuesday at about 2 p. m. She has further stated that about 4 or 5 days later the police came to her shop with appellant Muniswamy in custody and questioned her about M. O. 1 and that she identified M. O. 1 and appellant Muniswamy as the person that had come with another person to purchase M. O. 1 from her shop. P. W. 60 Dhanalakshmi identified appellant Krishna in an Identification Parade that was conducted by Sri T. Venkataswamy, the Second City Magistrate of Bangalore. She also identified M. O. I that was shown to her by the Magistrate as the very crow-bar that she sold to appellant Krishna on the previous Tuesday. She has denied the suggestion that the police had given to her the description of appellant Krishna that he had a scar on his right cheek so as to enable her to identify him and it is on account of the description so furnished that she was able to identify. The evidence of P. W. 62 Sri T. Venkataswamy, the Second City Magistrate, Bangalore makes it clear beyond doubt that P. W. 60 Dhanalakshmi identified appellant Krishna unmistakably. P. W. 61 Ibrahim Khan has given evidence that appellant Krishna came and purchased from his shop M. O. 4 for Rs. 3 and that appellant Muniswamy was standing near the motor-cycle at the time. He has also stated that 4 or 5 days later appellant Muniswamy was brought in custody by the police and that he identified him as the person that was standing near the motor-cycle when another person purchased M. O. 4 from him. P. W. 61 Ibrahim Khan also identified appellant Krishna in the Identification Parade conducted by P. W. 62 Sri T. Venkataswamy. There is absolutely nothing to discredit the evidence of these two witnesses. It was argued by Sri M. C. Guru that it is highly dangerous to accept the evidence of the witnesses of the type of P. W. 60 Dhanalakshmi and P. W. 61 Ibrahim Khan about the identity of common articles like M. Os. 1 and 4 and that their evidence is artificial and should be rejected. There is no force in this contention. The following observations of Ramaswamy, J. in Public Prosecutor v. I. C. Lingiah, AIR 1954 Mad 433 (V and W), make it clear that there is no substance in such a contention : "The only point of criticism advanced by the learned Magistrate is that these articles arc articles of common use and bear no particular identifying marks and consequently no reliance can be placed on the testimony of these identifying witnesses. But in advancing this criticism it is forgotten that small and even nice points of difference distinguishing one thing from others of the same kind may merely by the frequent sight of them and without any special attention to them make an impression on the mind. They are component parts of the thing and go to make the whole of which the mind receives an impression. In this case the impression is the general appearance of the thing. This sort of impression is exceedingly common; a workman has it of his tools and most people have it of their dress, jewellery and other things they are frequently seeing, handling or using. It occurs every day that by remembrance of their general appearance a carpenter, mason or other workman recognises his tools; and dress, jewellery or other property is known by its owner. Undoubtedly animals and things may be identified by those familiar with them. Observation teaches that such identification may be safely relied upon. But at the same time a witness would not be able to formulate his reasons for the identification since it is based upon general untranslatable impressions of the mind. I may readily recognise my vishti, my cow, my wifes addigai or my friends handwriting in the midst of a multitude of other things in most respects like them. But if questioned I would not be able to formulate any cogent or intelligent reason for the identification. It would be fatuous to discredit such identification on the ground that reasons are not being formulated for them."

20. As a matter of fact in the instant case, no attempt has been made to challenge the correctness of the identification of M. Os. 1 and 4 by P. W. 60 Dhanalakshmi and P. W. 61 Ibrahim Khan respectively in the course of their cross-examination. There is no substance in the contention that these witnesses are stock or police witnesses and therefore their evidence should be rejected. There is absolutely nothing on record to discredit the evidence of these two witnesses and to hold that they are the "stock-witnesses" and have come forward to depose against the appellants to implicate them to oblige the police. That appellants Krishna and Muniswamy purchased M. Os. 1 and 4 from the shops of P. W. 60 Dhanalakshmi and P. W. 61 Ibrahim Khan respectively on the afternoon of 5th June, 1956 has been proved beyond doubt. It is further established that these articles-were found lying in the bedroom of Vengadamma on the morning of 6th June, 1956 and that they were bloodstained. Appellants Krishna and Muniswamy have not offered any explanation how these weapons that they had purchased on the afternoon of 5th June, 1956 were found in the house of Belur Srinivasa Iyengar. They have denied that they purchased them from the shops of P. W. 60 Dhanalaskhmi and P. W. 61 Ibrahim Khan. In these circumstances the learned Sessions Judge was justified in coming to the conclusion that M. Os. 1 and 4 had been purchased by Appellant Krishna on the afternoon of 5th June, 1956 and that appellant Muniswamy was with him then.

21. The next piece of circumstantial evidence on which reliance is placed to prove the complicity of the appellants relates to their movements on the afternoon and night: of 5th June, 1956 and in the early hours of 6th June, 1956. Appellants Krishna and Muniswamy were seen together in the evening bazaar by P. W. 60 Dhanalakshmi and P. W. 61 Ibrahim Khan at about 2 p. in. on 5th June, 1956. As already stated, they purchased M. Os. 1 and 4 from P. W. 60 Dhanalakshmi and P. W. 61 Ibrahim Khan respectively as indicated above. There is evidence to show that appellant Govinda Reddy was waiting for appellant Krishna at about 11 a.m. near Sri Ramanatha Cafe in Gandhi Nagar. P. W. 74 Venkataramiah has given evidence to the effect that he is acquainted with appellant Govinda Reddy who used to come and sit near his hotel building which was under construction, that on 5th June, 1956 at about 10-30 or 11 a. m. he requested Govinda Reddy to assist him to secure water supply by meeting the Assistant Engineer, Water Supply Division, Bangalore on his behalf, since he had told him that he was acquainted with the officer. He has stated further that appellant Govinda Reddy obliged him and went to the Office of the Assistant Engineer, Water Supply Division and while going instructed him (P. W. 74 Venkataramiah) that his friend Krishna was likely to call at the place in search of him and that he may request him to wait for him for 15 minutes. P. W. 74 Venkataramiah knew appellant Krishna since he was coming often on his motor-cycle in search of appellant Govinda Reddy and picking him up occasionally on his motor-cycle. According to P. W. 74 Venkataramiah, appellant Krishna came to the place in search of appellant Govinda Reddy and he informed him that Govinda Reddy had requested him to wait for him for some time near the building but appellant Krishna told him that he had some urgent business to attend and requested the witness to inform Govinda Reddy that he would be available at 3 p. m. No illwill or motive is suggested to P. W. 74 Venkataramiah. He is a respectable person of Gandhi Nagar. There is no reason whatsoever why he should falsely implicate appellants Krishna and Govinda Reddy. The evidence of P. W. 74 Venkataramiah clearly establishes that appellant Govinda Reddy was expecting Krishna at about 11 a. m. on 5th June, 1956 near Sri Ramanatha Cafe in Gandhi Nagar and that Krishna had come in search of appellant Govinda Reddy. There is evidence to establish; that appellants Krishna and Govinda Reddy were found together at about 8 p. m. on the night of 5th June, 1956. P. W. 75 Basavaraj, who owns a fuel shop in Subedar Chatram Road, has given evidence that he knows appellant Govinda Reddy for over eight years and that on the night of 5th June, 1956 at about 8 p. m. appellants Krishna and Govinda Reddy came to his shop on a motor-cycle and that they left their motor-cycle in his shop and left the place saying that they were going to the cinema house to attend the second show. This witness has further stated that at about 4-30 a. m. on the very same night appellant Krishna came to his place climbing over the gate and woke him up for the purpose of taking the motor-cycle that he had left in his premises, that he opened the lock of the verandah and that appellant Krishna pushed the motor-Cycle outside and went away. There is also the evidence of P. W. 41 Alemelammathat appellants Krishna and Muniswamy came to premises No. 21, Ramakrishna Mutt Road, Ulsoor at about 5-30 a. m. P. W. 41 Alemelamma was sleeping with P. W. 38 Jayamma in that house. She opened the door and allowed these two people to enter the house and went away to her house. No material discrepancy has been elicited in the course of the cross-examination of these witnesses . W. 74 Venkataramiah, P. W. 75 Basavaraj and P. W. 41 Alemelamma, to discredit their version and to indicate that they are not speaking the truth and have been in any way obliged to the police and have come forward to give false evidence to implicate the appellants in a serious crime of murder. The learned Sessions Judge, who had the opportunity of observing the demeanour of these witnesses, has accepted the evidence of these witnesses as creditworthy and has come to the conclusion that their evidence esablishes the fact that the appellants were seen moving together in the company of one another on the afternoon, on the night of 5th June, 1956 and on the early hours of 6 th June, 1956. We do not find any grounds to differ from the conclusions arrived at by the learned Sessions Judge. The version of P. W. 41 Alemelamma that appellants Krishna and Muniswamy came to Ulsoor and. woke up P. W. 41 Alemelamma at about 5-30 a. m. has been fully corroborated by P. W. 38 Jayamma. The appellants have not offered any explanation in this regard. They have on the other hand denied that they were moving together in the company of each other. In the absence of any explanation by the appellants under what circumstances and for what purposes they were moving together in the company of each other on that day the learned trial Judge, in our opinion, was justified in coming to the conclusion that the appellants were moving together preparing themselves for committing burglary in the house of Belur Srinivasa Iyengar on the night of 5th June, 1956. 22.The next and the most important piece of circumstantial evidence relied upon by the prosecution to establish the complicity of the appellants in the crime is the recovery of articles of jewellery that belonged to and were in the possession of Belur Srinivasa Iyengar and the members of his family; on 5th June, 1950 subsequent to 6th June, 1956 from the person and possession of the appellants. As already stated, on the information furnished bv P. W. 44 Channa on the early morning of 9th June, 1956 P. W. 115 Sri B. P. Revanna, the Investigating Officer, directed P. W. 32 Basavarajiah, the Inspector of Police, Seshadripuram to take P. W. 44 Channa to Ulsoor and to arrest the person to be pointed out by him. P. W. 32 Basava-rajiah has stated in his evidence that he arrested appellant Krishna in Gurumurthy Lane on 9th June, 1956 and searched his person in the presence of the panchayatdars and found on his person M. O. 103 (a bunch of keys with three keys in it), a sum of Rs. 1,065 (M. O. 104) and two cash bills Exhibits P-84 and P-85 and seized them under a mahazar drawn up in the presence of the panchayatdars as per Exhibit P-86. P. W. 30 Gangappa, P. W. 31 Govindaswamy and P. W. 32 Basavarajiah, the Inspector of Police, speak to the fact of the search and the recovery of these articles from the person of appellant Krishna. Immediately afterwards P. W. 32 Basavarajiah produced appellant Krishna before the District Superintendent of Police after he was arrested. P. W. 115 Sri Revanna has given evidence to the effect that appellant Krishna gave him information to the effect that he had kept the jewels and the currency notes in his house in Ulsoor in two trunks and that he will produce them if he is taken to his house. Exhibit P-209 is the information Mahazar that was drawn up then. P. W. 115 and P. W. 32 have given evidence to the effect that appellant Krishna led them and the panchayat-dars to premises No. 21, Ramakrishna Mutt Road, Ulsoor, the house in which he was living with P. W. 38 Jayamma and brought out two trunks M. Os. 107 and 108 and opened the locks of them with the keys that were in M. O. 103 which he took from the Inspector of Police and produced M. Os. 121 to 164. Almost all these jewels have been identified by P. W. 79 Ratna, P. W. 80 Prasanna and P. W. 81 Dr. Srirangamma as belonging to the members of Belur Srinivasa Iyengars family and that some of them were on the persons of the deceased and injured Rangalaksmi and some of them had been kept in the iron safes and almirahs kept in the storeroom of "Ranga Vilas". The evidence of the witnesses who speak to the fact of the information as per Exhibit P-209 being furnished by appellant Krishna and about his taking the Police Officers and the panchayatdars to house No. 21, Ramakrishna Mutt Read, Ulsoor, producing M. Os. 107 and 108 and opening their locks with keys that had been seized from him earlier and producing M. Os. 121 to 164 has not at all been challenged in the course of their cross-examination. No questions are put to any of the witnesses to challenge their version about any of these things. Similarly no questions are put to P. W. 79 Ratna, P. W. 80 Prasanna and P. W. 81 Dr. Srirangamma to demonstrate that their evidence that the several articles of jewellery belonged to the inmates of the house of Belur Srinivasa Iyengar and were either on their persons or had been kept in the several receptacles in Ranga Vilas" on the night of 5th June, 1956 is false. Therefore, the only conclusion that could legitimately be drawn from these circumstances is that appellant Krishna was in possession of these articles of jewellery which belonged to the members of Belur Srinivasa Iyengars family immediately after "Ranga Vilas" had been burgled. Sri Guru, while admitting that the evidence of these witnesses has remained unchallenged, contended that the information alleged to have been furnished by appellant Krishna which led to the discovery of these articles being in the nature of self-incriminating evidence obtained by the police from a person accused of an offence is hit by Art. 20 (3) of the Constitution of India and therefore no adverse inference should be drawn against him. In other words, his contention is that S. 27 of the Evidence Act is hit by Art. 20 (3) of the Constitution of India and is ultra vires of the Constitution and therefore any discovery alleged to have been made by the Investigating Officer in consequence of any information furnished by the appellant which incriminates him cannot at all be used against him. At one stage, the learned counsel went to the extent of suggesting that even the examination of the accused person under S. 342 of the Code of Criminal Procedure which is obligatory under the Code of Criminal Procedure is ultra vires of the Constitution and is hit by Art. 20 (3) of the Constitution of India. He also contended that any question put or any direction given to an accused person to plead to a charge is also in the nature of a command to him to make a statement and if an accused person pleaded guilty to a charge in response to such a direction he cannot be convicted on such a plea since the same is hit by Art. 20 (3) of the Constitution of India. We may at once state that there is no substance in this contention. In Banwari Lal v. State, (S) AIR 1956 All 385 (X), their Lordships of the Allahabad High Court rejected such an argument and held following the decision of same Court in Banwari Lal v. The State, (S) AIR 1956 All 341 (Y), that the provisions of S. 342 of the Code of Criminal Procedure are not ultra vires of the Constitution of India and do not in any way infringe the guarantee of Art. 20 (3) of the Constitution of India. In Ranjit Singh v. State, AIR 1952 Him Pra 81 (Z), it was held that the examination of the accused under S. 342 of the Code of Criminal Procedure does not offend the provisions of Art. 20 (3) of the Constitution of India and is not, therefore, ultra vires. It has been held by the Supreme Court and the several High Courts in India that the information furnished by an accused person after his arrest to the Investigating Officer which leads to the discovery of articles under S. 27 of the Evidence Act is admissible in evidence and does not in any way offend Art. 20(3) of the Constitution of India. In Pershadi v. U. P. State, (S) AIR 1957 SC 211 (Z1). Their Lordships of the Supreme Court held that where in a murder charge the accused had stated to the police officer that he would give the clothes of the deceased which he had placed in a pit and thereafter he in the presence of the witnesses dug out the pit and took out the clothes which were identified as the clothes belonging to the deceased, the statement of the appellant was held to be admissible relying upon a decision of the Privy Council in Pulu Kuri Kottayya v. Emperor, AIR 1947 PC 67 (Z2). In Balbir Singh v. State of Punjab, (S) AIR 1957 SC 216 (Z3), a statement made by an accused person who was under arrest to the Investigating Officer to the effect that he had buried the gold ear rings near a pipal tree which was proved to be true on the accused taking the police officer and the panchas to the place and pointing out the place where they had been hidden was held to be admissible under S. 27 of the Evidence Act. Reference also may be made to a decision of the Rajasthan High Court in Jethya v. The State, AIR 1955 Raj 147 (Z4), wherein it is held that Art. 20 (3) of the Constitution of India does not contemplate the suppression of truth simply because the information is given by the accused. The guarantee under Art. 20 (3) of the Constitution of India only protects him against being compelled to be a witness against himself. There is no basis for the assumption that information given by the accused under S. 27 of the Evidence Act is compelled testimony. We therefore unhesitatingly hold that S. 27 of the Evidence Act is not repugnant to Art. 20 (3) of the Constitution of India and does not stand abrogated by Art. 13 of the Constitution of India. In the Rajasthan case referred to above their Lordships observed as follows : "It may be remarked in this connection that although this matter did not come lor consideration before their Lordships in the manner it has been agitated here, evidence about discovery of a fact at the instance of the accused was taken into consideration by their Lordships of the Supreme Court in the case of Nisa Stree v. State Of Orissa, AIR 1954 SC 279 (Z5)." The several authorities cited above make it abundantly clear that the contention of Sri M. C. Guru that the information furnished by the accused which led to the discovery of the several articles of jewellery which belonged to the several murdered persons is inadmissible in evidence and is hit by Art. 20 (3) of the Constitution of India since it incriminates the accused is untenable. Appellant Krishna has not offered any explanation how he came to be in possession of these large number of articles of jewellery which were either on the persons of the murdered or had been deposited for safety in the several receptacles in the house of Belur Srinivasa Iyengar on the night of 5th June, 1956. It was contended by Sri Guru, the learned counsel for the appellants, that even if it is held that the information furnished by the accused which led to the discovery of these articles of jewellery is not hit by Art. 20 (3) of the Constitution of India and can be made use of against him, it could only be said that the appellant had the knowledge of the fact that these articles of jewellery had been kept in M. O. 107 and M. O. 108 in premises No. 21, Ramakrishna Mutt Road, Ulsoor which was not in his exclusive possession but was also in the possession of P. W. 38 Jayamma as well and therefore no inference that he was in possession of these articles of jewellery can be drawn against him. In (S) AIR 1957 SC 216 (Z3), their Lordships of the Supreme Court repelled such an argument in the following words : "The appellant, however, made a statement to the Sub-Inspector of Police to the effect that he had buried the gold ear-rings near a pipal tree and the ear-rings were recovered from the place pointed but by the appellant. The learned Sessions Judge drew a distinction between possession and knowledge and held that the appellant merely knew where the ear-rings had been concealed but he did not possess them. This distinction drawn by the learned Sessions Judge was not justified on the evidence in the record and the statement of the appellant that he had buried the gold ear-rings was admissible in evidence under S. 27 of the Evidence Act. In our view........the recovery of the gold earrings was a circumstance which connected the appellant with the crime." It was also urged by Sri Guru that it had not been proved by the prosecution that these articles of jewellery were on the bodies of the deceased persons by clear evidence and that in the absence of such evidence it cannot be held that any of the appellants had murdered the deceased persons and removed these jewels. In Balbir Singh v. State of Punjab (Z3), referred to above similar argument was advanced on behalf of the accused person. Such an argument had found favour with the trial Judge and it is on the ground that the mere fact that the accused person who gave information had knowledge of the fact that the jewels had been deposited in a particular place could not be presumed to have been in possession of them and that the prosecution had not adduced evidence to prove that they were actually on the person of the deceased woman, the learned trial Judge had acquitted the accused. Their Lordships of the Supreme Court characterised the reasoning adopted by the learned trial Judge as fantastic and observed as follows : "The learned Sessions Judge gave a fantastic reason for not accepting the evidence as to the recovery of the ornaments against the appellant. He said that as there was no evidence that the woman was wearing the ornaments at the time when the crime was committed, the evidence of their recovery did not show that the appellant was in any way connected with the crime. The reason, as we have said, is fantastic. The woman was dead; obviously she could not give evidence to show that she was wearing the ornaments at the time when she was killed. The husband gave evidence to the effect that before he left Kartarpur, he had seen the gold ear-rings being worn by his wife three or four days prior to his departure of Kartaipur. The prosecution examined the goldsmith who had prepared the ornaments. It is difficult to understand what better evidence the prosecution could give. Their Lordships ultimately held that the fact of recovery of some ornaments that were on the person of the deceased on the information furnished by the accused from the place pointed out by him read with the evidence of her husband that these jewels were normally worn by the deceased woman was sufficient to prove the guilt of the accused and convicted the accused. In the instant case the articles of jewellery that were recovered on the information furnished by appelant Krishna had been kept in two trunks M. O. 107 and M. O. 108 which had been locked and the locks were opened by appellant Krishna with the keys that were in M. O. 103 the key bunch that was seized from his possession at the time of his arrest, have all been identified, as already stated, by P. W. 79 Ratna, P. W. 80 Prasanna and P. W. 81 Dr. Srirangamma. There is absolutely nothing on record to discredit their version about the identity of the jewels. Moreover, some of the merchants from whom some of these jewels had been puchased by the deceased persons have been examined in the case and they have identified them. The evidence of these merchants has not been shown to be uncreditworthy.

23. There are some jewels among those that were recovered from the two trunks produced by appellant Krishna which bear on them special identifying marks which conclusively establish that they belonged to the members of the family of Belur Srinivasa Iyengar. M. O. 121 is a gold cup bearing the inscription "gratefully Siddabasappa and Brothers 21-11-1926" on it. Such gold cups are not commonly used by people. Appellant Krishna has not claimed M. O. 121 as belonging to him. As already stated he has not offered any explanation how he came to be in possession of this article. P. W. 90 Siddabasappa has stated in his evidence that Belur Srinivasa Iyengar was his legal adviser for about 30 to 40 years and that he had conducted a good number of his cases successfully and therefore in recognition of his services and as a token of gratitude he presented a gold cup to him on 21st November, 1926. He has identified M. O. 121 as the very gold cup he presented to Belur Srinivasa Iyengar. There is absolutely no reason to disbelieve the evidence of this witness. P. W. 106 Sri K. R. Parthasarathy, an Advocate of this Court, who has married Sharadamma, the eldest daughter of Belur Srinivasa Iyengar, has given evidence to the effect that he had seen M. O. 121 in the house of Belur Srinivasa Iyengar when he was living with him in the year 1934 and that he had occasions to handle it when his mother-in-law was alive. P. W. 79 Ratna, P. W. 80 Prasanna and P. W. 81 Dr. Srirangamma have all stated that M. O. 121, the gold cup, had been kept by Belur Srinivasa Iyengar in the iron-safe kept in the storeroom of "Ranga Vilas". P. W. 79 Ratna had given the description of this article in the list furnished by her to P. W. 114 Sivacharan Singh on the morning of 6th June, 1956. The evidence of these witnesses, therefore, establishes beyond doubt that M. O. 121 belonged to Belur Srinivasa Iyengar and that it had been kept by him in the iron-safe kept in the store-room of "Ranga Vlas" and was in it on the night of 5th June, 1956. M. O. 122 is a gold wrist watch with the initials "B.S.V." on it. The initials "B.S.V." are worked into the wristlet with red stones and they stand for "Belur Srinivasa Iyengar Vengadamma." There is evidence that the wrist watch and this wristlet belonged to Vengadamma and that she had it made to order in the shop of P. W. 101 Srinivasaiah. P. W. 81 Dr. Srirangamma, P. W. 80 Prasanna and P. W. 79 Ratna speak to the fact that this jewellery which bears the initials worked into the wristlet was being used by deceased Vengadamma. M. O. 139 is a ring with the name of P. W. 81 inscribed on it as Srirangamma, M.B.B.S." P. W. 81 Dr. Srirangamma has given evidence to the effect that she had presented this ring to B. S. Sampath, the deceased son of Vengadamma and that he was wearing it prior to his death which occurred about two years ago. P. W. 80 Prasanna and P. W. 79 Ratna also peak to this fact that M. O. 139 was being worn by their deceased brother B. S. Sampath while he was alive. These articles which bear special identifying marks were in "Ranga Vilas" which was burgled on the night of 5th June, 1956 and they have been traced to the possession of appellant Krishna inasmuch as they were recovered on the information furnished by him after his arrest from M. Os. 107 and 108. In the absence of any satisfactory explanation by appellant Krishna, the learned trial Judge, in our opinion, was perfectly justified in coming to the conclusion that appellant Krishna had come to possess them after committing robbery in the house of Belur Srinivasa Iyengar on the night of 5th June, 1956. Similarly the other jewels M. Os. 123 to 164 (except M. O. 139) have all been identified by P. W. 79 Ratna, P. W. 80 Prasanna and P. W. 81 Dr. Srirangamma. The learned trial Judge, who had the opportunity to see the demeanour of these witnesses has accepted their evidence as trustworthy. There is absolutely nothing elicited in the course of their cross-examination to doubt their veracity and therefore we have no hesitation in accepting their evidence about the identity of these jewels. These articles have all been traced to the possession of appellant Krishna shortly after the house of Belur Srinivasa Iyengar was burgled, i.e., within four days. In the circumstances of the case we can safely draw the presumption under S. 114 (a) of the Evidence Act that appellant Krishna had come by these articles after committing burglary.

24. There is credible evidence adduced in the case to establish that immediately after his arrest, appellant Krishna furnished information to P. W. 115 Revanna that he had kept a bundle of blood stained clothes in the hedge which formed the compound of the house in which he was living and that he would produce them if he was taken to the place. This information was reduced into writing and appellant Krishna was taken to the place. He brought out a bundle of clothes from the hedge adjoining the compound wall and produced them before P. W. 115 Revanna and the panchayatdars P. Ws. 34 Shamanna, P. W. 35 Muniswamappa and P. W. 39 Sidde Gowda. There were four clothes in it and they are M. Os. 109 to 112 and all of them were stained with blood. P. W. 38 Jayamma has identified these clothes as the clothes that appellants Krishna and Muniswamy were wearing on the night of 5/6th June, 1956 when they came back after committing burglary in the house of Belur Srinivasa Iyengar, which they removed since they had blood stains on them. P. W. 42 Venkatappa alias Motappa, the dhobi of appellant Krishna, has identified two of these clothes (M. Os. 110 and 111) as belonging to the appellant Krishna on the basis of the dhobi mark which he had put on them. There is nothing to disbelieve the evidence of these witnesses. The other two blood stained clothes M. Os. 109 and 112 have been identified as the clothes belonging to appellant Muniswamy and as those that he got stitched at Bellary when he had gone to the place in the company of P. W. 44 Channa. P. Ws. 65 to 68 have testified to this fact and nothing has been elicited in their cross-examination to discredit their evidence. These four clothes which bore blood stains on them had been sent to the Chemical Examiner and the Sero-logist for examination and report. The certificates issued by the Chemical Examiner and the Sero-logist indicate that there was human blood of O group on all these clothes. Appellant Krishna has not explained how his clothes had become blood stained. He denied that he had kept these clothes in the hedge or produced them before P. W. 115 and in the presence of the panchayatdars and that they were recovered under the mahazar Exhibit P-93. The overwhelming and unchallenged evidence of the several witnesses who speak to the fact of the production and recovery of M. O. 109 to M. O. 112 by appellant Krishna on 9th June, 1956 from out of the hedge in front of the house No. 21, Ramakrishna Mutt Road, Ulsoor, cannot be brushed aside. The recovery of these blood-stained clothes on the information furnished by appellant Krishna from out of the hedge in front of the residence of appellant Krishna clearly establishes his complicity in the crime and corroborates the evidence given by P. W. 38 Jayamma that appellants Krishna and Muniswamy had come back from the house of Belur Srinivasa Iyengar on the night of 5-6th June, 1956 with these clothes on their persons and that since they were blood stained they removed them and after bundling them up deposited them in the hedge in front of the house. It is significant to note that the two clothes (M. Os. 172 and 173) that were recovered from the person of appellant Muniswamy immediately after his arrest on 9th June, 1956 bore the dhobi mark " vi . They were identified by P. W. 42 Venkatappa alias Motappa as the clothes belonging to appellant Krishna on the basis of the marks that he had put at the lime they had been given to him for washing. It is therefore, abundantly clear that these clothes M. Os. 109 to 112 belonged to appellants Krishna and Muniswamy and that they had become blood stained and had been deposited by them in the hedge in front of the residence of appellant Krishna in the early hours of 6th June, 1956. There is no force in the contention of the learned counsel for the appellants that since the place where these clothes had been deposited was open to the public and was easily accessible to every one no importance should be attached to the fact of recovery. According to the evidence adduced by the prosecution that bundle of clothes had been kept inside the hedge and was not visible till the bundle was brought out by appellant Krishna and produced it before the Panchas.

25. There is another piece of circumstantial evidence which implicates appellant Krishna and that is the recovery of M. O. 3, a knife, from the well behind his house on the information furnished by him. The Investigating Officer has given evidence that on 13th June, 1956 appellant Krishna furnished him information as per Exhibit P-211 that he had thrown a knife into the well which is just behind his house and that he would show it and therefore he deputed P. W. 59 Muddanna, the Inspector of Police F Division to search and recover the knife from the well. P. W. 59 Muddanna went to the place with appellant Krishna and it was found that the well was not being used and that there was 20 feet of water in the well. An attempt was made to bale out water from the well on the very same day but it could not be completed. Hence on the following day P. W. 59 Muddanna was able to bale cut water with the assistance of Mysore Armed Reserve Police and Military authorities. P. W. 64 Murugan was made to get into the well and after search he brought out M. O. 3. Its blade was opened and shown to the Panchayetdars by P. W. 59 Muddanna and a mahazar was drawn up for the recovery of the same. It was sealed and packed under a mahazar Exhibit P-95(a). This knife was identified by P. W. 38 Jayamma as belonging to her and as the one that was in the house for cutting vegetables. She has stated that appellant Krishna carried it with him on the day he proceeded on his motor-cycle to raid the house of Belur Srinivasa Iyengar, P. W. 43 Prabhakar, an employee of the H. A. L. who is residing in the house adjoining premises No. 21. Ramakrishna Mutt Road. Ulsoor, has also identified M. O. 3 as the knife that was being used by appellant Krishna. The Chemical Examiner, who examined M. O. 3 has found mammalian blood on it. Since the knife had been thrown into the water and was in it for over a week before it was recovered the Serologist was not able to ascertain as to whether it was strained with human blood or not as the blood on it had been disintegrated. This knife was also identified by P. W. 44 Channa as the one that appellant Krishna had brought with him on the occasion when they had gone to commit theft in the house of Belur Srinivasa Iyengar. No material discrepancy or circumstance has been elicited in the course of the cross-examination of any of these witnesses to discredit them and to induce us to hold that their evidence is not creditworthy. The learned trial Judge, who had opportunities to watch the demeanour of these witnesses, has accepted the evidence of these witnesses as creditworthy and has found that it is appellant Krishna that is the owner of M. O. 3 and that he had thrown the same into the well behind his house.

26. This is another strong circumstance which establishes the complicity of appellant Krishna in the crime. Some evidence has been adduced by the prosecution to prove that appellant Krishna had got melted 2 or 3 rope pattern gold chains 2 or 8 days after the incident in the house of Belur Srinivasa Iyengar. An ingot has been recovered by the investigating officer during the course of the investigation of the shop of P. W. 49 Munirathnam. P. W. 46 Bapu Rao has given evidence that on 8th June, 1956 appellant Krishna had brought three gold chains one of two rows and two of single row which could be used round the neck or round the waist for being melted and purified on 8th June, 1956. P. W. 45 Bapu Jothi Jadev has given evidence that he weighed the three chains, that they weighed 13 tolas and 5 annas and that they were melted and an ingot of 11 tolas 7 annas was got out of them. According to this witness, appellant Krishna gave his name as Narasappa and the same was entered in the book Exhibit P-97 as per Exhibit P-97(a) and that a sum Rs. 6 being the charges for melting the chains was paid by appellant Krishna. These two witnesses have identified appellant Krishna as the person that had given the gold chains for the purpose of melting and gave out his name as Narasappa as entered in Exhibit P-97 (a). P. W. 51 Panduranga, a Vysya student, has given evidence to the effect that on 8th June, 1956 appellant Krishna (with whom he was acquainted,) met him in Ibrahim Saheb Street in Civil Station and offered to sell an ingot of gold to him and that he took him to his shop and purchased the ingot at the rate of Rs. 100 per tola and that the ingot weighed 11 tolas 6 - annas and quarter grain and that he purchased it for a sum of Rs. 1,143, P. W. 51 Panduranga has stated that he sold this ingot to P. W. 49 Munirathnam Reddy from whose shop the same was recovered. No reasons are assigned why the evidence of these witnesses should be rejected. Nothing has been elicited in the cross-examination of these witnesses to discredit their version It is the case of the prosecution that the two chains of single row which were melted were being used by P. W. 79 Ratna and P. W. 80 Prasanna as neck chains on occasions and that the other rope pattern double row chain belonged to Singamma. It is thus clear that appellant Krishna got melted three gold chains on 8th June, 1956, that is, three days after the burglary in the house of Belur Srinivasa Iyengar. He has not offered any explanation how he came by those three chains. In the absence of satisfactory explanation the only conclusion that could be leached is that he had committed theft of those jewels from the house of Belur Srinivasa Iyengar and had melted and converted them into cash. Large sums of money were found in the possession of appellant Krishna on the date he was arrested. A sum of Rs. 1,065 was found on his Person at the time he was arrested. Two large sums of money (Rs. 3,800 and another sum of Rs. 100 odd) were found in the two trunks M. O. 107 and M. O. 108 along with the jewels which have been satisfactorily established as the jewels stolen from the house of Belur Srinivasa Iyengar. Appellant Krishna has not claimed these sums of money as his own. He has denied that they were seized from him or on the information furnished by him from the two trunks M. Os. 107 and 108 as alleged by the prosecution. He has offered no explanation how these large sums were earned by him. The only conclusion that could be drawn in the circumstances proved in the case is that these large sums of money that appellant Krishna possessed on the date of his arrest were the fruits of burglary committed in the house of Belur Srinivasa Iyengar. There is evidence that appellant Krishna made some purchases on 6th June, 1956 and 8th June, 1956. He had purchased from V. W. 55 Mahadevasa a ready made woollen suit M. Os. 118 and 119 for a sum of Rs. 110 on 6th June, 1956; an almirah for a sum of Rs. 70 under a receipt Exhibit P-85 from P. W. 52 Abdul Rahoof and P. W. 53 Abdul Hafeez and a cot M. O. 170 for a sum of Rs. 83 under a bill Exhibit P-84 from P. W. 50 Nasa-rulla Sheriff on 8th June, 1956. All these articles were found in No. 21, Ramkrishna Mutt Road, Ulsoor when it was searched on 9th June, 1956. The above circumstances show that appellant Krishna had become suddenly rich after 6th June, 1956 and had made these purchases. He has denied everything and has not chosen to offer any explanation about any of these transactions and things.

27. It is clear from the above review of the evidence that the articles of jewellery belonging to the inmates of the house of Belur Srinivasa Iyengar, which were either on the persons of the deceased or had been kept in the several boxes in "Ranga Vilas" on 5th June, 1956 were found in the possession of appellant Krishna on 9th June, 1956 and were recovered on the information furnished by him; that clothes belonging to him had become blood-stained and had been bundled and secreted in the hedge in front of the house in which appellant Krishna was living with P. W. 38 Jayamma; that a knife M. O. 3 belonging to appellant Krishna was traced on the information furnished by him in a well behind his house and it had mammalian blood or; it, that appellant Krishna had converted some gold jewels into an ingot and sold it for cash; that he had made some purchases on 6th June, 1956 and 8th June, 1956 and that he had in his possession large sums of money. None of these incriminating things have been satisfactorily explained by him. In the absence of any explanation, the conclusion that could reasonably be reached is that appellant Krishna was one of those that broke into the house of Belur Srinivasa Iyengar on the night of 5/6th June, 1956 and committed not only the theft of the jewels and cash in the possession of the members of the family but also murdered the several inmates of the house.

28. Appellant Muniswamy was arrested on the evening of 9th June, 1956 by P. W. 59 Muddanna near an arrack shop in Shivaji Road. His person was searched by P. W. 59 Muddanna in the presence of the panchayatdars. A gold chain M. O. 176 and currency notes amounting to Rs. 136_(M. O. 177) in the right side knicker pocket and a key (M. O. 178) in the right side shirt pocket were found when his person was searched immediately after he was arrested. These articles were seized under the mahazar drawn up in the presence of the panchayatdars as per Exhibit P-106. P. W. 59 Muddanna has stated that appellant Muniswamy gave him information to the effect that he had kept some jewels in his house in Chinnayanapalaya which he had locked and took him and the panchayetdars to Chinnayanapalaya; opened the house with M. O. 178 and produced from inside an oven, a paper packet which contained a gold chain M. O. 179, a jadehuvvu M. O. 180 and a ring M. O. 181 on which the letters "B.S.S." were found engraved. These articles of jewellery were seized under the mahazar Exhibit P-106(b) by P. W. 59 Muddanna in the presence of the panchayetdars. These articles of jewellery have all been identified by P. W. 79 Ratna P. W. 80 Prasanna and P. W. 81 Dr. Srirangamma as belonging to the members of the family of Belur Srinivasa Iyengar. They have further stated that the letters "B.S.S." engraved on M. O. 181 are the initials of B. S. Sampath, the deceased son of Belur Srinivasa Iyengar, who was wearing it on his finger while he was alive and after his death the same had been kept in the iron safe. Except denying that he produced these articles of jewellery and that M. O. 176 was found on his person at the time of his arrest, appellant Muniswamy has not offered any explanation how or under what circumstances he came to be in possession of these jewels. There are no valid reasons to disbelieve the evidence of P. W. 79 Ratna, P. W. 80 Prasanna and P. W. 81 Dr. Srirangamma about the identity of these jewels. As a matter of fact, no serious attempt has been made to discredit their testimony in this regard It can, therefore, safely he taken as established that these four items of jewellery which were traced to the possession of appellant Muniswamy did belong to the members of the family of Belur Srinivasa Iyengar and were recovered from out of his possession on 9th June, 1956, that is, about four days after the burglary in the house of Belur Srinivasa Ivengar. It is in evidence that appellant Muniswamy was wearing M. Os. 172 and 173 at the time he was arrested by P. W. 59 Muddanna. These two clothes a pant and a shirt have been identified by P. W. 38 Jayamma and P. W. 42 Venkatappa alias Motappa (the dhobi) as the clothes that belonged to appellant Krishna. There are the dhobi marks " vi " on these two clothes. P. W. 38 Jayamma has stated in her evidence that appellant Krishna gave two of his clothes, viz., a shirt and a pant, to appellant Muniswamy in the early hours of 6th June, 1956 to change the blood stained clothes that were on his person This evidence of P. W. 38 Jayamma has been fully corroborated by the circumstances that M. Os. J 72 and 173 were found on the person of appellant Muniswamy at the time of his arrest. The unexplained possession of the four articles of jewellery which were found with or in the possession of deceased persons by appellant Muniswamy shortly after the commission of the burglary in the house of Belur Srinivasa Iyengar leads to the inevitable conclusion that appellant Muniswamy is one of the persons that had participated in breaking into the house of Belur Srinivasa Iyengar on the night of 5/6th June, 1956.

29. As regards appellant Govinda Reddy, it is in evidence that he was not found in his house on 9th June, 1956. His house in Gandhi Nagar was searched on 10th June, 1956 by P. W. 114 Sivacharan Singh (Inspector of Police) in the presence of the panchayetdars P. W. 26 Radha-Krishna, P. W. 27 Seshan and P. W 28 Venkata-ramiah Setty. A blood-stained panche M. O. 101 was found on an almirah in the bed-room of appellant Govinda Reddy. It was seized under the mahazar Exhibit P-82. This panche was sent to the Chemical Examiner and then on to the Sero-logist for purposes of examination. The certificates issued by the Chemical Examiner and the Serologist indicate that there was human blood on it. It is in evidence that the dhobi mark that was found on M. O. 101 tallied with the dhobi marks found on the clothes that were on the person of appellant Govinda Reddy at the time he was arrested. Appellant Govinda Reddy has not disputed the fact that M. O. 101 belonged to him. On the other hand, he states that the panche M .O. 101 that was seized belonged to him and the same was being used by his wife as a bed-cover and the blood stains found on it are due to the discharge of blood after child birth from her private parts. The learned trial Judge for very good reasons rejected this explanation of appellant Govinda Reddy and found the version of the prosecution that M. O. 101 had been kept on an almirah at the time it was seized by P. W. 114 Inspector of Police Sivacharan Singh as spoken to by the several respectable witnesses to be true. This conclusion is, in our opinion, justified in the circumstances of the case and the evidence on record. P. W. 115 Sri Revanna, the District Superintendent of Police, had directed P. W. 70 Huchuraya on 9th June, 1956 to trace and arrest appellant Govinda Reddy. Accordingly Huchuraya made attempts to trace him on that day. Appellant Govinda Reddy was not found in his house. P. W. 115 Sri Revanna issued a written order as per Exhibit P-116 to P. W. 70 Huchuraya to make efforts to trace appellant Govinda Reddy and arrest and produce him before him. P. W. 70 has stated in his evidence that he was making attempts to trace appellant Govinda Reddy and that he had set men for that purpose and that while he was going round in the city in search of Govinda Reddy on 10th June, 1956 he got information from one of his informants that appellant Govinda Reddy was coming in a lane towards the taxi stand rear the City Market at about 4-15 p. m. and therefore proceeded to the place at once. P. W. 70 has stated that the informant pointed out appellant Govinda Reddy as he was approaching the taxi stand and he proceeded fast and caught hold of the person and disclosed to him that he was an Inspector of Police and that he had put him under arrest in connection with the murders in the house of Belur Srinivasa Iyengar. P. W. 70, Huchuraya was in mufti and many of his men who were with him were also in maftis at the time appellant Govinda Reddy was arrested. According to the evidence of P. W. 70 Huchuraya a good number of persons collected at the taxi stand in front of the City Market immediately after he caught hold of appellant Govinda Reddy, that he got himself searched by P. W. 71, Abdul Sattar and then searched appellant Govinda Reddy. He has stated that nothing was found in the pockets of the coat and shirt of appellant Govinda Reddy but something was found in the knicker pocket and therefore he asked him (Govinda Reddy) to remove his dhoti. P. W. 70 put his hand into the right side pocket of appellant Govinda Reddys knicker and found a paper packet in it and took out and opened it in the presence of the panchayetdars. P. W. 70 and the panchayetdars found in the paper packet a pair of pearl bangles, a pair of gold bangles set with red stones and a necklace set with red stones, viz., M. Os. 183, 184 and 185. These articles were seized under a mahazar drawn up at the place after getting them weighed and valued by P. W. 73 Muniswami Setti as per Exhibit P-117. These articles of jewellery have been identified by P. W. 79 Ratna, P. W. 80 Prasanna find P. W. 81 Dr. Srirangamma as belonging to the members of the family of Belur Srinivasa Iyengar, when they were shown to them by the police in the Kengeri Gate Police Station. P. W. 79 Ratna has deposed that her mother Vengadamma was wearing M. O. 184 gold bangles set with red stones, that her elder sister Ranga-lakshmi was wearing M. O. 183 the pearl bangles and M. O. 185 the necklace with red stones on the night of the incident. P. W. 80 Prasanna has fully corroborated this version. P. W. 81 Dr. Srirangamma has given evidence to the effect that she got M. O. 180 the pair of pearl bangles made at Thirtha-halli and presented them to Rangalakshmi; that she purchased the necklace M. O. 185 in the shop of Messrs. P. Krishna Rao and S. L. Mannaji Rao and presented it also to Rangalakshmi. She has identified M. O. 184 as the pair of bangles that were being worn by her sister Vengadamma. P. W. 82 Yesu Das, the driver of Belur Srinivasa Ivengar has also identified these jewels as those that were on the persons of Rangalakshmi and Vengadamma on 4th June, 1956 when he drove them in the car to Malleswaram. There is no reason to discredit these witnesses. The arrest and search of appellant Govinda Reddy by P. W. 70 was attacked by the learned counsel for appellant Govinda Reddy on several grounds. He contended that the arrest appeared to be somewhat dramatic. It was urged that the version of P. W. 70 that he had gone to the place with only a shirt and a pant and nothing else; that he did not carry with him even a kerchief or pen appears strange and that it is even more surprising that he expected to sight appellant Govinda Reddy near the City Market a very busy place at that odd hour and went straight to the exact place at which appellant Govinda Reddy arrived. It was urged that the prosecution story that appellant Govinda Reddy was carrying M. Os. 183 to 185 on his person even after he had learnt that his house had been searched by the police on 9th June, 1956 and that appellants Krishna and Muniswamy had been arrested by the police is most artificial and unbelievable. There is no substance in these contentions. P. W. 70 had to go in mufti to screen his identity while he was going round in search of appellant Govinda Reddy. He has stated in his evidence that he had removed his coat and kept in the Market Police Station and was patrolling near the Market having set informants to trace appellant Govinda Reddy. There is nothing strange or dramatic about it. There is nothing strange in appellant Govinda Reddy carrying the jewels on his person even after he came to know that his house had been searched and appellants Krishna and Muniswamy had been arrested by the police. It is not unlikely that he was carrying these jewels with a view to dispose of them or to go away with those jewels out of Bangalore by engaging a taxi and for the purpose of disposing them of in some town or city. It is quite possible that he had no place where he could deposit the jewels safely. The fact that these jewels were found in the knicker pocket of appellant Govinda Reddy has been, in our opinion, satisfactorily established. It is suggested in the course of the cross-examination of P. W. 70 that his statement that he arrested appellant Govinda Reddy near the market chowk is not true but it is interesting to notice that it has not been suggested to P. W. 70 Huchuraya that he was carrying these three M. Os. with him and planted them on appellant Govinda Reddy. It is impossible to believe that P. W. 70 Huchuraya a responsible Police Officer would think of planting these jewels on an innocent man with a view to implicate him in a serious crime like murder and that he would do so, even if he had such a motive, in a busy place like the market chcwk. It was urged that the fact that P. W. 70 Huchuraya had not conveyed the information immediately after he arrested Govinda Reddy to P. W. 115 Sri Revanna and had not even directed the police constables that were with him at the spot to convey the message by telephone to P. W. 115 Sri Revanna, District Superintendent of Police, indicates in a way that his version that he arrested appellant Govinda Reddy near the market chowk, as stated by him, is not true. It was also urged that the fact that the mahazar drawn up at the place has been signed by three Sub-Inspectors and some of the mahazar witnesses have stated that there was only one Sub-Inspector lends support to the inference that neither appellant Govinda Reddy was arrested at the taxi stand nor the mahazar was drawn up at the place as alleged by the prosecution. We find no substance in any of these objections. No material facts have been elicited in the course of the cross-examination of the several witnesses which compel us to hold that they are not creditworthy. In the circumstances the learned Sessions Judge was perfectly justified in holding that these articles of jewellery M. Os. 183 to 185 were found on the person of appellant Govinda Reddy when he was arrested by P. W. 70 Huchuraya near the taxi stand in front of City Market. Except denying that he had participated in the crime and that these articles M. Os. 183 to 185 were on his person as alleged by the prosecution, appellant Govinda Reddy has not offered any explanation. The learned Sessions Judge is, therefore, justified in arriving at the conclusion that appellants Krishna, Muniswamy and Govinda Reddy had trespassed into the house of Belur Srinivasa Iyengar on the night of 5/6th June, 1956 with the intention of committing burglary and that during the commission of the burglary had murdered the inmates of the house and carried away the valuable articles of jewellery.

30. The value of the jewels that were found on the person of appellant Govinda Reddy is not more than Rs. 1,500. The total value of all the jewels alleged to have been stolen from "Ranga Vilas" excluding the cash is more than Rs. 15,000. It is urged by Sri Bhashyam for Govinda Reddy that it is most unlikely that his client would be content with only l/10th of the booty for his share and this fact that jewels, the value of which bears no proportion to his share of the booty were found in his possession indicates that he had not participated in the actual commission of the crime in "Ranga Vilas". It was also urged that it is unbelievable that appellant Govinda Reddy would receive the three jewels instead of the ready cash which was available for his share and would expose himself to the risk of being caught, if really he had participated in the crime. P. W. 38 Jayamma has stated in her evidence that appellant Govinda Reddy came to appellant Krishnas house an Ulsoor on the morning of Thursday, that is on 7th June, 1956 and that appellant Krishna took him into the pooja room, opened the trunks, M. Os. 107 and 108 and showed him all the jewels and gave M. Os. 183 to 185 to him. She has given the description of the jewels when she was examined by the Investigation Officer on 9th June, 1956 itself. The descriptions of the jewels given by her tally with the description of the jewels that were traced to the possession of appellant Govinda Reddy on 10th June, 1956. These circumstances indicate that the appellants had not yet actually distributed the booty and that they were making attempts to convert the several jewels into cash before they finally divided the booty. Moreover, what exactly was in the minds of the appellants is not possible to gather. The mere fact that the appellants had not distributed these jewels among themselves equally or equitably cannot lend support to either of the contentions raised by Sri Bhashyam. It was suggested by Sri Guru that the possibility of some person or persons murdering the inmates of "Ranga Vilas" on the night of 5th June, 1956 and some other person or persons committing theft of the jewels and cash afterwards cannot be ruled out. There is no force in the contention. The nature of the weapons used for committing the murders, the enormity of the injuries inflicted on the several deceased persons and the portions of the body over which the injuries had been inflicted and the fact that a large number of jewels had been stolen after opening almost all the boxes found in the house unmistakably indicate that the motive of the culprits was burglary. On a careful review of the entire evidence relating to the recovery of the articles of jewellery adduced by the prosecution we have no hesitation in concurring with the conclusion arrived at by the learned Sessions Judge that it is the appellants that had broken into the house of Belur Srinivasa Iyengar on the night of 5/6th June, 1956 and committed theft of the several articles of jewellery.

31. The next and the most important circumstance which establishes the complicity of all the three appellants beyond all reasonable doubt is the tracing of their finger impressions on certain silver wares that were found scattered in the store-room of "Ranga Vilas" on the morning of 6th June, 1956. P. W. 114 Sri Sivacharan Singh has given evidence to the effect that immediately after recording the statement of P. W. 25 Nagaraj and submitting the F. I. R. he summoned to the place the Photographer and the Finger Print Expert attached to the Scientific Laboratory of the Police Department and requested them to examine the several places and the articles for foot and finger impressions, if any. P. W. 108 Thimmiah, the Photographer and P. W. 109 Prema, Finger Print Expert attached to the Laboratory, came to the place at once and examined the several places and the articles for finger and foot impressions. P. W. 109 Prema examined the premises minutely with the aid of magnifying glass and found some impressions smudged, partial and overlapping in several places and instructed P. W. 108 Thimmiah to take the photographs of them for the purpose of examining them. He also found some impressions on 19 of the silver articles that were lying scattered in the store-room and showed them to the panchayetdars. He took those nineteen articles to the Laboratory for detailed examination with the permission of P. W. 114 Sivacharan Singh, the Inspector of Police. He developed the latent finger prints that were on those silver wares with the powdering and processing method and examined them in bright light in the Laboratory and found that three of them, viz., M. Os. 86, 87 and 89 contained finger impressions which were identifiable. He, therefore, requested P. W. 108 Thimmiah to take the photographs of the impressions that he had developed on the three silver wares and enlarge them and furnish him with the positive photographs of these impressions for the purpose of comparison. P. W. 110 Mohammed Yakoob is the Officer in charge of the Scientific Laboratory of the Finger Print Bureau. He is an Assistant Superintendent of Police. He had gone to Mercara on official duty on 4th June, 1956 and came back to Bangalore on the evening of 6th June, 1956. P. W. 109 Prema, finger print expert, who is working under P. W. 110 Mohammed Yakoob as an Assistant delivered the photographs of the impressions found on M. Os. 86, 87 and 89 to him on 7th June, 1956 for the purpose of examination in the Laboratory. He also delivered all the nineteen articles M. Os. 81 to 99. P. W. 110 Mohammed Yakoob compared the photographs with the impressions that were found on M. Os. 86, 87 and 89 and found them tallying. He compared the prints on M. Os. 86, 87 and 89 with the three photographs Exhibits P-175, P-176 and P-177 and found them to be the correct photographs of the impressions found on the three articles. He also examined the impressions on M. Os. 86, 87 and 89. On 8th June, 1956, P. W. 110 Mohammed Yakoob received the finger tips of the deceased persons Singamma, Vengadamma, Ramalingam, Lava, Kusha and Belur Srinivasa Iyengar. He took the impressions of the tips of finger of all those persons and compared them with the enlarged photographs of the impressions found on M. Os. 86, 87 and 89 and found that they did not tally. He informed this fact to the Investigating Officer on 9th June, 1956 and requested him to furnish the finger print impressions of suspects, if any, for the purpose of comparison with the developed latent impressions. The evidence adduced in the case makes it abundantly clear that the photographs Exhibits P-175, P-176 and P-177 are the enlarged photographs of the finger impressions found on M. Os. 86, 87 and 89, respectively. On 11th June, 1956, P. W. 115 Sri Revanna, the Investigating Officer, directed P. W. 112 Krishna-murthi and P. W. 111 Daffedar Nanjundiah to obtain the thumb impressions of the three accused persons that had been arrested and kept in separate lock-ups in Bangalore City. Accordingly P. W. 111 and P. W. 112 went to the respective lock-ups and took the finger impressions of all the ten fingers of the three accused persons on Form No. 94 and prepared also the search slips. Exhibit P-191 is one of the finger print slips of Govinda Reddy. Exhibit P-190 is one of the slips of Krishna and Exhibit P-192 is one of the slips of Muniswamy taken by P. W. 112 Krishnamurthy and P. W. 111 Nanjundiah on 11th June, 1956. The slips of finger prints taken from the fingers of the three accused persons were sent to P. W. 115 Revanna and he in turn sent them to P. W. 110 Mohammed Yakoob for the purpose of comparison with the photographs of the latent impressions found on M. Os. 86, 87 and 89. The finger print expert compared the impressions found in the finger print slips with the enlarged photographs of the latent impressions and found that the two impressions found on M. O. 86 which were marked as "0" and "01" by him in the photograph Exhibit P-175 tallied with the right ring finger impression and the right middle finger impression of appellant Krishna, that the impression on M. O. 89 the enlarged photograph of which was Exhibit P-176 tallied with the right middle finger impression of appellant Govinda Reddy, and the impression on M. O. 87 of which Exhibit P-177 is the enlarged photograph tallied with the right thumb impression of appellant Muniswamy. P. W. 110 Mohammed Yakoob then directed P. W. 108 Thimmiah to take the photographs of the impressions of the agreeing fingers from the finger slips. Accordingly P. W. 108 Thimmiah took the photographs in the presence of P. W. 110 Mohammed Yakoob. Exhibit P-193 is the negative of the impressions of the right middle finger and of right ring finger (Exhibits P-190(b) and P-190(c), respectively); and Exhibit P-194 is the enlarged photograph of the right middle finger impression and Exhibit P-195 is the enlarged photograph print of the right ring finger impression of appellant Krishna. Exhibit P-196 is the negative of the impression of the right middle finger of Govinda Reddy and Exhibit P-197 is the enlarged photograph taken from Exhibit P-191(b). Exhibit P-198 is the negative of the photograph of the right thumb impression of appellant Muniswamy. Exhibit P-192(b) is the impression of the right thumb of appellant Muniswamy and Exhibit P-199 is the enlarged photograph thereof. P. W. 110 Mohammed Yakoob compared these impressions minutely and carefully in the Laboratory and came to the conclusion that the impressions that were found on M. O. 86 were those of the right ring and right middle finger of appellant Krishna, that the single impression found on M. O. 87 is the impression of the right thumb of appellant Muniswamy and the impression found on M. O. 89 is the impression of the right middle finger of appellant Govinda Reddy. The finger print expert found as many as fifteen characteristics common between the impression "Q" in Exhibits P-175 and Exhibit P-194; as many as fourteen common characteristics between the impression "Ql" in Exhibit P-175 and Exhibit P-195 and has described them fully in his written opinion sent to the Investigating Officer. There were as many as fifteen characteristics that were common between the impression of the right middle finger of appellant Govinda Reddy and the impression that was found on M. O. 89 the enlarged photograph of which is exhibit P-176. Similarly the Expert found thirteen characteristics which are common to both latent and patent impressions of the right thumb of appellant Muniswamy. The Expert who was examined as P. W. 110 in the trial Court has been subjected to searching cross-examination and nothing has been elicited to discredit his evidence. The learned Sessions Judge has accepted the opinion of the Expert about the identity of these impressions. The correctness of the opinion of the Experts and the conclusion based on the same by the learned trial Judge have been challenged by the learned Counsel for the appellants on many grounds. It was contended that P. W. 108 Thimmiah is an amateur in photography, that he had not taken the photographs of all the nineteen articles, photographs of M. Os. 86, 87 and 89 with the impressions on them and that he had not taken the contact photographs of these negatives to show that Exhibit P-195. Exhibit P-196 and Exhibit P-197 are the enlarged photographs of them and therefore no value should be attached to them. There is absolutely no substance in any of these contentions, P. W. 108 Thimmiah has stated in his evidence that he is working as a photographer in the Police Department for the last 25 years. It is no doubt true that he does not possess any technical qualification inasmuch as he has neither obtained a degree nor a diploma in photography but his experience for over 25 years in photography is sufficient enough to call him as an Expert. P. W. 108 Thimmiah has stated in his evidence that he did what all he was directed to do by P. W. 109 Prema and P. W. 110 Mohammed Yakoob and nothing more. The mere fact that he had not taken the photographs of these nineteen articles and the photographs of the three articles M. Os. 86, 87 and 89 with the impressions on them cannot be a ground to discard his evidence. He has stated that he did not feel it necessary to take the photographs of the articles with the impressions on them since the articles themselves were likely to be produced before the Court for purposes of comparison. He has also stated that he look enlarged photographs directly from the negatives and therefore there was no need to take the contact prints from them. There is absolutely nothing to doubt the correctness of the statement made by P. W. 108 Thimmiah about the identity of the articles from which he took the photographs and enlarged them. It was contended that P. W. 110 Mohammed Yakoob is not an expert inasmuch as he had not sufficient experience in the matter of comparison of thumb impressions and the learned trial Judge was not justified in entirely depending upon his opinion in corning to the conclusion that the impressions found on M. Os. 86, 87 and 89 agreed with some of the finger impressions of appellants Krishna, Muniswamy and Govinda Reddy, respectively. It is seen from the Judgment of the learned Sessions Judge that he did not delegate his duties to the Expert of finger prints. He has not based his conclusions simply because the Expert stated that the finger prints are identical but on the contrary he has on an elaborate, thorough and detailed discussion on the evidence of the Expert, agreed with the opinion of the Expert. Moreover, the learned trial Judge has stated in the course of his Judgment that he examined the enlarged photographs of the patent impressions with the disputed latent finger prints with the aid of magnifying glass and found them tallying. There is absolutely nothing to doubt the statements of the learned Sessions Judge. The science of comparison of finger prints has developed to a stage of exactitude. It is quite possible to compare the impressions taken from finger prints of individuals with the disputed impressions, provided they are sufficiently clear and enlarged photographs are available. The identification of finger impressions with the aid of a good magnifying glass is not difficult, particularly when the photographs of latent and patent impressions are pasted side by side. We have ourselves examined the enlarged photographs of the admitted and the disputed thumb impressions which are pasted on sheets of paper and we have no doubt in our mind that the opinion of the Expert is correct. The opinion of the Expert, based as it is on a careful comparison of the enlarged photographs, has not been shattered by the lengthy cross-examination. There is absolutely no reason to think that there is any room for error in matters of this kind. It appears to us that P. W. 110 Mohammed Yakoob has compared the disputed and the patent impressions carefully and the learned Sessions Judge was perfectly justified in accepting his opinion and basing his conclusion that the impressions found on M. Os. 86, 87 and 89 tally with the right ring and right middle finger impressions of appellant Krishna, the right thumb impression of appellant Muniswamy and the right middle finger impression of appellant Govinda Reddy, respectively.

32. It was strenuously urged by the learned Counsel for the appellants that the Investigating Officer acted in violation of the right guaranteed by Art. 20 (3) of the Constitution of India in directing P. W. 111 and P. W. 112 to take the thump impressions of the three appellants while they were in custody for purposes of comparing them with the latent impressions found on M. Os. 86, 87 and 89 and therefore that evidence collected on a comparison of the impressions so taken by the Investigating Officer cannot be made use of against the appellants. Article 20(3) of the Constitution of India reads thus : "No person accused of any offence shall be compelled to be a witness against himself. Relying on certain observations of the Supreme Court in M. P. Sharma v. Satish Chandra, AIR 1954 SC 300 (Z6), it was argued that taking of thumb impressions of as accused person during the course of the investigation is virtually compelling him to give evidence to incriminate himself and therefore is in the nature of testimonial compulsion and is hit by Art. 20 (3) of the Constitution of India. In M. P. Sharma v. Satish Chandra (Z6), their Lordships observed as follows : "Indeed every positive volitional act which furnishes evidence is testimony and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the Court room........ "that the protection afforded to an accused in so far as it is related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the Court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution." 33.Their Lordships held in the same case that a search warrant which is addressed to an officer of the Government generally to a police officer to search and seize a document from the place of an accused person is not hit by Art. 20(3). The question as to whether the thumb impressions taken by the police during the course of the investigation can be produced in Court as evidence against the accused and whether the same amounts to testimonial compulsion came up for consideration before Somasundaram, J. in In re Sheik Muhammad Hussain, AIR 1957 Mad 47 (Z7). His Lordship after considering the effect of the decision of the Supreme Court in Sharma v. Satishchandra (Z6) observed as follows : "But so far as I am aware Their Lordships of the Supreme Court have not held that any statement taken by the police or anything done by the Police in course of investigation which is subsequently produced before the Court as evidence is hit by sub-cl. (3) of Art. 20 of the Constitution. In my opinion the thumb impression taken by the Police on a slip of paper which was later on produced in Court cannot amount to testimonial compulsion." His Lordship Somasundaram, J. held that the slip of paper on which the thumb impression of the accused person had been taken during the course of investigation was admissible in evidence for the purpose of comparing it with the finger impression of the accused with those of the disputed thumb impressions and the same was not hit by Art. 20 of the Constitution. In Re, Soruanalingam Chettiar, AIR 1955 Mad 685 (Z8). repelling the argument that the issue of a search warrant to seize and produce certain documents from an accused person is hit by Art. 20 (3) of the Constitution, his Lordship Balakrishna Aiyer, J. observed as follows : "A person may commit a murder and bury the body in the backyard of his house and he may commit burglary and keep the loot in an almirah inside his house, or he may commit cheating and keep the proceeds thereof in a drawer of his writing desk and they would all be as safe as if they had been lodged in the Bank of England. The Constitution is not intended to be a charter for the lawless and there is nothing in Art. 20 of the Constitution or in any of its other articles to prohibit the police from searching either the person of the accused or the premises in the manner laid down by Criminal Procedure Code." It is clear from the above that issue of a search warrant or taking other proceedings for seizure of documents or articles or any incriminating evidence from the custody or the person of an accused by the police even if it be quite against his will such as stolen articles or blood stained clothes and the finger prints does not amount to testimonial compulsion. Madhya Pradesh High Court in Brij Bhushan Raghunandan Prasad v. The State, (S) AIR 1957 MP 106 (Z9), accepted the correctness of the decision of Somasundaram, J. in AIR 1957 Mad 47 (Z7). In that case it was pointed out by the learned Government Advocate that the decision of Somasundaram, J. in AIR 1957 Mad 47 (Z7), apparently ran counter to what the learned Judge himself has stated in an earlier case reported in Rajamuthukoil Pillai v. Periayasami Nadar, AIR 1956 Mad 633 (Z10). Their Lordships after reviewing both the decisions of Somasundaram, J. held that there was no contradiction between the two decisions and observed that in AIR 1956 Mad 632 (Z10), it was held by the learned Judge that a direction by the Court to the accused to give his thumb impression amounted to asking him to furnish evidence that this was prohibited under Art. 20 (3) and in AIR 1957 Mad 47 (Z7), what was considered was the question about the admissibility of the thumb impression given by the accused apparently without any objection and the same was not hit by Art. 20 (3) of the Constitution.

34. A more recent decision where the Supreme Court decision in AIR 1954 SC 300 (Z6), and other decisions following it are reviewed is that reported in In re, Palani Goundan, AIR 1957 Mad 546 (Z11). In (hat case their Lordships Somasundaram and Ramaswamy Goundar, JJ. considered the scope of Art. 20 (3) of the Constitution. His Lordship Rama-swami Goundar, who rendered the judgment in the case after examining all the decisions of the several High Courts and that of the Supreme Court, observed as follows : "It is therefore clear from the decision cited above that under a search warrant or other kindred process of law, documents or articles or any other incriminating evidence can be seized from the custody or the person of the accused by force and against his will such as stolen articles, blood stained clothes, etc., but he cannot be compelled to produce them himself. For the same reason there can be no objection to an accused person being taken to a doctor for the examination of injuries on his body so as to ascertain whether he could not have participated in an occurrence. He can also be taken to an identification parade to enable the prosecution witnesses to observe his physical features with a view to identify him." "There is one aspect of this matter which calls for some mention, namely, the taking of the signature or the thumb impression of an accused for the purpose of its being compared with the signature or thumb impression in questioned documents with a view to establish offences such as forgery, criminal breach of trust, etc. It appears to me that the making of thumb impression or the signature of the accused does not stand on a different footing from the seizure of documents or articles or other facts of evidence from the person of the accused. Though he cannot be compelled to produce such evidence it can be taken or seized from him. That is an act of another to which he is obliged to submit and not the positive volitional evidentiary act of the accused to use the language of the Supreme Court. S. 73 of the Evidence Act enables a Court to take such thumb impression; and the central act 33 of 1920 enables a Police Officer to take what is called the measurements of the accused which include finger and footprint impressions. That being so, it seems to me that the finger print or the footprint of that accused is a fact of evidence which he carried with him and the Police Officer who is authorised under the said Act may seize that evidence by taking his thumb impression to a piece of paper. In a Rangoon decision reported in Emperor v. Nga Tun Hlaing, AIR 1924 Rang 115 (FB) (Z12), in answering a contention that by directing the accused to make his finger impression the Court is in effect compelling him to provide evidence against himself one of the learned Judges who constituted the Full Bench observed thus at p. 119. "Such a contention is however in my view inadmissible since what really constitutes the evidence, viz., the ridges on this thumb are not provided by him any more than the features of his contentions are provided by him. All that he is asked to do is to display those ridges; for better scrutiny the ridges are inked over and an impression is made on a piece of paper." Later on in the same decision, His Lordship dealt with the two decisions of Somasundaram, J. and observed thus : "On the question of taking the thumb impression or the handwriting of the accused there are two decisions of our High Court both rendered by my learned brother, Somasundaram, J. In 1952-2 Mad LJ 468 : (AIR 1956 Mad 632) (Z 10) there was a direction by the Magistrate to the accused to give his thumb impression in Court so that it might be compared with certain other documents on which the complainant relied. The learned Judge held that the direction asking the accused to give his thumb impression would amount to asking him to furnish evidence which is prohibited under Art. 20 (3) of the Constitution, and therefore the accused cannot be compelled to give the thumb impression as directed by the Magistrate. I respectfully agree with that decision because that was a case where the accused was directed to give his thumb impression and not a case where it was taken from him. He cannot be compelled to produce evidence against himself. But there can be no objection to a police officer taking the thumb impression of an accused for the purpose of his investigation. That was, in fact, the decision in the other case, Criminal Appeal No. 552 of 1955 (Unreported) (Since reported in AIR 1957 Mad 47) (Z7) ), where the thumb impression of the accused was taken by Sub-Inspector of Police. Relying on the decision of the Supreme Court it was contended that that evidence was hit by Art. 20 (3) as it amounted to testimonial compulsion. But my learned brother repelled that contention with this observation." But so far as I am aware, their Lordships of the Supreme Court have not held that any statement taken by the Police or anything done by the police in the course of investigation which is subsequently produced before the Court as evidence is hit by sub-cl. (3) of Art. 20 of the Constitution. In my opinion the thumb impression taken by the Police on a slip of paper which was later on produced in Court cannot amount to testimonial compulsion. These two decisions of my learned brother Somasundaram, J. forcibly illustrate the general principle which I have endeavoured to evolve, namely, while the accused cannot be compelled to produce any evidence against himself, such evidence can be taken or seized, provided of course, such taking or seizure is legally permissible."

35. If we may say so with respect the above observations of his Lordship Ramaswamy Goundar bring out what we have in our mind precisely. Even if it is assumed that the Sub-Inspector of Police and the Daffedar compelled the appellants to give their thumb impressions or forcibly took their impressions on the sheets of paper during the course of the investigation, in our opinion, it is not hit by Art. 20 (3) of the Constitution of India since it does not amount to testimonial compulsion. We may in this connection state that even in the United States of America where the guarantee of "due process" is in vogue it is held that taking of finger prints does not violate the privilege against self incrimination. Hugh Evander Willis in his treatise on Constitutional Law of the United States (1936 Edition) at page 522 states : "Is the taking of finger prints a violation of the privilege against self-incrimination? This question seems to have been answered in the negative. The accused does not exercise a volition or give oral testimony. He is passive. He is not giving testimony about his body but is giving his body. If there is any question involved it is a question of the right of privacy." Willoughby in his book on "the Constitutional Law of the United States" (Second Edition) at page 1172 in paragraph 719 dealing with compulsorily taking of finger prints states as follows: "Though there are no direct cases in the United States Supreme Court upon the point, there are State decisions which support the doctrine that the accuseds right to immunity from self-incrimination is not violated when he is compelled to exhibit himself or a part of his body to the jury or to allow a record of his finger prints to be taken." It is, therefore, clear that there is no substance in the contention raised on behalf of the appellants.

36. It was urged that the evidence of P. W. 108 Thimmiah, P. W. 109 Prema and P. W. 110 Mohammad Yakoob should not be accepted in the absence of other independent evidence since they are officers attached to the Police Department and are actually working under the control of P. W. 115 Sri Revanna, District Superintendent of Police. It was strenuously urged that the evidence of Police Officers should not be accepted without calling for corroboration.

37. A somewhat similar argument was advanced in Aher Raja Khima v. State Of Saurashtra ., (S) AIR 1956 SC 217 (Z 13-14). His Lordship Venkatarama Iyer, J. repelled that argument in the following terms : "Pausing here; it will be seen that in discussing the question of the recovery of the bloodstained axe, as indeed throughout the judgment the learned Sessions Judge has taken up the attitude of distrust towards the police for which it is difficult to find any justification in the evidence an attitude which I regret to say, is becoming a growing feature of judgments of Subordinate Magistrates. When at the trial it appears to the Court that a police officer has, in the discharge of his duty, abused his position and acted oppressively, it is no doubt its clear duty to express its stern disapproval of his conduct. But it is equally its duty not to assume such conduct on the part of the officer gratuitously and as a matter of course when there is as in this case no reasonable basis for it in the evidence or in the circumstances. The presumption that a person acts honestly applies as much in favour of a police officer as of other persons and it is not a judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the Police Administration." In our opinion, the above observations of his Lordship give an effective answer to the contention raised by the learned counsel for the appellants against the evidence of P. W. 108 Thimmiah, P. W. 109 Prema and P. W. 110 Mohammad Yakoob. 38.It was submitted on behalf of the appellants, somewhat strenuously, that the impressions of the finger prints had been obtained subjecting them to compulsion and without apprising them for what purposes they were being obtained and that any evidence based on their comparison should not be allowed to be used against the appellants. Except the self-serving bald assertion of the appellants, there is nothing in the records to indicate that any force or compulsion was used against the appellants while the impressions of their finger prints were obtained by P. W. 111 Nanjundiah and P.W. 112 Krishnamurthi. The mere fact that the appellants were in lock-ups and were produced by the Police Officers or police constables were around them when their impressions were obtained by the two witnesses does not necessarily lead to the conclusion that any force or violence or compulsion was used against the appellants. P.W. 112 Krishnamurthi has stated in his evidence that the appellants agreed to give the impressions of their fingers when he explained to them that he had come to take the impressions for the purpose of investigation of the case. P.W. 111 Nanjundiah has corroborated this evidence. There is no reason why the evidence of the S. I. of Police and the Daffedar in this regard should be rejected. If really the appellants had been compelled to give their thumb-impressions quite against their will they had opportunities to complain about it to the Magistrate when they were produced by the police for the purpose of obtaining their remands. It is clear that they did not do so. P.W. 111 Nanjundiah and P.W. 112 Krishnamurthi denied the suggestion that they had obtained the thumb impressions by "Zoolum" or "Zabardust" as alleged by the appellants.

39. It was urged by Sri Guru, the learned counsel for the appellants that the defence of the appellants had been seriously prejudiced by the order passed by the learned trial Judge on I. A. Nos. V and VI filed for summoning some witnesses for the defence of the accused and therefore the trial is vitiated and is liable to be set aside. We see no substance in this contention. The appellants were called upon by the City Magistrate, Bangalore after they were directed to take their trial before the Court of Sessions on the several charges which were read over and explained to them to submit a list of witnesses that they desired to examine in the trial court. The appellants did not produce any list and submitted before the Magistrate that they would file lists later on. The appellants did not produce or submit any list of witnesses to the Magistrate upto the date of the commencement of the trial. But a list of defence witnesses was, no doubt, submitted on behalf of the appellants by Sri Guru in the Court of Sessions immediately after the trial commenced. The learned counsel cited Sri Hanmanthaiya, the then Chief Minister of Mysore, Sri H. Siddaveerappa, the Home Minister, the Inspector General of Police, the Deputy Inspector General of Police and the Press Representatives of Praiavani. Tai Nadu and Janavani dailies in the list so filed. No reasons for citing those witnesses had been stated in the application. The learned Sessions judge, therefore, called upon the learned Counsel for the appellants to indicate to the Court on what matters those witnesses where likely to give evidence. The learned Judge wanted to be satisfied that the evidence of those witnesses was material and they had not been summoned for the purpose of causing unnecessary delay or defeat the ends of justice. It was submitted by the learned Counsel for the accused that the Chief Minister, the Home Minister the heads of the Police Department and the press representatives had all visited "Ranga Vilas" on the morning of June 6th, 1956 to see the condition of the house and the dead bodies and therefore their evidence was material. It was also submitted that the then Inspector-General of Police had undergone training in Scotland Yard in Scientific investigation of cases and as such was competent to give his opinion about the investigation conducted in the instant case. The learned trial Judge rejected the application holding that the purpose of summoning those witnesses was vexatious and was intended to cause unnecessary delay and at the same time he observed in the course of his order that he had no objection to direct summons to be issued to any of the representatives of the daily papers if it was indicated that they had personal knowledge about any matter in the case and were competent witnesses and their names and addresses were furnished. The learned counsel for the accused did not indicate on what material points the several press representatives were likely to give material and useful evidence. In the circumstances we are of opinion that the appellants cannot have any grievance in the matter. As a matter of fact Govinda Reddy examined three witnesses for his defence But accused Krishna and Muniswamy did not examine any witness on their behalf. It is interesting tc note that accused 1 and 2 stated before the learned trial Judge when they were called upon to enter upon their defence and state whether they had any defence witnesses to be examined on their behalf that they had no witnesses to be examined.

40. After a careful review of the entire evidence adduced in the case we entertain no doubt in our minds that the conclusions arrived at by the learned Sessions Judge that every one of the circumstances relied upon by the prosecution had been satisfactorily established by clear evidence and that those circumstances are inconsistent with the innocence of the accused and lead to the irresistible conclusion that it is the appellants and appellants alone that committed the several offences alleged against them, are in the circumstances of the case perfectly justified. We do not see any ground to differ from the learned Sessions Judge. The Several circumstances proved against the appellants are clearly tell-tale circumstances and establish beyond doubt that the accused broke into the house of Belur Srinivasa Iyengar on the night of 5-6th June, 1956 with the common intention of committing burglary and murdered the inmates of the house. The nature of weapons used and the enormity of the injuries inflicted and the portions of the body over which they are all inflicted clearly show that the common intention of the appellants was to bring about the deaths of their victims to facilitate theft of the articles of jewellery and the cash that were in the house. No other inference is possible in the circumstances of the case. The fact that a large number of jewels belonging to and in the possession of the members of Belur Srinivasa Iyengars family which were found missing from the house on the morning of 6th June, 1956 were traced and recovered from the appellants either from the person of the accused or from their possession establishes beyond all reasonable doubt that these appellants are the persons that had invaded "Ranga Vilas" and committed theft of the articles of jewellery and for that purpose committed murders of Vengadamma, Singamma, Lava, Kusha, Ramalingam and Belur Srinivasa Iyengar and inflicted grievous injuries to Rangalakshmi with a view to commit her murder. The convictions of the appellants on all the charges based as they are on very good evidence adduced in the case except on charges under S. 380 of the Indian Penal Code are liable to be confirmed. As regards the convictions of the appellants of an offence under S. 880 of the Indian Penal Code we feel that it cannot be maintained. The learned Sessions Judge has convicted all the appellants of an offence punishable under S. 392 of the Indian Penal Code for having committed robbery. He has also convicted the appellants of an offence under S. 380 of the Indian Penal Code in respect of the theft of the very same articles. Robbery is an aggravated form of theft. When the appellants are convicted of an offence of robbery in respect of the articles removed from the house of Belur Srinivasa Iyengar they cannot also be convicted of an offence punishable under S. 380 of the Indian Penal Code for having committed theft of them. Therefore, the convictions of the appellants in respect of the offence of theft under S. 380 of the Indian Penal Code are liable to be set aside and are set aside.

41. As regards the sentences it was suggested by Sri Bhasyam that if this Court is inclined to act upon the circumstantial evidence adduced in the case and hold that the appellants committed the offences alleged against them and decide to record a conviction of murder as against the appellants the Court should not impose the extreme penalty of the law and that in the state of record the lesser of the two punishments provided under S. 302 of the Indian Penal Code, namely, imprisonment for life, should be deemed to meet the ends of justice. There is no force in this argument. As observed by their Lordships of the Supreme Court in Vadivelu Thevar v. State of Madras, (S) AIR 1957 SC 614 (Z15), the question of sentence has to be determined not with reference to the volume of character of the evidence adduced by the prosecution in support of the prosecution case but with reference to the fact whether there are any extenuating circumstances which can be said to mitigate the enormity of the crime. Their Lordships of the Supreme Court observed as follows : "If the Court is satisfied that there are such mitigating circumstances, only then, it would be justified in imposing the lesser of the two sentences provided by law........The question as to what punishment should be imposed is for the Court to decide in all the circumstances of the case with particular reference to any extenuating circumstances. But the nature of proof as we have indicated, has nothing to do with the question of punishment." In the instant case there are no extenuating circumstances which can be legitimately urged in support of the view that the lesser penalty under S. 302 of the Indian Penal Code would meet the ends of justice. It is clear from the evidence adduced in the case that the appellants have acted like barbarians inasmuch as they have killed six innocent persons including two children while they were fast asleep and for gain. The appellants had gone prepared with M. Os. 1, 3 and 4 to meet all eventualities and to commit the murders of the inmates of the house to facilitate the commission of robbery and did as a matter of fact commit the murders of six persons and commit theft of a large number of articles of jewellery and other articles. The murders, apart from being pre-planned, are dastardly and we do not think that any sentence other than death would be appropriate in the circumstances disclosed in the case in so far as the charges under S. 302 of the Indian Penal Code are concerned. As regards the other offences we feel that the sentences awarded to the appellants do not call for our interference.

42. In the result, therefore, for the reasons stated above and subject to the modification of the convictions and sentences of the appellants in respect of the charges under S. 380 of the Indian Penal Code read with S. 34 of the Indian Penal Code, these appeals are dismissed. The reference made by the learned Sessions Judge under S. 374 of the Code of Criminal Procedure is accepted and the sentences of death passed against the appellants are Confirmed. Order accordingly. AIR 1958 MYSORE 184 (VOL. 45, C. 42) "C. Shivappa v. G. Murigappa" MYSORE HIGH COURT Coram : 2 S. R. DAS GUPTA, C. J. AND A. R. SOMNATH IYER, J. ( Division Bench ) Chanabasappa Shivappa, Petitioner v. Gurupadappa Murigappa and others, Respondents. Writ Petn. No. 220 of 1957, D/- 3 -12 -1957. (A) States Reorganisation Act (37 of 1956), S.119 - STATE REORGANISATION - MUNICIPALITIES - LAW - Having the force of law - Notification issued by Bombay Government u/Sec.22 (2), Bombay District Municipal Act - Area to which notification applied becoming part of Mysore State - Absence of fresh notification by Mysore Government - Effect on jurisdiction of judge to enquire into validity of election. Municipalities. Bombay District Municipal Act (3 of 1901), S.22(2). Constitution of India, Art.13. The effect of Sec. 119 of the State Reorganisation Act is that the law in force in the area which was within the State of Bombay before the appointed day and which had come to the State of Mysore after such appointed day, will remain in force so far as those territories are concerned. It follows from the section that the Bombay District Municipal Act would still be the law in the area which belonged to the State of Bombay but which had since come to the State of Mysore. Therefore the provisions of sub-s. (2) of Sec. 22 of that Act could still apply to the area which has been transferred to Mysore State. (Para 10) By virtue of the definition of law in the Act, a notification issued under the provision of a statute can be law for the purpose of the Act if it has the force of law in the whole or in any part of the territory of India and therefore the notification issued by the Bombay Government can be said to be a law in force immediately before the appointed day. Law is a body of rules which can be enforced in a court of law. Having the force of law" means that a particular set of rules or a particular notification although may not strictly be railed law may still have the force of law, which means that it would be enforced in a court of justice. Judged by that standard the notification issued by the Bombay Government under Sec. 22 (2), Bombay District Municipal Act has the force of law. That being so the notification issued by the Bombay Government and which was in force immediately before the appointed day would still apply to the part of the Mysore State which before its integration with that state formed part of the Bombay State and gave power to the Judges mentioned therein to exercise the functions enumerated in sub-s. (2) of Sec. 22 of the Municipal Act, even after the integration without the necessity for a fresh notification by the Mysore State. (Para 11) Anno : AIR Com., Const, of India, Art. 13, N. 2,2b. (B) Bombay District Municipal Act (3 of 1901), S.22(2) - ELECTION - MUNICIPALITIES - Elections - Notification appointing all joint judges and Assistant judges to exercise functions enumerated Validity of notification. Municipalities Bombay District Municipal Act (3 of 1901), S.22 (2). When the sub-section says that an enquiry shall be held by a judge, not below the grade of an Assistant Judge, appointed by the State Government it means that the government by a notification may appoint a person who is a judge. It follows therefrom that the government may, by a notification appoint a number of persons who are judges for the aforesaid purpose. Therefore the notification of the Bombay Government which said that all persons who held the posts of joint judges and of assistant judges on the date of the notification in the State of Bombay were given power to decide the cases mentioned in sub-s. (2) of Sec. 22 is not invalid on the ground that the Government in giving power to all joint judges and assistant judges generally by the notification had acted beyond its powers. (Para 12) (C) Bombay District Municipal Act (3 of 1901), S.22(2) - ELECTION - MUNICIPALITIES - Elections - Decision of election case by Extra Assistant Judge - Validity of. Municipalities Bombay District Municipal Act (3 of 1901), S.22(2). An Extra Assistant Judge is still an Assistant Judge as there is no real difference in the cadre between an Assistant Judge and an Extra Assistant Judge. That being so an Extra Assistant Judge is also clothed with authority by the notification of the Bombay Government which gave power to the joint judges and Assistant Judges to decide election cases under sub-s. (2) of Sec. 22. (Para 13) (D) Bombay District Municipal Act (3 of 1901), S.22(3)(b) - ELECTION - MUNICIPALITIES - Elections - Order for scrutiny of votes - Power of judge to order. Municipalities Bombay District Municipal Act (3 of 1901), S.22(3)(b). On the wordings of sub-clause (b) of sub-s. (3) of the section the judge shall, in a case where no corrupt practice has been alleged or, in any event, where no such corrupt practice has been proved and where the validity of an election is in dispute between two or more candidates, the judge shall make a scrutiny and computation of the votes recorded in favour of each such candidate and declare the candidate who is found to have obtained the greatest number of such votes to be duly elected. In making such a scrutiny the judge shall also determine which are the votes validly cast in favour of the candidates. The proviso to the sub-clause also makes it clear that it is within the jurisdiction of the judge to find out whether or not any vote which has been recorded, has been cast by means of corrupt practice committed by any person known or unknown in giving or obtaining it. The sub-section does not say that the petitioner must allege that the votes have been invalidly cast in favour of the other candidate and such invalid votes have been received and make out a prima facie case that such votes were in fact cast before scrutiny can be ordered. (Para 14) (E) Bombay District Municipal Act (3 of 1901), S.22(5) - ELECTION - MUNICIPALITIES - Elections - Setting aside election Grounds alleged corrupt practice, partiality and counting of invalid votes - Sub-section not a bar to setting aside election. Municipalities Bombay District Municipal Act (3 of 1901), S.22(5). Sub-section (5) has no application to a case where the election is brought into question on the grounds of corrupt practice, partiality and the inclusion of invalid votes. The sub-section would apply only to a case where the validity of the election is brought into question only on the ground of any error by the officer charged with carrying out the rules or of an irregularity or informality. (Para 16) (F) Bombay District Municipal Act (3 of 1901), S.22(3)(b) - ELECTION - MUNICIPALITIES - Elections - Exercise of power under Nature of. Municipalities Bombay District Municipal Act (3 of 1901), S.22(3)(b). When a judge acts under clause (b) of sub-s. (3), he does not set aside the election. What he does then is to ascertain the total number of votes validly cast in favour of the parties to the election and determine which party has been duly elected. That would not be a case of setting aside the election but a case of determining the person who has been validly elected. (Para 16) (G) Bombay District Municipal Act (3 of 1901), S.22(3) - ELECTION - MUNICIPALITIES - WRITS - Elections - Vote cast challenged on the ground that the person who cast it was a minor - Judge on a consideration of all materials coming to a contrary conclusion - Decision is on a question of fact and cannot be challenged in a writ petition. Constitution of India, Art.226. Municipalities Bombay District Municipal Act (3 of 1901), S.22 (3). (Para 17) Anno : AIR Com., Const, of Ind., Art. 226, N. 39 (d). CASES REFERRED : Paras (A) AIR 1923 Pat 1 (V 10): 23 Cri LJ 625 (SB), Emperor v. Abdul Hamid 11 (B) AIR 1941 Cal 147 (V 28): ILR (1940) 2 Cal 373, S. Sharafuddin Ahmed v. Shamsul Huq 14 (C) AIR 1954 Bom 133 (V 41) : 55 Bom LR 853, Samsherkhan v. Jafarali Ahmedalli 16 H.F.M. Reddi, for Petitioner; S.V. Mahajan and K.S. Srinivasa Iyer, for Respondents. Judgement S. R. DAS GUPTA, C. J. :- This application relates to the validity of an order made by the learned Judge who decided an election case by which he ordered that the election of the petitioner be set aside and respondent 1 be declared duly elected. The matter arises in this way : The election in question was held on 3-6-1957, to Ward No. 5 of the Athani Municipality, Belgaum District. On 5-6-1957, the scrutiny was made and the results were declared. The petitioner was declared elected along with two others, it being a three-seated constituency. Respondent 1 before us, applied to the District Judge, Belgaum on 12-6-1957, for setting aside the election and for an order that he should be declared elected. The grounds taken by the respondent in his said application inter alia were that there were corrupt practices committed in the said election and there was partiality of one Kulakarni who was the Chairman of the Municipality and the Chairman of the scrutiny committee. It was also alleged that certain votes of persons who were already dead at the time when the election took place, were recorded in the said election and the petitioner before us got those votes recorded in his favour.

2. The learned Extra Assistant Judge who determined the said election petition, came to the conclusion that there were no corrupt practices committed for the purpose of the election and that there was no partiality on the part of the Chairman of the Municipality who was also the Chairman of the scrutiny committee. But he held that in the facts of this case, it was necessary to have a scrutiny and recounting and accordingly made an order directing the scrutiny and recounting of the votes in question.

3. The scrutiny was done by two Commissioners appointed by the learned Judge. They submitted their report to the learned Judge. It appeared from the said report that the total number of votes secured by the petitioner was 251 and the total number of votes secured by respondent No. 1 before us was 249 votes. The learned Judge examined those votes and on such examination, found that one of the votes cast in favour of the petitioner, was cast on behalf of a person who was already dead and therefore he excluded that vote from counting. He further found that so far as the respondent 1 before us was concerned, one vote was excluded without any justification and he held that that vote should be held to have been cast in favour of the said respondent. It appears that the said vote was cast by putting the cross mark by the side of the Symbol and the learned Judge held that there are many other instances where votes had been cast like that but they were admitted and he further came to the conclusion that the intention was clear that the said vote was intended to be cast in favour of respondent 1. The result of his findings was, that both the petitioner and respondent 1 secured equal number of votes, i.e., 250 votes each. That being the position, a lot was drawn in the presence of the Judge and in the presence of the parties under Sub-section (3) (b) second proviso of Section 22 of the Bombay District Municipal Act, 1901. In that lottery, two chits in the name of each of the parties, viz., the petitioner and the respondent 1, were written and folded and were picked up by a stranger. The chit containing the name of respondent 1 was picked up and consequently he was declared as elected by the learned Judge. The result was that the petitioners election was set aside and respondent 1 was declared duly elected as a successful candidate. 4.The present petition has been filed by the petitioner who lost in the said proceedings, under Art. 226 of the Constitution.

5. The learned Advocate appearing in support of this petition raised several grounds. In the first place, he contended that the learned Judge who heard the election case had no jurisdiction to do so. The ground on which he based his contention was that after integration to the Mysore State of the area in question, which was previously within the Bombay State, no fresh Notification has been issued by the Mysore Government appointing the particular Judge, under sub-section (2) of Sec. 22 of the Bombay District Municipal Act, 1901, as having the power to try this particular case or such cases generally. According to the learned Advocate, it was necessary to have such a Notification before the learned Judge could function as an election Tribunal. It should be mentioned that in the area in question the Bombay District Municipal Act, 1901 was the law and Sec. 22 (1) of the said Act provided as follows : "If the validity of any election of a councillor is brought in question by any person qualified either to be elected or to vote at the election to which such question refers, such person may, at any time within ten days after the date of the declaration of the result of the election, apply to the district Judge of the district within which the election has been or should have been held." The material part of sub-section (2) of the said section reads as follows : "An inquiry shall thereupon be held by a Judge, not below the grade of an Assistant Judge, appointed by the State Government either specially for the case or for such cases generally, and such Judge may, after such inquiry as he deems necessary, and subject to the provisions of sub-section (3), pass an order confirming or amending the declared result of the election, or setting the election aside........." It appears that the Government of Bombay, by a Notification dated 29-7-1938 appointed the joint Judges and the Assistant Judges in districts (within the State of Bombay), to hold inquiries into cases referred to for the determination by the District Judge of that district, under sub-section (1) of the said section 22 of the said Act. This Notification was issued by the said Government in exercise of its powers conferred by sub-section (2) of Sec. 22 of the Bombay District Municipal Act, 1901. On 1-11-1956, a part of the Bombay State came within the State of Mysore and the area in which the election took place also came within the said State. It is not disputed before us that thereafter no fresh Notification was issued by the Mysore State Government again conferring the power under sub-section (2) of Sec. 22 of the said Act upon those Judges who had already been entrusted by the said Notification issued by the Bombay Government in that respect. The learned Advocate contended before us that it was necessary to have a fresh Notification issued by the Mysore State Government conferring such power upon the learned Judge in question before he could act under subsection (2) of Section 22 of the said Act. 6.In order to appreciate this contention, it would be necessary to refer to some of the provisions of the Bombay District Municipal Act, 1901 and the States Reorganisation Act, 1956. I have already referred to sub-sections (1) and (2) of section 22 of the Bombay District Municipal Act, 1901. It would not be necessary for me at this stage to refer to any other section of the said Act. Some other provisions of the said Act would be material for me to consider when I deal with the other questions raised by the learned Advocate on behalf of the petitioner. The material sections of the States Reorganisation Act, 1956 are as follows : "Section 116 : Every person who immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the Union or of an existing State in any area which on that day falls within another existing State or a new State or a union territory shall, except where by virtue or in consequence of the provisions of this Act such post or office ceases to exist on that day, continue to hold the same post or office in the other existing State or new State or union territory in which such area is included on that day, and shall be deemed as from that day to have been duly appointed to such post or office by the Government of, or other appropriate authority in, such State, or by the Central Government or other appropriate authority in such union territory, as the case may be.

2. Nothing in this section shall be deemed to prevent a competent authority, after the appointed day, from passing in relation to any such person any order affecting his continuance in such post or office." Section 122 : Power to name authorities, etc., for exercising statutory functions : The Central Government, as respects any Union territory and the State Government as respects any new State or any transferred territory, may by notification in the official Gazette, specify the authority, officer or person who, as from the appointed day, shall be competent to exercise such functions exercisable and under any law in force on that day as may be mentioned in that notification and such law shall have effect accordingly. It would be necessary for the present purpose to refer to one other section of the said Act and that is, Section 119 which provides as follows : "The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day." These are the relevant provisions of the said Act which would be necessary to be considered in determining this particular contention of the learned Advocate for the petitioner.

7. It was urged by him on the basis of the provisions contained in Sec. 122 of the States Reorganisation Act, 1956 that, in the first instance, it was necessary for the State Government as respects any new state or any transferred territory, to specify by notification, the authority, officer or person who, as from the appointed day, shall be competent to exercise such functions exercisable under any law in force on that day as may be mentioned in that notification and such law shall have effect accordingly. It was contended by him that in view of the provisions of the said section, the State Government should have appointed an authority, officer or a person for the purpose of exercising the functions mentioned in sub-section (2) of Sec. 22 of the Bombay District Municipal Act, 1901. This according to him, is clear from the provisions of the said section itself.

8. The attention of the learned Advocate however, was drawa, in the course of his argument, to the provisions of Sec. 116 of the States Beorganisation Act, 1956, which as I have mentioned, provides that every person who immediately before the appointed day is holding or discharging the duties of any post or office, shall be deemed as from that date to have been duly appointed to such post or office by the Government or other appropriate authority in such State. The learned Advocate however, contended that the duties and functions which are mentioned in sub-section 2 of Sec. 22 of the Bombay District Municipal Act, 1901, are not the duties attached to any post or office. In other words, his contention was that when a person is asked to decide an election case, he is not appointed to any post or to any office and he cannot be held to be a person coming within sub-s. 1 of Sec. 116 of the Act. In other words, it was urged by the learned Advocate for the petitioner that all that had to be done by the State Government under section 22 (2) was to entrust a person who, according to the said sub-section must be a Judge not below the rank of an Assistant Judge, with the functions mentioned in the said sub-section. In other words, according to the learned Advocate, all that has to be done is to entrust the said person with the task of deciding the election case which would be transferred by the District Judge. He is not an officer nor does he hold any post for that purpose. 9.For the purpose of this case, it is not necessary for me to decide the validity or otherwise of the contention of the learned Advocate for the petitioner on this point. The question of jurisdiction, in my opinion, can be disposed of on a consideration of the other provisions of the said Act, viz., Section 119 of the States Reorganisation Act. The said section provides that the provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. The effect of this section is that the law which was in force in the area which was within the State of Bombay before the appointed day and which had come to the State of Mysore after such appointed day, will remain in force so far as those territories are concerned. It follows therefrom that the Bombay District Municipal Act, 1901 would still be the law in the area which belonged to the State of Bombay but which had since come to the State of Mysore. It follows therefrom that the provisions of the sub-section (2) of section 22 of the Bombay District Municipal Act, 1901, would apply to the said area as well.

10. The question however is whether or not the notification issued by the Government of Bombay under sub-s. 2 of Sec. 22 of the said Act can be said to be a law in force immediately before the appointed day. "Law" has been defined in subclause (h) of Sec. 2 Part I of the States Reorganisation Act, 1956 as follows : "Law" includes any enactment, ordinance, regulation, order, bye-law, rule scheme, notification or other instrument having the force of law in the whole or in any part of the territory of India; Thus a notification according to the said definition can be law for the purpose of the said Act, if it has the force of law in the whole or in any part of the territory of India. This leads me to the consideration of the question as to what the real meaning of having the force of law is.

11. The learned Advocate for the petitioner referred us to certain articles of the Constitution for the purpose of ascertaining the real meaning of the expression having the force of law; from those articles no definite meaning of that expression can be found. However, as observed by Mr. Basu in his commentary on the Constitution of India, for the purpose of ascertaining the meaning of that expression we have to refer to the treatise on Jurisprudence. The observations of the learned Author on this point are helpful and they read as follows : Having the force of law. : The definition in this clause says that any rule of conduct having the force of law is a law. But it does not say what constitutes the force of law. For that we have to refer to the treatises on jurisprudence. The standard definition of law is by Holland, who, improving on the definition of Austin, says : "Law is a general rule of external human conduct enforced by a sovereign political authority." But enforcement by a sovereign political authority in a modern State means enforcement by the Courts of Justice. Hence Salmond puts it thus : "Law is the body of principles recognised and applied by the State in the administration of justice." Hence, the answer to the question whether any rule of conduct has the force of law is to be found in the fact whether it is enforced by the Courts of law." In my opinion, the test laid down by the learned author seems to be the proper test to apply for determining the meaning of the expression "having the force of law. That is also the view taken by their Lordships of the Patna High Court in Emperor v. Abdul Hamid, 23 Cri. LJ 625: (AIR 1923 Pat 1) (A). Their Lordships in the course of their Judgment, observed as follows : "Now whether "law" means the expression of the exercise of the discretion by the Legislature or whether it includes the expression of the exercise of the discretion by a person or body of persons under the sanction and the authority of the Legislature, this, at any rate, is clear that when we speak of law, we mean something which is enforceable and which is not capable of being rejected by the Courts as uncertain, as unreasonable, or as repugnant to the law of the land. The Courts may construe any particular provision of law; but the Courts cannot quash any provision of law nor treat it as unenforceable." Their Lordships then proceeded to observe as follows: "They cannot, in my opinion, be called law, for the essence of the law is that it is enforceable, provided circumstances exist which would make it enforceable." In my opinion also law is a body of rules which, can be enforced in a Court of law. In this case however, the expression used is having the force of the law. It means that a particular set of rules or a particular notification, although may not strictly be called law, may still have the force of a law, which means that it would be enforced in a Court of justice. If therefore, a notification can be enforced in a Court of justice, then it can at least be said to have the force of a law. Judged by this standard, I find no difficulty in holding that the notification in question has the force of law inasmuch as the same can be enforced in a Court of justice if and when occasion arose for enforcing it. I therefore hold that the case comes under S. 119 of the States Reorganisation Act, 1956 and that being so, the notification which was in force immediately before the appointed day would still apply to that part of the State of Mysore which before its integration to the said State formed part of the State of Bombay. That being so, the notification in question gave power to the Judges mentioned therein to exercise the functions enumerated in sub-section (2) of S. 22 of the Bombay District Municipal Act.

12. It was then urged by the learned Advocate for the petitioner that the notification itself was not valid. His contention, shortly put, was as follows: Sub-section (2) of S. 22 of the Bombay District Municipal Act, 1901, requires that a Judge, not below the grade of an Assistant Judge has to be appointed by the State Govermnent for the purpose mentioned in the said section. What happened in this case was that the joint Judges and the Assistant Judges of the Bombay State were all appointed by the said Notification for that puropse. This, the learned Advocate contended, the Government was not entitled to do as this is not in compliance with the provisions of sub-section (2) of the said section. I am unable to accept this contention of the learned Advocate for the petitioner. When it is said that an inquiry shall thereupon be held by a Judge, not below the grade of an Assistant Judge, appointed by the State Government, it means that the Government by a notification may appoint a person who is a Judge. It follows therefrom that the Government may, by a notification appoint a number of persons, who are Judges, for the aforesaid purpose. Mr. Reddy, appearing on behalf of the petitioner did not also dispute that the Government under the said section has the power to appoint a number of persons to exercise the functions mentioned in the said section. That being so, I do not find anything wrong in the notification which had been issued by the Government of Bombay. The material part of the said notification is as follows: "....The Government of Bombay is pleased to appoint the Joint Judges and the Assistant Judges in any District to hold inquiries into cases referred for the determination of the District Judge of that District under sub-section (1) of S. 22 of the said Act." When it is said that the Government is pleased to appoint the Joint Judges and the Assistant Judges to hold inquiries what is meant, in my opinion, is that all persons who are joint Judges and Assistant Judges in any District in the State of Bombay are appointed to hold inquiries into such cases. That being so, I am of the opinion that by the notification all the persons who hold the posts of the Joint Judges and of Assistant Judges on the date of the notification in the State of Bombay were given the power to decide the case mentioned in sub-section (2) of S. 22 of the Bombay District Municipal Act, 1901. In that view of the matter, I am unable to accept this contention of the learned Advocate for the petitioner and it must fail.

13. The learned Advocate for the petitioner then contended before us that the notification in question mentions Joint Judges and Assistant Judges. It does not mention Extra Assistant Judges. In this case however, the person who decided the election case was an Extra Assistant Judge. The learned Advocate therefore contended that he had no power to decide this case; he not being one of the persons who was entrusted with the said power by the said notification. This contention, in my opinion, is equally unsound. The Extra Assistant Judge is still an Assistant Judge. There is no real difference in the cadre between an Assistant Judge and an Extra Assistant Judge. The cadre is that of Assistant Judges and Extra Assistant Judges come within that cadre. That being so, I am clearly of the opinion that the Extra Assistant Judges are Assistant Judges as mentioned in the said notification and were clothed with the authority under sub-section (2) of S. 22 of the Bombay District Municipal Act, 1901. These are the contentions of the learned Advocate for the petitioner on the question as to whether or not the Tribunal had jurisdiction to hear and decide this case.

14. On the merit of the matter, the contention of the learned Advocate for the petitioner was that the Judge had no jurisdiction to invalidate any votes which had already been cast. He contended in the first place, that the Judge, in the circumstances of this case, had no jurisdiction to order a scrutiny and recounting of the votes in question inasmuch as, there was no material to show that any invalid vote has been admitted in the said election. In other words, his contention was that a prima facie case must, in the first instance be made out before a Judge can order a scrutiny and recounting. In support of that proposition he relied on the decision in S. Sharafuddin Ahmed v. Shamsul Huq, AIR 1941 Cal 147 (B) wherein McNair J. on a review of the English Election cases, came to the conclusion that a prima facie case must be alleged and established before a recounting can be ordered. The question however in the present case has to be determined by the provisions of the Bombay District Municipal Act, 1901. Sub-clause (b) of sub-section (3) of S. 22 of the Act, in my opinion, empowers the Tribunal to order a scrutiny in the circumstances as at present. The said sub-section (3) of S. 22 reads as follows: (3) (a) The Judge, if satisfied that a candidate has, within the meaning of sub-section (4), committed any corrupt practice for the purpose of the election, shall declare the candidate disqualified both for the purpose of that election, and of such fresh election as may be held under sub-section (2), and shall set aside the election of such candidate if he has been elected. (b) if in any case to which clause (a) does not apply, the validity of an election is in dispute between two or more candidates, the Judge shall, after a scrutiny and computation of the votes recorded in favour of each such candidate, declare the candidate who is found to have the greatest number of valid votes in his favour, to have been duly elected: Provided that for the purpose of such computation no vote shall be reckoned as valid if the Judge finds that any corrupt practice was committed by any person known or unknown in giving or obtaining it: On the wordings of sub-clause (b) of sub-section (3) of S. 22, it appears that in a case where no corrupt practice has been alleged or, in any event, where no such corrupt practice has been proved and where the validity of an election is in dispute between two or more candidates, the Judge shall make a scrutiny and computation of the votes recorded in favour of each such candidate and declare the candidate who is found to have obtained the greatest number of such votes to be duly elected. In making such a scrutiny, the Judge shall also determine which are the votes validly cast in favour of the candidates. The proviso to the said sub-clause also makes it clear that it is within the jurisdiction of the Judge to find out whether or not any vote which has been recorded, has been cast by means of corrupt practice committed by any person known or unknown in giving or obtaining it. That being so, I do not find anything in the said sub-section to support the contention of the learned Advocate for the petitioner. The said subsection does not say that the petitioner must allege that the votes have been invalidly cast in favour of the other candidates and such invalid votes have been received and that he must make out a prima facie case that such votes were in fact cast before scrutiny can be ordered. Even if that be the effect of sub-clause (b) of sub-section (3) of S. 22 of the Act, in the facts of this case I find that the learned Judge was fully justified in ordering scrutiny and recounting. It appears that the Chairman of the scrutiny committee himself admitted that there were many votes which were of doubtful nature and he had to pass orders giving reasons while rejecting them as invalid or taking them into account as valid. It also appears that the petitioner in his petition before the District Judge has inter alia alleged that the votes of certain persons who were dead including vote No. 462 were invalidly admitted. That being so, I am clearly of the opinion that the learned Judge was justified in ordering scrutiny and recounting. He was also, in my opinion, justified in determining which of the votes cast were invalid and in going into the question as to whether or not vote No. 462 was the vote alleged to have been given by a person who was already dead at the time of such voting. 15.I do not think that the learned Judge committed any error in going into that question. As to whether or not the man was dead is a question of fact which cannot be agitated before us in a writ petition. It would be sufficient for me to say that the proviso to clause (b) of sub-section (3) of S. 22 empowers the Judge to refuse to reckon any vote if the Judge finds any corrupt practice was committed by any person known or unknown in giving or obtaining it. If the Judge had found as a fact that the corrupt practice was committed by any one of the candidates then the matter would come under sub-clause (a) of sub-section (3) and the Judge would be entitled to set aside the election.

16. The learned Advocate for the petitioner urged before us that in view of the provisions of sub-section (5) of S. 22 of the Bombay District Municipal Act, 1901, the learned Judge was not entitled to set aside the election. The said subsection provides as follows: "If the validity of the election is brought in question only on the ground of any error by the officer or officers charged with carrying out the rules made under clause (c) of sub-section (1) of S. 11, or of an irregularity or informality not corruptly caused, the Judge, shall not set aside the election." In this case the learned Advocate for the petitioner contended that there was merely an irregularity or informality which did not justify the Judge in setting aside the election. In my opinion, this contention of the learned Advocate for the petitioner is wholly untenable. Sub-section (5) has no application to the present case. The said sub-section would apply to a case where the validity of an election is brought in question only on the ground of any error by the officer charged with carrying out the rules or of an irregularity or informality. In this case, the election was not brought in question on any of such grounds. The election was brought in question on the ground of corrupt practice, partiality and inclusion of invalid votes. In the next place, when a Judge acts under clause(b) of sub-section (3) of S. 22 of the Bombay District Municipal Act, 1901, he does not set aside the election; but what he does is to ascertain the total number of valid votes cast in favour of the parties to the election and determine which party has been duly elected. That would not be a case of setting aside the election but a case for determining the person who has been validly elected. That is also the view taken by Chief Justice Chagla in Samsherkhan v. Jafarali Ahmedalli, 55 Bom LR 853: (AIR 1954 Bom 133) (C). His Lordship held that sub-section (5) only applies to those cases where the Judge would have the power and the jurisdiction to set aside the election and the power and jurisdiction of a Judge to set aside an election only arises under clause (a) of sub-section (3) and the Judge cannot under clause (b) of that sub-section set aside the election and therefore the direction in sub-section (5) can have no application when the Judge is dealing with a case which falls under clause (b) of S. 22(3). This contention of the learned Advocate for the petitioner must also fail. 17.There is one more matter to which I need refer before I conclude my judgment. It appears that the petitioner before us had challenged the validity of a vote which was cast in favour of the respondent No. 1 on the ground that the person who cast the said vote was a minor at the date in question. The learned Judge has considered this matter and after taking into consideration all the materials before him, has come to the conclusion that he was not a minor. This is a question of fact which, in my opinion, cannot be challenged in a writ petition. Therefore, this contention of the learned Advocate also must fail.

18. In the result, all the grounds urged on behalf of the petitioner fail and the petition is dismissed with costs. (Advocates Fee, Rs. 150/-).

19. A. R. SOMNATH IYER J.: I agree. Petition dismissed. AIR 1958 MYSORE 189 (VOL. 45, C. 43) "Parasuram Jatanand and Co.v. State of Mysore" MYSORE HIGH COURT Coram : 2 N. SREENIVASA RAU AND H. HOMBE GOWDA, JJ. ( Division Bench ) Parasuram Jatanand and Co. and another, Petitioners v. State of Mysore and others, Respondents. Writ Petn. No. 106 of 1955, D/- 14 -11 -1956. Limitation Act (9 of 1908), S.5 - LIMITATION - SHOPS AND ESTABLISHMENT - Applicability of S.5 to local Law. Mysore Shops and Establishments Act (2 of 1948), S.41. Section 5 of the Limitation Act requires that it should have been made applicable under an enactment. The Shops and Establishments Act does not make S. 5 of the Limitation Act applicable to appeals under S. 41 of the Act, nor does any other enactment exists which attracts the provisions of S. 5 of the Limitation Act to such appeals. (Para 1) Anno : AIR Com. Lim. Act, S. 5, N. 4. D. M. Chandrasekhar for Advocate General, (for Nos. 1 to 3) and S. K. Venkataranga Iyengar, (for No. 4), for Respondents. Judgement N. SREENIVASA RAU, J. :- The question for consideration is whether the Head Quarters Assistant to the Commissioner of Labour (Respondent 3) had jurisdiction to entertain Respondent 4s appeal petition against the Petitioners under S. 41 of the Shops and Establishments Act when it was preferred beyond the period of 30 days prescribed in Rule 34 of the Rules under the Act. Respondent 3, following the view expressed by Government in Revision Petition No. 2/50-51 in their order No. L. S. 544-47/ L. W. 27-51-2. dated 10-5-1951, thinks that by virtue of S. 29(2)(b) of the Limitation Act, S. 5 of the Limitation Act becomes applicable to such cases and the delay in the presentation of an appeal can be condoned if sufficient cause is shown. But S. 5 of the Limitation Act itself requires that it should have been made applicable under an enactment. The Shops and Establishments Act does not make S. 5 of the Limitation Act applicable to appeals under S. 41 of the Act, nor has any other enactment been pointed out which attracts the provisions of S. 5 of the Limitation Act to such appeals.

2. Respondent 3 had, therefore, no jurisdiction to entertain the appeal beyond the prescribed period.

3. This Writ Petition is accordingly allowed and a Writ will issue quashing the impugned order of Respondent 3.

4. There will be no order as to the costs of this petition as the Petitioner and his learned Counsel were absent at the time of hearing. Petition allowed. AIR 1958 MYSORE 190 (VOL. 45, C. 44) "T. K. Thayumanuvar v. Asanambal Ammal" MYSORE HIGH COURT Coram : 1 K. S. HEGDE, J. ( Single Bench ) Dr. T. K. Thayumanuvar, Petitioner v. Asanambal Ammal, Respondent. Criminal Revn. Petn. No. 175 of 1958, D/- 24 -6 -1958, against order of City Magistrate, Bangalore, D/- 12 -4 -1958. (A) Criminal P.C. (5 of 1898), S.488 - MAINTENANCE - COMPROMISE - MAGISTRATE - Enquiry under - Nature - Admissions in pleadings whether can be acted upon - Magistrate whether can give effect to compromise - AIR 1930 Lah 524, Dissented from. Enquiry under Chapter XXXVI Cr. P. O. is a quasi-criminal one. Admission made in the pleadings can be taken into consideration and acted upon. It is therefore within the competence of a Magistrate to accept the representations made by parties and pass an order under S. 488 Cr. P. C. giving effect to the compromise agreed between the parties as to the rate of maintenance. 1955 Andh. WR 441, Rel. on; AIR 1930 Lah 524, Dissented from. (Para 5) Anno : AIR Com. Cr. P. C. S. 488, N. 5 and 11. (B) Criminal P.C. (5 of 1898), S.489 and S.488 - MAINTENANCE - Proceedings u/S.489 - Applicability of provisions of S.488 - Order u/S.489 with retrospective effect - AIR 1949 Cal 584, Not followed. The appropriate way to consider section 489 Cr. P. C. is to read the same as a proviso to S. 488 (1) Cr. P. C. So read the other parts of S. 488 will become applicable to the proceedings under S. 489. (Para 6) A Magistrate has power to direct that the increased rate of maintenance ordered by him be paid from the date of the application asking for the increase. But ordinarily an order of this type should be effective only from the date of the order. In order to give retrospective effect to it, there must be special circumstances. The mere fact that there was some delay in the enquiry of the case is not a sufficient ground to direct the petitioner to pay maintenance at the increased rate from the date of the application. AIR 1926 Bom 419, Rel. on; AIR 1949 Cal 584, Not followed. (Para 6) Anno: AIR Com. Cr P. C, S. 489 N. 4. (C) Criminal P.C. (5 of 1898), S.489 - MAINTENANCE - MAGISTRATE - Magistrate has jurisdiction to award costs to successful petitioner. (Para 7) Anno : AIR Com. Cr. P. C., S. 489, N. 1. CASES REFERRED : Paras (A) AIR 1930 Lah 524 (V 17) : 31 Cri LJ 1179, Sham Singh v. Mt. Hakam Devi 5 (B) (55) 1955 Andh WR 441: 1955 Andh LT (Cri) 184, G. D. Sundaram v. Ratnavathi Ammal 5 (C) AIR 1949 Cal 584 (V 36) : 50 Cri LJ 1006, J. II. Amroon v. Miss R. Sassoon 6 (D) AIR 1926 Bom 419 (V 13) : 27 Cri LJ 940, Hiralal Valavdas v. Bai Amba 6 E. Kanakasabhapathy, for Petitioner; W.K. Sundara Murthy, for Respondent. Judgement The petitioner has come up in revision against the order of the learned City Magistrate, Bangalore, in Criminal Miscellaneous Case No. 393 of 1957, wherein he enhanced the maintenance to be paid by the petitioner from Rs. 8/- to Rs. 50/- per month.

2. In order to appreciate the contentions advanced from the Bar, it is necessary to state the facts of the case briefly.

3. The petitioner married the respondent in about 1913. Later he took a second wife. The respondent filed an application under S. 488 Cr. P. C, as per Cr. Mis. No. 157 of 1938-39 on the file of the learned City Magistrate, Bangalore, claiming maintenance from the petitioner on the ground that he has neglected and refused to maintain her. In the course of the enquiry of the said petition, the parties represented to the Court that they had agreed that the petitioner should pay to the respondent maintenance at the rate of Rs. 10/- per month till his retirement from service and at the rate of Rs. 8/- per month after his retirement. An order under S. 488 Cr. P. C. was accordingly passed. The petitioner has been paying the respondent at that rate. Now the respondent has come up with an application under S. 489 Cr. P. C. alleging that there has been considerable change of circumstances and hence the rate at which the maintenance had been granted to her should be enhanced. She alleged that the petitioner has now acquired large properties from which he is getting considerable income. It is also alleged that he is having extensive private practice. At the same time it is urged that the respondent who was depending on her father has now been deprived of that assistance in view of the death of her father. Even her sister who was assisting her is not in a position to do so at present. The learned Magistrate, who went into the matter has been pleased to enhance the rate of maintenance from Rs. 8/- to Rs. 40/- per month. He has also directed the petitioner to pay the respondent at the rate of Rs. 10/- per month for her medical and clothing expenses. It would be correct to say that he has altered the rate of maintenance from Rs. 8/- to Rs. 50/- per month. He has further directed that the altered rate should be effective from the date of the application of the respondent. Further the petitioner has been directed to pay the respondent a sum of Rs. 258.06 nP. as costs. 4.The petitioner challenges the validity and correctness of this order on several grounds. It is contended on behalf of the petitioner that S. 489 is inapplicable to the facts of the present case. The argument is developed in the following manner : Before an order can be passed under seciton 489 Cr. P. C. there must be a valid order under sec. 488 Cr. P. C. In the present case the order passed under S. 488 Cr. P. C. is not a valid order as the same was founded on a compromise. Hence there could be no order under S. 489 Cr. P. C. It is further contended that the learned Magistrate had no jurisdiction to give retrospective effect to his order; nor has he jurisdiction to award costs. The quantum granted by the Magistrate is also disputed. I shall examine these contentions one by one.

5. The plea that the order passed in Cr. Mis. Case No. 157/38-39 is not a valid order, is based on the ground that the same was passed on the basis of a compromise. It is urged that there could be no compromise in an application under S. 488 Cr. P. C. The moment the parties compromise the dispute the jurisdiction of the Magistrate to try the proceedings is ousted. For this position, reliance is placed on the decision reported in Sham Singh v. Mt. Hakam Devi, AIR 1930 Lah 524 (A). In the said case his Lordship Addison J. observed that "where in an application under S. 488 Cr. P. C. the parties arrive at a compromise the proper course for the Court is to dismiss the application leaving the parties to enforce the compromise in Civil Courts. Such a compromise is a bar to an application under S. 489 Cr. P. C. An order of maintenance passed in accordance with a compromise cannot be enforced by a Criminal Court." These observations are clearly obiter. The case was decided on an entirely different point. No reasons are given for the conclusions above referred to. With great respect to the learned Judge, I am unable to find any support for the conclusions in question from the wordings of S. 488 Cr. P. C. In the present case, the wife complained to the Court that her husband had neglected or refused to maintain her. She also claimed that she was entitled to maintain at a particular rate. Both parties orally represented to the Court that the Court may be pleased to award the maintenance at the rates above mentioned. It is reason-able to infer from these representations that the husband admitted the allegations of the wife that he had neglected or refused to maintain her. Further both the parties thought that the reasonable rate of maintenance could be one suggested by them taking into consideration the income of the husband and the needs of the wife. I see no reason as to why the learned Magistrate could not act on such representations. Let us take a case where the wife pleads in her petition that her husband had neglected or refused to maintain her and that she is entitled to maintenance at a particular rate, and the husband in his written statement admits that he had refused or neglected to maintain her; further he does not deny that the rate of maintenance claimed by the respondent is a reasonable one. or worse still he admits the same, the question for consideration is, can or cannot the Magistrate act on these pleadings and pass an appropriate order under S. 488 Cr. P. C? Should he still have the farce of an enquiry? It may be noted that an enquiry under Chapter XXXVI Cr. P. C. is a quasi-criminal one. Admission made in the pleadings can be taken into consideration and acted upon. These questions were considered by his Lordship Chandra Reddi J. (as he then was) in the case of G. D. Sundaram v. Ratnavathi Ammal, 1955 Andh WR 441 (B). After exhaustively reviewing the case law on the subject he came to the conclusion that in an application under S. 488 Cr. P. C. when parties come to an understanding as regards quantum of maintenance it only helps the Magistrate in coming to a conclusion on the question of proper maintenance to be awarded. An order of Court based on such an agreement is valid and can be enforced. When execution is levied against the defaulting party, it is not the compromise that is the subject matter of the execution but the order of the court. He further held that it is within the competence of a Magistrate to accept those representations and pass an order under S. 488 Cr. P. C. giving effect to the compromise agreed between the parties as to the rate of maintenance. With respect I am in entire agreement with the reasons contained in that decision. The contention of the petitioner on this point is rejected. 6.Coming to the question as to whether the order can be made effective from the date of the petition, it is urged on behalf of the petitioner that whereas under S. 488(2) Cr. P. C. maintenance could be made payable if so ordered by the Court from the date of the application for maintenance, there is no such provision in S. 489, Cr. P. C. Consequently it is urged that the Magistrate has no jurisdiction to give retrospective effect to his order. In this connection, reliance is also placed on the decision in J. H. Amroon v. Miss R. Sassoon, AIR 1949 Cal 584 ,C). In the said case Blank J. held that the Magistrate had no power to order the increased allowance to be paid with effect from the date of the application but only from the date of the order increasing the allowance. But it is urged on behalf of the respondent that S. 489 Cr. P. C. should be read with S. 488 Cr. P. C. section 489 Cr. P. C. by itself has no independent existence. The procedure to be followed and effect of the order passed are all provided in S. 488 Cr. P. C. In other words it is contended that sec-lion 489 Cr. P. C. is merely a proviso to S. 488(1). There is force in this contention. It will be seen that S. 488(3) provides for the mode in which the order is to he enforced. Similarly under S. 488 (4) the wife will become disentitled to maintenance under certain circumstances. Section 488 (6) provides for the mode in which the evidence has to be taken. Section 488 (8) specifies the place where the proceedings should be taken. There are no corresponding provisions in S. 489 Cr. P. C. Unless S. 489 Cr. P. C. is read with S. 488 Cr. P. C. and is considered as a part of the same, it is difficult to visualise how the same can be worked out or enforced. In my judgment the appropriate way to consider section 489 Cr. P. C. is to read the same as a proviso to S. 488 (1) Cr. P. C. So read the other parts of S. 488 will become applicable to the proceeding under S. 489, Cr. P. C. In the case reported in Hiralal Valavdas v. Bai Amba, AIR 1926 Bom 419 (D), their Lordships Macleod C. J. and Shah J. held that a Magistrate has power to increase the rate of maintenance once awarded, and to direct that the increased rate of maintenance be paid from the date of the application asking for the increase. It is true that no reasons were given in support of that judgment. Their Lordships merely remarked that under S. 488 Cr. P. C. a Magistrate has power to make the payment payable from the date of the application, and they do not see why he should not have the same power under S. 489 Cr. P. C. Though the reasons given may be open to challenge, I am in agreement with their conclusion for the reasons mentioned by me earlier. But ordinarily an order of this type should be effective only from the date of the order. In order to give retrospective effect to it, there must be special circumstances. No such circumstances have been brought to my notice in this case. The mere fact that there was some delay in the enquiry of this case is not a sufficient ground to direct the petitioner to pay maintenance at the increased rate from the date of the application. Hence that part of the order of the learned Magistrate is unsustainable and the same is set aside.

7. It is next contended that the Magistrate had no jurisdiction to award costs in the present case. In support of this contention also, reliance is placed on the fact that there is no provision under section 489 Cr. P. C. which authorises the Magistrate to award costs. For the reasons already mentioned; I am of the opinion that S. 489 Cr. P. C. must be considered as a part of S. 488 Cr. P. C. Hence the learned Magistrate had jurisdiction to award the costs in question. He has given good reasons for so awarding. I decline to interfere with the discretion of the learned Magistrate.

8. Lastly it is contended that the rate of maintenance awarded is unduly excessive. By agreement of parties, the petitioner was paying maintenance to the respondent at the rate of Rs. 8/-per month. It is urged that there were no sufficient grounds before the learned Magistrate to revise this rate. According to the trial Judge, the petitioner has three sources of income. He is getting Rs. 70/- per month as pension inclusive of dear-tiess allowance. This comes to Rs. 840/- per year. The learned Magistrate has also come to the conclusion that his yearly income from his im moveable properties is about Rs. 2700/-. He has further come to the conclusion that he is getting about Rs. 1300/- to Rs. 2300/- from his private practice. Whatever private practice he might have in the past, it is not reasonable to expect that same will be available in the future. The petition. is an old man of 72 years of age. He is suffering from diabetes and blood pressure. His eye sight said to be poor. His past earnings from private practice ha gone to increase his estate and the respondent is having the benefit of the same. Hence it is not proper to take his private practice into consideration while determining the rate of maintenance to be paid by him in future. Hence I take into consideration Rs. 840 received by him as pension and Rs. 2,500/- (after deducting collection charges) as his annual income from immoveable property. It is to be noted that the petitioner has eight children by his second wife. The second wife is also living. Out of these 8 children, two daughters have been married. Hence at present he will have to maintain his second wife and his six children J Taking all these aspects into consideration, I think the proper order would be to direct the petitioner to pay the respondent a maintenance at the rate or Rs. 25/- per month. This will include medical and clothing charges. The same will be payable from the date of the order by the learned Magistrate, i.e., 12-4-1958. The order directing the payment of costs by the petitioner is sustained. But there will be no order as to costs in this court. Ordered accordingly. Order accordingly. 1957 AIR 1957 MYSORE 1 (V 44 C 1 Jan.) "Kenchappa v. Nagappa" MYSORE HIGH COURT FULL BENCH Coram : 3 VENKATARAMAIYA, C.J. SREENIVASA RAU AND HOMBE GOWDA, JJ. ( Full Bench ) Kenchappa, Appellant v. Rokhade Nagappa and others, Respondents. Appeal No. 20 of 1950-51, D/- 15 -3 -1956, decided by Full Bench on order of Reference made by Venkataramayya and Mallappa, JJ., D/- 7 -8 -1953. (A) Limitation Act (9 of 1908), Art.132 - LIMITATION - MORTGAGE - Suit for contribution by co-mortgagor - Limitation when begins to run - 47 Mys HCR 337, Overruled. The starting point of limitation under Art. 132, Limitation Act for a suit for contribution by a co-mortgagor is the date on which he pays off the mortgage-debt and not the date on which the debt fell due. 47 Mys HCR 337, Overruled; 1928 All 241 (AIR V 15), Rel. on. Case law referred. (Para 6) Anno : AIR Com., Lim. Act, Art. 132, N. 10. (B) Transfer of Property Act (4 of 1882), S.82, S.92, S.95 and S.100 - MORTGAGE - CHARGE - Rights of co-mortgagor making payment of mortgage-debt in addition to what he owes. A co-mortgagor seeking contribution is not exactly in the same position, in all respects, as the mortgagee whom he has redeemed. Besides the right of subrogation under Ss. 92 and 95 subject to certain qualifications, the co-mortgagor by discharging the mortgage also acquires a right of contribution under S. 82, Transfer of Property Act and the amount recoverable will be a charge on the property of the persons benefited from payment and enforceable under S. 100 of the Act. These are remedies independent of each other and not mutually exclusive. 1928 All 241 (AIR V 15), Rel. on. (Para 3) Anno : AIR Com., T. P. Act, S. 92, N. 15; S. 95, N. 2; S. 82, N. 17; S. 100, N. 17. Cases Referred : Chronological Paras (A) 47 Mys HCR 337 1, 3, 4, 6 (B) 1928 All 241 (AIR V 15) : ILR 50 All 569 3, 4 (C) 1952 SC 47 (AIR V 39) : 1952 SCJ 37 3 (D) 1953 SC 1 (AIR V 40) : 1953 SCR 243 3 (E) 1936 All 33 (AIR V 23) : ILR 58 All 602 (FB) 4 (F) 1942 Oudh 449 (AIR V 29) : ILR 19 Luck 70 (FB) 4 (G) 1931 Cal 251 (AIR V 18) : ILR 58 Cal 1167 (FB) 4 (H) 1921 Cal 166 (AIR V 8) : 57 Ind Cas 868 4

(I) 1945 Pat 192 (AIR V 32) : ILR 23 Pat 953 4 (J) 1950 Pat 174 (AIR V 37) : ILR 28 Pat 955 4 (K) 47 Mys HCR 515 5

(L) 40 Mys HCR 298 5 (M) 47 Mys HCR 530 6 Judgement VENKATARAMAIYA, C. J. :- This appeal has been referred to a Full Bench by the Division Bench before which it was posted for hearing as doubt was felt about the correctness of the view expressed in 47 Mys HCR 337 (A), on the question of limitation. It was held in that case "if therefore at the time when the puisne mortgagee sues to enforce the first mortgage by virtue of subrogation a suit by the first mortgagee is barred by time, the puisne mortgagees suit is equally barred by time. This is the position which is accepted by the Calcutta, Madras and Patna rulings ............ Limitation counts from the date on which the money under the first mortgage became due and not from the date on which the subsequent mortgagee paid it off whether the money paid was still due under the mortgage or under a decree obtained on that mortgage". Applying this principle, the lower Court has dismissed a suit filed by a person in the position of a co-mortgagor for recovery of amounts paid by him in excess of his liability as the interval between the due date for payment under the mortgage deed and the suit was more than 12 years although the suit was filed within that period from the date of payment. The material facts either admitted or proved are, that immovable property described in Sch. B of the plaint was hypothecated by defendant 3 in favour of defendants 1 and 2 under a registered deed dated 7-6-1927, the plaintiff who was subsequently adopted as a son by defendant 3 filed a suit against him for partition of the family properties and in execution of the decree passed therein, the portion thereof described in the A schedule was allotted to plaintiff and the C schedule to defendant 3. Representatives of the mortgagees viz., defendants 1 and 2 sued the plaintiff and defendant 3 in O. S. 50/34-35 on the file of the Subordinate Judge, Shimoga, for recovery of the mortgage-debt. The suit finally came to an end by a decision of the High Court in R. A. No. 95/36-37 and to avert the sale of the mortgaged property for realisation of the decree debt, the plaintiff made payments from time to time between 1944 and 1948 in full satisfaction of the decree. The present suit was instituted on 21-1-1949 for recovery of Rs. 4306-10-0 by sale of C schedule property on the ground of its being subject to liability to that extent.

2. Several issues were framed in the case and the findings on these are all in plaintiffs favour. There is no dispute about the correctness of the amount or its being a charge on the C schedule property. The suit has been dismissed on the sole ground of being barred by time. The question of limitation, on the determination of which the decision depends, is not raised in issue and the omission of this is regrettable but not material as both parties have directed their attention to it as the lower Court has given consideration to it.

3. It is conceded that Art. 132, Limitation Act governs the case. But the controversy is about the starting point, the date from which time is to run. If it is the date of the mortgage as considered by the lower Court, the dismissal of the suit is justified as it was filed beyond 12 years prescribed by the Article. The lower Court while relying on 47 Mys HCR 337 (A), has failed to notice the distinguishing features of a claim of a co-mortgagor in comparison with that of a puisne mortgagee with which that case was concerned and has overlooked decisions relating to the time available to a co-mortgagor for enforcing his right. The view that the period is to be reckoned from the date of mortgage when the suit is by the puisne mortgagee for the amount paid towards an earlier mortgage is based on the consideration that as a result of such payment the puisne mortgagee is an assignee of the mortgage and as such bound by its terms and conditions. A co-mortgagor cannot be said to be in an exactly identical position. The discharge of the mortgage does not confer on him all the rights of the mortgagee and gives him the right to proceed against part of the mortgaged property (since what is this is excluded) and part of the amount paid (excluding what was payable by him). As pointed out in - Aziz Ahmad Khan v. Chhote Lal, ILR 50 All 569 at p. 579 : (AIR 1928 All 241 at pp. 244-245) (B). "Where a suit is brought to enforce a contribution, which is based on the maxim "equity is equality", it is only partially right to say that the party making the payment and relieving the co-mortgagors property from burden is subrogated to the position of the mortgagee. It is clear that he cannot enforce the right of the mortgagee to sell all or any of the properties to realise the entire money recoverable by him. The mortgagee would be entitled, without any restriction, to enforce the payment of the entire mortgage-money against any one of the properties he might choose to proceed against; but the mortgagor seeking contribution has to exempt his own property (if it has not been sold) and must bear a proportionate part of the mortgage-money. Then, he has to split up his claim and must ask for a proportionate payment from the owners of the remaining properties. Properties would contribute, some more and others less, according to the respective values of the properties. Thus it is clear that a co-mortgagor seeking contribution is not exactly in the same position, in all respects, as the mortgagee whom he has redeemed." Besides the right of subrogation under Ss. 92 and 95 subject to the qualifications mentioned above, the co-mortgagor by discharging the mortgage also acquires a right of contribution under S. 82, Transfer of Property Act and the amount recoverable will be a charge on the property of the persons benefited from payment and enforceable under S. 100 of the Act. These are remedies independent of each other and not mutually exclusive. His right to contribution under S. 82 of the Act on the basis of the value of properties is clear and this entitled him to get only what is paid in addition to the amount due by him in view of the decisions of the Supreme Court, - Kedar Lal v. Hari Lal, 1952 SCJ 37 : (AIR 1952 SC 47) (C), and - Ganeshi Lal v. Joti Pershad, AIR 1953 SC 1 (D).

4. As regards the time within which the charge may be enforced the observations at page 581 of 50 All 569 : (at p. 245 of AIR 1928 All 241) (B), are "there can be no doubt that where a right of contribution exists, that right comes into play only when a payment is made. It would be absurd to say that although the right to exact contribution arose ............ on 19-7-1916, the limitation against him had begun to run on 23-9-1899, (the date of the mortgage), and that it had already been time barred on 23-9-1911, i.e., even before the right accrued." The decisions of the Calcutta and Patna High Courts stated in 47 Mys HCR 337 (A), to be of support for the disposal of that case are not adverse to the appellant. - Alam Ali v. Beni Charan, AIR 1936 All 33 (FB) (E), was a case in which a property was subject to three simple mortgages and the question was whether third mortgagee could set up in a suit by second mortgagee, right of subrogation for the amount paid in discharge of the decree in the suit by the first mortgagee, even though the suit on the first mortgage would now be barred. The opinion of the Full Bench was that limitation of 12 years would run under Art. 132 from the date when the decretal amount was paid off and the statutory right acquired. This is definitely opposed to the ruling in 47 Mys HCR 337 (A). It is laid down by a Full Bench in - Brij Bhukhan v. Bhagwan Datt, AIR 1942 Oudh 449 (F), that the period has to be computed for a suit of the present kind from the date of payment and not from the date of mortgage. In Umar Ali v. Asmat Ali, AIR 1931 Cal 251 (FB) (G), the question of limitation was considered by a Bench of five learned Judges and the earlier decision in - Rajkumari Debi v. Mukundalal, AIR 1921 Cal 166 (H), that the time begins to run from the date of the mortgage was overruled. The Patna High Court has reiterated the same view after consideration of the statutory provision and cases bearing on the point in a number of decisions (See Sheosaran Singh v. Ania Co-op. Credit Society Ltd., AIR 1945 Pat 192 (I); and Rameshwar Pd. Missir v. Ramnath Khemka, AIR 1950 Pat 174 (J)).

5. There is no want of authority in our own Court to treat the suit as being filed within time. In the same volume, 47 Mys HCR, there is a decision at page 515 (K), to help the appellant. The facts stated at page 528 are : "..........The plaintiff discharged the prior mortgage in instalments and according to the plaintiffs case those payments were made on 27-12-1924, 28-1-1925 and 25-7-1925 ............ The suit was filed in October 1936 and these payments were therefore well within 12 years from the date of suit. On the authority of 40 Mys H C R 298 (M) ............ it must be held that the period of limitation within which the plaintiff could enforce his right to contribution ran from the dates of the several payments above mentioned beginning with 27-12-1924 and that the suit being within 12 years from those payments is not time-barred. In this view, it is unnecessary to consider whether in a case of subrogation pure and simple the period of limitation is that applicable to the original incumbrance or whether it starts from the date of payment by the subsequent mortgagee."

6. In another case reported at page 530 (L), in the same volume it was held that when a mortgage is renewed by means of another, the period of limitation runs from the date of the latter and not of the former. There is thus preponderance of judicial opinion in favour of the view that the starting point of limitation under Art. 132, Limitation Act for a contribution by a co-mortgagor is the date on which he pays off the mortgage-debt and not the date on which the debt fell due.Statements suggesting anything to the contrary in 47 Mys HCR 337 (A), are therefore incorrect and overruled.

7. Sri M.K. Srinivasa Iyengar finally urged on behalf of defendants 1 and 2 that though there is no bar of time for the enforcement of the charge on the property under S. 100 of the Act it cannot be availed of against bona fide transferee for value. This contention of defendants 1 and 2 is put forward on the strength of a sale in their favour of the property in execution of a decree obtained by them for recovery of amount due under a mortgage deed executed by defendant 3. Plaintiff who was impleaded in that case intervened and by consent a decree was passed for realisation of the debt by sale of the C schedule property belonging to the father. This was subsequent to the litigation with respect to the first mortgage of 1927 and defendants 1 and 2 were well aware of plaintiffs rights and the effect of the discharge of the decretal debt by him. Defendants 1 and 2 cannot profess to have been ignorant of the liability of C schedule property for rateable contribution towards the debt. Having purchased it with knowledge of what had transpired and the consequences of purchase they are not entitled to claim exemption of C schedule property from liability.

8. The decree of the lower Court is, therefore, set aside and the suit is decreed as prayed for. Time for payment three months from this date. The appellant will have his costs both here and in the Court below. Appeal allowed. AIR 1957 MYSORE 3 (V 44 C 2 Jan.) "Puttathayamma v. Chichavenkatappa" MYSORE HIGH COURT Coram : 2 PADMANABHIAH AND HOMBE GOWDA, JJ. ( Division Bench ) Puttathayamma, Petitioner v. C. Chichavenkatappa and others, Respondents. Appeal No. 129 of 1953, D/- 15 -6 -1956, against order of 3rd Addl. Dist J., Bangalore, D/- 29 -7 -1953. (A) Provincial Insolvency Act (5 of 1920), S.33(3) and S.41 - INSOLVENT - DISCHARGE - Limitation for tender of proof - Effect of order of discharge. Fixing of some time for proof of debts at the time of passing an order of adjudication is only for the convenience of parties. Hence delay in applying for proof of debts is not per se fatal to acceeding to the prayer for the inclusion of debt in the schedule. No period of limitation is prescribed in the Insolvency Act during which a creditor should apply for proof of his debt. But this right of creditor to prove his debt is subject to the condition that he (creditor) should apply for proof of debts before the insolvent is granted an unconditional order of discharge and his assets are realised and distributed and the surplus, if any, is paid to the insolvent. The granting of an unconditional order of discharge is the last act in bringing about a final termination of the insolvency proceedings. 1936 Cal 807 (AIR V 23) and 54 Mys HCR 261, Foll. (Paras 9, 10) Anno : AIR Man. Prov. Insolvency Act, S. 33, N. 6; S. 41, N. 8. (B) Provincial Insolvency Act (5 of 1920), S.33(3) and S.41 - INSOLVENT - DISCHARGE - WORDS AND PHRASES - Order of discharge u/S.33(3) - Death of insolvent before filing application for discharge - Effect - Automatic discharge - Meaning of - Unconditional order of discharge, when can be passed. The order of discharge contemplated under S. 33 (3) is one made on the application of the debtor. It does not contemplate a case where the insolvent dies without filing an application for discharge. "Automatic discharge" does not, mean "immediate discharge". Those words can only mean a discharge brought about without any direct or immediate stimulus from without. (Para 12) Death of an insolvent is no bar to the Court suo motu granting an order of discharge to a deceased insolvent when the other conditions required under the Act, i.e., the realisation of his assets and the distribution of the same among his creditors are completed and when there is nothing else to be done. When the order of adjudication can be passed in favour of a deceased petitioner, there is no reason to doubt the jurisdiction of the Court to grant an unconditional order of discharge in favour of a deceased insolvent when the proceedings otherwise terminate. Even otherwise, an automatic discharge can occur when the insolvency proceedings finally terminated. Hence the death of the insolvent does not bring about automatic discharge of the insolvent and the insolvency proceedings do not terminate thereby. The creditors are, therefore, entitled to prove their debts even after the death of the insolvent till the unconditional order of discharge is passed. 1933 Lah 997 (AIR V 20), Expl.; 1928 Mad 476 (2) (AIR V 15) and 1928 Mad 480 (AIR V 15), Ref. (Para 13) Anno : AIR Man. Prov. Insolvency Act, S. 33, N. 6; S. 41, N. 5, 8. Cases Referred : Chronological Paras (A) 1936 Cal 807 (AIR V 23) : 167 Ind Cas 277 9 (B) (49) 54 Mys HCR 261 10 (C) 1933 Lah 997 (AIR V 20) : 147 Ind Cas 695 12 (D) 1928 Mad 476 (2) (AIR V 15) : 109 Ind Cas 94 13 (E) 1928 Mad 480 (AIR V 15) : ILR 51 Mad 495 13 K.P. Muddappa, for Petitioner; H. Lakshmanaswamy, for Respondents Nos. 1 and 2. Judgement This is an appeal preferred by the appellant-petitioner against the orders of the learned Third Additional District Judge, Bangalore, on I. As. Nos. III, IV, V and VIII in Insolvency Case No. 11 of 1932-33 dismissing I. A. No. III and allowing the other three applications.

2. The petitioner in Ins. 11/32-33 was one Putta Narasimhanna. He died on 22-10-36 and his wife the present appellant, was brought as his legal representative to continue the insolvency proceedings at her own request. She filed I. A. No. III in the Court of the District Judge, Bangalore, praying that the order of adjudication passed in favour of her deceased husband might be annulled. She urged various grounds in this behalf, but the then learned District Judge dismissed that petition on 14-11-1949. This order was taken in appeal in R. A. 67/50-51 on the file of this Court, and the appeal was dismissed on 11-1-52. Though I. A. No. III was thus disposed of finally, the petitioner reagitated the matter before the Third Additional District Judge and he also rejected the application as not maintainable. A portion of this appeal relates to that order.

3. We are of opinion that the appeal, so far as the order on I. A. No. III is concerned, is not maintainable inasmuch as I. A. No. III was finally disposed of by this Court on 11-1-1952 in R. A. 67/50-51. In view of that order, it was not open to the petitioner to re-agitate the matter before the lower Court. No fresh order on I. A. No. III was necessary and the order of the learned District Judge that the application was not maintainable and that therefore, it was rejected, may be taken merely as a repetition of the previous order of the then learned District Judge which culminated in the order in R. A. 67/50-51. Under these circumstances, we hold that the appeal, so far as the order on I. A. No. III is concerned, is not competent and that the same is liable to be dismissed.

4. I. As. Nos. IV and V are two applications filed by respondent 1 Chikkavankatappa. He claims to be the assignee for consideration of a portion of the decree passed in O. S. 57/30-31 on the file of the learned Subordinate Judge, Bangalore, under Ex. I, the assignment deed, from A. Gopala krishnappa, one of the joint decree-holders in that suit. I. A. No. IV is filed by him praying that he may be brought on record as assignee of the decree and that the assignment in his favour may be recognized. He has filed I. A. No. V praying that he may be permitted to prove his debt referred to in the affidavit filed along with it.

5. I. A. No. VIII is filed by respondent 2, Shampur Papanna, who claims to be the assignee of another portion of the decree passed in O. S. 57 of 1930-31 under Ex. II from A. Krishna Rao, one of the joint decree-holders in that case. He prays that his assignment may be recognized and that he be allowed to prove his debt. The petitioner opposed these applications on various grounds and her objections were ultimately overruled by the learned Judge who held that the assignments in favour of respondents 1 and 2 under Exs. I and II respectively were true and valid and that they were entitled to prove their debts. He accordingly allowed I. As. Nos. IV, V and VIII and dismissed I. A. No. III. As stated already, the present appeal is directed against those orders.

6. We have held that the appeal in so far it relates to the order on I. A. No. III is concerned is not competent. The other point that remains for consideration is whether there are sufficient reasons to interfere with the orders passed by the learned Judge on I. As. Nos. IV, V and VIII. We are of opinion that the said orders are correct and have to be upheld. The learned District Judge has found that the assignments in favour of respondents 1 and 2 are true and supported by consideration. We find no grounds to differ from those findings. Gopalakrishnappas interest in the decree in O. S. 57 of 1930-31 on the file of the learned Subordinate Judge, Bangalore, has been assigned in favour of respondent 1 Chikkavenkatappa under Ex. I for a consideration of Rs. 6,000/- of which Rs. 3,650/- has been paid in cash before the Sub-Registrar and the balance was paid to Devanga Bank towards the debt of Gopalakrishnappa. P. W. 1 is the assignee Chikkavenkatappa and P. W. 3, the attestor of Ex. I the assignment deed. They have sworn to the genuineness of Ex. I and to the fact of consideration having passed under it.

7. As regards the assignment of the decree in favour of respondent 2; there is satisfactory evidence in support of the genuineness of the transaction. P. W. 2 is the assignee; P. W. 1 is respondent 1 and P. W. 4 is the assignor. These witnesses have sworn to the genuineness of the assignment under Ex. II and to the passing of consideration. No reason is assigned or even suggested as to why the evidence of these witnesses should be rejected. The said evidence has been accepted by the learned District Judge who had the advantage of observing the demeanour of the witnesses, and we find no grounds to differ from him with respect to the credibility of these witnesses. We agree with his finding that the assignments are true and that the same are supported by consideration.

8. The more important point that arises for consideration is whether respondents 1 and 2 can be allowed to prove their debts. The lower Court has held that they are entitled, which finding, we think, is correct. The contention urged on the side of the petitioner is that the order of adjudication was passed on 24-7-33, that one years time was granted by the Court to the creditors to prove their debts, that that period expired on 24-7-34, that the insolvent died long subsequent to that i. e. on 22-11-36, that his death brought about an automatic discharge of the insolvent and that the respondents cannot be allowed to prove their debts at this late stage. We think that this contention urged by the petitioner has rightly been negatived by the learned District Judge.

9. It is true that the respondents or their predecessors-in-interest did not prove their debts within the time allowed by Court. That circumstance cannot be taken to be such a serious omission on the part of the respondents as to deprive them of the opportunity of proving their debts. Fixing of some time for proof of debts at the time of passing an order of adjudication is only for the convenience of parties. As found in the case reported in - Nazar Khan v. J.S. Barrclough, AIR 1936 Cal 807 (A), delay in applying for proof of debts is not per se fatal to acceding to the prayer for the inclusion of debt in the schedule.

10. It has also to be remembered that no period of limitation is prescribed in the Insolvency Act during which a creditor should apply for proof of his debt. But this right of creditor to prove his debt is subject to the condition that he (creditor) should apply for proof of debts before the insolvent is granted an unconditional order of discharge and his assets are realised and distributed and the surplus, if any, is paid to the insolvent Vide 54 Mys HCR 261 (B). Again as can be seen from the provisions of Ss. 33 (3), 41 and 42, Insolvency Act, the granting of an unconditional order of discharge is dependent on the realisation and distribution of the property of the insolvent when only the termination of the insolvency proceedings can be said to have taken place. Therefore the proof of debts must take place before an order of discharge is passed. Hence it may safely be held that the granting of an unconditional order of discharge is the last act in bringing about a final termination of the insolvency proceedings. In this case, as found by the Court below, and, as a matter of fact, the insolvency proceedings are not yet terminated because the realisation of the assets of the insolvent and the distribution of the same among his creditors are not yet complete.

11. The other contention urged by the learned counsel for the petitioner is that the death of the insolvent brought about his automatic discharge and that, therefore, no debts can be proved after that event by virtue of the provisions of sub-s. (3) of S. 33, Insolvency Act. No doubt, this sub-section provides that a creditor could prove his debt before an order of discharge is passed. It has to be remembered in this connection that the order of discharge contemplated under S. 33 (3) is one made on the application of the debtor. It does not contemplate a case where the insolvent dies without filing an application for discharge.

12. Now the question that arises for consideration is whether the death of the insolvent brings about an automatic discharge of the insolvent as contended by the learned counsel for the petitioner. His contention is that as soon as an insolvent dies, he must be deemed to have been discharged and the insolvency proceedings terminated. In support of his contention, reliance is placed on a solitary decision of the Lahore High Court reported in - Asa Nand v. Blshan Singh, 147 Ind Cas 695 : (AIR 1933 Lah 997) (C). His Lordship there has held that ordinarily the proceedings will not terminate until there is a discharge of the insolvent and that the matter is otherwise when the insolvent is dead in which case there will be an automatic discharge of the insolvent. But this decision does not seem to support the view of the learned counsel that death of an insolvent brings about his immediate discharge. The learned counsel for the petitioner very much harped on the words "automatic discharge" appearing in the Lahore decision. If, as contended by the learned counsel, a discharge of the insolvent takes place immediately after the death of the insolvent irrespective of the other conditions, we think the position resulting will be an anomalous one giving rise to unnecessary complications. Suppose an insolvent dies immediately after an order of adjudication is made and even before the expiry of the time granted to the creditors to prove their debts. Does it in such a case mean that the insolvency proceedings are terminated and that the creditors cannot prove their debts? The words "automatic discharge" do not, in our opinion, mean "immediate discharge". Those words can only mean a discharge brought about without any direct or immediate stimulus from without. This must be the meaning in which the words "automatic discharge" are used in the Lahore decision.

13. As pointed out already, it is only after the assets of the insolvent are realised and distributed that a debtor can be granted an unconditional order of discharge and the insolvency proceedings can be said to be terminated. In the Lahore case relied on by the learned counsel for the petitioner, the insolvents properties had already been distributed prior to his death, and that was evidently the reason why the learned Judge said that there was an automatic discharge of the insolvent and the proceedings had terminated as there was nothing more to be done. We are sure the decision of the learned Judge would have been otherwise if the property of the insolvent had not till then been distributed. We may also point out, in this connection, that even the learned Judge who decided the Lahore case was not himself sure of the correctness of the decision he was giving as can be gathered from his concluding words viz.- "The point is not free from difficulty and I therefore dismiss the appeal but make no orders as to costs." We are of opinion that death of an insolvent is no bar to the Court suo motu granting an order of discharge to a deceased insolvent when the other conditions required under the Act, i.e., the realisation of his assets and the distribution of the same among his creditors are completed and when there is nothing else to be done. It is clear from a reading of S. 17 that the Court is competent to adjudge a person as an insolvent even after his death and continue the proceedings. It is so held in the case reported in - Venkatarama Ayyar v. Official Receiver Tinnevelly, 109 Ind Cas 94 : (AIR 1928 Mad 476 (2) (D) and - Ramathai Anni v. Kanniappa Mudaliar, ILR 51 Mad 495 : (AIR 1928 Mad 480) (E). In the first case, it is further held that the words "proceedings in the matter" under S. 17, Insolvency Act include subsequent steps in connection with the petition of which the earliest will be the adjudication of the insolvent without which nothing can be done. When the order of adjudication can be passed in favour of a deceased petitioner, we do not see any reason to doubt the jurisdiction of the Court to grant an unconditional order of discharge in favour of a deceased insolvent when the proceedings otherwise terminate. Even otherwise, an automatic discharge may be taken as having occurred when the insolvency proceedings finally terminated. Under these circumstances, we see no reasons to interfere with the order of the lower Court.

14. In the result, the orders of the learned District Judge on I. As Nos. IV, V and VIII are confirmed and this appeal stands dismissed with costs. Advocates fee Rs. 50/-. Appeal dismissed. AIR 1957 MYSORE 5 (V 44 C 3 Jan.) "Krishna v. Mysore State" MYSORE HIGH COURT Coram : 2 PADMANABHIAH AND HOMBE GOWDA, JJ. ( Division Bench ) Krishna and another, Petitioners v. State of Mysore, Respondent. Criminal Revn. Petn. No. 245 of 1956, D/- 10 -8 -1956, against order of City Magistrate, Bangalore, D/- 30 -7 -1956. (A) Criminal P.C. (5 of 1898), S.207A - CRIMINAL PROCEDURE - (4) - "Evidence of any one or more of the other witnesses." The recording of the evidence referred to in the latter part of S. 207-A (4) is purely within the discretion of the Magistrate, and therefore the omission to examine in that behalf any other witness or witnesses suo motu cannot be such as to vitiate the order of committal. (Para 5) (B) Criminal P.C. (5 of 1898), S.207A - EVIDENCE - WITNESS - COMMISSION OF OFFENCE - (4) and S.173 - Evidence of witnesses to actual commission of offence. The evidence contemplated in the first part of S. 207-A (4) is the evidence of witnesses to the actual commission of the offence alleged. So, what is obligatory on the Magistrate is the recording of the evidence of witnesses to the actual occurrence, and if there are no witnesses to speak to the actual commission of the offence, the Magistrate is not bound to examine any other witness or witnesses. Therefore there is nothing illegal in committing the accused to the Court of Session solely on the basis of the documents referred to in S. 173 when on the side of the prosecution there is no evidence as to the actual commission of the offence. (Paras 6 and 8) (C) Criminal P.C. (5 of 1898), S.207A - OBJECT OF AN ACT - CRIMINAL PROCEDURE - Object. The object of enacting S. 207-A was to simplify the procedure and secure an expeditious termination of the proceedings by shortening the duration of the enquiry. (Para 7) (D) Criminal P.C. (5 of 1898), S.207A(7) - CRIMINAL PROCEDURE - "Such evidence". The words "such evidence" appearing in S. 207-A (7) can only mean the evidence contemplated under S. 207-A (4). (Para 8) (E) Criminal P.C. (5 of 1898), S.207A and S.251A - CRIMINAL PROCEDURE - WARRANT CASE - Difference between. Section 207-A deals with an enquiry before a Magistrate where the case is triable exclusively by a Court of Session or High Court, and S. 251-A relates to the procedure to be followed in the trial of warrant cases instituted on police reports. Under S. 251-A it is not obligatory on the part of the Magistrate to record any evidence either of witnesses to the actual commission of the offence or otherwise and he can frame a charge solely depending upon the documents produced on the side of the prosecution and referred to in S. 173, Criminal P. C., whereas under S. 207-A (4) it is incumbent on the Court to examine witnesses as to the actual commission of the offence. (Para 9) (F) Criminal P.C. (5 of 1898), S.162(1) and S.207A - CRIMINAL PROCEDURE - INVESTIGATION - POLICE OFFICERS - Statements recorded u/S.162 - Use of, by committing Magistrate u/S.207A. No doubt, S. 162 (1) limits the use of the statements recorded under S. 162 but it cannot be held that those statements cannot be made use of by a committing Magistrate under S. 207-A. (Para 10) Mahesh Chander Guru and S.R. Rajasekhara Murthy, for Petitioners; Advocate-General, for the State of Mysore. Judgement PADMANABHIAH, J. :- This is a revision petition preferred by the petitioners-accused 1 and 2 against the order of the learned City Magistrate, Bangalore, in C. C. No. 1912 of 1956, committing them to the Court of Session, Bangalore, to take their trial for offences under Ss. 302, 307, 457, 380, 392, 394, 397 and 460 read with S. 34, Penal Code.

2. The facts that have given rise to this petition are briefly as under :

3. The petitioners and another by name Govinda Reddy were the accused in C. C. No. 1912/56 on the file of the learned City Magistrate, Bangalore. As some of the offences charge-sheeted were exclusively triable by a Court of Session, the procedure laid down in S. 207-A, Criminal P. C., was followed. On the side of the prosecution, no evidence was adduced but on a perusal of the documents referred to u/S. 173, Criminal P. C., and produced on the side of the prosecution, the learned Magistrate came to the conclusion that a prima facie case was made out against them for the offences referred to above and committed them to take their trial before the Court of Session for the said offences. As against that order of committal, the present petition is filed.

4. The main point that arises for consideration is whether there are sufficient grounds for quashing the order of commitment made by the learned City Magistrate. The most important ground of attack against the order of committal urged on the side of the petitioners is that S. 207-A (4), Criminal P. C., contemplates the recording of evidence by the Magistrate, that the provisions of that section are mandatory, that the evidence referred to therein has not been taken and that the order of committal made solely on the basis of the documents produced by the prosecution and referred to in S. 173, Criminal P. C., is illegal. We have carefully considered the arguments advanced by the learned counsel for the petitioners and we are of opinion that there is no substance in the present petition.

5. section 207-a (4) reads thus : "The Magistrate shall then proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged; and if the Magistrate is of opinion that it is necessary in the interests of justice to take the evidence of anyone or more of the other witnesses for the prosecution, he may take such evidence also." This provision could not have been clearer than what it is. It consists of two portions; the formed portion relates to the examination of witnesses to the actual commission of the offence and the latter portion refers to the evidence of any one or more of the other witnesses for the prosecution. The recording of the evidence referred to in the latter part of the section appears to be a matter which is purely within the discretion of the Magistrate, and therefore the omission to examine in that behalf any other witness or witnesses suo motu cannot be such as to vitiate the order of committal. So the only other question that remains for consideration is whether it is obligatory on the part of the Court or Magistrate to examine witnesses that the prosecution may produce under the former part of S. 207-A (4).

6. In our opinion, the evidence contemplated in the first part of S. 207-A(4) is the evidence of witnesses to the actual commission of the offence alleged. That it is so, is also clear from the words "evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged" appearing in S. 207-A (4). So, what is obligatory on the Magistrate is the recording of the evidence of witnesses to the actual occurrence, and if there are no witnesses to speak to the actual commission of the offence, the Magistrate is not bound to examine any other witness or witnesses. This appears to be the gist of S. 207A(4) as to the examination of witnesses.

7. In this case, it is conceded on the side of the prosecution that no witness to the actual commission of the offence is available. When that is so and in view of the clear language of S. 207-A, we cannot countenance the contention that S. 207-A requires examination of witnesses, whether they are witnesses to the actual commission of the offence or not. That would amount to reading something into S. 207-A which is not there. It is the duty of Courts to interpret the law as it is and it need hardly be stated that the object of enacting S. 207-A was to simplify the procedure and secure an expeditious termination of the proceedings by shortening the duration of the enquiry. That being the object of the section, it is unlikely that the Legislature could have contemplated examination of all the witnesses for the prosecution during the enquiry stage.

8. Our attention was drawn to sub-s. (7) of S. 207-A and it was contended that according to that sub-section, no committal can be made without any evidence recorded by the Magistrate. We do not see any force in this contention also. The words "such evidence" appearing in the said subsection can only mean the evidence contemplated under S. 207-A (4). We have already referred to the nature of the evidence that is contemplated under that sub-section. Such evidence as contemplated under S. 207-A (4) may or may not be available. If such evidence is available, then the Magistrate has to consider it under sub-s. (7) before making the commitment. When there is no evidence as to the actual commission of the offence alleged against an accused, what will be left will be the documents referred to in S. 173, Criminal P. C. From a perusal of Ss. 207(4), 207-A (6) and 207-A (7), we have come to the conclusion that there is nothing illegal in committing the accused to the Court of Session solely on the basis of the documents referred to in S. 173 when on the side of the prosecution there is no evidence as to the actual commission of the offence.

9. It was contended by the learned counsel for the petitioners that if this should be the view, then no difference exists between S. 207-A and S. 251-A. It is not correct to say that there is no difference between the procedures laid down in these two sections. Section 207-A deals with an enquiry before a Magistrate where the case is triable exclusively by a Court of Session or High Court, and S. 251-A relates to the procedure to be followed in the trial of warrant cases instituted on police reports. Under S. 251-A it is not obligatory on the part of the Magistrate to record any evidence either of witnesses to the actual commission of the offence or otherwise and he can frame a charge solely depending upon the documents produced on the side of the prosecution and referred to in S. 173, Criminal P. C., whereas under S. 207-A (4) it is incumbent on the Court to examine witnesses as to the actual commission of the offence. This is the main difference between the two sections. Therefore it is futile to contend that there is no difference between the procedures laid down in the two Ss. 207-A and 251-A.

10. It was further urged that statements of witnesses recorded under S. 162, Criminal P. C., during the course of investigation have been made use of by the Magistrate and that this is contrary to the provisions of S. 162(1), Criminal P. C. That provision provides that the statement recorded under S. 162(1), if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by S. 145, Evidence Act and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. No doubt, S. 162(1) limits the use of the statements recorded under S. 162 but we cannot accept the argument advanced by the learned counsel for the petitioners that those statements cannot be made use of by a Committing Magistrate under S. 207-A. From a reading of that section, it is obvious that it was the intention of the Legislature that a Magistrate must look into those statements and consider them before making an order of committal. When that is so, we may have to construe S. 207-A as an exception to S. 162(1), Criminal P. C. Under these circumstances, we are of opinion that there are no grounds to interfere with the order of committal which appears to us quite legal and valid.

11. In the result, the order of the learned Magistrate is confirmed and this revision petition stands dismissed. Revision dismissed. AIR 1957 MYSORE 7 (V 44 C 4 Jan.) "C. K. Motor Services v. State of Mysore" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA, C.J. AND PADMANABHIAH, J. ( Division Bench ) Central Karnataka Motor Services Ltd., Petitioner v. State of Mysore and another, Respondents. Writ Petn. No. 96 of 1955, D/- 13 -7 -1956. (A) Motor Vehicles Act (4 of 1939), S.64 - Motor Vehicles Rules (1940), R.276A - S.64 - MOTOR VEHICLES - APPEAL - contemplates only one appeal - R.276 - A is invalid. The words in S.64 are such as to render an order passed with respect to matters enunciated therein liable to be challenged in appeal before one authority and not to subject the appellate order to a further appeal. Section 64 cannot therefore be availed of to claim a right of second appeal. In view of this Rule 276-A which permits this must be held to be invalid. 1948 Mad 400 (AIR V 35), Rel. on. (Para 5) Anno : AIR Man., M. V. Act, S. 64, N. 1. (B) INTERPRETATION OF STATUTES - PREAMBLE - Interpretation of Statutes - Rule framed under Act - Conflict between Rule and Act. Civil P.C. (5 of 1908), Pre.. It is well settled that the rule framed under the rule-making power given by an Act should not be repugnant to the Act and in case of conflict between the two the Act should prevail. (Para 3) Anno : AIR Com., C. P. C., Pre. N. 7. Case Referred : Chronological Para (A) 1948 Mad 400 (AIR V 35) : 1948-1 Mad LJ 85 6 K.S. Puttaswamy, for Petitioner; D.M. Chandrasekhar; for Advocate-General (for No. 1) and A.N. Anantharamaiya, (for No. 2), for Respondents. Judgement VENKATARAMAIYA, C. J. :- The question raised in this case is whether Government had jurisdiction to interfere with an appellate order passed by the State Transport Authority under the Indian Motor Vehicles Act. Petitioner and respondent 2 are plying buses between certain places in Mysore. The Regional Transport Authority prescribed the time at which the bus of each had to start. This was changed perhaps to the advantage of the petitioner in the appeal preferred by him to the State Transport Authority. Respondent 2 thereupon approached Government for modification of this and the order of the State Transport Authority was varied. Petitioner contends that it is illegal and wants the order to be quashed in exercise of the powers of this Court under Art. 226, Constitution of India.

2. It is admitted that the order cannot be assailed according to the rules framed by Government as R. 276-A expressly provides for an appeal to it against appellate orders of State Transport Authority. This rule is impugned as being repugnant to the Act and in support of it the recent amendment of the Act by virtue of which appellate orders of the State Transport Authority are expressly stated to be appealable to Government is pointed out as implying that such orders were not subject to appeal at the time Government dealt with the case between the parties. The amendment does not necessarily justify such an inference as it may have been meant to remove doubts about maintainability of second appeals to Government in the absence of any provision in the Act though there is a definite rule which permits the same. The right of appeal is to be conferred by statute and cannot be claimed without a provision therefor.

3. The rule cannot be successfully challenged unless the presumption of validity ordinarily attaching to it is shown to be inapplicable. Section 64, Motor Vehicles Act states : "Any person - (a) aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit or by any condition attached to the permit granted to him......may within the prescribed time and in the prescribed manner appeal to the prescribed authority who shall give such person and the original authority an opportunity of being heard." According to S. 2(21) "prescribed" means prescribed by rules made under the Act. Rule 276-A no doubt makes a second appeal to Government possible but it cannot override or supplement the provisions of the Act either by taking away what is granted or confer rights not allowed and available therein. It is well-settled that the rule should not be repugnant to the Act and in case of conflict between the two the latter should prevail.

4. It is conceded that an appeal to Government can lie if at all only under S. 64 and no other. The Act does not vest Government with jurisdiction to revise orders made by the State Transport Authority.

5. The words in S. 64 are such as to render an order passed with respect to matters enunciated therein liable to be challenged in appeal before one authority and not to subject the appellate order to a further appeal. If the order is that of the Regional Authority, it may be appealed against before the State Transport Authority, if it is that of the State Transport Authority, the Government is the Appellate Authority. In either case the appellate order was final. The section requires that the "Original Authority" should have "an opportunity of being heard." Difficulty will arise if a second appeal is deemed to be possible as in such cases the question will be as to which is the original authority, and if this is considered to be the Regional Authority as the words prima facie denote it may turn out to be meaningless in some cases. A permit may be refused by the Regional Authority, his order may be set aside by the State Transport Authority and if the aggrieved person contests this and seeks restoration of the order of the Regional Authority to whom is the opportunity to be given for being heard? The State Transport Authority is not the "Original Authority" and it would be nothing short of futile and empty formality to notify the Regional Authority as his order is not complained of. Section 64 cannot therefore be availed of to claim a right of second appeal. In view of this rule which permits this must be held to be invalid.

6. In Sri Rama Vilas Service Ltd. v. Road Traffic Board, Madras, AIR 1948 Mad 400 (A), a notification of Government by which certain instructions or directions were given for the issue of permits to ply vehicles was held to be ultra vires and of no effect on the ground that it was beyond the power to make rules.

7. The order passed by Government is thus lacking jurisdiction and cannot be sustained on the basis of the rule since the rule itself was ultra vires. It is declared not legal.

8. As the point raised was not free from doubt we direct the parties to bear their own costs. Order accordingly. AIR 1957 MYSORE 8 (V 44 C 5 Jan.) "Raghunath v. Coorg State" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA, C.J. AND PADMANABHIAH, J. ( Division Bench ) D.P. Raghunath, Petitioner v. State of Coorg and another, Respondents. Writ Petn. No. 48 of 1954, D/- 20 -3 -1956. Constitution of India, Art.311 - TERMINATION OF SERVICE - SERVICE MATTERS - GOVERNMENT SERVANTS - Dismissal of temporary Government servant - Notice to show cause necessary - Nature of service immaterial. Article 311 of the Constitution requires that a person should be notified to show cause why disciplinary action should not be taken against him before he is removed from service, or otherwise dealt with. The fact that the petitioner was employed temporarily does not justify the course prescribed by the said Article being dispensed with. There is a stigma, disqualification or taint of being unfit or unworthy for service attaching to an order of dismissal, and this may render the person concerned ineligible to be employed elsewhere. This is a factor which cannot be ignored in applying Art. 311; and for the purpose of the said Article it makes no difference whether the dismissal relates to a person who is a permanent or temporary incumbent. 1954 Cal 495 (AIR V 41), Rel. on. (Para 2) Case Referred : Chronological Para (A) 1954 Cal 495 (AIR V 41) : 58 Cal WN 239 3 P. Raghavendra Rao, for Petitioner; D.M. Chandrasekhar, for Advocate-General, for Respendents. Judgement VENKATARAMAIYA, C. J. :- The petitioner who was in the service of Coorg Government as a teacher was dismissed by an order of the District Educational Officer on 8-12-53. Thereupon he petitioned to the Government of Coorg for setting aside that order but was unsuccessful. He has applied to this Court for the order being quashed on the ground that no opportunity was afforded to him to explain why the order should not have been passed. It is admitted, however, that the appointment he held was temporary, that prior to his dismissal he was involved in an assault against a collegue, and that as a punishment for this a penalty was imposed upon him and paid up.

2. There is no doubt that Art. 311 of the Constitution requires that a person should be notified to show cause why disciplinary action should not be taken against him before he is removed from service, or otherwise dealt with. The fact that the petitioner was employed temporarily does not justify the course prescribed by the said Article being dispensed with. The loss of the petition is no doubt the result of dismissal, or of the service being terminated either because the vacancy in which the appointment was made has ceased to exist, or the appointment itself is abolished. There is, however, a stigma, disqualification or taint of being unfit or unworthy for service attaching to an order of dismissal, and this may render the person concerned ineligible to be employed elsewhere. This is a factor which cannot be ignored in applying Art. 311; and for the purpose of the said Article it makes no difference whether the dismissal relates to a person who is a permanent or temporary incumbent.

3. The question whether temporary employees can claim benefit of Art. 311 arose in a case in the Calcutta High Court and it was held in Balai Chand Basak v. N. Roy Choudhury 58, Cal WN 239 : (AIR 1954 Cal 495) (A) that it operates equally in favour of both classes of employees. Sri Chandrasekhar on behalf of the learned Advocate-General concedes that no notice was issued to the petitioner to show cause why he should not be dismissed, and that being so, the order is illegal and is accordingly set aside. It is open to the Government to deal with the petitioner in a proper manner as prescribed by law and take such action as it may deem fit.

4. Having regard to the circumstances in which the order apparently was passed, we do not think the petitioner is entitled to costs. We, therefore, direct the parties to bear their own costs. Application allowed. AIR 1957 MYSORE 9 (1) (V 44 C 6 Feb.) "M. H. Krishnappa v. D. K. Govindachar" MYSORE HIGH COURT Coram : 2 PADMANABHIAH AND HOMBE GOWDA, JJ. ( Division Bench ) M. H. Krishnappa, Plaintiff-Appellant v. D.K. Govindachar and another, Defendants 2 and 1, Respondents. Misc. Appeal No. 72 of 1955, D/- 20 -3 -1956, against order of Addl. Sub-J., Bangalore in R.A. No. 239 of 1954. Civil P.C. (5 of 1908), O.41, R.23, R.25 - APPEAL - REMAND OF MATTER - APPELLATE COURT - Remand of whole case. When an appellate Court comes to the conclusion that the trial Court had omitted to frame or try an important issue arising from the pleadings and essential for a right decision of the suit on merits, it is open to that Court under O. 41, R. 25, Civil P. C., to frame and refer that issue for trial to the trial Court retaining the appeal on its own file and directing the trial Court to take additional evidence and submit the same with the finding thereon and on receipt of that finding the appellate Court may proceed to judgment. In such a case, no useful purpose will be served by reopening the entire case and remanding the same. The order of remand of the entire case after setting aside the judgment and decree of the trial Court is not warranted. (Para 4) Anno : AIR Com., C. P. C., O. 41, R. 23, N. 2. Y. Adinarayana Rao, for Appellant; C. Srinivasa Iyengar, for Respondents. Judgement PADMANABHIAH, J. :- This is an appeal preferred by the appellant-plaintiff against the order of remand passed by the Additional Subordinate Judge, Bangalore, in R. A. No. 239 of 1954, setting aside the judgment and decree passed by the learned Second Munsiff, Bangalore, in O. S. No. 294 of 52-53.

2. The appellant was the plaintiff and the respondents were the defendants in O. S. No. 294 of 52-53 on the file of the learned Second Munsiff, Bangalore. Plaintiffs suit was one for specific performance of an agreement to sell dated 5-11-1950, executed by defendant 1 undertaking to sell the schedule property to the plaintiff for a sum of Rs. 775/-. Plaintiffs grievance was that defendant 1 had subsequent to the date of this agreement sold the property to defendant 2 who had purchased the same with the knowledge of the agreement of sale, and therefore he filed a suit against both the defendants for specific performance of the agreement. The defendants denied the plaintiffs claim : defendant denied the execution of the agreement of sale in favour of the plaintiff, and defendant 2 contended that this sale deed had come into existence even prior to the date of the agreement of sale in favour of the plaintiff and that he was a bona fide purchaser. In reply, the plaintiff asserted that the alleged sale deed in favour of defendant 2 was got up subsequently and that the same was deliberately ante-dated. The learned Munsiff decreed the suit. Defendant 2 took that decision in appeal and the learned Subordinate Judge found that an important issue which arose from the pleadings had not been framed by the trial Court and he accordingly framed an issue as follows : "Whether the sale deed dated 15-5-1950 executed by defendant 1 in favour of defendant 2 was really executed subsequent to the agreement dated 5-11-1950 executed in favour of the plaintiff and whether the sale deed in favour of defendant 2 was deliberately ante-dated with a view to deprive the plaintiff of his rights under the agreement." After framing this issue, the learned Subordinate Judge set aside the judgment and decree of the Court below and remanded the suit to the trial Court with a direction to give an opportunity to the parties to adduce evidence on the issue newly framed and dispose of the same afresh according to law. It is against this order that the present appeal is preferred.

3. It is conceded on both sides that the new issue framed by the learned Subordinate Judge arose out of the pleadings, that the same was an essential issue and that the lower appellate Court was right in framing it. It is also seen that defendant 2 wanted to adduce evidence in support of that issue. Under these circumstances, there is no substance in the plaintiff contending that the Court should have proceeded to judgment on the evidence already on record and that no fresh evidence was necessary. When the issue was newly framed and defendant 2 wanted to adduce evidence in support of that issue, it is but fair that he should be given an opportunity for doing so.

4. But we are of opinion that the order of remand of the entire case after setting aside the judgment and decree of the trial Court was not warranted under the circumstances of the case. When an appellate Court comes to the conclusion that the trial Court had omitted to frame or try an important issue arising from the pleadings and essential for a right decision of the suit on merits, it is open to that Court under O. 41, R. 25, Civil P. C., to frame and refer that issue for trial to the trial Court retaining the appeal on its own file and directing the trial Court to take additional evidence and submit the same with the finding thereon and on receipt of that finding the appellate Court may proceed to judgment. In such a case, no useful purpose will be served by re-opening the entire case and remanding the same. We think that the order in question has to be set aside.

5. In the result, we reverse the order of the learned Subordinate Judge setting aside the judgment and decree of the learned Second Munsiff, and direct the lower appellate Court to keep the appeal on its file and remit the issue to the trial Court for a finding and after receipt of the finding, to dispose of the appeal on merits in accordance with law. The costs of this appeal will be costs in the cause and abide the result." Appeal allowed. AIR 1957 MYSORE 9 (2) (V 44 C 7 Feb.) "Madhava Shanoi v. Moktyar Sahib" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) B. Madhava Shanoi, Petitioner v. Moktyar Sahib, Respondent. Criminal Revn. Petn. No. 287 of 1955, D/- 24 -2 -1956, against order of S.J., Mysore, D/- 30 -9 -1955. (A) Criminal P.C. (5 of 1898), S.342(1) - EXAMINATION OF ACCUSED - OBJECT OF AN ACT - Scope - When questions should be put. Sub-section (1) of S. 342 contemplates two stages at which an accused can be examined. The use of words may and shall in two parts of the section goes to show that under the first portion the Court may at any stage of the inquiry or trial examine the accused, but it must do so after the evidence for the prosecution is over and before the accused is called upon to enter on his defence. What is obligatory is to examine the accused after the evidence for the prosecution is closed and before he is asked to enter upon his defence. It makes no difference whether the examination takes place before or after the charge is framed provided the accused is examined after the evidence for the prosecution is completely closed. It is not obligatory to examine an accused before a charge is framed when the evidence for the prosecution is not closed. (Para 5) Thus where, after examining four P. Ws., charges were framed and thereafter the Magistrate allowed the prosecution to examine four more witnesses and after the evidence for the prosecution was closed the accused was examined; Held that the procedure adopted was not defective. 13 Mys LJ 295, Disting.; 2 Mys LJ 241 (FB) and 1926 Nag 459 (AIR V 13), Ref. (Para 4) Anno : AIR Com., Criminal P.C., S. 342, N. 2, 9, 10. Cases Referred : Chronological Paras (A) (23) 2 Mys LJ 241 (FB) 5 (B) 1926 Nag 459 (AIR V 13) : 27 Cri LJ 830 5 (C) (34) 13 Mys LJ 295 5

V. Krishnamurthy, for Petitioner; B.T. Parthasarathy, for Respondent. Judgement This is a revision petition against the order of the learned Sessions Judge, Mysore, in Criminal Appeal No. 65/54 setting aside the conviction and sentence passed on the respondent-accused by the learned City Magistrate, Mysore, in C. C. No. 2635/53 and directing a re-trial.

2. The facts that have given rise to this petition are briefly as follows : The respondent was the accused in C. C. 2635/53 on the file of the learned City Magistrate, Mysore, and he was convicted of offences under Ss. 482 and 420, I. P. C., and sentenced to undergo simple imprisonment for three months and also to pay a fine of Rs. 500/- and in default to undergo simple imprisonment for a further period of three months for the offence under S. 482, I. P. C., and simple imprisonment for one month for the offence under S. 420, I. P. C. The respondent-accused appealed against this judgment, and the learned Sessions Judge set aside the conviction and sentence and remanded the case for retrial. As against that order, this revision petition is filed.

3. The main ground on which the learned Sessions Judge set aside the conviction is that the accused has not been examined before the charge against the respondent-accused was framed as required under S. 342, Criminal P. C., that the procedure adopted by the learned Magistrate was highly defective, not curable under S. 537, Criminal P. C., and that the trial was vitiated by this omission. It is contended on the side of the petitioner that the view taken by the learned Sessions Judge is not correct. There appears to be considerable force in this contention.

4. In this case, eight P. Ws. have been examined in all. What has happened is that after examining four P. Ws. charges were framed against the accused and thereafter the learned Magistrate allowed the prosecution to examine four more witnesses. The entire evidence for the prosecution was closed on 8-7-54 and on 9-7-54 the accused was examined and he also filed a statement in writing. The contention urged on the side of the respondent-accused is, as stated already, that he should have been examined under S. 342, Criminal P. C., before the charges were framed and that the omission to do so is an illegality which vitiates the entire trial. So, the short point that arises for consideration is whether in cases where a charge is framed before the evidence for prosecution is over, it is obligatory to examine the accused under S. 342, Criminal P. C., and whether the omission in such cases to examine the accused before a charge is framed is an illegality or irregularity vitiating the proceedings. It appears to me that the finding of the learned Sessions Judge that such a procedure is highly defective not curable under S. 537, Criminal P. C., cannot be sustained.

5. No doubt, it is true that the accused was not examined before the charges were framed. In my opinion, it was not obligatory on the part of the learned Magistrate to examine the accused before he framed the charges inasmuch as the case for the prosecution was not closed by that time. Section 342 (1), Criminal P. C., runs thus : "For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence." This section contemplates two stages at which an accused can be examined. Under the first part of S. 342(1), the Court may at any stage of an inquiry or trial put such questions to him as it considers necessary. The word may used in the first part of this section goes to show that it is an enabling provision and that it is purely within the discretion of the Court to put such questions as it may consider necessary. The use of the word shall in the second portion of S. 342(1) clearly goes to show that the examination contemplated in that portion is mandatory, and not merely discretionary. In other words, under the first portion the Court may at any stage of the inquiry or trial examine the accused, but it must do so after the evidence for the prosecution is over and before the accused is called upon to enter on his defence. The section itself enunciates this principle and there may not be any need for going into the case law on this subject. If any authority for this proposition is wanted, the case reported in Rahim Sab v. Govt. of Mysore, 2 Mys LJ 241 (FB) (A) and Deoji v. Emperor, AIR 1926 Nag 459 (B) may be perused. What is obligatory on the Court is to examine the accused after the evidence for the prosecution is closed and before he is asked to enter upon his defence. It makes no difference whether the examination takes place before or after the charge is framed provided the accused is examined after the evidence for the prosecution is completely closed. In this case, the accused has been examined after the evidence for the prosecution was closed and before he was called upon to enter upon his defence. Under S. 342, it is not obligatory on the part of the Court to examine an accused before a charge is framed when the evidence for the prosecution is not closed. Reliance was placed on the case reported in Honnuramma v. Suryanaranappa, 13 Mys LJ 295 (C), where it is held that the omission to examine an accused after the evidence for the prosecution has been let in and before framing the charge is an illegality which vitiates the trial. In that case all the evidence for the prosecution was over and in spite of it, the learned Magistrate did not examine the accused under S. 342, Criminal P. C. It was not a case where a few witnesses were examined before the charge was framed and further evidence for the prosecution was adduced subsequently as in this case. Therefore that case cannot have any application, to the facts of the present case. Under these circumstances, I am of opinion that the order of the learned Sessions Judge cannot be sustained.

6. In the result, the order of the learned Sessions Judge setting aside the conviction of the respondent-accused and the sentence passed on him are set aside and so also the order of remand, and the learned Sessions Judge is directed to dispose of the appeal on merits in accordance with law. Order accordingly. AIR 1957 MYSORE 11 (V 44 C 8 Feb.) "Kamalamma v. Venkataswamappa" MYSORE HIGH COURT Coram : 1 HOMBE GOWDA, J. ( Single Bench ) Kamalamma, Plaintiff-Petitioner v. Venkataswamappa, Defendant-Respondent. Civil Petn. No. 26 of 1955, D/- 19 -3 -1956, against decree of First Addl. Dist. J., Bangalore, in C.S. No. 112 of 1951-52. Civil P.C. (5 of 1908), O.44, R.1, Proviso - APPEAL - OBJECT OF AN ACT - Scope - Strict adherence. In considering an application to prefer an appeal in forma pauperis the High Court can only look into the application filed by the petitioner and the judgment and decree and on perusal of them if the Court comes to the conclusion that the decree of the lower Court is not contrary to law or is not otherwise erroneous or unjust, then the Court is bound to reject the application. (Para 4) The proviso to O. 44, R. 1 gives the Court no option. No injustice can result by such strict adherence to the terms of the proviso and consequent refusal of leave to appeal in forma pauperis, as it is open to an applicant to pay the court-fee and ask the Court to examine the entire records and to come to a conclusion. 1931 Mad 198 (AIR V 18), Disting.; 9 Mys LJ 412 and 11 Mys LJ 273 and 13 Mys LJ 192 and 15 Mys LJ 90, Ref. (Para 7) Anno : AIR Com., C. P. C., O. 44, R. 1, N. 6. Cases Referred : Chronological Paras (A) 1931 Mad 198 (AIR V 18) : 53 Mad 245 5 (B) 1933 Mad 519 (AIR V 20) : 56 Mad 323 5 (C) (05) 28 Mad 338 5 (D) (31) 9 Mys LJ 412 6 (E) (33) 11 Mys LJ 273 6, 7 (F) (34) 13 Mys LJ 192 7 (G) (36) 15 Mys LJ 90 7 E. Kanakasabhapathy, for Petitioner; P.S. Devadas, for Respondent. Judgement This is an application filed by the petitioner under O. 44, R. 1, Civil P. C., for permission to file an appeal against the judgment and decree of the First Additional District Judge, Bangalore, in O. S. No. 112 of 1951-52, in forma pauperis.

2. The petitioner was the plaintiff in the Court below and had sought for cancellation of the sale deed dated 26-2-1951 executed by her in favour of the respondent and relating to the plaint schedule property on the ground that it was a false, fraudulent and nominal document. She had also sought for delivery of possession of the plaint schedule property from the respondent with mesne profits. The respondent resisted the claim of the petitioner and contended among other things that he was the absolute owner of the property having purchased it from its previous owner for valuable consideration on 10-5-1947 but had got the sale deed nominally executed in the name of the petitioner, who was his wife and that the petitioner had subsequently willingly executed the deed dated 26-2-1951 which though was styled as a sale deed was really a deed of declaration of his title. He denied that he had practised any fraud or undue influence on the petitioner and secured the sale deed from the petitioner. The learned District Judge held, on the evidence adduced by the parties, that it was the respondent that had paid the consideration and purchased the property from its previous owner on 10-5-1947 and the sale deed in the name of the petitioner was benami for the respondent. He held further that the petitioner had failed to establish that the sale deed dated 26-2-1951 executed in favour of the respondent was tainted with any fraud or was the result of undue influence practised by the respondent on her and dismissed the suit. It is to prefer an appeal against the said decision in forma pauperis that the present petition has been filed by the petitioner.

3. It was urged by Sri E. Kanakasabhapathy, the learned counsel for the petitioner, that the findings of the learned District Judge are the result of gross misappreciation of the evidence on record; that there is very good evidence to come to the conclusion that it was on account of the fraud and undue influence practised by the respondent on the petitioner that she executed the sale deed dated 26-2-1951 in his favour.

4. He also urged that the evidence on record further proved that the consideration amount for the sale deed dated 10-5-1947 was paid by the petitioner from out of the funds made over to her by her father and that the financial position of the respondent was not sound enough on that date to enable him to pay such a large amount and purchase the property from out of his own funds. It is conceded by the learned counsel for the petitioner that there is no substantial question of law or any question relating to the application of the article of Limitation Act involved in the case. But he contends that erroneous findings of the lower Court based on gross misappreciation of the evidence are sufficient to grant permission to the petitioner to prefer an appeal against the judgment and decree. Here the matter is made clear to my mind by the proviso to O. 44, R. 1, Civil P. C., which reads thus : "Provided that the Court shall reject the application unless, upon a perusal thereof and of the judgment and decree appealed from, it sees reason to think that the decree is contrary to law or is otherwise erroneous or unjust." Therefore in considering this application to prefer an appeal in forma pauperis this Court can only look into the application filed by the petitioner and the judgment and decree and on perusal of them if the Court conies to the conclusion that the decree of the lower Court is not contrary to law or is not otherwise erroneous or unjust, then the Court is bound to reject the application. The proviso to O. 44, R. 1, Civil P. C., extracted above gives the Court no option.

5. The learned advocate for the petitioner strongly relied upon a decision reported "in In re Chennamma, AIR 1931 Mad 198 (A) in support of his contention that this Court can peruse the evidence on record to find out as to whether the conclusions arrived at by the learned District Judge are based on proper appreciation of the evidence adduced in the case. Apart from the fact that the above decision was dissented from in a later decision of the Madras High Court reported in Narayana Rao v. Veerayya, 56 Mad 323 : (AIR 1933 Mad 519) (B) and by this Court in a number of decisions, the facts disclose that the trial Court in that case had dismissed the plaintiffs suit holding that the claim was barred under Art. 93, Limitation Act. The question for decision in that case was whether it was Art. 93, Limitation Act as held by the Court below or Art. 144 or Art. 142 as contended by the appellant that was applicable to the case. As a matter of fact the trial Court after discussing the question at great length and referring to various authorities had held that the decision in Narayanan Chetty v. Kannama Achi, 28 Mad 338 (C) though supported the plaintiffs contention had been impliedly overruled as a result of certain later cases of the Madras High Court. In those circumstances the High Court held the appeal raised a substantial question of law and permitted the petitioner to prefer an appeal in forma pauperis. The following observations of Venkatasubba Rao, J., made this point abundantly clear : "In other words the appeal raises a substantial question of law and we cannot foretell what view the Bench disposing of the appeal may take after hearing arguments on both sides. To decide the point at once would be to prejudice the appeal. It is unreasonable to hold that O. 44, R. 1 compels us to adopt such a course....It is unnecessary in cur opinion that the Court should arrive at a definite and final conclusion." In the instant case there is no substantial question of law.

6. That the powers of an appellate Court in dealing with applications for permission to appeal in forma pauperis are circumscribed by the terms of the proviso to R. 1, O. 44, Civil P. C., and the Court cannot look into anything more than the application itself and the judgment and the decree appealed from to see if the decree is contrary to law or is otherwise erroneous or unjust and cannot look into the evidence is the view that has been taken by this Court in several decisions. Reference in this connection may be made to a case reported In re Siddamma, 9 Mys LJ 412 (D) wherein this Court held that the Court is bound to reject an application to appeal in forma pauperis unless upon perusal of the petition filed and of the judgment and decree appealed from it sees reason to think that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust and that a ground that there has been a misappreciation of evidence by the Court below resulting in an erroneous and unjust decision is not one coming within the purview of the proviso to O. 44, R. 1, Civil P. C. In re, Alathur Krishnappa, 11 Mys LJ 273 (E) after reviewing all the decisions of the several other High Courts this Court accepted the dictum laid in the case reported in 9 Mys LJ 412 (D) and quoted the following passage with approval : "We cannot consider such a ground (mere mis-appreciation of evidence) as coming within the purview of the proviso as otherwise in every case where an unsuccessful party files an appeal he can contend that the erroneous decision was reached by a misappreciation of evidence and that this he should be permitted to show by a perusal of the evidence recorded. In that case we would be invited not only to peruse the petitioners application and the grounds of appeal and the judgment and decree of the lower Court which the Code requires us to do but also the evidence which the Code does not require us to do." The Court ultimately rejected the application filed by the petitioner in that case.

7. Again in the case of Ameer Alikhan, 13 Mys LJ 192 (F) after discussing the several decisions of the several Indian High Courts and of this Court, it was held that this Court was entitled to peruse only the application, judgment and decree to ascertain as to whether the decree of the lower Court was either contrary to law or otherwise erroneous or unjust and nothing more. The words of the proviso to O. 44, R. 1, Civil P. C., are such that the Legislature must have intended to put some limit on the Courts to grant permission to litigants to prefer appeals in forma pauperis. Reference in this connection may be made to a decision reported in In re Nanjappa Setty, 15 Mys LJ 90 (G) wherein it is observed as follows : "The Code of Civil Procedure places a person who wishes to prefer an appeal in forma pauperis in an inferior position than an appellant who pays the court-fee. In cases of pauper appeals it may not be easy to compensate the successful party with costs to be paid by the pauper appellant. The proviso to O. 44, R. 1 of the Code is mandatory and unless upon perusal of the application, the judgment and the decree appealed from the Court is satisfied that the decree appealed from is contrary to law or otherwise erroneous or unjust it is bound to dismiss the application." The petitioner in this case has, therefore, no right to ask this Court to go through the evidence adduced by the parties to find out as to whether the conclusions arrived at by the learned District Judge are due to misappreciation of the evidence or not. I have perused the petition, judgment and decree appealed from and I am not satisfied that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust. As rightly observed in 11 Mys LJ 273 (E) no injustice can result by such strict adherence to the terms of the proviso and consequent refusal of leave to appeal in forma pauperis, as it is open to an applicant to pay the court-fee and ask the Court to examine the entire records and to come to a conclusion. The special privileges conferred on a litigant by O. 44, R. 1, Civil P. C., can be availed of by him only subject to the specific conditions imposed in the proviso.

8. In my opinion there are no sufficient grounds to permit the petitioner to file the appeal in forma pauperis. This application is, therefore, dismissed. The petitioner is granted two months time to pay necessary court-fee. No costs. Application dismissed. AIR 1957 MYSORE 12 (V 44 C 9 Feb.) "Abdul Azeez v. The State" MYSORE HIGH COURT Coram : 2 PADMANABHIAH AND SREENIVASA RAU, JJ. ( Division Bench ) B.K. Abdul Azeez, Petitioner v. The State of Mysore and another, Respondents. Writ Petn. No. 75 of 1955, D/- 20 -3 -1956. (A) Constitution of India, Art.226 - WRITS - Procedure of quasi-judicial bodies - Right to personal hearing. In all cases of quasi-judicial tribunals, what is required is that sufficient opportunity should be given to the parties who approach them for relief. Whether a personal hearing should be given or not will depend upon the facts and circumstances of each case. (Para 7) Where petitioners objections as to acquisition proceedings in respect of his lands were considered by the State Government and the order of dismissal of the petitioners application for dropping the land acquisition proceedings was made, the said order cannot be said to be vitiated merely because no oral hearing was given to the petitioners advocate. (Para 7) Anno : AIR Com., Const. of India, Art. 226, N. 182. (B) Land Acquisition Act (1 of 1894), S.4(1), S.6, S.17(4) - ACQUISITION OF LAND - Simultaneous publication of preliminary notice u/S.4(1) and declaration u/S.6 - Effect. No doubt, the declaration under S. 6 of the Act should be published after the notification under S. 4 (1), Land Acquisition Act had been published. But the simultaneous publication does not render the entire proceedings illegal or void. (Para 9) Considering the context in which S. 17 (4) comes in and the wording of that section, the provisions of that section are not mandatory in the sense that a contravention of the same would vitiate the proceedings already taken. At the most, it is an irregularity not affecting the merits of the acquisition inasmuch as it has not prejudiced the petitioner. (Para 10) The provisions contained in S. 17 (4) that the Government may exclude the operation of S. 5-A in particular cases referred to therein is an emergent measure to be resorted to in exceptional cases and such an emergent power should not be converted into a normal measure so as to defeat the very object with which S. 5-A has been enacted. (Para 11) Anno : AIR Man., Land Acquisition Act, S. 4, N. 1; S. 6, N. 3. Cases Referred : Chronological Paras (A) 1956 Pat 437 (AIR V 43) : 34 Pat 429 7 (B) 1951 Mad 276 (AIR V 38) : 1950-2 Mad LJ 399 7 G.S. Ullal, for Petitioner; D.M. Chandrasekhar for the Advocate-General, for Respondent 1; S.K. Venkataranga Iyengar for Respondent 2. Judgement PADMANABHIAH, J. :- This is an application filed by the petitioner tinder Art. 226 of the Constitution of India praying for the issue of an appropriate writ, order or direction for quashing the ex parte order of dismissal passed by respondent 1 Government on the application made by him, and for restoration of the lands bearing S. Nos. 1 and 14 at Gubbi Town, which are ordered to be acquired.

2. The facts that have given rise to this petition are briefly as follows :

3. The petitioner is a resident of Gubbi Town and respondent 1 is the State Government, respondent 2 being the Gubbi Town Municipality. The petitioner is the owner of S. No. 1 having an extent of 15 guntas and S. No. 14 having an extent of 31 guntas. Respondent 1 Government started acquisition proceedings in respect of these lands at the instance of respondent 2 Municipality. At that stage the petitioner, who had been permitted by the Deputy Commissioner to convert S. No. 14 into sites, applied for a stay of the proceedings for acquisition and a stay order was passed. But ultimately respondent 1-Government dismissed the application filed by the petitioner for dropping the acquisition proceedings and ordered the same to proceed. It is this order that is impugned in the present petition.

4. The grievance of the petitioner is two-fold : firstly, that he has not been given a hearing before respondent 1 Government dismissed his application and that the procedure adopted is opposed to principles of natural justice; and secondly, that the provisions of Ss. 4, 5 (A) and 17(4), Land Acquisition Act, have not been complied with and that, therefore, the order in question is invalid.

5. In the counter-affidavit filed by respondent 1 Government, it is alleged that the Deputy Commissioners order was set aside by the higher authorities, that the Government sanctioned acquisition of S. No. 1 on 20-10-1953, that on the application of the petitioner an ad interim stay order was issued staying further proceedings of acquisition, that after consideration of the petitioners representation, they dismissed his application and vacated the stay order on 9-6-1954, that it is not true that the petitioners advocate was promised a full hearing, that there was also no necessity for doing so inasmuch as he was not entitled to it, that the provisions of Land Acquisition Act have not been contravened, that the State Government under S. 17(4), Land Acquisition Act directed that the provisions of S. 5 (A) shall not apply to the acquisition of this land, that therefore there was no need for any enquiry under S. 5 (A), that the acquisition is bona fide and for a public purpose and that the application has to be dismissed.

6. We see no merit in either of the contentions raised by the petitioner. The first ground of attack is that the petitioner was not given an oral hearing before his petition dated 23-11-1953 to the State Government was dismissed. What happened was this : the State Government sanctioned acquisition of petitioners land S. No. 1 on 20-10-53 and on the application filed by the petitioner an ad interim stay order was issued staying further proceedings. After consideration of the petitioners representation the State Government dismissed the application on 9-6-54 and vacated the ad interim stay order. The petitioners contention is that his counsel was promised a hearing before disposing of his application, that no oral hearing was given as promised, that the order of the State Government is opposed to principles of natural justice and that, therefore, it is liable to be declared null and void.

7. It is not correct to say that the petitioners counsel was not given any hearing at all. At the stage of stay of the acquisition proceedings the learned counsel was heard in full and a stay order was passed. The grievance of the petitioner that his counsel was given no oral hearing is without any substance. The contention urged on the side of the respondent-Government is that there was no necessity for any such oral hearing being given. We think that the said contention has to be upheld. In all such cases of quasi-judicial tribunals, what is required is that sufficient opportunity should be given to the parties who approach them for relief. The learned counsel for the petitioner was not able to draw our attention to any provision or case law where it is held that oral hearing must be given in cases of this type. The petitioner had set forth all his grievances in the application filed by him at the time he applied for stay. After considering those representations the State Government passed an order dismissing the same. What is expected of quasi-judicial tribunals in such matters is laid down in the cases in Mahabir Motor Co., Bhagalpur v. State of Bihar, ILR 34 Pat 429 : (AIR 1956 Pat 437) (A) and In re Shanmuga Mudaliar, (1950) 2 Mad LJ 399 : (AIR 1951 Mad 276) (B). In the first case, which was a case under the Motor Vehicles Act, it is held by their Lordships that it is not essential that the State Government should give a personal hearing or a hearing through a lawyer before disposing of an application. In their Lordships opinion, it is sufficient if the party is given an opportunity to put forth his case or to defend himself or to show cause against the proposed order. It is further pointed out in the same case that when once this requirement is fulfilled the principles of natural justice cannot be said to have been violated. Whether a personal hearing should be given or not will depend upon the facts and circumstances of each case. In this case, as already observed, the petitioners objections were considered by the State Government and the order of dismissal was made. The said order cannot be said to be vitiated merely because no oral hearing was given to the petitioners advocate.

8. In the second case, it is pointed out that all that the quasi-judicial tribunals are expected to do is to give a sufficient opportunity to the persons who approach them for relief. In that case also the petitioner has stated all the grounds of objection to the order of the Revenue Divisional Officer in his petition to the Board of Revenue. Neither the petitioner nor his counsel was given a personal hearing and the Board dismissed that application. The contention that the order was invalid because on oral hearing was given and that the principles of natural justice had been violated was negatived in that case. Under these circumstances, we are of opinion that the order of dismissal passed by respondent 1 Government without giving an oral hearing to the petitioners counsel is not vitiated.

9. The next grievance of the petitioner is that the preliminary notice under S. 4(1), Land Acquisition Act and the declaration under s. 6 of the same act have both been published in the same issue of the official gazette dated 3-12-53 and that this is an illegality which vitiates the entire proceedings. We have examined the relevant provisions and we agree with the contention of the learned counsel for the petitioner that the declaration under S. 6 of the Act should have been published after the notification under S. 4 (1), Land Acquisition Act, had been published. But we are not in agreement with the learned counsel for the petitioner that as a result of the simultaneous publication, the order of Government should be held illegal or void.

10. Section 17 (4), Land Acquisition Act, runs thus :- "In the case any land to which in the opinion of the Government, the provisions of sub-s. (1) or sub-s. (2) are applicable, the Government may direct that the provisions of S. 5A shall not apply, and if it does so direct, a declaration may be made under S. 6, in respect of the land at any time after the publication of the notification under S. 4, sub-S. (1)." The wording of the section is quite clear and stress must be laid on the word "after" appearing after the words "at any time" and before the words "publication of the notification", etc., in S. 17 (4) and there can be no doubt that the declaration under S. 6 has to be made after the publication of the notification under S. 4(1). It was further contended by the learned counsel for the petitioner that the Legislature provided for this interval between the publication of the modification under S. 4(1) and the declaration under S. 6 for the benefit of the party so that he might file objections to the acquisition during that interval. It is in this contention that we see no substance. When the Legislature took away the right of the party to file objections under S. 5-A by means of S. 17(4), there is no meaning or substance in saying that the Legislature intended to give an opportunity to the party by providing an interval between the publication of the notice under S. 4 (1) and the declaration under S. 6, Land Acquisition Act. That could not have been the intention of the Legislature. It appears to us that this gap was and is intended for the benefit of the Government. After the notification under S. 4(1) the Legislature must have intended to give some time to the State Government to consider if there existed a public purpose and if the land had really to be acquired. No doubt, the simultaneous publication of the notification under S. 4(1) and the declaration under S. 6 is not in order and the same is open to objection inasmuch as it contravenes the provisions of S. 17(4). But what we have to consider is whether it is an illegality vitiating the entire proceedings or only an irregularity. Considering the context in which S. 17(4) comes in and the wording of that section, we do not agree that the provisions of that section are mandatory in the sense that a contravention of the same would vitiate the proceedings already taken. At the most, it is an irregularity not affecting the merits of the acquisition inasmuch as it has not prejudiced the petitioner.

11. We are told that the provisions of S. 17(4) are made applicable to almost all the acquisition proceedings undertaken by the State Government. We do not know how far this is true. Anyway, it has to be pointed out that the provision contained in S. 17(4) that the Government may exclude the operation of S. 5-A in particular cases referred to therein is an emergent measure to be resorted to in exceptional cases and such an emergent power should not be converted into a normal measure so as to defeat the very object with which S. 5-A has been enacted. We think that the petition has to fail.

12. In the result, this writ petition fails and the same stands dismissed with costs, Advocates fee Rs. 100/-. Petition dismissed. AIR 1957 MYSORE 14 (V 44 C 10 Feb.) "In the matter of, Dy. Commr., Sales Tax" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA, C.J. AND HOMBE GOWDA, J. ( Division Bench ) In the matter of, Deputy Commissioner of Sales Tax, Bangalore. C.P. No. 65 of 1952-53, D/- 31 -8 -1956. Constitution of India, Art.286(1)(a), Expln. and Art.286(2) - SALES TAX - Assessee Manufacturing Company in Mysore - Sale of tobacco goods outside Mysore for consumption - Property in goods to pass to purchaser company as soon as goods were delivered to Railway carrier in Mysore - Whether constitutes actual delivery to purchaser within Mysore State. Ban under Art.286(1)(a) read with explanation if applies. Sales-Tax.Mysore Sales Tax Act (46 of 1948), S.2(1)(a), Expln.2. The assessee company carried on the business of manufacturing cigarettes and other tobacco goods in Bangalore. Part of the goods manufactured was sold and consumed within the State and part was sold, exported and consumed outside the State. According to the agreement between the assessee Company and the Calcutta Company the former was to consign all goods ordered by the latter in accordance with the directions of the Calcutta company and the amount of the invoices was to be given credit to the assessee Company in the books of the Calcutta Company in Calcutta. The property in the goods was to pass to the Calcutta Company as soon as they were delivered to the carrier at the manufacturing companys factory for dispatch. The question was whether assessee Company was liable to pay sales tax on sales outside the State. Held that the expression actual delivery in the explanation to Art. 286 (1) (a) means delivery of the goods to the purchaser or his agent and delivery to the common carrier is not actual delivery. The goods sold by the assessee to persons outside the State could not therefore be considered to have been actually delivered to them within the State of Mysore and were exempt from being taxed. The ban under Art. 286 (1) (a) read with the Explanation applies to the case and so the assessees were not liable to pay sales tax with respect to goods sold and exported outside the State of Mysore and the continuance order of the President under sub-cl. (2) will not lift the ban placed by cl. (1). (S) AIR 1955 SC 661 and (S) AIR 1955 SC 765 discussed and applied. (S) AIR 1955 Mad 502 : dist. (Para 7) Cases Referred : Chronological Paras (A) (S) AIR 1955 SC 661 (V 42) : 1955-2 SCR 603 5, 7 (B) (S) AIR 1955 SC 765 (V 42) : 1955-2 SCR 483 6 (C) (S) AIR 1955 Mad 502 (V 42) : ILR (1956) Mad 299 6 D.M. Chandrasekhar, for Advocate-General, for the State; O.T.G. Nambiar, for Respondent (Assessee). Judgement Under S. 16(1) of the Mysore Sales Tax Act the Deputy Commissioner has referred to this Court at the instance of the assessee the following questions for decision :

1. Whether the sale of the value of Rs. 5,76,70,424-7-5 during the three quarters ending December 50 was not complete as per explanation 2 cl. (I) sub-cl. (a) of S. 2 of the Mysore Sales Tax Act which was in force in 1950-51 and which reads as follows "Notwithstanding anything to the contrary in the Sale of Goods Act 1939 the sale or purchase of any goods shall be deemed for the purpose of this Act, to have taken place in Mysore, wherever the contract of sale might have been made (a) if the goods were actually in Mysore at the time when the contract of sale or purchase in respect thereof was made" and hence whether such sales being complete in Mysore do not attract Mysore Sales Tax.

2. Whether the petitioner is not liable to Sales Tax on the said quantitly of tobacco and cigarettes of the total value of Rs. 5,76,70,424-7-5 which were sold and exported outside the State of Mysore for the purposes of consumption outside the State under cl. (2) of Art. 286 of the Constitution of India under the Sales Tax Continuance Order of the President issued in October, 1950 stating inter alia that the tax on the sale or purchase of goods which was being lawfully levied by the Government of any State immediately before the commencement of the Constitution of India shall until 31-3-51 continue to be levied notwithstanding that the imposition of such tax is contrary to the provisions of cl. (2) of Art. 286 of the Constitution as such sales take place in the course of Inter State trade or commerce as contemplated in cl. (2) of the said article. The assessee is a company having its registered office in the Isle of Man and carrying on business of manufacturing cigarettes and other tobacco goods in Bangalore and other places in India. Fart of the goods manufactured in Bangalore is sold and consumed within this State and part of these is sold and exported and consumed outside the Stale.

2. There is an agreement dated 9-8-1948 regarding goods manufactured for export and for consumption outside the State between the assessee and the Imperial Tobacco Company of India, Ltd., Calcutta. Clause 7 of the agreement states : "The Manufacturing Company shall consign all cigarettes and tobacco manufactured pursuant to orders placed by the Brand-owning Company (that is the Calcutta Company) (packed ready for the trade) in accordance with the directions of the Brand-owning Company. The property in such cigarettes and tobacco shall pass from the Manufacturing Company to the Brand Owning Company when such cigarettes and tobacco are delivered to the carrier at the Manufacturing Companys factory for despatch to the Brand Owing Company or to such other person as the Brand Owning Company may direct, etc. Clause 10 is : The Manufacturing Company shall invoice all goods manufactured for the Brand-owning Company to the Brand Owning Company or as the Brand Owning Company may direct and the amount of each such invoice shall be taken up to the credit of the Manufacturing Company in the books of the Brand Owning Company in Calcutta.

3. Relying on the accounts of the assessee for the transactions during the three quarters ending on 30th of June, of September and of December 1950, tax was levied on the value of goods sold in Mysore as well as of those sold to outsiders. There is dispute only about the liability for payment of the tax with respect to sales outside Mysore. The Taxing Officers have disallowed the claim for exempting this from assessment. In the appellate order the assessment is stated to be in accordance with the instructions of the Secretary, Finance Department, in a letter dated 18-6-1950 which expressed that "The levy of Sales Tax in respect of transactions outside the State but within India may be continued as before."

4. Sri Nambiyar, learned Counsel for the assessee, frankly represented that the decision in the case depends on the interpretation of the provisions of Art. 286 of the Constitution of India and stressed upon the conditions to be satisfied when sales to persons outside the State were involved. Art. 286 states : (1) No law of a State shall impose or authorise the imposition of a tax on the sale or purchase of goods where such sale or purchase takes place - (a) outside the State; or (b) in the course of the import of the goods into, or export of the goods out of, the territory of India. Explanation :- For the purpose of sub-cl. (a), a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State, notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State. (2) Except in so far as Parliament may by law otherwise provide, no law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter-State trade or commerce : Provided that the President may by order direct that any tax on the sale or purchase of goods which was being lawfully levied by the Government of any State immediately before the commencement of this Constitution shall, notwithstanding that the imposition of such tax is contrary to the provisions of this clause, continue to be levied until the thirty-first day of March 1951. (3) No law made by the Legislature of a State imposing, or authorising the imposition of, a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent.

5. It was argued that State Legislation is subjected by the said Article to a threefold restriction and the tax is leviable only if it is not of the kind or category prohibited in any of the sub-articles. The instructions of the Financial Secretary refer only to cl. (b) of sub-art. (1). Particular emphasis was laid on the explanation to sub-art. (1) and the construction of this by the Supreme Court. The nature and extent of what is forbidden under the Article has been a matter of controversy and divergence of opinion in cases before the Supreme Court. There is an elaborate and critical examination of this in Bengal Immunity Co. Ltd. v. State of Bihar, (S) AIR 1955 SC 661 (A) and the decision according to the view of the majority was that "four separate and independent restrictions are placed by Art. 286 on the legislative authority of the State to make a law with respect to matters enumerated in Entry 54 of list II of 7th schedule. These several bans may overlap in some cases but in their respective scope and operation they are separate and independent. They deal with different phases of the sale or purchase but nevertheless they are distinct and one has nothing to do with and is not dependent on the other or others. The States legislative power with respect to a sale or purchase may be hit by one or more of these bans."

6. In Ram Narain Sons Ltd. v. Asst. Commr. of Sales Tax, (s) AIR 1955 SC 765 (B), the same view has been reiterated and it was held that the Presidents order referred to in the proviso to sub-art. 2 had the effect of lifting the ban under that sub-section and not the ban under sub-art. (1)(a) and the explanation thereto. The claim for exempting sales of articles exported for consumption outside the State rests on sub-art. 1 and the explanation. The grounds alleged are that the goods were not actually delivered for the purpose of consumption within Mysore. That consumption of the goods was and was intended to be outside the State is undisputed. As regards delivery being "actual" there is some doubt, since the goods were not taken by any one of Bangalore company and handed over to other outside the State and no one on behalf of the Calcutta company or others outside received or got the goods in Mysore from the assessees. These were put in waggons at Bangalore for being conveyed to outside destinations and Sri D.M. Chandrasekhar on behalf of the learned Advocate-General contended that this is sufficient to constitute actual delivery to the outsider and cited A.M. Mohammed Isok v. State of Madras, (S) AIR 1955 Mad 502 (C) as supporting this. The assessee in that case was a licensed dealer carrying on business in Pollachi. The goods were sent by rail on instructions by the buyers to Ernakulam and were consumed there. The contract between the parties was that the goods had to be delivered at Pollachi station and the buyer was mentioned in the contract as Messrs. Tata Oil Mills, Ltd., Coimbatore. It was held "in these circumstances and on the terms of the contract the delivery of goods at Pollachi station was delivery to the purchaser and if the goods were transported from Pollachi to Ernakulam it was really by or on behalf of a buyer who had taken delivery of the goods that the journey was performed." The explanation to Art. 286(1) was therefore considered not to help the dealer in Pollachi to claim exemption from liability with respect to transactions under which goods were sent to Ernakulam.

7. At page 753 of AIR 1955 SC 661 (A) Venkatarama Iyer, J., observes : "The fact is that while for some purposes delivery to the common carrier is treated as delivery to the purchaser there is delivery in fact and in its popular sense only when the purchaser obtains possession of the goods and it is this that is connoted by the words actual delivery........It must accordingly be held that the expression actual delivery in the explanation to Art. 286(l)(a) means delivery of the goods to the purchaser or his agent and delivery to the common carrier is not actual delivery." The goods sold by the assessee to persons outside the State cannot therefore be considered to have been actually delivered to them within the State of Mysore and are exempt from being taxed.

8. The liability for taxation cannot be decided solely by answering the questions formulated as only the provision of the Sales Tax Act is referred to in one and sub-art. (2) of Art. 286 is referred to in the other. The Supreme Court has laid down that the validity of the imposition depends on its not being hit by any of the four conditions mentioned in Art. 286 and that these are independent of one another. In our opinion the ban under the first clause read with the Explanation applies to the case and so the assessees are not liable to pay sales tax with respect to goods sold and exported outside the State of Mysore and that the continuance order of the President under sub-cl. (2) will not lift the ban placed by Cl. (1). The answers to the questions are therefore in the negative.

9. As the conclusion arrived at is due to the decision of the Supreme Court subsequent to the reference, we direct parties to bear their own costs. Questions answered in the negative. AIR 1957 MYSORE 16 (V 44 C 11 Feb.) "Channamalla v. Returning Office" MYSORE HIGH COURT Coram : 2 PADMANABHIAH AND SREENIVASA RAU, JJ. ( Division Bench ) G.N. Channamalla Setty and others, Petitioners v. Returning Officer and Amildar and others, Respondents. Writ Petn. No. 66 of 1956, D/- 31 -8 -1956. (A) Mysore Town Municipalities Act (22 of 1951), S.11 - MUNICIPALITIES - Municipalities - Formation of divisions - Contiguity of areas not necessary. Contiguity is not necessary for the formation of a Division and each Division may not have common boundaries. Therefore where two units not contiguous to each other and having different boundaries have been formed into one Division, such formation is not contrary to S. 11. (Para 4) (B) Mysore Town Municipalities Act (22 of 1951), S.9 - MUNICIPALITIES - Municipalities - Formation of divisions - No creation of separate electorate. The contention that by bringing two sub-divisions into one, the persons of scheduled castes have been brought together and a separate electorate has been created contrary to the provisions of S. 9 cannot be accepted in absence of an unqualified admission or proof that the two sub-divisions consist only of people of scheduled castes. Even if by accident a division contains only voters of a particular community, it cannot be inferred that it was intended to create a separate electorate. (Para 5) (C) Mysore Town Municipalities Act (22 of 1951), S.11 - MUNICIPALITIES - Municipalities - Scope. There is nothing in S. 11 to indicate that it was the intention of the Legislature to form fresh divisions and fix new boundaries at the time of each election. (Para 6) (D) Constitution of India, Art.226 - WRITS - HIGH COURT - OBJECT OF AN ACT - Power of High Court - Nature and scope. High Court dealing with an application under Art. 226 of the Constitution does not and cannot constitute itself a Court of facts. It is only when facts are either admitted or established to the satisfaction of the Court and when the question to be decided is one of law that a High Court will make up its mind to consider the matter. Disputed questions of fact cannot satisfactorily be decided in a summary proceeding as the one under Art. 226. (Para 9) Anno : AIR Com. Const. of India, Art. 226, N. 7 (c) and (h). (E) Constitution of India, Art.226 - WRITS - Quo Warranto - Who can apply. Any person though not personally interested in the result of elections can apply for a writ of Quo Warranto. (Para 10) Anno : AIR Com., Const. of India, Art. 226, N. 153. S.K. Venkataranga Iyengar, for Petitioners; Advocate-General (for Nos. 1 and 2) and Puttasiddiah, (for Nos. 3, 4, 6 to 14 and 16), for Respondents. Judgement PADMANABHIAH, J. :- This is an application filed by the petitioners under Art. 226 of the Constitution praying for the issue of Writs of Prohibition, Mandamus and Quo Warranto against the respondents in connection with the election held to the Municipal Council at Gubbi on 28-2-1956.

2. The facts that have given rise to this petition are briefly as follows : The petitioners and respondents 3 to 17 are residents of Gubbi Town in Tumkur District. The 1st respondent is the Returning Officer and the Amildar of Gubbi, and the 2nd the Commissioner for Local Self-Government; respondents 3 to 17 have been elected to the Municipal Council at Gubbi in the election held on 28-2-1956. Petitioners are stated to be some of the voters of Gubbi Town. Their contention is that the election is illegal and void on various grounds, that the respondents 3 to 17 have no right to sit as Councillors, that they should be prevented from doing so and that the Writs as prayed for are to be issued against them.

3. The respondents oppose the application. The point that arises for consideration is whether the petitioners are entitled to the relief prayed for in the petition. It appears to us that there are not sufficient grounds to allow the petition. The election is sought to be challenged as invalid and void on the following grounds :

1. that two units or areas 15(a) and 15(b) not contiguous to each other and having different boundaries have been formed into one division as Division No. 15 contrary to the provisions of the Town Municipalities Act;

2. that by allowing the voters of the scheduled castes to exercise their franchise the 15th Division has been formed into a separate electorate and that this contravenes the provisions of S. 9 of the Town Municipalities Act which contemplate only reservation of seats to scheduled castes;

3. that Divisions made and boundaries fixed for the election held on 1951-52 have been adopted for 1956 election and that this is contrary to the provisions of S. 11 of the Town Municipalities Act which contemplate fresh notification and fresh divisions and fixation of fresh boundaries;

4. that the Returning Officer did not stick to the first election calendar issued by him, that fresh election calendars superseding the previous ones have been issued, that the date fixed for publication of copies of notice of candidature has subsequently been postponed or altered, that the Returning Officer had no jurisdiction to issue a fresh election calendar, which power vests only in the Deputy Commissioner; and

5. that the Sheristedar received notices of candidature without authority and that, therefore, the election should be held invalid.

4. On a careful examination of the several contentions raised on the side of the petitioners, we are of opinion that there is no substance in any of these. It is, no doubt, true, and it is also admitted, that two units, 15(a) and 15(b), not contiguous to each other and having different boundaries have been formed into one Division as Division No. 15 but there is no substance in the contention that contiguity is necessary for the formation of a Division and that each Division must have common boundaries and that such formation is contrary to S. 11 of the Town Municipalities Act. Section 11(1) reads thus : "For the purposes of election of councillors to fill the seats referred to in sub-s. (1) of S. 9, the municipality shall be divided into 15 or 20 territorial divisions as the case may be, the boundaries of which shall after consultation with the municipal council, be fixed by the Commissioner by notification in the Mysore Gazette." There is nothing in this section that prohibits formation of divisions consisting of non-contiguous areas. It only provides for the formation of divisions and fixation of boundaries by the Commissioner by notification in the Mysore Gazette after consultation with the Municipal Council concerned. Thus we see no substance in the contention that the provisions of S. 11, Town Municipalities Act have been contravened or in the contention that the electoral roll prepared on the basis of the present divisions is void.

5. Coming to the next point urged by the learned counsel for the petitioner that a separate electorate has been created or formed contrary to the provisions of S. 9, Town Municipalities Act which provides for reservation of seats for scheduled castes. We see no force in this also. No doubt, S. 9 of the Town Municipalities Act provides for reservation of seats for scheduled castes. But it is not correct to say that by forming a division like Division No. 15, a separate electorate has been created. The contention urged by the learned counsel was that the Sub-divisions 15(a) and 15(b) forming Division No. 15 contain only people of scheduled castes. This statement of fact has been disputed by the first respondent, though the third respondent says that it is so. At any rate, it is not established that Sub-divisions 15(a) and 15(b) consist only of people of scheduled castes. In the absence of an unqualified admission or proof, it is not possible to accept the contention that the 15th Division is inhabited only by persons of scheduled castes, particularly in view of the undisputed fact that Divisions Nos. 1, 2 and 3 also contain people of scheduled castes. Even if by accident a division contains only voters of a particular community, it cannot be inferred that it was intended to create a separate electorate. Therefore this contention also should fall to the ground.

6. It is, no doubt, true that the present divisions and boundaries have been formed and fixed in the year 1951, that the same have been adopted for the election held in 1956 and that no fresh divisions were made or new boundaries fixed for the latest election by a fresh notification, but we cannot accept the contention that S. 11 of the Town Municipalities Act contemplates formation of new divisions and fixation of fresh boundaries at the time of each election. There is really nothing in S. 11 to indicate that it was the intention of the Legislature to form fresh divisions and fix new boundaries at the time of each election. When no changes have occurred in between the date when the divisions were formed and boundaries were fixed and the date of the new election which necessitate formation of new divisions and fixation of new boundaries, we do not see why there should be formation of fresh divisions and fixation of new boundaries at the time of each election. It is admitted that the present divisions were formed and the boundaries fixed in the year 1951. For nearly five years, the petitioners kept quiet without objecting to this course even though they had opportunities to do so. There does not also appear to be any truth in the contention that 78 voters who are residents of the new A. K. Colony have been included in the electoral rolls of 1956 or that A. K. Colony is outside the limits of the boundaries fixed for the year 1951. This fact is also disputed by the 1st respondent and further it is not proved to the satisfaction of the Court.

7. The other contention urged on the side of the petitioners was that the calendar of events dated 8-5-1955 first issued by the Returning Officer has not been adhered to, that it has been superseded subsequently by another calendar of events dated 17-12-1955 which in turn has been superseded by a calendar of events dated 10-1-1956. It was also urged that the date 2-2-1956 fixed for presentation of notice of candidature in the calendar of events dated 8-12-1955 has been altered to 4-2-1956 and again altered to 7-2-1956 under the calendar of events dated 10-1-1956. This statement of fact is no doubt admitted in the counter-affidavit filed by the 1st respondent. It must also be conceded that the Returning Officer has no power to issue a new calendar of events or to supersede the one already issued or alter the dates fixed for presentation of notice of candidature inasmuch as this power is vested in the Deputy Commissioner under R. 73 of the Rules framed under the Town Municipalities Act. In this case, the question of change of calendar of events does not at all arise inasmuch as, in our opinion, it is only the notification dated 16-1-1956 that is really the calendar of events. The admission on the part of the 1st respondent that the calendar of events was issued first on 8-12-1955 and that fresh calendars of events were issued superseding the previous ones is due to some bona fide mistake on his part because from a reading of the notifications dated 8-12-1955 and 17-12-1955, it is seen that they are merely provisional calendars of events and not the final ones. Item No. 6 in these two alleged calendars of events is publication of notice of election calendar which publication is contemplated by R. 15. If these were the election calendars, there was no need for this information being furnished in these two notifications. Further the contents of the notifications dated 8-12-1955 and 17-12-1955 do not correspond to the information that a calendar of events is required to contain under R. 15. On the other hand, it is only the calendar of events of date 16-1-1956 that contains all the particulars contemplated under R. 15, and it is according to this that the election is said to have taken place. Therefore we see no substance in this contention also.

8. It is admitted that notice of candidature was received by the Sheristedar as contended on the side of the petitioners. But the counter-affidavit filed by the 1st respondent makes it clear that a notification under R. 17 was issued authorising the Taluk Sheristedar to receive notice of candidature and that the same is said to have been published in the gazette dated 21-1-1956. At any rate, this point was not seriously pressed at the time of arguments.

9. There is another aspect which we cannot fail to take note of. In this case, most of the grounds urged against the validity of election are disputed. A High Court dealing with an application under Art. 226 of the Constitution does not and cannot constitute itself a Court of facts. It is only when facts are either admitted or established to the satisfaction of the Court and when the question to be decided is one of law that a High Court will make up its mind to consider the matter. Disputed questions of fact cannot satisfactorily be decided in a summary proceeding as the one under Art. 226 of the Constitution. We are of opinion that this is not a fit case wherein we can grant any relief to the petitioners under Art. 226 of the Constitution.

10. There is also no substance in the contention raised on the side of the respondents that the petitioners having no personal interest in the result of elections cannot question the election of the respondents and that they cannot file a petition under Art. 226 of the Constitution. Any person though not personally interested can apply for a Writ of Quo Warranto. For these various reasons, we are of opinion that the petition should fail.

11. In the result, the petition fails and the same stands dismissed with two sets of costs, one to respondents 1 and 2 and the other to the rest. Advocates fee Rs. 100/-. Petition dismissed. AIR 1957 MYSORE 18 (V 44 C 12 Feb.) "N.R. Murthy v. P.D. Narayan" MYSORE HIGH COURT Coram : 2 PADMANABHIAH AND SREENIVASA RAU, JJ. ( Division Bench ) N.R. Murthy, Complainant-Appellant v. P.D. Narayan, Accused-Respondent. Criminal Appeal No. 24 of 1956, D/- 2 -8 -1956, against judgment of First Class Magistrate, Civil Station, Bangalore, D/- 12 -12 -1955. (A) Criminal P.C. (5 of 1898), S.256, S.258(1) and S.259 - MAGISTRATE - WARRANT CASE - DISCHARGE - Duty of Magistrate to recall prosecution witnesses for cross-examination - Absence of complainant and his witnesses - Acquittal - Legality. In a warrant case, after a charge is framed, the complainant will be out of the picture and it is the duty of the Court to secure such of the witnesses for the prosecution as are required by the accused for further cross-examination. Under such circumstances, no duty is cast upon the complainant to secure the witnesses for the prosecution unless he had undertaken to produce them. The proper procedure to be adopted by a Magistrate under such circumstances is to make all efforts to secure the attendance of the witnesses, if so required by issue of coercive process. It is illegal to acquit the accused on account of the absence of the complainant as that procedure in such cases is not contemplated under S. 259 of the Criminal Procedure Code, or on account of the absence of the prosecution witnesses without taking adequate steps to secure their attendance. AIR 1918 Nag 76 and AIR 1949 All 428, Rel. on. (Para 6) Anno : AIR Com., Cr. P. C., S. 256, N. 8; S. 258, N. 3, Pt. 2; S. 259, N. 2, 4. (B) Criminal P.C. (5 of 1898), S.423 - APPEAL - Appeal against acquittal - Retrial. Where the accused was illegally acquitted of the charge under S. 323, Penal Code, for default of the complainant and his witness to appear on the date of hearing the High Court refused to interfere by way of ordering a retrial, considering the nature of the alleged offence and the circumstances under which it was said to have been committed and also the time that had elapsed. (Para 7) Anno : AIR Com., Cr. P. C., S. 423, N. 17. Cases Referred : Chronological Paras (A) 1918 Nag 76 (V 5) : 20 Cri LJ 763 6 (B) AIR 1949 All 428 (V 36) : 50 Cri LJ 674 6

V.R. Govindarajulu, for Appellant; F.R. Zavier, for Respondent. Judgement This is an appeal preferred by the appellant-complainant against the order of the learned First Class Magistrate, Civil Station, Bangalore, in C. C. No. 611 of 1955, acquitting the respondent-accused of an offence under S. 323, I. P. C.

2. The facts that have given rise to this appeal are briefly as under :

3. The appellant and respondent were the complainant and accused respectively in C. C. No. 611 of 1955 on the file of the learned First Class Magistrate, Civil Station. The case for the complainant was that he and the accused are two of the Committee Members of the Bangalore Committee of Mysore State Football Association, that a monthly meeting of that Association was held on 4-5-1955 at No. 113, B. Brigade Road, that, when one of the subjects was being discussed, the complainant got up to speak which the accused opposed, that after obtaining the permission of the President the complainant got up to speak, that the accused sprang up and caught hold of the complainants collar and assaulted him which resulted in injury to the complainant and that the accused thereby committed an offence under S. 323, I. P. C.

4. Three P. Ws. were examined including the complainant. A charge under S. 323, I. P. C., was framed against the accused and subsequently the case was posted for further cross-examination of the prosecution witnesses. On 12-12-1955 the complainant and the prosecution witnesses were absent and the learned Magistrate acquitted the accused under S. 258(1) of the Cri. P. C., as the complainant and the witnesses were absent and as they were not available for further cross-examination at the hands of the accused. It is against that order of acquittal that this appeal is preferred.

5. The point that arises for consideration is whether the order of acquittal is proper and whether it has to be upheld. It appears to us that the order cannot legally be sustained. From a perusal of the order-sheet in the case and on the facts admitted before us, it is clear that no attempt was made by the Court to secure the attendance of the prosecution witnesses for subjecting them to further cross-examination at the hands of the accused. The observation of the learned Magistrate in the course of his order that the prosecution witnesses could not be secured in spite of a number of adjournments is not correct. From a perusal of the order of the learned Magistrate, it appears to us that the Magistrate is under an impression that it is the duty of the complainant to secure the witnesses for purposes of further cross-examination and that on default on the part of the complainant in this behalf the accused is entitled to an acquittal. The Magistrate appears to be in error in this view.

6. In a warrant case, after a charge is framed, the complainant will be out of the picture and it is the duty of the Court to secure such of the witnesses for the prosecution as are required by the accused for further cross-examination. This view is supported by the case reported in Raisingh Chamar v. Patia Chamar, 20 Cri LJ 763 : (AIR 1918 Nag 76) (A). Under such circumstances, no duty is cast upon the complainant to secure the witnesses for the prosecution unless he had undertaken to produce them. In this connection, the case reported in Saghir Uddin v. Mt. Munni, 50 Cri LJ 674 : (AIR 1949 All 428) (B) may be perused. The proper procedure to be adopted by a Magistrate under such circumstances is to make all efforts to secure the attendance of the witnesses, if so required by issue of coercive process. It is illegal to acquit the accused on account of the absence of the complainant as that procedure in such cases is not contemplated under S. 259 of the Cri. P. C., or on account of the absence of the prosecution witnesses without taking adequate steps to secure their attendance.

7. The next point that arises for consideration is whether the circumstances in the case are such as to induce us to interfere with an order of acquittal and to order a retrial. If the accused has acted in the way as alleged in the complaint, his conduct is really reprehensible. Both the complainant and the accused are members of an Association which is supposed to consist of men with some decency, culture and education. Such conduct on the part of individual members does not rebound to their credit and will have the effect of undermining the reputation of the Association which it is the duty of every member to safeguard. Considering the nature of the alleged offence and the circumstances under which it is said to have been committed and also the time that has elapsed, we are of opinion that no interference is called for.

8. In the result, this appeal is dismissed. Appeal dismissed. AIR 1957 MYSORE 19 (V 44 C 13 Feb.) "MD. Peer v. Mysore State" MYSORE HIGH COURT Coram : 2 SREENIVASA RAU AND HOMBE GOWDA, JJ. ( Division Bench ) K. Mohamed Peer, Pro., Petitioner v. The State of Mysore and others, Respondents. Writ Petn. No. 20 of 1956, D/- 26 -7 -1956. Motor Vehicles Act (4 of 1939), S.64(1)(f) - MOTOR VEHICLES - APPEAL - Appeal against condition attached to grant of permit - Condition precedent for such appeal. Though appeal under S. 64 (1) (f) may be preferred not only against the grant of a permit but also against any condition attached thereto, it will be of no avail if a person who wishes to prefer an appeal in regard to such condition has not opposed the grant of a permit itself. (Para 2) Anno : AIR Man., Motor Vehicles Act, S. 64, N. 1. S.G.S. Ullal, for Petitioner; D.M. Chandrasekhar, for Advocate-General (for No. 1); E.S. Venkataramiah (for No. 2), for Respondents. Judgement SREENIVASA RAU, J. :- The petitioner is a holder of a permit to ply a State Carriage service between Bangalore and Mandya via Kanakapura. Respondent two holds a permit for running a State Carriage Service between Mandya and Kanakapura. It is stated by the petitioner that the State Transport Authority published a notification in the issue of the Mysore Gazette dated, 5-11-1954, proposing a change of timings in regard to petitioners service and calling for representations or objections. Objections were heard and the State Transport Authority decided that there was no good reasons to revise the timings. Respondent two preferred an appeal to Government (respondent one) against this decision. Respondent one has passed orders altering the timings for running of the petitioners service. As a result of this alteration the petitioners State carriage which was reaching Kankapura at 1-30 p.m. and departing to Mandya at 1-40 p.m. was to leave Kanakapura at 3-15 p.m. which meant a halt at Kanakapura for over an hour and a half. This order of Government is challenged on various grounds. But it appears to us that it is enough to consider only one of the grounds, viz., that Government had no jurisdiction to entertain the appeal.

2. Section 64 of the Motor Vehicles Act provides for appeals. Clause (f) of S. 64(1) which is the only provision that can apply to a case like the one on hand enables a person providing transport facilities who, having opposed the grant of a permit, is aggrieved by the grant thereof or any condition attached thereto, to prefer an appeal against the grant or the attaching of the condition. The petitioners contention is that as respondent two had not opposed the grant of a permit to the petitioner and as such opposition was a condition precedent to the exercise of the right of appeal, no appeal on this matter could be entertained by Government. It will be noticed that though an appeal may be preferred not only against the grant of a permit, the person preferring an appeal should have opposed the grant of the permit itself and it is not enough if his objection related to any condition relating to the permit in question. Even assuming that the timings assigned for running of a State Carriage Service are to be regarded as a condition attached to the permit, it will be of no avail if a person who wishes to prefer an appeal in regard to such condition has not opposed the grant of a permit itself.

3. It is not disputed in this case that respondent two did not oppose the grant of a permit to the petitioner. The right of appeal is a creature of statute and it has to be brought within the clear terms of the provision for appeal. In this case, the only clause which can have any bearing on the matter is clearly inapplicable as the condition precedent did not exist. The order passed by Government in an appeal which it could not entertain must be held to be without jurisdiction.

4. We accordingly quash the order of Government bearing No. T. 7567/R.T. 5-55-284 dated 12-1-1956. The petitioner will get his costs from respondents one and two. (Advocates fee Rs. 100/-). Order quashed. AIR 1957 MYSORE 20 (V 44 C 14 Feb.) "Rajasekhara v. Chairman I. T. Board" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA, C.J. AND PADMANABHIAH, J. ( Division Bench ) Rajasekhara and another, Appellants v. Chairman, City Improvement Trust Board, Mysore City, Respondent. Regular Appeals Nos. 141 and 142 of 1951, D/- 13 -7 -1956, against the awards of Addl. Dist. Judge, Mysore, D/- 3 -11 -1950. Land Acquisition Act (1 of 1894), S.23 - ACQUISITION OF LAND - Buildings - Market value. Section 23 requires that the first thing to be taken into account in determining compensation is the market value of the property at the time of the notification. Market value has to be ascertained by the Court in each case with due regard to the conditions of the time and factors which affect transactions between a willing seller and intending buyer. In any case, the decision at best is to be regarded as approximate and not mathematically accurate estimate. A well recognised basis of valuation of buildings in urban areas is the rent normally realised by these when these are leased to others and the rent expected to be got if these are in occupation of the owners. The valuation of a land with building thereon by valuing the land and the building separately and adding the value of the one to the other does not furnish a reliable estimate of the property. Held that the annual rent of the building will be Rs. 1,980/-. Deducting 25 per cent. for taxes and repairs the balance was Rs. 1,485/-. For 18 years which might be deemed the appropriate period for the purposes of capitalising, the amount will be Rs. 26,730/-. Case law Rel on. (Paras 2, 3, 4) Anno : AIR Man., L. A. Act, S. 23, N. 7, 12. Cases Referred : Chronological Paras (A) AIR 1933 Sind 57 (V 20) : 145 Ind Cas 795 3 (B) (08) 10 Bom LR 907 3 (C) (08) 10 Bom LR 701 3 (D) AIR 1928 Cal 522 (V 15) : ILR 55 Cal 994 3 (E) AIR 1921 All 402 (V 8) : ILR 43 All 652 3 (F) AIR 1915 Mad 356 (2) (V 2) : 25 Ind Cas 393 3 (G) (05) ILR 29 Bom 514 : 7 Bom LR 569 3 K.R. Gopivallabha Iyengar, for Appellants; Addl. Asst. Advocate-General, for Respondent. Judgement VENKATARAMAIYA, C. J. :- Both these appeals under the Land Acquisition Act in which parties are the same may be disposed of by one order. The only point for consideration is the amount payable as compensation. The properties are buildings situated in Mysore near Sayyaji Rao Road at the extremity of Lansdown Buildings. One case relates to those numbered by the Municipality as 77 to 83 and the other to what bore the number 83/1. The claim regarding the latter for increasing the amount paid by the lower Court may be first dealt with. This is said to have been a residential building facing a lane behind a row of shops. The structure was old, its doors and windows were in a decayed condition and at the time of acquisition was not in occupation of any one but used as a godown. The lower court has accepted the value of this at Rs. 925/- but increased the value of the ground from Rs. 2/- to Rs. 10/- per square yard. This appears to be fair and appellants counsel has not pointed out anything to hold it otherwise. R.A. No. 142 of 51-52 is therefore dismissed with costs.

2. The shops bearing Municipal Nos. 77 to 83 stand on a different footing. It is found that Rs. 150/- are realised as rent from the shops and rooms which are let out and for those retained for use of the owners only, Rs. 10/- were fixed as rent though Rs. 20/- were claimed. The learned Judge capitalised the rent by deducting from the annual realisation at this rate a quarter of it as being required for repairs and taxes and multiplying the balance by 18. He also valued the land and the building separately on the basis of estimates of cost by Engineer and struck the average between the total of these and the amount on the basis of rent. Sri Gopivallabha Iyengar on behalf of the court-guardian of the minor claimant contended that this is not a fair or appropriate assessment of the value. Section 23 requires that the first thing to be taken into account in determining compensation is the market value of the property at the time of the notification. The expression "Market value" is not defined in the Act and it has to be ascertained by the Court in each case with due regard to the conditions of the time and factors which affect transactions between a willing seller and intending buyer. In any case, the decision at best is to be regarded as approximate and not a mathematically accurate estimate.

3. A recognised basis of valuation of buildings in urban areas is the rent normally realised by these when these are leased to others and the rent expected to be got if these are in occupation of the owners. As has been said in some cases such as Karachi Municipality v. Naraindas, AIR 1933 Sind 57 (A) and Govt. of Bombay v. Merwanji Muncherji Cama, 10 Bom LR 907 (B) and In re, Dhanjibhoy Bomanji, 10 Bom Lr 701 (C), the valuation of a land with building thereon by valuing the land and the building separately and adding the value of the one to the other does not furnish a reliable estimate of the property. In a growing town where demand for shops or building to carry on business is increasing and there is certainty of income if leased out, the rental value is treated as important and an index to the market value of the property. See Swarnamanjuri Dassi v. Secy. of State, AIR 1928 Cal 522 (D); Lachman Prasad v. Secy. of State, ILR 43 All 652 : (AIR 1921 All 402) (E) Rajammal v. Headquarters Deputy Collector, Vallore, 25 Ind Cas 393 : (AIR 1915 Mad 356 (2) (P); Raghunathdas Gopaldas v. Secy. of State, ILR 29 Bom 514 (G).

4. The lower Court has found alter inspection that the building was strong, in good condition and well kept at the time of inspection. It has also held that the better way of valuing the property in this case is called the "rental method and hot the land and building method adopted by the Land Acquisition Officer". In view of this and the fact that evidence about fair rent is considered to be "very satisfactory" the claimant is entitled to urge that he should not be put to disadvantage by applying other methods of valuation. The rent realised is stated to be Rs. 150/- and the rent which the portion retained by the owner if let out would fetch is in the view of the learned Judge Rs. 10/-. The claimant asserted that Rs. 20/- could be had. We think that the estimate may be raised by Rs. 5/- so that the total rent per month may be taken to be Rs. 165/- The annual rent will be Rs. 1980/-. Deducting 25 per cent for taxes and repairs the balance is Rs. 1485/-. For 18 years which may be deemed the appropriate period for the purposes of capitalising the amount will be Rs. 26,730/-. Appellants claim only 5/6th share in the amount of compensation. So in modification of the order of the lower Court 5/6th of Rs. 26,730/- will be paid as compensation to appellants in R. A. 141/51-52 with statutory allowance of Rs. 15/- per cent and interest at Rs. 6/- per cent per annum from the date the property is taken possession of. In the appeal the parties will bear their own costs.

5. There was no justification for filing the cross-objections in both the appeals. They are therefore dismissed with costs. Time for payment three months. Order accordingly. AIR 1957 MYSORE 21 (V 44 C 15 Feb.) "B.D. Naidu v. Shamsheer Jung" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) B.D. Naidu, Petitioner v. Shamsheer Jung Bahadur Rana, Respondent. Criminal Revn. Petn. No. 33 of 1956, D/- 8 -8 -1956, against order of City Magistrate, Bangalore, D/- 2 -1 -1956. (A) Criminal P.C. (5 of 1898), S.145(5) - LAND DISPUTE - MAGISTRATE - Magistrate acting u/S.145(5) - Jurisdiction to pass order as to possession. Whenever a Magistrate acts under S. 145 (5), he will have jurisdiction to pass orders as to possession provided he has got materials on record to show that the property in question was in possession of a particular party at the time of attachment. It is but right that such an incidental order should be passed in order to restore status quo ante; but if there are no such materials available on record he will have no jurisdiction to pass orders regarding possession of the property nor can he allow parties to adduce evidence as to possession after he comes to the conclusion that there was no dispute which was likely to cause a breach of the peace. Case law referred. (Para 6) Anno : AIR Com., Cr. P. C., S. 145, N. 48. (B) Criminal P.C. (5 of 1898), S.148(3) - COSTS - Order as to costs not based on materials - Validity. The order awarding costs is a judicial order and must be based on proper materials. An order assessing costs payable to a successful party without any evidence to show the costs actually incurred is one without jurisdiction. 4 Mys LJ 184 and AIR 1929 Pat 93, Rel. on. (Para 8) Anno : AIR Com., Cr. P. C., S. 148, N. 7. Cases Referred : Chronological Paras (A) AIR 1948 Oudh 184 (V 35) : 49 Cri LJ 291 5 (B) AIR 1955 All 46 (V 42) : 1955 Cri LJ 102 5, 6 (C) AIR 1951 Nag 201 (V 38) : 52 Cri LJ 1 6 (D) 4 Mys LJ 184 8 (E) AIR 1929 Pat 93 (V 16) : 30 Cri LJ 252 8 K.P. Muddappa, for Petitioner; G.S. Ullal, for Respondent. Judgement This is a revision petition filed by the petitioner against the order of the learned City Magistrate, Bangalore, in Cri. Misc. No. 131 of 1955, holding that the respondent-first party was entitled to remain in possession of the disputed property until evicted therefrom in due course of law.

2. The facts that have given rise to this petition are briefly as follows: Proceedings were started by the police under S. 145 of the Criminal Procedure Code in Cri. Mis. No. 131/55 on the file of the learned City Magistrate, Bangalore, in connection with a dispute between the petitioner-2nd party and the respondent-1st party in relation to a strip of land lying between premises no. 3 belonging to the petitioner and No. 4 belonging to the respondent in Miller Road, Civil Station, Bangalore. The learned Magistrate enquired into the matter and held that there was no dispute with respect to the property in question and that there was no likelihood of any breach of the peace and observed that the proceedings should not have been initiated at all. In view of this conclusion arrived at by him, the attachment was withdrawn and the subsequent proceedings were set aside. In addition to this, he also gave a declaration that the respondent-1st party was entitled to continue in possession of the disputed property until he was evicted therefrom in due course of law. As against that order, this revision petition is preferred.

3. The main contention raised by the learned counsel for the petitioner is that the learned Magistrate had no jurisdiction to pass an order declaring that the respondent was entitled to continue in possession until he was evicted therefrom in due course of law in the light of his own earlier finding that no dispute existed with respect to the property in question and that there was no likelihood of a breach of the peace.

4. The order of the learned Magistrate is conceded to be one passed under S. 145(5) of the Cri. P. C. That sub-section runs thus : "Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-s. (1) shall be final." According to this sub-section, the learned Magistrate should cancel any order passed by himself under S. 145(1), Cri. P. C., and suspend all further proceedings when he comes to the conclusion that no dispute exists or has existed with respect to the property in question and that there was no likelihood of a breach of the peace. Relying on the wording of sub-s. (5), it is contended by the learned counsel for the petitioner that the order passed by the learned Magistrate with respect to the possession of the property is one without jurisdiction.

5. Reliance was placed by the learned counsel for the petitioner on a case reported in Abdul Aziz Khan v. Aisha Bibi, AIR 1948 Oudh 184 (A). In that case, it is laid down that normally criminal Courts cannot deal with cases of possession of immovable property but that S. 145 gives them power to deal even with those classes of cases provided they are satisfied that a dispute exists with respect to any property and that there is a likelihood of a breach of the peace. Another case relied on by the learned counsel for the petitioner is that reported in Ram Lal Singh v. The State, AIR 1955 All 46 (B). Therein it is laid down that when a Magistrate finds that there is no likelihood of a breach of the peace, he has no jurisdiction to decide the further question as to which party is in possession of the disputed property. On the basis of these decisions, the learned counsel argued that when the learned Magistrate found that no dispute existed with respect to the property in question and that there was no likelihood of a breach of the peace and when on that basis he cancelled the order passed under S. 145(1) and stayed the further proceedings, he (Magistrate) ceased to have any jurisdiction to pass any order as to possession.

6. No doubt, these decisions support the contention of the learned counsel to some extent but they do not conclusively establish that under no circumstances a Magistrate is competent to pass orders as to possession when he acts under S. 145(5) of the Cri. P. C. The correct position of law appears to be this. Whenever a Magistrate acts under S. 145(5), he will have jurisdiction to pass orders as to possession provided he has got materials on record to show that the property in question was in possession of a particular party at the time of attachment. It is but right that such an incidental order should be passed in order to restore status quo ante: but if there are no such materials available on record at the time he acts under sub-s. (5) of S. 145, he will have no jurisdiction to pass orders regarding possession of the property nor can he allow parties to adduce evidence as to possession after he comes to the conclusion that there was no dispute which was likely to cause a breach of the peace. This view is supported by the very decision relied on by the learned counsel for the petitioner, reported in AIR 1955 All 46 (B). Therein Asthana, J., of the Allahabad High Court has further observed that if from the materials on record it appears to the Magistrate that the property had been attached by police from the possession of any particular party, he can pass an incidental order that the attached property might be released in his favour in order to restore the status quo ante. Again in the case reported in State v. Sheoratan Singh, AIR 1951 Nag 201 (C), it is held that when a Magistrate acts under S. 145(5) and cancels the previous order passed under sub-s. (1), there would be nothing wrong if he (Magistrate) passes an incidental order cancelling the attachment and directing the party found to be in possession to continue until evicted therefrom in due course of law.

7. In the present case, the police report goes to show that the respondent-1st party was in possession of the property at the time of attachment. The evidence adduced on the respondents side appears to be highly disinterested, and that discloses that the respondent-1st party was and has been in possession of the property in question. When that is so, there is nothing wrong in the Magistrate having declared, relying on the materials available on record, that the first party was entitled to remain in possession until evicted therefrom in due course of law. That portion of the order of the learned Magistrate has to be upheld.

8. The next contention urged on the side of the petitioner is that the order of the learned Magistrate awarding costs of Rs. 200/- to the respondent-1st party is without jurisdiction and irregular. Under S. 148, Cri. P. C., a Magistrate has got jurisdiction to award costs to a successful party. But the contention of the learned counsel for the petitioner is that the award of Rs. 200/- as costs is not based on any materials and that this fixation is quite arbitrary. There appears to be some substance in this contention. The order awarding costs is a judicial order and must be based on proper materials. In the present case, there is no evidence to show costs actually incurred by the respondent-1st party. The Magistrate has not given any valid or convincing reasons for fixing costs at Rs. 200/-. It has been held by this Court in the case reported in 4 Mys LJ 184 (D) that an order assessing costs payable to a successful party without any evidence to show the costs actually incurred is one without jurisdiction. A similar view has been taken by the Patna High Court in the case reported in Manglu Sahu v. Ramdhani Tamboli, AIR 1929 Pat 93 (E). No doubt, it cannot be said that the parties in this case have not incurred any costs, but in the absence of evidence to show the amount of expenses actually incurred, it is not possible to fix any definite sum as costs due to the respondent-1st party. Under these circumstances, the order of the learned Magistrate as to costs has to be set aside.

9. In the result, the order of the lower Court awarding costs to the respondent-1st party is set aside, but, in other respects, this revision petition stands dismissed. Revision partly allowed. AIR 1957 MYSORE 22 (V 44 C 16 Feb.) "B. Abdul Rahman v. Mysore State" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA, C.J. AND HOMBE GOWDA, J. ( Division Bench ) B. Abdul Rahman, Petitioner v. State of Mysore and another, Respondents. Writ Petns. Nos. 83, 86, 90 of 1953; 35, 36, 37, 41, 48 of 1954 and 24 of 1956, D/- 31 -8 -1956. (A) Constitution of India, Art.286(3) - SALES TAX - Mysore Sales Tax Act (46 of 1948) is exempted from requirement of Presidents assent. Sales Tax.Mysore Sales Tax Act (46 of 1948). Clause (3) of Art. 286 does not affect pre-existing laws. The Mysore Sales Tax Act under which the tax is levied on hides and skins came into force in 1948 and not being a post-Constitutional law is exempted from the requirement of the Presidents assent for being effective. (Para 4) Anno : AIR Com. Const. of India, Art. 286, N. 17. (B) Mysore Sales Tax Act (46 of 1948), S.3(4) and Sch.I, R.1(2) (as amended in 1952) - SALES TAX - AMENDMENT - Sales Tax - Amendment of R.1(2) in 1952 cannot be assailed as being due to exercise of power not lawfully vested in Government. Section 3 (4) of the Mysore Sales Tax itself provides for the turnover being determined in accordance with the rules contained in Sch. II to the Act and empowers Government to vary any part of the Schedule after duly notifying the changes in the Official Gazette. The Legislature has conferred the power on the Government and the question whether the buyer or the seller has to bear the burden is a matter of detail in giving effect to the object of the Act without involving delegation of policy which the Legislature has to determine, and the amendment of R. 1 (2) in 1952 cannot be assailed as being due to exercise of power not lawfully vested in Government. (Para 7) (C) Mysore Sales Tax Act (46 of 1948), S.5 and S.7 - SALES TAX - Sales Tax - R.23(5) is not repugnant to S.5. Mysore Sales Tax Rules, R.23(5). The combined effect of Ss. 5 and 7 of Mysore Sales Tax Act and R. 5 is that unlicensed dealers in hides and skins are not entitled to seek restriction of taxation to a single point. Consequently R. 23 (5) of the Rules framed under the Mysore Sales Tax Act which relates to transactions of such persons cannot be held to be repugnant to S. 5 of the Act. For the purpose of assessment a difference is made between licensed and unlicensed dealers under the Act. The differentiation is not unreasonable. (Para 13) Cases Referred : Chronological Paras (A) AIR 1954 SC 311 (V 41) : 1954 SCR 955 4 (B) AIR 1953 Mad 105 (V 40) : 1952-2 Mad LJ 598 : 1953 Cri LJ 277 6, 13 (C) AIR 1954 SC 314 (V 41) : 1954 SCR 1117 9 In all the cases: G.S. Ullal, for Petitioner; Advocate-General, for Respondents. Judgement VENKATARAMAIYA, C. J. :- These petitions filed under Art. 226 of the Constitution of India may be disposed of by a single order as a common question raised is the legality of orders passed regarding the levy of Sales Tax on the purchase turnover of petitioners with respect to transactions in untanned hides and skins. Admittedly none of the petitioners had obtained licenses to carry on the transactions and the orders have been passed after giving petitioners opportunities to make any representations which they chose before the taxing officers.

2. The main grounds on which the orders were attacked by Sri Ullal who appeared for all the petitioners and addressed the same arguments on behalf of all were : (1) The assessments offend the provisions of Art. 286(3) of the Constitution of India. (2) Rules in accordance with which assessments were made are invalid as these were not passed by the legislature. (3) Rule 23(5) which alone can be availed of for the purpose of the levy is declared to be ultra vires by the Supreme Court. Since the liability cannot be imposed on petitioners under any other provisions and the view of the Supreme Court is binding, the petitioners cannot be taxed at all.

3. Article 286(3), contravention of which is alleged, states : "No law made by the Legislature of a State imposing, or authorising the imposition of, a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for consideration of the President and has received his assent."

4. In Act LII of 1952 (Essential Goods (Declaration and Regulation of Tax on Sale or Purchase) Act 1952) passed on 9-8-1952, hides and skins are included in the schedule specifying goods essential for the life of the community. On the basis of these, it was argued that lack of consent of the President is an impediment to the assessment for the period subsequent to August 1952. The argument would have had force if hides and skins had been taxed after the date of the Constitution as it is stated in S. 3 of the Act that any law therefor can be operative only with the approval of the President. Soma Singh v. State of Pepsu, AIR 1954 SC 311 (A) has laid down that Cl. (3) of Art. 286 does not affect preexisting laws. The Mysore Sales Tax Act under which the tax is levied on hides and skins came into force in 1948 and not being a post-Constitutional law is exempted from the requirement of the Presidents assent for being effective.

5. The second objection has reference to the amendment of R.1(2) in Sch. 1 of the Act, As originally framed this rule provided that in the case of untanned hides and skins the gross turnover of a dealer for the purpose of assessment was the amount for which the goods are brought by licensed tanners in Mysore. The word licensed was deleted by a notification in 1952 so that tanners licensed or unlicensed were placed on the same footing as regards liability and the gross turnover in the case of both was the amount for which goods were bought. The petitioners being unlicensed dealers are affected by this and so it is contended on their behalf that the amendment is illegal. Sub-rule (2) provides an exception to the general provision in R. 1(1) that the sales turnover has to be taken into account. The contention is thus against shifting the liability from the seller to the buyer. Whether it is the buyer or seller from whom the tax is collected the burden ultimately is transferred to the consumer. Hugh Dalton in his book on Principles of Public Finance at page 54 has said : "It makes no essential difference whether the tax is legally imposed on buyers or sellers, though this may affect the length of time which will elapse before the process of shifting the direct money burden or part of it, from one side to the other is completed."

6. In Syed Mohamed and Co. v. State of Madras, AIR 1953 Mad 105 (B) it was held that the words "Sales Tax" are generally understood as importing an occasion of sale, that it is immaterial whether it is collected in the first instance from the sellers or the purchasers.

7. Section 3(4) of the Act itself provides for the turnover being determined in accordance with the rules contained in the Schedule to the Act and empowers Government to vary any part of the schedule after duly notifying the changes in the official Gazette. The Legislature has conferred the power on the Government and the question whether the buyer or the seller has to bear the burden is a matter of detail in giving effect to the object of the Act without involving delegation of policy which the Legislature has to determine, and the amendment cannot be assailed as being due to exercise of power not lawfully vested in Government.

8. Rule 23(5) applicable to the assessment in case of petitioners reads as follows : "Sales of hides or skins by dealers other than licensed dealers in hides or skins, shall subject to the provisions of S. 3 be liable to taxation on each occasion of sale." Section 3 states : "(1) Subject to the provisions of this Act (a) every dealer shall pay for each year a tax on his total turnover for such year. * * * *

9. The taxes under sub-ss. (1) and (2) shall be assessed, levied and collected in such manner and in such instalments, if any, as may be prescribed provided that

(i) in respect of the same transaction of sale the buyer or the seller but not both as determined by such rules as may be prescribed shall be taxed;

(ii) where a dealer has been taxed in respect of the purchase of any goods in accordance with the rules referred to in Cl. (i) of this proviso, he shall not be taxed again in respect of any sale of such goods effected by him." The words in R. 23(5), framed under the Act in Mysore are the same as in R. 16(5) under the Madras Sales Tax Act.

9. The decision in Syed Mohammad and Co. v. State of Andhra, AIR 1954 SC 314 (C) was strongly relied upon by Sri Ullal as being conclusive about R. 16(5) being ultra vires and he argued that R. 23(5) corresponding to it has to be treated likewise with the result there is no rule which can be resorted to for taxing the petitioners. That was a case in which the Act and the Rules were impugned by licensed tanners who were prosecuted for non-payment of the taxes. While considering these as a whole the High Court of Madras expressed that all the rules except R. 16(5) were valid. What was said about this rule was "Now the contention of the petitioners is that where there are sales by unlicensed dealers to unlicensed tanners or unlicensed dealers there is the possibility of multiple taxation and that would be in violation of S. 5 (vi). It is not disputed on behalf of the Government that R. 16(5) is repugnant to S. 5(vi). It must therefore be held to be ultra vires. But this can bring no relief to the petitioners as they are all licensed tanners and are in no manner hurt by the operation of R. 16(5)." While dismissing the appeal preferred against the order of the High Court, the Supreme Court observed : "Lastly the learned advocate urges that R. 16(5) clearly contravenes the provisions of S. 5(vi) of the Act. This sub-rule has been held to be ultra vires by the High Court and indeed the learned Advocate-General of Madras did not in the High Court as before us dispute that R. 16(5) was repugnant to S. 5(vi). That sub-rule however affects only unlicensed dealers and the appellants who are admittedly licensed dealers are not affected by that sub-rule." Since the existence of distinction between licensed and unlicensed dealers in regard to assessment is noticed in the question and it was conceded that the sub-rule was ultra vires, the validity or otherwise of the provision so far as unlicensed dealers are concerned cannot be regarded as having been settled.

10. The objection to the sub-rule is that by allowing taxation on each occasion of sale the limitation placed in S. 5 of the Act to a single point is negatived and that a rule formulated by Government cannot override a condition enjoined by the Legislature. Section 5 controls the operation of the charging S. 3 which is in general terms by stating in sub-s. (vi) "that the sale of hides and skins whether tanned or untanned......shall be liable to tax under S. 3(1) only at such single point in the series of sales by successive dealers as may be prescribed." Although as a matter of fact in all these cases the tax appears to have been levied only once and not on transactions prior to those of petitioners, it is said that the omission to fix the "single point" vitiates the assessment. The learned Advocate-General referred to the opening words of the section "subject to such restrictions and conditions as may be prescribed, including conditions as to licenses and license fees" as qualifying sub-s. (5) and argued that the benefit of this can be claimed only by license holders and not others as is evidenced from S. 7 of the Act and the Rules.

11. Section 7 reads thus : "If any restrictions or conditions prescribed under S. 5 or notified under S. 6 are contravened or are not observed by a dealer or in case the condition so prescribed or notified requires that a license shall be taken out or renewed, if a license is not taken out or renewed by the dealer or if any of the conditions of a license taken out or renewed by him are contravened or are not observed, the sales of the dealer, with effect from the commencement of the year in which such contravention or non-observance took place, may be assessed to tax or taxes under S. 3, as if the provisions of S. 6 or the notification under S. 6, as the case may be, did not apply to such sales and notwithstanding that a license, if any, taken out or renewed by the dealer continues to be in force during the year."

12. Under the heading "Licenses" in Part II, R. 5(1) states : "Every person who...... (e) deals in hides and/or skins whether as a tanner or otherwise......shall if he desires to avail himself of the exemption provided in Ss. 5 and 9 of the concession of taxation only at a single point or of taxation at the rate specified in S. 5, submit an application in Form I for a license etc."

13. Section 5 cannot therefore be regarded as being complete by itself, independent of other provisions and applicable to all dealers in hides and skins. The operation of S. 3 is modified by S. 5 and this is not absolute for application uniformly on all dealers in the goods mentioned therein but has to be read along with S. 7 and the rules. The sub-section (vi) of S. 5 makes an exception to the scheme ordinarily adopted and affords relaxation in the range of taxation by confining it to a single occasion. The rule leaves no room for doubt that the concession may be availed of only by license-holders and this is consistent with what is stated in S. 7. The combined effect of Ss. 5 and 7 and R. 5 is that unlicensed dealers in hides and skins are not entitled to seek restriction of taxation to a single point. Consequently R. 23(5) which relates to transactions of such persons cannot be held to be repugnant to S. 5 of the Act. For the purpose of assessment a difference is made between licensed and unlicensed dealers under the Act. The differentiation is not shown to be unreasonable and not held to be so in (1952) 2 MLJ 598 : (AIR 1953 Mad 105) (B). The petitioners cannot therefore complain that the rules affecting them are invalid because these are not as favourable to them as to licensed dealer.

14. The petitions are dismissed but without costs. Petitions dismissed. AIR 1957 MYSORE 24 (V 44 C 17 Feb.) "Nava v. Mysore State" MYSORE HIGH COURT Coram : 1 VENKATARAMAIYA, C.J. ( Single Bench ) Nava, Accused-Petitioner v. State of Mysore, Complainant-Respondent. Criminal Revn. Petn. No. 12 of 1956, D/- 16 -7 -1956, against decision of S.J., Bangalore, in Criminal Appeal No. 160 of 1955. (A) Penal Code (45 of 1860), S.231 - COUNTER-FEIT - Counterfeit coins - Proof. One need not be an expert to find out a bad coin and experience shows that many have the knack and capacity to mark it out readily even though the same is mixed up with good ones. (Para 1) Anno : AIR Man., Penal Code, S. 231, N. 1. (B) Criminal P.C. (5 of 1898), S.165 - OBJECT OF AN ACT - INVESTIGATION - Object of - Failure to record reasons - Effect. Section 165 does of course cast an obligation on the police officer to express in writing as to what led him to make the search without a warrant and this is to some extent a safeguard against the possibility of wanton annoyance and needless harassment caused by a search. The requirement cannot be dispensed with or explained away on assumptions of necessity or the existence of proper grounds for the act. Disregard of the provision amounts to a default in doing what is enjoined by law, which should not be countenanced or encouraged by those who exercise control and authority over the work of the police officer concerned. (Para 2) But the direction contained in the section cannot be treated as imperative and independent of the circumstances of the case. Much depends on these and on the inference which may be reasonably drawn from the course and manner of the investigation. When the authority for the search does not appear to be made use of as a cover for harassment and malicious interference with peace and privacy a person is accustomed to, in his residence and the materials gathered are incriminating, want of conformity to the section is to be regarded as unessential flaw. AIR 1924 All 214 (2) and AIR 1933 Oudh 305 and AIR 1935 Oudh 270 and (S) AIR 1955 Cal 129, Ref. (Para 4) Anno : AIR Com., Cr. P. C., S. 165, N. 8. Cases Referred : Chronological Paras (A) AIR 1924 All 214 (2) (V 11) : 25 Cri LJ 967 3 (B) AIR 1933 Oudh 305 (V 20) : 34 Cri LJ 568 3 (C) AIR 1935 Oudh 270 (V 22) : 11 Oudh WN 485 3 (D) (S) AIR 1955 Cal 129 (V 42) : 1955 Cri LJ 433 3 S.A. Peeran, for Petitioner; Advocate-General, for Respondent. Judgement The petitioner has been found guilty of being in possession of counterfeit coins knowing these to be false and sentenced to undergo rigorous imprisonment for one year. The evidence relating to the coins being found with him has been believed by two Courts and there is no good reason to treat it either as insufficient or unreliable. Nevertheless the conviction is attacked on the ground that the coins are not proved to be counterfeit and that the search conducted by the police to secure these is illegal. The coins were sent to the Mint Master for examination and he communicated the opinion that these were not genuine. This is not sufficient by itself, as contended for the petitioner, in the absence of evidence by the expert before Court to conclude that the coins are false. There is however the testimony of Police Officers and the finding of the Court as also the opinion of assessors to the effect that these were faked ones. The petitioner when his attention was drawn to the evidence and asked to offer explanation, if any, to what was alleged against him, did not deny that these were such and even in the appeal before the Sessions Court, he is said to have not disputed it. One need not be an expert to find out a bad coin and experience shows that many have the knack and capacity to mark it out readily even though the same is mixed up with good ones. At the time the police officers entered the accuseds house, these are said to have been lying before him tied up in a piece of cloth and he is alleged to have thrown away some into a basket. Some instruments or materials with which the process of imitation may be carried on were also kept by the side of petitioner. The objection to the conviction on the score of inadequacy of proof about the coins not being genuine is untenable.

2. The search as a result of which the coins were seized was commented upon as high handed and unwarranted. Section 165 of the Code of Criminal Procedure relied upon for this states : "(1) Whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made for such thing in any place within the limits of such station." Admittedly there is no record of the reasons and the omission according to petitioners counsel is a vital defect which renders the evidence about petitioner having been in possession of the coins unacceptable. The section does of course cast an obligation on the police officer to express in writing as to what led him to make the search without a warrant and this is to some extent a safeguard against the possibility of wanton annoyance and needless harassment caused by a search. The requirement cannot be dispensed with or explained away on assumptions of necessity or the existence of proper grounds for the act. Disregard of the provision amounts to a default in doing what is enjoined by law, which should not be countenanced or encouraged by those who exercise control and authority over the work of the police officer concerned.

3. The question whether the provision is mandatory or directory-what is the effect of the non-observance of the condition on the decision-has been considered in some cases. In Ali Ahmad Khan v. King Emperor, AIR 1924 All 214 (2) (A) Suleman, J., held that the failure to record reasons is not a material error so as to vitiate the conviction if the circumstances point to the guilt. Sohan Lal v. Emperor, AIR 1933 Oudh 305 (B) supports the contention that non-compliance with the section is highly irregular. But there is a later case of the same Court Nangu Bhagat v. Emperor, AIR 1935 Oudh 270 (C) in which the omission is considered not to be a serious defect if the police officers have acted bona fide. The Calcutta High Court has held in Indu Bhusan Chatterjee v. State, 1955 Cri LJ 433 : (S) AIR 1955 Cal 129 (D), that failure to record reasons is not an illegality which can be urged as a ground for acquittal.

4. The direction contained in the section cannot be treated as imperative and independent of the circumstances of the case. Much depends on these and on the inference which may be reasonably drawn from the course and manner of the investigation. When the authority for the search does not appear to be made use of as a cover for harassment and malicious interference with peace and privacy a person is accustomed to in his residence and the materials gathered are incriminating, want of conformity to the section is to be regarded as unessential flaw.

5. In the present case, I think that the failure to record reasons is nothing more than a bona fide unintentional omission of a formality and that it does not affect the legality of the conviction.

6. The petition is dismissed. Petition dismissed. AIR 1957 MYSORE 25 (V 44 C 18 March) "B. Nagendrappa v. S. Ramakrishnappa" MYSORE HIGH COURT Coram : 1 NITTOOR SREENIVASA RAU, J. ( Single Bench ) B. Nagendrappa alias Nagaraj, Plaintiff-Petitioner v. Sakhre Ramakrishnappa and others, Defendants-Respondents. Civil Petition No. 108 of 1956, D/- 11 -7 -1956. (A) Limitation Act (9 of 1908), S.5 and Art.170 - LIMITATION - APPLICABILITY OF AN ACT - FORMA PAUPERISM - APPEAL - Applicability - Application for leave to appeal in forma pauperis. Civil P.C. (5 of 1908), O.44, R.1. Section 5, Limitation Act is applicable to an application under Order 44, Civil P. C. ILR 15 Luck 390, Considered. AIR 1928 All 499 and AIR 1942 Oudh 240 and AIR 1951 Sau. 12, Referred. (Para 5) Anno : AIR Com., C. P. C., O. 44, R. 1, N. 13; AIR Com., Lim. Act, S. 5, N. 3, 29; Art. 170, N. 4. (B) Limitation Act (9 of 1908), S.5 - LIMITATION - OBJECT OF AN ACT - Scope - Legislative changes. Section 5 as it originally stood was not applicable to applications for leave and it was only by the amendment act 10 of 1922 that such applications were included within the purview of the earlier part of the section. (Para 5) Anno : AIR Com., Lim. Act, S. 5, N. 1, 2. (C) WORDS AND PHRASES - Words and Phrases - Words Permission and leave. There is no difference in meaning between the words permissions and leave. (Para 5) (D) Limitation Act (9 of 1908), S.5 - LIMITATION - Sufficient cause. Plaintiff ordered to pay deficient court-fee - Plaintiff filing application for permission to continue suit in forma pauperis - Arguments on application heard and case posted for orders on application - Court however passing order not only rejecting application but also dismissing suit itself - Revision against rejection of application - Pauper appeal against dismissal of suit filed beyond limitation - Contention that plaintiff did not become aware of dismissal of suit till he got copy of order rejecting his application and was asked to obtain copy of decree. Held that the subsequent period taken by plaintiff in preferring application for pauper appeal under Order 44, C. P. C., was satisfactorily explained. (Paras 6, 7) Anno : AIR Com., Lim. Act, S. 5, N. 6. Cases Referred : Chronological Paras (A) (40) ILR 15 Luck 390 5 (B) AIR 1928 All 499 (V 15) : 111 Ind Cas 655 5 (C) AIR 1942 Oudh 240 (V 29) : ILR 17 Luck 628 5 (D) AIR 1951 Sau 12 (V 38) : 3 Sau LR 220 5 G. Chennappa, for Petitioner; S.K. Venkataranga Iyengar (for Nos. 1 to 3, 5, 7, 8 to 11, 13, 15 to 17, 18, 21 and 22) and D.H. Chandrasekhariah (for No. 14), for Respondents. Judgement

I.A.I. is an application under s. 5 of the lim. act for condonation of the delay in presenting an application to be allowed to appeal as a pauper. It has been filed in the following circumstances :- The Petitioner filed an application in the District Court, Shimoga, for permission to sue as a pauper against the Respondents. That application being rejected he paid Court-fee on the basis of the valuation given in the plaint which was thereupon registered as O. S. 20/50-51. The defendants challenged the value placed by the plaintiff on the suit and the adequacy of court-fee paid. A Commissioner was appointed to value the items of property which were the subject matter of the suit. He submitted his report. This appears to have been lost sight of until after both parties adduced evidence in the suit and the case had been posted for final arguments on 20th August 1954. On that day, the Counsel for some of the defendants drew the courts attention to the fact that the plaintiff had not paid the requisite court-fee in conformity with the Commissioners report. The Court thereupon posted the case to the next day to enable the plaintiff to file his objection to the Commissioners report and for arguments on the question of valuation. Arguments were heard on 29-6-1954 and on 30-6-1954 orders were pronounced directing the plaintiff to pay deficient court-fee on a sum of Rs. 55,000/- by 30-7-1954. Against this order, the Petitioner filed C. R. P. 449/54 on 17-8-1954. On 30th July 1954 the Court extended time for payment of deficient Court-fee till 10-8-1954. On that day the plaintiff filed an application praying for permission to continue the suit in forma pauperis, i.e., without payment of the deficient court-fee. This application was numbered I.A. XVII and was posted to the next day for the filing of objections and for arguments. Arguments were heard on 11-8-1954 and the case was posted for the pronouncement of orders on I.A. XVII to 12-8-1954. It is found from the order sheet in the suit that on 12-8-1954 not only were orders pronounced rejecting I.A. XVII but the suit itself was dismissed.

2. Against this order dismissing I. A. XVII, the plaintiff preferred C. R. P. 541/54 on 13-10-1954. In regard to the dismissal of the suit itself the plaintiff preferred an application in this Court for permission to appeal as a pauper on 3-11-1954. As the period prescribed for preferring such an application is 30 days from the date of the decision and as it was filed 37 days beyond that period, the Petitioner filed I. A. I. i e., the application for the condonation of the delay under s. 5 of the lim. act. It is this application that is the subject matter for consideration now.

3. In support of the application, the Petitioner (Plaintiff) has filed an affidavit in which he seeks to explain the delay by stating that as soon as he became aware of the order on I.A. XVII, he applied for a copy of the order to prefer a revision petition to the High Court, that when, after obtaining the copy, he went to Bangalore to arrange for filing the Revision Petition he was told that it was also necessary to file an appeal as the learned District Judge had also dismissed the suit while dismissing I.A. XVII, that he was asked to obtain a copy of the decree along with another copy of the order on I.A. XVII, that he applied for the copies immediately and took steps to file the application for permission to appeal as a pauper as soon as practicable after he obtained the copies. The respondents have opposed the application for condonation of the delay stating that it is incumbent upon the Petitioner to explain every days delay after the prescribed period, that the Petitioner must have become aware of the order of dismissal on the date of the order itself, that the first copy of the order obtained was received by the Petitioner on 21-9-1954 and even assuming that the petitioner and his Counsel were not aware that the suit had been dismissed on 12-8-1954 they should have become aware of the dismissal of the suit at least on 24-9-1954, that there is nothing to explain the inaction of the Petitioner between that day and 10-10-1954 when the Petitioner is stated to have gone to Bangalore to file a revision petition against the order on I.A. XVII and that at the best it is a case of gross negligence and that the delay cannot be condoned in these circumstances.

4. A legal point is also raised that S. 5 of the Limitation Act is not applicable to an application under O. 44 of the Code of Civil Procedure. This last point may be disposed of first. It will be seen from the wording of S. 5 of the Act that it covers appeals, applications for a review of judgment and applications for leave to appeal while in regard to other applications the Section has to be made applicable by or under any enactment for the time being in force.

5. It is contended for the Respondent that an application for permission to appeal as a pauper is not an application for leave to appeal. Reliance is placed upon the decision reported in Ram Pheron v. Sri Ram, ILR 15 Luck 390 (A). It is true that the said decision supports this view, but it has to be noticed that there is no discussion of the point and it appears to be taken for granted that the application is not one for leave to appeal but belongs to the category to which s. 5 of the lim. act has to be made applicable by or under an enactment if that section is to be availed of. On the other hand, there are other decisions, e.g., Ramcharan v. Bansidhar, AIR 1928 All 499 (B), Ram Dulari v. Alian Bibi, AIR 1942 Oudh 240 (C) and Ahmed Arabi v. Osman Isa, AIR 1951 Sau 12 (D) which take the view that s. 5 of the lim. act is applicable to an application under O. 44 of the Code of Civil Procedure. I am inclined to accept the latter view. It is true that O. 44 of the Civil Procedure Code does employ the phrase Leave to appeal. But art. 170 of the lim. act which applies to such an application terms it as one for leave to appeal as a pauper. Sections 109 and 110 of the Code of Civil Procedure and O. 45, C. P. C. do not employ the term leave to appeal in the context where prior permission is to be sought. It is only in Art. 132(2) and Art. 136 of the Constitution the term special leave is used with reference to the power exercised by the Supreme Court. Nevertheless, art. 179 of the lim. act refers to an application of any of the categories as an application for leave to appeal. It may also be mentioned that s. 5 of the lim. act as it originally stood was not applicable to applications for leave and it was only by the amendment act 10 of 1922 that such applications were included within the purview of the earlier part of the section. Under O. 44, R. 1, Civil P. C., it is provided that a person entitled to prefer an appeal may be allowed to appeal as a pauper subject in all matters to the provisions relating to suits by paupers in so far as those provisions arc applicable and subject to an additional condition, i.e., that the decree sought to be appealed against is contrary to law or some usage having the force of law or being otherwise erroneous or unjust. Order 33, R. 2 of the Code of Civil Procedure refers to an application for permission to sue as a pauper. There is no difference in meaning between the words permission and leave, for, wherever an appeal cannot be preferred as a matter of right, but has to be preceded by a preliminary scrutiny to ascertain if such conditions as are imposed are satisfied, it can quite properly be said that leave has to be obtained, whatever the language employed to describe the process, as, for example, permission in O. 33 of the Code of Civil Procedure, certificate in Ss. 109 and 110 and O. 45 of the Code of Civil Procedure or leave, certifies and certificate in Arts. 132, 133, 134 and 136 or the Constitution. It is clearly for this reason that Arts. 170 and 179 of the Limitation Act employ the phraseology for leave to appeal, and it seems to me that the amendment effected to S. 5 of the Limitation Act by the inclusion of the words or for leave to appeal was intended to cover an application like the one in question also. I therefore hold that I.A.I. is maintainable.

6. The next question for consideration is whether the petitioner had sufficient cause for not preferring the application within the prescribed period. Though the affidavit in support of I.A.I. is not quite explicit on the point, the learned Advocate for the Petitioner states that the Petitioner took it for granted that on 12-8-1954 orders had been passed only on I.A.XVII and that he did not become aware that the suit itself had been dismissed as he had no reason to expect that the suit itself would be disposed of on that day. There is some basis for this contention for, it is seen from the order sheet of the suit that after arguments on 11-8-1954 the case was posted for orders (on I.A.XVII) to the next day. The entry dated 12-8-1954 reads: "Order pronounced rejecting I.A.XVII and in consequence dismissing the suit directing the party to bear his own costs." It is difficult to understand how the suit itself could be disposed of on 12-8-1954 when it had been posted to that day only for pronouncement of orders on I.A.XVII. Even if a dismissal of the suit followed in the learned Judges view as a consequence of the rejection of I.A.XVII, this matter should have been put to the parties before the suit itself was disposed of. This does not appear to have been done. I may add that a situation like this would not arise if the Court takes care to pronounce orders in open Court and parties or their Counsel take care to be present when orders are pronounced. It is difficult in this case to say what actually happened on that day; but taking into consideration the loose practice that has unfortunately been prevailing, I am inclined to think that the Petitioners Counsel did not become aware of the order of dismissal of the suit following the order of dismissal of I. A. XVII on 12-8-1954. This is fortified by the fact that on 27-8-1954 an application for a copy of the order on I.A.XVII alone is filed. It is difficult to believe that a copy of the decree also would not have been applied for on that day if the Petitioners pleader had become aware of the dismissal of the suit by that time. It is seen however that the copy of the order was received by the Petitioner on 24-9-1954 and in view of this fact it is contended by the Respondent that the Petitioner or his Counsel would not have failed to come to know at least on that day that the suit itself had been dismissed since the order on I.A.XVII itself incorporates the dismissal of the suit also. Here again, it is urged for the Petitioner, though it is not to be found explicitly stated in the Petitioners affidavit, that the Petitioners Counsel had arranged for obtaining a copy of the order and placing it in the hands of the Petitioner to enable him to file a revision petition and that the learned Counsel had obviously not looked into the copy of the order as he took it for granted that it pertained only to I.A.XVII and the next step had to be taken at Bangalore. I am inclined to think that this is what must have happened though it represents some degree of carelessness on the part of the Petitioners Counsel. There is no reason why if the learned Counsel had looked into the copy of the order and found that the suit itself had been dismissed he would have failed to advice the party to prefer an appeal, nor indeed why the party, if he had become aware of the dismissal of the suit, would have failed to prefer an appeal. There is no doubt some degree of lack of care but it is not, in my view, of such a degree as to deprive the Petitioner of his remedy.

7. It has to be noticed that when the Petitioner came to Bangalore to file a revision petition he was well within time for preferring it, and the revision petition was actually filed on 13-10-1954 when the High Court reopened after the Dasara holidays. The subsequent period taken by the Petitioner in preferring the application under Order 44, C. P. C., is satisfactorily explained by the time taken in his obtaining another copy of the order on I.A.XVII and a copy of the decree. It is stated in the Petitioners affidavit that the decree copy was not ready when he filed the second copy application. Anyway, it is seen from the certified copy which has accompanied the application under Order 44, R. 1, Civil Procedure Code, that it was applied for 13-10-1954 and received on 30-10-1954. It is to be noted with regret that the decree in the original records does not indicate the date on which it was signed by the learned Judge, nor does the note in the order sheet to the effect that the decree was signed bear any date.

8. In the light of what is stated above, I allow I.A.I. The Civil Petition is also admitted and will be posted for hearing. Petition allowed. AIR 1957 MYSORE 28 (V 44 C 19 March) "Mysore State v. K.C. Bandi Gowda" MYSORE HIGH COURT Coram : 3 HOMBE GOWDA, J. On difference of opinion between VENKATARAMAIYA, C.J. AND PADMANABHIAH, J. ( Full Bench ) The State of Mysore, Petitioner v. K.C. Bandi Gowda and another, Respondents. Criminal Petn. No. 82 of 1955, D/- 28 -5 -1956, in Criminal Petn. No. 67 of 1955, in Criminal Petns. Nos. 80 and 103 of 1954. (A) Mysore High Court Act (1 of 1884), S.16B, S.19 - Mysore High Court Rules, R.31 - Criminal P.C. (5 of 1898), S.561A - HIGH COURT - INHERENT POWERS - EXPUNCTION OF REMARKS - Objectionable remarks by one of Judges composing Division Bench in dismissing Criminal Revision - Petition u/S.561A to expunge remarks heard by Judge concerned sitting singly - Order is not without jurisdiction and hence not void ab initio. One of the Judges of the High Court composing a Division Bench made certain objectionable remarks in his separate judgment while dismissing a revision petition. A subsequent petition under S. 561-A to expunge those remarks was heard by the Judge concerned sitting singly and also dismissed. An objection as to his jurisdiction to deal with the matter sitting singly was raised but was overruled by him. Held (by H. Hombe Gowda, J., on difference of opinion between Venkataramaiya, C.J. and Padmanabhiah, J.) that the order passed by the single Judge in petition under S. 561-A was not without jurisdiction and hence not void ab initio. The High Court has no jurisdiction to rehear the petition. (Para 42) It cannot be disputed that the powers of a single Judge of the High Court in a matter he has jurisdiction to dispose of are the powers of the High Court and cannot in any way be controlled by a Division Bench or even a Full Bench of the High Court. The contention that a Judge of the High Court sitting singly loses his inherent power to review his own order and that power is impliedly taken away by the omission of applications filed under S. 561-A of the Code of Criminal Procedure in the Notification issued on the authority of the rules framed under the Mysore High Court Act is untenable. The inherent powers of a Judge of the High Court, which have been statutorily recognized by S. 561-A of the Code of Criminal Procedure, have general application and cannot be taken away by the Mysore High Court Act or the rules framed thereunder. Omission to include applications filed under S. 561-A of the Code of Criminal Procedure in the Notification or in the rules framed under the Mysore High Court Act does not mean that there is no such power and the Court has a right to act on the principle that every procedure is understood as permissible till it is prohibited by law. Case law Ref. (Para 37) Per Venkataramaiyya, C.J. :- The reasonableness or propriety of making comments on the acts and conduct of any one in the course of the order is essentially discretionary. When the case is heard by more than one Judge the order may be written by one Judge, the others merely signing it to signify their concurrence in it or they may give reasons of their own for the concurrence. Concurrence in the decision does not necessarily imply agreement in the reasoning or with the reflections, imputations indulged in by one of the Judges. The conclusion to be arrived at and the reasons therefor are of course matters for discussion and consultation between the members of the Bench by which the case is to be disposed of but the manner of expressing these and the impression about the person concerned in the proceedings is personal. The relevancy of remarks against any one and the appropriateness of the language in which these are couched are left to the individual Judge. If what is written by one is not agreeable to others of the Bench they can and will only express themselves separately. (Para 9) Anno : AIR Com., Cr. P. C., S. 561-A, N. 7. (B) Criminal P.C. (5 of 1898), S.429, S.561A - INHERENT POWERS - APPEAL - PRACTICE AND PROCEDURE - - Difference of opinion in Division Bench hearing application u/S.561-A - Procedure. Per Venkataramaiyya, C.J. :- Where a difference of opinion arises in the Division Bench of the Mysore High Court hearing an application under S. 561-A for expunging an objectionable matter from the judgment, in view of the absence of statutory provision particularly applicable to such a case, the same procedure as is prescribed for disposal of an appeal or revision petition when there is dis-agreement in a Division Bench may be followed. The existing conditions in the Court justify this as there is only one Judge available apart from the members of the Division Bench who can deal with the case and his view will be the deciding factor. (Para 34) Anno : AIR Com., Cri. P. C., S. 429, N. 1; S. 561-A, N. 5. Cases Referred : Chronological Paras (A) 46 Mys HCR 157 3, 22, 38 (B) 53 Mys HCR 365 3, 22, 38 (C) (28) 7 Mys LJ 342 4 (D) (29) 8 Mys LJ 495 4 (E) (82) ILR 8 Cal 63 5, 39 (F) AIR 1924 Mad 640 (V 11) : ILR 47 Mad 428 : 26 Cri LJ 370 5, 26, 39 (G) 35 Mys CCR 401 22, 38 (H) 35 Mys CCR 434 22, 38

(I) (35) 14 Mys LJ 419 22, 38 (J) AIR 1923 Cal 619 (V 10) : 77 Ind Cas 253 25 (K) AIR 1931 All 212 (V 18) : ILR 53 All 422 26

(L) AIR 1954 Mad 894 (V 41) : ILR (1954) Mad 1116 27 (M) AIR 1923 Pat 242 (2) (V 10) : ILR 2 Pat 335 27 (N) AIR 1928 Lah 462 (V 15) : 29 Cri LJ 669 29 (O) AIR 1915 Cal 49 (V 2) : 19 Cal WN 84 30 (P) AIR 1940 Nag 390 (V 27) : 42 Cri LJ 208 37 (Q) AIR 1933 Cal 870 (V 20) : 38 Cal WN 25 : 34 Cri LJ 1100 39 (R) AIR 1927 Cal 702 (V 14) : ILR 55 Cal 417 : 28 Cri LJ 831 39 (S) (09) 9 Cri LJ 306 : 1 Pun Re 1909 Cr 40 (T) AIR 1939 Lah 244 (V 26) : 40 Cri LJ 763 40 Advocate-General, for Petitioner; C.B. Motaiya, for Respondents.(The Criminal Petition No. 82/55, coming on for hearing before a Bench consisting of Venkataramaiya, C.J. and Padmanabhiah, J., the Chief Justice passed the following order on 24-11-1955 :) Judgement VENKATARAMAIYA, C. J. :- In this application filed under S. 561-A of the Code of Criminal Procedure, legality of the disposal of a petition previously filed under the same section by my learned predecessor is challenged on the ground that he had no jurisdiction to deal with it sitting alone. The point raised is novel, even as the circumstances relating to it are unusual. The order is attacked by the learned Advocate-General as being one passed in exercise of power not vested by law in a Judge acting singly.

2. The genesis of the case is that on a charge sheet presented by the Police certain persons were prosecuted for alleged commission of offences in Mysore. Some of the Accused invoked the interference of this Court by means of petitions filed under Ss. 439 and 561 of the Code of Criminal Procedure to quash the proceedings instituted against them before the Magistrate. The petitions were registered as Criminal Revision Petitions Nos. 80 and 103 of 1954 and dealt with for some time only by the learned Chief Justice and finally after the learned Advocate-General pressed for the case being placed before a Division Bench, heard and dismissed by a Bench composed of the learned Chief Justice and my learned brother Padmanabhiah, J., by orders separately written. In the order of the learned Chief Justice certain observations and remarks of uncomplimentary nature were made against a Minister and certain police Officers. For deletion of these as being premature and unwarranted an application under S. 561-A of the Code of Criminal Procedure was filed and this was heard and dismissed by the learned Chief Justice overruling the objection taken to his dealing with the petition alone. It is alleged that there has been an erroneous assumption of jurisdiction which renders the order null and void.

3. Neither S. 561-A nor the Code prescribes the class of cases, kind of applications which a Judge of the High Court is competent to dispose of by himself. Provision is made in the High Court Act under S. 16-B for petitions for revision in civil or criminal cases to be decided by a single Judge or to be referred to a Division Bench if he thinks fit, and under S. 15 for criminal appeals to be heard by a Bench of two Judges. The argument of the learned Advocate-General is not that there has been violation of these but that R. 31 framed under S. 19 of the Act and which has the force of law has been contravened. Reliance is placed on a notification dated 28th July 1942 specifying matters over which power is given to a Judge to make orders and the omission of applications filed under S. 561-A of the Code amongst these is pointed out as implying lack of authority to deal with these. The question whether a single Judge is competent to deal with a matter not enumerated in the list was raised before two Division Benches in 46 Mys HCR 157 (A) and 53 Mys HCR 365 (B) and the view in both prima facie supports the contention of the learned Advocate-General. In the first case the validity of a reference to a Division Bench by a single Judge in a proceeding under S. 339 of the Code of Criminal Procedure, not covered by the list, was doubted. In the other case it was observed that a single Judge cannot deal with an application under S. 491 of the Code of Criminal Procedure as R. 31 does not provide for it.

4. No case on all fours with the present one was brought to my notice. There are however instances of applications under S. 561-A of the Code of Criminal Procedure being dealt with by a single Judge and his jurisdiction to do so not being questioned; see 7 Mys LJ 342 (C) and 8 Mys LJ 495 (D). The section was invoked in these for the purpose of getting remarks made by lower Courts and not by any Judge of this Court expunged. Neither of these cases was noticed or referred to in the cases before the Division Bench.

5. The learned Advocate-General cited In the matter of Abdool Sobhan, ILR 8 Cal 63 (E) and In re, Somu Naidu, AIR 1924 Mad 640 (F), to show that there are instances of Orders of Judges of High Court being declared invalid by other Judges of the same Court and desired that the dismissal of the petition may be declared to be of no effect, that the same petition may be restored and reposted for disposal afresh by a Division Bench. The dismissal of the criminal revision petition about which there was concurrence of opinion is not required to be interfered with but statements made by one learned member of the Bench should according to the learned Advocate-General be considered by a Division Bench and the application for expunging these disposed of by it. No. 15 of the R. 31 enables a single Judge to deal with applications of an interlocutory nature the disposal of which does not affect the disposal of any appeal whether the former petition cannot be deemed to be one of this kind is not free from doubt.

6. Since the question whether a single Judge has or has not the jurisdiction to dispose of an application filed under S. 561-A, Cr. P. C. depends on the construction of rules framed in exercise of powers conferred by a section in the Mysore High Court Act and not of statutes having general application, the decisions of other Courts are not of much help to the petitioner. There is no doubt that an order passed without conforming to prescribed procedure is liable to be assailed and no special immunity from criticism is allowed to acts of Judges.

7. As has been expressed in several cases S. 561-A, Cr. P. C. does not confer any new powers on this Court or add to the jurisdiction already possessed by it. Section 16-B of the Act states that orders made by a single Judge on an application for revision are final and there is no provision under which the correctness of an order of a single Judge in any particular case can be subject to examination by the other Judges of this Court, singly, jointly or collectively, and the decision altered. The only remedy now available by virtue of the Constitution of India to the party aggrieved is to apply to the Supreme Court.

8. This is not a case of the application under S. 561-A having been disposed of by a single Judge through oversight of the rule. The objection raised to its being dealt with has been adverted to in the order and rejected. The present petition is virtually an appeal against this as what is sought for is a determination of the correctness of the decision of a single Judge that he had jurisdiction to dispose of the application. If it is permissible for a Division Bench in the absence of statutory authority to determine whether the view expressed is correct or not, the party may as well claim to obtain the opinion of a Full Bench that the order of a Division Bench is void. That will lead to circumventing the operation of S. 16-B of the Act and taking away the finality of the order of the single Judge passed in revision as regards questions of jurisdiction in a particular case.

9. The reasonableness or propriety of making comments on the acts and conduct of any one in the course of the order is essentially discretionary. When the case is heard by more than one Judge the order may be written by one Judge, the others merely signing it to signify their concurrence in it or they may give reasons of their own for the concurrence. Concurrence in the decision does not necessarily imply agreement in the reasoning or with the reflections, imputations indulged in by one of the Judges. The conclusion to be arrived at and the reasons therefor are of course matters for discussion and consultation between the members of the Bench by which the case is to be disposed of but the manner of expressing these and the impression about the person concerned in the proceedings is personal. The relevancy of remarks against any one and the appropriateness of the language in which these are couched are left to the individual Judge. If what is written by one is not agreeable to others of the Bench they can and will only express themselves separately. That is what was done in the case with which this application is concerned.

10. In view of this the Judge to be addressed for the purpose of expunging any observation found in his order is only that Judge, as otherwise his colleagues will have to be constituted as Judges of his acts. This is certainly not warranted by law and not countenanced in practice.

11. If the argument of the learned Advocate-General that all applications filed under S. 561-A of the Code of Criminal Procedure should be heard by a Bench of two or more Judges is correct, a single Judge is competent to dispose of a revision petition but not competent to decide by himself whether an observation or remark made by him in the course of his own order is to be retained or removed. If that is to be decided by him along with another or others and he is prepared to delete the remarks but others are not, what should be the result? Applying the test to cases disposed of by a Full Bench, the members of which, by separate orders, concur as regards the result, and the remarks of one of these are sought to be expunged, it will be strange if the Judge who made the remarks or the Full Bench cannot but a Division Bench has to deal with the application.

12. Rule 31 on which stress is laid cannot be said to be exhaustive of all matters which a single Judge is competent to deal with. Application for amendment of judgment or decree is not an item stated in the rule and if it is decisive about power of a single Judge, such an application cannot be dealt with by the Judge who passed it as he can in second appeals, but before a Division Bench consisting of a Judge who did not hear (he appeal or write the judgment. The power to rectify errors for which provision is made in S. 369 of the Code is not included in the list and on that account to say that the Judge who has committed the error cannot set it right is anomalous. It seems to me that the power invoked under S. 561-A to expunge remarks made by a Judge is analogous to this and that the proper and only authority to dispose of the application is the Judge whose remarks are complained of. Apart from this, the question of jurisdiction has been determined in the order on the former application. This Bench cannot be called upon to hold that it is null and void. The application is dismissed.

13. PADMANABHIAH, J. :- This is an application filed by the State Government under S. 561-A of the Criminal Procedure Code praying that the order of dismissal passed in Criminal Petition No. 67/55 on the file of this Court may be set aside and that the said petition may be restored, heard and disposed of according to law.

14. The facts that have given rise to this petition are briefly as under :

15. Two Criminal Revision Petitions Nos. 80 and 103 of 1954 on the file of this Court were disposed of on 22-3-1955 by a Bench of this Court consisting of the then Honble Chief Justice and myself. Both the petitions were covered by a single order and were dismissed though each wrote a separate order. On the alleged ground that the order of the learned Chief Justice contained certain objectional statements, the Petitioner (State Government) filed Criminal Petition 67/55 under S. 561-A praying that the statements objected to may be deleted from the order of the learned Chief Justice passed in Criminal Revision Petitions 80 and 103/54 for the reason that the statements were premature and unwarranted. The Honble Chief Justice sitting alone dismissed that petition (Cr. P. 67 of 1954) on 9-4-1955 holding that the remarks objected to were justified. As against that order, this petition is filed.

16. The respondents oppose the application. The only point that arises for consideration is whether the Petitioner State Government can be granted the relief prayed for in their application. At the outset, it may be stated that we are not at present concerned with the merits or otherwise of the allegations made in Cr. P. 67 of 1955. The point that has now to be decided is whether this Court is competent to re-open the matter and consider that application on merits again in spite of the order of dismissal passed by the learned Chief Justice on 9-4-1955.

17. Two grounds are urged in support of the present application; firstly, that the then learned Chief Justice sitting as a single Judge had no jurisdiction to dispose of an application under S. 561-A of the Criminal Procedure Code and that, therefore, the order is a nullity; and secondly, that the subject-matter of Cr. P. 67 of 1955 arose out of an order of a Division Bench and that, therefore, it could not be disposed of by a single Judge of that Bench. The point for determination will be how far these contentions can be sustained.

18. I am of opinion that there is considerable force in both the contentions raised by the learned Advocate-General. It is common ground that the order now impugned is one passed under S. 561-A, Cr. P. C. That section runs as follows : "Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice". The contention urged on the side of the respondents is that the expression "High Court" appearing in the above section means a single Judge also and that an application under that section might be disposed of by a single Judge. I am not prepared to accept this contention. As the order now impugned is one passed under S. 561-A of the Criminal Procedure Code, the definition of the term "High Court" as given in the Criminal Procedure Code must govern the case.

19. Section 4 (1) of the Criminal Procedure Code defines the term "High Court" thus : ""High Court" in relation to the Andaman and Nicobar Islands, means the High Court in Calcutta, and, in relation to any other local area, means the highest Court of criminal appeal for that area (other than the Supreme Court) or, where no such Court is established under any law for the time being in force, such officer as the State Government may appoint in this behalf." It appears to me that the term "High Court" in the above section is not used specifically either as meaning a single Judge or a Bench of Judges. It only gives the definition of "High Court" in general as the highest Court regarding criminal matters in a given area. That term "High Court" must be deemed to have been used in the same sense under S. 561-A also.

20. Neither S. 4(j) nor S. 561-A specifically defines what the powers that can be exercised by a single Judge are or the powers by more than one Judge. They do not contemplate the distribution of work among the various Judges constituting the High Court. To determine this, it will be permissible to have recourse to other Acts not inconsistent with the provisions of the Criminal Procedure Code. We have got the Mysore High Court Act and the Rules framed thereunder. They specify the powers that are to be exercised by a single Judge and those to be exercised by a Bench.

21. Section 15(1) of the Mysore High Court Act deals with cases which can be dealt with by a Bench and S. 16-B with the powers of a single Judge. But neither of these sections deals with the powers of a single Judge or a Bench of Judges that can be exercised under S. 561-A. But R. 31 framed under S. 19 of the Mysore High Court Act enumerates the powers that can be exercised by a single Judge. These rules have been framed by the High Court and have the sanction of Government and have also been published in the official Gazette. Under S. 21 of the Mysore High Court Act these rules have the force of law. The powers that can be exercised by a single Judge are enumerated under R. 31 and that list does not contain S. 561-A of the Criminal Procedure Code. By necessary implication it follows that a single Judge cannot exercise the powers under that section. It was contended by the learned Counsel for the respondents that the list is not exhaustive or conclusive and that the exercise of a power not mentioned in that list by a single Judge will not be illegal. I see no force in this contention. No doubt, it is true that it is open to the High Court to include in the list of powers exercisable by a single Judge any other power or to take away any power already included. In the list prepared originally there are only 11 items in respect of which a single Judge could exercise his jurisdiction. Subsequently the list is amended in 1942 wherein we find 17 items which could be dealt with by a single Judge. Therefore the list must be deemed to be exhaustive or conclusive until such time as the same is amended according to law. Therefore I see no substance in the contention that the list is not exhaustive or conclusive. To accept the contention urged by the learned counsel for the respondents would necessarily lead to the inference that even the powers not included in the list could be dealt with by a single Judge.

22. Reliance was placed on three cases of this Court where a single Judge has disposed of an application under S. 561-A: they are reported in 35 Mys CCR 401 (G); 35 Mys CCR 434 (H) and 14 Mys LJ 419 (I). It is, no doubt, true that a single Judge has exercised in the above three cases power under S. 561-A of the Criminal Procedure Code. It appears to me that the said cases cannot be of much help to the respondents. There is nothing in these decisions to show that the question of jurisdiction was raised or decided. Perhaps the learned Judges in those cases proceeded on the assumption that they had jurisdiction to deal with the matter. As against these decisions, we have got two subsequent Bench decisions of our own High Court which take a contrary view and which may be taken as an authority on the point. They are reported in 46 Mys HCR 157 (A) and 53 Mys HCR 365 (B).

23. In the first case, an application under S. 339 (3) of the Criminal Procedure Code was considered and a Bench of this Court has held that a single Judge could not dispose of the said petition inasmuch as it was not covered either under S. 16-B of the High Court Act or under R. 31 framed under S. 19 of the Act. In the second case, a petition under S. 491, Cr. P. C. was for consideration. Their Lordships have held that because S. 491 of the Cr. P. C. was not one of those sections that are referred to in R. 31 framed under S. 19 of the Mysore High Court Act, a single Judge could not hear that petition and that it should be heard by a Bench. The attention of the Honble Chief Justice does not seem to have been drawn to these two cases when he disposed of Cr. P. 67/55. From these decisions it follows that it is only cases provided by S. 16-B and the classes of cases enumerated in R. 31 that can be heard and disposed of by a single Judge : any other matters not covered under those provisions, a single Judge will have no jurisdiction to deal with. As the rule now stands, a single Judge cannot exercise the Courts inherent power under S. 561-A even in respect of his own orders which have become final. Anyway, R. 31 as now framed may require further examination to find out if there are any legal difficulties in including S. 561-A in it and enable a single Judge to exercise the inherent powers under that section in matters arising out of the final decision of a single Judge.

24. Jurisdiction means authority of the Court to hear and determine a cause. In the list of the discussion made above, it is clear that the then learned Chief Justice had no authority to hear or decide the application in Cr. P. 67/55. If it is held that he had no jurisdiction to deal with that matter, then what we have to consider is as to what follows by virtue of that finding. When a Judge having no authority to hear or decide, hears a cause and decides it, the order or decision made by him must be regarded as one made without jurisdiction. When an order is made without jurisdiction, it must be deemed to be a nullity and void ab initio. There are numerous decisions that enunciate this proposition.

25. The first decision to which I would like to refer is the one reported in Kunja Mohan Chakravarty v. Manindra Chandra, AIR 1923 Cal 619 (J). I can do nothing better than reproduce some of the observations of their Lordships in that case : "It is an elementary principle of law that if a Court has no jurisdiction over the subject-matter, its judgment and orders are mere nullities and must not only be set aside at any time by the Court in which they are rendered but be declared void by every Court in which they are presented. If a Court has no jurisdiction, its judgment is not merely voidable but void and it is wholly unimportant how precisely certain and technically correct its proceedings and decisions may have been. If it has no power to hear and determine the cause, its authority is wholly usurped and its judgment and orders are the exercise of arbitrary power under the forms but without the sanction of law." Thus it is seen that their Lordships have held in the above case that the judgment and orders made by a Court without jurisdiction are mere nullities and void ab initio.

26. The other case to which a reference may be made in this connection is the one reported in AIR 1924 Mad 640 (F). Their Lordships have in that case held that any judgment or order made by a Judge without jurisdiction is void ab initio. In the case reported in Estate of Indrani, In the matter of, AIR 1931 All 212 (K), it has been held that it is the duty of a Judge to undo any order that has been passed without jurisdiction either by himself or by his predecessor.

27. In Mohammad Maraicair v. Veyanna Meeru Thevar, AIR 1954 Mad 894 (L), the same view is taken i.e. that an order made by a Judge without jurisdiction is not of any legal force and that the same may be ignored. The trend of the decisions as can be gathered from the cases cited above that an order made by a Judge without jurisdiction is null and void that the same may be ignored and that the matter may be re-heard and disposed of. A Distinction must be made between a voidable judgment and a void judgment. A voidable judgment is one regularly made but contrary to law and facts and therefore liable to be set aside in appeal. A void judgment is one which is passed without jurisdiction. It is void ab initio and a nullity, and as pointed out in the case reported in Satdeo Narain v. Ramayan Tewari, AIR 1923 Pat 242 (2) (M), it need not be set aside.

28. In this case, the question of setting aside the order made by the then learned Chief Justice does not at all arise : the question is not whether we can revise the order in Cr. P. 67 of 1955. But what we have to consider is whether we can or cannot deal with the merits of the petition. As pointed out in the various decisions referred to already, I am of opinion that the order of dismissal passed in Cr. P. 67 of 1955 should be ignored and the petition re-heard.

29. It was pointed out that S. 369, Cr. P. C. is a bar to deal with the order made by the previous Chief Justice. Section 369, Cr. P. C. runs as follows : "Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court by the Letters Patent or other instrument constituting such High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error." That deals with judgments validly made. A judgment made without jurisdiction is no judgment and it cannot come under S. 369, Cr. P. C. The order made offends the provisions of the Mysore High Court Act and R. 31 framed thereunder, which has got the force of law. In cases where a judgment or an order offends any provision of law and if it is necessary to interfere for securing the ends of justice, S. 369 cannot be a bar to the exercise of that power. In the case reported in Raju v. Emperor, AIR 1928 Lah 462 (N), it is held that there is no conflict between Ss. 369 and 561-A, Cr. P. C. and that a Court has power under S. 561-A to alter or review its own judgment in cases of default and want of jurisdiction. Therefore S. 369 cannot be a bar for our reconsidering the application in Cr. P. 67 of 1955.

30. Another contention urged by the learned counsel for the respondents was that the question of jurisdiction has been considered by the learned Chief Justice in Cr. P. 67/55, that he has given a finding that he had jurisdiction to deal with the matter and that therefore that order cannot be questioned by the Court. The fact that the learned Judge has held that he had jurisdiction to deal with the matter does not seem to be of much consequence. No doubt, a Court has power to determine whether it has got jurisdiction to deal with or investigate a matter or not. Even if it should hold that it has got jurisdiction and if it is ultimately found that it has really no jurisdiction, the Court is competent to recall its original order. This is the view taken in the case reported in Rahmoni Dasi v. Ganada Sundari Dasi, 19 Cal WN 84 : (AIR 1915 Cal 49) (O).

31. The second ground urged on the side of the petitioner as stated already is that the subject-matter of Cr. P. 67/55 arose out of a Bench decision and that a single Judge has no power to deal with it. As against this argument, it was contended by the learned counsel for the respondents that the remarks sought to be expunged in the two criminal revision petitions are made only in the judgment of the learned Chief Justice, that the other Judge has nothing to do with those remarks and that, therefore, the learned Chief Justice could himself dispose it of. I do not think the matter is so easy as contended by the learned counsel. It is conceded that the judgment in Cr. R. Ps. 80 and 103 of 1954 is a Bench decision. The question is not whether the remarks sought to be expunged have appeared in the judgment of one or the other. A high principle is involved in considering this matter. To accept the contention of the learned counsel would be tantamount to laying down a principle that a single Judge can deal with a matter arising out of a Bench decision which contention appears to be contrary to all accepted and well-recognised principles of law and convention.

32. Even the contention that the other Judge constituting the Bench had nothing to do with the remarks made by his colleague in his judgment and that his not sitting with the other Judge for reconsidering the objectionable matter is of no consequence, cannot be accepted. The possibility of the other Judge having influenced or persuaded his colleague to his own view cannot be excluded. We may not be wanting in instances where such a thing has happened. By the disposal of Cr .P. 67/55 by a single Judge, the petitioner-State Government have been deprived of an important advantage which otherwise may have accrued to them.

33. Under the above circumstances, I am of opinion that the order of dismissal made by the learned Chief Justice since retired should be ignored and Criminal Petition 67 of 1955 - reheard and disposed of. (The petition (Cr. P. 82/55) coming on for orders in view of the difference of opinion expressed above, the Chief Justice made the following :)

34. This case is of an exceptional type which requires determination of the course to be adopted for its disposal in view of the difference of opinion in the Division Bench which heard it about the result. Reference to a third Judge is provided for under Ss. 429 and 439, Cr. P. C. when such contingencies arise in an appeal or revision petition. This is not registered as either, and learned Counsel have not found any precedent for dealing with a situation such as the present one. In view of this and the absence of statutory provision particularly applicable to this, the same procedure as is I prescribed for disposal of an appeal or revision petition when there is disagreement in a Division Bench may be followed. The existing conditions in the Court justify this as there is only one Judge available apart from the members of the Division Bench who can deal with the case and his view will be the deciding factor. A Full Bench cannot be constituted without including therein both of us who have already expressed our individual opinion. As in any case the view of the third Judge has to prevail, the case is referred under S. 561-A of the Code for disposal by a third Judge in the manner provided under S. 429, Cr. P. C. (The petition (Cr. P. 82/55) coming on for final hearing on 28-6-1956, Hombe Gowda, J., made the following :) 35.. The facts of the case have been set out in sufficient detail in the two orders pronounced by my learned brothers and it is unnecessary to re-state them. It is in view of the difference of opinion in the Division Bench about the result of the case that the matter has been referred to me for disposal. My duty at the moment is to consider the question whether this Court can review the order passed by the then Chief Justice in Criminal Petition No. 67 of 1955 and hold that it was passed by him without jurisdiction and therefore is a nullity.

36. At the outset Sri Motaiya, the learned Counsel for the respondent took a preliminary objection regarding my jurisdiction to decide the matter sitting singly. He contended that since the Judges that constituted the Division Bench were divided in their opinion on the legal point, the matter cannot be dealt with or decided by a single Judge but should be referred to and decided only by a Full Bench. The circumstances that led to a reference being made to a single Judge for disposal have been fully set out in the order of reference. As observed in that order this extraordinary case has had an unusual career and for the reasons set out it became inevitable for the learned Judges to refer the matter to a single Judge for disposal. The order referring the matter to me for decision was passed after hearing the counsel for the parties. Hence I am of the opinion that there is no substance in the preliminary objection raised by the learned counsel for the respondent and therefore it is rejected.

37. The sole question for decision as it turns out is whether this Court can declare that the order of the then Chief Justice in Criminal Petition No. 67 of 1955 is void ab initio having been passed without jurisdiction. It is urged by the learned Advocate-General that a Judge of this Court sitting singly has no right to deal with an application filed, under S. 561-A of the Code of Criminal Procedure. Reliance is placed on the provisions of the Mysore High Court Act and Rule 31 and on a Notification dated 28th July 1952 specifying matters over which power is given to a Judge to make orders and the omission of applications filed under S. 561-A of the Code of Criminal Procedure in the same. The learned Advocate-General contends that the omission to include applications filed under S. 561-A of the Code of Criminal Procedure in the list clearly indicates that there is lack of authority for a single Judge to deal with such applications and that it was only a Division Bench that is competent to deal with or decide such applications. He, therefore, contends that the order passed by the then Honble Chief Justice in Criminal Petition No. 67 of 1955 is a nullity having been passed without jurisdiction and should therefore be ignored. Sri Motaiya, the learned Counsel for the respondent, argues (and the matter was strenuously argued) that this Court cannot sit in judgment over the decision of the Chief Justice in Criminal Petition No. 67 of 1955 and should refuse to re-consider or review the matter. It is no doubt true that though the Criminal Revision Petitions in which the remarks which were sought to be expunged in Criminal Petition No. 67 of 1955 are passed, were dealt with and decided by a Division Bench, the then Chief Justice proceeded to hear the application filed under S. 561-A of the Code of Criminal Procedure for expunging the remarks sitting singly. An objection as to the jurisdiction of the learned Chief Justice to deal with the matter sitting singly was raised by the then Advocate-General and it was overruled by him. Section 561-A of the Code of Criminal Procedure does not confer on the High Court any new powers and it only provides that the powers that the Court had inherently possessed shall be preserved. The inherent powers of this Court are not the gift of the Statute. There is provision in the Mysore High Court Act under S. 16-B for petitions for revision in civil or criminal cases to be decided by a single Judge or to be referred to a Division Bench if he thinks fit under Rule 31 framed under S. 19 of the Mysore High Court Act. Certain matters can be dealt with and decided by a Judge of the High Court sitting singly. If the contention of the learned Advocate-General that a Judge, sitting singly can decide and dispose of cases relating to matters enumerated in the list in the Notification but he cannot review his own order or consider an application filed by a party under S. 561-A of the Code of Criminal Procedure for expunging the remarks passed by him is accepted it would lead to an undesirable absurdity. A Judge of this Court, who decides a revision petition sitting singly will become incompetent to decide a petition filed for the review of his judgment or order or an application for expunging of the remarks passed by him in the course of the order and is bound to refer the petition for disposal to a Division Bench. It is not and cannot be disputed that the powers of a single Judge of the High Court in a matter he has jurisdiction to dispose of are the powers of the High Court and cannot in any way be controlled by a Division Bench or even a Full Bench of the High Court. In my opinion the contention of the learned Advocate-General that a Judge of the High Court sitting singly loses his inherent power to review his own order and that power is impliedly taken away by the omission of applications filed under S. 561-A of the Code of Criminal Procedure in the Notification issued on the authority of the rules framed under the Mysore High Court Act is untenable. The inherent powers of a Judge of the High Court, which have been statutorily recognised by S. 561-A of the Code of Criminal Procedure, have general application and cannot be taken away by the Mysore High Court Act or the rules framed thereunder. Omission to include applications filed under S. 561-A of the Code of Criminal Procedure in the Notification or in the rules framed under the Mysore High Court Act, does not mean that there is no such power and the Court has a right to act on the principle that every procedure is understood as permissible till it is prohibited by law (Vide Hansraj Harjiwan v. Emperor, AIR 1940 Nag 390) (P). In my view it is on account of the fact that the inherent powers are part and parcel of the Court and that S. 561-A of the Code of Criminal Procedure does not confer on the High Court any new power it is omitted in the list. It is therefore idle to contend that the omission has any special significance. The inherent powers of the High Court - whether of a Division Bench or of a single Judge - cannot be restricted or controlled much less taken away by any rule framed under the Mysore High Court Act.

38. The practice of this Court in respect of the disposal of petitions filed under S. 561-A of the Code of Criminal Procedure does not appear to be uniform and therefore does not afford any guidance to us. There are instances of applications filed under S. 561-A of the Code of Criminal Procedure having been dealt with by a single Judge of this High Court. (Vide 35 Mys CCR 401 (G); 35 Mys CCR 454 (H) and 14 Mys LJ 419) (I). There are also instances of such applications having been dealt with by a Division Bench (Vide 46 Mys HCR 157 (A) and 53 Mys HCR 365) (B).

39. The prayer of the learned Advocate-General if conceded, will not only place the Judges of the High Court in an unenviable position but will also lead to undesirable consequences inasmuch as no finality could be ensured, for at any time, a Division Bench of the High Court might be constituted, which under the guise of review might reverse or interfere with the order passed by a Judge sitting singly. It is legitimate to infer that the framers of Rule 31 and the Notification dated 28th July 1952 never intended to create such a situation. A somewhat similar question arose for consideration before the Calcutta High Court in Dahu Raut v. Emperor, 38 Cal WN 25 : (AIR 1933 Cal 870) (Q). Lort-Williams and McNair, JJ., who constituted a Division Bench had disposed of a batch of four criminal appeals under S. 421 of the Code of Criminal Procedure without notice to the State and had reduced the sentences in all those appeals. The Deputy Legal Remembrancer filed a petition under S. 561-A of the Code of Criminal Procedure before the Chief Justice of the Calcutta High Court complaining that the orders passed by the Division Bench reducing the sentences without notice to the State were illegal and had been made without jurisdiction. The learned Chief Justice while holding that he had no jurisdiction to interfere with the matter directed that the Legal Remembrancer could mention the matter before the Division Bench that decided those appeals and for that purpose re-constituted the same Bench. The Advocate-General argued before the Division Bench that the orders were illegal being made without jurisdiction and therefore the Division Bench had jurisdiction under S. 561-A of the Code of Criminal Procedure to review the orders. He contended that the Court had two alternatives only and should either dismiss an appeal summarily under S. 421 of the Code of Criminal Procedure or cause notice to be given and hear the appeal under S. 422 of the Code of Criminal Procedure. The learned Advocate-General therefore submitted that the Court could re-hear the appeals since the orders were void ab initio. Their Lordships repelled this argument and dismissed the petition. In the course of the judgment Lort-Williams, J., observed : "Assuming that the Court has acted without jurisdiction, then he contends that it has power to treat the illegal orders as being void ab initio and to re-hear the matter on its merits and he has referred us to the case of ILR 47 Mad 428 : (AIR 1924 Mad 640) (F) and to the case of Ramesh Pada Mandal v. Kadambini Dassi, ILR 55 Cal 417 : (AIR 1927 Cal 702) (R) and other cases. This must mean that any Judge or Bench of this Court may treat not only his or its own orders, but the orders of any other Judge or Bench of the Court as having been made without jurisdiction and being void ab initio and re-hear the matter on its merits. There is no magic in the fact that the same two Judges are sitting together, as at the time when the alleged illegal orders were made. We have no greater and no less power than any other Bench of this Court. After we had signed the orders we were functus officio, and when we ceased to sit together, the Bench of which we were members ceased to exist, and could not ever be revived. If one Bench had power to decide that the orders of another Bench were made without jurisdiction and were void ab initio a third Bench would have power to decide that the orders of the second Bench also were made without jurisdiction and so on ad infinitum. Moreover, if the Chief Justice disapproved of the decision of any Bench, he could appoint another Bench to over-rule it, as being made without jurisdiction, or could appoint himself to sit with another Judge, and this actually was done once by Sir Barnes Peacock in a case mentioned in ILR 8 Cal 63 at p. 67 (E). I think, it is clear that the cases to which we have been referred were wrongly decided, and in my opinion the only remedy in such circumstances is to move the Local Government to exercise the Royal prerogative where the accused has been prejudiced - otherwise there is no remedy."

40. The above observations of His Lordship, if I may say so with respect, bring out precisely what I have in my mind in regard to the question before me. (See also Hale v. Emperor, 9 Cri LJ 306 (Lah) (S) and Edward Few v. Emperor, AIR 1939 Lah 244) (T).

41. The learned Advocate-General argued that if this Court refused to review the order and post Criminal Petition No. 67 of 1955 for re-hearing great hardship and irreparable loss would be caused to those persons against whom certain remarks had been passed in proceedings to which they were not parties. It is no doubt true that remarks which are sweeping in nature couched in harsh language have been passed against persons who were not parties to the case. But the then learned Chief Justice before whom this fact was mentioned was of the opinion that those remarks were inseparable from the judgment and any attempt to expunge them was likely to mutilate and touch the fabric of his judgment. I have no jurisdiction to decide how far those observations of His Lordship are justifiable. By virtue of the Constitution of India, those parties that are aggrieved by the irrelevant remarks passed against them are entitled to take up the matter to the Supreme Court of India and got them expunged.

42. It follows from the above discussion that I have no doubt in my mind that this Court has no jurisdiction to re-hear the petition filed by the petitioner in Criminal Petition No. 67 of 1955 and this petition should be dismissed.

43. Accordingly this Criminal Petition is dismissed. Petition dismissed. AIR 1957 MYSORE 35 (V 44 C 20 April) "Doddanarasegowda v. Kalamma" MYSORE HIGH COURT Coram : 2 SREENIVASA RAO AND HOMBE GOWDA, JJ. ( Division Bench ) Doddanarasegowda and others, Appellants v. Kalamma and others, Respondents. Regular Appeal No. 100 of 1951-52, D/- 10 -10 -1956, against decree of Sub. J., Mysore, in O.S. No. 128 of 1948-49. (A) Mysore Hindu Law Womens Rights Act (10 of 1933), S.8(2)(a), S.8(2)(b) - OBJECT OF AN ACT - Scope - Father and son forming joint Hindu family - On fathers death son becoming sole surviving coparcener - In partition between mother and son, mother is entitled to one-third share and not one-fourth - ILR 1953 Mys 604 : AIR 1954 Mys 88, Overruled. Sections 8(2) (a) and 8(2)(b) cannot be read as meaning that the mother is to get one-half of the share which a son would get when there are several sons and grandsons while in any other case would be entitled to one-half of what her husband, if he were alive, would receive as his share. In fact, if that were the intention of the Legislature, it would have been made amply clear that the mother would get one-half of the share which a son would get only if there were more sons than one at the time of partition. Sub-sections (a) and (b) of S. 8(2) deal with the cases of widows. Sub-section (a) deals with widows generally while sub-s. (b) deals with the specific case of a widow who is also a mother having a son or sons alive. When the additional condition of the widow also being the mother of a living son or sons is satisfied, there can be no doubt that the provision specifically meant for such a contingency will apply, and not the general provision. If a female qualifies herself for a share as a widow and also as a mother, she is entitled to claim only in one capacity and in the absence of any specific provision she is entitled to claim the larger share i.e., as a mother. Hence where father and son form a joint Hindu family, and on death of the father the son becomes a sole surviving coparcener, in partition between mother and son of the joint family property, the mother is entitled to one-third share and not one-fourth. ILR 1953 Mys 604 : AIR 1954 Mys 88, Overruled. (Paras 10 and 11) (B) HINDU LAW - PARTITION - Hindu Law - Joint family - Partition. Where after death of the father the son became the sole surviving coparcener and had alienated certain items of joint family property, in a suit for partition between the mother and the son, to which the alienee was also joined as a party, Held that the alienee should be allowed to retain possession of the lands by allotting them to the sons share. There could be no legal objection to this course since all the parties interested in the property were parties to the partition suit. (Para 12) Cases Referred : Chronological Paras (A) AIR 1954 Mys 88 (V 41) : ILR (1953) Mys 604 8 (B) (36) 15 Mys LJ 85 9 M.A. Gopalaswamy Iyengar, for Appellants; Mirle N. Lakshminaranappa and S.R. Ramanathan, for Respondents. Judgement This appeal is against the decree for partition and other connected reliefs obtained by a mother against her son and an alienee from the son. The alienee who was the second defendant in the suit has filed this appeal. Subsequent to the filing of the appeal the appellant i.e., the alienee (defendant 2) and the alienor respondent 2 (defendant 1) died and their legal representatives have been brought on record. Defendant 1 died leaving his mother, plaintiff (respondent 1) and his widow surviving him. Hence the plaintiff (respondent 1) represents herself and is also one of the legal representatives of her son in this appeal.

2. The property described in the plaint schedule consists of six items of land and a house. The plaintiffs case was that they were the joint family property of her husband and her son, that on the death of her husband her son became the sole surviving coparcener and that she became entitled to a share. This, as originally claimed in the plaint, was a one-fourth share. By a later application for amendment the claim was altered to a one-third share. While defendant 1 did not dispute the plaintiffs claim to a share against him as a sole surviving coparcener, he contended that there had been an arrangement between him and his mother under which she was allowed to retain some jewels and other movables and be in possession of some items of land during her lifetime. Defendant 2, however, put forward the case that as defendant 1 and his father were not on good terms with each other they became divided and lived separately and that consequently the suit schedule items of property devolved on defendant 1 by succession and not by survivorship. He also pleaded that the sale of three of the lands in the plaint schedule by defendant 1 in his favour was for family necessity and benefit. Both the defendants also contended that an area of 16 guntas forming part of the same survey number as that in which item number 3 of the plaint schedule is situated should also have been included. The learned Subordinate Judge who tried the suit has upheld the plaintiffs claim and made a decree for partition and possession as prayed for.

3. The second defendants legal representatives urged before this Court the same grounds as constituted the second defendants defence in the Court below. They have also adopted one of the pleas urged by defendant 1 viz., that an arrangement had been arrived at between him and his mother under which some items of property were allotted to her for her enjoyment during her lifetime and that she was allowed to retain some jewels. It may be stated that none of the grounds has any substance. No evidence has been adduced to show that defendant 1 and his father were divided. It is not even suggested that defendant 1 got any item of property at the division. It has already been mentioned above that defendant 1 himself admitted in his written statement that he succeeded to the family property as the sole surviving coparcener. It is thus seen that the appellants contention that the property devolved on defendant 1 by succession is unfounded.

4. As regards the alleged arrangement between defendant 1 and his mother the plaintiff, defendant 1s case was that such an arrangement came into existence after the plaintiff had filed her suit in the Court of the Munsiff of Hunsur and before she represented that plaint to the Court of the Subordinate Judge, Mysore, in consequence of the former Court finding that the suit was beyond its jurisdiction. Apart from the fact that the lower Court rightly refused to place reliance upon the interested evidence of the witnesses examined to support defendant 1s version in regard to this matter, it is quite improbable that defendant 1 would not have taken the precaution to have the arrangement evidenced by a document when matters had already reached the stage of Court proceedings. Further, such an arrangement would be essentially inconsistent with defendant 2s stand which was that all the property devolved on defendant 1 by succession as heir to his father.

5. As regards the alienation by defendant 1 in favour of defendant 2 having been for legal necessity and benefit of the estate, the case put forward by defendant 2 is that part of the proceeds went towards the expenses of the obsequial ceremonies relating to the death of defendant 1s father. Apart from the circumstance that this could only be a very small part of the sale proceeds there is no independent evidence in regard to it. Further, the plaintiff became vested with a right to her share of the joint family property immediately it passed on to defendant 1 as the sole surviving coparcener. Hence any alienation by defendant 1 could not ipso facto bind her interests. In regard to the additional area of 16 guntas in S. No. 81/1, in which item 3 of plaint A schedule is situated, the plaintiffs case is that she acquired it in her own right under Ex. B. That document is a registered sale-deed which came into existence nearly three decades prior to the institution of the suit. The document is in plaintiffs name and no evidence worth mentioning has been let in to show that the purchase was benami. The mere fact that the khata is in the name of the plaintiffs husband is not enough to hold that the land really belonged to him.

6. The learned Advocate for the appellants contends that Narasamma, the widow of the plaintiffs husbands brother, and the sons of Chikkachari, another brother of the plaintiffs husband, have not been made parties. This contention relates to the relief prayed for by the plaintiff and granted by the lower Court in relation to the plaint C schedule property. That property has been allotted to Narasamma for her maintenance during her lifetime under the partition deed, Ex. A. It is seen from that document that after Narasammas lifetime plaintiffs husband and Chikkachari were entitled to share that land. There could obviously be no partition in praesenti and the decree granted is for its partition after Narasammas death. It is true that Chikkacharis sons also have an interest in the property. But failure to make them parties cannot affect the interests of the present appellants.

7. Another contention urged on behalf of the appellants is that the partition deed Ex. A indicates the existence of other items of property belonging to the family than those mentioned in the plaint schedule. But no evidence has been let in to indicate that any other item still continues to belong to the family. We thus see no substance in this contention either. Equally untenable is the contention that the plaintiff has failed to bring into the hotchpot the jewels and other movables belonging to the family in her possession, since no reliable evidence has been adduced in regard to this matter.

8. The only other question that remains for consideration is the share to which the plaintiff is entitled. While the plaintiff claims she is entitled to a third share the defendants contend that she is only entitled to a fourth share. This right to a share is given by S. 8 of the Mysore Hindu Womens Rights Act. Section 8(2)(a) provides that a widows share shall be one-half of what her husband, if he were alive, would receive as his share and S. 8(2)(b) provides that the mothers share shall be one-half of the share of a son if she has a son alive, and in any other case, one-half of what her husband, if he were alive, would receive as his share. It is contended for the appellants that it is S. 8(2)(a) that applies. The learned Advocate for the appellants relied upon the decision reported in Manche Gowda v. Basamma, ILR 1953 Mys 604 : (AIR 1954 Mys 88) (A). That decision no doubt clearly supports the appellants contention. That was a case in which the step-mother brought a suit for partition and possession against her step-son who was the sole surviving coparcener. It was held by Vasudevamurthy, J., that S. 8(2)(a) applied to the case and that the plaintiff was entitled to a one-fourth share and not to a one-third share. As S. 8(3) provides that the term mother includes a step-mother, it will be seen that the question that arose in that case was identical with the one before us. We, however, find it difficult, with great respect, to accept the view of the learned Judge in the face of the clear wording of S. 8(2)(b). The considerations which weighed with the learned Judge in arriving at the view he took appear to be as follows : (i) Nowhere in the section has any female relative been awarded more than one-half or one-fourth of the share of a husband or a son or a brother or a father and it is not clear why if a mother is claiming a share from her only son she should be given a larger share than what she would have been entitled to, had she been claiming from others like her daughter-in-law or a brother of her husband or his widow or her father-in-law; (ii) the word mother appears in S. 8(1)(a) as well as in S. 8(1)(b). In S. 8(1)(a) the case of a partition of joint family property between a person and a son or sons mother, his unmarried daughters and the widows and unmarried daughters of predeceased undivided sons and brothers who have left no male issue has been provided for. In S. 8 (1) (b) the case of partition of joint-family property among brothers, their mother their unmarried daughters and the widows and unmarried daughters of their predeceased undivided brothers who have left no male issue has been similarly provided for. From this it has to be gathered that S. 8 (2) (b) and (c) were meant to apply to the case of a partition between a person or classes of persons envisaged in S. 8 (1) (a) and (b) while Cl. 2 (a) is more appropriate to apply where the widow is claiming a share as against a sole surviving coparcener like her son.

(iii) The son has obviously a better and stronger claim for consideration than others as he would have to perform the ceremonies of his father and mother and other religious rites and perpetuate the family line and maintain the family prestige. It is unlikely that the Legislature would not have taken into consideration the very important position occupied by the son, his onerous duties and responsibilities both religious and secular.

(iv) The literal construction sought to be placed upon S. 8 (2) (a) and (b) would lead to a result which would defeat the Legislatures intention as pointed out in regard to the construction of another provision of the Act, S. 10 (2) (g) in the case reported in 15 Mys LJ 85. If S. 8 (2) (a) and (b) are properly construed the meaning that flows from them is that in the case of a mother, she gets one-half of the share which a son would have got if a son of hers was alive on the date of the partition if she is claiming the share as a mother as against several sons and grandsons; while in any other case or where she is claiming as a widow of a deceased husband she would be entitled to one-half of what her husband, if he were alive, would receive as his share.

9. The first reason given above is not in itself decisive, for the section also provides how the fraction is to be calculated in varying circumstances. As regards the second reason we are, with great respect, unable to see any such correlation between subsections 2 (b) and (c) of S. 8 and sub-ss. 1 (a) and (b) of that section as the learned Judge mentions, nor can we see any reason to confine the operation of sub-s. 2 (a) of that section to a case where the widow is claiming a share against a sole surviving coparcener. clause 1 of s. 8 describes the females entitled to a share at a partition and does not deal with the shares they have to get. Clause 2 deals with the question of fixing the shares. In dealing with the respective subject matters of the two clauses the Legislature has made appropriate sub-divisions. In Cl. 1, sub-s. (a) deals with the case of a person who has female relatives but there is no other male member except that persons own issue. Sub-s. (b) deals with a partition amongst brothers. Sub-section (c) extends the principles of division to other coparceners. This is obviously a logical arrangement and is intended to include all categories of cases. Sub-section (d) deals with the case of a sole surviving coparcener as the Legislature thought it necessary to confer a vested right for a share on a female in such a case. As regards Cl. 2 of that section, sub-s. (a) deals with the case of widows, sub-s. (b) deals specifically with the case of a mother who, of course, must also be a widow as otherwise she would not be entitled to a share; sub-s. (c) deals with females whose right is derived by birth and not by marriage. This again appears to be a logical way of making categories in the context of the subject matter of Cl. 2. It is thus seen there is no necessary or discernible correlation between any of the sub-sections under Cl. 1 and sub-sections under Cl. (2). The third reason given by the learned Judge seems to us to relate more to legislative policy than to an interpretation of the language of the provisions themselves. It is no doubt true that the son occupies an important position in the scheme of the Hindu Law. As regards the sons stronger claim for consideration against his mother than those more distantly related like a daughter-in-law, or the brother of her husband or her father-in-law, it is no doubt one possible view. But it is equally possible that, as between a mother and her son the mothers case might be regarded as susceptible of more generous treatment than in dealing with the interests of those more distantly related. As regards the fourth reason, the consideration mentioned in regard to the third reason which appears to have weighed with the learned Judge would also indicate that no question of defeating the intention of the Legislature or leading to an absurdity really arises. It is a case of choosing between two equally possible views, and not a case of patent absurdity as was the case in Govinda Rao v. Chandra Bai, 15 Mys LJ 85 (B). In that case it was held, and if we may say so with great respect, rightly held, that a literal construction of S. 10 (2) (b) would prevent a daughter from her taking her share of her fathers property as stridhana because of her own existence.

10. In the light of what is stated above, we do not see our way to read into Ss. 8 (2) (a) and 8 (2) (b) as meaning, as the learned Judge concludes, that the mother is to get one-half of the share which a son would get when there are several sons and grandsons while in any other case she would be entitled to one-half of what her husband, if he were alive, would receive as his share. In fact, if that were the intention of the Legislature, it appears to us that it would have been made amply clear that the mother would get one-half of the share which a son would get only if there were more sons than one at the time of partition.

11. Coming back to S. 8 (2) itself sub-ss. (a) and (b) deal with the cases of widows. Sub-section (a) deals with widows generally while sub-s. (b) deals with the specific case of a widow who is also a mother having a son or sons alive. When the additional condition of the widow also being the mother of a living son or sons is satisfied, there can be no doubt that the provision specifically meant for such a contingency will apply, and not the general provision. It may also be mentioned that under proviso 3 to S. 8, a female entitled to a share in any property in one capacity of relationship shall not be entitled to claim a further or additional share in the same property in any other capacity. If a female qualifies herself for a share as a widow and also as a mother, she is entitled to claim only in one capacity and in the absence of any specific provision she is entitled to claim the larger share i.e., as a mother. We are accordingly led to dissent from and overrule the view taken in the above decision of this Court.

12. It is lastly urged by the learned Advocate for the Appellants that as the suit is one for partition his clients should be allowed to retain possession of the lands by allotting them to first defendants share. There can be no legal objection to this course since all the parties interested in the property are parties to the partition suit. But we are not satisfied that the evidence on record justifies our allotting to defendant 1s share all the items of property sold by him to defendant 2. The parties were not agreed about the relative values of the items of the plaint schedule. It is in evidence that defendant 1 owns lands all around some of the items of the property sold to him in the plaint schedule and it would obviously be equitable to allow the Appellants to retain as much of these lands, as is possibly consistent with their valuation. When we suggested that a Commissioner might be appointed for the purpose of valuation and a division and allotment effected in the above manner in relation to the valuation the learned Advocate for the Respondents, while not conceding the appellants right to such a course or agreeing to it, did not advance any objection. We think this is a fit case where such a course should be adopted.

13. We accordingly confirm the decree of the lower Court except for the modification that in allotting her one-third share of the plaint schedule items of property to the plaintiff-respondent 1, the Court below shall appoint a Commissioner for valuing the plaint schedule items of property and that in partitioning the property after considering the valuation, the Appellants shall be allowed to retain the whole or as large a part of items 1 and 4 of plaint schedule A and plaint schedule B item as they can be reasonably and equitably allowed to retain in respect of defendant 2s two-thirds share. The Appellants will pay the costs of Respondent 1 in this appeal. Advocates fee Rs. 100/-. Order accordingly. AIR 1957 MYSORE 38 (V 44 C 21 April) "State of Mysore v. Anniah" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) State of Mysore, Petitioner v. Anniah, Respondent. Criminal Revn. Petn. No. 149 of 1956, D/- 14 -9 -1956, against the order of Special J., Mysore, D/- 21 -3 -1956. Prevention of Corruption Act (2 of 1947) - CORRUPTION - INVESTIGATION - MAGISTRATE - Sub-Inspector of Police investigating offence @page-Mys39 u/S.161, Penal Code, after obtaining permission of First Class Magistrate - Investigation cannot be said to be illegal. What cl. (c) of S. 5-A of the Prevention of Corruption Act means is that no police officer below the rank of a Deputy Superintendent of Police (who is the same as Assistant Superintendent of Police in the State of Mysore) can investigate into offences coming under Ss. 161, 165 and 165-A of the Indian Penal Code without an order of a Presidency Magistrate or a Magistrate of the First Class as the case may be. According to this provision, a Deputy Superintendent of Police or an Assistant Superintendent of Police need not obtain permission of any Magistrate to investigate into offences coming under these sections. It is only when an officer below the rank or status of a Deputy Superintendent of Police or an Assistant Superintendent of Police takes up the investigation that he has to obtain the previous permission of the Magistrate. This is what is contemplated in S. 5-A (c). Where the permission of the First Class Magistrate as contemplated in S. 5-A (c) had been obtained by the Sub-Inspector who investigated into a case under S. 161, Penal Code, he has the authority or jurisdiction to investigate into this case and the investigation under these circumstances cannot be said to be illegal. (Paras 6 and 7) Asst. Advocate-General, for Petitioner; P. Raghavendra Rao, for Respondent. Judgement This is a revision petition preferred by the Petitioner-State Government against the order of the learned Special Judge, Mysore Division, in Misc. Case No. 23/54 rejecting as not maintainable the charge-sheet placed by the Police of Channarayapatna against the respondent-accused.

2. The facts that have given rise to this petition are briefly as follow :

3. The Police of Channarayapatna placed a charge-sheet against the accused under S. 161 read with S. 116, I.P.C., in the Court of the learned Special First Class Magistrate, Hassan, alleging that on 3-10-53 the respondent-accused offered a bribe of Rs. 25 to the Sub-Inspector of Police of Nuggenahalli as illegal gratification in return for some favour to be shown by the said Sub-Inspector and that the respondent-accused thereby committed an offence under S. 161 read with S. 116, I.P.C.

4. The case was transferred to the file of the Additional First Class Magistrate as per orders of the District Magistrate and it was subsequently disclosed that the learned Additional First Class Magistrate had no jurisdiction to try these offences and thereupon the case was transmitted to the Special Judge for disposal according to law. The respondent-accused filed an application, I.A.I, before the learned Special Judge praying for the rejection of the charge-sheet on the ground that the charge was groundless. This contention found favour with the learned Special Judge and he accordingly rejected the charge-sheet and as against that order, this, revision petition is filed.

5. I am of opinion that the order of the learned Special Judge cannot be sustained. The grounds on which the charge-sheet has been rejected by the learned Special Judge are that there has not been investigation of the case by an officer prescribed under S. 5-A (c) of the Prevention of Corruption Act, that according to that provision it is only a Deputy Superintendent of Police (who is the same as Assistant Superintendent of Police in this State) that could investigate into an offence of his type that too with the permission of a First Class Magistrate, that in this case the investigation has been conducted by a Sub-Inspector of Police, that no officer below the rank of an Assistant Superintendent of Police can investigate into such offences and that the investigation is illegal. I am of opinion that the learned Special Judge has not correctly read or interpreted S. 5-A of the Prevention of Corruption Act.

6. The relevant portion of the S. 5-A reads thus : "Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), no police officer below the rank - (a) in the presidency towns of Madras and Calcutta, of an Assistant Commissioner of Police, (b) in the presidency town of Bombay of a Superintendent of Police, and (c) elsewhere, of a Deputy Superintendent of Police, shall investigate any offence punishable under S. 161, S. 165 or S. 165-A of the Indian Penal Code (Act XLV of 1860) or under sub-s. (2) of S. 5 of this Act, without the order of a Presidency Magistrate or a Magistrate of the First Class, as the case may be, or make any arrest therefor without a warrant......" The clause applicable to the facts of the present case is 5-A (c). The post in this State corresponding to the post of the Deputy Superintendent of Police referred to in S. 5-A (c), is that of Assistant Superintendent of Police. What that clause means is that no police officer below the rank of a Deputy Superintendent of Police (who is the same as Assistant Superintendent of Police in this State) can investigate into offences coming under Ss. 161, 165 and 165-A of the Indian Penal Code without an order of a Presidency Magistrate or a Magistrate of the First Class as the case may be. According to this provision, a Deputy Superintendent of Police or an Assistant Superintendent of Police need not obtain permission of any Magistrate to investigate into offences coming under these sections. It is only when an officer below the rank or status of a Deputy Superintendent of Police or an Assistant Superintendent of Police takes up the investigation that he has to obtain the previous permission of the Magistrate. This is what is contemplated in S. 5-A (c).

7. It is conceded in this case that the permission of the First Class Magistrate as contemplated in S. 5-A (c) has been obtained by the Sub-Inspector who investigated into this case. Therefore it is clear that the Sub-Inspector had the authority or jurisdiction to investigate into this case and the investigation under these circumstances cannot be said to be illegal.

8. In the result, this revision petition is allowed and the order of the learned Special Judge rejecting the charge-sheet is set aside and the learned Special Judge is directed to take the case on file and dispose of the matter according to law. Petition allowed. AIR 1957 MYSORE 40 (V 44 C 22 April) "Mahadevan v. Lakshminarayan" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) Mahadevan, Petitioner v. Lakshminarayan, Respondent. Criminal Revn. Petn. No. 197 of 1956, D/- 28 -9 -1956, to revise order of Principal S.J., Bangalore, D/- 9 -4 -1956. (A) Criminal P.C. (5 of 1898), S.251A(2) - WARRANT CASE - "The charge against the accused to be groundless" - Meaning. The words "the charge against the accused to be groundless" appearing in S. 251A (2) must be construed as "when there is no legal evidence in support of the charge brought against the accused and the facts do not make out any offence at all." The word "charge" cannot be restricted to mean only the charge brought by the prosecution under a particular section of the Indian Penal Code. A final order of discharge can be passed by a Magistrate under S. 251A (2) only when after considering the matter referred to in that section he thinks that there is no legal evidence in support of the particular charge as falling under a particular section of the Indian Penal Code and also that the facts alleged do not disclose any offence at all. It does not seem to contemplate the discharge of an accused when the allegations made against him do not fit into the section mentioned in the charge sheet. If the facts disclose any other offence coming under any other section of the Indian Penal Code which is triable as a warrant case and which the Magistrate is competent to try and punish adequately, it is his duty to frame a charge for that offence and dispose of the case according to law. (Para 6) (B) Criminal P.C. (5 of 1898), S.251A(3) - WARRANT CASE - "The accused has committed an offence." The word "an" appearing in S. 251A (3) after the words "that the accused has committed" and before the words "offence triable, under this Chapter" is very significant. That word "an" has to be interpreted as "any" under the context. If it were the intention of the legislature that an offence should be taken to mean the offence set out in the charge-sheet as falling under a particular section of the Indian Penal Code, they would have said so in unequivocal terms. (Para 7) (C) Criminal P.C. (5 of 1898), S.251A - WARRANT CASE - CHARGE SHEET - Facts alleged in charge sheet and materials referred to in S. 251A not disclosing particular offence mentioned in charge-sheet but disclosing different offence - Procedure. When the facts alleged in the charge-sheet and the materials referred to in S. 251A do not disclose the particular offence mentioned in the charge-sheet but disclose an offence different from the one mentioned therein, it is not correct to say that the court is helpless in such a case and that the only option left open to it is to discharge the accused of the offence mentioned in the charge-sheet. Where the accused is charge-sheeted under S. 379, Penal Code but the materials placed before the Magistrate do not disclose that offence but disclose an offence under S. 477, I. P. C., the course open to him is to follow the procedure prescribed under S. 207A of the Criminal Procedure Code under Chap. XVIII which deals with inquiry into cases triable by courts of Sessions and High Courts. Section 251A (3) cannot be read to mean that in a case covered by that section, the Court has no power to commit simply because the section enjoins merely the framing of a charge if a prima facie case is made out. (Para 10) (D) Criminal P.C. (5 of 1898), S.190(1) - COGNIZANCE OF OFFENCE - MAGISTRATE - Magistrate can take cognizance even of non-cognizable offence disclosed in Police report. The word "any" appearing in S. 190(1) is full of meaning. It must necessarily mean a cognizable or a non-cognizable offence. The wording of S. 190 clearly indicates that it empowers a Magistrate to take cognizance, of any offence upon a report in writing of such facts made by a Police Officer. The wording is quite general and would include even a non-cognizable offence being taken cognizance of by a Magistrate upon the report made in writing by a Police Officer. (Para 13) Anno : AIR Com., Cr. P. C., S. 190, N. 2 and 3. (E) Criminal P.C. (5 of 1898), S.251A and S.190(a) - CHARGE SHEET - COGNIZANCE OF OFFENCE - WARRANT CASE - THEFT - Charge-sheet u/S.379, Penal Code - Allegations in charge-sheet and materials placed before court not disclosing that offence but disclosing non-cognizable offence - Procedure. Where the police investigated into a cognizable offence of theft under S. 379, I. P. C., and charge-sheeted the accused under that section but the allegations made in the charge sheet and the other materials placed before the court did not disclose that offence but disclosed a non-cognizable offence, it is the duty of the Magistrate to take cognizance of that offence treating the police report in such a case as a complaint under S. 190(a) of the Criminal Procedure Code, and follow the procedure prescribed for trial of such offences. AIR 1927 Bom 440 and AIR 1926 Mad 865 (FB), Rel. on. (Para 14) (F) Criminal P.C. (5 of 1898), S.251A - MAGISTRATE - WARRANT CASE - Magistrate should find out whether materials make out prima facie case. Under S. 251A what a Magistrate should find out is whether the materials referred to in that section make out a prima facie case against the accused in which event he has to frame a charge. It is not at that stage necessary that the materials available should conclusively establish the various ingredients of an offence to enable the Magistrate to frame a charge. (Para 15) Cases Referred : Chronological Paras (A) AIR 1927 Bom 440 (V 14) : ILR 51 Bom 498 : 28 Cri LJ 939 14 (B) AIR 1926 Mad 865 (V 13) : ILR 49 Mad 525 : 27 Cri LJ 1031 (FB) 14 P. Raghavendra Rao, for Petitioner; R.S. Gopal, for Respondent. Judgement This is a revision petition preferred by the petitioner-complainant against the order of the learned Principal Sessions Judge, Bangalore, in Criminal Revision Petition No. 18 of 1956 confirming the order passed by the learned Second Magistrate, Kolar, discharging the respondent-accused in C. C. No. 2127 of 1955.

2. The facts that have given rise to this petition are briefly as follows :

3. The respondent-accused was charge-sheeted by the Kolar Town Police for an offence under S. 379, I. P. C., in the Court of the learned Second Magistrate, Kolar, alleging that he (accused) on 26-9-55 committed theft of three General Stamp paper valued at Rs. 300/- belonging to the petitioner-complainant, by snatching the same in a fit of anger from the pocket of the petitioner and tearing them off, and that he thereby committed an offence under S. 379, I. P. C.

4. The procedure provided under S. 251-A of the amended Criminal Procedure Code was followed and the learned Magistrate found that, on the materials placed before him, no case of theft was made out and he accordingly discharged the accused under S. 251-A(2) of the Criminal Procedure Code. The learned Sessions Judge, to whom a revision petition was preferred, agreed with the learned Magistrate and confirmed the order of the trial Court. Against that order, this revision petition is preferred.

5. The main point that arises for consideration is whether the disposal of the case in the manner in which it is done by the Courts below is correct. The learned Magistrate held that no offence under S. 379, I. P. C., was made out, that the materials placed before him disclosed an offence under S. 477, I. P. C., cognisable by a Court of Session and that he had no jurisdiction to deal with the matter. The learned Sessions Judge likewise held that no offence under S. 379, I. P. C., was made out, that if at all the materials placed before the Court disclosed any offence it was one of mischief which was a non-cognizable one and in respect of which the police could not place any charge-sheet, and that as no cognizable offence was made out the order of the learned Magistrate had to be upheld. I am of opinion that both the Courts were wrong in their respective views. If the views of the Courts below are accepted, it is tantamount to saying that S. 251-A requires that an accused should be discharged if the offence alleged by the prosecution as having been committed under a particular section of the Indian Penal Code is not made out, irrespective of the fact whether the allegations made in the charge sheet prima facie disclosed any other offence or not. This, in my opinion, is not a correct statement of law.

6. Section 251-A(2) of the Criminal Procedure Code under which the respondent-accused stands discharged runs thus : "If, upon consideration of all the documents referred to in S. 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him." A Magistrate under this provision is required to discharge an accused if he considers, on a consideration of the various materials referred to therein, that the charge against the accused is groundless. In my opinion, the words "the charge against the accused to be groundless" appearing in the above section must be construed as "when there is no legal evidence in support of the charge brought against the accused and the facts do not make out any offence at all." The word "charge" cannot be restricted to mean only the charge brought by the prosecution under a particular section of the Indian Penal Code. I am of the view that a final order of discharge can be passed by a Magistrate under S. 251-A(2) only when after considering the matter referred to in that Section he thinks that there is no legal evidence in support of the particular charge as falling under a particular section of the Indian Penal Code and also that the facts alleged do not disclose any offence at all. It does not seem to contemplate the discharge of an accused when the allegations made against him do not fit into the section mentioned in the charge-sheet. If the facts disclose any other offence coming under any other section of the Indian Penal Code which is triable as a warrant case and which the Magistrate is competent to try and punish adequately, it is his duty to frame a charge for that offence and dispose of the case according to law.

7. That this is a reasonable construction, and must be the construction of S. 251-A(2) is further made clear by sub-s. (3) of S. 251-A. That subsection runs thus : "If, upon such documents being considered, such examination, if any being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused." That deals with the framing of a charge when the Magistrate after perusing the materials referred to therein thinks that there is ground for presuming that the accused has committed an offence triable under that Chapter. The word "an" appearing in the section after the words "that the accused has committed" and before the words "offence triable under this Chapter" is very significant. That word "an" has to be interpreted as "any" under the context. If it were the intention of the Legislature that an offence should be taken to mean the offence set out in the charge-sheet as falling under a particular section of the Indian Penal Code, I am sure they would have said so in unequivocal terms. It was very easy for them to have put in words like "Charged with" or "accused of" after the word "offence" and before the words "triable under this Chapter".

8. Again the use of the words "triable under this Chapter" also goes to indicate that a charge should be framed against the accused for any offence made out which is triable as a warrant case. Chapter XXI deals with trial of warrant cases by Magistrates. When a charge-sheet is placed for a cognizable offence and is sought to be tried under the procedure prescribed under S. 251-A, it means that the offence alleged against the accused is triable as a warrant case. Therefore there was no necessity for the words "an offence triable under this Chapter" appearing in the body of sub-s. 3, if the Legislature intended to say by the use of the word "an" only the offence alleged by the prosecution in the charge-sheet. The legislature must have meant to say that a charge should be framed under any other section of the Indian Penal Code provided that such an offence was disclosed on the materials placed before the Court and was triable as a warrant case.

9. The next point that arises for consideration is as to what a Magistrate should do when the facts alleged in the charge-sheet and the materials referred to in S. 251-A do not disclose the particular offence mentioned in the charge-sheet but disclose an offence different from the one mentioned therein. It is not correct to say, as has been observed by the Courts below, that the Court is helpless in such a case and that the only option left open to it is to discharge the accused of the offence mentioned in the charge-sheet. According to the learned Magistrate, the materials placed before him disclosed an offence under S. 477, I. P. C., which is exclusively triable by a Court of Session and that he had no jurisdiction to proceed further, while according to the learned Sessions Judge, the offence disclosed is one of mischief which is non-cognizable. The latter has held that the police cannot place a charge-sheet in respect of such an offence and that as no cognizable offence was made out, the order of discharge was good. In my opinion, the views of both the learned Magistrate and the learned Sessions Judge are incorrect.

10. Different procedure has been prescribed for trial of warrant cases, summons cases and Sessions Cases. If the materials placed before the Magistrate disclosed an offence under S. 477, I. P. C., the course open to him was to follow the procedure prescribed under S. 207-A of the Criminal Procedure Code under Chapter XVIII which deals with inquiry into cases triable by Courts of Session and High Courts. section 251-a (3) cannot be read to mean that in a case covered by that section, the Court has no power to commit simply because the section enjoins merely the framing of a charge if a prima facie case is made out. In this case, the learned Second Magistrate, Kolar, who has passed the order of discharge, has been empowered to commit any person for trial to a Court of Session for any offence triable by the latter. The learned Magistrate was therefore wrong in not following the procedure laid down under Chapter XVIII when he came to the conclusion that an offence under S. 477, I. P. C., was disclosed.

11. If, according to the learned Sessions Judge, an offence of mischief was disclosed, then it was open to the Magistrate to follow the procedure prescribed for the trial of non-cognizable cases. The learned Sessions Judge opines that the police had no power to place a charge-sheet for a non-cognizable offence and that the Court could not take notice of such an offence even if the charge-sheet and the materials placed before it disclosed such an offence. I do not think that this view is correct.

12. Section 155 (1) of the Criminal Procedure Code deals with the procedure to be followed by the Police when information as to the commission of a non-cognizable offence is received. Section 155(2) prohibits investigation by Police into a non-cognizable case without the orders of a Magistrate. The point for decision in this case is not whether the Police can investigate into a non-cognizable case without the orders of a Magistrate. We are now confronted with the question whether a Magistrate before whom a charge-sheet is placed, has no jurisdiction to take cognizance of a non-cognizable offence which is disclosed in the police report. The question is one of "cognizance" by a Magistrate and not "investigation". "Cognizance" and "investigation" are two different things.

13. I cannot accept the proposition that a Magistrate has no jurisdiction to take cognizance of a non-cognizable offence disclosed in the report made by a Police Officer. Section 190 (1), Cr. P. C. read thus : "Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence. (b) upon a report in writing of such facts made by any Police Officer; (c) upon information received from any person other than a Police Officer, or upon his own knowledge or suspicion, that such offence has been committed." It empowers the Magistrates referred to therein to take cognizance of any offence disclosed in the report made by a Police Officer. The word "any" appearing in S. 190 (1) is full of meaning. It must necessarily mean a cognizable or a non-cognizable offence. The wording of S. 190 clearly indicates that it empowers a Magistrate to take cognizance of any offence upon a report in writing of such facts made by a Police Officer. The wording is quite general and would include even a non-cognizable offence being taken cognizance of by a Magistrate upon the report made in writing by a Police Officer.

14. In this case, the police investigated into a cognizable offence of theft under S. 379, I. P. C. If the allegations made in the charge-sheet and the other materials placed before the Court did not disclose that offence but disclosed a non-cognizable offence, it was the duty of the Magistrate to take cognizance of that offence treating the police report in such a case as a complaint under S. 190(a) of the Criminal Procedure Code, and follow the procedure prescribed for trial of such offences. This appears to be the consensus of opinion of some of the High Courts in the Indian Union. The Bombay High Court, after reviewing various cases on the point, has taken this view in the case reported in Emperor v. Shivaswami Guruswami, ILR 51 Bom 498 : (AIR 1927 Bom 440) (A). The Madras High Court also has taken a similar view in the case reported in Public Prosecutor v. Ratnavelu Chetty, ILR 49 Mad 525 : (AIR 1926 Mad 865) (FB) (B). Their Lordships have held that the Magistrates mentioned in S. 190 are entitled to take cognizance of even a non-cognizable offence upon a report made in writing by a Police Officer.

15. Inany view of the case, the procedure adopted by the Courts below cannot be supported. Under S. 251-A what a Magistrate should find out is whether the materials referred to in that section make out a prima facie case against the accused in which event he has to frame a charge. It is not at that stage necessary that the materials available should conclusively establish the various ingredients of an offence to enable the Magistrate to frame a charge. In this case, the charge-sheet and the materials placed before the Magistrate are to the effect that the respondent-accused and his brother were quarrelling, that the petitioner interfered to pacify them and that the respondent-accused snatched the stamp papers from the pocket of the petitioner and tore them off thinking that it was a document affecting his (respondent-accuseds) title to the family property. I do not know how the Magistrate came to the conclusion that there was no dishonest intention on the part of the accused. The Courts below do not seem to have seriously applied their mind in finding out what offence was disclosed and they have also not properly appreciated the materials placed before them. I am of opinion that it is expedient in the interests of justice that the order of discharge should be set aside.

16. In the result, the order of the learned Sessions Judge confirming the order of discharge passed by the learned Second Magistrate, Kolar, in this case is set aside and this revision petition is allowed. The case will now go before the learned District Magistrate, Kolar, for being dealt with in accordance with law. Petition allowed. AIR 1957 MYSORE 43 (V 44 C 23 April) "Revanna v. T.V. Narayana Murthy" MYSORE HIGH COURT Coram : 1 SREENIVASA RAO, J. ( Single Bench ) Dodda Revanna and others, Petitioners v. T.V. Narayana Murthy, Respondent. Criminal Revn. Petn. No. 275 of 1956, D/- 25 -10 -1956, against the order of Second Magistrate, Bangalore, D/- 28 -8 -1956. (A) Criminal P.C. (5 of 1898), S.439 and S.145 - REVISION - LAND DISPUTE - Revision against findings of fact. Where the Magistrate, in a case under S. 145, holding that the documents relied on by the petitioner were not shown to pertain to the disputed site while the documents filed on behalf of the opposite party gave the original khaneshmari number borne by the site and the subsequent number also, ordered that the opposite party was in possession of disputed site. Held that these were questions of fact and the views of the lower Court could not be called in question in revision. (Para 2) Anno : AIR Com. Cr. P. C., S. 439, N. 15; S. 145, N. 61. (B) Criminal P.C. (5 of 1898), S.145 - LAND DISPUTE - EVIDENCE - AFFIDAVIT - Evidence produced in the form of affidavits - Necessity for examination of deponents. Under S. 145 of the Code of Criminal Procedure, as it stands now, the Court is normally to act on the evidence produced in the form of affidavits, and it is only when the Court thinks it fit, that any person whose affidavit has been put in need be summoned and examined. Where the Magistrate had not been requested by the opposite party to call any of such persons as witnesses and he did not feel it necessary to summon any of the deponents for examination he acts entirely within his powers in confining his attention to the affidavits and other documentary evidence produced in the case. (Para 3) Anno : AIR Com Cr. P. C., S. 145, N. 37, 38. (C) Criminal P.C. (5 of 1898), S.145(4) - LAND DISPUTE - "Heard the parties". The hearing contemplated by the employment of the words "hear the parties" is something other than the receiving of evidence such as hearing arguments. There is nothing in the language of sub-s. (4), as it stands now, which precludes the parties themselves filing affidavits and which makes it obligatory that they should be examined in Court. (Para 4) Anno : AIR Com. Cr. P. C., S. 145, N. 36. B.N. Krishnaswamy, for Petitioners. Judgement In this revision petition the Petitioners (II Party) in proceedings under S. 145 of the Code of Criminal Procedure in the Court below challenge the correctness of the order declaring that the Respondent (I Party) was in possession. The learned Magistrate has dealt with the documents produced by either side in support of its case as also the affidavits of various persons filed on behalf of the parties. He has come to the conclusion that the affidavits and the documentary evidence indicate that the I Party has been in possession of the site in question.

2. It is urged for the Petitioners that their documents show that they were in possession earlier, but the learned Magistrate holds that those documents are not shown to pertain to the disputed site, while the documents filed on behalf of the I Party give the original khaneshmari number borne by the site and the subsequent number also. These are questions of fact and the view of the lower Court cannot be called in question in revision.

3. It is next urged that when the affidavits filed on behalf of the Second Party show that the persons whose affidavits are relied upon by the I Party were interested against the II Party as they had previously filed a suit against him the learned Magistrate should have allowed the examination of those persons as witnesses. Under S. 145 of the Code of Criminal Procedure as it stands now the Court is normally to act on the evidence produced in the form of affidavits and it is only when the Court thinks if fit that any person whose affidavit has been put in need be summoned and examined. It is admitted that the II Party made no request to the learned Magistrate to call any of such persons as witnesses. The Magistrate acted entirely within his powers in confining his attention to the affidavits and the other documentary evidence produced in the case when he did not feel it necessary to summon any of the deponents for examination.

4. It is next contended that under S. 145 (4) of the Code of Criminal Procedure it is obligatory for the Magistrate to hear the parties and that hearing the parties means taking the evidence of the persons who figure as parties to the proceedings. It is no doubt true that the giving of a hearing includes allowing an opportunity to adduce evidence. But it has to be noticed that as the wording of sub-s. (4) stood prior to the amendment it provided that the Magistrate shall hear the parties and receive all such evidence as may be produced by them. The amended sub-section provides that the Magistrate shall peruse the statements, documents and affidavits, if any, hear the parties and conclude the inquiry. It will be noticed that the words "receive all such evidence as may be produced" are not to be found in the amended sub-section. The object of the amendment is obviously to simplify the procedure by allowing evidence in the form of affidavits normally to take the place of the examination of witnesses. It is with these factors in mind that the words "hear the parties" which appear in the sub-section both as it stood prior to the amendment and as it stands now have to be interpreted. It seems to me that the hearing contemplated by the employment of those words is something other than the receiving of evidence such as hearing arguments. I see nothing in the language of sub-s. (4) as it stands now which precludes the parties themselves filing affidavits and which makes it obligatory that they should be examined in Court.

5. I thus see no substance in this revision petition and it is accordingly dismissed. Petition dismissed. AIR 1957 MYSORE 44 (V 44 C 24 April) "Nanjappa v. Vimala Devi" MYSORE HIGH COURT Coram : 1 SREENIVASA RAO, J. ( Single Bench ) Nanjappa, Petitioner v. Vimala Devi, Respondent. Civil Revi. Petn. No. 389 of 1956, D/- 24 -9 -1956, against the order of Principal Dist. J., Bangalore, D/- 1 -6 -1956. (A) Hindu Marriage Act (25 of 1955), S.24 - MAINTENANCE - Maintenance pendente lite and expenses of the proceedings - Against whom can be allowed. There is no reason to think that the Legislature in making provision in S. 24 for maintenance pendente lite and expenses of the proceedings under the Hindu Marriage Act wished to depart from the principle that it should be open to the Court to make such provision in favour of a needy spouse whether such spouse figured as the initiator of the main proceedings or not. Unless there is something compelling in the language of S. 24 of the Hindu Marriage Act which confines such relief only to the petitioner it should not be restricted to one party or the other and there is no warrant for such a construction in the wording of S. 24. The only departure clearly intended by the Legislature appears to be to place husband and wife on the same footing and make it possible to grant such relief against the wife also. The word respondent appearing in S. 24 seems to indicate the party against whom the application is directed and not the party arrayed as the opponent to the main petition. (Para 4) (B) Hindu Marriage Act (25 of 1955), S.24 - MAINTENANCE - WORDS AND PHRASES - "Petition", "Application", "Petitioner", "Respondent" - Use and meaning of these words in statute. Words and Phrases. The two words petition and application, are used interchangeably and the party ranged on the opposite side is variously called opponent, counter-petitioner, non-applicant or respondent. Unless there is some demonstrable reason there appears to be no warrant for confining the meaning of the words petitioner and respondent to the parties to the main petition and to hold that they do not apply to parties to interlocutory applications. (Para 3)

V. Vasanth, for Petitioner; K. Nanjundiah, for Respondent. Judgement The Petitioner before this Court filed an application under S. 13 of the Hindu Marriage Act against the Respondent praying for a decree for divorce. The Respondent who is the wife filed an application under S. 24 of the Act claiming, interim maintenance and expenses of the proceedings. This has been granted and the Petitioner has been directed to pay her Rs. 15/- per month towards maintenance and Rs. 50/- towards her expenses.

2. The main ground urged against this order is that the order is not warranted by S. 24 of the Act which provides for grant of maintenance pendente lite and expenses of proceedings only against a respondent and not against a petitioner and that the terms petitioner and respondent relate to the substantive petition and not to any ancillary application. On the other hand it is contended for the Respondent that the words Petitioner and Respondent are intended to apply to the applicant under S. 24 and the opposing party in respect of such application.

3. It has to be noticed that under Ss. 24 and 25 of the Act payment by way of maintenance and expenses of proceedings or permanent alimony and maintenance may be ordered either against the wife or the husband. This appears to represent a departure from similar provisions under other enactments which only provide for such payments to the wife and not to the husband. The intention undoubtedly is to place husband and wife on a footing of equality in regard to the liability for making such payments if other requisite conditions are established. This is made clear by the language of both the sections which enable either the wife or the husband on application to obtain an order against the respondent for such payment. The question, however, is whether the order under S. 24 could be made against the petitioner in the main proceedings whether such petitioner is the husband or the wife. The section provides only for an order directing the respondent to make such payment to the petitioner. It is urged for the present respondent that if it was the intention of the Legislature (Parliament) to confine such reliefs only to the petitioner in the main proceedings the language in the relevant portion would have been "where.......it appears to the Court that the petitioner has no independent income for her or his support and the necessary expenses of the proceedings......." and not "where......it appears to the Court that either the wife or the husband as the case may be has no independent income......" On the other hand, it is urged for the present petitioner that both in Ss. 24 and 25 the word application is used in regard to a claim for payment and in S. 25 the word applicant is used when referring to the person making such an application, while the word petition is used throughout the Act in regard to the substantive application, e.g., See Ss. 9, 10, 11, 12, 13, 19, 20 and 23. It may also be added that in S. 14 of the Act, the word application is used in the context of seeking permission to present a petition for divorce within three years of marriage. It seems to me, however, that the use of the words petitions, application, petitioner, or applicant is not in itself conclusive. It may for instance be observed that in S. 26 of the Act which provides for custody of children, the language employed is "upon application by petition for the purpose", which would indicate that an interlocutory application can also be a petition. It is well known that the two words petition and application, are used interchangeably and the party ranged on the opposite side is variously called opponent, counter-petitioner, non-applicant or respondent. Unless there is some demonstrable reason there appears to be no warrant for confining the meaning of the words petitioner and respondent to the parties to the main petition and to hold that they do not apply to parties to interlocutory applications.

4. As stated above, the provision for an order for payment of interim maintenance or of alimony to the husband represents a departure from similar provisions under other enactments. They permit such an order to be made only in favour of the wife and against the husband. But they also permit such an order to be made in favour of the wife whether she figures as the petitioner or the respondent in the main petition. For example, S. 36 of the Divorce Act (IV of 1869) reads :- "In any suit under this Act, whether it be instituted by a husband or a wife......the wife may present a petition for alimony pending the suit." S. 6 of the Bombay Hindu Divorce Act (XXII of 1947) reads :- "In any suit under this Act.......the Court, on the application of the wife, may order the husband to pay her the expenses of the suit and monthly during the suit such sum not exceeding......." There is no reason to think that the Legislature in making provision for maintenance pendente lite and expenses of the proceedings under the Hindu Marriage Act wished to depart from the principle that it should be open to the Court to make such provision in favour of a needy spouse whether such spouse figured as the initiator of the main proceedings or not. It is possible that circumstances compel one of the parties to a marriage to initiate a petition for dissolution of the marriage bond and circumstances may also exist which make it just and equitable that such a party should be enabled to obtain interim maintenance and expenses of the proceedings from the other party. But it may occur with equal frequency that one of the parties to a marriage seeks the assistance of the Court to put an end to the relationship leaving the other party in a difficult situation in regard to that partys maintenance or in regard to meeting the expenses of the proceedings. It is even possible that if a provision for interim maintenance and payment of expenses of proceedings is not available, the party who unwarrantedly initiates proceedings may be placed at an unfair advantage leaving the other party without recourse to maintain himself or herself or to meet the expenses of the proceedings. From all these circumstances it would appear that unless there is something compelling in the language of S. 24 of the Hindu Marriage Act which confines such relief only to the petitioner it should not be restricted to one party or the other and I find no warrant for such a construction in the wording of S. 24. The only departure clearly intended by the Legislature appears to be to place husband and wife on the same footing and make it possible to grant such a relief against the wife also. The word Respondent appearing in S. 24, seems to me to indicate the party against whom the application is directed and not the party arrayed as the opponent to the main petition.

5. I, therefore, confirm the order of the learned District Judge and dismiss this Revision Petition. In the circumstances of the case, there will be no order as to the costs of this petition. Revision dismissed. AIR 1957 MYSORE 45 (V 44 C 25 April) "N. Kenchappa v. Sales Tax Officer" MYSORE HIGH COURT Coram : 2 H. VENKATARAMAIYA, C.J. AND H. HOMBE GOWDA, J. ( Division Bench ) N. Kenchappa, Petitioner v. Sales Tax Officer, IV Circle, Aliaskar Road, Bangalore, Respondents. Writ Petns. Nos. 65, 74, 75, 76, 89, 92, 93, 114, 116, 134 and 152 of 1954, 8, 23, 32, 56, 62, 66, 72, 117 and 122, 142, 150, 178 and 186 of 1955 and 1, 4, 28, 29, 63, 69, 72, 107 and 144 of 1956, D/- 12 -9 -1956. Constitution of India, Art.14 - EQUALITY - WORKS CONTRACT - SALES TAX - Works contract - Uniform rate - Validity. Sales Tax.Mysore Sales Tax Act (46 of 1948), S.2(1), S.2(k) and R.1(2). Though the Act purports to take the value of materials used for fulfilment of a contract, the value is not ascertained from the assessee, even if he is ready and willing to furnish satisfactory proof of it but is determined by means of a rigid formula which may entail an undeserved liability. The word "deemed" suggests that the basis of assessment is not factual but fictional and the result is that a person is taxed not on what is actually paid for the articles but what is assumed to be paid. There is thus an element of artificiality and premature determination. The classification of contracts too for the purpose of assigning particular percentages appears to be rather rough and indefinite. Only three are of a specific kind and all the rest are included in the residuary category. The definition of "works contract" is comprehensive so as to bring works relating to immoveable as well as moveable property within the field of taxation and so the relegation of all contracts excepting three to one class under the denomination of "other contracts" for being treated alike is tantamount at least in some cases to enforcing equality on what is unequal. Fiscal enactments are not exempt from the ban against discrimination. The classification is not meant to be a mechanical formality devised in a haphazard manner as cover for raising money but must disclose differentiation pertinent to the burden being heavy in some cases and light in others. The principle of equality may be offended on account of dissimilarity of treatment in like instances or same treatment in cases between which resemblance is lacking. The classification and the rule under which it is found, the notification issued in pursuance of the rule seem to have overlooked these factors in prescribing same percentages for all areas. It is common knowledge that skilled labour and goods of special design or manufacture cost more in some places than in others and that in some the two vary inversely. Added to this is the incongruity between the definition of "works contract" and the explanation to turnover and the explanation to R. 1. The definition is such as to bring within the purview of "works contract" contracts in which goods or materials may not be supplied or furnished by the contractor sought to be taxed. The does not afford him an opportunity to show this and subjects him to liability by imputing use of materials and by requiring valuation of these in a particular manner. An application of these will lead to those using materials and those not using materials for execution of works being dealt with on a common footing. Contracts for execution of works are of varied types and there is no uniformity in the stipulations in all contracts. The contractor may in some be paid only for his services in advantageously utilising the articles secured by the other party for performance of the work and receive payment. The presumption generally attaching to validity of laws cannot be extended to justify provisions tending to such anomalies, inequalities and arbitrariness as persons being taxed on notional considerations shutting them out from representing the true nature and value of their transactions. This is repugnant to the principles of natural justice and Art. 14. The levy of uniform rate for the whole State is arbitrary and leads to unreasonable discrimination. (Paras 8, 9, 10) Anno : AIR Com., Const, of India, Art. 14 N. 17, 42. Cases Referred : Chronological Paras (A) AIR 1954 Mad 1130 (V 41) : 67 Mad LW 647 3 (B) (55) 1955-6 STC 93 (Nag) 3 (C) (S) AIR 1956 Hyd 79 (V 43) : ILR (1956) Hyd 162 3 (D) (1890) 134 US 232 : 33 Law Ed 892 5 (E) (1910) 216 US 400 : 54 Law Ed 536 9 (F) (1935) 294 US 550 : 79 Law Ed 1054 9 (G) AIR 1952 SC 75 (V 39) : 1952 Cri LJ 510 9 (H) (1897) 165 US 150 : 41 Law Ed 666 9

(I) (1931) 284 US 23 : 76 Law Ed 146 9 G.S. Ullal, In Nos. 65 and 75 of 1954; V. Krishna Murthy, In Nos. 74, 92, 93 of 1954; K.S. Setlur, In Nos. 75, 76 of 1954; 178 of 55 and 1, 4, 28, 29 of 1956; C.K. Narayana Rao, In Nos. 89 of 54 and 72 of 56; A.B. Mariappa, In Nos. 115, 116 of 1954; K.S. Dalvi, In Nos. 134 of 54; R.L. Srinivas, In Nos. 152/54, 23, 62 of 55 and 63 of 56; K.P. Muddappa, In Nos. 32 of 1955; M.L. Venkatanarasimhiah, In Nos. 56 of 55; C. Nagaraja Rao, In Nos. 66/55; S.K. Venkatarangaiengar, In No. 72 of 55; M. Chinnaswamy, In Nos. 117/55, 142/55; P.R. Srirangiah, In Nos. 122, 150, 186 of 55 and 144 of 56; R.K. Pany, In No. 69 of 56; Belur Krishniengar, In No. 107 of 56, for Petitioners; Advocate General, for Respondents, In Nos. 65, 74 to 76, 89, 92, 93, 115, 134/54 and 8, 23, 32, 56, 62, 66, 72, 117, 122, 142, 150, 186 of 1955 and 1, 4, 28, 29, 63, 69, 72, 107, 144 of 1956. Judgement VENKATARAMAIYA, C.J. :- This is a batch of petitions filed under Art. 226 of the Constitution of India in which the levy of sales tax on monies realised for execution of certain contracts called "works contract" has been challenged. The petitioners are charged with liability for payment of the tax not on the total amount received by them but on the value of goods supplied by them for fulfilment of contracts entered into with others. The value has been fixed and the tax assessed in accordance with the provisions of the Mysore Sales Tax Act and the rules framed thereunder. The objections raised and arguments advanced being the same in all the petitions these may be conveniently disposed of by a single order.

2. The grievance of the petitioners is that the articles used by them for carrying out the works undertaken by them are treated as goods sold by them and that the value of these is determined not by the actual cost paid for but by the application of a formula. It is true that considering the object of the Act, the meaning attached to sale and the scheme of assessment provided for generally, there is reason for petitioners to complain of peculiarity and arbitrariness in the principle and procedure applied to them. There is no dispute about the assessment being in conformity with what is provided for by the statute and the rules made by Government in exercise of the power conferred on it by the statute. What has to be considered therefore is whether these are unauthorised, unconstitutional or unwarranted by the facts admitted or proved.

3. These decisions one of the Madras High Court in Gannan Dunkerley v. State of Madras, AIR 1954 Mad 1130 (A), another of Nagpur High Court in Banarsi Das v. State of M.P., 1955-6 STC 93 (B), and the third of the Hyderabad High Court in Jubilee Engineering Co. Ltd. v. Sales Tax Officer, Hyderabad, (S) AIR 1956 Hyd 79 (C), were strongly relied upon in support of the objections to the Act and the levy of the tax. In each of these, assessments similar to these now in question under analogous enactments were quashed; but reasons for this are not identical. In the Hyderabad case the Act which the Court had to consider was passed after the Constitution came into force and the view expressed by the Madras High Court has been adopted. The other two cases were concerned with the interpretation of the scope and spirit of Entry No. 48 in the list of the Government of India Act, 1935 - Tax on sale of goods. Although the conclusion in both is against the levy of the tax, emphasis is laid in one on the tax offending legislative policy and in the other on its being arbitrary, standard of assessment being artificial. An appeal against the order in the case of the Madras High Court is said to be pending before the Supreme Court and the result of, this may set at rest doubts now felt about the taxability of "works contract" under the Act in Madras.

4. There is however an important feature of the Mysore Sales Tax Act which distinguishes it from the Act the assessment under which has been attacked in these cases and calls for independent examination of the criticism levelled against the orders. The Sales Tax Act in Mysore unlike that of Hyderabad was passed prior to the Constitution and the power to enact it was not derived as in Madras or Central Provinces from any entry in the schedule to the Government of India Act. The provisions of the Mysore Act cannot therefore be impugned on the ground of these not being within the ambit of the entry or as not in harmony with legislative policy of Government of India Act. For this State there was Act 18 of 1940 called the Government of Mysore Act which received assent of His Highness the Maharajah on 13-4-1940 and under s. 24 of this act : "Subject to the provisions of this Act and the terms of instrument or agreement entered into in that behalf by His Highness the Maharaja or the Government with the Government of the Dominion of India the Assembly may make laws for the whole or any part of Mysore and for subjects of His Highness the Maharaja wherever they be." A restriction is placed by S. 29 with regard to legislation on certain subjects such as foreign relations and S. 36 requires recommendation of Government in fiscal matters. It is not alleged that the Sales Tax Act is in any way or to any extent ultra vires the Government of Mysore Act.

5. Nevertheless, if the Act so far as it relates to Works Contract is repugnant to the provisions of the Constitution of India the Petitioners are entitled to relief. A definite and express restriction on the taxation of goods for export and in the course of inter-State trade is placed by Art. 286 and to that extent the operation of the State Legislation is curtailed. The continuance of laws existing on the date of the Constitution is stated in Art. 372 to be "Subject to the provisions of the Constitution". Therefore it is now open to the petitioners to make out that what is guaranteed or enjoined by these will be infringed by giving effect to the statute. The right affected is said to be equality before the law and equal protection of the laws conferred by Art. 14. In Bells Gap Railroad Company v. Commonwealth of Pennsylvania, (1890) 134 US 232 (D), Bradley, J., observed : "The provision in the 14th amendment that no State shall deny to any person ......... equal protection of the laws, was not intended to prevent a State from adjusting its system of taxation in all proper and reasonable ways.... All such regulations, and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of State Legislature or the people of the State in framing their Constitution. But clear and hostile discriminations against particular persons and classes, especially such as are of unusual character, unknown to the practice of our Governments, might be obnoxious to the Constitutional prohibition. It would, however, be impracticable and unwise to attempt to lay down any general rule or definition on the subject, that would include all cases. They must be decided as they arise." The object of the Act is to levy tax on the sale of goods. "Goods" as defined in S. 2 (e) of the Act include all materials, commodities and articles including those to be used in the construction, fitting out, improvement or repair of immoveable property or.... moveable property. According to S. 2 (j) Sale.....includes a transfer of property in goods involved in the execution of a Works Contract..... 5-A. Section 1 (1) "works contract" means any agreement for carrying out for cash or for deferred payment or other valuable consideration the construction, fitting out, improvement or repair of any building, road, bridge or other immoveable property or the fitting out improvement or repair of any move-able property. Section 3 states that subject to the provisions of the Act every dealer shall pay for each year a tax on his total turnover for such year.

6. Section 2 (d) : Dealer means any person who carries on the business of buying and selling goods in the State of Mysore whether for commission, remuneration or otherwise. Section 2 (k) Turnover means the aggregate amount for which goods are either bought by or sold by a dealer...... Explanation : Subject to such conditions and restrictions if any, as may be prescribed in this behalf : (1) the amount for which the goods are sold, shall in relation to a works contract be deemed to be the amount payable to the dealer for carrying out such contract less such portion as may be prescribed of such amount representing the usual proportion of the cost of labour to the cost of materials used in carrying out such contract.

7. The explanation to R. 1 (2) states that the amount to be deducted should "not exceed such percentage of the amount payable as may be fixed by the Government from time to time for different areas, representing the usual proportion in such areas of the cost of labour to the cost of materials used in carrying out such contract, subject to the maximum percentages. (a) in the case of an electrical contract 20 per cent. (b) " structural contract 30 per cent. (c) " sanitary contract 33.1/3 per cent. (d) " other contracts 30 per cent. By a notification dated 11-4-1952 Government has fixed percentages of the total cost at which deduction is to be allowed with respect to the contracts. This is not strictly in compliance with the requirement of the rule as what has to be fixed is the proportion between cost of labour and cost of material and not the deduction allowable for labour with reference to the total value of work carried out. The Rule also contemplates determination of rates from time to time and from area to area according to prevailing conditions. A uniform rate is prescribed for the whole State and for the first time in 1952 so that a doubt may reasonably arise about the Government having applied its mind to the local conditions, differences in wages and prices between one place and another and periodic fluctuations in these. This cannot be considered a defect which has prejudiced the petitioners as the maximum allowance permitted by the rules has been granted to them. The maximum, fixed by the above rule has raised to 75 per cent. by virtue of the amendment in a Notification dated 24-12-1955 and the percentage so fixed was made applicable to all contracts irrespective of their nature. The classification is however retained as shown by another notification of the same date.

8. There is force in the contention that the levy is arbitrary and leads to unreasonable discrimination. Though the Act purports to take the value of materials used for fulfilment of a contract, the value is not ascertained from the assessee, even if he is ready and willing to furnish satisfactory proof of it but is determined by means of a rigid formula which may entail an undeserved liability. The word "deemed" in the explanation to the rule suggests that the basis of assessment is not factual but fictional and the result is that a person is taxed not on what is actually paid for the articles but what is assumed to be paid. There is thus an element of artificiality and premature determination. The classification of contracts too for the purpose of assigning particular percentages appears to be rather rough and indefinite. Only three are of a specific kind and all file rest are included in the residuary category. The definition of "works contract" is comprehensive so as to bring works relating to immoveable as well as movable property within the field of taxation and so the relegation of all contracts excepting three to one class under the denomination of "other contracts" for being treated alike is tantamount at least in some cases to enforcing equality on what is unequal.

9. Fiscal enactments are not exempt from the ban against discrimination. See Southern Railway Co. v. Greene, (1910) 216 US 400 (E). In Stewart Dry Goods Co. v. Lewis, (1935) 294 US 550 at p. 562 (F), it was observed that "every taxing law must pass the constitutional test applied by the Courts to the method of imposition." The classification is not meant to be a mechanical formality devised in a haphazard manner as cover for raising money but must disclose differentiation pertinent to the burden being heavy in some cases and light in others. In State Of West Bengal v. Anwar Ali Sarkar,, AIR 1952 SC 75 (g), the section of the special courts act which enabled Government to constitute Special Courts and refer such cases as it thought fit to these Courts for trial was held to be repugnant to Art. 14. Justice Brewer pointed out in Gulf of Colorado and Santafe Rly. Co. v. Ellis, (1897) 165 US 150 at p. 165 (H) : "The mere fact of classification is not sufficient to relieve a Statute from the reach of the equality clause of the 14th Amendment and x x x x it must appear not only that a classification has been made but also that it is one based upon x x x x reasonable ground some difference which bears a just and proper relation to the attempted classification - and is not a mere arbitrary selection." The principle of equality may be offended on account of dissimilarity of treatment in like instances or same treatment in cases between which resemblance is lacking. Cumberland Coal Co. v. Board of Revision, (1931) 284 US 23 (I), is a case of the latter kind. It was considered that the deliberate and systematic assessment for taxation of all the coal lands in a township at the same sum per acre notwithstanding differences in actual or market value due to distances from transportation facilities and other factors, violates the equal protection clause of the 14th Amendment, although none of such lands are assessed for more than their fair market value. Chief Justice Hughes in the course of the judgment at page 29 said "The fact that a uniform percentage of assigned values is used, cannot be regarded as important if, in assigning the values to which the percentage is applied, a system is deliberately adopted which ignores differences in actual values so that property in the same class as that of the complaining taxpayer is valued at the same figure (according to the unit of valuation, as, for example, an acre) as the property of other owners which has an actual value admittedly higher. Applying the same ratio to the same assigned values, when the actual values differ creates the same disparity in effect as applying a different ratio to actual values when the latter are the same." The classification and the rule under which it is found, the notification issued in pursuance of the rule seem to have overlooked these factors in prescribing same percentages for all areas. It is common knowledge that skilled labour and goods of special design or manufacture cost more in some places than in others and that in some the two vary inversely.

10. Added to this is the incongruity between the definition of "works contract" and the explanation to Turnover and the explanation to R. 1. The definition is such as to bring within the purview of "works contract" contracts in which goods or materials may not be supplied or furnished by the contractor sought to be taxed. The rule does not afford him an opportunity to show this and subjects him to liability by imputing use of materials and by requiring valuation of these in a particular manner. The learned Advocate General did not suggest any interpretation of these to justify or explain the obvious unreasonableness and irreconcilability, of these. An application of these will lead to those using materials and those not using materials for execution of works being dealt with on a common footing. Contracts for execution of works are of varied types and there is no uniformity in the stipulations in all contracts. The contractor may in some be paid only for his services in advantageously utilising the articles secured by the other party for performance of the work and receive payment. The presumption generally attaching to validity of laws cannot be extended to justify provisions tending to such anomalies, inequalities and arbitrariness as persons being taxed on notional considerations shutting them out from representing the true nature and value of their transactions. This is repugnant to the principles of natural justice and Art. 14,

11. The orders of assessment are, therefore, quashed. As the point involved is novel and rather intricate, we direct parties to bear their own costs. Petitions allowed. AIR 1957 MYSORE 48 (V 44 C 26 April) "Channappa v. The State of Mysore" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA, C.J. AND HOMBE GOWDA, J. ( Division Bench ) R. Channappa and others, Petitioners v. The State of Mysore and another, Respondents. Writ Petns. Nos. 73, 76, 78, 84, 85, 87 to 89 of 1953 and 7 of 1954, D/- 12 -9 -1956. Constitution of India, Art.226 - WRITS - Granting of partial relief. Article 226 provides for making orders suited to the circumstances of a case and there is nothing against the grant of partial relief. The principle of separability applied to provisions of statutes found to be invalid may be adopted in petition under Art. 226 if petitioners are not prejudiced thereby. (Para 1) Anno : AIR Com., Const. of India, Art. 226 N. 2. G.S. Ullal, for Petitioners. Judgement VENKATARAMAIYA, C. J. :- The orders by which Sales Tax is levied on the transactions of petitioners in hides and skins and as works contracts are questioned as illegal in petitions filed under Art. 226 of the Constitution of India. Contentions raised by others solely against the levy regarding hides and skins have been dealt with in Writ Petitions Nos. 83, 86, 90 of 1953, 35, 36, 37, 41, 48 of 1954 and 24 of 1956*, and those regarding works contracts in Writ Petitions Nos. 65, 74, 75, 76, 89, 92, 93, 115, 116, 134 and 152 of 1954, 8, 23, 32, 56, 62, 66, 72, 117, 122, 142, 150, 178, 186 of 1955, 1, 4, 28, 29, 63, 69, 72, 107 and 144 of 1956*. * See AIR 1957 Mys 22 * See AIR 1957 Mys 45.

2. These petitions are grouped separately though the grounds urged are similar to those in the two sets abovementioned as there is dispute as to what is the appropriate order to be passed. As a result of the decisions in the aforesaid cases, the petitions are to be allowed so far as the assessment on work contract is concerned and to be dismissed as regards the taxation with respect to hides and skins. But the learned counsel for petitioners contends that such an order cannot be made and the only course open is to allow or dismiss the petitions wholly.

3. The contention would have had force if the assessment was based on the total of the turnover of works contract and dealings in hides and skins. It is admitted that these are not clubbed together and that the tax payable in regard to each is determined independently of the other. The decision about one cannot therefore affect the liability for the other. Article 226 provides for making orders suited to the circumstances of a case. Learned Counsel have not cited any authority against the grant of partial relief.

4. The principle of separability applied to provisions of statutes found to be invalid may be adopted if petitioners are not prejudiced thereby. The petitioners cannot make out how this will affect them adversely or offend any rule. It is, represented that petitioners have maintained the accounts relating to transactions in hides and skins separately from those pertaining to Works Contract and that if the orders are declared illegal in entirety and turnover on hides and skins are to be taxed afresh for the years in question, petitioners will escape liability owing to lapse of time.

5. In view of all this, the orders of levy so far as they relate to Works Contract are quashed and upheld in other respects. As Petitioners have succeeded and failed in part, we direct the parties to bear their own costs in all the cases. Petition partly allowed. AIR 1957 MYSORE 49 (V 44 C 27 May) "Mahamad Khasim v. State" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) Mahamad Khasim, Petitioner v. State of Mysore, Respondent. Criminal Revn. Petn. No. 204 of 1956, D/- 21 -9 -1956, against the conviction and sentence passed by the Special 1st Class Magistrate, Ramanagaram, D/- 11 -6 -1956. Criminal P.C. (5 of 1898), S.106 - BREACH OF PEACE - POLICE OFFICERS - "Other offence involving a breach of the peace". Mysore Police Act (5 of 1908), S.56(o). The words "involving a breach of the peace" appearing in S. 106 Cr. P. C., require that breach of the peace should be an ingredient of the offence, and not offences provoking or likely to lead to a breach of the peace; in other words, to justify an order under S. 106, Cr. P. C., a breach of the peace should be an ingredient of the offence, and the Court should give a finding that a breach of the peace had actually occurred. The use of Indecent language towards an individual in a public street cannot be said to be an offence necessarily involving a breach of the peace. Therefore where a person is convicted of an offence under S. 56(o) Mysore Police Act and there is neither a finding that a breach of the peace has actually occurred nor is it urged that the accused is a man of bad antecedents and was at any time guilty of a crime involving a breach of the peace, the order under S. 106, Criminal P. C., passed by the Magistrate cannot be supported. AIR 1950 Mad 31, Rel. on. (Paras 2, 3 and 4) Anno : AIR Com., Cr. P. C., S. 106, N. 2, 15. Cases Referred : Chronological Paras (A) AIR 1950 Mad 31 (V 37) : 51 Cri LJ 253 3 K. Ramachandra Rao, for Petitioner; Asst. Advocate-General, for Respondent. Judgement In this case, the petitioner stands convicted by the learned Special First Class Magistrate, Ramanagaram, in C. C. 800/56, for an offence under S. 56(O) of the Mysore Police Act, for having used indecent language in a public road at Ramanagaram Town, and sentenced to undergo simple imprisonment for eight days. In addition to this, the learned Magistrate directed that the accused should execute a bond in a sum of Rs. 300/- under S. 106 of the Cr. P. C., with two sureties for keeping the peace for a period of two years. This revision petition is admitted only for considering the propriety of the order passed by the learned Magistrate under S. 106, Cr. P. C.

2. The contention urged on the side of the petitioner is that the order under S. 106, Cr. P. C., cannot be sustained. I think that there is considerable force in this contention. Section 103, Cr. P. C., inter alia provides that a Court may, at the time of passing sentence, order an accused to execute a bond, with or without sureties, if he is convicted of offences involving breach of the peace and when the Court is of opinion that it is necessary to require the accused to execute such a bond. From a reading of the provisions of this section, I am of opinion that the order of the learned Magistrate cannot at all be justified. The words "involving a breach of the peace" appearing in section 106, Cr. P. C., require that breach of the peace should be an ingredient of the offence, and not offences provoking or likely to lead to a breach of the peace; in other words, to justify an order under S. 106, Cr. P. C., a breach of the peace should be an ingredient of the offence, and that before an order under this section is passed, the Court should give a finding that a breach of the peace had actually occurred.

3. The use of indecent language towards an individual in a public street with which the present petitioner was accused cannot be said to be an offence necessarily involving a breach of the peace, and this point was rightly conceded by the learned Advocate-General. The learned Magistrate also has not given any finding that a breach of the peace actually occurred. Under these circumstances, I think the order of the learned Magistrate under S. 106 of the Cr. P. C., cannot be supported. In this connection, I would also like to refer to a case of the Madras High Court reported in In re, Govindaswamy, 51 Cri LJ 253 : (AIR 1950 Mad 31) (A). In that case, the accused was prosecuted under S. 75 of the Madras City Police Act and was convicted. In addition to the conviction and sentence passed for that offence, the learned Magistrate also ordered under S. 106, Cr. P. C., that the accused should execute a bond for keeping the peace. It was decided in that case that there was no justification to make such an order and that the same was liable to be set aside.

4. It may also be stated in this connection that S. 75 of the Madras City Police Act is almost similar to S. 56(O) of the Mysore Police Act. In that case, the case against the accused was that he abused certain people in filthy and indecent language, as in this case. It is not urged that the petitioner is a man of bad antecedents and was at any time guilty of a crime involving a breach of the peace. Under these circumstances, I am of opinion that the order under S. 106, Cr. P. C., passed by the learned Magistrate has to be set aside.

5. In the result, the order of the learned Magistrate passed under S. 106 of the Cr. P. C., calling upon the petitioner to execute a bond with two sureties to keep the peace, is set aside and this revision petition is allowed to that extent. If the petitioner is already sent to Jail for not executing the bond, he is directed to be released forthwith, and if the bond is already executed, the same stands cancelled. Order accordingly. AIR 1957 MYSORE 50 (V 44 C 28 May) "In re Madegowda" MYSORE HIGH COURT Coram : 2 PADMANABHIAH AND SRINIVASA RAO, JJ. ( Division Bench ) In re Madegowda, Appellant. Criminal Appeal No. 76 of 1955, D/- 2 -8 -1956, against conviction and sentence passed by S.J., Mysore, in case No. 7 of 1955. (A) Evidence Act (1 of 1872), S.25 - CONFESSION - Scope - Proof of matter unconnected with confession. The prohibition enjoined by section is directed against proof of confessions made to a police officer. That section does not prohibit the proof of any other matter unconnected with the confession of the crime. (Para 5) Anno : C. J. I., Evi. Act, S.25, N.1. (B) Evidence Act (1 of 1872), S.25 - CONFESSION - OBJECT OF AN ACT - Scope - Statement by accused before he is implicated - Admissibility. A statement of an accused made to the police before he is actually implicated, and when that statement is taken down as the first information of the offence, is inadmissible under S. 25, as it amounts to confession. 1948 Lah 43, 193 IC 6 and 11 Mys LJ 438, Foll. (Para 6) Anno : C. J. I., Evid. Act, S. 25, N. 1. (C) Criminal P.C. (5 of 1898), S.164(3) and S.533 - CONFESSION - CRIMINAL PROCEEDINGS - Warning given after accused has made confession - Legality. Where the warning contemplated under S. 164 (3) has not been given before recording the confession but it is given after the accused has confessed the guilt, the procedure offends the provisions of S. 164 (3) and if it has also resulted in prejudice to the accused the confession must be held invalid. (Para 8) Anno : AIR Com., Cr. P. C., S. 164, N. 13; S. 533, N. 4, 9. (D) Criminal P.C. (5 of 1898), S.164(3) and S.533 - CONFESSION - CRIMINAL PROCEEDINGS - Omission to apprise accused of free atmosphere of Court - Effect. Evidence Act (1 of 1872), S.24. Omission on the part of the Magistrate who records the confession to apprise the accused before he commences recording it that he is in the free atmosphere of Magistrates Court, takes away much of the force of the confessional statement. (Para 8) Anno : AIR Com., Cr. P. C., S. 164, N. 11a; S. 533, N. 2, 4, 9; C. J. I., Evi. Act, S. 24, N. 15, 20. (E) Criminal P.C. (5 of 1898), S.164 - CONFESSION - Confessional statement - Value of. Evidence Act (1 of 1872), S.24. Much of the force of the confessional statement is taken away if what is stated in the confession was already known to the police before the confession was recorded. (Para 9) Anno : AIR Com., Cr. P. C., S. 164, N. 17; C. J. I., Evi. Act, S. 24, N. 15, 20. (F) Criminal P.C. (5 of 1898), S.164 and S.533 - CONFESSION - CRIMINAL PROCEEDINGS - Accused subjected to cross-examination - Regularity of procedure. It is a serious irregularity in recording if the questions put by the Magistrate to the accused during the course of recording and the answers elicited, indicate that the accused was subjected to a kind of cross-examination at the hands of the Magistrate. (Para 9) Anno : AIR Com., Cr. P. C., S. 164, N. 11, 15; S. 533, N. 2, 4, 9. Evidence Act (1 of 1872), S.5. In cases dependent on circumstantial evidence, to justify the conclusion of guilt the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. (Para 10) Anno : AIR Com., Cr. P. C., S. 367, N. 6; C. J. I., Evi. Act, S. 5, N. 16. Cases Referred : Chronological Paras (A) AIR 1948 Lah 43 (V 35) : 48 Cri LJ 977 6 (B) AIR 1941 Nag 86 (V 28) : 193 Ind Cas 6 6 (C) 11 Mys LJ 438 6 (D) 17 Mys LJ 238 8, 9 (E) AIR 1954 SC 660 (V 41) : 1954 Cri LJ 1679 10 (F) AIR 1952 SC 343 : 1953 Cri LJ 129 10 (G) 7 Mys LJ 95 10 (H) 8 Mys LJ 379 10

(I) AIR 1955 Mys 119 (V 42) : ILR (1955) Mys 372 10 B.Y. Neelegowda, for Appellant; Addl. Asst. Advocate-General, for Respondent. Judgement PADMANABHIAH, J. :- The present appellant, who was A-1 in Mandya Sessions Case No. 7 of 1955, stands convicted and sentenced to undergo rigorous imprisonment for five years by the learned Sessions Judge, Mysore Division, for an offence under S. 326 of the Indian Penal Code, and the case for the prosecution was that he (appellant-accused) on the night of 21-1-1955 assaulted his co-brother Manche Gowda alias Kenge Gowda with an axe M. O. 1 at Mullahalli and Malavalli Taluk and that he thus caused grievous hurt to the deceased punishable under S. 326, I. P. C.

2. Along with the appellant, there were 10 other persons who were also arraigned as accused, the case against them being that they intentionally caused the death of the said Manchegowda alias Kenge Gowda in furtherance of their common intention and that they thereby committed an offence under S. 302, I. P. C., read with S. 34, I. P. C. Accused 2 to 11 have been acquitted by the learned Sessions Judge and therefore we will concern ourselves only with the conviction of the present appellant.

3. The main point that arises for consideration is whether the guilt has been brought home to the appellant. From a perusal of the evidence, it appears to us that the conviction of the appellant cannot be sustained. Admittedly there is no direct evidence to implicate the appellant with the offence alleged. The conviction has been based on some unsatisfactory circumstantial evidence and on the alleged admissions of the appellant. The materials made use of by the learned Sessions Judge for convicting the appellant are Ext. P-10, an alleged statement of the appellant given before P. W. 4, the Sub-Inspector of Police in the Police Station at Malavalli, Ext. P-30, an alleged confession made by the accused in the presence of P.W. 22 the then First Class Magistrate, Mandya, and on the seizure of a blood-stained axe M. O. 1 from the possession of the accused. We will now proceed to consider the probative value of these statements and circumstances and see whether on the basis of these materials, the conviction of the appellant can be sustained. In our view, the learned Sessions Judge was not right in convicting the appellant on these doubtful materials.

4. The appellant is said to have appeared before P. W. 4 in the Police Station at Malavalli at 1-30 A.M. on 21-1-55, the date of the occurrence, and made a statement as contained in Ext. P-10, the admissible portion of which is said to prove the presence of the accused on the scene of occurrence with the deceased, and the ill-will that existed between the accused and the deceased. The contention urged on the side of the defence is that the statement as found in Ext. P-10 is inadmissible under S. 25 of the Indian Evidence Act. We are not in full agreement with the proposition of law enunciated by the learned counsel for the accused.

5. Section 25 of the Evidence Act runs thus :- "No confession made to a police officer shall be proved as against a person accused of any offence." According to this section, no confession made to a police officer shall be proved as against a person accused of an offence except to the limited extent as provided in S. 27 of the Evidence Act. Therefore the prohibition enjoined by S. 25 of the Evidence Act is directed against proof of confessions made to a police officer. That section does not prohibit the proof of any other matter unconnected with the confession of the crime.

6. The admissibility of Ext. P-10 or its validity cannot be questioned under S. 25 of the Evidence Act inasmuch as the portion in the nature of a confession of guilt by the accused has been excluded from consideration by the learned Sessions Judge and he has not made use of any such confession in convicting the present appellant. From the admissible portion of Ext. P-10, the learned Sessions Judge seems to have inferred the guilt of the appellant. We do not think that such a course as adopted by the learned Sessions Judge is irregular though we may not agree with him that Ext. P-10 gives rise to any such inference. We are, also unable to countenance the argument advanced on the side of the prosecution that any statement of an accused made to the police before he is actually implicated, and when that statement is taken down as the first information of the offence, would not become inadmissible under S. 25 of the Evidence Act. In this connection, we may refer to a case reported in Lal Khan v. Emperor, AIR 1948 Lah 43 (A). Their Lordships of the Lahore High Court have therein held that where an accused person himself makes a statement which is taken down as a first information report, the statement is inadmissible against the accused as it amounts to a confession to a police officer. We would also like to refer to a case of the Nagpur High Court reported in Bharosa Ramdayal v. Emperor, 193 Ind Cas 6 : (AIR 1941 Nag 86) (B), which was also a case where the accused after committing murder went to the Police Station and lodged the first information of the crime and that report contained statements in the nature of confessions and also statements having no connection with the actual narrative of the crime. Their Lordships held that statements in the nature of confessions cannot be admitted. Again, a case of this Court in 11 Mys LJ 438 (C), further goes to negative the contention urged on the side of the prosecution that a confession made to a police officer by a person when he is not accused of any offence is admissible subsequently when he is accused of an offence. Their Lordships of this Court have held to the contrary in the above case.

7. The fact of the appellant having appeared before P.W. 4 on 21-1-55 as alleged on the side of the prosecution appears to us highly doubtful. In this connection, we would like to refer to the evidence of the Investigating Officer, P.W. 26. He has stated that his investigation did not disclose two distinct offences against A-1 on the one side and A-2 to 11 on the other, and that the offence committed by this accused was during the course of the same transaction; and it was also conceded by the learned Assistant Advocate-General at the time of arguments that there were not two incidents but only one incident in which all these accused took part. It is significant to note that none of the witnesses who have been examined for the prosecution in support of the charge against A-2 to A-11 have made any reference to the presence of A-1 on the scene of occurrence or to his having taken part in the assault on the deceased. It was not even suggested either in the trial Court or in this Court that the prosecution witnesses have been won over by A-1. Therefore the non-mention of the name of the accused by these witnesses as one of the assailants goes to conclusively establish that the appellant did not take any part in the assault against the deceased. When that is so, we very much doubt whether the appellant would have gone to the police station and given a statement as contained in Ext. P.10. Under these circumstances, we are of the view that no adverse inference can be drawn against the appellant from what is contained in Ext. P. 10.

8. Coming to the next document, Ext. P-30, we think that this also does not help the case for the prosecution. In recording Ext. P-30 the learned Magistrate, P. W. 22 has not complied with the provisions of S. 164 of the Criminal Procedure Code. S. 164 (3) inter alia provides that a Magistrate shall before recording a confession explain to the person making it that he is not bound to make a confession and that if he does so, it may be used as evidence against him. In the present case, from a perusal of Ext. P-30 it is seen that the warning contemplated under S. 164 (3) has not been given before recording the confession but that it is given after the accused had confessed the guilt. The possibility of the accused refraining from making the confession if the warning had been given previously as contemplated under S. 164 (3) cannot be ruled out. The way in which the confession has been recorded offends the provisions of S. 164 (3) of the Criminal Procedure Code and has also resulted in prejudice to the accused and therefore the confession Ext. P-30 must be held invalid. Further it is seen from Ext. P-30 that the learned Magistrate who recorded the confession did not apprise the accused before he commenced recording it that the accused was in the free atmosphere of a Magistrates Court. That such a fact should be made known to the accused is expounded in the case reported in 17 Mys LJ 238 (D). This omission on the part of the learned Magistrate seems to take away much of the force of the confession statement.

9. Another circumstance which goes to minimise the importance of Ext. P-30 is that the confession of the accused has been recorded at a time when the police were in the know of facts mentioned in the confession. As sworn to by the Sub-Inspector of Police P.W.4, the accused was arrested at about 4-30 A.M. on 21-1-55. He was produced by P.W. 26, the Investigating Officer, before the Magistrate P.W. 22 on 27-1-1955. As disclosed in the evidence of the Investigating Officer, he had examined most of the material witnesses by that date. The observation of the learned Judges of this Court in the case cited above, 17 Mys LJ 238 (D), to the effect that much of the force of the confession statement is taken away if what is stated in the confession was already known to the police before the confession was recorded, applies to this confession with all force. The manner in which the questions were put by the learned Magistrate P.W. 22 to the accused during the course of recording Ext. P-30 and the answers elicited, indicate that the accused was subjected to a kind of cross-examination at the hands of the learned Magistrate. It is really surprising that a Magistrate of the standing of P.W. 22 should have committed these serious irregularities in recording such a simple confession as Ext. P-30.

10. M.O. 1 is the axe said to have been surrendered by the accused to the police when he appeared before the police on 21-1-55. For reasons already mentioned, we have doubted the very fact of the accused having appeared before P.W. 4. Even assuming that the accused was found in the possession of M.O. 1, it cannot be concluded in the absence of other corroborative evidence that the appellant assaulted the deceased with M.O. 1. No doubt, the evidence discloses that the deceased was keeping the wife of the accused and that there were some misunderstandings between the two in that connection. Assuming that it is so, that by itself cannot give rise to the inference that the said ill will prompted the accused to assault the deceased in the way he is said to have done. The various circumstances relied on by the prosecution and which found favour with the learned Sessions Judge, do not, in our opinion, establish the guilt of the appellant beyond doubt. The nature of circumstantial evidence required to be the basis of a conviction is laid down in Kedar Nath Bajoria v. State Of West Bengal, AIR 1954 SC 660 (E) and Hanmant Govind v. State of M.P., AIR 1952 SC 343 (F). Again we have got rulings of this Court on the same point reported in 7 Mys LJ 95 (G), : 8 Mys LJ 079 and In re Chikka Byre Gowda, ILR (1955) Mys 372 : (AIR 1955 Mys 119) (I), wherein it is pointed out that in cases dependent on circumstantial evidence, to justify the conclusion of guilt the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. In this case, the circumstantial evidence does not come up to the standard indicated in the above decisions. The evidence does not exclude the possibility of the accused being innocent. At any rate, we entertain much doubt regarding the complicity of the accused in the offence alleged against him, and he is therefore entitled to the benefit of that doubt.

11. In the result, the conviction of the appellant and the sentence passed on him are set aside and the accused stands acquitted. This appeal is allowed and the bail bonds are cancelled. Appeal allowed. AIR 1957 MYSORE 52 (V 44 C 29 May) "Siddappa v. State" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) Siddappa, Petitioner v. State of Mysore, Respondent. Criminal Revn. Petn. No. 207 of 1956, D/- 21 -9 -1956, against the order of City Magistrate, Mysore, D/- 10 -5 -1956. (A) Criminal P.C. (5 of 1898), S.386 - WARRANT - Offender undergoing whole term of imprisonment in default - Levy of fine. It is not correct to say that under no circumstances the State can recover the fine when the default sentence is undergone. The proviso to S. 386 enables a warrant, to be issued for recovery of fine if the whole default sentence has been served and if the Court considers that there are special reasons for issuing the warrant. This proviso thus negatives the contention that under no circumstance can a warrant for recovery of fine be issued when the default sentence is fully served. What is made obligatory when a Magistrate issues a warrant for the recovery of fine under these circumstances is that he should have special reasons for issuing the warrant and that he should record them. It is wrong to think that serving the full term of imprisonment fixed for default in payment of fine extinguishes the liability to pay the fine; and the imprisonment imposed in default of payment of fine should not be taken as a discharge of the liability but only as a reasonable punishment for the non-payment of fine. (Paras 7 and 8) Anno : AIR Com., Cr. P. C., S. 386, N. 4. (B) Criminal P.C. (5 of 1898), S.386 - WARRANT - Offender undergoing whole term of imprisonment in default - Levy of fine - "Special reasons" - Nature of. The special reasons referred to in the proviso to S. 386 (1) must necessarily relate, in view of the wording of that section, to reasons accounting for the fact of the non-recovery of the fine before the default sentence has been served, or any other reason in that behalf. The proviso seems to contemplate cases in which for sufficient reasons the authorities have not been able to realise the fine before the default sentence is served, and this proviso has to be availed of by them when for no default or negligence of their own, they are unable to recover the fine, as, for example, they not being aware of the offender owning property before the default sentence is served, or his having come into possession of property subsequently, or his having resisted the execution of the warrant or refusal to pay the fine having had the means to pay or that the State had no time to execute the warrant or for such other reason. AIR 1935 Bom 160, Rel. on. (Para 9) Anno : AIR Com., Cr. P. C., S. 386, N. 4. (C) Criminal P.C. (5 of 1898), S.386 - WARRANT - Offender undergoing whole term of imprisonment in default - Levy of fine - "Special reasons" - Payment of compensation to complainant is not one of such reasons. Reasons like, that the offender is of a dangerous character or that the offence is of a serious nature or that the complainant has been awarded compensation out of the fine amount are not sufficient for issuing a warrant for recovery of fine when once the default sentence is fully served out. AIR 1935 Bom 160, Rel. on. (Para 10) Anno : AIR Com., Cr. P. C., S. 386, N. 4. (D) Criminal P.C. (5 of 1898), S.386 - WARRANT - "May take action". It is not a correct proposition of law to say that it is not the duty of the Court to take steps to recover the fine but that it is the duty of the offender to pay up the fine and get himself released. S. 386, Cr. P. C., casts a duty on the State to recover a fine imposed on an offender by a Court of law. It is the primary duty of the Court sentencing an offender to fine, to make attempts to recover the fine in the first instance and make the offender to undergo imprisonment only in the event of his failure to pay the same. (Para 12) Anno : AIR Com., Cr. P. C., S. 386, N. 6. (E) Criminal P.C. (5 of 1898), S.388(1) - OBJECT OF AN ACT - SENTENCE SUSPENSION - Scope. Section 388(1) applies to cases where an offender is sentenced to fine only, and is not applicable to cases where imprisonment and fine are imposed on an offender. Hence the Court is not bound to release the accused after the expiry of the substantive sentence of imprisonment so that he might make arrangements to pay up the fine. AIR 1934 Rang 11, Rel. on. (Para 13) Anno : AIR Com., Cr. P. C., S. 388, N. 2. Cases Referred : Chronological Paras (A) AIR 1954 Mys 119 (V 41) : 1954 Cri LJ 1235 : Criminal Revn. Petn. No. 73 of 1953, D/- 30-9-1953 3 (B) AIR 1935 Bom 160 (V 22) : ILR 59 Bom 350 : 36 Cri LJ 1034 9, 10 (C) (36) 15 Mys LJ 334 12 (D) AIR 1934 Rang 11 (V 21) : 35 Cri LJ 608 13 N.K. Subbaraya, for Petitioner; Asst. Advocate-General, for Respondent. Judgement This is a revision petition preferred by the petitioner-accused against the order of the learned City Magistrate, Mysore, in C.C. 606/51-52 refusing to withdraw the warrant issued by him for the recovery of the fine imposed on the petitioner.

2. The facts that have given rise to this petition are briefly as follows :-

3. The petitioner was the accused in C.C. 606 of 1951-52 on the file of the learned City Magistrate, Mysore. He was prosecuted for offences under Ss. 465 and 500, I.P.C. The learned Magistrate ultimately convicted the petitioner for an offence under S. 465, I.P.C., and sentenced him to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 1,000 and in default to undergo rigorous imprisonment for a further period of six months. On appeal to the learned Sessions Judge, the said conviction and sentence were confirmed. Then a revision petition preferred by the petitioner to this Court in L.K. Siddappa v. Lalithamma, Criminal Revn. Petn. No. 73 of 1953, (AIR 1954 Mys 119) (A), was also dismissed on 30-9-53. He was committed to jail on 10-10-53 and he underwent the substantive sentence of imprisonment. He also underwent the imprisonment fixed for default in payment of fine. He was released from jail on 16-2-55. Subsequently the learned City Magistrate issued a warrant for the recovery of the fine. The petitioner applied for its withdrawal and the learned Magistrate refused to do so. As against that order, this revision petition is preferred.

4. The contentions urged on the side of the petitioner are that both before the expiry of the substantive sentence of imprisonment and after, the petitioner notified the learned Magistrate that he (petitioner) owned properties, that facilities may be created to him to pay up the fine, that the learned Magistrate failed to comply, that he also failed to take steps to recover the fine before the substantive sentence of imprisonment and the imprisonment imposed for non-payment of fine expired, that due to these omissions on the part of the Court, the petitioner was compelled to undergo the imprisonment imposed for default in payment of fine, that he has undergone the full period of default sentence, that S. 386, Cr. P. C., is a bar to the recovery of fine, that the reasons given by the learned Magistrate for the issue of the warrant are not valid, that he was not liable to pay the fine as he had undergone the full default sentence and that the warrant was and is liable to be withdrawn.

5. The respondent-Government oppose the application. On the main facts in the case, there is no dispute. It is conceded on the side of the respondent-State Government that the petitioner has undergone the full period of imprisonment awarded for non-payment of fine. It is also admitted that the petitioner made an application on 2-8-54, i.e., before the substantive sentence of imprisonment expired, and again another on 25-8-54, subsequently, bringing to the notice of the learned Magistrate that he (petitioner) had properties and that he may be released so that he might make arrangements for payment of the fine amount. It is seen that no immediate orders were passed on these applications and that the learned Magistrate finally passed an order on 30-9-54 saying that steps may be taken to recover the fine amount after the default sentence was undergone. He also ordered the withdrawal of the warrant that was issued saying that it was not necessary at that stage.

6. The main points that arise for consideration are :

1. whether it is not open to the Court to issue a warrant for the recovery of fine when the whole period of default sentence is served;

2. whether the reasons given by the learned Magistrate for issuing the warrant in question are sufficient to justify the issue of the warrant after the default sentence had fully been served;

3. whether the petitioner was entitled to be released after the substantive sentence of imprisonment had been served so that he might make arrangements for payment of the fine; and

4. whether the State were not bound to take steps to recover the fine before the default sentence was served. I would like to take these contentions one by one and dispose of the same.

7. I am of opinion that the first ground urged on the side of the petitioner, that the State is not at all entitled to issue a warrant for the recovery of fine after the full default sentence is served, is without any substance. The statement that it is not open for the State to recover the fine when once the default sentence is served out is too unqualified a statement, and it is not correct to say that under no circumstances the State can recover the fine when the default sentence is undergone. The relevant provision dealing with this question is S. 386 (1) of the Criminal Procedure Code : that sub-section reads thus : "Whenever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may - (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; (b) issue a warrant to the Collector of the District authorising him to realise the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter; Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless for special reasons to be recorded in writing it considers it necessary to do so." It appears to me that the policy underlying this section is that generally an offender ought not to be required both to pay the fine and serve the sentence in default. The requirement under the proviso that special reasons should be given in cases where a warrant is issued for recovery of fine when the full default sentence is undergone goes to indicate that the Legislature must have felt that it is undesirable and unfair to realise the fine and that the same should not be levied when once the imprisonment imposed in default of payment of fine has been served. But the proviso enables a warrant to be issued for recovery of fine if the whole default sentence has been served and if the Court considers that there are special reasons for issuing the warrant. Thus it is seen that this proviso negatives the contention that under no circumstance can a warrant for recovery of fine be issued when the default sentence is fully served. What is made obligatory when a Magistrate issues a warrant for the recovery of fine under these circumstances is that he should have special reasons for issuing the warrant and that he should record them.

8. It is wrong to think that serving the full term of imprisonment fixed for default in payment of fine extinguishes the liability to pay the fine; and the imprisonment imposed in default of payment of fine should not be taken as a discharge of the liability but only as a reasonable punishment for the non-payment of fine.

9. The next point that arises for consideration is the nature of the "special reasons" contemplated under S. 386 of the Criminal Procedure Code. Unfortunately the section does not give any indication as to the nature of the "special reasons" in respect of which the proviso can be applied. It appears to me that the special reasons referred to in that subsection must necessarily relate, in view of the wording of that section to reasons accounting for the fact of the non-recovery of the fine before the default sentence has been served, or any other reason in that behalf. In this connection, I would like to refer to a case of the Bombay High Court reported in Digambar v. Emperor, ILR 59 Bom 350 : (AIR 1935 Bom 160) (B). The term "special reason" has been interpreted in that decision as reasons accounting for the fact that the fine has not been recovered before the default sentence has been served out and any other reason which is directed to that point would also be relevant. The proviso seems to me to contemplate cases in which for sufficient reasons the authorities have not been able to realise the fine before the default sentence is served, and this proviso has to be availed of by them when for no fault or negligence of their own, they are unable to recover the fine, as, for example, they not being aware of the offender owning property before the default sentence is served, or his having come into possession of property subsequently, or his having resisted the execution of the warrant or refusal to pay the fine having had the means to pay or that the State had no time to execute the warrant or for such other reason.

10. The next point to be considered is whether any such ground existed in the present case to justify the learned Magistrate to issue the warrant in question. The reason given by the learned Magistrate in issuing the present warrant dated 26-2-55 is that the complainant in the case was ordered to be paid Rs. 500 out of the fine imposed on the petitioner. The point for determination is whether this is a sufficient reason within the meaning of the proviso to S. 386 of the Criminal Procedure Code. I have already pointed out what the special reasons referred to in the proviso to S. 386 should be, and I am of opinion that the payment of compensation to the complainant would not be one of such reasons. On the other hand, I am of opinion that the order that a portion of the fine had to be paid to the complainant as compensation was still more the reason for the State to have issued the warrant earlier before the default sentence was served. In the Bombay case already referred to, i.e., ILR 59 Bom 350 : (AIR 1935 Bom 160) (B), it is pointed out that the payment of compensation is not a relevant factor to be considered nor can it be considered a sufficient reason for issuing the warrant for the recovery of fine when the full default sentence is undergone. Therefore, reasons like, that the offender is of a dangerous character or that the offence is of a serious nature or that the complainant has been awarded compensation out of the fine amount are not, in my opinion, sufficient for issuing a warrant for recovery of fine when once the default sentence is fully served out.

11. In the present case, I am of opinion that the non-recovery of fine before the default sentence was served is mainly due to the inaction on the part of the respondent-State. Admittedly the petitioner made two applications to the learned Magistrate bringing to his notice that the (petitioner) had properties. In spite of this knowledge on the part of the State they did not choose to take steps to recover the fine before the default sentence was undergone. As a matter of fact, two warrants were issued before the default sentence commenced to run : the first warrant was issued on 14-10-55 and that was returned unexecuted on the ground that there were only ladies and children in the house of the petitioner. I do not know why the State did not pursue the matter and failed to recover the fine. The petitioner had both movable and immovable properties to the knowledge of the respondent-State. They could have very easily recovered the fine amount if they had only made up their mind. The second warrant issued on 2-7-54 was also not executed. The warrant with which we are now concerned is the warrant dated 26-2-55 which has been issued after the default sentence has fully been served. The learned Magistrate did not pass orders immediately on the two petitions filed by the petitioner and he ultimately passed an order on 30-9-54, not to the effect that the fine may be recovered but to the effect that the fine may be recovered after the default sentence was served out. This order of the learned Magistrate is neither proper nor valid, and is against the spirit of S. 386, Cr. P. C.

12. It was next contended that it is not the duty of the Court to take steps to recover the fine but that it is the duty of the offender to pay up the fine and get himself released. I do not think that this is a correct proposition of law. S. 386 of the Criminal Procedure Code speaks of recovery of the fine. It provides that whenever an offender has been sentenced to pay a fine the Court passing the sentence may take action for the recovery of the fine. It appears to me that S. 386, Cr. P. C., casts a duty on the State to recover a fine imposed on an offender by a Court of law. As pointed out in the case reported in In re. B.R. Krishna Murthy, 15 Mys LJ 334 (C), it is the primary duty of the Court sentencing an offender to fine, to make attempts to recover the fine in the first instance and make the offender to undergo imprisonment only in the event of his failure to pay the same. Therefore, though the State were aware even before the default sentence commenced to run that the petitioner was possessed of property, that he was also willing to pay up the fine and that he had no objection for the State to recover the fine, yet they failed to take steps to recover the same. Under these circumstances, I am of opinion that the learned Magistrate had no justification to issue the warrant in question.

13. There is no substance in the contention of the accused that the Court was bound to release him after the expiry of the substantive sentence of imprisonment so that he might make arrangements to pay up the fine : and reliance is placed on S. 388 (1), Cr. P. C., in support of the above contention. As can be seen from the clear wording of that section, that provision applies to cases where an offender is sentenced to fine only, and is not applicable to cases where imprisonment and fine are imposed on an offender. This is the principle enunciated in the case reported in Emperor v. Mohamed, AIR 1954 Rang 11 (D). For these various reasons, I am of opinion that the order of the learned Magistrate issuing the warrant in question is liable to be set aside.

14. In the result, the order of the learned Magistrate is set aside and this revision petition is allowed. Order set aside. AIR 1957 MYSORE 55 (V 44 C 30 May) "Samaraj v. Kuppuswamy" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) Samaraj, Petitioner v. Kuppuswamy, Respondent. Civil Revn. Petn. No. 426 of 1954, D/- 5 -9 -1956, against the decision of Sub. J., Civil Station, Bangalore, D/- 4 -6 -1954. (A) Contract Act (9 of 1872), S.151 - CONTRACT - Care required of a bailee - Standard of. Under S. 151, the standard of care or diligence required of a bailee is, no doubt, that of an average prudent man in respect of his own goods of the same bulk and value in similar circumstances, but no hard and fast rule can be laid down for fixing the measure of care due from the bailee, and that should variably depend upon the facts of each case. (Para 6) Thus leaving a cycle hired for few hours in an open yard of a Court in charge of an individual like a contractor who, in his turn, leaves the stand in charge of two boys, without even taking the elementary care of locking the bicycle, and keeping the bicycle in the stand for nearly four hours does not amount to the care that is prescribed by S. 151. The fact that many others act in the same way as the bailee has done, cannot bring the care taken by him within the meaning of care prescribed under the section. (Para 7) It always involved a risk to the knowledge of the person keeping it there which risk a bailee is not expected to take with respect to the articles bailed. The person is, therefore, guilty of negligence in leaving the bicycle in the stand under the circumstances. (Para 7) Anno : AIR Man., Contract Act, Ss. 151, 152, N. 6. (B) Evidence Act (1 of 1872), S.106 - Contract Act (9 of 1872), S.151, S.152 - EVIDENCE - CONTRACT - BAIL - Loss of goods by bailee - Burden of proof. Where A hires temporarily a bicycle from B and alleges that he has lost it, the burden of proof of showing that the bicycle hired was lost is on A as it is a fact which is purely within the knowledge of A and as B cannot be expected to know which bicycle is lost and under what circumstances. (Para 8) Anno : C. J. I., Evidence Act, S. 106, N. 17; AIR Man. Cont. Act, Ss. 151-152, N. 8. C. Sharada for N.K. Gopaliengar, for Petitioner; E.V. Mathew, for Respondent. Judgement This is a revision petition preferred by the petitioner-plaintiff against the judgment of the learned Subordinate Judge, Civil Station, Bangalore, in S. C. No. 52 of 52-53 dismissing his suit filed against the respondent.

2. The facts that have given rise to this petition are briefly as under :

3. The petitioner was the plaintiff and the respondent the defendant in the lower Court. The plaintiff is a Cycle Shop owner having his place of business in Cavalry Road, Civil Station, Bangalore. The defendant is a merchant residing in the same area. On 3-12-51 the defendant hired from the plaintiff a Hercules Bicycle bearing No. J. 6956 with other accessories attached, to it. The defendant took delivery of the bicycle but he failed to return the same or to pay the hire. When demanded the defendant said that he had lost the bicycle whereupon the plaintiff filed the present suit claiming in all Rs. 390/- towards the price of the bicycle and the hire due to the plaintiff from 3-12-51 up to the date of suit.

4. The defendant admitted having hired the bicycle from the plaintiff but he contended that after having taken the bicycle he went to the Court leaving the bicycle in the Cycle stand in the custody of the Contractor in charge of the stand that after returning he found the cycle missing and could not trace it in spite of serious attempts in that behalf, that he took all the care that a prudent man would take under the circumstances and that he cannot be held liable for the value of the bicycle. He further contended that the loss of the bicycle was due to circumstances beyond his control, that the value claimed in the suit was excessive and that the suit was liable to be dismissed.

5. In reply the plaintiff stated that he does not admit the defendant having left the cycle in the stand and of his having lost it and that even if those allegations were true, the defendant could not be exonerated from his liability to account to the plaintiff for the loss of the bicycle. The learned Subordinate Judge held that the liability of the defendant was that of a bailee under S. 151 of the Contract Act, that the defendant had taken such care as any prudent man would take in respect of the bicycle, that the loss was due to causes beyond the control of the defendant and that he was not liable for the claim, and he accordingly dismissed the plaintiffs suit. As against that decision, this revision petition is filed.

6. I agree with the finding of the learned Judge that the liability of the defendant was that of a bailee under S. 151 of the Contract Act. A Bailment is defined under S. 148 of the Contract Act as "the delivery of goods by one person to another for some purpose upon a contract that they shall when the purpose is accomplished be returned or otherwise disposed of according to the directions of the person delivering them." In this case, the cycle was hired to the defendant by the plaintiff for the specified purpose of defendants use for a few hours and then to be returned to the plaintiff. But I am not in agreement with the finding of the learned Judge that the defendant had taken such care of the bicycle as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same nature and value. It is only when the care as contemplated under S. 151 of the Contract Act is taken that a bailee will be exonerated from all liability for loss, destruction or deterioration of the thing bailed under S. 152 of the Contract Act. Under S. 151, the standard of care or diligence I required of a bailee is, no doubt, that of an average I prudent man in respect of his own goods of the same bulk and value in similar circumstances, but no hard and fast rule can be laid down for fixing the measure of care due from the bailee, and that should invariably depend upon the facts of each case.

7. Now the point to be considered is whether the defendant took as much care of the bicycle as a man of ordinary prudence would under similar circumstances take of his own goods. In this particular case what the defendant did was to leave the bicycle in the cycle stand provided near the courts in charge of the Contractor there. It is admitted that the Stand is situated in an open space which is accessible to one and all and that hundreds of bicycles will be parked there. It may be that most of the persons leave their bicycles to the care of the contractor in the stand as has been done by this defendant. But in my opinion this is not the care that is expected of an ordinary prudent man in dealing with an article like the one on hand i.e. a bicycle. Leaving a bicycle in such an open yard in charge of an individual like the contractor who in his turn had left the stand in charge of two boys, without even taking the elementary care of locking the bicycle, and keeping the bicycle in the Stand for nearly four hours as in this case (from 11 A. M. to 3 P. M.) does not amount to the care that is prescribed by S. 151 of the Contract Act. The fact that many others act in the same way as the defendant has done, cannot bring the care taken by the defendant within the meaning of care prescribed under S. 151 of the Contract Act. Leaving a bicycle in the stand under the circumstances stated above always involves a risk to the knowledge of the person keeping it there which risk a bailee is not expected to take with respect to the articles bailed. The defendant was, therefore, in my opinion, guilty of negligence in leaving the bicycle in the stand under the circumstances mentioned above. Hence I hold that the defendant did not take the care prescribed under S. 151 of the Contract Act in respect of the bicycle bailed to him by the plaintiff and that he is liable for the value of the said bicycle.

8. There is another aspect which deserves to be considered. It need hardly be stated that the burden of proof of showing that the bicycle hired from the plaintiff was lost, was on the defendant and this burden has not been discharged. It was contended by the learned counsel for the defendant that the loss of the bicycle is not disputed by the plaintiff. This is not a correct statement. Both in the plaint and in the reply statement the plaintiff has stated that he does not know about the loss of the bicycle pleaded by the defendant. That is a fact which was purely within the knowledge of the defendant, and the plaintiff cannot be expected to know which bicycle was lost and under what circumstances. In the plaint the plaintiff has given the name and number of the bicycle hired as Hercules bearing No. J. 6956 and this is admitted by the defendant. The defendant has not proved that this was the bicycle that he left in the cycle stand and that it was this bicycle that was lost. Exhibit III is said to be the token given by the Contractor to the defendant for having taken custody of the bicycle. That token does not give the number or any other particulars of the bicycle. Therefore, in my opinion, the identity of the bicycle that was left by the defendant has not been established as the one which the defendant hired from the plaintiff. In any view of the case, I think that the plaintiff is entitled to succeed.

9. It may not be necessary in this case to decide the responsibility of the Contractor of the Cycle Stand or the relationship that is created between the contractor and the defendant or the nature of the liability that the Contractor has incurred towards the defendant. As admitted by the defendant, the loss of the bicycle was due to the negligence of the Contractor. It is open to the defendant to take such steps as may be necessary against the contractor if so advised. We cannot find fault with the plaintiff for not impleading the contractor in this suit inasmuch as there is no privity of contract between the two.

10. Exhibit A is the bill showing the value of the bicycle in question. That the bicycle was fixed with a dynamo light is not disputed. What the defendant has stated is that the value of the cycle and its accessories has purposely been exaggerated. Except this bare statement there is nothing to show that it was so. The Cycle that was purchased by the plaintiff on 19-1-1951 has been lost a few months later and it cannot be said that the claim is exorbitant or excessive. I think that the plaintiff is entitled to the value of the bicycle as found in Ext. A and to the value of the dynamo which is put as Rs. 30/- odd in the plaint. The plaintiff will have a decree for Rs. 306-3-6 as claimed in the plaint towards the value of the bicycle and the dynamo lamp. Inasmuch as the plaintiff gets a decree for the value of the bicycle, he is not entitled to the amount claimed in the plaint by way of hire.

12. In the result, this petition is allowed and the judgment and decree of the learned Subordinate Judge are reversed and the plaintiffs suit stands decreed for Rs. 306-3-6 with proportionate costs and current interest at the rate of 6% per annum on the above sum from the date of suit up to the date of realisation. Petition allowed. AIR 1957 MYSORE 57 (V 44 C 31 Aug.) "Nanjamma v. Bette Gowda" MYSORE HIGH COURT Coram : 2 PADMANABHIAH AND SREENIVASA RAO, JJ. ( Division Bench ) Nanjamma, Petitioner v. Bette Gowda and others, Respondents. Civil Revn. Petn. No. 577/54, D/- 1 -10 -1956. (A) Mysore Agriculturists Relief Act (18 of 1928), S.2 - DEBT RELIEF - RECOVERY OF DEBT - WORDS AND PHRASES - Debt Laws - Agriculturist who is - Ordinarily meaning of. Words and Phrases. The word ordinarily in S. 2 means regularly and habitually and not occasionally. AIR 1931 Bom 284 and C. R. P. No. 514 of 1954 (Mys), Rel. on. (Para 5) Therefore, a person to come under S. 2 of the Agriculturists Relief Act must be one who regularly and habitually engages himself in agriculture though it is not necessary that he should personally engage himself in agriculture. The benefit of that section can be extended not only to persons who personally engage themselves in agriculture but also to persons who through servants or tenants carry on agricultural labour and to other persons of the families of such persons. (Para 5) The test, therefore, is that the persons interest in agriculture should be regular and not casual and should represent his predominant occupation. It would therefore follow that in each case where the person engages himself in more occupations than one it has to be determined whether agriculture is his predominant and regular occupation. The other occupations in themselves cannot be the determining factor. For instance, a person may be engaged in agriculture and at the same time be a school master, a village post-master, a carpenter, a functionary of a village co-operative society. The point for determination in each case is what relation his interest and attention to agriculture bears to his other occupations. It is therefore a question of fact in each case. (Para 13) (B) Mysore Agriculturists Relief Act (18 of 1928), S.2 - RECOVERY OF DEBT - DEBT RELIEF - Debt Laws - School teacher if can be agriculturist. There is nothing in the language of S. 2 of the Mysore Agriculturists Relief Act which prevents a school master as such being an agriculturist as defined therein. (Para 15) The profession or the occupation of a teacher is undoubtedly, ordinarily teaching. When he engages himself in teaching for most of the time during the day, he must be said to engage himself in teaching ordinarily i.e., regularly and habitually. His returning to the fields during leisure hours and engaging himself occasionally in doing some manual work in the fields would not make him a person who ordinarily engages himself in agriculture. The test to be applied in such cases is whether his other occupations are not such as to prevent him from taking part in agriculture. It is only when other occupations in which a person is engaged do not permit him to take part in agricultural operations that he can be said to be not ordinarily engaged in agriculture. (Para 7) A person was working as a teacher not only in a school in a village in the immediate neighbourhood of the place where his family lands were located but he was working in four or five other schools also and had to attend to his teaching work during the greater part of the working hours in the day. Held, that teaching would represent his ordinary and predominant occupation particularly when he was working as a teacher in other places. Merely because he was working in the neighbourhood of his village during a part of the period, it cannot be said that during that period he became an agriculturist. C. R. P. Nos. 514 and 517 of 1954 (Mys), Considered. (Para 16) Cases Referred : Chronological Paras (A) (54) C. R. P. No. 514 of 1954 (Mys) 4, 5, 12, 14, 15 (B) (54) C. R. P. No. 517 of 1954 (Mys) 4, 12, 14 (C) AIR 1931 Bom 284 (V 18) : ILR 55 Bom411 5 (D) (35-36) C. R. P. No. 408 of 1035-36 (Mys) 8, 14 (E) (49-50) C. R. P. No. 20 of 1949-50 (Mys) 8, 14 (F) (49-50) C. R. P. No. 364 of 1949-50 (Mys) 10, 14 (G) (38-39) C. R. P. No. 229 of 1938-39 (Mys) 14 R.V. Sreenivasaiya, for Petitioner; H. Nanjunda Sastry, for Respondents. Judgement PADMANABHIAH, J. :- This is a revision petition preferred by the petitioner-defendant against the order of the learned Munsiff of Hassan in O. S. 940/53 holding her to be an agriculturist.

2. The facts that have given rise to this revision petition are briefly as follows :

3. The defendant in the lower Court is the widow of one Thimmappa, the executant of the pro-note which was the subject-matter of suit in O. S. 940/53 on the file of the learned Munsiff, Hassan. The suit was filed by the respondent-plaintiff beyond three years from the date of the pro-note, and for purposes of limitation the suit was brought under the Mysore Agriculturists Relief Act claiming an extended period of limitation as provided under S. 24 of the Agriculturists Relief Act. The defendant contended that she was not an agriculturist, that her husband was not an agriculturist on the date of the suit transaction, that he was a school master, that the respondent-plaintiff was not entitled to the extended period of limitation, that the suit was barred by time and that the same was liable to be dismissed. The Teamed Munsiff held that the defendant and her husband were agriculturists and he accordingly decreed the suit. Against that finding, this revision petition has been preferred.

4. This case first came up before me on 12-8-55 and in view of the conflicting decisions of this Court as to whether a school master could be an agriculturist, viz. Mallappa, J., holding in C.R.P. No. 514 of 1954 (Mys) (A), that a school master cannot be regarded as an agriculturist, and the learned Chief Justice holding in C.R.P. No. 517 of 1954 (Mys) (B), that a school master whose main calling or principal means of livelihood is agriculture can be held to be an agriculturist, the matter was referred to a Bench, and accordingly this has been placed before us for a decision.

5. The question involved in this reference is whether a school master can be an agriculturist within the meaning of S. 2 of the Mysore Agriculturists Relief Act. A finding whether a person is or is not an agriculturist, within the meaning of S. 2 of the Mysore Agriculturists Relief Act seems to depend, of course, subject to the other conditions of the section being fulfilled, on the meaning to be attached to the word "ordinarily" appearing in the said section. This word "ordinarily" has been explained to mean "regularly and habitually, not casually" in some of the decisions, vide Sahoo Bala v. Narayanshastri Janardanshastri, AIR 1931 Bom 284 (C). This Court also has attached the same meaning to that word in C. R. P. No. 514 of 1954 (Mys) (A). Therefore a person to come under S. 2 of the Agriculturists Relief Act must be one who regularly and habitually engages himself in agriculture though it is not necessary that he should personally engage himself in agriculture. The benefit of that section can be extended not only to persons who personally engage themselves in agriculture but also to persons who through servants or tenants carry on agricultural labour and to other persons of the families of such persons.

6. It is admitted that the defendants husband was a school master on the date of the suit transaction which is 15-3-1950 the date of the suit pronote. The hours of work of a school master of the rank of the defendants husband are conceded to be from 7 A.M. to 10 or 1.1 A.M. and from 3 to 5 P.M. We may also concede for the sake of argument that the defendants husband was attending to agricultural operations in his land during the leisure hours and on holidays though the evidence on this point is not very satisfactory. The point to be considered is whether a person of this type can be said to be an agriculturist within the meaning of S. 2 of the Mysore Agriculturists Relief Act. In my opinion, he cannot be.

7. The profession or the occupation of a teacher is undoubtedly, ordinarily teaching. When he engages himself in teaching for most of the time during the day, he must be said to engage himself in teaching ordinarily i.e., regularly and habitually. His returning to the fields during leisure hours and engaging himself occasionally in doing some manual work in the fields would not make him a person who ordinarily engages himself in agriculture. The test to be applied in such cases is whether his other occupations are not such as to prevent him from taking part in agriculture. It is only when other occupations in which a person is engaged do not permit him to take part in agricultural operations that he can be said to be not ordinarily engaged in agriculture. In this case, the defendants husband was a school master : His duties as school master and his hours of work prescribed by Government are such as to prevent him from attending to agricultural work.

8. In this connection, I would like to refer to some of the cases decided by this Court on this point. The first case is C.R.P. No. 408 of 1935-36 (Mys) (D). In that case, the defendant was a person issuing tickets for travellers in a bus stand. He applied for relief under the Agriculturists Relief Act. The learned Munsiff held that he was not an agriculturist but this Court reversed that finding and held that he was an agriculturist. The second case on this point is C.R.P. No. 20 of 1949-50 (Mys) (E). The first defendant in that case was the Director of a Co-operative Society, a document writer and also a shanbhogue. The learned Munsiff held that he was not an agriculturist, but this Court held that such a person could be an agriculturist and he was accordingly held so. Relying on these decisions, it was contended by the learned counsel for the respondent-plaintiff that there could be nothing irregular or illegal in holding the defendants husband, a school master, as an agriculturist. I do not think that the decisions in those cases can have a conclusive bearing on the facts of the present case.

9. A distinction has to be made between government servants and other private individuals following more than one occupation or profession. In the case of private persons following a particular profession or occupation, there are no fixed hours of work which require their presence throughout the period. Nothing prevents a private individual from disregarding his other occupations and mainly turning to agriculture in which case the other occupations become subsidiary occupations to the main occupation of agriculture : but the case of a government servant is different. He has got fixed hours of work during which time he cannot absent himself or neglect his duties. It is not open to him - and the rules do not permit him - to disengage himself from his regular duties and attend to his other private work during those hours; for, a school master or teacher whose occupation requires him to attend the school both in the morning and in the evening cannot be regarded as an agriculturist and in such cases his main calling must be that of teaching and not agriculture. Under the existing conditions of service, agriculture can under no circumstances be the chief calling or main occupation of a government school master. Therefore I am of opinion that the two cases referred to above do not support the case for the respondent-plaintiff.

10. In this connection, I may refer to another case of this Court in C.R.P. No. 364 of 1949-50 (Mys) (F). That is a case of a government servant. The plaintiff in that case was a copyist in the Shimoga Subordinate Judges Court and he applied for relief under the Agriculturists Relief Act. The Munsiff negatived his contention and this Court affirmed that finding. A government servant may engage himself in agriculture casually while his regular and habitual occupation is otherwise. Such a person cannot be held to be an agriculturist as defined under S. 2 of the Agriculturists Relief Act. In this case, the defendants husband having been a school master at the relevant time cannot be held to be an agriculturist.

11. In the result, this petition is allowed but without costs and the order of the learned Munsiff holding the defendants husband as an agriculturist is set aside.

12. SREENIVASA RAO, J. :- This revision petition has been heard by a Bench of two Judges as in two cases heard by this Court viz., C.R.P. No. 514 of 1954 (Mys) (A), and C.R.P. No. 517 of 1954 (Mys) (B), learned Judges of this Court have taken different views as to whether the person concerned in each of those cases who happened to be a school-master was or was not an agriculturist as defined in the Mysore Agriculturists Relief Act. In directing that the records of this revision petition be placed before the Honble Chief Justice for referring the matter to a Bench, my learned brother, Padmanabhiah, J., formulated the point for decision as follows : "Whether a school master can be an agriculturist within the meaning of S. 2 of the Mysore Agriculturists Relief Act."

13. An agriculturist is defined as a person who ordinarily engages in agriculture . . . . provided that his yearly income from sources other than agriculture does not exceed Rs. 1,000/- and that his aggregate income from all sources does not exceed Rs. 2,000/-. Prior to the amendment of the Act in 1953, these limits were fixed at Rs. 500/- and Rs. 1,000/-. It will be seen that in order that the party concerned should be held to be an agriculturist under the Act, it has to be established that his ordinary pursuit is agriculture, that his agricultural income does not exceed the prescribed limit and that his aggregate income also does not exceed the limit prescribed in that behalf. The limits of income appear to have been prescribed both because a person whose income exceeds those limits though an agriculturist can be expected to deal with the other party, i.e., the money-lender, on equal terms and also because if the additional income exceeds that derived from agriculture that factor in itself would be a rough test to show that the ordinary or main occupation of the person was not agriculture. It is seen that the definition itself contemplates the possibility of an agriculturist under the Act having also occupations other than agriculture and deriving income from sources other than agriculture. In regard to occupation, what is required is that the ordinary occupation should be agriculture. It has been held by this Court that in order to be ordinarily engaged in agriculture it is not necessary for a person to be personally engaged in agriculture. The test therefore is that the persons interest in agriculture should be regular and not casual and should represent his predominant occupation. It would therefore follow that in each case where the person engages himself in more occupations than one it has to be determined whether agriculture is his predominant and regular occupation. The other occupations in themselves cannot be the determining factor. For instance, a person may be engaged in agriculture and at the same time be a school master, a village post-master, a carpenter, a functionary of a village co-operative society. The point for determination in each case is what relation his interest and attention to agriculture bears to his other occupations. It is therefore a question of fact in each case. It may be that in the case of a teacher employed by Government most of the working hours are taken away by his work in the school, but school master is a general term and the work of a school master varies depending upon the nature of the institution and the particular work done by the teacher. And in any given case, it would also depend on the relative position that the persons work as a school master bears to his occupation as an agriculturist. It cannot therefore be said that the mere fact that a person is a school master would make it impossible for him to be an agriculturist as defined in the Act.

14. Several decisions of this Court in similar cases have been brought to our notice. In C. R. P. No. 408 of 1935-36 (Mys) (D), the defendant in addition to owning lands was working as the agent for selling motor bus tickets which work occupied him two hours in the morning and two hours in the evening. It was also in evidence that the defendant did not personally cultivate his lands. Sreenivasa Rao, J., observed that in contrast to the provision of the Dekhan Agriculturists Relief Act, the Mysore Act did not make it necessary that the person claiming the status of an agriculturist should personally cultivate land. He did not think that the time spent by him every day in his occupation as a bus agent was in itself enough to hold that he was not an agriculturist. In C.R.P. No. 229 of 1938-39 (Mys) (G), the defendant who claimed to be an agriculturist, was a priest or purohit though he owned land. Abdul Ghani, J., observed : "There can be no doubt that the profession of the Opponent or his main occupation is that of a priest or purohit, though he may own "lands and garden". Even the plaintiff and his witnesses concede this. Moreover, the Opponent is about 80 years old and is a Brahmin. Such a person, it is difficult to conceive as ordinarily engaging himself in agriculture. This is a case where a plaintiff is seeking the benefit of the enlarged period of limitation provided by the Agriculturists Relief Act, in respect of a debt which would be barred ordinarily. The plaintiff should, in such a case, prove that the defendant is an agriculturist. His own witnesses concede that the defendant is a purohit and place the yield from the gardens and the lands at a figure, which at the rate prevailing at the time of the transaction, would place the agricultural income alone at a high figure. To this will have to be added the income of the defendant as a purohit, which according to some witnesses would be about Rs. 500/- a year. The figures given by the defendants witnesses would take the agricultural income alone to over Rs. 1,000/- a year. So, either on the ground that the defendant does not ordinarily engage himself in agriculture or on the ground that the income is over the prescribed limit . . . ." The learned Judge accordingly came to the conclusion that neither on the ground of ordinary occupation nor on that of income could the defendant be held to be an agriculturist. In C.R.P. No. 20 of 1949-50 (Mys) (E), the defendant, in addition to owning land, was a document writer, shanbhog, a director of a co-operative society and a writer in that society. Taking all these factors into consideration, Puttaraj Urs, J., came to the conclusion that the defendant was an agriculturist. In C.R.P. No. 364 of 1949 (Mys) (F), the petitioner was a copyist in a Court. Mallappa, J., held that while the definition does not exclude persons having one "or more occupations other than agriculture from being an agriculturist entitled to relief under the Act. it is a matter in each case whether the other occupations are such as to prevent the person being engaged in agriculture regularly and habitually. Applying this criterion to the facts of that case, he held that the petitioner was not an agriculturist. Next coming to C.R.P. No. 514 of 1954 (Mys) (A) and C.R.P. No. 517 of 1954 (Mys) (B), in both of which the persons concerned were teachers, Mallappa, J., made the following order in C.R.P. No. 514 of 1954 (Mys) (A) : "There is no good reason to interfere with the finding of the lower Court, A teacher whose occupation requires leave to attend the school both in the morning and evening should be held to be ordinarily engaged as a teacher and not as an agriculturist even if after school he supervises work in his land. Civil Revision Petition is dismissed." In C.R.P. No. 517 of 1954 (Mys) (B), Venkataramaiya, C.J., observed : "If the contention (that the petitioner who was employed as a teacher on a monthly salary of Rs. 30/- cannot be regarded as an agriculturist under the Act) is correct, no one in service can have the benefit of the Act even though agriculture is a by-occupation and main source of living. I do not think that this view is warranted by the Act. There are many who are primarily and essentially agriculturists but engage themselves during spare time in attending to other work for supplementing their income from agriculture. What has to be considered in cases of dispute about status is as to which is the chief calling or principal means of living and which is subordinate and supplementary. In this case it has been found that the petitioner is possessed of lands, khatha of which stands in his name and kandaya thereof is paid by him . . the evidence points to his attending to the cultivation . . . . . ." He held in the circumstances of the case that the petitioner was an agriculturist.

15. It appears to me that in all these cases the decision rested on the circumstances of each case and that it was not sought to lay down a hard and fast rule with reference to any particular occupation or with reference to the community or the location of the persons whose status as an agriculturist had to be determined. Even in C.R.P. No. 514 of 1954 (Mys) (A), which at first sight appears to rule out a teacher from claiming the status of an agriculturist, it is seen that reference is made to the circumstances that he had to attend school both in the morning and evening, thus adverting to the particular circumstances of the case. Instances can be thought of where the vocation of teaching will not seriously or substantially interfere with ones being ordinarily engaged in agriculture, as, for example, a teacher in a night school, a person doing work as an honorary teacher for a limited time every day or week, or a teacher in an agricultural school. Further, in each case, the time occupied in teaching and the income derived from it has to be taken into consideration along with those factors in relation to agriculture. It therefore appears to me that no categorical answer in the negative can be given to the question whether a school master can be an agriculturist. There is nothing in the language of S. 2 of the Mysore Agriculturists Relief Act which prevents a school master as such being an agriculturist as defined therein.

16. Coming to the circumstances of the case on hand, I am in agreement with my learned brother in the view that the defendants deceased husband was not an agriculturist in terms of the Act. It is in evidence that he was working as a teacher not only in a school in a village in the immediate neighbourhood of the place where his family lands were located but that he was working in four or five other schools also and that he had to attend to his teaching work during the greater part of the working hours in the day. Teaching would therefore represent his ordinary and predominant occupation particularly when he was working as a teacher in other places. Merely because he was working in the neighbourhood of his village during a part of the period, it cannot be said that during that period he became an agriculturist.

17. I therefore agree that this revision petition be allowed as indicated in my learned brothers order. Revision allowed. AIR 1957 MYSORE 61 (V 44 C 32 Aug.) "M. Pavalappa v. State of Mysore" MYSORE HIGH COURT Coram : 2 SREENIVASA RAO AND HOMBE GOWDA, JJ. ( Division Bench ) M. Pavalappa, Accused-Petitioner v. The State of Mysore, Complainant-Respondent. Criminal Revn. Petn. No. 237 of 1956, D/- 10 -10 -1956, against the order of Additional First Class Magistrate, Bangalore, D/- 19 -7 -1956. (A) Criminal P.C. (5 of 1898), S.207A(4) - WITNESS - CRIMINAL PROCEDURE - Eye-witnesses - Necessity to examine. Though there is some warrant in a strictly grammatical construction of the wording of S. 207A (4) for the view that it is entirely open for the prosecution to produce or not to produce such witnesses for giving evidence. Such cannot be the intention of that provision. The object of the amendments to the Code of Criminal Procedure including those under S. 207-A is no doubt to simplify and expedite the proceedings. But the Legislature has naturally introduced different degrees of simplification having regard to the gravity and nature of the trial. In regard to inquiries which might lead to commitment, the Legislature has thought it necessary that before the Magistrate decides to commit the accused for trial he should satisfy himself by examination of eye-witnesses that there was a prima facie case against the accused. It is therefore obligatory for the Magistrate under S. 207-A, to examine eye-witnesses before he arrives at a conclusion whether the accused is to be discharged, tried before himself or some other Magistrate or committed for trial. (S) AIR 1957 Mys 5, Distinguished. (Para 2) (B) Criminal P.C. (5 of 1898), S.215, S.213, S.561A, S.207A, S.208(1) - INHERENT POWERS - CRIMINAL PROCEEDINGS - COMMITMENT OF CASE - APPLICABILITY OF AN ACT - Commitment u/S.207A - Quashing of - Applicability of S.215. The addition of the words "in any proceeding instituted otherwise than on a Police report" at the beginning of S. 208 (1) and the sequence of the succeeding sections seems to confine a commitment under S. 213 only to that resulting from a proceeding instituted otherwise than on a Police report. It would therefore appear that on a literal construction a commitment under S. 207-A cannot be quashed by High Court under S. 215. It is difficult to say whether it could have been the intention of the Legislature to take away the power of the High Court under S. 215 to quash a commitment in proceedings instituted on a Police report. If S. 215 was strictly inapplicable, the commitment should be quashed in exercise of the powers under S. 561-A, Criminal P. C. (Para 3) Cases Referred : Chronological Paras (A) (S) AIR 1957 Mys 5 (V 44) : 1957 Cri LJ 76 : (Cri. Revn. Petn. No. 245 of 1956) 1 B. Rangaswamy, for Petitioner; D.M. Chandrasekhar, for the Advocate-General, for Respondent. Judgement In this petition the accused challenges the legality of his commitment under S. 207-A of the Code of Criminal Procedure for trial by the Court of Session for an offence under S. 333, I. P. C. The ground urged is that such a commitment without taking the evidence of persons alleged, to be witnesses to the actual commission of the offence is contrary to the provisions of S. 207-A (4). It is not disputed by the prosecution that there are such witnesses. It is seen that the prosecuting Inspector submitted to the Court that he did not intend to examine any eye-witnesses in the committal Court, that thereupon the accused filed an application that persons cited as eye-witnesses may be summoned and examined and that the Magistrate refused the request. The accused took up the order of the learned Magistrate refusing to summon the eye-witnesses in revision to this Court in Criminal R. P. 83/56 and this Court dismissed that petition on the ground that it was not necessary to express any opinion at that stage about the correctness of the course adopted by the learned Magistrate. Thereafter the learned Magistrate looked into the F. I. R. and other documents furnished by the prosecution and made the committal order which is now challenged. The learned Magistrate in rejecting the accuseds application for calling the eye-witnesses took the view that if the prosecution did not produce the witnesses he could not compel them to do so. It is contended by the learned advocate for the accused that in an inquiry into cases triable by the Court of Session or High Court it is obligatory for the Magistrate under the above provision i.e., section 207-A, to examine eye-witnesses before he arrives at a conclusion whether the accused is to be discharged, tried before himself or some other Magistrate or committed for trial, in contrast to the procedure prescribed for the trial of warrant cases in regard to which under S. 251-A it is not necessary to examine any witnesses before a charge is framed. The learned Advocate has relied upon certain observations in the order of this Court in Krishna v. State of Mysore, Cr. R. P. 245/56 : ( (S) AIR 1957 Mys 5) (A), which read as follows : "It was contended by the learned Counsel for the petitioners that if this should be the view, then no difference exists between S. 207-A and S. 251-A. It is not correct to say that there is no difference between the procedures laid down in these two sections. S. 207-A deals with an enquiry before a Magistrate where the case is triable exclusively by a Court of Session or High Court, and S. 251-A relates to the procedure to be followed in the trial of warrant cases instituted on police reports. Under S. 251-A it is not obligatory on the part of the Magistrate to record any evidence either of witnesses to the actual commission of the offence or otherwise and he can frame a charge solely depending upon the documents produced on the side of the prosecution and referred to in S. 173 of the Criminal Procedure Code, whereas under S. 207-A (4) it is incumbent on the Court to examine witnesses as to the actual commission of the offence. This is the main difference between the two sections. Therefore it is futile to contend that there is no difference between the procedures laid down in the two Ss. 207-A and 251-A." Those observations however have to be read in the context of that case. No eye-witnesses were cited for the prosecution in that case. The accused contended that nevertheless it was obligatory for the Committing Magistrate to record evidence before he committed the accused. This Court contrasted Ss. 207-A and 251-A in considering that question and indicated that the examination of eye-witnesses was contemplated under S. 207-A while it was not contemplated under S. 251-A. There was no occasion to express any opinion on the point that has arisen for consideration now.

2. The view taken by the learned Magistrate that he could not compel the prosecution to examine eye-witnesses appears to be based upon the words in S. 207-A (4) viz., "The Magistrate shall then proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged." He seems to think that it is entirely open for the prosecution to produce or not to produce such witnesses for giving evidence. Though there is some warrant for this view in a strictly grammatical construction of the wording, it appears to us that such cannot be the intention of that provision. It would mean that even though the prosecution itself stated in its report or charge-sheet that there were eye-witnesses the Magistrate, in the event of the prosecution deciding not to examine such witnesses, would be compelled to arrive at a decision on the material made available to him by the prosecution under S. 173, Criminal P. C., whether the accused should be committed, tried before himself or some other Magistrate or discharged. This may lead to an anamolous situation. If the Magistrate felt that the documents placed before him without further elucidation by way of evidence of the eye-witnesses would not enable him to commit the accused or put him on trial before the Magistrate he would have no option but to discharge the accused. It is seen that the latter part of S. 207-A (4) provides that after taking the evidence of such eye-witnesses if any as may be produced by the prosecution the Magistrate if he is of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution he may take such evidence also before coming to a decision whether the accused should be committed, tried by himself or some other Magistrate or discharged. This would mean that while the Magistrate could if he thought it necessary, compel the production of witnesses other than eye-witnesses, he could not call upon the prosecution to produce eye-witnesses themselves. This obviously is an illogical position. It is no doubt true that the object of the amendments to the Code of Criminal Procedure including those under S. 207-A is to simplify and expedite the proceedings. But the Legislature has naturally introduced different degrees of simplification having regard to the gravity and nature of the trial. In regard to inquiries which might lead to commitment the Legislature has thought it necessary that before the Magistrate decides to commit the accused for trial he should satisfy himself by examination of eye-witnesses that there was a prima facie case against the accused. We must therefore uphold the contention of the learned Advocate for the accused.

3. The revision petition purports to be under Ss. 435 and 215 of the Code of Criminal Procedure. In the context in which S. 215 stood prior to the recent amendment, a commitment whether in any proceedings instituted on a Police report or in any proceeding instituted otherwise than on a Police report could be quashed by this Court. That is because S. 213 covered all cases of commitment. But now commitment in a proceeding instituted on a police report is to be made under S. 207-A. The addition of the words "in any proceeding instituted otherwise than on a Police report" at the beginning of S. 208 (1) and the sequence of the succeeding sections seem to confine a commitment under S. 213 only to that resulting from a proceeding instituted otherwise than on a Police report. It would therefore appear that on a literal construction a commitment under S. 207-A cannot be quashed by this Court under S. 215. It is difficult to say whether it could have been the intention of the Legislature to take away the power of this Court under S. 215 to quash a commitment in proceedings instituted on a Police report. We do not however think it necessary to go further into this question since we feel satisfied that if S. 215 is strictly inapplicable we must in this case exercise our powers under S. 561-A of the Code of Criminal Procedure.

4. We accordingly allow this revision petition, set aside the committal of the accused and direct the learned Magistrate to examine such persons as have been cited by the prosecution as witnesses to the actual commission of the offence alleged and proceed with the case according to law. Revision petition allowed. AIR 1957 MYSORE 62 (V 44 C 33 Aug.) "Mudligirigowda v. Chikkamma" MYSORE HIGH COURT Coram : 1 SREENIVASA RAO, J. ( Single Bench ) Mudligirigowda, Defendant-Appellant v. Chikkamma, Plaintiff-Respondent. Second Appeal No. 234 of 1956, D/- 17 -9 -1956, against decree of Sub-J., Hassan, in R.A. No. 34 of 1955. Mysore Hindu Law Womens Rights Act (10 of 1933) - RIGHT TO PROPERTY - LIMITATION - Suit by first wife claiming separate maintenance - Limitation - Cause of action when arises. Limitation Act (9 of 1908), Art.120 and Art.129. Where a first wife claims a right of maintenance under the Mysore Hindu Workmens/Womens Rights Act, even assuming that it is Art. 120, Limitation Act that applies, the cause of action can be said to arise when there is a demand for separate maintenance and refusal by the husband. Although she gets the right to live away from her husband on his marrying a second wife, the existence of a right does not always mean that the cause of action also accrues with such right coming into existence. Her right exists without its being put into effect except at her choice. (Para 2) Anno : AIR Com. Lim. Act, Art. 129, N. 6, 7; Art. 120, N. 3. E.S. Venkataramaiya, for Appellant. Judgement UDGMENT :- The main point urged is that the suit is barred by limitation since the Article applicable to a suit like the one on hand is Art. 120 of Sch. I to the Limitation Act and not Art. 129. Even assuming that it is Art. 120, the question that arises for consideration is from when the time has to be reckoned.

2. It is urged for the Appellant that the date of the second marriage when, according to the provisions of the Hindu Womens Rights Act the first wife gets the right to live away from her husband, is the starting point. I do not think that this contention is correct. The first wife no doubt gets the right to live away from her husband if he marries a second wife. But, it does not make it obligatory for her to live separately, nor does it even provide that she has straightaway to make up her mind whether she will live separately or not. It is quite open to her to live with her husband. There is no reason to apply any principle to the case of a wife who claims a right of maintenance under the Mysore Hindu Womens Rights Act other than that under the general Hindu Law under which Art. 129 is applicable. The cause of action can be said to arise when there is a demand for separate maintenance and refusal by the husband. It is hardly necessary to say that the existence of a right does not always mean that the cause of action also accrues with such right coming into existence, for example, in the case of a member of a joint Hindu family he has a right to separate himself and seek partition. It is left to him as to when he will set that right in motion. The right of a Hindu wife for separate maintenance under the provisions of the mysore act can also exist without its being put into effect except at her choice.

3. No other point arises in this Second Appeal and it is dismissed. Appeal dismissed. AIR 1957 MYSORE 63 (V 44 C 34 Aug.) "Seetharamaiah v. Asst. Sales Tax Officer" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA, C.J. AND HOMBE GOWDA, J. ( Division Bench ) B. Seetharamaiah and others, Petitioners v. Assistant Sales Tax Officer and others, Respondents. Writ Petns. Nos. 166 to 173, 188, 197 to 204 of 1955; 8 to 10 of 1956 and Civil Petns. Nos. 17 and 36 of 1956, D/- 27 -9 -1956. (A) Mysore Sales Tax Act (46 of 1948), S.11, S.3 - SALES TAX - INCOME-TAX - Sales Tax - Restriction on recovery of tax from consumers - Effect on nature of tax. Income-tax Act (11 of 1922), S.3. Legality of the levy does not depend on transferability of liability and there is no hindrance to a person being taxed though he cannot realise it from others. A difficulty or disability in recovery of tax from others is no doubt caused to the dealers by S. 11 but this cannot be an excuse for their not being charged. The payment may diminish the gains or even increase the loss but it has to be made irrespective of this since the recovery of the tax from others is not a right conferred by the Sales Tax Act or the Constitution much less a condition precedent to it. (Note - Contention that it was a Colourable legislation taxing in effect the income of the assessee and not the sales, was raised but not decided). (Para 4) Anno : AIR Man., Income-tax Act, S. 3, N. 2. (B) Mysore Sales Tax Act (46 of 1948), S.3(1)(b), Proviso , S.11 - SALES TAX - CONSTITUTIONALITY OF AN ACT - EQUALITY - Sales Tax - Validity - Contravenes Art.14 of the Constitution. Constitution of India, Art.14. Discrimination if arbitrary offends Art. 14 and the discriminating provision in a taxing law as in any other law cannot have validity. What is objectionable is, not the existence of a distinction but the absence of a reasonable basis for it and a just relation between that and the object of the Act. Proviso to S. 3 (1) (b) of the Mysore Sales Tax Act makes a differentiation in the extent of liability between sales within and sales outside hotels, of articles of food. The classification of dealers in the same articles as those who sell them in certain places and those who do not, cannot be assumed to be rational or to have a just relation to the object. The proviso is therefore void and unenforceable as it offends Art. 14 of the Constitution. (S) AIR 1956 Mad 480, Rel. on. Section 11 is not open to this objection as the ban on dealers and restrictions on registered dealers in the collection of the tax are applicable uniformly to persons of the respective class. (Paras 5, 6, 7) Anno : AIR Com., Const. of India, Art. 14, N. 1. Cases Referred : Chronological Paras (A) (S) AIR 1956 Mad 480 (V 43) : ILR (1956) Mad 1368 6 G.S. Ullal, for Petitioners; Advocate-General, for Respondents. Judgement VENKATARAMAIYA, C. J. :- In all these petitions filed under Art. 226 of the Constitution of India, the legality of the levy of sales tax under the provisions of the Mysore Sales Tax Act on the turnover of Petitioners has been challenged. The turnover represents the amounts realised by sale of eatables and refreshments in hotels or restaurants kept by petitioners. Under S. 3 (a) of the Act the tax is payable on the annual turnover of every dealer. Sub-s. (b) which at first prescribed the rate at which the tax is payable as three pies per rupee was altered by act 25 of 1954 and now reads as follows: "(b) the tax shall be calculated at the following rates :

2. Section 11 of the Act as amended states : "No person, other than a registered dealer liable to the payment of tax under sub-ss. (2) and (2-A) of S. 3 shall collect any amount by way of tax under this Act; nor shall such registered dealer make any such collection except in respect of the sale or purchase of the goods specified in Schedule I and except in accordance with such conditions and restrictions, if any, as may be prescribed."

3. Section 3 (2) provides that in regard to the articles specified in Schedule I the tax is to be levied and at the point mentioned therein. section 3 (2-a) deals with liability of persons not having a place of business in Mysore.

4. Section 11 is, it is said, found only in the Mysore Act and that there is no provision analogous to it in the laws applicable to other States. A double restriction is imposed under the section on the collection of tax; firstly that it cannot be collected at all by the unregistered dealers and secondly that it can be collected by the registered dealers only in respect of goods specified in Schedule 1. The registered dealers are thus compelled to pay the tax which they are forbidden to recover from others and cannot have recourse to shifting the burden on the consumer as is usual. It is argued on behalf of Petitioners that in effect and reality what is taxed is the income of the assessee about which the State is not competent to legislate and that the new enactment is exceptionally severe as even the deductions permissible under the income-tax law cannot be claimed. The learned Advocate-General urged that legality of the levy does not depend on transferability of liability and that there is no hindrance to a person being taxed though he cannot realise it from others. The possibility of this is not sufficient to determine the nature of the tax and may affect the consideration of the tax being direct or indirect. Nor does it answer the criticism that the provision amounts to "colourable legislation" inasmuch as the tax which purports to be one on sales is in essence not so. These contentions are not without some force but do not help the petitioners. The section under which the levy is to be made is 3 not 11. A difficulty or disability is no doubt caused to petitioners by S. 11 but this cannot be an excuse for their not being charged. The payment may diminish the gains or even increase the loss but has to be made irrespective of this since the recovery of the tax from ethers is not a right conferred by the Sales Tax Act or the Constitution much less a condition precedent to it. Further the petitioners have not been taxed as yet and the petitions have been filed before the turnover is determined so that the bearing of S. 11 in relation to petitioners is at best uncertain.

5. The material point for consideration is right to equality of treatment guaranteed, by Art. 14 of the Constitution and whether this is prejudiced by making a differentiation in the extent of liability between sales within and sales outside hotels, of articles of food. It is not and cannot be disputed that the discrimination if arbitrary offends the Article and that the prevision therefore in a taxing law as in any other law cannot have validity. What is objectionable is, not the existence of a distinction but the absence of a reasonable basis for it and a just relation between that and the object of the Act. The petitioners complain that this is lacking and that therefore the imposition of the tax at rates far higher than those applicable to other sellers of the same articles constitutes an infringement of the constitutional right. In support or the classification the respondents allege that sales of articles of food fetch more money inside a hotel than outside owing to facilities for use or consumption. Sales of eatables like other articles chiefly depend on the quality of preparation and the taste of persons intended to be served. The situation and environments of some hotels may be so uninviting as to deter many from getting in in spite of the preparations being good and tasteful. The Proprietors of such hotels may find that the articles attract more buyers at selected places removed from these than on the spot. So the advantage which the hotels, etc., are supposed to have in effecting sales within the premises is doubtful and does not exist in some cases. Moreover, the object of the Act is to levy tax on sales and not on property or profession. The classification of dealers in the same articles as those who sell them in certain places and those who do not, cannot be assumed to be rational or have a just relation to the object. Section 11 is not open to this objection as the ban on dealers and restrictions on registered dealers in the collection of the tax are applicable uniformly to persons of the respective class.

6. The identical question whether the differentiation under a similar provision in the Madras Sales Tax Act is not repugnant to Art. 14 arose in the Madras High Court before a Division Bench. The decision reported in Krishna Iyer v. State of Madras, AIR 1956 Mad 480 (A), was that the proviso to S. 3 (1) (b) which is the same as in the Mysore Act is void and unenforceable as it offends the Article of the Constitution.

7. The petitioners may be taxed, if at all, under S. 3 (1) (b) and not under the proviso. The proviso is invalid and cannot be availed of for levying the tax. We order accordingly and direct parties to bear their own costs. Order accordingly. AIR 1957 MYSORE 64 (V 44 C 35 Aug.) "Mir Zahiruddinv. State of Mysore" MYSORE HIGH COURT Coram : 2 SREENIVASA RAO AND HOMBE GOWDA, JJ. ( Division Bench ) Babajan Mir Zahiruddin, Petitioner v. State of Mysore and another, Respondents. Writ Petn. No. 151 of 1955, D/- 10 -10 -1956. Mysore Shops and Establishments Act (2 of 1948), S.11(1) - SHOPS AND ESTABLISHMENT - CONSTITUTIONALITY OF AN ACT - FREEDOM OF TRADE - Validity - Provision for weekly holiday does not offend Art.19(1)(g) of the Constitution. Constitution of India, Art.19(1)(g) and Art.19(6). Article 19 (1) (g) has to be read along with Art. 19 (6) since it enables the State to make any law imposing in the interests of the general public reasonable restrictions on the exercise of the right conferred by Art. 19 (1) (g). Section 11 (1) of the Mysore Shops and Establishments Act like some other provisions of the Act is intended to regulate conditions of work in shops and commercial establishments which necessarily includes the safeguarding of the interests of employees and other similar establishments. A weekly holiday on a definite day in the week is calculated to secure reasonable conditions for employees. It cannot therefore be said that S. 11 (1) of the Act is unconstitutional on the ground that it offends Art. 19 (1) (g). (Para 2) Anno : AIR Com., Const. of Ind., Art. 19, N. 72, 77. C.B. Motiya, for Petitioner; D.M. Chandrasekhar, for Advocate-General, for Respondents. Judgement SREENIVASA RAO, J. :- The Petitioner has been prosecuted for an offence under S. 11(1) read with S. 45 of the Mysore Shops and Establishments Act, 1948, on the ground that he was found carrying on business in his cycle shop on a declared weekly holiday. He has filed this writ petition for quashing the entire proceedings on the ground that the said provision, i.e., S. 11(1) of the Act is wholly void. He has also urged that S. 6 of the Act which enables Government by notification to exempt either permanently or for any specified period, any establishment or class of establishments, or person or class of persons, from all or any of the provisions of this Act, subject to such conditions as the Government deem fit, is void as it is arbitrary and discriminatory and does not contain within itself any criteria for such exemption. The latter question however does not arise for consideration in this petition since it is not the Petitioners case that he applied for exemption and was refused such exemption. The attack against the constitutionality of S. 11 (1) is on the ground that it offends Art. 19 (1) (g) of the Constitution inasmuch as it comes in the way of his exercising his profession or carrying on his occupation, trade or business. He further contends that it is against public interest inasmuch as his profession or trade is in the nature of public utility service.

2. It appears to us that there is no substance in the petition for Art. 19 (1) (g) has to be read along with Art. 19 (6) since it enables the State to make any law imposing in the interests of the general public reasonable restrictions on the exercise of the right conferred by Art. 19 (1) (g). Section 11 (1) of the Mysore Shops and Establishments Act like some other provisions of the Act is intended to regulate conditions of work in shops and commercial establishments which necessarily includes the safeguarding of the interests of employees and other similar establishments. The Petitioner himself admits that in addition to himself and the other members of his family there are employees working in his establishment. A weekly holiday on a definite day in the week is calculated to secure reasonable conditions for employees. It cannot therefore be said that S. 11(1) of the Act is unconstitutional.

3. In the course of arguments it was brought to our notice that the Central Enactment, The Weekly Holidays Act, 1942, deals with some matters including those dealt with under the Mysore Shops and Establishments Act and that to that extent the latter Act has become inoperative. That, however, is not a matter urged in this petition and does not arise for consideration.

4. We accordingly dismiss this petition, but in the circumstances of the case there will be no order as to the costs of this petition. Petition dismissed. AIR 1957 MYSORE 65 (V 44 C 36 Sept.) "Gaviya v. Lingiah" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA, C.J. AND SREENIVASA RAO, J. ( Division Bench ) Gaviya and another, Appellants v. Lingiah, Respondent. Second Appeal No. 72 of 1951-52, D/- 4 -1 -1957, against decree of Sub-J., Mandya in R.A. No. 58 of 1949-50. (A) Limitation Act (9 of 1908), Art.132, Art.120 and Art.97 - LIMITATION - MORTGAGE - CONTRACT - Purchaser from mortgagor paying off mortgage debt - Purchaser required to give up possession of property purchased as mortgagor was found to have no title to same - Suit for reimbursement - Limitation for. Transfer of Property Act (4 of 1882), S.91(a). Contract Act (9 of 1872), S.69. Certain properties belonged to one B who by hypothecating them at first to defendant 4 and later to father of defendant 5 borrowed monies from them. After his death, two suits were filed on the foot of the respective mortgages against his daughter and the 3rd defendant alleged to be his adopted son. With the consent of the daughter the suits were decreed against her and defendant 3. Subsequently defendant 3 sold the mortgaged properties to plaintiff on 19-2-1943 and he paid up the amounts due under the decrees. Possession of the properties had to be given up by him to defendants 1 and 2 who were sons of the mortgagors daughter on account of a decree obtained by them against defendant 3 that he was not the adopted son of B and that they alone were entitled to the properties. The date of that decree was 26-2-1946, the payments were made by plaintiff during 1943 and 1944 and the suit was instituted by the plaintiff on 21-9-1948 for recovery of these amounts from defendants 1 and 2 personally and also the mortgaged properties alleging the existence of a charge thereon in his favour with respect to the said amounts. Held (1) that the case was not governed by Art. 97 the suit not being either for refund of purchase money or for relief from the vendor. (Para 3) (2) that the enforcement of a charge was provided for by Art. 132 and unless it was shown to be inapplicable to the case, the residuary Art. 120 could not be resorted to. (Para 3) (3) that a decree could not be passed against defendants 1 and 2 personally for payment and the question of limitation regarding this did not arise. (Para 3) (4) that, as the existence of the encumbrances and necessity for the discharge were undisputed and good faith for the payments by plaintiff was established, the plaintiff was entitled to recover the amounts as a charge on the properties which were relieved from liability for the decretal debts. The suit was filed within twelve years from the dates of payments and as such there was no bar of limitation: Case law considered. (Para 12) Anno : AIR Com., Lim. Act, Art. 97, N. 2; Art. 120, N. 41; Art. 132, N. 8. T. P. Act, S. 91, N. 8; C. J. I. Con. Act, S. 69, N. 10. (B) Contract Act (9 of 1872), S.69 - CONTRACT - DOCTRINES - Unjust enrichment - Doctrine of when invoked. The tendency of persons to profit themselves at the expense of others, to deny reparation to those who have helped them to appropriate the fruits of the acts of others is not favoured in Courts and the doctrine of unjust enrichment is often invoked to promote the ends of justice. (Para 5) Anno : C.J.I. Con. Act, S. 69, N. 1. (C) Transfer of Property Act (4 of 1882), S.91(a) - CONTRACT - DOCUMENTS - "Has any interest" - Criterion of "having interest". Contract Act (9 of 1872), S.69. The criterion of "having interest" is that there should be a reasonable basis for a person to honestly act upon in a manner which cannot be regarded as improper or wanton and not that the interest should be such as cannot be successfully challenged by any one. Interest in making payment does not mean such an interest as will stand the test of a judicial trial and all that is necessary is that the person making the payment should honestly and really believe payment to be necessary in his own interest. It seems repugnant to justice and equity that those who get or want to retain the advantage resulting from payments made by others should be immune from the obligation of making good the same and that bona fide alienees who clear off encumbrances binding nature of which is not open to doubt, should be denied reimbursement because of the alienation being attacked later on and being found to be defective or ineffective. (Para 12) Anno : AIR Com. T. P. Act, S. 91, N. 4 ; C. J. I. Con. Act, S. 69, N. 2. Cases Referred : Chronological Paras (A) (42) 47 Mys HCR 337 1 (B) (47) 52 Mys HCR 118 1 (C) (50-51) R.A. No. 20 of 1950-51 (FB) (Mys) 1 (D) AIR 1916 Mad 470 (V 3) : ILR 38 Mad 250 3 (E) AIR 1923 Mad 64 (V 10) : 70 Ind Cas 405 3 (F) (87) ILR 14 Cal 809 (FB) 5 (G) (92) ILR 14 All 273 : 1892 All WN 117 (FB) 5 (H) (94) ILR 21 Cal 142 : 20 Ind App 160 (PC) 6

(I) AIR 1919 Mad 105 (V 6) : 51 Ind Cas 57 6 (J) AIR 1926 PC 109 (V 13) : 97 Ind Cas 543 7 (K) (10) ILR 33 Mad 334 : 5 Ind Cas 33 8

(L) (13) ILR 36 Mad 426 : 15 Ind Cas 206 8 (M) AIR 1937 Mad 451 (V 24) : 172 Ind Cas 47 10 (N) AIR 1937 Nag 330 (V 24) : ILR 1937 Nag 111 11 (O) AIR 1932 All 332 (V 19) : ILR 54 All 140 12 E.S. Venkataramaiya for Appellants; V. Krishnamurthy, for Respondent. Judgement This appeal has been referred to a Division Bench as the learned Judge who heard it felt that the question of limitation involved for decision is of importance and has to be settled in the light of the conflicting rulings about it in 47 Mys HCR 337 (A) and Sundararajachar v. Vartakavardhini Bank, Ltd., 52 Mys HCR 118 (B) and the view of the Full Bench sought for in R.A. No. 20 of 50-51 (Mys.) (C). These cases were concerned with the starting point of limitation for enforcing a claim of a co-mortgagor for reimbursement from other mortgagors of monies paid in excess of what is due by him to discharge a mortgage. The observations in one of the cases lend support to the construction that the period of limitation is to be reckoned from the date of the mortgage and not from the date of payment but the Full Bench held otherwise.

2. The suit from which the present appeal arises is not that of a co-mortgagor but by a person who is a purchaser of the mortgaged property from one who had no right to the same and he seeks reimbursement of amounts paid by him in discharge of the mortgages. The properties admittedly belonged to Racha Boyee who by hypothecating these at first to defendant 4 and later to father of defendant 5 borrowed monies from them. After his death, two suits were filed on the foot of the respective mortgages against his daughter and the 3rd defendant alleged to be his adopted son. With the consent of the daughter the suits were decreed against her and defendant 3. Subsequently defendant 3 sold the mortgaged properties to plaintiff on 19-3-1943 and he paid up the amounts due under the decrees. Possession of the properties had to be given up by him to defendants 1 and 2 who are sons of the mortgagors daughter on account of a decree obtained by them against defendant 3 that he is not the adopted son of Racha Boyi and that they alone are entitled to the properties. The date of that decree is 26-2-1946, the payments were made by plaintiff during 1943 and 1944 and the present suit was instituted on 21-9-1948 for recovery of these amounts from defendants 1 and 2 personally and also the mortgaged properties alleging the existence of a charge thereon in his favour with respect to the said amounts. Only defendants 1 and 2 contested the suit and their principal pleas are that plaintiff being a purchaser from a person without any title to the property has to be regarded as a volunteer not entitled to reimbursement and that the claim is barred by time. The objections have been negatived in both Courts and a decree for realisation of the amounts by sale of the properties has been granted. The decree is challenged by defendants 1 and 2 in this appeal.

3. The finding that the suit is within time is based on the view that the case is governed by Art. 97 of the Limitation Act, which relates to a suit "for money paid upon an existing consideration which afterwards fails." Transfer of title to and possession of the properties being the consideration for the sale to plaintiff, deprivation of possession by virtue of the decision that the vendor had no right in the property has been regarded as constituting failure of consideration and the period of three years prescribed by the Article is computed from that date. The Courts below have failed to notice that this is not a suit either for refund of purchase money or for relief from the vendor, who is the 3rd defendant. Defendants 1 and 2 were not parties to the sale and properties belonging to them are alleged to be liable for the amounts. Sri Krishnamurthy learned counsel for the respondent did not justify the application of this Article to the case and referred to Art. 120 as the appropriate one relying on Kayarohana v. Subbaraya, ILR 38 Mad 250 : (AIR 1916 Mad 470) (D) and Sundara Aiyar v. Ananthapadmanabha Aiyar, AIR 1923 Mad 64 (E), but these did not involve the determination of the availability or enforcement of a charge such as that alleged by plaintiff. Article 120 is residuary in terms meant to be invoked when the circumstances are such as not to attract the operation of any other Article and prescribes 6 years as the time within which the suit is to be filed. The difficulty for resorting to this Article is that enforcement of a charge is provided for by Art. 132 and unless this is shown to be inapplicable to the case, the residuary provision cannot be resorted to. Article 120 affects, if at all, the claim against defendants 1 and 2 personally and the suit is well within time even if the period of limitation is regarded as 6 years under this Article. Whether any of the Articles which shorten the period of limitation to three years applies to the suit need not be examined as the circumstances do not warrant in any event imposition of personal liability on the appellants for payment of the amounts. It is not suggested that defendants 1 and 2 ever asked the plaintiff to pay the decree-holders or that the payments were made to their knowledge or with their consent. The decree was not executable against defendants 1 and 2 personally and only enabled the decree-holders to proceed against the properties. The plaintiff cannot extend or increase the liability which was confined to the property to that of the individual or acquire higher rights than those of the mortgagee decree-holders by paying them off. For these reasons decree cannot be passed against defendants 1 and 2 personally for payment and the question of limitation regarding this does not arise.

4. As regards the portion of the decree for realisation of the amounts by sale of the properties the points for consideration are :

(i) Plaintiffs right to reimbursement;

(ii) Creation of a charge on the properties for the amounts paid;

(iii) the date from which limitation begins to run. The first of these depends on plaintiff having acted bona fide and not as an officious volunteer or intermeddler. Apparently the transaction was of the normal kind for fair consideration, part of which was paid to the vendor and the rest left with the plaintiff for satisfaction of the decree debts. In two suits the 3rd defendant was sued as an adopted son and as a legal representative of the mortgagor and it could hardly be imagined at the time that the adoption would be disputed by any one and pronounced by the Court to be not true. Apart from clearing of the incumbrances and preventing the sale of the properties the payments were not intended to serve any purpose. Failure to pay would have amounted to default in acting up to the terms of the sale deed and compelled the decree-holders to bring the properties to sale and by allowing it the plaintiff would have lost not only the properties but also the amount already paid by him to the 3rd defendant towards the price. Delay in payment would have increased the debt by accumulation of interest. The existence of the debts is proved by the decrees and the validity and binding nature of these on the estate are not in doubt. Collusion is not imputed to the parties and no special advantage was derived by the plaintiff from the payments. The payments must therefore be considered to have been made in good faith.

5. The properties are freed from liability by the payments but the person benefited by it is not the plaintiff who made the payments. He is deprived of the possession of properties by defendants 1 and 2 who are declared to be lawful owners thereof and they have the advantage of enjoying these free from the burden of any obligation. Plaintiff has done what defendants 1 and 2 had to do for avoiding loss of the properties to them and as such refusal or resistance on their part to the suit claim looks unreasonable. Apart from technicality, defendants 1 and 2 can have no cause for complaint if the amounts admittedly due are to be paid to plaintiff instead of the decree-holders as it makes no difference in the sum payable and there is no possibility of the payment being questioned by any other. The tendency of persons to profit themselves at the expense of others, to deny reparation to those who have helped them to appropriate the fruits of the acts of others is not favoured in Courts and the doctrine of unjust enrichment is often invoked to promote the ends of justice. Sri E.S. Venkataramaiah on behalf of appellants urged that this doctrine cannot be pressed into service to defeat or circumvent the provisions of the statute and cited the Full Bench decisions in Kiru Ram Das v. Mozaffer Hosain, ILR 14 Cal 809 (F) and Chitormal v. Shiblal, ILR 14 All 273 (G). The question in both these cases was whether payment by one person of taxes due to Government by another with respect to a land can create a charge on the land for recovery thereof. It was held by a majority of 3 to 2 and 4 to 1 respectively that the first or paramount charge on the holding in favour of Government as regards arrears of revenue cannot be acquired by the payment and that the incidents of salvage lien are not to be extended to such cases. The dissenting but minority opinion however in both cases was that it should be allowed on grounds of justice, equity and good conscience Mahmud, J., at page 314 in 14 All 273 (G) observed : "Maritime salvage as understood in the English Law is only a species of the genus and if England or other Maritime Countries restrict themselves to one or more species of salvage it does not follow that other countries which are not maritime like the territories over which this Court exercises jurisdiction should limit themselves to any species of salvage adopted by maritime countries to the exclusion of other species of salvage falling under the general genus of the equitable doctrine".

6. Dakhina Mohan Roy v. Saroda Mohan, ILR 21 Cal 142 (PC) (H) is a case in which a person who while in possession of an estate under a decree paid revenue and cesses but the decree was reversed in appeal and he was deprived of possession. The Judicial Committee expressed that possession of the person who made the payment was rightful and not wrongful at the time and that "the claim is in the nature of salvage; and it is to be observed that the law relating to sales for arrears of Government Revenue recognises an equity to re-payment in the case of a person who not being proprietor pays the Government Revenue in good faith to protect a claim which afterwards turns out to be unfounded." On the same principle payments made by a purchaser on the strength of a title which was later found by the Court to be ineffective were in Ammani Ammal v. Ramaswami Naidu, 51 Ind Cas 57 : (AIR 1919 Mad 105) (I) ordered to be made good. At page 62 (of Ind Cas) : (at p. 109 of AIR) Napier, J., observes : "There is however another doctrine which may affect some payments and that is one analogous to the doctrine of salvage.....and the doctrine comes to this, that where a person buys property in good faith and for the purpose of clearing a mortgage on that property pays money to the vendor to be so applied then even if the vendor had no title, still as the mortgage was binding on the estate the vendee becomes an equitable assignee of the mortgage".

7. Nasir-uddin v. Ahmad Husain, AIR 1926 PC 109 (J) is also a case in which the sale was held to be invalid but the purchaser who had discharged mortgages on the property was considered to be entitled to stand In the shoes of the mortgagees whom he paid off.

8. In Palamalai Mudaliyar v. South Indian Export Co. Ltd., ILR 33 Mad 334 (K) sale of a property was set aside as being fraudulent under Section 53 of the Transfer of Property Act but the amounts paid by the transferee for satisfaction of a mortgage decree binding on the property were held to be a charge. In Narayana Kutti Goundan v. Pechiammal, ILR 36 Mad 426 (L) for discharge of a decree against a widow the daughters raised a loan by mortgaging the property, and the creditor sued for recovery of the amount. At page 437 Sundara Iyer, J., stated :- "I am of opinion that the daughters had sufficient interest in the land to entitle them to discharge Muthu Gowdans debt when the property was brought to sale and that by doing so they obtained a charge over the land which they were entitled to assign or charge in favour of plaintiff. I must therefore hold that plaintiff obtained a valid charge for the amount paid by him to discharge Muthu Gowdans mortgage". Spencer, J., briefly remarked that plaintiff was equitably entitled to a charge.

9. Ghosh in his Law of Mortgages, Volume I page 373 states : "A purchaser when the purchase money has been applied by the vendor in discharging incumbrances on the estate sold to him can also avail; himself of the doctrine of subrogation if the sale is for any reason afterwards set aside".

10. In Veetil Kelu v. Chekkara Cheppan, AIR 1937 Mad 451 (M) the mortgage debt was paid by a person who had not acquired the right of the mortgagor. Nevertheless it was held that he was entitled to subrogation of the mortgagees rights.

11. Mt. Nathibai Ramratan v. Wailaji Punjaji AIR 1937 Nag 330 (N) is a case in which an alienee from a limited owner discharged certain debts but the alienation as a sale was held to be ineffective owing to defect in the registration of the document. Pollock, J., allowed the claim for amounts paid towards debts binding on the estate saying at page 333 : "It has been contended that........the doctrine of subrogation should not be applied in the present case because there was a fraud on the registering officer. It is not clear what the motive in deceiving the registering officer could have been but the payment to the mortgagee was clearly made in good faith and I see no reason why in equity the reversioner should be allowed to claim the estate free of the encumbrances.......On the ordinary principle of subrogation I hold that the defendants are entitled to fall back on the mortgage which they have paid off to the extent it was binding on the estate."

12. Under Section 91 (a) of the Transfer of Property Act, any person who has any interest in or charge upon the property mortgaged may redeem the mortgaged property. By the succeeding section the person redeeming acquires the rights of the mortgagee against the mortgagor and is "subrogated to the rights of the mortgagee whose mortgage he redeems". Sections 91 and 92 are inserted by the amending Act 20 of 1929 and "subrogation" though not expressly mentioned in the Act prior to the amendment was provided for in the repealed Sections 74 and 75 and the right to redeem was available to the person "having interest" in the mortgaged property even before the amendment. The criterion of "having interest" is that there should be a reasonable basis for a person to honestly act upon in a manner which cannot be regarded as improper or wanton and not that the interest should be such as cannot be successfully challenged by any one. As stated in Mt. Munni Bibi v. Trilokinath, ILR 54 All 140 : (AIR 1932 All 332) (O), interest in making payment does not mean such an interest as will stand the test of a judicial trial and all that is necessary is that the person making the payment should honestly and really believe the payment to be necessary in his own interest. It seems repugnant to justice and equity that those who get or want to retain the advantage resulting from payments made by others should be immune from the obligation of making good the same and that bona fide alienees who clear off encumbrances binding nature of which is not open to doubt, should be denied reimbursement because of the alienation being attacked later on and being found to be defective or ineffective. It has been held in the cases referred to that relief cannot be denied on this ground. In the present case as the existence of the encumbrances and necessity for the discharge are undisputed and good faith for the payments by plaintiff is established, the plaintiff is entitled to recover the amounts as a charge on the properties which are relieved from liability for the decretal debts. The suit was filed within twelve years from the dates of payments and as such there is no bar of limitation.

13. The decrees of the Courts below are confirmed and the appeal is dismissed with costs. Appeal dismissed. AIR 1957 MYSORE 68 (V 44 C 37 Sept.) "Channabasappa v. State of Mysore" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA, C.J. AND SREENIVASA RAO, J. ( Division Bench ) Channabasappa, Accused v. State of Mysore, Respondent. Criminal Appeal No. 77 of 1956, D/- 7 -12 -1956, against conviction and sentence passed by S.J., Bangalore in S.C. No. 5 of 1956. (A) Penal Code (45 of 1860), S.300 - MURDER - CHARGE - Knowledge and intention - Knowledge that act is likely to cause death - Absence of words in charge. Criminal P.C. (5 of 1898), S.223. The view of the Sessions Judge that the accused, in stabbing his father and thereby causing his death, acted without motive, illwill or sinister purpose and that he must be presumed to have known the result of it is tantamount to saying that the act was intentional, as intention has to be inferred from the manner in which a person acts. The accused cannot, therefore, be said to have been prejudiced by absence in the charge, which imputes intention to commit the act, of words alleging that he stabbed the father with knowledge that it is likely to cause death. (Para 2) Anno : AIR Man. Penal Code, S. 300, N. 2; AIR Com. Cri. P. C., S. 223, N. 12. (B) Penal Code (45 of 1860), S.84 - UNSOUND MIND - EVIDENCE - Person if sane - Presumption - Burden of proving exception - Test of insanity - Atrocity of crime and absence of motive. Evidence Act (1 of 1872), S.105. A person is presumed to be sane, possessed of understanding as to what is right or wrong, to have sense enough to anticipate what will or may happen in certain cases. That is the rule and the burden of proving the exception is on those who rely on it. Exemption from liability is provided for in the Code when the persons concerned are of the exceptional class. (Para 3) From the mere fact of the accused being subject to periodic fits, the interval and the intensity of which are left uncertain, it is difficult to assume or infer anything more than that the mind is enfeebled and that his intellectual power is impaired. (Para 4) The benefit of S. 84 cannot be claimed by pointing to mere possibilities and impressions that without adequate motive heinous crimes are perpetrated on loving relations by persons prone to debilitating ailments when they are of unsound mind and cannot distinguish between right and wrong. The test is whether cognitive faculties of the mind are so impaired as to make the offender incapable of knowing that what he is doing is wrong. The atrocity of the crime and absence of motive are not the criterion to constitute unsoundness of mind and are only some of the features ordinarily associated with it. (1843) 10 Cl and F 200, Rel. on. (Para 4) Anno : AIR Man., Pen. Code, S. 84, N. 3. C.J.I., Evi. Act, S. 105, N. 2. Cases Referred : Chronological Paras (A) (40) 45 Mys HCR 92 4 (B) (1843) 10 Cl and F 200 : 8 ER 718 4 (C) AIR 1949 Nag 66 (V 36) : 50 Cri LJ 181 4 (D) AIR 1955 Sau 105 (V 42) : 1955 Cri LJ 1628 4 (E) AIR 1952 Mad 175 (V 39) : 64 Mad LW 731 : 1952 Cri LJ 366 4 M.B. Sreenivasan (for Legal Aid Society), for Appellant; Addl. Asst. Advocate-General, for Respondent. Judgement This is an unfortunate case in which the Appellant who is aged about 30 years stands convicted of offences under Ss. 302 and 324, I. P. C., for having caused hurt to his mother and death of his father by striking them with a knife on the morning of 24th September 1955 apparently for the reason that the mother tried to persuade him not to injure himself with the knife and the father approached him in horror when there was a cry about the mother being stabbed. The fact that the appellant inflicted wounds on himself, that the mother in fright rushed towards him that she was stabbed with the same instrument, that on arrival of the father he too was struck and killed on the spot is not and cannot be disputed as there is ample evidence particularly that of his own mother and a neighbour who was present at the time. After the incident the appellant threw the knife aside and stayed unmoved. The examination by the doctor disclosed that the father was dead because of the wounds on the vital parts of the body due to external attack, that the accused and his mother bore injuries on portions of the body, those of the mother being more serious than his own. The appellant did not offer any explanation for his acts but only said that he was not conscious of these. The learned Judge has held that he was capable of understanding the consequences of what he did and is therefore guilty. On the ground that the appellant is of weak intellect and was not actuated by any motive, the lesser sentence of transportation for life has been awarded with a recommendation for relief under S. 401 of the Code of Criminal Procedure, by Government.

2. On behalf of the Legal Aid Society which offered assistance to the appellant in conducting the appeal, Sri Srinivasan argued that the conviction is erroneous and urged in support of it that the acts of the appellant are to be treated as those of a person of unsound mind to which criminal liability cannot be attached and that the element necessary to constitute the offence and found to be made out is not set out in the charge. The latter contention may be first disposed of as it has no force. The grievance is that the charge imputes intention to commit the act and the finding is that the act was committed with knowledge of its effect. For this what is stated at the end of the judgment of the lower Court is referred to but this cannot be construed as a definite expression that intention in the legal sense was lacking. Rather the view appears to be that without motive, illwill or sinister purpose the appellant acted and that he must be presumed to have known the result of it. This is tantamount to saying that the act was intentional as intention has to be inferred from the manner in which a person acts. Learned Counsel was unable to suggest how the appellant is prejudiced by absence in the charge of words alleging that he stabbed the father with knowledge that it is likely to cause death. Nor did he indicate difference which insertion of those words would have made for the defence. The objection to the conviction as not being warrants ed by the charge is untenable.

3. The question whether the appellant was conscious and aware of what he did involves consideration of a variety of factors. A person is presumed to be sane, possessed of understanding as to what is right or wrong, to have sense enough to anticipate what will or may happen in certain cases. That is the rule and the burden of proving the exception is on those who rely on it. Exemption from liability is provided for in the Code when the persons concerned are of the exceptional class. Section 84, I. P. C., invoked for the appellant states : "Nothing is an offence which is done by a person who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law."

4. The appellant is not a person who can be called a lunatic or an idiot or is considered to be insane. He was married once and is said to be aggrieved at not being re-married after the death of his wife. The shop kept by the father was being managed by him. On the day prior to the occurrence he went to a place close to the village for selling articles and picked up a quarrel with another trader Narasiah. There is evidence to show that the appellant pulled the legs of Narasiah when he was walking in the street and tripped him and that the appellant was admonished for this by the father. The mother has stated that appellant is an epileptic and the doctor whose opinion was sought before the commencement of the proceedings in the Magistrates Court about the mental condition of the appellant has expressed, after observation for some days, that he had an attack of the disease which passed off and he was fit to be tried. From the mere fact of his being subject to periodic fits, - the interval and the intensity of which are left uncertain, it is difficult to assume or infer anything more than that the mind is enfeebled and that his intellectual power is impaired. Sri Srinivasan tried to persuade us to hold that the act of injuring himself and injuring the parents was committed when the appellant on account of an attack was deprived of consciousness. There is nothing in the conduct or behaviour of the appellant prior or subsequent to this which probabilises practise of violence on others during the attack. During the proceedings in the lower Court the behaviour of the appellant is stated to have been quiet, normal and no signs of his being defective in understanding were noticed. The benefit of the section cannot be claimed by pointing to mere possibilities and impressions that without adequate motive heinous crimes are perpetrated on loving relations by persons prone to debilitating ailments when they are of unsound mind and cannot distinguish between right and wrong. In 45 Mys HCR 92 (A), the accused who was a person normally not sane, killed two relations with whom he was not on bad relations when they were asleep. The trial was postponed for two years on account of his detention in the mental hospital and was started after he was declared to be fit to be tried. It was held that S. 84 cannot be availed of as unsoundness of mind within the meaning of the very strict terms of the section was not made out by the accused. The test laid down in the leading case of Daniel MNaghtens case, (1843) 10 Cl and F 200 (B) is whether cognitive faculties of the mind are so impaired as to make the offender incapable of knowing that what he is doing is wrong. The same construction is placed on the section in a number of other cases. See Baswantrao Bajirao v. Emperor, AIR 1949 Nag 66 (C); State v. Koli Jeram Duda, AIR 1955 Sau 105 (D) and Palaniswami Goundan, In re, 64 Mad LW 731 : (AIR 1952 Mad 175) (E). It is necessary to remember that the atrocity of the crime and absence of motive are not the criterion to constitute unsoundness of mind and are only some of the features ordinarily associated with it.

5. The appellant seems to be of highly strung nerves and abnormal temper which seem to have been aggravated by the disease and want of watchful effective check by others. It cannot be said that when he annoyed Narasiah by holding the legs and made him fall he did not know it was wrong. The self-inflicted injury signifies that after being reprimanded by the father he sought to punish himself, either because he took it too much to heart or because he was sentimental or morbid. The conviction is justified and the appeal is dismissed. The recommendation of the learned Sessions Judge to Government for appropriate relief under S. 401 of the Code of Criminal Procedure, however, deserves consideration. Appeal dismissed. AIR 1957 MYSORE 70 (V 44 C 38 Sept.) "Chikkanarasaiah v. Venkatappa" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) Chikkanarasaiah and others, Petitioners v. Venkatappa, Respondent. Criminal Revn. Petn. No.392 of 1956, D/- 11 -3 -1957. (A) Criminal P.C. (5 of 1898), S.344 - CRIMINAL TRIAL - CRIMINAL PROCEEDINGS - Stay of criminal proceedings - Principles. Criminal Trial - Stay of. The policy of criminal law is to bring an accused to justice as speedily as possible so that if found guilty he may be punished, and if innocent he may be let off as early as possible. Stay of criminal proceedings can be allowed only on special and justifiable grounds. No hard and fast rule can be laid as to the circumstances under which a stay in the criminal case has to be ordered. Every case has to be judged on its own merits. AIR 1954 SC 397, Foll. (Para 4) Where a complaint under Ss. 447, 341 and 352, I. P. C., was instituted earlier than the civil suit filed by the accused which involved the question of possession of the land in dispute. Held that it was not expedient to stay the criminal proceedings as the finding in the Civil Court as to who is in possession will not finally dispose of the criminal case. The mere fact that the question of possession can more appropriately be dealt with in the civil suit or that there would be a possibility of conflicting decisions is not quite a relevant factor to be taken into consideration in deciding whether the proceedings in the criminal case can be stayed. (Para 5) Anno : AIR Com., Cr. P. C., S. 344, N. 11. (B) Criminal P.C. (5 of 1898), S.344 and S.439 - REVISION - CRIMINAL PROCEEDINGS - Discretion to stay criminal proceeding - Interference in revision. The power given to the Court under Section 344 of the Criminal Procedure Code is entirely discretionary which discretion is to be exercised judicially according to the circumstances of each case. When the Magistrate has exercised the discretion in a particular way holding that there are not sufficeint grounds to adjourn the criminal proceedings and it cannot be said that the discretion exercised by the Magistrate is not proper, the High Court will refuse to interfere in revision. (Para 6) Anno : AIR Com. Cr. P. C., S. 344, N. 6, 11, 13, S. 439, N. 17, 27. Cases Referred : Chronological Paras (A) AIR 1954 SC 397 (V 41) : 1954 Cri LJ 1019 4 B.T. Parthasarathy, for Petitioners; A. Shamanna, for Respondent. Judgement This is a revision petition preferred by the petitioners-accused against the order of the learned Second Magistrate, Bangalore, dismissing their application filed under Section 344, Cr. P. C., for stay of proceedings pending against them in C.C. No. 973 of 1956, pending disposal of O.S. No 261/56 on the file of the second Munsiff, Bangalore.

2. The facts that have given rise to this petition are briefly as follows:

3. The respondent-complainant preferred a complaint against these petitioners-accused before the learned Second Magistrate, Bangalore, alleging that he has been in possession of the schedule land, that the accused trespassed into it on 2-6-56 and obstructed him from ploughing the land, that they further assaulted him and that they thereby committed offences under Sections 447, 341 and 352, I. P. C. After the petitioners-accused appeared before Court, they filed an application under Section 344 of the Criminal Procedure Code for stay of proceedings in that criminal case pending disposal of a civil suit instituted by the respondent-plaintiff in the Court of the learned Second Munsiff, Bangalore, in O. S. No. 261/56. The grounds alleged by the petitioners in support of that application are that they have been in possession of the schedule land that the complaint is false, that the question as tip who is in possession is also involved in O. S. No. 261/56 on the file of the Second Munsiff, Bangalore, that it would be more appropriate that this question of possession is gone into in the civil suit, that if the proceedings in both the Courts are allowed to continue, they (petitioners-accused) will highly be prejudiced and that therefore, the proceedings in the criminal case may be stayed pending disposal of the suit in the civil Court. The learned Magistrate dismissed that application and against that order, this revision petition is filed.

4. I am of opinion that there are not sufficient grounds to grant the prayer of the petitioners. At the outset, it has to be pointed out that the policy of criminal law is to bring an accused to justice as speedily as possible so that if found guilty he may be punished, and if innocent he may be left off as early as possible. Stay of criminal proceedings can be allowed only on special and justifiable grounds. I do not find any such grounds or circumstances in this case. In this connection, I can do nothing better than reproduce a passage from a decision of the Supreme Court reported in M.S. Sheriff v. State of Madras, AIR 1954 SC 397 (A). Their Lordships of the Supreme Court have laid down therein the principles governing the stay of proceedings in a criminal case. That passage runs thus : "As between the civil and the criminal proceedings, the criminal matters should be given precedence....No hard and fast rule can be laid down but the possibility of conflicting decisions in the civil and the criminal Courts is not a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other or even relevant except for certain limited purposes such as sentence or damages. The only relevant consideration is the likelihood of embarrassment. Another factor which weighs with Court is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should be postponed till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure that the guilty should be punished while the events are still fresh in the public minds and the innocent should be absolved as early as is consistent with a fair and impartial trial."

5. In this case, the complaint was instituted earlier than the civil suit. The mere fact that the question of possession can more appropriately be dealt with in the civil suit or that there would be a possibility of conflicting decisions is not, in my opinion, quite a relevant factor to be taken into consideration in deciding whether the proceedings in the criminal case can be stayed. No hard and fast rule can be laid as to the circumstances under which a stay in the criminal case has to be ordered. Every case has to be judged on its own merits. In this case, the offence complained of is not merely one of trespass but the complaint includes offences under Sections 341 and 352 also. The finding in the civil Court as to who is in possession will not finally dispose of the criminal case. Under such circumstances, it is not expedient to stay criminal proceedings.

6. The power given to the Court under Section 344 of the Criminal Procedure Code is entirely discretionary which discretion is to be exercised judicially according to the circumstances of each case. The learned Magistrate has exercised the discretion in a particular way holding that there are not sufficient grounds to adjourn the criminal proceedings. It cannot be said that the discretion exercised by the learned Magistrate is not proper. I do not know how the petitioners would be prejudiced or embarrassed if both the criminal and the civil cases are proceeded with simultaneously. On the other hand, the pendency of the civil case may be a factor in favour of the petitioners in the criminal case. Under these circumstances. I am of opinion that the order of the learned Magistrate has to be affirmed.

7. In the result, the order of the learned Magistrate is confirmed and this revision petition stands dismissed. Revision dismissed. AIR 1957 MYSORE 71 (V 44 C 39 Sept.) "Kapila Bai v. H.S. Madhava Rao" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) Kapila Bai, Plaintiff-Petitioner v. H.S. Madhava Rao and others, Defendants-Respondents. Civil Revn. Petn. No. 397 of 1954, D/- 7 -2 -1957, against order of Dist. J., Bangalore, D/- 22 -2 -1954. (A) Evidence Act (1 of 1872), S.144 - EVIDENCE - WARRANT - PARTITION - DECREE - Delivery warrant - Endorsement on, by revenue authorities - Presumption. Civil P.C. (5 of 1908), S.54, O.20, R.18. Where a delivery warrant is issued for division of properties by metes and bounds after a preliminary decree was passed in a suit for partition and possession, endorsement on a delivery warrant made by the revenue authorities cannot be conclusive evidence of the fact that division was effected and possession was given. No doubt, such an endorsement on a warrant may give rise to a presumption that what is stated therein is true, but it is only a rebuttable presumption. 1 Mys LR 70, Rel. on. (Para 4) Anno : C. J. I., Evid. Act, S. 114, N. 24. (B) Civil P.C. (5 of 1908), S.151, O.20, R.18 - DECREE - INHERENT POWERS - PARTITION - Preliminary decree in partition suit - Delivery warrant returned with shara that warrant was duly executed - Final decree passed - Subsequent application alleging that shara was false - Jurisdiction of trial Court to enquire into genuineness of shara. Where after a preliminary decree in a partition suit a delivery warrant was issued for division of the properties by metes and bounds and the same was returned with a shara that the warrant was duly executed, and acting on this shara the Court passed a final decree and the same was ordered to be drawn up and subsequently, the petitioner filed application alleging that the schedule properties were not divided, that she was not put in possession of her one-third share and that the shara on the warrant that division had been effected and that the petitioner was put in possession of her one-third share was false, it is competent to the trial Court under its inherent powers to enquire into the genuineness of the shara on the warrant. The proper course would be to examine the materials placed before Court and, if necessary to allow the parties to adduce evidence in that behalf and then give a finding whether what was stated in the endorsement was true or not. AIR 1956 Trav-C 87, Rel. on. (Paras 3, 4) Anno : AIR Com., Civil P. C., S. 151, N. 6. (C) Stamp Act (2 of 1899), S.2(15), Sch.I, Art.45 - STAMP - DECREE - PARTITION - Final decree for partition drawn on plain paper - Court does not become functus officio. A final decree for partition passed by a civil Court is an instrument of partition as defined under Section 2 (15) of the Stamp Act. Such a decree can be engrossed only on stamp paper of sufficient value and till then the final decree cannot be deemed to have any existence. The Court has no power to draw up a final decree on a plain paper and sign it if the required stamp paper is not furnished or is not available. In this view, the Court does not become functus officio after signing the final decree engrossed on plain paper : AIR 1938 Mad 307 and (S) AIR 1956 Mad 207 (FB), Rel. on. (Para 5) Anno : AIR Com., Stamp Act S. 2(15), N. 15; Sch. 1, Art. 45, N. 4. Cases Referred : Chronological Paras (A) 1 Mys LR 70 4 (B) AIR 1956 Trav-C 87 (V 43) : 1955 Ker LT 459 4 (C) AIR 1938 Mad 307 (V 25) : 183 Ind Cas 33 5 (D) (S) AIR 1956 Mad 207 (V 43) : 1955-2 Mad LJ 635 (FB) 5 C.K. Narayana Rao, for Petitioner; S.L. Shankaranarayana Bhatta, for Respondent No. 4, Judgement This is a revision petition preferred by the petitioner-plaintiff against the order of the learned First Additional District Judge, Bangalore, dismissing her applications I.A. Nos. X and XI in O. S. 9 of 1944-45.

2. The facts that have given rise to this revision petition are briefly as under :

3. The petitioner-plaintiff obtained a preliminary decree against the respondents in O. S. 9 of 1944-45 for partition and possession of her 1-3rd share in the schedule properties. This was on 31-8-46. She made an application I. A. No. VIII on 25-3-48 under Sec. 54 and Order XX, Rule 18 of the Civil Procedure Code praying that a copy of the preliminary decree may be sent to the Deputy Commissioner, Kolar, for effecting the division of the lands and putting her in possession of her 1/3rd share. A warrant was accordingly issued for division of the properties by metes and bounds and the same was returned with a shara that the warrant was duly executed. Acting on this shara, the Court passed a final decree and the same was ordered to be drawn up and this was on 4-7-49. Subsequently, the petitioner filed I. A. Nos. X and XI alleging that the schedule properties were not divided, that she was not put in possession of her one-third share and that the shara on the warrant that division had been effected and that the petitioner was put in possession of her one-third share was false. She also requested that the copy of the preliminary decree may be sent to the Deputy Commissioner for effecting a division by metes and bounds and for putting her in possession of her share. The learned Judge dismissed these applications holding that there was already a division of the properties by metes and bounds, that the petitioner was put in possession of her share, that a final decree has been passed, that there cannot be another division, that when once the Court passes a final decree it becomes functus officio that it has no jurisdiction to re-open the proceedings and that the remedy of the plaintiff was by another regular suit against the respondents. It is against this order that this revision petition is preferred.

4. It appears to me that the order of the learned Judge cannot be sustained. Much importance appears to have been attached by the learned Judge to the shara made on the warrant that division was effected and that the petitioner was put in possession. This endorsement on the warrant made by the revenue authorities cannot be conclusive evidence of the fact that division was effected and possession was given. No doubt, such an endorsement on a warrant may give rise to a presumption that what is stated therein is true, but it is only a rebuttable presumption. When the plaintiff contended that the shara on the warrant was false and fraudulent, that no division was effected and that she was not put in possession of her one-third share as stated therein, the proper course would have been to examine the materials placed before, Court and, if necessary, to allow the parties to adduce evidence in that behalf and then give a finding whether what was stated in the endorsement was true or not, which course the Court below did not adopt. If authority is needed for the proposition that an endorsement on a delivery warrant is not conclusive evidence of the fact stated therein, I may refer to a case reported in 1 Mys LR 70(A). I may also refer in this connection to a case reported in Lekshmi Amma v. Mammen Mammen, AIR 1936 Trav-C 87 (B). Therein his Lordship Kumar Pillai has held that where the record of delivery of the property in pursuance of the sale certificate was brought into existence as a result of fraud and there has been no real delivery, it is competent for the Court under its inherent powers to set aside the alleged first delivery and order delivery of the same properties to the person entitled for a second time. Therefore the contention that the trial Court had no jurisdiction to enquire into the genuineness of the shara on the warrant cannot be accepted.

5. There is another more important point that has to be considered in this case. Though actually a final decree has been drawn up in this case by the lower Court, it appears to me that in the eye of law the same must be deemed not to exist. A final decree for partition passed by a civil Court is an instrument of partition as defined under S. 2(15) of the Stamp Act. Such a decree can be engrossed only on stamp paper of sufficient value and till then the final decree cannot be deemed to have any existence. In this case, the final decree has been drawn up on a plain paper. The Court has no power to draw up a final decree on a plain paper and sign it if the required stamp paper is not furnished or is not available. If it does so, it will not be a correct thing. A decree for partition to be operative must be engrossed on stamp paper as required by the Stamp Act and until the Judge signs a decree so engrossed, it cannot be said that the proceedings have terminated. In Satyanandam v. Nammayya, AIR 1938 Mad 307 (C), it has been observed that it is well settled that a final decree for partition has no existence as a decree until it is engrossed on proper stamp paper and that till that is done, the suit must be deemed to be pending. Therefore the finding of the lower court that the Court had become functus officio after signing the final decree engrossed on plain paper is not correct. In the case reported in Board of Revenue, Madras v. Moideen Rowther, 1955-2 Mad LJ 635 : ((S) AIR 1956 Mad 207) (D), a Full Bench of that Court has taken the view enunciated above. That was a case where a final decree was engrossed on a paper insufficiently stamped. The Court held that the decree not having been engrossed on a requisite stamp paper must be deemed to be non-existent. Under these circumstances, I am of opinion that the finding of the learned Judge on I. A. Nos. X and XI cannot be upheld.

6. In the result, the order of the learned First Additional District Judge on I.A. Nos. X and XI is set aside and the lower court is directed to dispose of I.A. Nos. X and XI afresh according to law. This revision petition is allowed with costs. Advocates fee Rs. 25/-. Petition allowed. AIR 1957 MYSORE 72 (V 44 C 40 Sept.) "Davanagere Cotton Mills v. State" MYSORE HIGH COURT Coram : 2 SREENIVASA RAO AND HOMBE GOWDA, JJ. ( Division Bench ) Davanagere Cotton Mills Ltd., Petitioner v. State of Mysore and another, Respondents. Writ Petn. No.74 of 1955, D/- 10 -10 -1956. Mysore Sales Tax Act (46 of 1948), S.2(j) - SALES TAX - Sales Tax - Sales effected in course of business - Mill effecting sales in canteen attached to it. The Act does not seek to levy sales tax on all sales transactions, but only on such transactions as are effected in the course of business. AIR 1954 Mad 1130 and AIR 1954 Mad 1143 and AIR 1954 Mad 1144, Rel. on. (Para 3) A mill cannot, therefore, be assessed to sales tax in respect of sales effected by it in the canteen run by it for the benefit of its employees, as such sales cannot be regarded as sales effected in the course of business. AIR 1954 Mad 1143, Rel. on. (Para 3) Cases Referred : Chronological Paras (A) AIR 1954 Mad 1130 (V 41) : ILR (1955) Mad 832 3 (B) AIR 1954 Mad 1144 (V 41) : ILR (1955) Mad 1042 3 (C) AIR 1954 Mad 1143 (V 41) : 1955-1 Mad LJ 104 3

V.L. Narasimhamurthy, for Petitioner; D.M. Chandrasekhar for Advocate General for the State. Judgement SREENIVASA RAU, J. :- This Writ Petition challenging the legality of the levy of sales tax from the Petitioner Mills in respect of the transactions in the canteen run by the Mills has arisen under the following circumstances :

2. The Sales Tax Officer, Chitaldrug, assessed the Petitioner to Sales Tax during the quarters ending June 1952, September 1952, March 1953 and June 1953 in respect of the sales effected in the canteen attached to the Mills. The Assessee preferred a review petition before the Deputy Commissioner of Sales Tax. Mysore, that the sales in the canteen did not represent business done by the Mills in the course of their trade or business. This contention was upheld by the Deputy Commissioner and he directed the Sales Tax Officer to reduce the demand to a corresponding extent. The Commissioner of salts-tax sought suo motu to revise the orders of the Deputy Commissioner and notified the assessee. After hearing the assesses the Commissioner took the view that the levy of sales tax on the sale of articles of food and drink in the canteen was in order and restored the assessment made by the Sales Tax Officer in that regard. This decision of the Commissioner of Sales Tax is challenged as being outside the scope of the Sales Tax Act.

3. The main ground urged by the Petitioner is that it is only the sales effected in the course of business or trade that are amenable to the levy of Sales Tax as under the Act a dealer is a person who carries on the business of buying and selling goods. It is contended that it is only an activity carried on for commercial purposes with a view to earn profit whether actually profit is earned or not that can be regarded as a sale under the Act. This view did not commend itself to the Commissioner of Sales Tax. It appears to us to be quite clear that the Act does not seek to levy sales tax on all sales transactions but only on such transactions as are effected in the course of business. In this view we are supported by three decisions of the Madras High Court Dunkerley and Co. Ltd. v. State of Madras, AIR 1954 Mad 1130(A), in which it was held that the sale of foodgrains by an Engineering firm to its workmen which was carried on as an ameliorative measure and without any profit motive was not a sale within the meaning of the Madras General Sales Tax Act. Deputy Commercial Tax Officer, Triplicane v. Cosmopolitan Club, AIR 1954 Mad 1144(B) in which it was held that the sale of refreshments by a club to its members was not a sale within the meaning of the Madras General Sales Tax Act, as the club was an association not designed for making a profit not striving after profit and as there was no intention of making profit by sale of refreshments to members. It may also be mentioned that in the present case in addition to there being no intention on the part of the Petitioner Mills of making profit by running a canteen the Mills are bound to run a canteen on a no profit, no loss basis by virtue of a statutory obligation imposed under S. 46 of the Factories Act and rules thereunder; Meenakshi Mills Ltd. v. State of Madras, AIR 1954 Mad 1143 (C) was a case wherein an identical question arose. There also the assessee Mills were assessed to sales tax in respest of sales effected by them in canteens ran by them for the benefit of their employees in conformity with the requirements of the Factories Act. The Madras High Court held that such sales could not be regarded as sales effected in the course of business and amenable to the levy of sales tax. We respectfully agree with the view. We may also add that in the second of the cases mentioned above, the Madras High Court held that the High Court had ample jurisdiction to grant relief to the Petitioner by the issue of a Writ though the Petitioner in that case had not exhausted his remedy under the Madras General Sales Tax Act. In the case on hand it will be remembered that the order challenged has been made by the Commissioner of Sales Tax setting aside the order of the Deputy Commissioner of Sales Tax. We consider this an appropriate case to issue a writ.

4. We accordingly direct that a writ of certiorari quashing the orders of assessment passed by the Commissioner of Sales Tax in Mysore be issued as prayed for in the writ petition. Respondent 2 will pay the petitioners costs. Advocates fee Rs. 100/-. Writ issued. AIR 1957 MYSORE 73 (V 44 C 41 Oct.) "D. C. Mills v. Dy. Commr." MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA, C.J. AND SREENIVASA RAU, J. ( Division Bench ) The Davangere Cotton Mills Ltd., Petitioner v. The Deputy Commissioner and another, Respondents. Writ Petn. No.15 of 1956, D/- 12 -4 -1957. Cotton Cess Act (14 of 1923), S.2(a) and S.6 - CESS - GENERAL CLAUSES - APPLICABILITY OF AN ACT - Deputy Commissioner in Mysore if Collector - Applicability of General Clauses Act. General Clauses Act (10 of 1897), S.3(10). Mysore General Clauses Act (3 of 1899), S.3(9). Reference to the Central General Clauses Act is not only permissible but also necessary for giving effect to the provision in the Cotton Cess Act uniformly. According to the definition of Collector in the Central General Clauses Act the Deputy Commissioner in Mysore has to be regarded as a Collector since he is the Chief Officer in charge of the revenue administration of a District as stated by Section 3 (9) of the Mysore General Clauses Act. Consequently, no objection can be taken to a notice issued by a Deputy Commissioner in exercise of the powers conferred by S. 6 of the Cotton Cess Act on the ground that he is not a Collector. (Paras 1 and 2) Cases Referred : Chronological Paras (A) AIR 1955 Madh-B 36 (V 42) : 1955 Cri LJ 476 2

V.L. Narasimha Murthy, for Petitioner; Advocate-General, for Respondents. Judgement The petitioner is a Mill in Davangere which has been served with a notice by the Deputy Commissioner, Chitaldrug District, to furnish Returns showing the quantity of Cotton consumed in the Mill from April 1951 upto December 1955. The said notice was issued by him in exercise of the powers conferred by Section 6 of the Cotton Cess Act, 1923, Act No. XIV of 1923. Objection has been taken to the said notice on the ground that the authority competent to call for the Return is a Collector and not a Deputy Commissioner. According to Section 2 (a) of the Act, Collector means "in reference to cotton consumed in a mill, the Collector of the District in which the mill is situated (or any other officer appointed by the Central Government) to perform the duties of a Collector under this Act." It is conceded that there is no order of the Central Government appointing the Deputy Commissioner as a Collector for the purpose of the Act and that the Deputy Commissioner in Mysore holds the same position and performs the same duties as a Collector in other States. There are no officers called Collectors in Mysore and the persons or officers who are to be treated as such are not specified in the Mysore General Clauses Act or any other enactment. Section 3 (10) of the Central General Clauses Act however states "Collector shall mean, in a Presidency town, the Collector of Calcutta, Madras or Bombay, as the case may be, and elsewhere the chief officer-in-charge of the revenue administration of a district." According to this definition, the Deputy Commissioner has to be regarded as a Collector since he is the chief officer in charge of the revenue administration of a District as stated by Section 3 (9) of the Mysore General Clauses Act.

2. Sri Narasimha Murthy, learned counsel for the Petitioner, argued that the Central General Clauses Act cannot be availed of to construe words in Cotton Cess Act when it is applied in Mysore. The Cotton Cess Act is a Central Act applicable to all States in India and if the argument is correct, there is no officer at all competent to act in Mysore and each State has to construe the provisions in accordance with the local General Clauses Act which may or may not be uniform with the result that the meaning of particular words should vary from State to State. The Act does not warrant the assumption that it is meant to operate differently from State to State. It is definitely stated in Section 1 (2) that the Act applies to the whole of India except Jammu and Kashmir and reference to the Central General Clauses Act is not only permissible but also necessary for giving effect to the provision in the Cotton Cess Act uniformly. The same view is expressed in a case reported in Hubbalal v. State of M. B., AIR 1955 Madh-B 36 (A).

3. The objection raised is untenable. The petition is dismissed. No costs. Petition dismissed. AIR 1957 MYSORE 74 (V 44 C 42 Oct.) "Srinivasan v. Iyengar" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA, C.J. AND HOMBE GOWDA, J. ( Division Bench ) K.N. Srinivasan, Appellant v. C. Krishna Iyengar and others, Respondents. Appeal No.133 of 1955, D/- 24 -6 -1957, against order of First Addl Dist. J., Bangalore, in Misc. Case No. 258 of 1951-52. (A) Succession Act (39 of 1925), S.266 - SUCCESSION - Powers of District Judge - Claim to property - Competency. It is unnecessary to investigate the ownership and devolution of property in the proceedings for revocation of Letters of Administration as what the Court is mainly concerned with is whether the Will was duly executed and whether it is of a testamentary character. The validity or otherwise of the provisions of the Will cannot be agitated there by the party who has set up claims to property independently of the Will and adversely to the testator. The appropriate course for him to enforce his rights to the property is to file a suit. ILR 20 Cal 888, Relied on; AIR 1936 Lah 378, ILR 26 Bom 792, Ref. (Para 2) Anno : AIR Man., Succession Act, S. 266, N. 1. (B) Succession Act (39 of 1925), S.263 - SUCCESSION - Just cause - Scope. Section 263, Succession Act requires Just Cause for revocation and as to what is just cause is enumerated in the explanation under five different heads. The contention that the explanation is only illustrative but not exhaustive cannot be upheld. ILR 24 Cal 95, Ref. (Para 3) Anno : AIR Man., Succession Act, S. 263, N. 1, 7. (C) Succession Act (39 of 1925), S.263 - SUCCESSION - Powers of Court. A man may act foolishly or even heartlessly; if he acts with full comprehension of what he is doing the Court will not interfere with the exercise of his volition. Held that the testator, voluntarily and with full knowledge of what he was doing, executed the Will and in the application for revocation there was no good ground to interfere with the order of the lower Court. AIR 1924 PC 28, Ref. (Para 3) Anno : AIR Man. Succession Act, S. 263, N. 15 Cases Referred : Chronological Paras (A) AIR 1936 Lah 378 (V 23) : 163 Ind Cas 656 2 (B) (02) ILR 26 Bom 792 : 4 Bom LR 637 2 (C) (93) ILR 20 Cal 888 2 (D) (79) ILR 4 Cal 1 : 2 Cal LR 422 2 (E) (96) ILR 24 Cal 95 3 (F) AIR 1924 PC 28 (V 11) : 80 Ind Cas 777 3

V.L. Narasimhamurthy, for Appellant; N.S. Narayana Rao, for Respondents. Judgement This is an appeal against the dismissal of an application for revocation of Letters of Administration with the will of one Kadambi (as he has been called in the proceedings) annexed and granted to Respondents. The Petitioner is the brother of the testators son-in-law. Respondent 1 is the brother of his wife and the father of the 2nd Respondent. Respondent 3 is the daughter of the testators brother. The Letters of Administration were granted in December, 1944 and the application for revocation of these was filed in February 1952. The two grounds mainly urged in support of the application are that the properties purported to be disposed of by the will did not belong to the testator and that he was not of a sound disposing mind at the time of the alleged execution of the will. Both these were negatived by the lower Court.

2. Although evidence has been let in to show that at least some of the properties disposed of by the will did not belong to the testator, it is, we think, unnecessary to investigate the ownership and devolution of these in these proceedings for revocation of Letters of Administration as what the Court is mainly concerned with is whether the will was duly executed and whether it is of a testamentary character. The validity or otherwise of the provisions of the will cannot be agitated here by the appellant who has set up claims to property independently of the will and adversely to the testator. (See Mst. Laso Devi v. Mst. Jagtambha, AIR 1836 Lah 378 (A), and B.G. Tilak v. Sakwarbai, ILR 26 Bom 792 (B)). In Arunmoyi Dasi v. Mohendra Nath Wadadar, ILR 20 Cal 888 (C), a suit filed by a person to establish right to property was held to be maintainable though the right was not recognised in the proceedings for grant of letters of administration. That was a case in which the Allahabad High Court granted letters of administration with the will of one Narendranath annexed to his brothers though it was opposed by his widow on the ground that the applicants were the residuary legatees and entitled as such to represent the deceased. The learned Judges of the Calcutta High Court observed : "No doubt the Allahabad High Court in determining the question whether the defendants were entitled to letters of administration, as prayed for, had to construe the will, and to consider whether upon a proper construction of that document, the defendants were residuary legatees; but this was only for the purpose of determining the question of "representative title". The question of the construction of the will was but an incidential question which the Court had to consider in determining whether the defendants were entitled to letters of administration in respect of the estate of the deceased"; and at page 894 "It has been held that in a proceeding upon, an application for probate of a will, the only question which the Court is called upon to determine is whether the will is true or not, and that it is not the province of the Court to determine any question of title with reference to the property covered by the will (see Behary Lall Sandyal v. Juggo Mohun Gossain, ILR 4 Cal 1 (D)). And it is noteworthy that a proceeding under the Probate and Administration Act is not a suit properly so called, but takes the form of a suit according to the provisions of the Civil Procedure Code (See Section 83). That being so, we do not see how the judgment of the Allahabad High Court could be regarded as concluding the plaintiff as to the title to the estate either under Section 13 of the Civil Procedure Code, or under the general principles of res judicata". Our attention has not been drawn to any case in which a Probate Court was called upon to decide disputes of title to property or its decision was treated as conclusive between the parties. The appropriate course for the appellant to enforce his rights to the property is to file a suit.

3. The other contention relates to the want of a sound disposing state of mind in the testator and his being subject to coercion or undue influence while executing the will. Section 263 of the Indian Succession Act requires Just Cause for revocation and as to what is Just Cause is enumerated in the explanation under five different heads. Sri Narasimha Murthy the learned Counsel for the appellant argued at first that the explanation is only illustrative but not exhaustive. Annoda Prasad v. Kali Krishna, ILR 24 Cal 95 (E), is against such a construction and no case is cited in support of it. He then relied upon clause (b) of the explanation which states that making a false suggestion or concealing from the Court something material to the case is a just cause. The fraud alleged is that the will is a make-believe document and the proceedings for obtaining the letters of administration were stage-managed or manoeuvred by the 1st respondent to give colour of truth. The testator is said to have been infirm in body and mind and the 1st respondent is said to have domineered over him and his daughter for selfish ends. The antecedents and conduct of the parties do not lend any support to this. The testator held a high office as Chief Engineer in this State after a long record of service in responsible positions under the Bombay Government. He did not execute the will in haste or with any sudden impulse. He sought the advice and assistance of a very senior advocate in Bangalore. The Advocate after receiving instructions in confidence prepared a draft, the testator approved the draft, wrote the will in entirety with his own hand, signed it before attestors, one of whom is a senior official of the Bank of Mysore and another a retired officer of the State, and produced the will himself for registration. His daughter who, if at all, had reason to be aggrieved applied for the letters and gave evidence in support of her application for administration of the estate. The suggestion that she acted under the influence or coercion of the 1st respondent has to be discarded as she was at the time aged about 50 years and possessed of intelligence and understanding to know her interest. She was familiar with four or five languages and for some time a Municipal Councillor. The evidence of a dismissed motor driver and a former dependent of the testator is relied upon to show that he was wayward and indecent in behaviour unlike a normal man. The lower Court has rejected the testimony of these and we think rightly. The improbability of this version is evident from the fact that as spoken to by Sri Narasimhiah who retired as Chief Engineer and who was closely associated with the testator during his service, the testator attended a conference of officers and sat for a group photo at the time of the alleged imbecility. We do not see anything unnatural or surprising in the dispositions made in the will in favour of the respondents as the testator was sonless, his only daughter was a widow he had brought up the second and third respondents with affection and the 1st respondent was serviceable to him. The applicant is the brother of the deceased son-in-law of the testator. He may feel that the testator was not kind or generous to him as was expected or that the bequests are not reasonable. As observed in Motibai Hormasjee v. Jamsetjee Hormasjee, AIR 1924 PC 28 (F), a man may act foolishly or even heartlessly; if he acts with full comprehension of what he is doing the Court will not interfere with the exercise of his volition. We are satisfied that the testator, voluntarily and with full knowledge of what he was doing, executed the will. The application for revocation is belated and there is no good ground to interfere with the order of the lower Court.

4. The appeal is dismissed with costs. Advocates fee in this Court Rs. 100/-. Appeal dismissed. AIR 1957 MYSORE 75 (V 44 C 43 Oct.) "Himantharaja Gupta v. State" MYSORE HIGH COURT Coram : 1 SREENIVASA RAU, J. ( Single Bench ) D.K. Himantharaja Gupta, Petitioner v. State of Mysore, Respondent. Criminal Revn. Petn. No.233 of 1956, D/- 15 -2 -1957. @page-Mys76 The test under S. 414, Cr. P. C., is not the punishment in respect of an offence but the sentence actually passed. (Para 2) An accused was convicted of an offence punishable under S. 56 (g) of the Mysore Police Act. Magistrate instead of sentencing him, directed him to execute a bond in a sum of Rupees fifty to appear and receive sentence during a period of three months and meanwhile to obey the laws which are framed for the benefit of accused himself and the public. In a revision against the order : Held, that the revision petition was not maintainable as an appeal lies from an order under S. 562. ILR 46 All 828 and ILR 58 Mad 517, Referred. (Para 3) Further that while the Magistrate would have done well to conform to the language employed in S. 562 (i) his intention undoubtedly was to act under S. 562 (i), and that the order was one under S. 562 (1). (Para 3) Anno : AIR Com. Cr. P. C., S. 414, N. 4; S. 439, N. 1, 4, 5; S. 562, N. 8, 19. Cases Referred : Chronological Paras (A) AIR 1924 All 765 (V 11) : ILR 46 All 828 : 25 Cri LJ 1244 3 (B) AIR 1935 Mad 157 (V 22) : ILR 58 Mad 517 : 36 Cri LJ 589 3 K. Ramachandra Rao, for Petitioner; Assistant Advocate General, for Respondent. Judgement The petitioner was convicted of an offence punishable under S. 56 (g) of the Mysore Police Act. The learned Magistrate instead of sentencing him directed him "to execute a bond in a sum of Rupees fifty to appear and receive sentence during a period of three months and meanwhile to obey the laws which are framed for the benefit of accused himself and the public." The office raised a preliminary point regarding the maintainability of the revision petition on the ground that an appeal lay against the conviction.

2. The learned Advocate for the petitioner urges that the case was tried summarily, that an offence under S. 56 (g) of the Mysore Police Act is punishable only with a maximum fine of Rs. 50/- and that under S. 414 of the Code of Criminal Procedure, no appeal lies against a sentence of fine not exceeding Rs. 200/-. The test under S. 414 of the Code of Criminal Procedure Code, however is not the punishment in respect of an offence but the sentence actually passed. If, as a matter of fact, a punishment has been inflicted which is not warranted by law that may be a matter for consideration by the Court below or in revision. Whether the remedy is by way of revision or by way of an appeal has to be determined on the basis of the sentence or order.

3. It is next urged for the petitioner that an order under S. 562 is not a punishment and that therefore no appeal lies. But Chapter XXXI dealing with appeals refers to appeals against a judgment or an order or a conviction or an acquittal except S. 415 which refers to an appeal against a sentence but that is in the context of providing for an appeal against a combination of sentences. In the case on hand, the learned Magistrate has convicted the accused and S. 408 of the Code of Criminal Procedure provides for an appeal against such a conviction. I may refer to the decisions reported in Emperor v. Hira Lal, ILR 46 All 828 : (AIR 1924 All 765) (A) and Mayandi v. Kudumban, ILR 58 Mad 517 : (AIR 1935 Mad 157) (B), in which it has been held that an appeal will lie from an order of a Magistrate under S. 562 of the Code of Criminal Procedure. The former decision related to a case tried summarily. The learned Advocate for the petitioner urged that the order made by the learned Magistrate could not be regarded as one under S. 562, Cr. P. C., since the language employed by the learned Magistrate is not that contemplated under that provision. It is no doubt true that the provision contemplates an order directing the accused to be released on his entering into a bond to appear and receive sentence when called upon during such period as the Court may direct and in the meantime to keep the peace and be of good behaviour while the learned Magistrate instead of using the words "to keep the peace and be of good behaviour" has employed the words "to obey the laws which are framed for the benefit of the accused and the public." It appears to me that while the learned Magistrate would have done well to conform to the language employed in S. 562 (i) his intention undoubtedly was to act under S. 562 (i) of the Code of Criminal Procedure.

4. In the light of what is stated above, this revision petition is not maintainable and is therefore dismissed. Revision petition dismissed. AIR 1957 MYSORE 76 (V 44 C 44 Oct.) "Krishna Murthy v. Subbanna" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA, C.J. AND SREENIVASA RAU, J. ( Division Bench ) B.N. Krishna Murthy, Petitioner v. R. Subbanna and others, Respondents. Writ Petn. No.206 of 1956, D/- 12 -6 -1957. (A) Representation of the People (Conduct of Elections and Election Petitions) Rules (1951), R.92(2) - ELECTION - APPLICABILITY OF AN ACT - Election - Applicability - Mistake by Returning Officer - Effect. There is nothing in the language of R. 92 (2) to differentiate between a mistake committed by the Returning Officer and that committed by a voter. Even if the mistake, if any, in the numbers on the ballot papers not agreeing with the numbers on respective envelopes was caused by the Returning Officer himself, R. 92 (2) applies. (Para 2) When R. 92 (2) itself renders the vote invalid such a vote cannot be taken cognisance of and no question of gathering the intention of the voter can arise. There can be no degree of compliance so far as rejection is concerned and it is conclusive to show that the provision is mandatory. AIR 1955 SC 223, Ref. (Para 2) (B) Representation of the People Act (43 of 1951), S.84, S.81 - ELECTION - Election - Election petition - Claiming of alternative reliefs - Legality. There is nothing in the language of S. 84 itself which precludes claiming alternative relief. Though the tribunal can grant only one relief, the election petition may pray for more than one relief. (Para 3) Further, S. 81 permits an election petition on one or more of the grounds specified in sub-ss. (1) and (2) of S. 100 and S. 101 and from this it follows that it is open to the petitioner to seek alternative reliefs. (S) AIR 1956 Mad 85, Ref. (Para 3) (C) Constitution of India, Art.226, Art.227 - WRITS - HIGH COURT - PLEA - TRIBUNALS - Proceedings under - New plea - Plea not raised before Election Tribunal. @page-Mys77 Where a contention is not urged before the election tribunal and the contesting party had therefore no opportunity of meeting it, the petitioner cannot properly be allowed to canvass the contention in a petition either under Art. 226 or Art. 227 of the Constitution. (Para 4) Anno : AIR Com., Const. of India, Art. 226, N. 54; Art. 227, N. 12, 17. Cases Referred : Chronological Paras (A) (S) AIR 1955 SC 233 (V 42) : 1955 SCR 1104 2 (B) (S) AIR 1955 All 129 (V 42) : 10 Ele LR 191 3 (C) AIR 1956 All 111 (V 43) 3 (D) (S) AIR 1956 Mad 85 (V 43) : ILR (1956) Mad 390 3 N. Kanakasabhapathy, for Petitioner; S.K. Venkataranga Iyengar (for No. 1), H. Hanume Gowda (for No. 4) and Advocate-General (for No. 5), for Respondents. Judgement This petition relates to the election of two members to the Legislative Council of the State of Mysore from the Bangalore (Local Authorities) Constituency in May 1956. There were five candidates for the election, i.e., the present petitioner and the present respondents 1 to 4. The Petitioner and Respondent 2 were declared elected. Thereupon Respondent 1 filed an election petition under S. 81 of the Representation of the People Act, 1951, calling in question the election of the petitioner and Respondent 2. An election tribunal was constituted for the trial of the election petitioner. Two points were urged in support of the petition : firstly, that the Returning Officer erred in ruling out 61 votes on the ground that the signatures of the voters were not duly attested as the attestor was not a gazetted officer of the Mysore Government or of the Central Government as required by law, and secondly, that as the numbers entered on the several envelopes in which the ballot papers were placed did not agree with the numbers on the respective ballot papers as required by R. 92 (2) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951, all the votes were invalid. The petitioner (present Respondent 1) sought a declaration that he himself was duly elected or in the alternative a declaration that the election of Respondents 1 and 2 (present Petitioner and present Respondent 2) was void. The first contention did not find favour with the tribunal. The second contention was upheld and the tribunal declared that the election of the present Petitioner and present Respondent 2 was void.

2. This decision is challenged on various grounds. It is urged that the mistake, if any, in the numbers on the ballot papers not agreeing with the numbers on the respective envelopes was caused by the Returning Officer himself, and R. 92 (2) does not apply to such a case. It is not disputed that the numbers borne on the ballot papers were not entered on the respective envelopes and that the serial numbers of the voters in the voters list were entered on the envelopes. We find nothing in the language of R. 92 (2) to differentiate between a mistake committed by the Returning Officer and that committed by a voter. It cannot therefore be said that R. 92 (2) does not apply to such a case. The real question for consideration, therefore, is whether such a mistake is of a material, character or not. The learned Advocate for the Petitioner argues that the mistake is not of a material character and as S. 100 (2) (c) of the Representation of the People Act, which is the provision applicable to the case on hand, requires that the result of the election should have been materially affected by the improper reception or refusal of the votes in question and as the intention of the voters could clearly be gathered from the votes, the votes should not have been rejected. But R. 92 (2) specifically provides that such a ballot paper shall be invalid. As pointed out by the Supreme Court in Hari Vishnu Kamath v. Ahmad Ishaque, (S) AIR 1955 SC 233 (A), the expression "the result of the election" in S. 100 (1) (c) and S. 100 (2) (c) must, unless there is something in the context of its interpretation, be construed in the same sense as in S. 66, i.e., on the basis of the valid votes. When the provision itself renders the vote invalid such a vote cannot be taken cognisance of and no question of gathering the intention of the voter can arise. As remarked by the Supreme Court in the above mentioned decision there can be no degree of compliance so far as rejection is concerned and it is conclusive to show that the provision is mandatory. We therefore find no force in this contention urged on behalf of the Petitioner.

3. It is next urged that under S. 84 of the Representation of the People Act, 1951, the Petitioner could claim only one of the declarations enumerated under that section and that alternative reliefs could not be claimed, as has been done in the case on hand. Reliance is placed on the decision reported in Dr. Brijendra Swarup v. Election Tribunal, Lucknow, (S) AIR 1955 All 129 (B), and on the language of S. 84 as it stands after the recent amendment. There are no doubt some observations in (S) AIR 1955 All 129 (3) and Brijendra Swarup v. Election Tribunal, Lucknow, AIR 1956 All 111 (C), which lend support to the Petitioners contention. But we see nothing in the language of S. 84 itself which precludes claiming alternative reliefs. It is not suggested that cumulative reliefs were asked for or were granted. Nor can it be necessarily inferred from the circumstance that S. 84 has been amended that the Section as it stood before amendment precluded the claiming of alternative reliefs. We may in this connection refer to the decision reported in Dr. V.K. John v. G. Vasantha Pai, (S) AIR 1956 Mad 85 (D), in which it has been held that though the tribunal can grant only one relief the election petition may pray for more than one relief. As observed in that decision, S. 81 permits an election petition on one or more of the grounds specified in Sub-ss. 1 and 2 of S. 100 and S. 101 and from this it follows that it is open to the Petitioner to seek alternative reliefs.

4. It may further be observed that this contention was not urged before the election tribunal. The contesting party had therefore no opportunity of meeting it or, assuming that there was substance in the contention, of amending the election petition. The present Petitioner cannot properly be allowed to canvass this contention at this stage either under Art. 226 or Art. 227 of the Constitution.

5. We thus find no substance in this petition. It is accordingly dismissed with the costs of the contesting Respondents (Advocates fee Rs. 100/-). Petition dismissed. AIR 1957 MYSORE 78 (V 44 C 45 Oct.) "Mohd. Esoofv. V.R. Subramanyam" MYSORE HIGH COURT Coram : 2 SREENIVASA RAU AND HOMBE GOWDA, JJ. ( Division Bench ) Mohamed Esoof, Appellant v. V.R. Subramanyam and another, Respondents. Misc. Appeal No. 54 of 1955, D/- 14 -6 -1957, against the order of First Addl. Dist. Judge, Bangalore, D/- 28 -5 -1955. (A) Arbitration Act (10 of 1940), S.39 - ARBITRATION - APPEAL - Appeal against order refusing to set aside award - Point that Court should have modified award cannot be taken. Under S. 39 of the Arbitration Act, while an appeal lies against an order refusing to set aside an award, no appeal lies against an order refusing to modify or correct an award, though an appeal does lie against an order modifying or correcting an award. It therefore follows that the High Court cannot in appeal against order refusing to set aside award, consider the point raised by the Appellant that the Court below should have gone into the question whether the award should be modified or not. (Para 2) Anno : AIR Man., Arbi. Act, S. 39, N. 1. (B) Limitation Act (9 of 1908), Art.158 - LIMITATION - ARBITRATION - Objection to award - Limitation - Filing valakatnama, if saves limitation. Arbitration Act (10 of 1940), S.30. Article 158 requires that any application for the setting aside of an award or for having it remitted for reconsideration should be made within 30 days of the service of notice of the filing of the award. The making of such an application whether in form of an objection statement or in whatever other form it may be is entirely a matter within the volition of the party and his taking time to file objections cannot extend the period of limitation. It is only when the objection is formulated and placed before the Court that the party can be regarded as having applied to the Court. The circumstance that on the date on which the counsel filed a Vakalatnama, the Court granted time to file objection would not save limitation, if the objection were filed beyond limitation. (Para 3) Anno : AIR Com., Limit. Act, Art. 158, N. 5; AIR Man., Arbi. Act, S. 30, N. 8. (C) Civil P.C. (5 of 1908), S.115 - REVISION - APPEAL - ARBITRATION - Appeal on part of matter not maintainable - It cannot be treated as revision. Arbitration Act (10 of 1940), S.39. Where in an appeal it is found that it is not maintainable in respect of a part, the appeal in respect of that part cannot be treated as revision. It is not appropriate to deal with a part of the matter as an appeal and another part on the footing that it comes under revision. (Para 4) Anno : AIR Com., C. P. C., S. 115, N. 19; AIR Man., Arbi. Act, S. 39, N. 1. Cases Referred : Chronological Paras (A) AIR 1951 Cal 230 (V 38) : 85 Cal LJ 176 3 G.R. Ethirajulu Naidu, for Appellant; S. Ranga Raj, for No. 1 and V.S. Sadasivan, for No. 2, for Respondents. Judgement SREENIVASA RAU, J. :- This appeal arises from arbitration proceedings in which the present Respondent 1 was the sole arbitrator and the present Appellant and Respondent 2 were the two parties referring the dispute between them to the arbitrator. The latter filed an application under Ss. 14 and 17 of the Arbitration Act, 1940, to the District Court, Bangalore, for a judgment and decree in terms of the award being passed after notice to the parties. The Appellant objected to the award on various grounds and prayed that the award be declared a nullity or that it be set aside and if for any reason the Court did not do so to remit the award to the arbitrator for a proper adjudication or in the alternative to modify or correct the award. Respondent 1 controverted the grounds and allegations raised in the statement of the Appellant and supported the prayer of the arbitrator. Though the case was posted for evidence and evidence was recorded, the learned Judge disposed of the matter on the question of limitation which presumably was raised at the time of arguments. He held that the objections raised by the Appellant were barred under Art. 158 of Sch. I of the Limitation Act and passed judgment in accordance with the terms of the award and directed that a decree should follow. In this appeal, it is urged that the objection statement was not barred by time and that, in any event, Art. 158 of the Limitation Act had no application to the alternative prayer made by the applicant for the modification of the award and that that matter at least should have been dealt with by the Court below.

2. As mentioned above, the Appellant in his statement before the Court below claimed three alternative reliefs, i.e., setting aside the award, remitting the award for a proper adjudication or modifying the award. Under S. 39 of the Arbitration Act, while an appeal lies against an order refusing to set aside an award, no appeal lies against an order refusing to modify or correct an award, though an appeal does lie against an order modifying or correcting an award. It therefore follows that we cannot in this appeal consider the point raised by the Appellant that the Court below should have gone into the question whether the award should be modified or not. The only question for consideration, therefore, is whether the Appellants objection in so far as it took the form of a claim for relief by way of setting aside the award was barred by time. Article 158 of Schedule I of the Limitation Act, as it stands now, fixes a period of 30 days from the date of service of the notice of filing the award for any application to set aside an award or to get an award remitted for reconsideration. It is not disputed that the arbitrators application under Ss. 14 and 17 of the Arbitration Act was presented to the Court below on 14-5-52, that notice was served on the Appellant on 27-5-52 and that the latters objection statement was filed on 14-7-52, i.e., 48 days after the service of the notice. It was therefore beyond time in so far as setting aside the award or remitting it for consideration was concerned.

3. It is urged, however, that the Appellant appeared through Counsel on 2-6-52 and such appearance itself saved limitation. It is difficult to understand how mere appearance could have any such effect. Even after appearance it would be open to the party to agree to the application being granted. It is only when a specific prayer is made or objection is raised that the award is to be set aside or that the matter should be remitted for reconsideration that the party concerned can be regarded as having applied for such relief or reliefs. In this connection the decision reported in Ebrahim Kassam v. Northern Indian Oil Industries Ltd., AIR 1951 Cal 230 (A), may be referred to. It was held in that case that where a certain ground to set aside an award was not stated in the application but was mentioned in the affidavit filed later it was the date of the affidavit that had to be taken into consideration in determining the question of limitation. It is only when the objection is formulated and placed before the Court that the party can be regarded as having applied to the Court. It is urged that on 2-6-52 on which date the Appellants Counsel filed the Vakalatnama before the Court below time was granted by the Court to file objections and that this circumstance would save limitation. Even so it is difficult to see how the clear language of Art. 158 of Sch. I of the Limitation Act can be got over. It requires that any application for the setting aside of an award or for having it remitted for reconsideration should be made within 30 days of the service of notice of the filing of the award. The making of such an application whether in the form of an objection statement or in whatever other form it may be is entirely a matter within the volition of the party and his taking time to file objections cannot extend the period of limitation.

4. The learned Advocate for the Appellant has asked us to treat this appeal as a revision petition in so far as the question of modifying the award is concerned. It does not appear to us to be appropriate to deal with a part of the matter raised before us as an appeal and another part on the footing that it comes under revision.

5. This appeal is therefore dismissed with costs (Advocates fee Rs. 50/-). Appeal dismissed. AIR 1957 MYSORE 79 (V 44 C 46 Oct.) "Venkatappa v. Subba Rao" MYSORE HIGH COURT Coram : 2 HOMBE GOWDA AND K.N. PADMANABHIAH, JJ. ( Division Bench ) Venkatappa, Appellant v. S. Subba Rao and others, Respondents. Misc. Appeal No. 61 of 1956, D/- 2 -3 -1957, against order of Civil J., and Election Commissioner, Chikmagalur, D/- 15 -10 -1956. (A) Mysore Town Municipalities Act (22 of 1951), S.14 - ELECTION - MUNICIPALITIES - WORDS AND PHRASES - Election - Office of profit. Municipalities.Mysore Town Municipalities Act (22 of 1951), S.14. Words and Phrases - Office of profit. A stamp vendor, who does not get any fixed remuneration, but gets only a commission on the sales he conducts, cannot be considered to be a person holding an office of profit. AIR 1954 SC 653, foll. (Para 4) (B) Mysore Town Municipalities Act (22 of 1951), S.20 - ELECTION - MUNICIPALITIES - Election - Improper rejection of nomination paper. Municipalities.Mysore Town Municipalities Act (22 of 1951), S.20. The improper rejection of a nomination paper materially affects the result of an election and the election court is bound to set aside the election on that ground. AIR 1946 Lah 85, Rel. on. (Para 5) (C) Mysore Town Municipalities Election Rules (1951), R.26(b) - ELECTION - MUNICIPALITIES - Election - Finality of decision of Deputy Commissioner. Municipalities.Mysore Town Municipalities Act (22 of 1951), S.20. Election.Mysore Town Municipalities Act (22 of 1951), S.20. Municipalities.Mysore Town Municipalities Election Rules (1951), R.26(b). It is only a person whose nomination paper is rejected by the Returning Officer that is entitled to prefer an appeal to the Deputy Commissioner under R. 26 (b). But under S. 20 of the Act not only a candidate who stood for election but also ten or more voters are entitled to file an election petition. Any decision given by the Deputy Commissioner in an appeal filed by a candidate under rule 26 (b) cannot act as a bar and prevent them from agitating the matter, since they were not parties to the appeal. The decision of the Deputy Commissioner will be final in so far as the candidate is concerned but the same cannot preclude an election petition by voters of the constituency on the very same ground. The finality contemplated in rule 26 (b) of the Rules framed under the Mysore Town Municipalities Act of 1951 is the finality at the pre-election stage. This rule cannot override the sections and take away a right of a person to file an election petition under S. 20 of the Act challenging the validity of the election itself on the ground that the improper rejection of his nomination paper materially affected the result of the election and pray for the election being set aside. (Para 6) (D) Mysore Town Municipalities Act (22 of 1951), S.20 - ELECTION - MUNICIPALITIES - Election - Election petition - Grounds. Municipalities.Mysore Town Municipalities Act (22 of 1951), S.20. It cannot be said that an election petition under S. 20 of the Act is not competent on grounds other than those mentioned in sub-ss. (3) (a) and (3) (b). An error committed by the Returning Officer in properly rejecting a nomination paper was intended by the Legislature to fall within the ambit of the explanation to sub-S. (5) and can be made the foundation for an election petition. ILR 1953 Bom 942, Rel. on. AIR 1954 SC 653, Dist. (Paras 7, 9, 13) Cases Referred : Chronological Paras (A) AIR 1954 SC 653 (V 41) : ILR 1955 Mys 109 4, 7 (B) AIR 1946 Lah 85 (V 33) : 224 Ind Cas 322 5 (C) AIR 1956 Raj 185 (V 43) 8 (D) AIR 1953 Bom 288 (V 40) : ILR (1953) Bom 942 10 (E) (56) W.P. No. 44 of 1956 (Mys) 12 (F) AIR 1933 Sind 416 (V 20) : 150 Ind Cas 246 13

V. Krishnamurthy, for Appellant; K.R. Gopivallabha Iyengar, for Respondent No. 1. Judgement HOMBE GOWDA, J. :- This is an appeal filed under S. 20(2) of the Mysore Town Municipalities Act of 1951 against the order passed by the Election Commissioner, Chikmagalur in Election Mis. (old No. 24/56) New No. 13 of 1956 on his file, setting aside the election of the appellant as a Municipal Councillor from the sixth Division of the Town Municipal Council, Chikmagalur held on 27-2-1956 and directing fresh election to be held in the said Division.

2. The undisputed facts are as follows: The appellant and the first respondent Subba Rao are the residents of Chikmagalur Town and they are the voters in the 6th Division for the Municipal Council. The appellant, the first respondent, another person by name Kappanna and some others filed their nomination papers for the election to be held on 27-2-1956 to the Municipal Council from the 6th Division of Chikmagalur Town. At the time of the scrutiny of the nomination papers by the Returning Officer, Sri Kappanna raised an objection to the candidature of the first respondent Subba Rao. He urged that the first respondent was disqualified for being chosen as a member of the Municipal Council as he was holding an office of profit under the Government being a licensed Stamp Vendor. The Returning Officer upheld that objection and rejected the nomination paper of the first respondent. The first respondent preferred an appeal under R. 26(b) of the Rules framed by the Government of Mysore under the Mysore Town Municipalities Act of 1951 to the Deputy Commissioner of Chikmagalur District. The learned Deputy Commissioner, who heard the parties, upheld the decision of the Returning Officer and rejected the appeal filed by the first respondent. Subsequently Kappanna withdrew his notice of candidature within the time allowed for withdrawal and the elections were held on 27-2-1956. The present appellant was declared elected having secured the highest number of votes. The first respondent Subba Rao then presented an election petition under S. 20 of the Mysore Town Municipalities Act to the Court of the Civil Judge and Election Commissioner, Chikmagalur. Subsequently an application was made by ten of the voters of the sixth Division for being impleaded as parties and they were also added as respondents. The appellant opposed the petition on various grounds. The first respondent examined himself and closed the case. The learned Election Commissioner came to the conclusion that the first respondent had not incurred any disqualification under S. 14 of the Mysore Town Municipalities Act and the rejection of his nomination paper by the Returning Officer was improper and that the same had materially affected the result of the election and therefore set aside the election and ordered fresh election to be held for the Sixth Division of Chikmagalur Town. It is against this decision that the present appeal is preferred by the appellant.

3. Four points arise for consideration in this appeal and they are : (1) Whether the first respondent Subba Rao holds an office of profit and is thereby disqualified for being chosen as a member of the Municipal Council? (2) Whether the improper rejection of his nomination paper is a material irregularity in the conduct of the election which affected the result of the election? (3) Whether the decision of the Deputy Commissioner in appeal preferred by the first respondent against the decision of the Returning Officer under R. 26(b) of the Rules framed under the Mysore Town Municipalities Act is final for all purposes? and (4) Whether an appeal under S. 20 of the Mysore Town Municipalities Act would not lie against the rejection of the nomination paper by the Returning Officer on the ground that the same has materially affected the result of the election?

4. We will take up the first point first. The first respondent Subba Rao was admittedly a stamp vendor on the date on which he presented his nomination paper. As stamp vendor he was entitled to get commission at a fixed rate from the Government on the value of stamps sold by him. The Returning Officer was therefore of the opinion that the first respondent held an office of profit. The term "Office of Profit" has not been defined in the Act. It is not disputed that the first respondent is not entitled to get any fixed remuneration for vending stamps from the Government. The question is whether the commission he gets can be called as "profit", which will disentitle him from being a candidate. Sri V. Krishnamurthy, the learned counsel for the appellant, fairly conceded that he cannot reasonably contend that a stamp vendor is a person who holds an "office of profit". What is an office of profit which will bring about a disqualification under S. 14 of the Act, came up for consideration by the Supreme Court in Ravanna Subanna v. G.S. Kaggeerappa, ILR 1955 Mys 109 : (AIR 1954 SC 653) (A). His Lordship Bijan Kumar Mukherjea observed in the course of judgment as follows : "The plain meaning of the expression seems to be that an office must be held under Government to which any pay salary, emoluments or allowance is attached. The word profit connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would not be material: but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit." and came to the conclusion that the Chairman of the Taluk Development Committee, who received a sum of Rs. 6/- as sitting fee or charge for attending a meeting did not hold an office of profit and was not, therefore, disqualified under S. 14 of the Mysore Town Municipalities Act for being chosen as a member of a Town Municipal Council. When that is so, a stamp vendor, who does not get any such fixed remuneration, but sets only a commission on the sales he conducts cannot be considered to be a person holding an office of profit. The Returning Officer was not justified in rejecting his nomination paper on that account. The learned Election Commissioner was therefore perfectly justified in holding that the first respondent had not incurred any disqualification for being chosen as a member of the Municipal Council and setting aside the election of the appellant and directing fresh elections to be held in the Sixth Division.

5. The second question for consideration is whether the improper rejection of a nomination paper is an irregularity which materially effects the result of an election. Courts in India as well as in England have uniformly held that the improper rejection of a nomination paper materially affects the result of an election and that the election court is bound to set aside the election on that ground. (See Sat Narain v. Hanuman Parshad, AIR 1946 Lah 85 (B)). Sri V. Krishnamurthy, the learned counsel for the appellant. did not dispute before us the fact that the improper rejection of a nomination paper, as a rule, materially affects the result of an election.

6. The next important point for consideration is whether the decision of the Deputy Commissioner on an appeal preferred under R. 26(b) by a candidate whose nomination paper was rejected by the Returning Officer is final for all purposes. Rule 26(b) of the Mysore Town Municipalities Election Rules, 1951, reads thus : "An appeal by any aggrieved person against the order rejecting the nomination paper shall lie to the Deputy Commissioner, provided it is made within three days of the date of such order and accompanied by a copy of the same. The order passed by the Deputy Commissioner on such an appeal shall be final." It was argued by Sri V. Krishnamurthy for the appellant that the above rule vested in the Deputy Commissioner absolute power to decide the question finally and in the absence of specific mention in S. 20 that the said decision can be challenged by means of an election petition after the election is over, no court or tribunal can sit in judgment over the same. According to his contention, a candidate whose nomination paper is improperly rejected should look up to the Deputy Commissioner for redress and if he fails in his appeal before him, he has no other remedy at law even if that decision is erroneous. It was on the other hand urged by Sri Gopivallabha Iyengar for the first respondent that what the word final in R. 26(b) indicates is that the decision of the Deputy Commissioner is final for the purpose of the election, that is, at the pre-election stage because unless some such finality is provided for at the pre-election stage, it would become very difficult to conduct the election in accordance with the calendar of events published and that its progress is likely to be clogged up by the litigation and public administration will be held up for an indefinite period. He argued that the rules framed by the Government on the authority conferred by S. 208 of the Act cannot abrogate specific provisions of the Act or put fetters upon its operation. He further contended that if the argument of the appellant that the decision of the Deputy Commissioner under R. 26(b) is final is accepted it would lead to absurdity, inasmuch as while section 20 of the Act which is enacted by the Legislature entitles a person to challenge the validity of the election by means of a petition on the ground that the irregularity committed by the Returning Officer in rejecting his nomination paper has materially affected the result of the election, the rule which is framed by a subordinate authority would be taking away that right. In our opinion Sri Gopivallabha Iyengar is right. Rule 26(a) states that the Returning Officer who rejects the nomination paper should furnish a copy of the order passed by him within 24 hours to the candidate. Rule 26(b) provides that the candidate may prefer an appeal against the decision of the Returning Officer rejecting the nomination paper to the Deputy Commissioner and that the Deputy Commissioner should dispose of the matter within four days from the date of its presentation. It is clear from the above that it is only a person whose nomination paper is rejected by the Returning Officer that is entitled to prefer an appeal to the Deputy Commissioner under R. 26(b). But under S. 20 of the Act not only a candidate who stood for election but also ten or more voters are entitled to file an election petition. There may be, as a matter of fact there are, instances where ten or more voters of the constituency choose to challenge the validity of an election by means of a petition presented to the Election Commissioner on the ground that a Returning Officer improperly rejected the nomination paper of a qualified candidate and that the same materially affected the result of the election. Any decision given by the Deputy Commissioner in an appeal filed by a candidate under R. 26(b) cannot act as a bar and prevent them from agitating the matter, since they were not parties to the appeal. The decision of the Deputy Commissioner cannot bind the voter-petitioners. The result, then is, the decision of the Deputy Commissioner will be final in so far as the candidate is concerned but the same cannot preclude an election petition by voters of the constituency on the very same ground. This can never be the intention of the Legislature. The finality contemplated in R. 26(b) of the Rules framed under the Mysore Town Municipalities Act of 1951 is the finality at the preelection stage. This rule cannot override the sections and take away a right of a person to file an election petition under S. 20 of the Act challenging the validity of the election itself on the ground that the improper rejection of his nomination paper materially affected the result of the election and pray for the election being set aside. That because, the rejection of the nomination paper by the Returning Officer can thus be challenged at two stages - once before the election by presenting an appeal to the Deputy Commissioner and then again before the Election Commissioner by means of an election petition under S. 20 of the Act, it cannot reasonably be urged that a statute has provided two cumulative remedies. There is no substance in the contention of the learned counsel for the appellant that election petition would not lie and that the decision of the Deputy Commissioner under R. 26(b) is final for all purposes.

7. The question therefore narrows itself down to whether an election petition under S. 20 of the Act can be founded by a candidate on the ground that the improper rejection of his notice of candidature materially affected the result of the election. We have listened to an interesting discussion on whether S. 20 of the Act enables a person or persons to present an election petition on any and every ground or restricts it only to the two grounds mentioned in Sub-cls. 3(a) and 3(b) of S. 20. Section 20 of the Mysore Town Municipalities Act reads as follows : "(1) At any time within ten days after the date of the (notification in the Mysore Gazette of the name of the person elected as a councillor) any candidate who stood for election or any ten persons qualified to vote at that election, may apply, together with a deposit of fifty rupees as security for costs to the Election Commissioner appointed by the Government in this behalf for the determination of the validity of the election. (2) The Election Commissioner may, after such enquiry as he deems necessary and subject to the provisions of sub-s. (3), pass an order confirming or amending the declared result of the election or setting the election aside. For the purpose of the said enquiry, the said Election Commissioner may summon or enforce the attendance of witnesses and compel them to give evidence as if he were a civil court and he may also direct, by whom the whole or any part of the costs of such enquiry shall be paid. If the costs are to be paid by the candidate whose election is contested, the whole of such costs and if the costs are to be paid by the petitioner or petitioners, such portion, if any, of the costs as is in excess of the sum paid at the time of the presentation of the application, shall be recoverable as if it had been awarded in a suit under the Code of Civil Procedure. The Code of Civil Procedure shall, as far as possible, be followed in such enquiries. An appeal shall lie to the High Court from the order of the Election Commissioner, provided it is only on a point of law and is preferred within one month from the date of such order, exclusive of the time requisite for obtaining a copy of the order. If the Election Commissioner sets aside an election, a date shall forthwith be fixed and the necessary steps taken for holding a fresh election. (3) (a) The Election Commissioner, if satisfied that a candidate has, within the meaning of sub-s. (4) committed any corrupt practice for the purpose of the election shall declare the candidats disqualified both for the purpose of that election, and of such fresh election as may be held under sub-s. (2) and shall set aside the election of such candidate if he has been elected. (b) If in any case to which cl. (a) does not apply, the validity of an election is in dispute between two or more candidates the Election Commissioner shall, after a scrutiny and computation of the votes recorded in favour of each such candidate declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected : Provided that, for the purpose of such computation, no vote shall be reckoned as valid if the Election Commissioner finds that any corrupt practice was committed by any person known or unknown, in giving or obtaining it. (4) A person shall be deemed to have committed a corrupt practice within the meaning of the last preceding sub-section,

(i) who with a view to inducing any voter to give or to refrain from giving a vote in favour of any candidate, offers or gives any money or valuable consideration, or holds out any promise of individual profit, or holds out any threat of injury to any person, or

(ii) who gives, procures, or abets the giving of a vote in the name of a voter who is not the person giving such vote. And a corrupt practice shall be deemed to have been committed by a candidate, if it has been committed with his knowledge and consent, or by a person who is acting under the general or special authority of such candidate with reference to the election. Explanation :- A "promise of individual profit" includes a promise for the benefit of the person himself or of any one in whom he is interested. It does not include a promise to vote for or against any particular municipal measure. (5) If the validity of the election is brought in question only on the ground of an error by the officer or officers charged with carrying out the rules made under cl. (b) of sub-s. (2) of S. 208 or of an irregularity or informality not corruptly caused the Election Commissioner shall not set aside the election. Explanation :- The expression error in this sub-section does not include any breach of or any omission to carry out or any non-compliance with the provisions of this act or rules made thereunder whereby the result of election has been materially affected. (6) If the Election Commissioner sets aside an election under Cl. (a) of sub-s. (3) he may, if he thinks fit, declare any person by whom any corrupt practice has been committed within the meaning of this section, to be disqualified from being a candidate for the office of a councillor or president or both in that or any other municipality constituted under this Act or the Mysore City Municipalities Act, 1933, or the City of Bangalore Corporation Act, 1949, or for the office of a member or president or vice-president in a District Board or of a member or chairman in a village panchayat for a term of years not exceeding seven and the Election Commissioners decision shall be conclusive : Provided that no such declaration shall be made in respect of any person without such person being given an opportunity to show cause why such declaration should not be made : Provided further that such person may by an order which the Government is hereby empowered to make if it shall think fit, in that behalf, be at any time relieved from such disqualification." It is strenuously contended by Sri V. Krishnamurthy, the learned counsel for the appellant, that no election petition would lie under S. 20 on grounds other than the two grounds mentioned in sub-ss. (3) (a) and (3) (b) of S. 20, that is (1) on the ground that the candidate at an election committed corrupt practice and (2) where there is a wrong computation of valid votes of the candidate. To support this stand, he strongly relied upon some observations of the Supreme Court in ILR 1955 Mys 109 : (AIR 1954 SC 653) (A)Their Lordships have nowhere laid down in that case that an election petition under S. 20 of the Act is not competent on grounds other than those mentioned in sub-ss. (3) (a) and (3)(b). On the other hand his Lordship Bijan Kumar Mukherjea, J., has in the course of the judgment observed as follows : "The explanation appended to sub-s. (5) of S. 20 of the Act undoubtedly introduces a difficulty and it seems that the different parts of this section have not been drafted with proper care. To reconcile the provisions of this section with those of S. 14 of the Act we would have either to put a restricted interpretation upon sub-s. (3) of S. 14 or on sub-s. (5) of S. 20 or else we would have to assume that the remedies provided under the two sections are cumulative, which would hardly be a reasonable assumption. We think, however, that it would not be necessary for us in the present case to express any final opinion on this question inasmuch as we have come to the conclusion that the appeal is entitled to succeed on the second point raised by the appellant, namely that he was not subject to any disqualification, rendering him ineligible to be elected as a councillor under S. 14 of the Act." It is clear from the above that his Lordship has refrained to express his final opinion on this matter. His Lordships comments were directed against the scheme and want of lucidity in the wording of S. 20 of the Mysore Town Municipalities Act. None of the observations in that case, in our opinion, lend any support to the contention of the learned counsel for the appellant.

8. It was brought to our notice that Acts that govern the constitution of Local Boards in Bombay and Rajasthan States also contain in them a provision similar to S. 20 of the Mysore Town Municipalities Act. A question somewhat similar to the one on hand in this case, relating to filing of election petitions under S. 19 of the Rajasthan Municipalities Act of 1951 was raised before a Division Bench of the Rajasthan High Court in Tekchand v. Banjarilal, AIR 1956 Raj 185 (C). Their Lordships considered the question whether an election petition is competent on grounds other than those mentioned in sub-s. (3) (a) and sub-s. (3) (b) and more particularly, the question whether the petitioner has a remedy by way of an election petition or not against the alleged improper rejection of his nomination paper by the Returning Officer. As already stated S. 19 of the Rajasthan Act is almost in the same terms as S. 20 of the Mysore Town Municipalities Act. After examining the several parts of the section and after observing that the scheme and wording of S. 19 are not as happy as one would have expected it to be his Lordship Modi, J., observed as follows : "On a perusal of the section as a whole however we consider that a candidate who has stood for election or any ten persons qualified to vote at that election have a right to present an election petition to the District Judge (unless any other Judge is appointed for the purpose) with the object of questioning the validity of the election on the ground (1) of any corrupt practice as defined in the section (see sub-s. (3) (a) and sub-s. (4)) or on the ground of any substantial error or irregularity on the part of the officer or officers charged with the duty of conducting the election, provided that such error or irregularity has affected or would have the effect of materially affecting the result of the election (see sub-s. (5) with the explanation). Sub-section (2) gives the Judge the authority to confirm or amend or set aside the election subject to certain other provisions contained in the section. Thus for example where a case of corrupt practice has been established it is provided that the election must be set aside, (see sub-s. 3(a)). Where however the ground of challenge is not as serious but is say a wrong computation of the valid votes of the respective candidates then the Judge is required to recompute the valid votes cast in favour of the respective candidates and declare the candidate who is found to have the greatest number of valid votes to have been duly elected (see sub-s. (3) (b)). Lastly where the election is sought to be set aside on the ground of a mere error or irregularity the section lays down that such an error or irregularity would be no ground for setting aside the election but it is further provided that where the error or irregularity is material in the sense that the result of the election is or would be affected thereby then such an error or irregularity may also be a ground for setting aside the election and this result in our opinion is produced by reading sub-ss. (5) and (2) together." Section 20 of the Mysore Town Municipalities Act does not contain anything in it precluding an election petition from being filed against improper rejection of the nomination paper. On the other hand the wordings of sub-ss. (1), (2) and (5) make it clear that the validity of the election can be challenged on any valid ground. It was argued for the appellant that the right to stand as a candidate for the election not being a civil right but a creature of the statute, it must be subject to the limitations imposed by the very statute and that since S. 20 of the Mysore Town Municipalities Act has not specified the grounds on which an election petition can be founded, the validity of the election can only be challenged on the two grounds mentioned in sub-s. (3) and on no other ground. We cannot subscribe to this view. It is no doubt desirable that the statute should specify the grounds on which an election can be challenged by means of an election petition but it cannot reasonably be urged that in the absence of such specification the validity of an election cannot at all be challenged.

9. It was argued that a mere irregularity in the conduct of the election cannot be a ground for challenging an election. This argument was founded on the ground that the explanation to sub-s. (5) does not include any breach of or any omission to carry out or any non-compliance with the provisions of this Act or the rules made thereunder whereby the result of the election has been materially affected. It was contended that the improper or wrong rejection of the nomination paper was not an error of the description covered by the explanation inasmuch as any error therein was not an error to carry out the provisions of the Act or the rules or a non-compliance with such provisions and therefore an election petition in a case of this character was not competent. We see no substance in this contention. Once it is conceded that the improper rejection of a nomination paper is an error which materially affects the result of the election it cannot reasonably be urged that sub-s. (5) (with its explanation) of S. 20 does not cover such a case. No doubt, the language of sub-s. (5) of S. 20 and its explanation is not as happy as one could have expected it to be but we entertain no doubt that an error committed by the Returning Officer in improperly rejecting a nomination paper was intended by the Legislature to fall within the ambit of the explanation to sub-s. (5) and can be made the foundation for an election petition.

10. We may in this connection refer to a decision of a Division Bench of the Bombay High Court reported in Narayan Maruti Mohakar v. District Judge, Kolaba, ILR 1953 Bom 942 : (AIR 1953 Bom 288) (D). His Lordship M.C. Chagla, C.J., dealing with the question as to whether an election petition under S. 22 of the Bombay District Municipal Act, 1901 (which is almost in the same terms as S. 20 of the Mysore Town Municipalities Act) is competent on grounds other than those mentioned in sub-ss. (3) (a) and (3) (b) observed as follows : "The jurisdiction of the District Judge to deal with election petitions arises under S. 22 of the Bombay District Municipal Act. Sub-section (1) provides that if the validity of any election of a councillor is brought in question by any person qualified either to be elected or to vote at the election to which such question refers, such person may at any time within ten days after the date of the declaration of the result of the election apply to the District Judge of the District within which the election has been or should have been held and then sub-s. (2) provides for the holding of an enquiry by a Judge and further provides that such Judge may after such enquiry as he deems necessary and subject to the provisions of sub-s. (3) pass an order confirming or amending the declared result of the election or setting the election aside. Sub-section (3)(a) gives the power to the Judge to set aside the election where a candidate has committed a corrupt practice for the purpose of the election and sub-s. (3)(b) gives the power to the Judge to hold a scrutiny of votes and after holding such scrutiny to declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected. Subsection (4) defines what is a corrupt practice. Now the contention of Mr. Joshi is that the jurisdiction of the District Judge on the election petitions is confined only to two cases; one the case of corrupt practice dealt with in sub-s. (3) (a) of S. 22 and the other, the scrutiny of votes under sub-s. (3)(b) of S. 22 and Mr. Joshi says that it was not competent to the District Judge to set aside the election on the ground that the councillor is not qualified to be elected by reason of his age. Mr. Gokhle on behalf of the Municipality on the other hand contends that the jurisdiction of the District Judge is much wider than deciding cases specified in sub-ss. (3)(a) and (3)(b) of S. 22. In our opinion, Mr. Gokhle seems to be right because the powers of the Judge are really set out in sub-s. (2) of S. 22 and not in sub-ss. (3) (a) and (3) (b) of S. 22 and when sub-s. (2) limits his powers by providing that his powers are subject to the provisions of sub-s. (3) all that it means is that in the two cases referred to in sub-ss. (3) (a) and (3) (b) it is obligatory upon him to set aside the election in one case and to declare a particular candidate elected in the other. But apart from those two cases the District Judge has the power to pass an order confirming or amending the declared result of the ejection, or setting the election aside. But it must be borne in mind that the power of a District Judge to pass any such order arises provided an election itself is challenged or disputed on the ground that something had happened in the course of the election which would justify the petition and which would entitle the Judge to pass the necessary order contemplated by S. 22(2)."

11. We respectfully agree with the above reasoning of the learned Chief Justice. The above observations, in our opinion, effectively answer all the objections raised by the appellant.

12. A Division Bench of this Court held that a candidate whose namination paper is improperly rejected by the Returning Officer has a remedy provided for under S. 20 of the Act in M.G. Khader Nawaz Khan v. Returning Officer, W.P. No. 44 of 1956 (Mys) (E) (unreported) and refused to issue a writ of mandamus at the pre-election stage.

13. It is clear from the above discussion that a person whose nomination paper is improperly rejected by the Returning Officer is entitled to file an election petition under S. 20 of the Mysore Town Municipalities Act challenging the validity of the election within ten days after the result of the election is published in the official Gazette and that he is not precluded from doing so because he had preferred an appeal against the decision of the Returning Officer to the Deputy Commissioner under R. 26(b) at the pre-election stage. The learned counsel for the appellant did not cite any decision which supports his contention that no petition under S. 20 is competent in the circumstances. But he relied upon some observations of Wild, J., in Dayaram Thandomal v. Keshawji Walji, AIR 1933 Sind 416 (F). We have perused that decision and feel that it does not support the contention of the appellant. Moreover, it cannot be gathered from the decision whether an explanation similar to the one found attached to sub-s (5) of S. 20 of the Mysore Town Municipalities Act is part of S. 15 of the Sindh Act. It cannot be disputed that explanation makes all the difference Thus all the four objections raised by the appellant are rejected.

14. For the above reasons, in our opinion, this appeal must fail and is dismissed with costs. Appeal dismissed. AIR 1957 MYSORE 84 (V 44 C 47 Dec.) "Abdul Ravoof v. T.N. Kempahonniah" MYSORE HIGH COURT Coram : 2 SREENIVASA RAU AND PADMANABHIAH, JJ. ( Division Bench ) Abdul Ravoof Sab, Appellant v. T.N. Kempahonniah and others, Respondents. Misc. Appeal No. 72 of 1956, D/- 20 -3 -1957, against order of Civil J., and Election Commr. Tumkur, in Election Misc. No. 84 of 1956. Mysore Municipalities Act (22 of 1951), S.20 - MUNICIPALITIES - ELECTION - Municipalities - Municipal Election Rules, R.28 - Municipal Election challenged on ground of change in assigned symbol - Correct approach in deciding question. Election. In a municipal election, the election of A was challenged by B on the ground that an unauthorised symbol different from that assigned to A had been attached to the ballot box of A and that the use of that symbol had materially affected the result of the election. Bs contention was that the symbol assigned to A was a pair of bullocks which was one of the symbols authorised under R. 28, Municipal Election Rules, but the symbol actually used on As ballot box was a pair of bullocks with a yoke and that as the latter symbol was associated with the Indian National Congress as an election symbol for legislative elections, its use resulted in enabling A to obtain the majority of votes that he did. The lower Courts upheld this contention. In an appeal by A to the High Court : Held that the assignment of a symbol in relation to elections held in a different context and under a different enactment could have no bearing on the question whether the symbol used in the Municipal elections fulfilled the requirements of the Town Municipalities Act and the Rules thereunder; that the only matter for consideration was whether the symbol used would be understood to represent a pair of bullocks by any one who saw it, and that the circumstance that a yoke also figured in the picture did not make the symbol different from the description "a pair of bullock", as given in the schedule to the Town Municipalities Rules. (Para 4)

V. Krishna Murthi, for Appellant; V.K. Govindarajulu, for Respondent No. 1. Judgement SREENIVASA RAU, J. :- The appellant and Respondents 1 and 2 contested the Municipal Elections for Division No. I, Tumkur Town, held in February 1956 under the Mysore Town Municipalities Act, 1951. Respondent 1 filed an Election Petition under S. 20 of the Act challenging the Appellants election on the ground that an unauthorised symbol different from that assigned to the Appellant had been attached to the ballot box of the Appellant and that the use of that symbol had materially affected the result of the election. His contention was that the symbol assigned to the Appellant was a pair of bullocks which is one of the symbols authorised under R. 28, but the symbol actually used on the Appellants ballot box was a pair of bullocks with a yoke and that as the latter symbol is associated with the Indian National Congress as an election symbol for legislative elections, its use resulted in enabling the appellant to obtain the majority of votes that he did. The learned Civil Judge, Tumkur, accepted this contention of Respondent 1, set aside the Appellants election and ordered that a fresh election be held for the Division.

2. In this appeal the Appellant has urged that the symbol actually used on the ballot box fulfilled the description of a pair of bullocks, that no material error was committed by the Returning Officer in affixing such a symbol to the Appellants ballot box and that it had not been established that the election had not been materially affected by this factor in the sense that the Appellant had obtained a numerical superiority of votes in consequence of it.

3. The learned Civil Judge has found that a pair of bullocks with a yoke was used as a symbol for the candidates of the Congress Party in the legislative elections held about 4 years prior to the Municipal Election in question. In his view the yoke featured in the symbol affixed to the ballot box made a material difference in the character of the symbol. He also held that the association of the symbol, a pair of bullocks with a yoke, with the Congress party as a symbol for the legislative elections influenced the voters in the Municipal Elections in a sufficient measure materially to affect the results of the election.

4. It is clear from a perusal of the learned Judges order that his decision has been largely influenced by the consideration that the symbol - a pair of bullocks with a yoke - was used by the Congress party in the legislative elections. He seems to think that because the symbol assigned to the Congress party was two bullocks with a yoke and the symbol included in the Schedule to the Town Municipalities Rules is merely a pair of bullocks, the additional feature of a yoke actually appearing in the symbol pasted on the ballot box of the Appellant made the latter an unauthorised symbol under the provisions of the Town Municipalities Rules. This appears to us to be a wrong approach. The assignment of a symbol in relation to elections held in a different context and under a different enactment can have no bearing on the question whether the symbol used in the Municipal Elections fulfilled the requirements of the Town Municipalities Act and the Rules thereunder. The only matter for consideration was whether the symbol used would be understood to represent a pair of bullocks by any one who saw it. Supposing a pair of bullocks with a yoke was the symbol assigned to a particular party in legislative elections held under the relevant enactment, is there anything in law preventing the use of the same symbol in elections under the Town Municipalities Act? Adverting, therefore, to the question whether the symbol used on the Appellants ballot box conforms to the description of a pair of bullocks as described in the Schedule to the Town Municipalities Rules, it is seen that the symbol consists of two bullocks with a yoke placed on the necks of both. It is also seen that a rope passes round the neck of each of the bullocks and a string through the nostrils of each of them. If, for a moment, we forget the yoke, could it be said that the string round the neck and the one through the nostrils take away the essential character of the symbol as representing a pair of bullocks? The symbol assigned to Respondent 1 is an elephant. Supposing the picture of the elephant actually used was a caparisoned elephant, could it be said that the symbol did not conform to the description of an elephant as given in the Schedule to the Town Municipalities Rules? It may be mentioned that according to the evidence adduced by Respondent 1 himself, the Appellant, while carrying on his election campaign used pamphlets like Exts. D-1, D-2, D-3 and D-4. Indeed, Respondent 1s grievance is that while the picture of two bullocks found in these exhibits does not feature a yoke, Ext. P. 4 which represents the symbol actually used on the Appellants ballot box features a yoke. But the pictures of the bullocks in Exts. D-1 to D-4 contain some additional features i.g., in Ext. D-1, both bullocks have strings passing through their nostrils and one of the bullocks has an ornamental band round its neck. Not only it is not suggested on behalf of Respondent 1 that these pictures do not conform to the description of a pair of bullocks, but it is his case that while the use of these pictures was in order it is the picture of the bullocks with a yoke used on the Ballot Box that does not conform to the description of a pair of bullocks. It is difficult to see on what basis this distinction can be made. If other additional features which are quite natural in the setting did not take away the essential character of the symbol, why should it be said that the featuring of a yoke takes away the character of the picture as representing two bullocks? Obviously the learned Judge has taken that view because a pair of bullocks with a yoke was a symbol assigned to the Congress party in the legislative elections. That, however, is an extraneous factor and not germane to ascertaining whether the picture used can be described as that of a pair of bullocks or not. In our view the circumstance that a yoke also figures in the picture does not make the symbol different from the description "a pair of bullocks", as given in the Schedule to the Town Municipalities Rules. There has thus been no breach of R. 28 of the Town Municipalities Rules regarding the assignment of a symbol.

5. This question itself is enough to dispose of the appeal, since, if any other consequence has flowed from the use of the symbol in question such consequence cannot vitiate the election as the use of the symbol itself has been held to be in order. The consequence that is alleged to have resulted from the use of the symbol is that the Appellant was able to make use of the prestige of the Congress organisation. Even assuming that he did so, there is nothing under the Town Municipalities Act to prevent a candidate from making use of his association with any organisation or his seeking aid of any organisation so long as it does not contravene any rule or so long as it does not amount to corrupt practice. It has at no time been suggested by Respondent 1 that there was any corrupt practice, nor has it been contended or shown by him that any rule is contravened. We must, therefore, allow the appeal and set aside the order of the learned Civil Judge. Respondent 1 will pay the Appellants costs in both the Courts. Advocates fee Rs. 100/-. Appeal allowed. AIR 1957 MYSORE 86 (V 44 C 48 Dec.) "Narasimiah v. Venkatappa" MYSORE HIGH COURT Coram : 2 HOMBE GOWDA AND K.N. PADMANABHIAH, JJ. ( Division Bench ) Narasimiah, Plaintiff-Petitioner v. Venkatappa and another, Defendants-Respondents. Civil Revn. Petn. No. 488 of 1955, D/- 5 -2 -1957, against order of Munsiff, Doddaballapur, D/- 10 -8 -1955. Mysore Agriculturists Relief Act (18 of 1928), S.5, S.3 - RECOVERY OF DEBT - DEBT RELIEF - Debt Laws - Plaintiff an agriculturist - S.5 applies - Suit on usufructuary mortgage for sale of property - Plaintiff can show that alleged usufructuary mortgage was simple mortgage. Evidence Act (1 of 1872), S.9. Section 5 is not intended to be restricted to cases wherein an agriculturist is arrayed as a defendant. One of the objects of the Agriculturists Relief Act as can be gathered from S. 5 of the Act is to empower the Courts in suits against or by agriculturists to investigate the entire history of the transaction between the parties and do substantial justice between them. Therefore an agriculturist whether he is a plaintiff or a defendant is entitled to take advantage of the provisions of S. 5 and enjoy the special benefit of it in disregarding the provisions of S. 92 of the Evidence Act if he is an agriculturist as defined in S. 2 of the Act. A plaintiff if he is an agriculturist, is as much entitled to claim and get the benefit of the same and to adduce oral evidence to prove that the transaction is not what it purports to be on the face of it. (Paras 4, 5) An agriculturist plaintiff suing on an usufructuary mortgage deed can claim the benefit under the provisions of S. 5 alleging that an apparently usufructuary mortgage deed was actually intended to be a simple hypothecation deed on which he could sue for recovery of money by sale of hypothecated properties. Case Law Ref. (Para 2) Anno : C. J. I., Evi. Act, S. 92, N. 4. Cases Referred : Chronological Paras (A) AIR 1944 Bom 32 (V 31) : 211 Ind Cas 490 5 (B) AIR 1930 Bom 79 (V 17) : ILR 54 Bom 30 5 (C) AIR 1914 Bom 273 (V 1) : 15 Bom LR 778 (FB) 5 (D) AIR 1916 Bom 206 (1) (V 3) : 34 Ind Cas 406 5 (E) (46) 51 Mys HCR 187 5 (F) (1858) 2 De G and J 97 : 44 ER 924 5 P. Muddappa, for Petitioner; H. Lakshmanaswamy, for Respondents. Judgement HOMBE GOWDA, J. :- This is a revision petition under S. 4 of the Mysore Agriculturists Relief Act for revision of the finding in O. S. No. 275 of 1954 on the file of the Munsiff of Doddaballapur that the petitioner though an agriculturist under the Mysore Agriculturists Relief Act cannot claim any relief under the Act and that therefore no finding on the first issue is necessary.

2. This revision petition came up for disposal before the Honble Justice Sri K. N. Padmanabhiah and the learned Judge felt that the question "whether an agriculturist plaintiff suing on an usufructuary mortgage deed can claim the benefit under the provisions of S. 5 of the Mysore Agriculturists Relief Act alleging that an apparently usufructuary mortgage deed was actually intended to be a simple hypothecation deed on which he could sue for recovery of money by sale of hypothecated properties" needs an authoritative pronouncement to serve as a guide to the lower Courts and referred it to a Division Bench for disposal.

3. The facts necessary for the appreciation of the point raised in the case are as follows: The petitioner filed a suit for the recovery of certain money due on a mortgage deed dated 21-10-1948 executed by the respondents in his favour with costs and current interest. He alleged in his plaint that he was an agriculturist and the defendants were also agriculturists, both on the date of the suit transaction as well as on the date of the suit and that though the mortgage deed was ostensibly a usufructuary mortgage deed it was intended to be only a simple mortgage deed, that the defendants continued to be in possession of the property mortgaged under the deed and therefore he was entitled to recover not only the principal amount but also the interest from the defendants. The petitioner contended that he was entitled to establish by adducing oral evidence that the transaction was intended to be only a simple mortgage and not an usufructuary mortgage deed. It was conceded that both the parties to the suit were agriculturists as defined under the Mysore Agriculturists Relief Act. But it was contended on behalf of the respondents that the petitioner was not entitled to claim and get any relief in the hands of the Court in view of the fact that the suit was not one coming under any of the provisions of the sub-sections of S. 3 of the Mysore Agriculturists Relief Act. It was on the other hand contended by the petitioner that so long as one of the parties to the suit was an agriculturist he was entitled to adduce oral evidence to establish what exactly is the true nature of the transaction under S. 5 of the Mysore Agriculturists Relief Act and the petitioner was therefore entitled to ask for a decree as prayed for in the suit. The learned Munsiff was of the opinion that there was no substance in the contention of the petitioner and that the suit did not fall under any of the sub-sections of S. 3 of the Mysore Agriculturists Relief Act and rejected the contention of the petitioner. It is against this decision that the present revision petition has been filed by the petitioner.

4. Section 5 of the Mysore Agriculturists Relief Act reads as follows : "Whenever it is alleged at any stage of any suit or proceeding to which an agriculturist is a party that any transaction in issue entered into, at any time within a period of six years before this Act is extended to the local area concerned, by such agriculturist or the person, if any, through whom he claims was a transaction of such a nature that the rights and liabilities of the parties thereunder are triable wholly or in part under this Chapter, the Court shall, notwithstanding anything contained in S. 92 of the Indian Evidence Act, 1872, or in any other law for the time being in force, have power to enquire into and determine the real nature of such transaction and decide such suit or proceeding in accordance with such determination and shall be at liberty, notwithstanding anything contained in any law as aforesaid to admit evidence of any oral agreement or statement with a view to such determination and decision." It is clear from the above that the Section is not intended to be restricted to cases wherein an agriculturist is arrayed as a defendant. One of the objects of the Agriculturists Relief Act as can be gathered from S. 5 of the Act is to empower the Courts in suits against or by agriculturists to investigate the entire history of the transaction between the parties and do substantial justice between them. Therefore an agriculturist whether he is a plaintiff or a defendant is entitled to take advantage of the provisions of S. 5 of the Mysore Agriculturists Relief Act and enjoy the special benefit of it in disregarding the provisions of S. 92 of the Indian Evidence Act if he is an agriculturist as defined in S. 2 of the Mysore Agriculturists Relief Act. There is absolutely no basis for the contention of the respondents that it is only a defendant in a suit that is entitled to claim the special benefits conferred under S. 5 of the Mysore Agriculturists Relief Act. Once it is conceded by the respondents that the petitioner is an agriculturist as defined in S. 2 of the Mysore Agriculturists Relief Act, there is absolutely no reason, whatsoever, to deny the special benefits conferred on agriculturists by the Mysore Agriculturists Relief Act to the petitioner. Further it cannot be said that the suit filed by the petitioner against the respondents does not come under any of the sub-sections of S. 3 of the Mysore Agriculturists Relief Act. Sub-section (iii) of S. 3 of the Mysore Agriculturists Relief Act leads as follows : "Suits for foreclosure or for the possession of mortgaged property or for sale of such property or for foreclosure and sale when the defendant or any one of the defendants is an agriculturist." It is admitted by the respondents that they are agriculturists. The suit filed by the petitioner is for sale of the suit schedule property and for the recovery of the amount due under the deed. It cannot therefore reasonably be urged that the suit does not fall under the above sub-section.

5. Section 5 of the Mysore Agriculturists Relief Act is almost in the same terms as S. 10-A of the Dekkhan Agriculturists Relief Act. There are a number of decisions of the Bombay High Court in which it had been held that the plaintiff is entitled to the special benefit conferred by S. 10-A of the Dekkhan Agriculturists Relief Act and to ask the Court to investigate the entire history of the transaction to ascertain the true nature of the transaction entered into between the parties. Reference in this connection may be made to Bhukhandas Valabdas v. Chhaganlal Dayaram, AIR 1944 Bom 32 (A), wherein it was held that the three essentials required by S. 10-A are that the transaction must be entered into by an agriculturist or a person through whom the agriculturist claims that the transaction must be of such a nature that the rights and liabilities of the parties under that transaction are triable under Chapter 3 and that one of the parties to the suit must be an agriculturist. In that case it was the plaintiff that sought for the benefit of S. 10-A of the Agriculturists Relief Act. It was contended in that case that since the plaintiff was not an agriculturist and was claiming through an agriculturist he was not entitled to claim the benefit of S. 10-A. It was held by His Lordship Lokur, J., that it was not necessary that the plaintiff who wants to take the benefit of the section must himself be an agriculturist or must be a party to the transaction. (See also Basappa Gurubasappa v. Tayawa Virupakshappa, AIR 1930 Bom 79 (B); Sawantrawa Fakirappa v. Giriyappa Fakirappa, 15 Bom LR 778 : (AIR 1914 Bom 273)(FB) (C); Gautam Jayachand v. Malhari Bapu, 34 Ind Cas 406 : (AIR 1916 Bom 206 (1)) (D). In this connection it is useful to notice that in Channe Gowda v. Mallappa, 51 Mys HCR 187 (E), dealing with the scope of S. 5 of the Mysore Agriculturists Relief Act His Lordship Venkata Ranga Iyengar, J., observed as follows : "In cases, as in the present case, where the parties to the transactions are agriculturists, S. 5 of the Mysore Agriculturists Relief Act enables them to adduce evidence to show that a document, which is ostensibly a sale deed, is in reality a deed of mortgage, notwithstanding anything contained in S. 92 of the Evidence Act. The rule contained in S. 5 of the Mysore Agriculturists Relief Act as regards the letting in of parole evidence to prove the intention of the parties is quite in accordance with the principles of English Law, as laid down in the leading case on the subject. Alderson v. White, (1858) 2 De G and J 97 : 44 ER 924 (F) and other cases, though in India and in Mysore as already mentioned, except in cases coming under Agriculturists Relief Act, parole evidence to prove the intention is not admissible under S. 92 of the Evidence Act." It is clear from the above that the relief of the special benefit provided under S. 5 of the Mysore Agriculturists Relief Act is not restricted to only a defendant. A plaintiff if he is an agriculturist, is as much entitled to claim and get the benefit of the same and to adduce oral evidence to prove that the transaction is not what it purports to be on the face of it. The finding of the learned Munsiff to the effect that the petitioner is not entitled to claim any relief under the Mysore Agriculturists Relief Act on the first issue cannot therefore be upheld.

6. In the result, therefore, this revision petition is allowed and the finding of the learned Munsiff on the preliminary issue is set aside and the case is remanded to the lower Court for disposal according to law.

7. In the circumstances of the case the parties will bear their own costs. Revision allowed. AIR 1957 MYSORE 87 (V 44 C 49 Dec.) "T.V. Narasingappa v. T.P. Siddappa" MYSORE HIGH COURT Coram : 2 SREENIVASA RAU AND PADMANABHIAH, JJ. ( Division Bench ) T.V. Narasingappa, Appellant v. T.P. Siddappa, Respondent. Misc. Appeal No. 38 of 1956, D/- 22 -3 -1957, against order of Civil J., and Election Commr., Chickmagalur, in Misc. No. 18 of 1956. Mysore Town Municipalities Act (22 of 1951), S.14 and S.20 - ELECTION - MUNICIPALITIES - Elections - Conflict between, pointed out - Election petition u/S.20 on ground that elected candidate was not of 25 years of age - Forum is Election Commissioner and not Government. Municipalities.Mysore Town Municipalities Act (22 of 1951), S.14 and S.20. Sub-section (1) of S. 14 deals with what might be called initial and continuing disqualifications and Sub-s. (2) deals with supervening disqualifications. If sub-s. (3) applies to disputes on questions arising in regard to disqualifications under both sub-s. (1) and sub-s. (2) then it is the Government that is the authority vested with the power of deciding any question of dispute, whether it relates to an initial disqualification or a supervening disqualification. Section 20 (1) is in very general terms and it seems to indicate that the validity of an election can be challenged by means of an election petition on any ground so long as that ground is not based on an immaterial error, irregularity or informality. The generality of the terms seems to imply that if the notice of candidature of a person under any disqualification is accepted that also can constitute a ground for an election petition. If, however, any question relating to disqualifications can be decided only by Government under S. 14 (3) it might be argued that S. 20 should be read subject to the provisions of S. 14 (3). It is also possible to suggest that both authorites have jurisdiction in such a matter, though such a construction should be avoided as far as possible as it will lead to conflict and confusion. AIR 1954 SC 653, Referred. (Para 4) The two sections have, if reasonably possible, to be interpreted in such a way as not to lead to anomalous results. It is quite reasonable to hold that the scheme of the Act is to enable the Election Commissioner to decide all disputes relating to an election including questions of disqualification, while leaving other matters in the hands of other authorities. If, after election, a member incurs a disqualification, the matter relates to his functioning as a member, and it is appropriate that such a question should be dealt with not by the Election Court but some other authority designated for the purpose, e.g., the Government, in the present context. That is the result that will flow if sub-s. (3) is construed as relating only to actual vacancies and not to vacancies that are deemed to have occurred. (Para 5) Though the language employed in S. 14 (3) and in S. 20, can hardly be said to be as clear as it could be, the question of disqualification alleged to be existing at the time of the notice of candidature is properly a matter for adjudication by an election petition under S. 20 of the Town Municipalities Act. (Para 9) Where the ground on which the election of a candidate was sought to be set aside, was that not being 25 years of age, he was disqualified to be a Municipal Councillor by virtue of S. 14(1)(e), the election petition is maintainable under S. 20 before the Election Commissioner and not before the Government under S. 14 (3). Case law referred. (Paras 9 and 11) The language employed in Ss. 14 and 20 of the Town Municipalities Act needs revision to clarify the intention behind those provisions. (Para 10) Cases Referred : Chronological Paras (A) AIR 1954 Mys 49 (V 41) : ILR (1954) Mys 281 2, 3, 6 (B) AIR 1954 Mys 18 (V 41) : ILR (1953) Mys 497 2, 3, 6 (C) AIR 1954 SC 653 (V 41) : ILR (1955) Mys 109 2, 10 (D) AIR 1953 SC 210 (V 40) : 1953 SCR 1144 6 (E) AIR 1953 Bom 288 (V 40) : 55 Bom LR 314 7 (F) AIR 1956 Raj 185 (V 43) 8, 10 (G) AIR 1933 Sind 416 (V 20) : 150 Ind Cas 246 8 G.L. Bangalore, for Appellant; V.K. Govindarajulu Naidu, for Respondent. Judgement SREENIVASA RAU, J. :- The point for consideration in this appeal is whether the learned Civil Judge had jurisdiction to entertain the election petition filed before him by the present Appellant under S. 20 of the Mysore Town Municipalities Act 1951. The ground on which the election of Respondent was sought to be set aside was that not being 25 years of age he was disqualified to be a Municipal Councillor by virtue of S. 14 (1) (e). Under S. 14 (3) it is provided that, if any question or dispute arises whether a vacancy has occurred under that section, the orders of the Government shall be final for the purpose of deciding such question or dispute. Under S. 20 of the Act any candidate who stood for election or any ten persons qualified to vote at that election may apply to the Election Commissioner for the determination of the validity of the election. The learned Civil Judge before whom the election petition came up for consideration in his capacity as Election Commissioner held that the only forum before which the question of disqualification should be raised was the Government by virtue of S. 14 (3) and that, therefore, the matter could not be agitated before the Election Commismissioner under S. 20. He accordingly held that the election petition was not maintainable and dismissed it on this preliminary point.

2. In the course of his order, the learned Judge says that the election petition in question and another election petition were posted to hear the respective Counsel in view of the decision reported in D. Siddaiah v. S. Rudrappa, AIR 1954 Mys 49 (A), where it has been held that the policy of the Legislature and the rule-making authority in framing the Act and the rules thereunder as well as the entire scheme of election is clearly opposed to allowing questions being raised before the Election Commissioner with regard to the contents of an electoral roll and that, therefore, the Election Commissioner cannot go into the question of the age of the voters. He also refers to the decision reported in M. S. Avadhani v. State of Mysore, AIR 1954 Mys 18 (B), in which it is observed with reference to the proviso to S. 14 (1) of the Town Municipalities Act and sub-s. (3) of that section that the proviso means that if a person is not qualified for being chosen as a Councillor his seat shall be deemed to be vacant, but that, however, under the proviso his election is not invalid if the disqualification is such as could have been brought to the notice of the Returning Officer at the time of or before the scrutiny of the nomination papers and has not been so brought to his notice. He also refers to the observation in this decision, viz., "The objectors would have a chance of putting forward their objections (1) before the Returning Officer at the time of or before the scrutiny of nomination papers; (2) They or any ten persons of the town (as provided under S. 20) could take up the matter in appeal to the Election Commissioner and from his decision appeal to this (High) Court. To hold otherwise would give a handle to any person irrespective of any interest he may have in the election to move the Government under S. 14 (3) to nullify a duly held Election which he could and ought to have challenged before a duly constituted authority like the Returning Officer and the Election Commissioner and the High Court. This in our opinion would lead to injustice and absurd consequences." The learned Judge then refers to the case reported in Ravanna Subanna v. G. S. Kaggeerappa, AIR 1954 SC 653 (C), in which observations have been made indicating the difficulty in reconciling the provisions of S. 14 (3) with the provisions of S. 20. On an examination of the abovementioned decisions the learned Judge comes to the following conclusion : "The view expressed as obiter dicta in the Supreme Court is that the Government being made the final authority under Sub-s. (3) of S. 14, the same matter cannot be agitated before the Election Commissioner under S. 20 of the Act and this is also the view in AIR 1954 Mys 49 (A), and with great respect I feel that this view is to be preferred to" the observations in AIR 1954 Mys 18 (B), which is not also referred to in the later Mysore decision AIR 1954 Mys 49 (A), and this also appears to be the plain meaning of sub-s. (3) of S. 14. I therefore feel that the disqualifications and the disabilities referred to in S. 14 are not matters to be agitated before the Election Commissioner under S. 20 and any question or dispute regarding the disqualification or disability as a consequence of which whether a vacancy has occurred under S. 14 is a matter over which the orders of the Government shall be final." He finally says that in this view of the matter the Election Petition is not maintainable.

3. It appears to us that the learned Judges view that there was any conflict between the views in the cases reported in AIR 1954 Mys 49 (A) and AIR 1954 Mys 18 (B), is without foundation. The question for decision in AIR 1954 Mys 49 (A), as is clear from the reference made to the decision by the learned Judge himself was whether the finality of the electoral roll including the question of the qualifying age of a person to have his name entered in the electoral roll could be agitated before the Election Commissioner. The question for decision in AIR 1954 Mys 18 (B), was whether Government had jurisdiction to go into the question of the disqualification of a Municipal Councillor when that disqualification existed at the time of election. While one dealt with the question of the capacity for voting the other dealt with the capacity for membership of a Council. These are governed by different provisions of law except to the extent that every candidate has also to be on the voters list. In the Supreme Court case referred to by the learned Judge the question of a voters qualification or disqualification did not come up for consideration at all. It is, therefore, difficult to see either the conflict between the Mysore decisions or the concurrence of views as between the AIR 1954 Mys 49 (A) and the Supreme Court case or how the learned Judge finds that the observations in the Supreme Court case express the same view as that found in AIR 1954 Mys 49 (A).

4. The question under consideration, however, is not free from difficulty. Section 14 (1) of the Mysore Town Municipalities Act enumerates the disqualifications for a person being chosen as, or being, a member. It also provides that if any person is elected as a Councillor in contravention of those provisions his seat shall be deemed to be vacant. Section 14 (2) provides that any councillor who during the term for which he has been elected or appointed becomes subject to any disqualification specified in sub-s. (1) shall be disabled from continuing to be a councillor and that his office shall become vacant. It also provides for other contingencies disabling a person from continuing to be a councillor. sub-section (3) of that section states that if any question or dispute arises whether a vacancy has occurred under the section, the orders of the Government shall be final for the purpose of deciding such question or dispute.It will be seen that sub-s. (1) of S. 14 deals with what might be called initial and continuing disqualifications and that sub-s. (2) deals with supervening disqualifications. If sub-s. (3) applies to disputes on questions arising in regard to disqualifications under both sub-s. (1) and sub-s. (2) then it is the Government that is the authority vested with the power of deciding any question or dispute, whether it relates to an initial disqualification or a supervening disqualification. Section 20 is the provision dealing with election disputes. Under sub-s. (1) of that section any candidate who stands for election or any ten persons qualified to vote at the election may apply to the Election Commissioner for the determination of the validity of the election. Sub-section (2) deals with the powers of the Election Commissioner and the procedure before him and also provides for an appeal to the High Court from the order of the Election Commissioner, Sub-section (3) (a) deals with the manner in which the Election Commissioner should deal with the petition when any corrupt practice is found to have been committed. Sub-section (3) (b) deals with the manner in which a case involving a scrutiny and computation of votes should be dealt with. Sub-section (4) defines what corrupt practice is Sub-section (5) together with the explanation states in effect that any error, irregularity or informality in carrying out the provisions relating to elections shall not be a ground for setting aside an election unless such error, irregularity or informality has materially affected the result of the election or is corruptly caused. It will be noticed that S. 20 (1) is in very general terms and it seems to indicate that the validity of an election can be challenged by means of an election petition on any ground so long as that ground is not based on an immaterial error, irregularity or informality. The generality of the terms seems to imply that if the notice of candidature of a person under any disqualification is accepted that also can constitute a ground for an election petition. If, however, any question relating to disqualifications can be decided only by Government under S. 14 (3) it might be argued that S. 20 should be read subject to the provisions of S. 14 (3). It is also possible to suggest that both authorities have jurisdiction in such a matter, though such a construction should be avoided as far as possible as it will lead to conflict and confusion. In the Supreme Court case referred to by the learned Civil Judge this aspect of the matter has been dealt with and it is observed : "To reconcile the provisions of this section (S. 20) with those of S. 14 of the Act we would have either to put a restricted interpretation upon sub-s. (3) of S. 14 or on sub-s. (S) of S. 20 or else we would have to assume that the remedies provided under the two sections are cumulative, which would hardly be a reasonable assumption". But no final opinion was expressed in regard to the matter as the case was decided on another point. If the language of S. 20 is sufficiently wide to permit an election petition being filed on a ground relating to the disqualification of a candidate, it has to be seen whether, as mentioned above, sub-s. (3) of S. 14 by necessary implication, takes such a dispute out of the jurisdiction of the Election Commissioner. That sub-section refers to a question or dispute arising where a vacancy has occurred under the section. It is urged for the Respondent that the wording would have been "where a vacancy has occurred under sub-section (2) of this section" if it was intended to vest Government with jurisdiction to decide questions or disputes relating only to supervening disqualifications. It is urged that Section 14 (1) provides that if any person is elected as a Councillor in contravention of the provisions of that subsection his seat shall be deemed to be vacant. Since sub-section (3) deals with questions or disputes relating to vacancies under the section, it is contended that it covers questions or disputes that may arise both under sub-section (1) and those that may arise under sub-section (2), i.e., questions or disputes relating to initial disqualifications as well as those relating to supervening disqualifications. It is urged for the Appellant, however, that sub-section (3) deals with a vacancy that has occurred under the Section and not also with one that is deemed to have occurred. Since it is only under sub-section (2) that vacancies can occur, it is urged that sub-section (3) applies only to supervening disqualifications.

5. The language of S. 14 (3) does not place the matter beyond doubt, but it appears to us that the latter construction has greater force. The contingency of Government having to decide whether a vacancy has occurred on the ground of disqualification can arise only after the concerned person has been elected as a Councillor, since S. 14 (3) deals with vacancies in the membership in consequence of disqualification. If a persons candidature is accepted by the Returning Officer and that person is elected as a Councillor and later on a dispute or question arises as to whether he suffers from any disqualification the question or dispute can come up before Government for decision. If, however, the Returning Officer rejects his candidature on the ground of disqualification, such person cannot contest the election and there is no possibility of his becoming a Councillor in that election with the result that the question or dispute cannot at all be taken before Government for decision. At the same time, if sub-section (3) of Section 14 should be construed as vesting exclusive jurisdiction in Government on questions relating to disqualifications, whether initial or supervening such a person cannot file an election petition. This would mean that he has no remedy at all. If, on the other hand, S. 20 is to be interpreted as enabling the Election Commissioner to go into the question of the disqualification of a person whose candidature is rejected by the Returning Officer, it would be anomalous and illogical that the Election Commissioner cannot go into the question of disqualification of a person whose candidature has been accepted by the Returning Officer while he can entertain such a dispute if the candidature is rejected. The two actions have, if reasonably possible, to be interpreted in such a way as not to lead to anomalous results. It is quite reasonable to hold that the scheme of the Act is to enable the Election Commissioner to decide all disputes relating to an election including questions of disqualification, while leaving other matters in the hands of other authorities. If, after election, a member incurs a disqualification, the matter relates to his functioning as a member, and it is appropriate that such a question should be dealt with not by the election Court but by some other authority designated for the purpose, e.g., the Government, in the present context. That is the result that will flow if sub-section (3) is construed as relating only to actual vacancies and not to vacancies that are deemed to have occurred.

6. In this connection, analogous provisions relating to disqualifications occurring in the Constitution of India may be referred to. Art. 191 (1) lays down the disqualifications for a person being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State. Art. 190 (3) (a) states that if a member of the House of Legislature becomes subject to any of the disqualifications mentioned in Art. 191, his seat shall become vacant. Art. 192 provides that if any question as to whether a member of a House of Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of art. 191 the question shall be referred to the decision of the Governor, who shall act on the opinion of the Election Commission and his decision shall be final. It will be noticed that the above mentioned provisions are analogous to the provisions of Section 14 (1), Section 14 (2) and Section 14 (3) of the Town Municipalities Act in dealing with the same topic. The question whether Art. 192 vesting jurisdiction in the Governor (acting on the opinion of the Election Commission) to decide a question of disqualification applied only to supervening disqualifications or also to initial disqualifications came up for consideration before the Supreme Court in the case reported in Election Commission, India v. Saka Venkata Rao , AIR 1953 SC 210 (D). Though the result of the case turned upon another question, the Supreme Court gave expression to its view on this matter also and held, affirming the view of the Madras High Court, that Art. 192 applied only to suprevening disqualifications. That Article refers to a question arising as to whether a member had become subject to any of the disqualifications. The wording employed in the corresponding part of S. 14 (3) of the Mysore Town Municipalities Act is: "If any question or dispute arises whether a vacancy has occurred." It would not be unreasonable to hold that the occurring of a vacancy indicates a change in the position of a member after he is elected like the words "has become subject" in Art. 192 (1), which is the view expressed by the Supreme Court in the above case. In AIR 1954 Mys 18 (B) it was held that a dispute relating to an initial disqualification came within the purview of S. 20 of the Act and that Government had no jurisdiction to decide such a dispute under S. 14(3). It may be mentioned that in arriving at that conclusion the Supreme Court case mentioned above has been referred to as affording guidance in interpreting the analogous provisions in the Town Municipalities Act. It will be remembered that the learned Civil Judge has, without warrant as it appears to us, felt that AIR 1954 Mys 49 (A) takes a different view on the question.

7. The learned Advocate for the Respondent drew attention to some provisions under the Bombay District Municipal Act and relied on the case reported in Narayan Maruti v. District Judge, Kolaba, 55 Bom LR 314 : (AIR 1953 Bom 288) (E). It was held in that case that Section 15 of the Act conferred jurisdiction solely upon the Collector to decide the question whether a Councillor properly elected is disqualified by reason of Section 15 of the Act. It was also observed in the case that the District Judges jurisdiction is confined to dealing with election petitions and that an election petition by its very nature must be restricted to bring before the Court either a malpractice or a corrupt practice or an irregularity that takes place in the course of an election. It should, however, be mentioned that though the provisions in the Act relating to disqualifications, and to election disputes largely resemble those in the Mysore Town Municipalities Act, there is material difference between the respective provisions. The Bombay Act has been amended from time to time, and as the Act stood at the relevant time, Section 15(1)(B) specifically provided that in every case the authority competent to decide whether a vacancy has occurred under sub-section 1 (A) shall be the Collector. Sub-section 1 (A) stated that if any person is elected or nominated as a Councillor in contravention of the provisions of sub-section (1) his seat shall be deemed to be vacant. Sub-section (1) relates to initial disqualifications. In the light of the clear provision in Sec. 15 (1) (B), it was held that there could be no doubt about the exclusive jurisdiction of the Collector which necessarily implied that the District Judge as the Election Court could have no jurisdiction in the matter.

8. The learned Advocate for the Respondent also draws attention to the other observations in the decision, viz., that the Election Commissioners jurisdiction is confined to deal with election petitions and that an election petition by its very nature must be restricted to bring before the Court either a malpractice or a corrupt practice or an irregularity that takes place in the course of election. This, it is urged, excludes the stage of presentation of a notice of candidature. There is nothing in the above mentioned observations to warrant any such exclusion. Nor can it reasonably be contended that the presentation and acceptance of a nomination paper is not an integral part of the process of election. Indeed, various enactments and statutory rules dealing with various types of elections definitely provide for an improper acceptance or rejection of notice of candidature being made a ground for an election petition, as for example, under the Representation of the People Act. In this connection, we may refer to the case reported in Tekchand v. Banjari Lal, AIR 1956 Raj 185 (F), in which while dealing with the meaning of the word election in relation to the Rajasthan Town Municipalities Act it was observed that the word election properly appears and should be understood in its extensive sense, viz., that it embraces within itself the entire process of election beginning with the filing of a nomination paper and the several stages and stops subsequent thereto culminating in the declaration of the results by the Returning Officer. It may be mentioned that the corresponding provisions of the rajasthan act are almost identical with those in the Mysore Act. We do not think that the Bombay case relied on by the learned Advocate for the Respondent goes very far to support his contention. It is, however, interesting to note that Sec. 15 of the Bombay Town Municipal Act has now been amended by deleting sub-sections 1(A) and 1 (B) by the Bombay Act No. 53 of 1954. A corresponding amendment was carried out in the Bombay Municipal Boroughs Act also. These amendments appear to have been carried out with the object of transferring the jurisdiction to decide disputes regarding initial disqualifications to the Election Court from the Collector. Section 15 (3) which continues to figure in the Act states that in every case the authority competent to decide whether a vacancy has occurred under that Section shall be the Collector. If by the deletion of sub-sections 1 A and 1 B from that section the jurisdiction to decide disputes in relation to the disqualifications existing at the time of election becomes vested in the Election Court under Sec. 22 of the Act, it follows that sub-section 3 which empowers the Collector to decide whether a vacancy has occurred under S. 15 can relate only to supervening disqualifications. The wording used in sub-section 3 is also "whether a vacancy has occurred", i.e., the same as the wording in Section 14 (3) of the Mysore Town Municipalities Act. It may also be mentioned that before the amendment by deleting sub-sections 1 A and 1 B, sub-section 1 B provided for an appeal to the Commissioner against the decision of the Collector. Sub-section (3) provides for an appeal to the State Government in the case of City Municipalities and to the Commissioner in other cases. The different provisions for an appeal under sub-section 1 B and sub-section 3 would seem to indicate that they referred to different contingencies, viz., to initial disqualifications and supervening disqualifications respectively though sub-section (3) refers to a vacancy occurring under the section and not specially to vacancies under sub-section 2, which relates to supervening disqualifications. It may be added that the case reported in Dayaram Thadomal Shahani v. Keshawji Walji, AIR 1933 Sind 416(G), holds that sub-section (3) of the Bombay District Municipalities Act, 1901 obviously refers to sub-section 2 and where the Councillor became disqualified during the term of his office and not to the case where there was a disqualification before election.

9. To sum up, we are of the view, in the light of the above discussion that, though the language employed in Section 14 (3) and in Sec. 20, can hardly be said to be as clear as it could be, the question of disqualification alleged to be existing at the time of the notice of candidature is properly a matter for adjudication by an election petition under S. 20 of the Town Municipalities Act.

10. We may take this opportunity to observe that the language employed in Ss. 14 and 20 of the Town Municipalities Act need revision to clarify the intention behind those provisions. It may in fairness be said that the provisions relating to elections and to disqualifications to be found in the various enactments relating to Local Bodies in the different States not only bear a close resemblance in the scheme of the enactments and even in the detailed provisions, as is but natural, but in the lack of clarity in the language employed. This is possibly due to the fact that all of them are patterned on some early piece of legislation promulgated in one of the provinces. This lack of clarity has been the subject matter of comment in judicial decisions, for example, in the Rajasthan Case referred to above, i.e., AIR 1956 Raj 185 (F). The Supreme Court has made similar observations in regard to the Mysore Town Municipalities Act in AIR 1954 SC 653 (C). The State Legislature has imported greater clarity to the corresponding provisions of the Mysore Village Panchayat and District Boards Act, 1952, by amending Sections 54 and 57 of the Act. It appears to us that the provisions of the Town Municipalities Act also call for similar legislative action.

11. In the view we have taken, we must hold that the election petition is maintainable under S. 20 of the Town Municipalities Act. We accordingly allow this appeal and set aside the order of the learned Civil Judge. He is directed to dispose of the election petition according to law. In the circumstances of the case, there will be no order as to the costs of this appeal. Appeal allowed. AIR 1957 MYSORE 92 (V 44 C 50 Dec.) "T. K. Swamy v. State" MYSORE HIGH COURT Coram : 2 PADMANABHIAH AND HOMBE GOWDA, JJ. ( Division Bench ) T. Krishna Swamy, Petitioner v. State of Mysore, Respondent. Writ Petn. No. 151 of 1954, D/- 17 -9 -1956. (A) Mysore Service Regulations, Art.216, Art.216(a) - SERVICE MATTERS - MISCONDUCT - PENSION - Reduction of pension on ground of past misconduct - Art.216(a) not retrospective. Article 216 provides that future good conduct is an implied condition of every grant of pension. Hence, Art. 216 can have no application to a case where the reduction of pension has been not for any bad conduct of the petitioner subsequent to the date of retirement but the reduction is by way of punishment for alleged past misconduct. Art. 216 (a) no doubt empowers the Government to withhold or reduce a pension already sanctioned to a servant, but this Article has subsequently been introduced into the Service Regulations and it was not in existence at the time when the pension was granted to the petitioner i.e., in the year 1947. This Article cannot have any retrospective effect. (Para 5) (B) Mysore Service Regulations, Art.302 - SERVICE MATTERS - PENSION - Pension once sanctioned cannot be reduced. The power given to the State Government under Art. 302 (b) is one that has to be exercised at the time of sanctioning the pension. Where pension had already been sanctioned to the petitioner on 9-9-47 the State Government cannot take advantage of the provision of Art. 302 (b) in support of their action in reducing the petitioners pension subsequently. (Para 6)

V.L. Narasimhamurthy, for Petitioner; Advocate-General, for Respondent. Judgement This is an application filed by the petitioner under Art. 226 of the Constitution praying for the issue of an appropriate writ, direction or order quashing the order of respondent-Government bearing No. F L. 5103-5/8 and A, 55-54-2 D/-15-11-1954, as illegal and ultra vires.

2. The facts that have given rise to this petition are briefly as follows :

3. The petitioner was an Agricultural Inspector under the respondent-State Government till 8-1-1947 when he was retired on a pension of Rs. 56-12-0. The question of payment of this pension was under correspondence for some time and, in the meanwhile, the respondent-Government passed an order directing the withholding of this pension and the insurance amount due to the petitioner on the ground that he was responsible for the loss of Rs. 9,508-8-0 said to have been incurred by the Arsikers Cotton Marketing Co-operative Society, Ltd., of which he (petitioner) was the Secretary for some time. The petitioner contended that he was not responsible for the loss and that the withholding of the pension and the insurance amount was illegal. Subsequently the State Government ordered the payment of the insurance amount but they did not pass like orders with respect to the pension. After repeated protests and representations, the respondent-Government passed the impugned order on 15-11-54 reducing his pension from Rs. 56-12-0 to Rs. 5/- per month from the date of retirement on the allged ground that his record of service was unsatisfactory. The petitioner contends that the charge that this record of service was unsatisfactory is not true and that no enquiry was held in this behalf. He further contends that the Government had no power to reduce the pension once sanctioned and that the order is illegal, unjust and ultra vires and liable to be quashed by the issue of an appropriate writ or order. In the counter-affidavit filed by the respondent-Government, they do not dispute the main facts alleged in the petition, but they contend that what was sanctioned to the petitioners an anticipatory pension, that the Government had power to reduce a pension already granted and that the order is legal and valid.

4. The only point that arises for consideration is whether the respondent-Government had power to reduce the pension of the petitioner as is done in this case. At the outset, it has to be pointed out that there is no substance in the contention of the respondent-Government that what was sanctioned to the petitioner was an anticipatory pension. The order granting pension to the petitioner does not say so nor is there any document worth the name to indicate that what was sanctioned to the petitioner was an anticipatory pension. Reliance was placed on the side of the respondent on articles 216, 216 (a) and 302 of the Mysore Service Regulations. In our opinion none of these provisions support the contention of the respondent-Government.

5. Article 216 provides that future good conduct is an implied condition of every grant of pension. The reduction of pension in this case has been not for any bad conduct of the petitioner subsequent to the date of retirement: on the other hand, the reduction is by way of punishment for alleged past misconduct. Therefore Art. 216 does not help the contention of the respondent in any way. Art. 216 (a) no doubt empowers the Government to withhold or reduce a pension already sanctioned to a servant, but this Article has subsequently been introduced into the Service Regulations and it was not in existence at the time when the pension was granted to the petitioner i.e., in the year 1947. This Article cannot have any retrospective effect and therefore that provision also does not help the respondents contention.

6. Art. 302 M. S. R. reads thus : "(a) The full pension admissible under the Rules is not to be given as a matter of course, or unless the service rendered has been really approved. (b) If the service has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount as it thinks proper. Note :- The full pension admissible under the Regulations is not to be given as a matter of course, but rather to be treated as a matter of distinction". This power given to the State Government under Art. 302 (b) is one that has to be exercised at the time of sanctioning the pension. In this case, pension had already been sanctioned to the petitioner on 9-9-47. Therefore the State Government cannot take advantage of the provisions of Art. 302(b) in support of their action in reducing the petitioners pension subsequently.

7. It is admitted that the State Government have held that the amount due to the Society is not Government money and it is stated that on that basis the State Government ordered the payment of the insurance amount to the petitioner. In view of that order, we do not see any justification for the State Government to withhold the pension or to reduce it as has been done in this case. We are of opinion that the petitioner has to succeed.

8. In the result, the petition is allowed with costs. The order of Government impugned in this petition is liable to be quashed as one made without jurisdiction and without any justification. A writ will accordingly issue as prayed for. Advocates fee Rs. 100/-. Writ issued. AIR 1957 MYSORE 93 (V 44 C 51 Dec.) "B.K. Nanjundeswara v. State of Coorg" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND MALLAPPA, J. ( Division Bench ) Dr. B.K. Nanjundeswara Krishnayya, Petitioner v. State of Coorg, Respondent. Writ Petn. No. 87 of 1954, D/- 14 -12 -1954. Constitution of India, Art.14 and Art.15 - EQUALITY - Classification of tenure into Jama and Sagu in Coorg. After the Constitution "equality before law" does not mean that all distinctions between one person and another or between one class of persons and another class of persons are wiped out. The Constitution allows classification, but the classification must rest upon reasonable grounds of distinction. The classification should not be made arbitrarily and persons in the same classification must have equal rights. (Para 3) There are more than one kind of tenure under which the land is held by people in Coorg. All people under Jama tenure are treated alike, just as all persons holding land under Sagu tenure are treated alike. It cannot be said that the classification of tenure into Jama and Sagu is not based on reasonable grounds. If persons holding land under Jama tenure are subjected to the payment of only half of the assessment paid by the persons holding same piece of land under Sagu tenure, it has to be remembered that the land is not alienable and partible, except with the permission of the Government. If, without a license they are entitled to keep guns, it is because they are liable to be called upon by the Government to do military or police duties. In fact even in other parts of Karnataka it will be noticed that there are what is known as service inams lands granted to Patels and Shanbhogues which are not liable to assessment. The lands are free from assessment in lieu of the service rendered or to be rendered by such persons. They are also not alienable. The classification therefore is not arbitrary and no distinction is made between persons of the same class. It is no doubt true that there is some distinction between the rights and liabilities of persons within one class and the rights and liabilities within the other class of tenure. But this is not opposed to Art. 15 of the Constitution as the classification is not arbitrary, but is based on reasonable grounds. (Para 4) Cases Referred : Chronological Paras (A) (1896) 165 US 150 : 41 Law Ed 666 4 K.V. Vasanth, for Petitioner; Advocate-General in Mysore, for Respondent. Judgement MALLAPPA, J. :- The contention of the petitioner is that persons like him holding land under what is known as Sagu tenure in Coorg have to pay double the assessment than persons who own similar lands under Jama tenure have to pay for similar pieces of land; that moreover the latter could use a gun without a license, while the former is required to obtain a license for that purpose. As this is contended to be discriminatory and violates Art. 14 of the Constitution, this application has been filed for the issue of necessary directions or order to the State of Coorg by its Chief Secretary, the Respondent in the case, to reduce the assessment of the land of the petitioner to the level of the assessment of Jama lands and also to allow the petitioner to possess a gun without a license.

2. The respondents affidavit discloses that it is true that the assessment payable on the lands held on Jama tenure and that payable on lands on Sagu tenure differ from each other, but that this does not constitute any denial of equality or discrimination such as is forbidden by Articles 14 and 15 of the Constitution. It is contended that there are various tenures under which the land is held all over India and these tenures represent varying rights and any difference in the quantum of rights pertaining to land does not constitute inequality before the law or discrimination. Further Jama tenure is associated with liability to perform certain duties enforceable by the State. It is because that persons holding land under Jama tenure are liable to perform military or police duties when called upon, such persons are granted exemption from obtaining a license for possessing a gun. The land under Jama tenure cannot also be alienated except with the permission of the Assistant Commissioner in writing and cannot also be partitioned. It is contended that the classification is reasonable and does not affect Art. 14 of the Constitution of India.

3. There is good deal of force in the contention raised by the respondent. This is one of the cases where what is meant by equality before law is misunderstood. After the Constitution it does not mean that all distinctions between one person and another or between one class of persons and another class of persons are wiped out. To take an extreme case, it is absurd to argue that all men that work for the same length of time should get equal wages irrespective of the nature of the work and their qualification or that because a policeman can be in possession of a gun without a license all officers of other departments but of the same grade should be allowed to do so. The Constitution allows classification, but the classification must rest upon reasonable grounds of distinction. The classification should not be made arbitrarily and persons in the same classification must have equal rights.

4. As observed by Willis in his "Constitutional Law" at p. 579 : "The guarantee of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation should be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed." That classification must not be made arbitrarily but must be based on reasonable grounds is made clear in Gulf, Colorado, and Santa Fe Rly. Co. v. Ellis, (1896) 165 US 150 (A) : "But it is said that it is not within the scope of the 14th Amendment to withhold from States the power of classification, and that if the law deals alike with all of a certain class it is not obnoxious to the charge of a denial of equal protection. While, as a general proposition, this is undeniably true ................ yet it is equally true that such classification cannot be made arbitrarily. The State may not say that all white men shall be subjected to the payment of the attorneys fees of parties successfully suing them, and all black men not. It may not say that all men beyond a certain age shall be alone thus subjected, or all men possessed of a certain wealth. These are distinctions which do not furnish any proper basis for the attempted classification. That must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed and can never be made arbitrarily and without any such basis." In this case it is clear that there are more than one kind of tenure under which the land is held by people in Coorg. It has to be remembered that all people under Jama tenure are treated alike, just as all persons holding land under Sagu tenure are treated alike. It cannot be said that the classification is not based on reasonable grounds. If persons holding land under Jama tenure are subjected to the payment of only half of the assessment paid by the persons holding same piece of land under Sagu tenure, it has to be remembered that the land is not alienable and partible, except with the permission of the Government. If, without a license they are entitled to keep guns, it is because they are liable to be called upon by the Government to do military or police duties. In fact even, in other parts of Karnataka it will be noticed that there are what is known as service inams lands granted to Patels and Shanbhogues which are not liable to assessment. The lands are free from assessment in lieu of the service rendered or to be rendered by persons. They are also not alienable. The classification therefore is not arbitrary and no distinction is made between persons of the same class. It is no doubt true that there is some distinction between the rights and liabilities of persons within one class and the rights and liabilities within the other class of tenure. But this is not opposed to Art. 15 of the Constitution as the classification is not arbitrary, but is based on reasonable grounds.

5. We find that there is no merit in this petition. It is accordingly dismissed with costs (Advocates fee Rs. 200/-). Petition dismissed. AIR 1957 MYSORE 94 (V 44 C 52 Dec.) "K. Dhondoji Rao v. Dominion of India" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) K. Dhondoji Rao, Plaintiff-Appellant v. Dominion of India, Defendant-Respondent. Second Appeal No. 353 of 1951-52, D/- 16 -9 -1954, against judgment and decree of Sub-J., Chitaldrug, in R.A. No. 7 of 1950-51. (A) Civil P.C. (5 of 1908), S.80 - CIVIL PROCEDURE - Notice to General Manager of railway. Section 80 is imperative and mandatory; the said provision absolutely debars a Court from entertaining a suit instituted without strict compliance with its provisions. (Para 2) Where, therefore, in the case of a suit against the Central Government relating to a railway, notices are issued to the Governor-General in Council and the Secretary to the Government, neither of the notices is in conformity with the requirements of S. 80, as they are not addressed to the General Manager of the concerned railway. (Para 2) Anno : AIR Com. C. P. C. S. 80, N. 2, Pt. 3 N. 9. (B) Civil P.C. (5 of 1908), S.80 - CIVIL PROCEDURE - Form of notice - Joint claim by two persons in one notice. No particular form of notice is prescribed; a joint claim in the notice advanced by two people who ultimately founded two suits cannot be deemed to be improper especially when both the claims put together do not exceed the amount mentioned in the notice. (Para 3) Anno : AIR Com. C. P. C. S. 80, N. 13, Pt. 1. (C) Civil P.C. (5 of 1908), S.80 - CIVIL PROCEDURE - Legal identity between person issuing notice and person filing suit. There is no power under the Civil P. C., for any member of a joint Hindu family to sue in his own name representing the family firm and as such the notice issued in the name of the firm cannot be construed as a notice issued by a managing member of the family firm. In such case, there is no legal identity as a strict matter of law, between the person who has issued the notice and the person who has filed the suit and therefore the suit is liable to be dismissed. (Para 4) Anno : AIR Com. C. P. C., S. 80, N. 13. Cases Referred : Chronological Paras (A) AIR 1947 PC 197 (V 34) : ILR (1948) Mad 214 4 (B) AIR 1935 Mad 389 (V 22) : 156 Ind Cas 333 4 (C) AIR 1927 PC 176 (V 14) : ILR 51 Bom 725 4 (D) AIR 1935 Sind 206 (V 22) : 159 Ind Cas 33 4 (E) AIR 1949 PC 143 (V 36) : ILR 1949 Bom 110 4 (F) AIR 1949 Mad 416 (V 36) : 1948-2 Mad LJ 577 4 C. Nagaraja Rao, for Appellant; Advocate-General, for Respondent. Judgement The suit from which this appeal arises was initially filed against defendant 1, the State of Mysore represented by the Chief Secretary, Bangalore and (2) the Government of India, represented by the Governor-General in Council, New-Delhi. The cause title was subsequently amended by the substitution of the description of defendant 2 as the Government of the Dominion of India, New Delhi, represented by the General Manager, M and S M Railways, Madras.

2. The claim of the plaintiff was for the recovery of Rs. 2,500/- as compensation for the nondelivery of goods consigned by him on 23-11-47 at Vontimitta, a station of the M and S M Railways. The destination was Davanagere, a station which was then included in the Mysore Railways, The main contention of the defendants is that there was no valid notice prior to suit as required under S. 80, C P. C., and that the suit, in consequence, is not maintainable. The other objections raised by them are that the notices issued under S. 77 of the Railway Act are not in conformity with the provisions thereof and that otherwise the railway administration is not liable for loss of articles entrusted to be carried, as no special declaration required under S. 75 of the Railway Act was made the commodity carried admittedly falling under excepted article. Under S. 80, C. P. C., as amended in 1948, in the case of a suit against the Central Government where it relates to a railway, the notice to be issued must be delivered in writing to, or left at the office of, the General Manager of that railway. Ex. N, the notice dated 24-8-1948, on behalf of the plaintiff, was issued to the Governor-General in Council, New Delhi and Ex. P to the Secretary to Government, the Central Government of India New Delhi. Neither of the said notices is in conformity with the requirement of the provision viz., S. 80, C. P. C., as they were not addressed to the General Manager of the concerned Railway as required therein. Though the plaint was amended in 1949, by inserting Dominion of India in place of Government of India represented by Governor General in Council, it is admitted that no fresh notice had been issued. Section 80, C. P. C., is imperative and mandatory; the said provision absolutely debars a Court from entertaining a suit instituted without strict compliance with its provisions. It is conceded by the Advocate for the appellant that the notices issued to defendant 2 are defective. It need, therefore, hardly be said that the suit against defendant 2 does not lie and is liable to be dismissed Consequently the appeal stands dismissed against defendant 2.

3. It is contended on behalf of the respondents that the notice issued to defendant 1 is also defective. The question for consideration is regarding the sufficiency in law or otherwise of the said notice. Mr. Nagaraja Rao, on behalf of the plaintiff contended that a liberal construction must be placed upon the section and that the notice issued should be held as sufficient on the ground that it substantially fulfils its object in informing the parties concerned about the nature and scope of the suit to be filed. The notice Ex. L has been issued to the Chief Secretary to the Government of Mysore, Bangalore, the officer to whom it should be delivered in accordance with the requirement of the amended Civil Procedure Code. The said notice purports to have been issued on behalf of Messrs K. Dhondoji Rao and Brothers together with one Mr. Santhuramappa both cloth merchants, Davanagere, advancing a joint claim aggregating to Rs. 3,249-15-6. These two persons Subsequently filed two different suits. A doubt about the validity of a joint notice is raised; but there is no substance in that contention. The splitting up of a joint claim does not by itself render either suit not maintainable for want of proper notice. No particular form of notice is prescribed; a joint claim in the notice advanced by two people who ultimately founded two suits cannot be deemed to be improper especially when both the claims put together do not exceed the amount mentioned in the notice. Both the suits were dismissed in the trial court; K. Dhondoji Rao who filed one of the suits as Manager of the joint Hindu family of himself and his brothers has preferred this appeal.

4. The point for consideration is whether the person who has issued the notice and the person that filed the suit are identical. The notice was issued in the name of K. Dhondoji Rao and Brothers and the suit was filed by Dhondoji Rao individually purporting to represent the family firm of K. Dhondoji Rao and Brothers. It is disclosed in the plaint that the plaintiffs family runs a cloth shop in Davanagere under the name and style of K. Dhondoji Rao and Brothers. The question now is whether the person suing has legal capacity identical with the firm that has issued Ex. L. the notice. In Vellayan Chettiar v. Government of the Province of Madras, AIR 1947 PC 197 (A), Lord Simonds approving the view of the Madras High Court (Vide Venkata Rengiah Appa Rao v. Secy. of State, AIR 1935 Mad 389 (B)), observed that there should be identity of the person who issues the notice with the person who brings the suit. Ever since the judgment of the Privy Council reported in Bhagchand Dagdusa v. Secy. of State, ILR 51 Bom 725 : (AIR 1927 PC 176) (C), it has been held by the Courts in India that S. 80, C. P. C., must be construed strictly. In AIR 1935 Mad 389 (B), it was laid down that S. 80, C. P. C., must be strictly complied with, that the section is express, explicit and mandatory and it admits of no implications or exceptions or any liberal construction and that every condition in that section must be strictly complied with. In that case, a suit was filed by two plaintiffs and only one of them had given notice under S. 80. It was held that the suit was bad. The said decision was followed in Secy. of State v. Thawerdas Sirumal, AIR 1935 Sind 206 (D). In the case reported in Govt. of the Province of Bombay v. Pestonji Ardeshir, AIR 1949 PC 143 (E), notice was issued on behalf of a Trust and the persons who filed the suit were trustees at the time. Their Lordships of the Privy Council concurred with the view expressed by Sir John Beaumont, the Chief Justice of Bombay who had held that there could be little or no doubt that when there were three plaintiffs, the names and addresses of all of them must be given. The trust on whose behalf the notice was given was not the plaintiff, as there is no power under the Code for trustees to sue in the name of their trust as members of the firm. This observation has an application by way of analogy to the suit under consideration. There is no power under the Code of Civil Procedure for any member of a joint Hindu family to sue in his own name representing the family firm and as such the notice issued in the name of the firm cannot be construed as a notice issued by a managing member of the family firm. In a recent case the Madras High Court (Vide Ramachandra Naidu v. Kandaswami Mudaliar, AIR 1949 Mad 416 (F)), has held that a notice under S. 80 must be strictly in conformity with the provisions without any material alteration of the legal capacity of the person suing, or the relief claimed, or other incidental circumstances. It was further held in that case that a notice issued on behalf of the person in his own name, cannot be said to be the same as a notice issued by that person as a Manager of a Hindu joint family for the purpose of Section 80; whatever weight it may have in a decree in a suit. The present case is a converse of that. The notice under S. 80, C. P. C., must state amongst other things, the name, place and residence of the plaintiff; the notice of K. Dhondoji Rao and Brothers does not disclose the status or constitution of the firm nor the representative capacity of the manager of the family. On a careful consideration of all the circumstances, I am of opinion that there is no legal identity as a strict matter of law, between the person who has issued the notice and the person who has filed the suit. It has therefore to be held that the suit against defendant 1 is also not maintainable and liable to be dismissed. In the view I have taken, it becomes unnecessary to deal with the other question whether or not the notice under S. 77 of the Railway Act is defective or to consider the competency or otherwise of the claim contravening S. 75 of the Railway Act.

5. In the result, the appeal is dismissed, parties bearing their own costs in this Court. Appeal dismissed. 1956 AIR 1956 MYSORE 1 (Vol. 43, C. 1 Jan.) "State of Mysore v. Sanjeeva" MYSORE HIGH COURT Coram : 2 SREENIVASA RAU AND HOMBE GOWDA, JJ. ( Division Bench ) State of Mysore, Complainant v. Sanjeeva, accused No. 1. Criminal Referred Case No. 2 of 1955, D/- 16 -8 -1955, from order of S.J., Shimoga, D/- 7 -1 -1955. (A) Criminal P.C. (5 of 1898), S.512 - EVIDENCE - OBJECT OF AN ACT - Scope. Section 512, Cr. P.C., represents an exception to the provisions of Section 33, Evidence Act, which itself is an exception to the general rule that only evidence recorded in the proceedings in question and in the presence of the parties can be made use of. Hence the conditions which are required to be fulfilled under S. 512 have to be strictly construed. AIR 1939 Mad 190, Rel. on. (Para 10) Anno : AIR Com., Cr. P.C., S. 512, N. 2. (B) Criminal P.C. (5 of 1898), S.512 - EVIDENCE - Proof of abscondence. As regards the basis on which the recording Court is to be satisfied of the fulfilment of the conditions i.e., that the accused was absconding and that there was no immediate prospect of his arrest, it is seen from the wording of S. 512, Criminal P.C., that these conditions have to be proved. These facts must be proved by legal evidence and not merely by the report of the police or by information otherwise tendered. 1890 All WN 100 and AIR 1947 Sind 122, Rel. on. (Para 13) Anno : AIR Com., Cr. P.C., S. 512, N. 3. (C) Criminal P.C. (5 of 1898), S.512 - EVIDENCE - WORDS AND PHRASES - Absconded - Meaning. An abseonder may be said to be one who intentionally makes himself inaccessible to the processes of law. Hence it is not enough if it is shown that it was not possible to trace him soon after the occurrence. It has also to be established that he was available at or about the time of the commission of the alleged offence and ceased to be available after the commission of the offence, before he can be treated as an abseonder. Similarly, it has to be established that there is no immediate prospect of arresting the accused. (Para 14) Anno : AIR Com., Cr. P.C., S. 512, N. 4. (D) Criminal P.C. (5 of 1898), S.512 - EVIDENCE - Record of finding that accused has absconded and that there is no immediate prospect of arresting him is essential AIR 1918 All 60 and AIR 1926 Lah 83, Dissented from. A record by the recording Court of its finding that the accused person has absconded and that there is no immediate prospect of arresting him is essential to invest the depositions with legal validity. While it is not the law that for purposes of being used under Section 512, Criminal P.C. the depositions of witnesses must be recorded in separate proceedings and it will suffice if at the commencement of the hearing against the other accused the Court takes evidence and gives a finding that the conditions in respect of taking depositions against the absconding accused are satisfied and. then proceeds to examine the witnesses, the absence of such a finding will clearly militate against the interests of the absconding accused. This is clearly against the policy of the law. Hence, an ex post facto finding by the Court of trial or the appellate Court that either of them is satisfied about the conditions being fulfilled would be of no avail AIR 1944 Nag 274, Approved; AIR 1918 All 60 and AIR 1926 Lah 83, Dissented from. (Para 15) Anno : AIR Com., Cr. P.C., S. 512, N. 3. (E) Criminal P.C. (5 of 1898), S.208 - WITNESS - Omission to examine all the witnesses - Effect. A committal without the examination of all the witnesses produced by the prosecution is illegal 50 Mys. HCR 364, Rel. on. (Para 19) Anno : AIR Com., Cr. P.C., S. 208, N. 6, 7. Cases Referred : Courtwise Chronological Paras (A) (V 26) AIR 1939 Mad 190 : 40 Cri LJ 437 10 (B) (84) 10 Cal 1097 12, 14 (C) (86) 8 All 672 : 1886 All WN 257 12 (D) (90) 1890 All WN 100 12, 13, 14 (E) (V 5) AIR 1918 All 60 : 41 All 60 : 20 Cri LJ #6 12, 14 (F) (V 2) AIR 1915 All 411 : 38 All 29 : 16 Cri LJ 801 12, 14 (G) (V 13) AIR 1926 Lah 83 : 6 Lah 489 : 27 Cri LJ 247 12, 14 (H) (V 1) AIR 1914 All 249 : 36 All 26 : 14 Cri LJ 634 12

(I) (V 28) AIR 1941 Lah 361 : 43 Cri LJ #8 12 (J) (V 31) AIR 1944 Nag 274 : ILR (1944) Nag 511 12, 14 (K) (V 34) AIR 1947 Sind 122 : 48 Cri LJ 74 13

(L) (V 13) AIR 1926 All 340 : 27 Cri LJ 874 15 (M) (45) 50 Mys HCR 364 19 Asst. Advocate General, G. Chennappa, for the State. Judgement SREENIVASA RAU, J. :- This reference is by the learned Sessions Judge, Shimoga Division, under S. 438, Criminal P.C., for quashing the committal by the learned had Magistrate, Chitaldrug of Accused 1, Sanjeeva Naika, in C.C. 236/54 to take his trial in the Court of session for an offence punishable under S. 302, I.P.C. along with four others who had already been committed for an offence under S. 302 read with S. 114, I.P.C. in connection with the same occurrence, i.e. the alleged murder of one Papanna Reddy of Maradihalli at Gailal village, Miriyur Taluk, on 14-2-54.

2. The circumstances giving rise to the reference are as follows :

3. The abovementioned Sanjeeva Naika and four others were charged by the Miriyur Police with the murder of Papanna Ready and a charge-sheet was presented to the Court of the IInd Magistrate, Chitaldrug, on 26-2-54. The case was registered as C.C. 236/54. The said Sanjeeva Naika and another accused, A-2, were stated to be absconding. The other three accused were produced in custody. The learned Magistrate directed the issue of proclamations against A-1 and A-2 on 11-3-54. Accused 2 Thippiah, however, surrendered before Court on 18-3-54. Proclamation in regard to accused 1 Sanjeeva Naika was again ordered and duly published. On 19-5-54 the prosecution prayed for a further adjournment to trace accused 1. The Court refused it on the ground that the other accused were incarcerated in the jail awaiting inquiry for over three months and that if accused 1 was traced he could be proceeded against according to law. The case was adjourned to 26-3-54. On that day the prosecution filed a memo praying that the evidence of witnesses to be examined in the case may be treated as one under S. 512, Criminal P.C. in respect of the absconding accused. The learned Magistrate made a note as follows : "There is sufficient material to prove that the accused Sanjeeva Naika has absconded and that there is no immediate prospect of arresting him. The prosecution version is that he is the principal offender. There appears to be no possibility of apprehending the fugitive in the near future. Hence I record the evidence under S. 512, Criminal P.C. to be used against A-1 if and when he is traced."

4. The witnesses produced by the prosecution were accordingly examined on that day and on subsequent dates of hearing. Eventually on 2-5-54 the learned Magistrate committed A-2 to A-5 to take their trial before the Court of session for an offence under S. 302 read with S. 114, I. P.C.

5. On 15-10-54 accused 1 Sanjeeva Naika was produced in custody before that Court which was on that day temporarily in charge of the First Magistrate, Chitaldrug, who remanded him to judicial lock-up till the next day. On 16-10-54 the learned Second Magistrate made an order as follows : "The case against the accused which was struck off since he was reported to be absconding is restored to file. The accused with four other persons was charged with murder by the Police of Miriyur. The accused Sanjeeva had absconded at the time of preliminary inquiry and his alleged associates were committed to Sessions in C.C. No. 236/54 on the file of this Court. The evidence taken by me against the co-accused could not be treated as evidence against the absconding (accused) and as the accused Sanjeeva was not a party to the proceedings and had no opportunity to cross-examine. There are also decisions that the accused should be given opportunity to cross-examine witnesses and the Magistrate can act upon the evidence on record." The accused was produced before Court on several other subsequent dates and on 30-10-54 the Prosecutor submitted a supplementary list of witnesses purporting to be in addition to the witnesses already examined under S. 512, Cr. P.C., and submitted that the accused may be committed for trial on the evidence on record and after examining "additional witnesses pertaining to his complicity". Arguments were heard on that day and orders were pronounced on 2-11-54. The order sheet of that day contains the following entries : "I propose to commit the accused on the strength of evidence on record, for reasons to be stated in the order I am going to make committing the accused for trial. Accused examined. The evidence against the accused explained to him. Arguments heard............. The prosecutor filed an application at the time of arguments that he proposed to examine additional witnesses. The question of examination of additional witnesses does not arise since I have committed the accused on the evidence on record."

6. In the order of committal, the learned Magistrate considered the question whether Accused 1 who was not a party to the previous proceedings could be committed merely on the strength of the evidence recorded or the prosecution witnesses should be recalled so as to afford an opportunity to A-1 to cross-examine them. He stated that it had been proved to his satisfaction that the accused had absconded, that there was no immediate prospect of arresting him and that therefore evidence was recorded under S. 512, Cr. P.C. against him. After referring to his refusal of further adjournment prayed for by the prosecution on 19-5-54 to trace A-1 on the ground that the prayer was unreasonable and to his order of 25-5-54 that the evidence against the absconding accused was being recorded under S. 512, Cr. P.C. the learned Magistrate proceeded to say that all the available evidence against the second persons was placed on record and the evidence was tested in cross-examination by three senior Counsel, that A-1 was undefended, that there being no provision to appoint a Standing Counsel in committal proceedings, it was meaningless to record the same evidence as a mechanical formality and that the occurrence having taken place more than eight months ago, there was no justification to summon again a large number of witnesses who had been examined thereby causing more delay in the trial and considerable inconvenience to the parties. After considering the evidence as recorded by him, he concluded that the material justified the framing of a charge against Accused 1 under S. 302 I.P.C. and committed him to take his trial in the Court of Session. He accordingly committed the accused.

7. In his reference, the learned Sessions Judge opines that under S. 512 Cr. P.C. it was a condition precedent that the absconding of the accused must be proved as also that his presence could not be secured in the near future. In his view these facts had not been proved as no evidence bearing on the matter had been recorded. He refers to the request made by the prosecution on 19-5-54 for a further adjournment specifically on the ground that they wanted to trace Accused 1 and says that this itself shows that the stage had not been reached for holding that Accused 1 was absconding. He considers the other reasons given by the learned Magistrate as not germane to the matter at all. He thinks that the learned Magistrate has considered only the delay likely to be caused in the proceedings and has not bestowed his attention on the fact that the witnesses were presumably available for examination. He then refers to the list of additional witnesses filed by the prosecution and says that it was incumbent under S. 208, Cr. P.C. upon the learned Magistrate to examine all the witnesses before he came to a decision on the question of committal and that the omission to examine them was an illegality. Taking therefore the view that the non-observance of the provisions contained under Ss. 208 and 512 Cr. P.C. was each of them in itself enough to render the committal illegal he has submitted the records for appropriate orders by this Court. Both the Courts below have referred to a number of decided cases in their respective orders.

8. The main questions for consideration are whether the requirements of S. 512 Cr. P.C. under which the evidence purports to have been recorded by the Magistrate have been fulfilled as the committal is based entirely on such evidence, and whether the committal is maintainable when the Magistrate did not examine all the witnesses as were cited by the prosecution.

9. The basic rule in regard to evidence taken before the Court in judicial proceedings is that it must be taken in the presence of the parties to the proceedings. This is even more emphatically of fundamental importance in criminal trials and S. 353 Cr. P.C. provides that all evidence shall be taken, in the presence of the accused or in the presence of his pleader when his personal attendance is dispensed with. This is, of course, subject to statutory exceptions. As they are exceptions to a fundamental rule they are to be strictly complied with. Such exceptions are provided only where the Legislature has thought that the interests of justice require such evidence being made available, and after making provision for ensuring that such evidence approaches to the maximum degree possible the standard of evidence adduced in the presence of parties. Sections 32 and 33 of the Evidence Act are instances of such exceptions. Section 32 relates to previous statements and the categories under it are of such a character that the circumstances under which those statements are made almost automatically guarantee the truth of those statements, as, for example, dying declarations or statements against ones pecuniary or proprietary interests. Similarly, in regard to S. 33, the evidence recorded in previous proceedings can be tendered in a subsequent judicial proceeding or at a later stage of the same proceeding only if the prior proceeding is between the same parties and relates substantially to the same questions in issue and the party affected by such proceedings has had the right and opportunity to cross-examine. Even under these two sections, such evidence cannot be tendered if the person concerned is available for examination as a witness. It is to be noticed that under S. 33, Evidence Act, it is only evidence taken in the presence of a party or his representative that could be made use of in the later stages.

10. Section 512, Cr. P.C. is also an exception such as is contemplated under S. 353, Cr. P.C. It occurs in the Chapter on Special Rules of evidence. The first part of the section provides for recording the depositions of witnesses produced on behalf of the prosecution in the absence of the accused when the accused has absconded. The second part provides for such recording in cases where the accused is not known, but further delimits the scope and requires the prior order of the High Court. In this case, we are only concerned with the first part. The object of the section is to obtain and preserve valuable evidence in regard to an offence so that the interests of justice may not suffer when the accused is found and put on trial after long delay because in the interval the evidence may have ceased to be available. If the material was not so secured, it might in many instances not be possible to bring home the offence to malefactors at all and that would result in the latter taking advantage of their own successful evasion of the process of Court and the cause of justice would suffer. The Legislature has therefore thought it proper to provide this express exception to the general rule under S. 353, Cr. P.C. It will be noticed that while S. 22 of the Evidence Act provides for the use of evidence taken in previous proceedings in the presence of the party affected and when he had a right and opportunity for cross-examination, S. 512 enables evidence to be recorded in the accuseds absence for later use. Thus, as observed by Venkataramana Rao, J. in - "Emperor v. Labbai Kutti, AIR 1939 Mad 190 (A), Section 512, Cr. P.C., represents no exemption to the provisions of Section 33 of the Evidence Act which itself is an exception to the general rule that only evidence recorded in. the proceedings in question and in the presence of the parties can be made use of. It is hardly necessary to say that in these circumstances, the conditions which are required to be fulfilled under S. 512 Cr. P.C. have to be strictly construed.

11. The conditions pertain both to the recording of depositions and to the use of the depositions later on in the proceedings taken on the arrest of the absconder. The conditions pertaining to the recording are that it must be proved that the secured person has absconded and that there is no immediate prospect of arresting him. The conditions relating to the use of such depositions in a later trial or inquiry after the accused is arrested are, broadly speaking, the same as those under Sections 32 and 33 of the Evidence Act i.e. the non availability of the deponent on account of the death or incapacity to give evidence or impossibility of procuring his attendance without unreasonable delay, expense, or inconvenience. As regards the conditions under which the depositions can be recorded they have been the subject-matter of consideration in a series of decisions.

12. Ghurbin Bind v. Queen Empress, 10 Cal 1097 (B) was a case in which the absconding accused was later on brought to trial and convicted on the basis of evidence including the deposition of a witness examined before the Committing Magistrates Court. The learned Sessions Judge who tried the case admitted the evidence as coming under Section 33, Evidence Act and also under S. 512, Cr. P.C. The Calcutta High Court while holding that it could not possibly come under Section 33, Evidence Act, as it was not recorded in the presence of the prisoner held that it would be admissible under Section 512, Cr. P.C. only if its provisions had been complied with. According to that, the section requires that the absconding of the accused should be alleged, tried and established before the deposition is recorded. As these requirements had not been fulfilled, they held that the deposition was inadmissible in evidence against the accused. In - "Queen Empress v. Ishri Singh, 8 All 672 (C), the High Court held that the depositions given before the committing Magistrate against the absconding accused were admissible in evidence under Section 512, Cr. P.C. in the trial of the accused. It is not clear from the report whether the Magistrate purported to act under Section 512 in recording the depositions. The High Court found that the Magistrate had recorded that the accused was an absconder. From the trend of the judgment, it would appear that the Magistrate had not recorded that the conditions of Section 512 were satisfied before recording the depositions, but that the High Court itself on an examination of all the circumstances came to the conclusion that the conditions of Section 512 were satisfied. It would therefore appear that in the High Courts view, it was open to make use of such depositions if at the stage of trial it was found that the conditions of Section 512, Cr. P.C. were satisfied and that it was not necessary, even if there was no indication that the recording Magistrate had felt satisfied about the fulfilment of those conditions. The provisions of Section 512, Cr. P.C. came up for consideration before the same Court and the same learned Judges in the case reported in - Empress v. Makhni, 1890 All WN 100 (D). That was a case in which the accused had been convicted under Section 193, I.P.C., for giving false evidence in proceedings under Section 512, Cr. P.C. The learned Judges held that it was only if it was proved that (1) the accused had absconded and (2) that there was no immediate prospect of arresting him, evidence could be legally taken under Section 512, Cr. P.C. They stated that the facts must be proved by legal evidence and not merely by the report of the Police unless that report was given in the shape of evidence before the Magistrate. They observed that the section had nothing to do with the taking of evidence generally as in inquiries and trials. Section 512 was a special rule o evidence taking a direct and distinct departure from the general rule mat the accused are entitled to have evidence given in their presence and hearing. This was a starting departure and must be strictly construed. In Section 87, Cr. P.C. providing for the issue of a proclamation against an absconding person and Section 90 providing for the issue of a warrant of arrest under certain circumstances, the terms used were "if a court has reason to believe" and in Section 87 the words were added "whether after taking evidence or not." But in Section 512 the words used were "if it be proved. This means proved by evidence upon which a Court could legally and properly act. On the facts of the case they held that it had not been proved that the person then accused had absconded or that there was no immediate prospect of arresting him and that therefore it was not a proceeding in which evidence was or could be legally taken. They also drew attention to the fact that Section 512, Cr. P.C. of (1882?) was very different in terms and a distinct departure from section 327 of the old code (i.e. of 1872). It may be mentioned in this connection that while the Code of 1861 contained no corresponding provision, Section 327 of the Code of 1872 read as follows : "If an accused person absconds, and after due pursuit cannot be arrested, any Court competent to try or to commit such accused person for trial for the offence complained of, may, in his absence, record the statements of the persons acquainted with the facts; and such depositions may, on the arrest of such person, be put in on his trial for such offence, if it is not practicable to procure the attendance of such witnesses". It will be noticed that the wording of Section 512(1), Cr. P.C. 1882, is more precise and stringent both in regard to the conditions to be satisfied before the recording of depositions and as regards their use. In other words, it was held that as the conditions necessary for exercising the jurisdiction under Section 512 had not been satisfied, the de-positions recorded could not be regarded as evidence taken in a judicial proceeding and the conviction under S. 193, I.P.C. could not be sustained. In - Bhagwati v. Emperor, AIR 1918 All 60 (E), previous depositions recorded under Sec. 512, Cr. P.C. were made use of at the trial. The recording Magistrate bad found that the accused had absconded but no express finding had been given that there was no immediate prospect of arresting the accused. The High Court took the view that while it was certainly advisable that the Magistrate should recite in his order that the accused was absconding and that there was no immediate prospect of his arrest, the presumption was that the Magistrate did his duty and did not record the evidence under Section 512, Cr. P.C. unlawfully, and that hence the failure to record a finding that mere was no immediate prospect of the accuseds arrest did not render the evidence inadmissible. The appellants Counsel relied on an earlier decision of the same High Court reported in - Rustam v. Emperor, AIR 1915 All 411 (F) where it was held that the Court which records the proceedings under Section 512, Cr. P.C. must, first of all, record an order that in its opinion it had been proved that the accused had absconded and that there was no immediate prospect of his arrest. In this case, the murder was committed on 3-12-1897. Evidence purporting to be under Section 512, Cr. P.C. was recorded on 24-12-1897. The proceedings were discovered to be incomplete in 1898, a proclamation under Section 87 of the Code of Criminal Procedure was issued and also a warrant for the arrest of then absconding accused. A police constable gave evidence of having failed to find the accused after making a search. Witnesses who had been examined in 1897 were examined again. The proceedings were apparently left incomplete again because the matter was once again taken up by the Prosecuting Inspector in 1911. Fresh proceedings were started on his suggestion and formal evidence of the accuseds absconding was recorded. At the trial, the Sessions Judge took on record the depositions of 1897. The depositions of 1995 were also taken into consideration by him though no order appeared on the file showing how and when those statements were brought on record. The accused was convicted on the statements of the witnesses recorded in 1897. The High Court as mentioned above held that as the recording of depositions of 1897 was not preceded by a finding that the conditions mentioned in S. 512, Cr. P.C. had been satisfied, that evidence was inadmissible. As regards the depositions taken in 1898 the evidence of the police constable examined in 1898 did not disclose that there was no immediate prospect of the arrest of the accused nor was there any finding by the Magistrate that he was satisfied that the accused was absconding and that there was no immediate prospect of his arrest. The High Court however considered those depositions also. But this was only to find out whether there was any ground for ordering a retrial, in the later Allahabad case viz., - AIR 1918 All 30 (E), this decision was distinguished on the ground that the learned Judges had, after going through, the previous records, came to the conclusion that there was no evidence from which the Magistrate could draw the inference that the accused was absconding and that there was no immediate prospect of his arrest and that in the case with which they were dealing there was evidence to justify a reasonable inference both in regard to the absconding of the accused and the absence of an immediate prospect of his arrest. They however do not explicitly deal with the observation in the previous Allahabad decision that the Court recording the depositions must, first of all, record an order that in its opinion, both the conditions have been established. They content themselves with saying that the section nowhere requires that the Magistrate must give a finding. In the case reported in - Daya Ram v. Emperor, AIR 1926 Lah 83 (G), the Lahore High Court appears to adopt the view taken in - AIR 1918 All of 60 (E). The deposition of one of the witnesses recorded under Section 512, Cr. P.C. was relied on for convicting the appellant. No finding had been given by the recording Magistrate that the accused had absconded and that there was no immediate prospect of arresting him. The appellants Counsel relied on - Ramdial v. Emperor, AIR 1914 All 249 (H), but the learned Judges of the Lahore High Court thought it unnecessary to consider that decision as the same High Court has taken a different view in - AIR 1918 All 60 (E). They found that the recording Magistrate took the statements of two constables who had searched for the accused and had not been able to find him and that those statements afforded the proof that was required and the fact that a proclamation against the accused under Section 87 Cr. P.C. had been issued would show that the Magistrate was satisfied with the proof. This would indicate that in the view of the learned Judges an explicit finding by the Magistrate was not necessary and that it was open to the High Court or the appellate Court to satisfy itself whether conditions under Section 512, had been fulfilled. In - Karam Singh v. Emperor, AIR 1941 Lahore 361 (1), it was contended on behalf of the appellant that the only evidence let in before the Magistrate who recorded the statement under Section 512, Cr. P.C. was that of a police constable who did not personally know the appellant and therefore could not have conducted or did not at any rate in fact conduct an effective search. The Magistrate made an order that he was satisfied that the appellant was intentionally absconding and that mere was no hope of his being arrested soon. The High Court observed : "When the Magistrate is so satisfied on evidence recorded by him, the sufficiency of the evidence satisfying him cannot be agitated or questioned when the accused person is later brought to trial. Far less can it be questioned at a later stage when the accused person after trial is convicted and an appeal preferred from the order of conviction". Thus in the view expressed in this decision, the finding of the recording Magistrate is conclusive Laid cannot be challenged either in the trial Court or in the appellate Court. In - Manbodh v. Emperor, AIR 1944 Nag 274 (J), however, a different view is taken and it is held that not only should the Court recording the depositions be satisfied about the fulfilment of the conditions but that the Court trying the case must also be subsequently satisfied that Section 512, Cr. P.C. was complied with, from which it necessarily follows that the matter could be canvassed in the appellate Court also.

13. As regards the basis on which the recording Court is to be satisfied of the fulfilment of the conditions i.e. that the accused was absconding and that there was no immediate prospect of his arrest, it is seen from the wording of S. 512 Cr. P.C. that these conditions have to be proved. It has accordingly been held that the facts must be proved by legal evidence and not merely by the report of the Police or by information otherwise tendered vide 1890 All W.N. 100 (D) and - Janu v. Emperor, AIR 1947 Sind 122 (K).

14. The question also arises as to what constitutes absconding. The word absconder is not defined in the Code of Criminal Procedure. It occurs in other provisions of criminal law e. g. Sections 87 and 90(a), Cr. P.C. and Section 172 I.P.C. from the context and object of these provisions an absconder may be said to be one who intentionally makes himself inaccessible to the processes of law. Hence it is not enough if it is shown that it was not possible to trace him. soon after the occurrence. It has also to be established that he was available at or about the time of the Commission of the alleged offence and ceased to be available after the commission of the offence, before he can be treated as an absconder. Similarly, it has to be established that there is no immediate prospect of arresting the accused. Then the question arises whether it is enough if the material on record shows that these conditions have been fulfilled or whether it is necessary that the recording Court should explicitly state that it has so satisfied itself before the deposition is actually recorded. It has already been seen that while AIR 1918 All 60 (E) and AIR 1926 Lah 83 (G) take the view that no express finding is necessary, 10 Cal 1097 (B); 1890 All W.N. 100 (D) and AIR 1915 All 411 (F) take a different view and hold that the recording of such finding is a condition precedent and it is such a finding that invests the Court with the jurisdiction to record the depositions. This aspect of the matter has received detailed consideration in AIR 1944 Nag 274 (J) (already referred to) in which the learned Judges state that the were recording of the evidence would not indicate that absconding was proved having in view the definition of proved in S. 3 of the Evidence Act and they expressly dissent from the view expressed an AIR 1918 All 60 (E) and AIR 1926 Lah 83 (G).

15. It appears to us that the latter view viz. that the recording Court should make a record of its finding that the accused person has absconded and that there is no immediate prospect of arresting him is essential to invest the depositions with legal validity is correct. It is beyond doubt that S. 512 Cr. P.C. requires proof of these facts. Obviously, the proof must be to the satisfaction of the Court that proceeds to record the depositions. The only way in which such satisfaction can be indicated by a Court is by recording its finding. That is the only way in which it can be safely presumed that the mind of the Court and of the Counsel for the prosecution is directed towards the object of the recording of such depositions. Section 512, as mentioned above, is aimed at preserving valuable evidence which may later on cease to be available and the recording of depositions under that section may not necessarily be in the course of any other enquiry or trial. In fact, some of the decisions mentioned above relate to the case of a single accused, and the depositions were recorded solely with the object of later use after the absconding accused was arrested. But it comes into use when some accused are absconding and the remaining ones are being proceeded against. In such circumstances, it is quite possible that in the absence of a definite finding that the conditions tinder S. 512 Cr. P.C. are satisfied, as pointed out in - Sheoraj Singh v. Emperor, AIR 1926 All 340 (L), the mind of the Court and of the Counsel for the prosecution at the time when such witnesses would be giving their evidence in the box would not be directed at all to the question of the guilt or otherwise of the absconding person and many things which ought to be asked might be omitted and a fortiori questions in Cross-examination asked by the other accused who are on their trial or by their Counsel with the express purpose of throwing guilt upon the absent party might extract from such witnesses statements very prejudicial to the absent party which would not be permitted if the witnesses were being properly examined under S. 512 Cr. P.C. While it is not the law that for purposes of being used under S. 512 Cr. P.C. the depositions of witnesses must be recorded in separate proceedings and it will suffice if at the commencement of the hearing against the other accused the Court takes evidence and gives a finding that the conditions in respect of taking depositions against the absconding accused are satisfied and then proceeds to examine the witnesses, the absence of such a finding will clearly militate against the interests of the absconding accused. This is clearly against the policy of the law. Hence, an ex port facto finding by the Court of trial or the appellate Court that either of them is satisfied about the conditions being fulfilled would be of no avail. The position would be the same whether these Court spelt out the conditions from the material coming on the record before the depositions are taken or from the depositions themselves or other evidence adduced after the depositions are commenced to be taken.

16. In the case on hand it is seen that as the Police were not able to secure accused 1 and 2 the learned Magistrate directed a proclamation to issue under Section 87, Cr. P.C. against them on 11-3-54. Accused 2 surrendered before Court on 18-3-1954. Proclamation was again directed against Accused 1 on 24-3-1954, and was returned alter due publication, on 25-4-1954. On 19-5-54 the prosecution prayed for further adjournment to trace Accused 1. This was refused on the ground that the other accused were in custody and had been awaiting the inquiry for over three months. The learned Magistrate ordered that the inquiry would begin on the next date of hearing. While he was perfectly in order in doing so, it is clear that according to the prosecution there was still a possibility of tracing Accused 1. On 25-5-54, the Prosecutor filed a memo praying that the evidence of witnesses to be examined in the case may on the arrest of Accused 1 be taken against Accused 1 also. Nothing was mentioned by him as to whether any further efforts were made by the Police to trace Accused 1. Nevertheless, the learned Magistrate noted that there was sufficient material to prove that Accused one had absconded and that there was no immediate prospect of arresting him, and that he would record evidence under Section 512 Cr. P.C. to be used against Accused 1 if and when he was traced. It is thus seen that there was no legal proof either of the fact that the accused had absconded of that there was no immediate prospect of arresting him, for the learned Magistrates recital that there was sufficient material to prove the said facts has no basis whatever. The only material he could have had was an assertion or a representation by the prosecution, the publication in the Police Gazette that the accused was absconding and the issue of the proclamation. These did not constitute legal proof. The mere fact that he recorded such a finding in the absence of any legal evidence whatever would not invest him with the power to record the depositions under Section 512 Cr. P.C. against the absent accused. Indeed, the learned Magistrate, seems to have realised this, for in the entry dated 15-10-1954 in the order sheet, i.e. after the arrest of Accused 1 he states : "The evidence taken by me against the co-accused could not be treated as evidence against the absconding (accused) and as the accused Sanjeeva was not a parry to the proceedings and had no opportunity to cross-examine." Nevertheless, on the submission made by the Prosecutor on 30-10-1954 that the accused might be committed for trial on the evidence on record the learned Magistrate passed the order of committal on 2-11-1954.

17. The learned Magistrate in the course of his order of committal supports his relying on the depositions recorded by him on the ground that he was satisfied that the accused was absconding and that there was no immediate prospect of apprehending him. This has been found to be without any basis. He also gives as an additional reason that all evidence recorded against the accused persons who were committed for trial was also evidence against accused 1 and it was tested in cross-examination by senior Counsel. Not only would such cross-examination not be the same thing as cross-examination by or on behalf of accused 1, but it might even tend to prejudice him as already, remarked above. The other reason given by the learned Magistrate is that accused 1 was undefended and that there being no provision for appointing a Standing Counsel it would be a meaningless formality to record mechanically the same depositions. This indicates that the learned Magistrate has not bestowed attention either upon the requirements or the object of S. 512 Cr. P.C. The recording of evidence in the presence of the accused would not be a meaningless formality even if he were not represented by Counsel. It was a very important right which he had and which could not be denied to him, except in breach of a fundamental rule of all trials and particularly of Section 353 Cr. P.C. The last reason given by the learned Magistrate is that several months had elapsed since the date of the occurrence, that a large number of witnesses had to be examined again and that this would cause more delay in the trial of the case apart from considerable inconvenience to the parties. It is true that there would be further delay and inconvenience. While these are unfortunate factors they would not justify the omission of an inquiry and treating as evidence depositions recorded contrary to the provisions of Sec. 512 Cr. P.C.

18. As regards the conditions under which the depositions recorded under Sec. 512(a) Cr. P.C. could be used, the learned Magistrate has paid no regard to the later part of the Sub-Section. The depositions could be used after the arrest of the absconding accused only if the deponents were dead or incapable of giving evidence or if their attendance could not be secured without unreasonable delay, expense or inconvenience. In this case, the witnesses were inhabitants of neighbouring villages and had been actually examined only about two months previously. Further, they were to be examined as witnesses in the Sessions Court at the trial of the other accused. Even on this ground the committal of accused 1 on the basis of these depositions is illegal.

19. As regards the failure of the learned Magistrate to examine additional witnesses, the learned Sessions Judge in the course of his reference says that it was incumbent upon him to examine these witnesses since Sec. 208 Cr. P.C. makes it obligatory on the committing Court to take all such evidence as may be produced in support of the prosecution. This matter has been considered in the case reported in In Re Nanjappa, 50 Mys. H.C.R. 364 (M), in which it is held that a committal without the examination of all the witnesses produced by the prosecution is illegal. It will be noticed that in the present case the additional witnesses were to speak specifically to the part played by accused 1 in the occurrence. The Prosecutor submitted a list of those witnesses on 30-10-1954, presumably as a result of further investigation after the arrest of the absconding accused and requested that they may be examined by the learned Magistrate. He renewed the application for their examination on 2-11-1954. On this the learned Magistrate took the view that the question of examining additional witnesses did not arise since he had committed the accused on the evidence on record. It is clear that the non-examination of the witnesses was totally unjustified and that the committal was vitiated on this amount also.

20. We, therefore, accept the reference made by the learned Sessions Judge and quash the order dated 2-11-1954 of the learned Second Magistrate, Chitaldrug, committing accused 1 Sanjeeva Naika to take his trial in the Court of Session for an offence under Sec. 302 I.P.C. and direct the learned Magistrate to make an inquiry into the case of accused 1. Meanwhile, the trial of the other accused who have been committed to the Court of Session shall proceed. Reference accepted. AIR 1956 MYSORE 7 (Vol. 43, C. 2 Jan.) "Firebricks Etc. Ltd. v. Workers Union" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA, C.J. AND PADMANABHIAH, J. ( Division Bench ) Firebricks and Potteries Ltd., Yesvanthpur, Petitioner v. Firebricks and Potteries Ltd. Workers Union, Yesvanthpur, Respondent. Civil Petn. No. 49 of 1955, D/- 30 -9 -1955. (A) Industrial Disputes Act (14 of 1947), S.2(a)(i), S.10 - INDUSTRIAL DISPUTE - WORDS AND PHRASES - "Appropriate Government" - Controlled industry - Conditions necessary for reference by - Central Government. Words and Phrases. According to the definition in S. 2(a) (i) one of the conditions necessary for a reference by the Central Government is the existence of a dispute in an industry carried on under its authority or a "Controlled Industry." The words "specified in this behalf" in S. 2(a (i) denote a further condition of a specification by which the Central Government reserves authority for making a reference. The controlled industries of the kind mentioned in the Schedule to the Industries (Development and Regulation) Act, 1951 are many and disputes between the management and workers are a frequent occurrence. It is not likely that the Central Government intended to determine the means of settling all these; and the words "specified in this behalf" emphasise this by providing that the industries in which it will exercise jurisdiction are to be specified. (Para 2) (B) Constitution of India, Art.14, Art.245 - Industrial Disputes Act (14 of 1947), S.2(a) - EQUALITY - LEGISLATION - INDUSTRIAL DISPUTE - CONSTITUTIONALITY OF AN ACT - Validity. Section 2(a), Industrial Disputes Act, no doubt allows the Central Government option to treat the settlement of disputes in some industries as its exclusive concern. Such delegation is not peculiar to this Act and is found in other Acts too as the Legislature cannot ascertain or anticipate the conditions and circumstances pertaining to the numerous industries in the country with the facility and advantage the Government has, if as a result of the specification, the reference in some cases is to be made by the Central Government and in others by the State Government, it cannot be said that there is differentiation, in a matter of substance or that the principle of equality under Art. 14 of the Constitution or rule relating to delegation is contravened Section 2(a) is therefore not unconstitutional. AIR 1955 S.C. 25 Rel. on. (Paras 3 and 4) Anno : AIR Com., Const. Ind. Art. 14, N. 33. (C) INTERPRETATION OF STATUTES - PREAMBLE - Interpretation of Statutes - Surplusage. Civil P.C. (5 of 1908), Pre.. The normal principle of construction of statutes is to give effect to everything expressed therein and not to treat any of the words as redundant or unmeaning. (Para 2) Anno : AIR Com., C.P.C. Pre. N. 7. (D) Constitution of India, Art.227 - HIGH COURT - Powers under when can be exercised. Article 227 confers on the High Court powers of superintendence and control over subordinate Tribunals. Rut these are powers to be exercised under exceptional circumstances. (Para 4) Anno : AIR Com., Const. Ind. Art. 227, N. 3. Cases Referred : Courtwise Chronological Paras (A) (V 42) AIR 1955 SC 25 : 1955 S.C.R. 735 (S.C.) 4 G.S. Ullal, for Petitioner, A. Nagesh Rao, for Respondent. Judgement VENKATA RAMAIYA, C. J. :- This is an application under Art. 227 of the Constitution of India for cancelling a reference made by the State Government of certain disputes between the petitioner and the respondent to the Industrial Tribunal. The concern in which the dispute has arisen being a "Controlled Industry" it is alleged that only the Central Government and not the State Government is competent to make the reference. A list of Controlled Industries is given in the schedule to the Industries (Development and Regulation) Act, 1951 and Item No. 37 therein is said to apply to the business of which the petitioners are managers and respondents are employees.

2. The reference purports to be under Ss. 10 and 12(5) Industrial Disputes Act, and the authority to make the reference is given in these to the appropriate Government; "Appropriate Government" is defined in S. 2(a) thus : (a) "Appropriate Government means -

(i) in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government or by a railway company or concerning any such controlled industry as may be specified in this behalf by the Central Government or in relation to an industrial dispute concerning a banking company or insurance company, a mine, an oilfield or a major port, the Central Government, and

(ii) in relation to any other industrial dispute, the State Government. According to the definition one of the conditions necessary for a reference by the Central Government is the existence of a dispute in an industry carried on under its authority or a "Controlled Industry." If nothing more is required the words "specified in this behalf" in the section would be superfluous or else the words signify a further condition. The rule applied to construction of statutes is to give effect to everything expressed therein and not to treat any of the words as redundant or unmeaning. There is no need to depart from the normal principle of interpretation as it is possible and reasonable to hold that the words denote a further Civil P.C. (1908), O. 20, R. 11(2) - Order condition of a specification by which the Central Government reserves authority for making a reference. The learned Advocate-General has pointed out a notification in which such industries are specified. The Central Government has not specified the industry to which the reference relates as one reserved by it. Industries of the kind mentioned in the schedule to the Industries (Development and Regulation) Act 1951 are many, and have sprung up in several parts of India, and disputes between the management and workers are a frequent occurrence. It is not likely that the Central Government intended to determine the means of settling all these; and the words emphasise this by providing that the industries in which it will exercise jurisdiction are to be specified.

3. Even so, Sri Ullal contended that the section is illegal and unconstitutional as it enables the executive to have power or discretion which may be exercised arbitrarily uncontrolled by any guiding principles and that it also gives scope for discrimination. The section no doubt allows the Central Government option to treat the settlement of disputes in some industries as its exclusive concern.

4. Such delegation is not peculiar to this Act land is found in other Acts too as the Legislature cannot ascertain or anticipate the conditions and circumstances pertaining to the numerous industries in the country with the facility and advantage the Government has, if as a result of the specification, the reference in some cases is to be made by the Central Government and in others by the State Government, it cannot be said that there is differentiation in a matter of substance or that the principle of equality under Article 14 of the Constitution or rule relating to delegation is contravened. Contentions similar to these about provisions of the Minimum Wages Act were rejected by the Supreme Court in Edward Mills Co. Ltd. Beawar v. State of Ajmer, AIR 1955 SC 25 (A) with the observation : "The legislature undoubtedly intended to apply this Act not to all industries.....It is with an eye to these facts that the list of trades has been drawn up in the schedule to the Act but the list is not an exhaustive one and it is the policy of the legislature not to lay down at once and for all time to which industries the Act should be applied. Conditions of labour vary under different circumstances and from State to State and the expediency of including a particular trade or industry within the schedule depends on a variety of facts which are by no means uniform and which can best be ascertained by the person who is placed in charge of the administration of the State." Article 227 confers on this Court powers of superintendence and control over subordinate Tribunals. But these are powers to be exercised under exceptional circumstances. This is not a case which calls for exercise of such powers.

5. The petition is therefore dismissed but without costs. Petition dismissed. AIR 1956 MYSORE 8 (Vol. 43, C. 3 Jan) "Venkataramiah v. Vanajakshamma" MYSORE HIGH COURT Coram : 1 HOMBE GOWDA, J. ( Single Bench ) E. Venkataramiah, Defendant-Appellant v. Vanajakshamma, Plaintiff-Respondent. Second Appeal No. 321 of 1955, D/- 9 -8 -1955, against order of First Addl. Dist. Judge, Bangalore, D/- 3 -1 -1955. Civil P.C. (5 of 1908), O.20, R.11(2) under - DECREE - APPEAL - Appeal. A regular appeal is maintainable against an order passed under O. 20, R. 11(2) permitting or refusing the judgment-debtor to pay the amount of the decree in instalments. 52 Cal WN 440 and AIR 1932 Rang 54, Rel. on. (Para 2) Anno : AIR Com.: C.P.C., O. 20, R. 11, N. 14. Cases Referred : Courtwise Chronological Paras (A) (48) 52 Cal WN 440 2 (B) (V 19) AIR 1932 Rang 54 : 135 Ind Cas 858 2 (C) (V 13) AIR 1926 Rang 192 : 4 Rang 247 2 K.S. Puttaswamy, for Appellant; S.V. Raghavachar, for Respondent. Judgement A preliminary objection has been raised about the maintainability of the appeal. It is whether a regular appeal is maintainable against an order passed under O. 20, R. 11(2), C.P.C. permitting or refusing the judgment-debtor to pay the amount of the decree in instalments.

2. There is no reported decision of this Court on the point. The point arose for consideration in Mis. Appeal No. 53/54 but was not decided. In - Chandra Nath v. Sahadabia Kumarin, 52 Cal WN 440 (A) Harries, C.J. of the Calcutta High Court dealing with the question as to whether an appeal against an order passed under O. 20, R. 11(2), C.P.C. would be has observed thus : "On the other side it is urged that this is not an order relating to execution, discharge or satisfaction of the decree, but merely relates to postponement of the decree, in other words postponement of the satisfaction of the decree or the discharge of the decree. It is an order which is most closely connected with the mode of execution, the mode of discharge and the mode of satisfaction and that being so it seems to me clearly to be an order falling within Section 47. This has been so held by a Bench of Rangoon High Court in - Abdul Karim v. Maung San Kyaw, AIR 1932 Rang 54 (B)." His Lordship held that a regular appeal against an order passed under O. 20, R. 11, C.P.C. was maintainable. To the same effect is a decision reported in AIR 1933 Rang 54(B), a decision of a Division Bench. Dealing with the question as to whether an appeal against an order passed under Order 20, R. 11, C.P.C. is competent it was observed thus : "On the question whether or not an appeal lies I see no reason to differ from the opinion expressed in the case of - Saya Hattie v. Ma Pwa Saw, AIR 1926 Rang 192 (C), and I would hold that an appeal lies". Their Lordships following the earlier decision of the Rangoon High Court reported in AIR 1926 Rang 192 (C), held that an appeal against an order passed under O. 20, R. 11, C.P.C. was competent. It is thus clear that the present appeal filed by the appellant is maintainable and has been properly instituted. It is therefore directed that the appeal should be registered as a second appeal. The appellant will be heard regarding the question of court-fee payable on the memorandum of appeal. Order accordingly. AIR 1956 MYSORE 9 (Vol. 43, C. 4 Feb.) "K. Malaiah v. State of Mysore" MYSORE HIGH COURT Coram : 2 PADMANABHIAH AND SREENIVASA RAU, JJ. ( Division Bench ) K. Malaiah, Accused-Appellant v. State of Mysore, Complainant-Respondent. Criminal Appeal No. 24 of 1955, D/- 17 -10 -1955, against order of First Addl. S.J., Bangalore, in Tumkur Sessions Case No. 3 of 1955. (A) Evidence Act (1 of 1872), S.45 - EVIDENCE - Opinion of handwriting expert. The opinion of handwriting expert is not conclusive. Still it cannot be brushed aside as useless. The opinion of an expert is entitled to some consideration and weight when it is corroborated by other evidence. (Para 6) Anno : AIR Man.: Evi. Act, S. 45, N. 6. (B) Criminal P.C. (5 of 1898), S.342(3) - EXAMINATION OF ACCUSED - "May tend to show." What S. 342(3) means is that the answers given in the one case must go to indicate or suggest that the accused had committed the offence of which he stands charged. It is not necessary that the inquiry into, or the trial for, an offence in the other case should be an officer which is disclosed in the statement itself. (Para 9) Anno : AIR Com.: Cr. P.C., S. 342, N. 3. (C) Evidence Act (1 of 1872), S.14 and S.15 - EVIDENCE - Sections to be read together. Sections 14 and 15 have to be read together inasmuch as S. 15 is only an application of the general rule laid down in S. 14. (Para 10) Anno : AIR Man.: Evi. Act, S. 14, N. 1; S. 15, N. 1. (D) Evidence Act (1 of 1872), S.14, S.15 - EVIDENCE - Evidence of similar unconnected acts. Though the evidence of similar unconnected acts of the accused may not be admissible to probabilise the commission of the offence with which he stands charged in another case, yet, such evidence will be admissible under Ss. 14 and 15 as evidence of intention or knowledge on the part of the accused and in cases where it is necessary to rebut even an anticipated defence of accident or mistake or other innocent condition of mind, and it is no objection that the similar facts are the subject of separate indictments still to be tried. (Paras 10 and 11) Anno : AIR Man.: Evi. Act, S. 14, N. 3; S. 15, N. 2. Cases Referred : Courtwise Chronological Paras (A) (39) 17 Mys LJ 238 11 (B) (30) 35 Mys CCR 319 11 K.R. Rao, and S. Vasupal Rao, for Appellant; Asst. Advocate-General, for the State. Judgement This is an appeal preferred by the appellant-accused against the judgment of the learned First Additional Sessions Judge, Bangalore Division, in Tumkur Sessions Case No. 3 of 1955, convicting him of offences under Ss. 467 and 409, I.P.C. and sentencing him to undergo rigorous imprisonment for two years and also to pay a tine of Rs. 100/- and in default to undergo rigorous imprisonment for a further period of three months, under each count, and directing that the substantive sentences should run concurrently.

2. The case for the prosecution was that the accused, who was a postman in Kunigal Post Office, was on 28-11-1949 entrusted with a money order for Rs. 20/-, which was received from Bangalore as unpaid to the payee, for payment to the remitter P.W. 9 Ramkrishna at Kunigal, that the accused forged the signature of Krishnaiah (also called Krishnappa) on whose behalf the money order was sent by P.W. 9 and misappropriated it and that he thereby committed offences under Ss. 467 and 409, I.P.C. The learned Sessions Judge, agreeing with the unanimous opinion of the Assessors, convicted and sentenced the appellant as stated above. As against that decision, the present appeal is preferred.

3. The point that arises for consideration is whether the charges against the appellant have been made out. That a money order as per Ext. P-1 was sent by P.W. 9 Ramakrishna on behalf of P.W. 8 Krishnaiah addressed to Venugopalakrishna Ananda Bhavan, Bangalore, and that the same was returned undelivered are proved by the evidence of P.Ws. 1, 8 and 9. The amount due under that money order had to be paid to the remitter at Kunigal. P.W. 8, the then Sub-Postmaster, has shown, that the money order was received from Bangalore undelivered to the payee and that it was handed over or entrusted to the accused for payment to the remitter. His evidence is corroborated by the Register of Money Orders Ext. P-15 as per the entries Exts. 10(c) and 15(d). The accused has acknowledged having received the money order for payment to the remitter under Ext. P-15(d). Thus there can be no doubt that a money order sent from Kunigal to Bangalore was returned undelivered to the payee that the same had to be paid to the remitter and that the money order was entrusted to the accused for the payment of the amount to the remitter Ramakrishna. These facts are not disputed on the side of the appellant.

4. The next point that arises for consideration is whether the amount due under the money order Ext. P-1 was paid to the remitter Ramakrishna. Admittedly the amount due under the money order was not paid to him. The contention of the appellant is that the name of the remitter in the detached portion of the money order Ext. P-1 was noted as Krishnappa and that the amount was got paid to P.W. 8 G. Krishniah (also called Krishnappa) and that Ext. P-1(b) is the signature of Krishniah. We do not see any substance in the contention of the appellant that the name of the remitter was mentioned as Krishnappa in the detached portion of the money order form. It is very unlikely that Ramakrishna P.W. 9, who sent the money order in his name, could have written the name of Krishnappa, as the remitter in the bottom portion of the money order form. The detached portion of money order has not been produced and further the postal authorities do not seem to have taken any objection to the alleged delivery of the amount due under the money order to Krishnappa as mentioned in the money order form. Even if the contention of the appellant to the effect that Krishnappas name was found in the detached portion of the money order is accepted as true, then his conduct in the alleged payment of the money to Krishnappa will have to be justified. The point, therefore, that arises for consideration is whether the money was paid to Krishniah P.W. 8. There does not appear to be any truth in the contention of the appellant that the money order amount was paid to P.W. 8 and the suggestion that Ext. P-1(b) is his signature.

5. P.W. 8 has shown that he did not receive the amount due under the money order Ext. P-1 and that Ext. P-1(b) is not his signature. This evidence is fully corroborated by the evidence of the Handwriting Expert P.W. 2. He has compared the writing in Ext. P-1(b) with the writing of P.W. 8 in Ext. P-2 and his opinion is that they are different. We may also state in this connection that it is not the appellants contention that he paid the amount to P.W. 8 directly. His plea is that some one in the hotel stated that Krishnappa was preparing eatable inside, that he (accused) handed over the form to that person who went and brought it back with the signature Ext. P-1(b) purporting to be that of Krishnappa, that the accused believed that to be true and made payment of the amount to the hands of that person, that he bona fide believed that the payment was made to Krishnappa and that Ext. P-1(b) was his signature. Therefore, in view of this stand taken by the appellant, the evidence of P.W. 8 that he did not receive the amount and that Ext. P-1(b) is not his signature may safely be accepted as true. As found by the learned Sessions Judge, the truth appears to be that the accused forged the name of P.W. 8 as per Ext. P-1(b) and misappropriated the amount in question.

6. P.W. 2, the Handwriting Expert has compared the admitted writings of the appellant as per Ext. P-3(a) to P-3(f) with the writing in Ext. P-1(b) and has come to the conclusion that they are of one and the same person. He has given valid reasons for coming to that conclusion. It was contended that the writing of the appellant in Ext. P-3 is not his standard writing inasmuch as when that writing was taken, the accused was aware that his writing was being taken for purposes of comparison. We do not see any substance in this argument. We hope the suggestion is not that the accused feigned his writing so that it may not admit of comparison. On the other hand, it would be more reasonable to draw an inference that the accused wrote it in the normal way. The features of similarity found in the admitted and disputed writings of the accused can also be noticed by a careful examination of those writings. Again it was contended that P.W. 2 being a Police Officer, his evidence should not be acted upon. We see no substance in this argument. P.W. 2 is a well qualified person to compare writings and give his opinion. Simply because he is attached to the Police Department, his evidence cannot be rejected on that score. There can be no dispute about the proposition that the opinion of a handwriting expert is not conclusive. Still it cannot be brushed aside as useless. The opinion of an expert is entitled to some consideration and weight when it is corroborated by other evidence.

7. The evidence of this expert is corroborated by the circumstances and probabilities in the case. As admitted by the appellant, the money was entrusted to him for payment to the remitter. As per rules, he was expected to make payment of the money due under the money order directly to the person named therein or to some person duly authorised in that behalf, which admittedly the accused did not do. The explanation given by him, that he handed over the money order form to some one that was in the hotel, that the latter took the money order form and brought it back with Ext. P-1(b) signature saying that it is the remitters signature and that believing it to be true he handed over the money to that person, has rightly been found to be unacceptable by the learned Sessions Judge, with which we entirely agree. Further there is no evidence of any kind in support of this explanation given by the appellant. It is highly improbable that a postman of the standing of the appellant, who had by then put in nearly fifteen years of service in the Department, would have acted in the manner in which he has done. In the absence of a satisfactory explanation on the part of the appellant in this behalf, we will be justified in presuming that the accused himself forged the signature Ext. P-1(b) or got it forged through somebody and misappropriated the amount referred to therein.

8. With the object of finding out if there was any truth in the contention of the appellant that he never intended to defraud anybody, that he handed over the money order to someone in the hotel of the remitter bona fide believing in what he said, that the payment has been made to the remitter and that Ext. P-1(b) is his signature, the learned Sessions Judge has referred to two statements of the appellant made in two other criminal cases i.e., C.C. Nos. 5 and 7 of 1952-53. In those cases also, the case for the prosecution was that the accused was entrusted with two money orders and that he forged the signatures of the payees and misappropriated the amounts referred to therein. Therein, also the accused pleaded that he sent the money order forms through some persons whom he could not identify, that the said persons brought back the forms with the signatures purporting to be those of the payees and that believing the same to be true, he paid the amounts to the hands of those strangers. Ext. P-25(a) is the statement filed by the appellant in C.C. 5/52-53 and Ext. P-26(a) is his statement in C.C. 7/52-53. The contention of the learned counsel for the defence is that the said statements are inadmissible and that the same should not have been admitted by the learned Sessions Judge. We find no force in this contention.

9. Section 342(3), Criminal P.C., runs as follows : "The answers given by the accused may be taken into consideration in such inquiry or trial and put in evidence for or against him in any other inquiry into or trial, for, any other offence which such answers may tend to show he has committed." According to this provision, the answers given by an accused, when he is examined under S. 342, Cr. P.C., may be taken into consideration in such inquiry or trial and may also be put in evidence for or against him in any other inquiry or trial for any other offence when such answers tend to show that the accused has committed that offence. It was argued by the learned counsel for the accused that the inquiry into, or the trial for, an offence in the other case should be an offence which is disclosed in the statement itself. We are not inclined to accept such a proposition. The very words "may tend to show" appearing in S. 342(3), Cr. P.C., go to suggest the contrary. What that provision means is, in our opinion, that the answers given in the one case must go to indicate or suggest that he had committed the offence of which he stands charged. Further, as found by the learned Sessions Judge, these statements become relevant and admissible under Ss. 14 and 15, Evidence Act.

10. The said sections have to be read together inasmuch as S. 15 is only an application of the general rule laid down in S. 14. Section 14 runs thus : "Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant. Explanation 1 A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question. x x x " Section 15 runs as under : "When there is a question whether an act was accidental or intentional or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant." As stated already, the contention of the appellant is that he paid the money order in question by mistake or by a bona fide error to a person other than the payee, thereby impliedly suggesting that the payment was made accidentally or through inadvertence. Though the evidence of similar unconnected acts of the accused may not be admissible to probabilise the commission of the offence with which he stands charged in another case, yet, such evidence will be admissible under Ss. 14 and 15, Evidence Act, as evidence of intention or knowledge on the part of the accused and in cases where it is necessary to rebut even an anticipated defence of accident or mistake or other innocent condition of mind. In this case, within an interval of 2 or 3 months, the accused, according to the prosecution, committed criminal breach of trust and forgery in three or more cases. In all these cases, the same sort of defence is taken viz., that of good intention, bona fide belief, accidental payment and innocent condition of mind. As observed by the learned Sessions Judge, it is highly improbable that a postman of the standing of the accused could have committed the same kind of mistake in all the three cases. There can be no doubt that the accused was concerned in a systematic course of conduct of the same specific kind as that in the present case. Evidence of such conduct is admissible under Ss. 14 and 15, Evidence Act.

11. The learned counsel for the defence drew our attention to the decision reported in In re Setty, 17 Mys LJ 238 (A). That does not seem to support the contention of the learned counsel for the appellant. What that decision points out is that evidence of similar and unconnected acts of an accused are inadmissible under S. 11, Evidence Act rendering the crime charged with, more probable. We do not propose to make use of the statements Exts. P-25(a) and P-26(a) to probabilise that the appellant must have committed the offences in this case also but, as pointed out in that very case, evidence of such transactions can be admitted under Ss. 14 and 15, Evidence Act as evidence of intention or knowledge and also to rebut even by anticipation the defence of accident, mistake or other innocent condition of mind, as pointed out in the decision reported in 35 Mys CCR 319 (B). In the present case, the intention which can be gathered from the conduct of the appellant-accused at the time he is said to have committed the offences becomes a relevant fact and, therefore, evidence of similar transactions, both prior and subsequent to the occurrence, must be held to be admissible. It was urged by the learned counsel for the appellant that the learned Sessions Judge should not have taken the statements Exts. P-25(a) and P-26(a) into consideration inasmuch as the cases in which those statements were made were still pending at the time when this case was disposed of. We do not think that the pendency of those two cases should have made any difference with respect to the admission of these statements. What was intended to be made use of was only the answers given by the accused in those cases when he was examined under S. 342, Cr. P.C. In this connection, we would like to reproduce the observations made in Halsburys Laws of England, Second Edition, Vol. XIII, para 641, quoted by the learned Sessions Judge in the course of his judgment : "...In general, wherever it is necessary to rebut (even by anticipation) the defence of accident, mistake, or other innocent condition of mind, evidence that the defendant has been concerned in a systematic course of conduct of the same specific kind as that in question may be given. To admit evidence under this head, however, the other acts of which evidence is tendered must he of the same kind as that in question. If the acts are sufficiently proximate, in point of time to be relevant to the case under consideration, they may be given in evidence whether done before or after the acts the subject of such case, and it is no objection that the similar facts are the subject of prior indictments on which the defendant has already been acquitted, or of separate indictments still to be tried." Under these circumstances, we see no merit in any of the contentions urged on the side of the appellant. The decision of the learned Sessions Judge has to be affirmed.

12. In the result, the conviction of the appellant and the sentence passed on him are confirmed and this appeal stands dismissed. The accused will surrender to his bail and undergo the unexpired portion of his sentence. Appeal dismissed. AIR 1956 MYSORE 11 (Vol. 43, C. 5 Feb.) "Onkaramma v. Karisiddappa" MYSORE HIGH COURT Coram : 2 PADMANABHIAH AND SREENIVASA RAU, JJ. ( Division Bench ) Onkaramma, Appellant v. Karisiddappa and others, Respondents. Second Appeal No. 241 of 1954, against decree of Dist. J., Shimoga in R.A. No. 80 of 1953, D/- 16 -9 -1955. (A) Civil P.C. (5 of 1908), O.7, R.7 - PLAINT - MAINTENANCE - HINDU LAW - Alternative reliefs - Suit for maintenance with alternative relief for share of family property - Court cannot grant both reliefs. Hindu Law - Widow - Maintenance - Suit for. Mysore Hindu Law Womens Rights Act (10 of 1937), S.8(1), S.22, Proviso. Where a widow of a deceased co-parcener brings a suit for maintenance against other coparceners and claims an alternative relief for a share in the joint family properties under S. 8(1) of Act 10 of 1937, the Court would not be justified in granting her both the reliefs and that too without giving the other side to meet the claim for such relief. In such a case the plaintiff is entitled to one or other of the two reliefs and not for both. (Para 7) Assuming that proviso to S. 22 of Act 10 of 1937 confers on a female a right to maintenance till she gets possession of her share, the finding that the plaintiff was not entitled to maintenance cannot be interfered with. It may be that a party is in law entitled to more than one relief, but nothing prevents him or her from foregoing a part of her right allowed under the law and being satisfied with something less. (Para 8) Anno : AIR Com.: C.P.C., O. 7, R. 7, N. 3. (B) Civil P.C. (5 of 1908), O.20, R.18 - DECREE - HINDU LAW - PARTITION - Suit by widow for her share of family property - Court whether can create a charge for her share of family @page-Mys12 debts on her share of properties. Hindu Law - Partition - Provision for payment of debts. It is no doubt true that in a suit for partition provision must be made for family debts which are payable from out of the joint family property, in order to determine what properties are available for partition. If there are debts which are admitted by the parties to the partition, it will be possible to make provision for such, debts, but when there is a dispute with respect to the debts and also their binding nature, that question cannot be gone into in a suit for partition to which the alleged creditors of the family are not parties. After all, any finding as to the extent of debt due to a creditor will not be binding upon him when he is no party to the suit. Every member of the family will be liable for all the debts binding on the family and the creditors will not be prejudiced if provision is not made for their debts in the partition suit because they will always be at liberty to file suits against the members of the family and the properties in their possession and obtain such relief as is available to them under the law. Hence in a suit by a Hindu widow for her share of the family properties it would not be correct to create a charge for her share of the family debts on the properties allotted to her. (Para 11) Anno : AIR Com.: C.P.C., O. 20, R. 18, N. 1, 6. Cases Referred : Courtwise Chronological Paras (A) (V 11) AIR 1924 Cal 445 : 69 Ind Cas 504 7 (B) (V 41) AIR 1954 SC 5 : 1953 SCJ 621 (SC) 9 Mirle N. Lakshminaranappa, for Appellant; Mir Iqbal Husain, for Respondents. Judgement PADMANABHIAH, J. :- This is an appeal preferred by the appellant-plaintiff against the judgment and decree of the learned District Judge, Shimoga, in Regular appeal No. 80 of 1953, modifying those of the learned Subordinate Judge, Chikmagalur, in Original Suit No. 31 of 1951-52.

2. The facts that have given rise to this appeal are briefly as under :

3. The plaintiff is the widow of one Puttappa, son of defendant 1. Defendants 2 and 3 and the father of defendants 4 and 5 are stated to be the brothers of plaintiffs deceased husband. Plaintiffs suit was one for maintenance on the ground that her husband, who was undivided from the defendants, died in the year 1942 i.e., about a year after she was married to him, and that the defendants who are liable to maintain her had refused to do so. It is further alleged in the plaint that the defendants became divided about a year prior to date of suit and that the plaintiff was entitled to 1/10th share in the family properties under S. 8(1) of Act 10 of 1937. As the plaintiffs claim for maintenance and a share in the family properties was denied by the defendants, she filed the suit in the trial Court claiming maintenance at the rate of Rs. 500/- per annum, and arrears of maintenance from 1942 up to date of suit, or in the alternative, for 1/10th share in the family properties and for possession of the same.

4. The defendants disputed the claim of the plaintiff on several grounds, the chief among them being that all the properties mentioned in the plaint schedule did not belong to the joint family, that the income of the family set out in the plaint was not true, that it did not exceed Rs. 1,500/-, that the defendants did not neglect to maintain the plaintiff, that in the year 1950 the defendants father effected a division of the family properties among the defendants and plaintiff whereunder the latter was allotted items 31 and 43 of the plaint schedule for her share, that the division was fair and binding on her and that the suit was liable to be dismissed.

5. In her reply statement, the plaintiff contended that the division was neither fair nor binding on her and that the family was possessed of the properties mentioned in the plaint schedule, and denied the other allegations made in the written statement contrary to those contained in the plaint.

6. The learned Subordinate Judge decreed the suit for partition and possession of plaintiffs. 1/10th share in 51 items of the properties mentioned in the plaint schedule and also granted arrears of maintenance of Rs. 1,400/- from September 1946 till June 1951 i.e., the date of suit, and also current maintenance at the rate of Rs. 25/- per mensem from that date till the date she got possession of her share in the family properties. Against this decision, the defendants went in appeal. The learned District Judge held that the learned Subordinate Judge was not justified in passing a decree for maintenance for the period from September 1946 till the date of suit after having granted her a share in the family properties, and he accordingly set aside that portion of the decree granting maintenance to the plaintiff. He further held that the family owed debts to the extent of Rs. 9,000/- and that the plaintiff was liable to the extent of Rs. 900/- therein and he accordingly created a charge for that amount on the plaintiffs. 1/10th share in the family properties. The judgment and decree of the trial Court were modified to the extent indicated above. The lower appellate Court further directed that the1 plaintiff may file a separate application under O. 20 R. 12, Civil P.C. for ascertainment of mesne profits from the date of suit till her share was separated by metes and bounds and she was put in exclusive possession. As against that decision, the plaintiff has come up in second appeal.

7. The two main points that were canvassed before us by the learned counsel for the appellant are that the learned District Judge should not have disallowed maintenance to the plaintiff as awarded by the trial court and that he should not have saddled the plaintiff with liability in respect of the alleged family debts which have not been proved to be genuine and binding on the family. It appears to us that there is no substance in the first ground urged by the learned counsel for the appellant. The learned District Judge was right, in our opinion, in disallowing the maintenance awarded by the learned Subordinate Judge. It has to be remembered that the plaintiffs suit was one for maintenance or, in the alternative, for a share in the joint family properties. In such cases, a plaintiff will be entitled to one or the other of the two reliefs and not for both. The learned Subordinate Judge, having granted the plaintiff a share in the joint properties, which was one of the reliefs claimed by her, was not justified in granting her maintenance also when that relief was sought not as an additional relief but only as an alternative one. In this connection, we would like to refer to the case reported in - Reajuddin Patwari v. Abdal Jobhar, AIR 1924 Cal 445 (A). Therein the plaintiff asked for possession of some property on the ground that the defendants were trespassers. In the alternative, a claim was laid for assessment of a fair and equitable rent. The learned Judge in the Court below granted him one of the reliefs. The plaintiff pressed in the cross-objections filed by him that he did not want the relief granted by the lower Court but wanted the other reliefs by way of ejectment. This contention was negatived by their Lordships of the Calcutta High Court on the ground that the plaintiff should be satisfied with either of the two reliefs which he applied for and when he succeeded in getting one. The case for the plaintiff in this case is still worse inasmuch as what she has been granted by the learned Subordinate Judge are two reliefs while she sought for only one of them.

8. The learned counsel for the appellant drew our attention to the proviso to S. 22, Hindu Law Womens Rights Act, which is to the effect that no female relative who is entitled to a share under S. 8 and has obtained such a share shall be entitled to claim maintenance. Relying on this proviso, the learned counsel for the appellant contended that the plaintiff was entitled to maintenance until she got possession of the share that has been granted to her and that, therefore, the trial Court was right in awarding maintenance also while the learned District Judge was wrong in disallowing it. Assuming for the sake of argument that this proviso confers on a female a right to maintenance till she gets possession of her share, we are of opinion that the finding of the learned District Judge that the plaintiff was not entitled to maintenance cannot be interfered with. It may be that a party is in law entitled to more than one relief, but nothing prevents him or her from foregoing a part of her right allowed under the law and being satisfied with something less. The learned counsel for the appellant contended that the plaintiff really intended to claim both maintenance and a share in her plaint but that as a result of the mistake on the part of her counsel the reliefs have been asked for in the alternative. We see no merit in this contention.

9. In the plaint, alternative reliefs are clearly sought for viz., the plaintiff wants maintenance, or in the alternative, a share in the family properties. This is further clarified by the plaintiff in the course of her evidence where she has stated that she wants a decree for maintenance or a share in the family properties. Even in valuing the suit for purposes of court-fee, it is seen that the valuation is on the basis of alternative reliefs. Thus it is clear that there could not have been any error on the part of the counsel who drafted the plaint in asking for the reliefs desired by the plaintiff. It is also seen that no application for amendment of the plaint was filed in the trial Court. This also goes to show that there was no mistake on the part of the counsel who prepared the plaint. It was then contended by the learned counsel for the appellant that inasmuch as both maintenance and a share have been granted by the learned Subordinate Judge, the plaintiff must be deemed to have taken her stand that she was entitled not only to maintenance but also a share. This is really begging the question. We do not find anything in the records which goes to indicate that any such argument was advanced by the learned counsel for the plaintiff and therefore the possibility of the Court having suo motu granted these reliefs cannot be excluded. Our attention was drawn by the learned counsel for the appellant to the case reported in - Gopal Krishnaji v. Mahomed Jaffar Mohamed Hussein, AIR 1954 SC 5 (B), for the proposition that the Court is competent to grant an additional relief not applied for by the plaintiff. This decision does not seem to support the contention of the learned counsel. The facts therein are different from the facts in the present case. The plaintiffs in that case claimed personal rights prior to suit, which claim they did not put forward in the plaint. The evidence disclosed that plaintiff 2 was in de facto management of the institution (darga) in that case and their Lordships opined that tie was entitled to the relief asked for by thy plaintiffs. Their Lordships further directed the High Court of Bombay to allow the amendment sought for in this behalf.

10. It is a cardinal principle of law that a Court cannot grant two reliefs, as is done by the learned Subordinate Judge in this case, when the plaintiff wanted one of the two reliefs applied for and that too without giving an opportunity to the other side to meet the chum for such a relief. It is not correct to say that the grant of two reliefs, by the trial Court has not been questioned by the respondents defendants. The first ground in the memorandum of appeal filed before the lower appellate Court pertains to this. Therefore we are of opinion that the learned District Judge was right in disallowing the maintenance that was awarded to the plaintiff by the learned Subordinate Judge.

11. However, as regards the other contention of the learned counsel for the appellant, that the learned District Judge should not have mulcted the plaintiffs share with liability for family debts to the extent of Rs. 900/-, we are inclined to agree. The learned District Judge has observed that the plaintiff has not contradicted the liability of the family with respect to the alleged family debts. There is no satisfactory evidence in this behalf; on the other hand, it is contended for the plaintiff that the debts have not been proved and that, even if they are true, they are not binding on the family. No doubt, it is true, as observed by the learned District Judge, that provision must be made for family debts which are payable from out of the joint family property, in order to determine what properties are available for partition. If there are debts which are admitted by the parties to the partition, it will be possible to make provision for such debts, but when there is a dispute with respect to the debts and also their binding nature, that question cannot be gone into in a suit for partition to which the alleged creditors of the family are not parties. After all, any finding at to the extent of debt due to a creditor will not be binding upon him when he is no party to the suit. Every member of the family will be liable for, all the debts binding on the family and the creditors will not be prejudiced if provision is not made for their debts in the partition suit because they will always be at liberty to file suits against the members of the family and the properties in their possession and obtain such relief as is available to them under the law. We are of opinion that the learned District Judge was not correct in fixing the share of the family debts at Rs. 900/- as against the present plaintiff and creating a charge for that amount on her share of the properties. We are inclined to set aside that portion of the decree.

12. Admittedly the family properties were divided among the members of the defendants family in the year 1950, when the plaintiff became entitled to 1/10th share. It is also admitted that she was not put in possession of her share immediately after the partition. Under those circumstances, the plaintiff became entitled to the profits arising from out of her share from the date of partition i.e. March 1950. The learned District Judge was not correct in all lowing profits to the plaintiff only from the date of suit. The decree as passed by the learned District Judge has to be modified accordingly.

13. In the result, in modification of the decree of the learned District Judge, this appeal is partly allowed. We confirm the order of the learned District Judge disallowing maintenance to the plaintiff awarded by the trial Court. We further allow the profits arising out of the plaintiffs share in the family properties from 25-3-1950, the date of partition as shown by Ex. 1, to be ascertained under O. 20, R. 12, Civil P.C. We set aside the finding of the learned District Judge that the plaintiff is liable to the extent of Rs. 900/- towards the debts of the family and that the same should be a charge on her 1/10th share. As parties have partly succeeded and partly failed, we direct them to bear their own costs in this appeal. Court fee payable by plaintiff will be a charge on her 1/10th share. Appeal partly allowed. AIR 1956 MYSORE 14 (Vol. 43, C. 6 Feb.) "C. K. Setty v. Abdul Khadar" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA, C.J. AND PADMANABHIAH, J. ( Division Bench ) C. Krishnamurthy Setty, Appellant v. Abdul Khadar and others, Respondents. Appeal No. 208 of 1950-51, against decree of Second Addl. Dist, J., Bangalore, in O.S. No. 77 of 1946-47, D/- 30 -9 -1955. (A) MUSLIM LAW - Muhammadan Law - Joint family property. It is true that the principles and presumptions of Hindu Law cannot be applied in the case of Muhammadans and the fact of the parties living together or one of them being the manager of the family is not sufficient to render the property acquired by a member, the property of all or others. This is however subject to the following qualification. If during the continuance of the family, properties are acquired in the name of the managing member of the family and it is proved that they are possessed by all the members jointly the presumption is that they are properties of the family and not the separate properties of the member in whose name they stand. (Para 4) (B) Evidence Act (1 of 1872), S.115 - ESTOPPEL - MORTGAGE - Estoppel in cases of mortgagor and mortgagee - Mortgagee cannot resist claim for redemption on ground that mortgagor has no title to property. Transfer of Property Act (4 of 1882), S.60. It is not permissible to a mortgagee or a transferee of his rights to impeach the title of the mortgagors to the mortgaged properties and in the case of a usufructuary mortgage when possession of the properties has been obtained from them. (Para 8) A mortgagee cannot resist a claim for redemption on the ground that the mortgagor has no title to the property. (Para 9) Ordinarily a mortgagee is presumed to satisfy himself about the security being acceptable from the person who offers it when the money is lent. In the absence of special circumstances he cannot again seek investigation of this. That would unnecessarily enlarge the scope of a suit for redemption and raise needless complications. (Para 11) Anno : AIR Man.: Evid. Act, S. 115, N. 36, AIR Com.: T.P. Act, S. 60, N. 28. (C) Transfer of Property Act (4 of 1882), S.63A - MORTGAGE - Claim for improvements. The improvements must always be reasonable, having regard to the nature and value of the estates; for if it were not so, a weapon would be put in the mortgagees hands with which, he might greatly clog the right of redemption which, he has no right to make more expensive than is necessary to keep the estate in good repair and working order to protect the title. And the mortgagee should inform the mortgagor as soon as possible of the necessity or the intention to incur extraordinary expense. The claim on the score of improvements if unreasonable, cannot be countenanced. (Para 13) Anno : AIR Com.: T.P. Act, S. 63A, N. 1. Cases Referred : Courtwise Chronological Paras (A) (V 18) AIR 1931 Mad 553 : 54 Mad 543 8 (B) (V 19) AIR 1932 Cal 538 : 59 Cal 541 8 (C) (V 11) AIR 1924 All 787 : 85 Ind Cas 498 8 (D) (1837) 40 ER 848 : 7 LJ Ch 19 8 (E) (1918) 88 LJ Ch 31 : 119 LT 526 8 (F) (13) 20 Ind Cas 523 : 7 Sind LR 11 9 (G) (V 2) AIR 1915 Cal 362 : 29 Ind Cas 746 9 (H) (V 6) AIR 1919 Cal 314 : 53 Ind Cas 59 9

(I) (V 20) AIR 1933 Mad 635 : 145 Ind Cas 230 9 (J) (V 16) AIR 1929 All 305 : 119 Ind Cas 568 9 (K) (V 15) AIR 1928 Bom 380 : 114 Ind Cas 377 9

(L) (13) 21 Ind Cas 721 : 12 All LJ 123 9 (M) (V 20) AIR 1933 All 641 : 146 Ind Cas 873 10 (N) (V 18) AIR 1931 Lah 419 : 12 Lah 546 10 (O) (V 11) AIR 1924 Nag 363 : 78 Ind Cas 398 10 M.P. Somasekhara Rau, for Appellant; A.R. Somanatha Iyer, for Respondents 2 to 4. Judgement VENKATA RAMAIYA, C. J. :- Appellant was defendant 1 in a suit for redemption of a usufructuary mortgage of two items of immovable property situated in Bangalore. Exhibit V is the deed of mortgage dated 10-10-1929 consideration for which was Rs. 12,500/-. It was executed by plaintiff 1 on his behalf and as guardian of his minor sons plaintiffs 3 and 4 as well as by his adult sons plaintiff 2 and defendant 2. Of these the 1st plaintiff and 2nd defendant died after the institution of the suit. Defendant 1 is the assignee of the mortgage from Malleshiah the original mortgagee under a registered deed Ex. XII dated 14-6-1937 and is in possession of the properties. He claims to be the full owner of both the properties as a result of certain proceedings and transactions which are :

2. One Syed Mahamad filed a suit against the first plaintiff for recovery of money due under a pronote and in execution of the decree passed therein purchased item I. Exhibit XXIV is the copy of the entry in the register of civil suite and Ex. XXV is the copy of the application for execution and orders thereon and Ex. XV copy of the sale certificate. Exhibit XXVIII shows that the purchaser could not obtain delivery of item I owing to obstruction of the 1st defendant as noted on the warrant by Syed Mohammad on 31-7-1937. The 1st defendant purchased item 1 from Syed Mohammad on 28-8-1937 under Ex. XIII and item No. II on 18-10-1937 under Ex. 1 from defendant 2.

3. According to first defendant item 1 belonged solely to the 1st plaintiff, his rights were acquired under the court-sale by Syed Mohammad and as purchaser of the property from him defendant 1 has become absolute owner of the same. Likewise defendant 2 is said to have been the exclusive owner of item 2 and his full rights over it are alleged to have been conveyed under Ex. 1. The lower Court has held that both the items were the joint property of plaintiffs and defendant 2 and that defendant 1 assignee of the mortgage effected by them cannot resist the claim of plaintiffs 2 to 4 to redeem the mortgage though he has become owner of the shares of defendant 2 and plaintiff 1 in the properties. A decree has been made for delivery of the shares of others on payment of the proportionate part of the mortgage debt.

4. Sri Somasekhara Rao learned counsel for the appellant contended that the theory of jointness is inapplicable to the case as the plaintiffs are Muhammadans, that only plaintiff 1 and defendant 2 must be regarded as having been the sole owners of items 1 and 2 respectively and since their rights are vested in defendant 1 the suit has to be dismissed. The evidence in the case no doubt shows that 1st plaintiff purchased the site of item 1, title deed was granted to him by the Municipality after the building was put up, he made the payments due to the Municipality towards the value of the site and kandayam, that there is a sale deed Ex. XXXV with respect to item 2 only in favour of defendant 2, that he alone sold a part of it under Ex. XXXVII to one Ramaswamy Iyengar and he also borrowed money from Chikkananjundappa under Ex. XXXVI by hypothecating the property. These are all facts in favour of the appellant strengthened by the consideration that the principles and presumptions of Hindu Law cannot be applied and the fact of the parties living together or one of them being the manager of the family is not sufficient to render the property acquired by a member, the property of all or others. This is however subject to the qualification stated in Mullas Mohamadan Law that : "If during the continuance of the family, properties are acquired in the name of the managing member of the family and it is proved that they are possessed by all the members jointly the presumption is that they are the properties of the family and not the separate properties of the member in whose name they stand." It is hence necessary to examine in the light of the recognised rules as to how the parties acted in regard to the properties.

5. The evidence in the case proves beyond doubt that plaintiffs and defendant 2 lived together and were all attending to the business in a cloth shop. P.W. 1 a house-broker further says that out of the profits of the cloth shop sites were purchased and plaint schedule buildings were constructed. P.W. 2 was a former employee working in the shop and attestor of Ex. A, a hypothecation deed executed by plaintiffs and defendant 2 with respect to the suit properties. He states that the 2nd plaintiff and 2nd defendant looked after construction of the buildings. P.W. 3 who was a tailor and tenant in part of the shop premises also says that the earnings in the cloth business were utilised for the construction of the buildings. The 2nd plaintiff has sworn that moneys of the business were spent for the structure. None of the witnesses-examined on the side of the 1st defendant has said anything to the contrary or the source of the money used for putting up the buildings. The accounts of the shop are not available to find out if these bear out the oral evidence but there are documents recitals in which lend support to the plaintiffs version. Exhibit VIII is a partition deed dated 16-11-1927 to which 1st plaintiff, his sister, a son of his brother are parties. These are referred to in the deed as a joint family and item 2 purchased in the name of the 2nd defendant was allotted to the share of the 1st plaintiff. This would not have been possible if 2nd defendant was sole owner of the property or deemed to-be so. In Ex. XIV dated 15-5-1923 a release deed in favour of 1st plaintiff executed by his brothers widow it is stated that she and his brother, with the aid of ancestral property traded in cloth and acquired immovable properties. If item 1 was absolutely his, there was no need for him to secure relinquishment of rights by any one. Under Ex. II of 4-10-1921 the first plaintiff and his brother borrowed Rs. 8,000/- hypothecating item 1 and other properties agreeing to the realisation of the debt in case of default by means of sale of item 1 and their other properties. The amount is stated to be wanted for both of them completing construction of the building in item 1. Exhibit III is another hypothecation deed executed by them on 15-9-1923 to meet the "urgent need of money for their cloth trade". At the end of the document there is a statement that it will be attested by the 2nd plaintiff and the son of the 1st plaintiffs brother. All these are indicative of not merely plaintiff 1 and defendant 2 but also of others who had dealings with them having considered the suit items as properties of the family.

6. As against these, attention is drawn to Ex. IV the mortgage deed in favour of Co-operative Bank dated 5-9-1927 and Ex. VI dated 30-9-1929 the agreement to execute the suit mortgage deed, as to both these only plaintiff 1 and defendant 2 are parties and they state in Exhibit IV that no one excepting them has any interest in the property. Item 1 is described in Ex. IV as belonging to both the executants which is not the case of the appellant and attestation of 1st plaintiffs brother is obtained, so as to imply that the creditor was not satisfied with the mere assurance of the borrower about title. As regards item II it is significant that when the document Ex. V was actually drawn up in pursuance of the agreement the mortgagee was not content with the execution of the deed by plaintiff 1 and defendant 2 and required concurrence of plaintiff 2 and of plaintiff 1 on behalf of plaintiffs 3 and 4. The 2nd plaintiff says that the deed was drawn up on the advice of the mortgagees advocate Sri Vamana Murthy, who is since dead. D.W. 1 the son of the mortgagee says that Sri Vamana Murthy was his fathers advocate, that he has signed Ex. V and that Ex. V was written after referring to the title deeds. The 1st defendant too admit that he obtained assignment of the mortgage with the approval of this advocate. It is therefore difficult to assume, when the scribe of Ex. V or any attestor or any one present at the time of the transaction is not examined, that execution of the document by plaintiff 2 and plaintiff 1 on behalf of plaintiffs 3 and 4 was inconsequential and superfluous. There is a stipulation that properties other than items 1 and 2 of the parties may be proceeded against for recovery of the debt if it is not realised from the mortgaged property. It would be therefore illogical and inequitable to deny plaintiffs 2 to 4 the right and opportunity to discharge it by voluntary payment and avoid the contingency of their properties being proceeded against irrespective of their interests in items 1 and 2. A notice Ex. F was issued by an advocate on behalf of all the plaintiffs on 17-2-1947 to the 1st defendant asking him to receive the mortgage debt. No reply -was sent to this. The conduct of parties and the manner in which, the properties were dealt with and enjoyed, considered as a whole, justify the conclusion that these were joint property of the parties.

7. From the passage in Mullas book on Mohamadan Law already referred to, it is evident that such a finding is not in any way repugnant to or inconsistent with the principles of Mohamadan Law.

8. The question whether the properties belonged solely to plaintiff 1 and defendant 2 or to the family does not depend only on the sale deeds standing in their names or on the parties concerned being Mohamadans. It is not, as stated in - Abdul Rahim v. Abdul Hakim, AIR 1931 Mad 553 at p. 556 (A) : "a problem of law, nor does the decision depend on the ideas which the parties have put into their pleadings but have to be decided on the facts." The observation in that case that : "It is not an uncommon thing........where members of the Mahomadan community live surrounded by Hindus that they absorb Hindu social ideas and tend to look upon their own social customs from a Hindu point of view. This tendency has been recognised in various rulings, can well be applied to this case. Aminadeen v. Tajaddin, AIR 1932 Cal 538 (B), is also instructive for assessing the effect of the evidence. The mode in which it has to be appreciated was put thus : "The question is however different when it is shown as is disclosed by the evidence that all the members now surviving of the family were possessing the disputed properties jointly. It is not a question merely of the messing together of certain members of the family. They were possessing these properties in common and in jointness and the question arises whether the rule can apply to the present case where as has been shown by clear evidence on which the Sub-Judge relied and which we have no reason for discrediting that defendant 1 (plaintiff 1 in this case) was the managing member of such a family. Under these circumstances it seems to us that the burden of proof would lie on defendant 1 for establishing that the properties which were acquired during the jointness of the family and which are shown to stand in the name of defendant 1 do not really belong to the joint family." Gaya Pande v. Amar Deo Pande, AIR 1924 All 787 (C), was cited in support of the appellants contention that plaintiffs 2 to 4 are not entitled to redeem the mortgage though the mortgage deed was executed by one of them and on behalf of the rest. That was a case in which right of plaintiff to contribution on the ground that he had discharged a mortgage effected by him jointly with defendant was disputed. While rejecting the claim the Court found that the plaintiff was the real mortgagor and defendant had no interest in the mortgaged property. The plaintiffs in this case do not seek any payment but want to pay the debt contracted by them or on their behalf. The case is distinguishable as being one between co-mortgagors and not between mortgagor and mortgagee in which apart from other factors the point of importance is whether it is permissible to a mortgagee or a transferee of his rights to impeach the title of the mortgagors to the mortgaged properties and in the case of a usufructuary mortgage when possession of the properties has been obtained from them. The law in England is according to Cootes in his book on the Law of Mortgages Vol. 2 p. 1417 9th Edition; "The mortgagee is bound to reconvey the estate to the mortgagor or those deriving title under him and is estopped from denying the mortgagors title. This rule is thus stated (in - Tasker v. Small, (1837) 40 ER 848 (D)), by Lord Cottenham : "A mortgagee can never refuse to restore to his mortgagor or those who claim under him upon repayment of what is due upon the mortgage the estate which become vested in him as mortgagee. To him it is immaterial upon repayment of the money whether the mortgagors title was good or bad. He is not at liberty to dispute it any more than a tenant is at liberty to dispute the landlords title." Swinfeneady M.R. in - Graham v. Seal, (1918) 88 LJ Ch 31 (E) said : "The obligation of a mortgagee is, as against payment of what is due to him, to reconvey and deliver up the deeds of the mortgaged premises. It is like the obligation of a vendor to convey and handover the title deeds and conveyance as against payment of the purchase money. It contemplates that the handing over of the conveyance and payment of the purchase money shall be a simultaneous transaction so that neither party is at risk for any time without either the money or the estate." In Fishers Law of Mortgages at p. 712 (6th Edn.) it is stated : "As the mortgagor is never allowed to impeach the mortgage which he has made so the mortgagee may not allege that the title of the mortgagor under whom he claims is defective."

9. On behalf of the appellant Sri Somasekhara Rao urged that this cannot be applied to the case as it would amount to enlarging the scope of the doctrine of estoppel provided for in the Evidence Act and for this relied on the decision of the Sind Judicial Commissioners Court in - Nur Mahomed v. Kesumal, 20 Ind Cas 523 (Sind) (F), where the question for determination was whether the person who applied for redemption was the real mortgagor or benamidar. The opinion of other Courts is however different and in keeping with the rule of English Law. In - Abhuram Sil v. Hara Chand Das, AIR 1915 Cal 362 (G) and - Surendra Nath v. Kshitindra Mohan. AIR 1919 Cal 314 (H), to the decision in both of which Asutosh Mookerjee, J. was a party it is definitely laid down that a mortgagee cannot resist a claim for redemption on the ground that mortgagor has no title to the property and that a person named in the mortgage deed as mortgagor can maintain a suit for redemption, See also - Muhammad Sheriff Sahib v. Kasim Sahib, AIR 1933 Mad 635 (I); - Jai Nandan v. Umrao Koeri, AIR 1929 All 305 (J); - Sombhai Adesingh v. Jagjivan Dayaram, AIR 1928 Bom 380 (K). The principle of estoppel was extended against a second mortgagee in - Tota Ram v. Har Govind, 21 Ind Cas 721 (All) (L), by the Allahabad High Court where the facts were in a joint family consisting of father and son the latter mortgaged his undivided share and on the death of the father mortgaged the same property to another person. It was held that the second, mortgagee is estopped from challenging the first mortgage on the ground that the son had no power to mortgage his share at that time. In Tagore Law Lectures on Estoppels, 4th Edition, at p. 894 it is stated that "a mortgagee let into possession by the mortgagor cannot set up a title adverse to or inconsistent with the relation existing between them."

10. Sri Somasekhara Rao learned Counsel for appellant argued that there can be no estoppel when the facts bearing on the question of title are known to the parties and cited several cases some of which are - Lachman Singh v. Collector of Moradabad, AIR 1933 All 641 (M) - Mrs. N. Johnstone v. Gopal Singh, AIR 1931 Lah 419 (N) and - "Tulsiram v. Tukarani, AIR 1924 Nag 363 (O). Considerations peculiar to minors were emphasised. I do not think that these can avail the appellant and be of help to him as plaintiff 2 was a major even at the time of the mortgage and it has been found that the mortgaged items were the joint property of plaintiffs and defendant 2. On this footing the transaction was entered into and the appellant cannot now contend that it is incorrect or untrue to their knowledge law has provided safeguards against attempts or possibilities of mortgagees taking advantage of the mortgage to deprive the mortgagors of their properties and intends as far as possible to relieve them of the clogs on redemption even though they are agreed to.

11. Leaving aside instances in which the transaction is alleged to be benami a mortgagee can have no ground of complaint or cause for hesitation to receive the money from the person mentioned in the deed as the debtor and when the mortgage is usufructuary restore the property to him as it is only a security for the debt. The mortgagor on the other hand is exposed to the risk of losing the property if he has to make good his title to the property and for any reason the proof is inadequate. The amount advanced on a mortgage being generally less than the market value of the property subject to it and borrowing small amounts by mortgaging highly valuable properties being conceivable the mortgagee with the advantages of often having the title deeds with him may easily thwart redemption by demanding proof of title and exploit the mortgagors difficulties in establishing it to aggrandize the property. Ordinarily a mortgagee is presumed to satisfy himself about the security being acceptable from the person who offers it when the money is lent. In the absence of special circumstances he cannot again seek investigation of this. That would unnecessarily enlarge the scope of a suit for redemption and raise needless complications.

12. The objection raised by the appellant to the claim of plaintiffs 2 to 4 for redemption of the mortgage is therefore untenable.

13. As regards the amount payable to the appellant the contention is that the kandayam annually due to the Municipality and expenditure incurred for repair or improvement of the property should be added to the sum mentioned in Ex. V the mortgage deed. The stipulation, in the document is that the mortgagors had to pay the kanaayam and the lower Court has ordered that the amount due by plaintiffs 2 to 4 towards this should be determined and paid by them. No amount has been allowed towards improvement and it is difficult to uphold the claim in this behalf. Fisher in his book on Law of Mortgages says at p. 897 : "The improvements must always be reasonable, having regard to the nature and value of the estate; for if it were not so, a weapon would be put in the mortgagees hands with which he might greatly clog the right of redemption which lie has no right to make more expensive than is necessary to keep the estate in good repair and working order and to protect the title. And the mortgagee should inform the mortgagor as soon as possible of the necessity or the intention to incur extraordinary expenses", and in the preceding page "the mortgagee in possession need rot rebuild ruinous premises or increase his debt by laying out large sums beyond the rent......for the property when restored ought to be of the same nature as when the mortgagee received it; and if it be wholly or in part converted from its original purpose, the money expended will hot be allowed to be charged upon it." In the written statement, it is alleged that he has spent more than ten thousand rupees for making alterations in the buildings to enable five families to live, raised upstairs in item 1 at a cost of Rs. 15,000/- and spent large sums for repairs. There is 110 indication of necessity for these. The mortgagors were not called upon to get anything done and not apprised of the expenditure. The appellant did not intimate it when he was served with the notice Ex. F. Although permission of the Municipality is said to have been obtained and a plan showing the alleged alterations was submitted to it, these are not produced in Court. The appellant is a merchant having considerable monetary dealings, admits having kept accounts of money spent for the improvements but has not produced them. In view of this, it has to be held that the claim on the score of improvements is unreasonable, and cannot be countenanced. Plaintiffs 2 to 4 are entitled to mesne profits from the date on which the amount due by them was deposited.

14. This appeal is dismissed with costs in other respects.

15. PADMANABHIAH, J. :- I agree. Appeal dismissed. AIR 1956 MYSORE 17 (Vol. 43, C. 7 April) "Shivalingiah v. Chowdamma" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA, C.J. AND HOMBE GOWDA, J. ( Division Bench ) Shivalingiah, Defendant-Appellant v. Chowdamma, Plaintiff-Respondent. Appeal No. 202 of 1950-51, D/- 14 -10 -1955, against decree of Second Addl. Disc. J., Bangalore, in O.S. No. 51 of 1947-48. (A) Evidence Act (1 of 1872), S.114 - EVIDENCE - HINDU LAW - MARRIAGE - Legitimacy - Presumption as to. Hindu Law - Marriage. When a woman lives for a number of years in close association with a man and bears children, who are acknowledged by the man as born to him, relations and persons of the village treat them as such there is a presumption of legitimacy, as vice and immorality are not usually attributed to such associations between a man and a woman. (Para 2) Anno : AIR Man., Evi. Act, S. 114, N. 21. (B) HINDU LAW - MARRIAGE - Hindu Law - Marriage - Custom - Kudike marriage - Essentials. Separation by mutual consent and dissolution of the marital tie, so as to enable the woman to marry another man in what is called kudike form and have the full status of a wife are proved to be possible in the community to which the parties belong. (Para 3) The essence of the requirement for the validity of the second marriage or kudike as it is called is not so much the existence of the document as the fact of the former husband renouncing the conjugal rights over the woman and the observance of the social or religious acts to create the fresh alliance of the woman with another man as wife and husband. Marriages are not nullified and considered invalid because of failure to conform to all the formalities in vogue or of the qualifications prescribed. The doctrine of factum valet has been applied to overcome defects of an unessential nature. (Para 4) (C) Evidence Act (1 of 1872), S.50 - EVIDENCE - MARRIAGE - Marriage Bind legitimacy - Evidence of repute. Plaintiff claiming to be the wife of M brought a suit for possession of certain properties against the defendant who claimed to be in possession as the legitimate son of M by another wife. The plaintiff herself, her husband and his brothers acknowledged and recognised defendant as legitimate son, his mother as lawful wife of M. This was long before the present litigation and at a time when there was no motive or interest on the part of any one to state anything calculated to help the defendant and his mother Knowing it to be false. Held that evidence of this kind was admissible under S. 50, Evidence Act and the defendant must be held to be the legitimate son of M. AIR 1925 Mad 497, Ref to. (Para 6) Anno : AIR, Man., Evi. Act, S. 50, N. 3, 5. Cases Referred : Courtwise Chronological Paras (A) (V 12) AIR 1925 Mad 497 : 48 Mad 1 5 (B) (V 14) AIR 1927 PC 185 : 104 Ind Cas 327 (PC) 6 (C) (70-72) 14 Moo Ind App 67 : 7 Beng LR 216 (PC) 6 M. Narayana Rao, for Appellant; G.L. Bangalore, for Respondent. Judgement VENKATA RAMAIYA, C. J. :- The principal point for decision in this appeal is whether the appellant is the legitimate son of Made Gowda. Made Gowda was murdered in 1929 and the suit from which this appeal arises was filed by his widow, Chowdamma, in 1946 for recovery of thirty four items of immovable properties specified in Schedule A and six items of movable specified in B Schedule of the plaint alleging that she is the lawful heir to Made Gowda and that the defendant has been wrongfully in possession of the same. The plea of the defendant was that ha is the son of Made Gowda and as such entitled to the properties in preference to the plaintiff. The learned District Judge held that he is not the offspring of lawful wedlock between his mother and Made Gowda and therefore decreed the suit Defendant appeals.

2. It is not disputed that plaintiff was married to Made Gowda, that subsequent to this marriage Channamma defendants mother lived with them and that Made Gowda got children by both these. Though the plaintiff alleged that the appellant was born before his mother joined Made Gowda, the allegation has to be discarded as Made Gowda himself referred to him as his son and expressed the anxiety of a father while he desired in Ex. XXXIV of 1924 that he should be taken care of by one of his relations. Again in his application Ex. IV of 1925 to the Co-operative Society for allotment of some shares Made Gowda wanted the appellant as his son to be treated as nominee and his name is entered as such in the books of the Society. Respondent herself while giving evidence in the Magistrates Court and Court of Session in the case relating to the murder of her husband stated that she and defendants mother were wives of Made Gowda, that they were all on good terms and living together (See Exs. II and III of 1930). Exhibit XXXV (a) is the order of the Amildar dated 23-2-1932 passed, after enquiry, fan transfer of the khatha of Made Gowdas tends to defendants name on the ground that he is his only son. On 5-12-1930 when defendant was a minor his paternal uncle Kade Gowda sold a site which belonged to Made Gowda under Ex. VIII for Rs. 200/-. This was attested toy the plaintiff and defendants mother each being described as wife of Made Gowda. The entries in the Khetwar and Record of Rights with respect to suit properties are all in favour of the defendant. Exhibit XXXII is a genealogical tree showing that defendant is the son of Made Gowda by Channamma Ma wife and mentioning names of others to him. It was presented in the Taluk shortly after the death of Made Gowda bears signature of his brother, and of a and thumb mark of defendants mother. The plaintiff in her evidence states : "Neither I nor my first son-in-law ever attempted to pay kandayam for the suit properties, or to have the khata changed to my name. I have not been in possession of any of the immovable properties belonging to my husbands estate. Since his demise I have not received any income therefrom. I do not know is the defendant has been in possession of those properties and enjoying income therefrom since my husbands death. It is Kade Gowda who was in possession and enjoyment of the suit immoveable properties after my husbands death. I did not ask Kade Gowda at any time to hand over possession of these properties to me." This Kade Gowda is D.W. 11 and a brother of Made Gowda. He definitely says that defendant was the son of his brother, that after the brother was murdered, properties, were looked after by defendants mother, that she and plaintiff lived in amity. When a woman fives for a number of years in close association with at man and bears children, who are acknowledged by the man as born to him, relations and persons of the village treat them as such there is a presumption of legitimacy, as vice and immorality are not usually attributed to such associations between a man and a woman.

3. In spite of the facts above end inferences arising therefrom the asserts that Channamma lived in with Made Gowda and that defendant is the product of an adulterous intercourse between the two. What is urged in support of this is not any misconduct or unchastity on the part of Channamma towards Made Gowda. The accusation against her is rather her loyalty and fidelity to him though she had been married to another man and he is alive. That Channamma the defendants mother was married to Putte Gowda and that she went to live with the Made Gowda after this marriage is not denied. Defendants explanation for this is that the marriage was got rid of by a divorce and after this Made Gowda married Channamma. It is said that there is a custom which, permits divorce and re-marriage and that no objection can be attached to Channammas association with the Putte Gowda. Separation by mutual consent and dissolution of the marital tie, so as to enable the woman to marry another man in what is called kudike form and have the full status of a wife are proved to be possible in the community to which the parties belong. The plaintiffs witnesses P.Ws. 5, 6 and 7 themselves speak to this and to the formalities thereof which includes execution of document. As affording compliance with this requirement, Ex. VII a document purporting to have been executed by Putte Gowda the first husband of Channamma on 16-4-1918, was produced in the case. The paper used for the writing is found to be of the kind which became available for subsequent to the date which the document bears and Ex. VII is therefore held to be antedated, spurious and not reliable to prove the termination of marital relationship of Channamma with Putte Gowda. Sri M. Narayana Rao learned counsel for the appellant did not attempt to show that Ex. VII can be treated otherwise but urged that without the aid of this the Appellant is entitled to succeed.

4. In the evidence relating to the custom, no doubt reference is made to document being written to signify relinquishment of marital rights. This cannot be construed to imply that apart from its evidentiary value the document is a sine qua non for relinquishment and there can be no divorce without it. The community does not prohibit marriages without documents being executed and the efficacy of marriage or the divorce does not depend on the document but on consent of parties and the observance of traditional rites and ceremonies. Between the first marriage of a woman and the second - called kudike - the only difference is as stated by D.W. 17 brother of Made Gowda, that in the latter "there is no kalasa and kannadi". P.W. 7 who claims to be yaiaman of 10 or 12 villages says "it is their pleasure to marry in kudike form without release deeds. They do so with their consent". D.W. 2 is the husband who released Channamma from the bonds of matrimonial relationship and he deposes that in fulfilment of the terms imposed by him the silver vessels given by him were all returned with the "thali" the vital symbol of the marriage. After this, he himself married a woman similarly released by her first husband. D.W. 3 is the husband of that womans sister. There is no reference by him to the execution of any document for the purpose of the release as all that he says as being required for it is consent. He is the President of Manhya District Board and there is no reason to doubt the prevalence of the custom of the kudike marriage as he says it has been in vogue for several years. This form of marriage seems to be common in the community and instances of its being recognised as normal, attaching no taint or stigma to it are numerous. D.W. 17, elder brother of Made Gowda says that their mother was a kudike wife of their father and that he also has a kudike wife. He states that if Channamma was a mistress or concubine of Made Gowda as alleged by the plaintiff, she would not have been allowed to reside with the members of the family. Made Goda and D.W. 11 were recognised by the members of the community to be legitimate sons of their father though their mother was a kudike wife. The defendant and his mother cannot be treated differently and as inferior in status to the plaintiff and her children. P.W. 6 a yajaman in the community says that his son-in-law is the offspring of a kudike marriage, that father-in-law of his son has a wife by ordinary marriage and another by kudike, that he has not seen any documents of release and did not enquire about this when he gave away his daughter in marriage. Channamma, according to the evidence, was given up by D.W. 2, when she was only 12 or 13 years of age and before the consumption of the marriage. D.W. 6 is also a yajaman who played an important part in bringing about the kudike marriage between Channamma and Made Gowda as it is he who tied the thali on the neck of the woman. D.W. 16 is also a brother of Made Gowda and he testified to the kudike marriage of defendants mother and D.W. 2 having consented to it. What may be gathered from the evidence as a whole is that the relationship of marriage may be dissolved by consent of the husband and that a document in token of this has to be or will be executed by him. No one says that in the absence o a document there can be no divorce. Persons who have kudike wives have not produced any document so that it is difficult to know the form and terms thereof. Many of these are in the village and may or may not be literate. The documents are to be written if at all by others and may not stand the test of being satisfactory if a particular standard is applied. It seems to me that the essence of the requirement for the validity of the second marriage or kudike as it is called is not so much the existence of the document as the fact of the former husband renouncing the conjugal rights over the woman and the observance of the social or religious acts to create the fresh alliance of the Woman with another man as wife and husband. Marriages are not nullified and considered invalid because of failure to conform to all the formalities in vogue or of the qualifications prescribed. The doctrine of factum valet has been applied to overcome defects of an unessential nature.

5. Assuming that a document is absolutely necessary to leave the parties, at any rate the wife, free from the marital obligations, there is the admission of D.W. 2 about its execution and this should serve as sufficient to meet the requirement. The fact that the date given in Ex. VII is not correct, that the document cannot be deemed to have been executed on the date it bears cannot take away or nullity the admission of D.W. 2 and the evidence of others supporting it. In - Maharaja of Kolhapur v. Sundaram Ayyar AIR 1925 Mad 497 (A) it was held when the question is as to the legitimacy of a certain type of marriage contracted by the members of a family much may be gathered from the treatment accorded to the alleged wives and from the way in which they speak of themselves in official documents and petitions and legal proceedings in which they were parties. Evidence of this kind is conduct admissible under S. 50, Evidence Act, as it shows the repute in which such marriage was held in the family.

6. The illustrations given by the section are clear about this. Lord Shaw in - A. Diaohamy v. W.L. Balahamy, AIR 1927 PC 185 at p. 187 (B) states : "Where a man and woman are proved to have lived together as husband and wife the law will presume unless the contrary be clearly proved that they were living together in consequence of a valid marriage and not in a state of concubinage". Sir James Colville dealing with a case in which factum of an adoption was disputed observed in - Rajendra Nath v. Jagendra Nath, 14 Moo Ind App 67 (C) : "The case seems to their Lordships to be analogous to one in which the legitimacy of a person in possession is questioned, a very considerable time after his possession has been acquired by a party who has a strict legal right to question his legitimacy. In such a case the defendant in order to defend his status should be allowed to invoke against the claimant every presumption which reasonably arises from the long recognition of his legitimacy by the members of the family or other persons". The plaintiff herself, her husband, his brothers acknowledged and recognised defendant as legitimate son, his mother as lawful wife of made Gowda. This was long before the present litigation and at a time when there was no motive or interest on the part of any one to state anything calculated to help the defendant and his mother knowing it to be false. The conclusion, arrived at by the lower Court is wrong and the appellant must be held to be the legitimate son of Made Gowda.

7. The claim as put forward by the plaintiff in the plaint is untenable as she cannot be the owner of the properties to the exclusion of the defendant. Her rights against the defendant are only those of a step-mother against a step-son as a sole surviving coparcener. As no relief is sought on this footing the suit has to be and is hereby dismissed in reversal of the decree of the lower Court. As the document put forward by the defendant in support of his case is found to be shady, he is disentitled to costs. Parties will therefore bear their own costs throughout. Court-fee on plaint filed in lower Court will be recovered from respondent (plaintiff). Appeal allowed. AIR 1956 MYSORE 20 (Vol. 43, C. 8 April) "Kesava Iyengar v. State of Mysore" MYSORE HIGH COURT Coram : 2 PADMANABHIAH AND HOMBE GOWDA, JJ. ( Division Bench ) B.S. Kesava Iyengar, Petitioner v. State of Mysore and others, Respondents. Writ Petn. No. 107 of 1955, D/- 10 -11 -1955. (A) Mysore Munsiffs (Recruitment and Promotions) Rules (1954), R.4, R.17(1)(b) - RECRUITMENT - PROMOTION - SERVICE MATTERS - Examination is not intended to be competitive. Rule 4 provides that appointments to be filled up by direct recruitment shall be by a selector examination conducted by the Commission in accordance with the rules. The employment of the term "selection examination" is very indicative and excludes the idea of a competitive examination. Even in R. 17(1)(b) the term "ranks of candidates as a result of the selection examination" does not indicate that the examination was intended to be competitive. (Para 4) (B) Constitution of India, Art.320(1) - PUBLIC SERVICE COMMISSION - COMMISSIONS - SERVICE MATTERS - Examination whether should lie competitive - Object of examination. Article 320(1) does not stipulate whether the examinations should be competitive or selective. If it was the intention of the Constitution-makers that the examination to be held for appointments to the service should be competitive, they would have so stated in the Article itself. The object of holding an examination as embodied in Art. 320(1) is evidently for testing the capacity of the pupils and just to have an idea whether a particular candidate is fit for the proposed appointment or not. (Para 5) (C) Constitution of India, Art.16(4) - EQUALITY IN PUBLIC EMPLOYMENT - REPUGNANCY BETWEEN STATUTES - Order of Mysore Government dated 16-05-1921 classifying all communities other than Brahmins as backward communities is not repugnant to the Constitution. In order of Mysore Government bearing No. 1827-80/E. A.G. 308 dated 16-5-1921 it is stated that the term "backward communities" should be understood as including all communities other than Brahmins who are not adequately represented in service. So long as this order of 1921 stands undisturbed and so long as there is no constitutional provision made as to what are backward classes of citizens, the order of Government of 1921 denning them should stand. In view of the principle underlying Art. 16(4) of the Constitution, is cannot be said that the order of Government classifying certain communities as backward classes of citizens is repugnant to the provisions of the Constitution nor can it be said to be unjust or arbitrary. (Para 6) Anno.: AIR Com. Const. of India. Art. 16, N. 7. (D) Constitution of India, Art.16(4) - EQUALITY IN PUBLIC EMPLOYMENT - WORDS AND PHRASES - Provision - Meaning. It cannot be said that the word provision appearing in Art. 16(4) means a "legislative provision and not a provision made by the Executive Government. (Para 7) Anno. : AIR Com. Const. of India, Art. 16, N. 7. (E) Constitution of India, Art.16(4) - EQUALITY IN PUBLIC EMPLOYMENT - RESERVATION - It is not obligatory to make provision for reservation. Article 16(4) is an enabling provision and it is not obligatory on the part of the State to make provision for reservation. (Para 7) Anno. : AIR Com. Const. of India, Art. 16, N. 7. (F) Constitution of India, Art.16(4) - EQUALITY IN PUBLIC EMPLOYMENT - APPOINTMENT - WORDS AND PHRASES - BACKWARD CLASS - Reservation can be small portion of the main Seven out of ten appointments going to candidates be longing to different communities coming under the heading backward classes - Appointments are not invalid. Words and Phrases - "Reservation". Article 16(4) is in the nature of an exception to what is stated in Art. 16(1) of the Constitution and the word reservation signifies that it can be a small portion of the main. For ten appointments to be filled up, if there are candidates belonging to ten backward classes of citizens who, in the opinion of the State, are inadequately represented in the service, it will not be wrong for the State to allot all the appointments to the ten communities coming under the heading backward classes of citizens. A member belonging to a class which, is well represented in a particular service cannot have, and should not have, any grievance as against such appointments. (Para 8) Anno. : AIR Com. Const. of India, Art. 16, N. 7. (G) Constitution of India, Art.245 - LEGISLATION - Delegated legislation. The proposition that subsidiary or delegated legislation has become inevitable and necessary owing to the increased pressure on legislation and the complexity of the subject-matter of the present day legislation is well recognized. Due to the complexity of the modem social and economic conditions the Legislature has been compelled to entrust the Department responsible for administering the law with the power of deciding administrative or quasi-judicial issues. The usual test for finding out whether a delegation of power is permissible or not is to see if the delegation amounts to an abdication of legislative powers. (Para 10) (H) Constitution of India, Art.16(4), Art.245 - Mysore Munsiffs (Recruitment and Promotions) Rules (1954), R.7(2) - EQUALITY IN PUBLIC EMPLOYMENT - LEGISLATURE - DELEGATION OF POWER - RESERVATION - Direction in R.7(2) does not amount to delegation of power for reservation of seats. Rule 7(2) of Mysore Munsiffs (Recruitment and Promotions) Rules, 1954, provides that backward classes of citizens who are not adequately represented in the Judicial Service shall be given due representation from among the qualified candidates. This direction in the Rules to the Commission does not amount to a delegation of power for reservation of seats to any particular community and is in accordance with the principle underlying Art. 16(4) of the Constitution. (Para 11) Anno : AIR Com., Const. India, Art. 16, N. 7.

(I) Constitution of India, Art.12, Art.16(4), Art.320(4) - STATE - EQUALITY IN PUBLIC EMPLOYMENT - PUBLIC SERVICE COMMISSION - WORDS AND PHRASES - Public Service Commission is not authority within meaning of Art.12 - It cannot make provision for reservation of appointments under Art.16(4). Words and Phrases - Authority. The word authority in Art. 12 literally means a body exercising power. Under the Constitution, the Public Service Commission has no such authority and it has not got even the power to implement its own decisions without reference to the State Government. As Art. 320(4) says that the State Government need not even consult the Public Service Commission with respect to the matter covered under Art. 16(4) i.e., with respect to the making of provisions for reservation of appointments in favour of backward classes of citizens, the Public Service Commission is not an authority within the meaning of that word in Art. 12 and it cannot make provision for reservation of appointments without reference to the State Government. (Para 12) Anno : AIR Com., Const. of India, Art. 12 N. 1, Art. 16 N. 7. (J) Constitution of India, Art.16(4) - Mysore Munsiffs (Recruitment and Promotions) Rules (1954), R.7(2) - EQUALITY IN PUBLIC EMPLOYMENT - RECRUITMENT - PROMOTION - R.7(2) does not offend Art.16(4). Mysore Munsiffs (Recruitment and Promotions) Rules (1954), R.7(2). Rule 7(3) which provides that, in the event of the requisite number of qualified candidates belonging to scheduled castes and tribes not becoming available as a result of the examination, it shall be open to the Rajpramukh to fill up the consequent vacancies by appointment of qualified candidates out of those belonging to backward classes is not invalid. There is nothing wrong in allotting the posts reserved for scheduled castes and tribes to other backward classes of citizens when there are no qualified candidates belonging to the former category or in preferring a candidate belonging to a more backward class to another candidate of the backward class which has got better representation in services. This does not offend the provisions of Art. 16(4). On the other hand, this rule is in consonance with those provisions. (Para 13) Anno : AIR Com., Const. of India, Art. 16, N. 7. (K) Constitution of India, Art.234 - APPOINTMENT - WORDS AND PHRASES - RECRUITMENT - PROMOTION - "Appointment" - Meaning - Mysore Munsiffs (Recruitment and Promotions) Rules (1954), R.16 - R.16 is not void and does not offend Art.234. Mysore Munsiffs (Recruitment and Promotions) Rules (1954), R.16. Words and Phrases - "Appointment". The word appointment does not necessarily mean fresh appointments directly from the Bar, "Appointments referred to in Art. 234 must be intended to include appointments by direct recruitment and also appointments by promotion. Hence Rule 16 of Mysore Munsiffs (Recruitment and Promotions) Rules (1954) so far as it relates to appointment by promotion, is not void and it does not offend Art. 234 of the Constitution. (Para 14)

(L) Mysore Munsiffs (Recruitment and Promotions) Rules (1954), R.17(4) - RECRUITMENT - PROMOTION - EQUALITY - Relaxation under R.17(4) does not amount to discrimination against other communities. Constitution of India, Art.14. The relaxation mentioned in R. 17(4), Mysore Munsiffs (Recruitment and Promotions) Rules (1954) seems to refer to very minor and negligible matters and the Rule cannot be taken to be a discrimination against communities other than those mentioned therein. (Para 15) (M) Constitution of India, Art.320, Art.323 - PUBLIC SERVICE COMMISSION - COMMISSIONS - Public Service Commission cannot withhold any information wanted by Government. Being an advisory or a consultative body to the State Government and in view of the fact that under Art. 323 of the Constitution the Rajpramukh shall have to explain to the Legislature the reasons why in particular cases the advice of the Commission could not be accepted, it is not open to the Public Service Commission to withhold any information wanted by Government. (Para 16) (N) Constitution of India, Art.16(4) - EQUALITY IN PUBLIC EMPLOYMENT - BACKWARD CLASS - WORDS AND PHRASES - Backward class - Meaning. Words and Phrases - "Backward class". (Per Hombe Gouda, J.) The term Backward class has not been defined anywhere in the Constitution of India. It is wide enough to include all kinds of backwardness, social, educational, economical or any other kind. Doubtless the State is the sole authority to classify the communities as "backward classes. (Para 22) Anno : AIR Com., Const. of Ind., Art. 16, N. 7. Cases Referred : Courtwise Chronological Paras (A) (55) Writ Petn. No. 80 of 1955 (Mys) 2, 5, 12, 15, 20 (B) (55) Writ Petn. No. 24 of 1955 (Mys) 5, 8, 15 (C) (V 38) AIR 1951 SC 229 : 1951 SCJ 318 (SC) 7, 9, 22 S.K. Venkata Ranga Iyengar, for Petitioner; Advocate General, for Respondents. Judgement PADMANABHIAH, J. :- This is an application filed by the petitioner under Art. 226 of the Constitution praying for the issue of a writ of mandamus, certiorari and quo warranto or any other appropriate writ or order or direction against the respondents.

2. This petition is directed against twelve respondents, respondent 1 being the State of Mysore represented by their Chief Secretary, respondent 2 being the Commission who were responsible to hold the examination under the "Mysore Munsiffs (Recruitment and Promotions) Rules, 1954", and the other respondents being those that have been appointed as Munsiffs by the State Government. The grievance of the petitioner is that, according to the rules framed for the said examination, ten candidates had to be appointed as Munsiffs, that the examination was a competitive one, that he was successful in the examination held securing the third rank and was, therefore, entitled to be included in the approved list of candidates sent by the second respondent to the first, for being forwarded to the Rajpramukh, that respondent 2 omitted to include his name that thereon he (petitioner) filed Writ Petn. No. 80 of 1955 (Mys.) (A) praying for the issue of an appropriate writ, that the said application was dismissed as premature and that he as filed this application in view of the fact that the appointments have now been made. It is further alleged in the petition that the examination being competitive, the first ten candidates should have been appointed as Munsiffs, that it has not been so done, that appointments have been made on the basis of communities, that some of those who have not come within the first ten have been appointed, that this offends the provisions of the Constitution, that many of the rules framed by the Rajpramukh for the holding of the examination are contrary to the spirit of the constitutional provisions, that there has been a delegation of the power vested in the State in favour of the "Commission" and that the appointments made on communal basis in the absence of provision for reservation as contemplated under Art. 16(4) must be held invalid.

3. The respondents oppose the application. They contend in their counter-affidavit that the petitioner has secured the seventh rank and not the third rank as alleged in the petition, in the examination held, that the provisions in the rules of appointment of persons belonging to backward classes is valid and not ultra vires of the Constitution, that there has been no delegation of power on the part of the State in, favour of the "Commission", that the examination held was only selective and not competitive, that there is no substance in any of the contentions raised on the side of the petitioner and that the application should be dismissed.

4. The main point that arises for consideration is as to how far the various contentions urged by the petitioner are tenable. So far as his contention that the examination is competitive and no selective is concerned, the same has to be repelled. The rules framed in this behalf are quite clear and there is nothing in the said rules to show or indicate that the examination was intended to be competitive. Rule 4 provides that appointments to be filled up by direct recruitment shall be by a selection examination conducted by the Commission in accordance with the rules. Again the words "selection examination" are repeated in R. 6, which provides that a selection examination for direct recruitment to the cadre of Munsiffs shall be held at such place or places etc. Considering the status of the parties before us, it appears to be unnecessary to point out the difference between the words competitive and selective. It was also not contended, and could not be contended, that the two words are synonymous. The employment of the term "selection examination" is very indicative and excludes the idea of a competitive examination. The learned counsel for the petitioner relied on R. 17(1)(b) and argued that the words having regard to the representation of backward classes and the ranks of candidates as a result of the selection examination would go to indicate that the examination was intended to be competitive. But the words relied on do not, in my opinion, lend any support to the contention urged for the petitioner. Even in that rule, the words "selection examination" have been used. Further, the term "ranks of candidates as a result of the selection examination" does not indicate that the examination was intended to be competitive. Therefore, I am of opinion that R. 17(1)(b) does not support the contention of the learned counsel for the petitioner.

5. Article 320(1) of the Constitution provides that "It shall be the duty of the Union and the State Public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively." It does not stipulate whether the examinations should be competitive or selective. If it was the intention of the Constitution-makers that the examination to be held for appointments to the service should be competitive, they would have so stated in the Article itself. The object of holding an examination as embodied in the above Article is evidently for testing the capacity of the pupils and just to have an idea whether a particular candidate is fit for the proposed appointment or not. In a similar writ Petition filed in this Court where these very rules were impugned, viz. Writ Petn. No. 24 at 1955 (Mys.) (B), it has been held that the examination contemplated under the rules was not competitive but selective and was not meant to determine the candidates to whom the appointments are to be given in order of merit but was intended mainly to find out who were all eligible to be appointed. Again in writ Petn. No. 80 of 1955 (Mys.) (A), to which the present petitioner was a party, the same view has been taken i.e. that the examination under the rules is selective and that it was not possible for the Court to issue a direction that an examination which under the rule was selective should be turned into a competitive one. It is further observed in that case that the rules as they stood did not entitle a candidate to be included in the list on the basis of the results in the examination even though he might be the very first in the order of merit. In the light of these findings in the two cases quoted above, I fail to see any substance in the contention of the petitioner that he and others who are similarly situated believed that the examination was competitive. I very much doubt whether a person who has secured the highest marks in a written examination could claim to be included in the list of candidates who are eligible for appointment merely on that ground. Marks obtained in a particular examination cannot be the sole criterion in judging a candidates ability for appointment. There are very many other considerations that have to be taken info account by those responsible for making the appointments, such as physical fitness, personality, family history, character, aptitude for the particular work and like factors. Instances are not wanting where persons appointed merely on the basis of marks obtained in an examination have proved to be misfits, while persons of average intelligence and common sense have been highly successful and reached heights of fame. Therefore securing of high marks in the examination may not he a sufficient criterion in making the appointments. Hence I do not concede to be contention of the petitioner that the ten appointments should go to the first ten according to merit. Under these circumstances, I am of opinion that the examination held under the rules was a "selection examination" and not a "competitive one" as contended on the side of the petitioner.

6. The second ground urged on the side of the petitioner is that the appointments have been made according to communities for the reason that the said communities come under the heading "backward classes of citizens", that there is no provision for classification as to who are backward classes of citizens that no reservation as contemplated under Art. 16(4) of the Constitution has been made by the State, and that in the absence of such reservation the appointments of the various candidates other than respondents 3, 4 and 5 must foe declared invalid. Even in this contention, I do not see sufficient force. No doubt, it is true that seven out of ten appointments have gone to the candidates belonging to the backward classes of citizens, but I am not prepared to accept the contention that these appointments are invalid as offending the provisions of Art. 16(4) of the Constitution. Article 16(4) provides as follows : "Nothing in this article shall prevent the State from taking any provision for the reservation of appointments of posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State". Rule 2(5) defines what is meant by backward classes. According to that rule, backward classes mean the communities that are treated as such from time to time in accordance with the orders in force. It is not correct to say that the State have not classified as to who are backward classes of citizens. The learned Advocate-General appearing for the respondents drew our attention to the order of, Government bearing No. 1827-80/E.A.G. 308, dated 16-5-1921. Therein it is stated that the term backward communities should be understood as including all communities other than Brahmins who are not adequately represented in service. According to this, all communities other than Brahmins are classed as backward communities. Thus it is seen that what are backward classes of citizens have been declared by an order of Government cited above on the recommendation of a Committee known as "Millers Committee". It was contended on the side of the petitioner that this order of Government has become obsolete by lapse of time, that many changes have occurred in the representation of communities in service ever since then, that the order cannot have any force and that no value can be attached to it. I do not see any force or substance in this contention. This order of Government admittedly stands unrevised. No fresh order in its place has been passed by Government. So long as the order of 1921 stands undisturbed and so long as there is no constitutional prevision made as to what are backward classes of citizens, the order of Government of 1921 defining them should stand. The very fact that the Government have not thought it fit to revise that order goes to show that the purpose with which that order was passed is not yet realised. Therefore, in view of the principle underlying Art. 26(4) of the Constitution, it cannot be said that the order of Government classifying certain communities as backward classes of citizens id repugnant to the provisions of the Constitution nor can it be said to be unjust or arbitrary.

7. It was next contended that no provision for reservation of appointments for backward classes of citizens has been made as contemplated under Art. 16(4) and that therefore the appointment of these candidates as belonging to, backward classes of citizens is invalid. What the learned counsel for the petitioner contended was that the word provision appearing in Art. 16(4) means a legislative provision and not a provision made by the Executive Government and that, in the absence of such a provision, the rules relating to this must be held unconstitutional. The learned counsel for the petitioner was not able to point out any provision or case law in support of this argument. In this connection, I would like to refer to a case reported in - Venkataramana v. State of Madras, AIR 1951 SC 229 (C). In that case, appointments were made according to communities on the strength of what were known as Communal Government Orders issued by the State of Madras. The reservation therein was not made by any legislative provision. In spite of it, their Lordships have held in that case that so far as the appointments made in accordance with the reservation by the State with respect to the members of backward classes were concerned, the same were valid. If there was any substance in the contention of the learned counsel for the petitioner that the provision in Art. 16(4) was meant to be a legislative provision, I am sure that their Lordships of the Supreme Court would not have upheld the appointment made by the State of Madras on the basis of the communal Government Orders. Further, it appears to me that Art. 16(4) is an enabling provision and that it is not obligatory on the part of the State to make provision for reservation. What that clause says is that Nothing in this Article shall prevent the State from making any provision etc. Anyway, under the rules, no percentage of appointments has been fixed to the various communities coming under the definition of backward classes of citizens. But from the actual appointments made, no discrimination has been shown to any single community and the seven appointments have been allotted to seven different communities all coming under the heading backward classes of citizens. Therefore it cannot be said that the State has been arbitrary in making appointments according to the communities coming under the backward classes of citizens.

8. It was further contended on the side of the petitioner that the major portion of the appointments i.e., 7 out of 10, has gone to the backward classes of citizens, that the meaning of the word reservation appearing in Art. 16(4) indicates that the reservation must be a fraction of the main and that 7 out of 10 appointments cannot be allotted to backward classes of citizens. This argument was based on the provisions of Art. 16(1) and (2), and the contention urged by the learned counsel for the petitioner was that Art. 16(4) is in the nature of a proviso or an Exception to what is stated in Art. 16(1) and (2) and that the reservation contemplated in Art. 16(4) cannot be in excess of a small portion of the main. In other words, the argument advanced was that out of 10 appointments, one or two should nave gone to the backward classes of citizens and the rest to others. The contention that Cl. (4) of Art. 16 is in the nature of a proviso or exception to the main Art. 16(1) and (2) appears to be well-founded. I am not prepared to countenance the argument of the learned Advocate-General that Art. 16(4) is an independent Provision by itself and that it should be read independently of Cls. (1) and (2) of Art. 16. Article 16(1) provides that "There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State." Thus it is seen that Cl. (4) of Art. 16 (quoted supra) is subsidiary to the main Article and that it carves out a class or category to which the main Art. 16(1) does not apply. Likewise, Cls. (3) and (5) of Art. 16 appear to be exceptions to what is contained in Art. 16(2). Thus, there can be no doubt that Art. 16(4) is in the nature of an exception to what is stated in Art. 16(1) of the Constitution. No doubt, the word "reservation" signifies that it can be a email portion of the main. But this does not mean that the appointments made are irregular or invalid. In this case, as stated already, seven out of ten appointments have gone to communities on consideration of their coming under the heading backward classes of citizens. As observed earlier, these appointments have not gone to any particular community; but, on the other hand, each of these appointments has gone to each of certain communities of backward classes of citizens. Evidently what the petitioner wants is to clue together all these various backward classes of citizens into one as against those not belonging to that category which, in my opinion, is against all principles of natural justice and the principle underlying Art. 16(4) of the Constitution. Each backward class of citizens is an independent class whose claim for appointment can be sustained under Art. 16(4) of the Constitution. In such a case, the reservation for each backward class of citizens must be considered as one out of ten which is a small fraction of the total appointments. For ten appointments to be filled up, if there are candidates belonging to ten backward classes of citizens who, in the opinion of the State are inadequately represented in the service, it will not be wrong for the State to allot all the appointments to the ten communities coming under the heading backward classes of citizens. A member belonging to a class which is well-represented in a particular service cannot have, and should not have, any grievance as against such appointments. Communities which are well represented in service should not expect a place for themselves in each selection of appointments when there are backward classes of citizens which are not at all represented or which are inadequately represented in services and when the appointments to be made are limited. With good grace they must make room for their less fortunate brethren. By saying this, I do not mean that efficiency should be ignored. Efficiency in all grades of service is of importance and it should weigh us making appointments and clue consideration should, be given to that aspect in making appointments as pointed out by this Court in writ Petn. No. 24 of 1955 (Mys) (B).

9. Our attention was drawn to the case reported in AIR 1951 SC 229 (C), and it was contended that the decision in that case supports the case for the petitioner. No doubt, it is true that the petitioner therein succeeded in getting an appointment which was originally refused to him by the State of Madras. But the facts in that case can easily be distinguished from the facts of the present case. Their Lordships in that case have upheld the allotment of seats on the basis of communities coming Tinder the heading backward classes of citizens and they said that reservation of posts for other communities not falling under the category of Harijans and backward class Hindus was repugnant to the provisions of Art. 16 and therefore void and illegal and that the petitioners application for appointment was directed to be considered in filling up the other vacancies that were still available for being filled up without reference to communal Government Order.

10. Another contention on which much stress was laid down by the learned counsel for the petitioner was that the power to make provision for reservation vests in the State, that the State alone can exercise that power, that under the rules the said power has been delegated to the Commission and that therefore the appointments made by the Commission must be declared invalid. Even in this contention, I do not see any truth or substance. The proposition that subsidiary or delegated legislation has become inevitable and necessary, owing to the increased pressure on legislation and the complexity of the subject-matter of the present day legislation is well-recognized. Due to the complexity of the modern, social and economical conditions, the Legislature has been compelled to entrust the Department responsible for administering the law with power of deciding administrative or quasi-judicial issues. The usual test for finding out whether a delegation of power is permissible or not is to see if the delegation amounts to an abdication of legislative powers. For the present purpose, it may not be necessary for me to go deeply into this subject. It is not correct to say that the State have delegated their power in favour of the Commission. This leads us incidentally to the powers and functions of the Public Service Commission.

11. The functions of the Public Service Commission have been enumerated in Art. 320 of the Constitution. According to that Article, (as quoted earlier), it shall be the duty of the Public Service Commission to conduct examinations for appointments to the services. Thus it is seen that the Commission has got a right to be consulted on all matters relating to the method of recruitment to civil services and civil posts and also on the principles to be followed in making the appointments, promotions and transfers and other matters mentioned therein. In this case, the State has not requested the Public Service Commission to allot a particular percentage of appointments to any single community. Rule 7(2) provides that backward classes of citizens who are not adequately represented in the Judicial Service shall be given due representation from among the qualified candidates. This direction in the Rules to the Commission does not amount to a delegation of power for reservation of scats to any particular community and is in accordance with the principle underlying Art. 16(4) of the Constitution. In this connection, it has also to be remembered that the word of the Commission is not final in such matters; under the Constitution, the status of the Public Service Commission is only advisory and consultative. Mandatory powers have not been conferred on the Commission, and the Constitution goes to the extent of saying that it is not obligatory on the President, Governor or Rajpramukh of a State to accept the recommendation of the Commission. The final word rests with the State and therefore the direction in the Rules to the Public Service Commission as provided in R. 7(2) does not amount to a delegation of power in its true sense.

12. It was contended by the learned Advocate-General that even the Public Service Commission can make provision for reservation under Art. 16(4) of the Constitution irrespective of the State Government or the Rajpramukh inasmuch as the State, as defined under Ant. 12 of the Constitution includes Public Service Commission. I am of opinion that there is no force in this contention. Article 12 of the Constitution runs as under : "In this Part, unless the context otherwise requires, the State, includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India." The contention of the learned Advocate-General was that the Public Service Commission conies within the category of other authorities appearing in Art. 12 with which contention I am unable to agree. Authority means power to make laws, orders, regulations and bye-laws etc., and also the power to enforce laws. The word authority literally means a body exercising power. Under the Constitution, the Public Service Commission has no such authority and it has not got even the power to implement its own decisions without reference to the State Government. Article 320(4) provides : "Nothing in Cl. (3) shall require a Public Service Commission to be consulted as respects the manner in which any provision referred to in Cl. (4) of Art. 16 may be made or as respects the manner in which effect may be given to the provisions of Art. 335." In other words, what that clause says is that the Public Service Commission need not be consulted with respect to the manner in which the provision referred to in Cl. (4) of Art. 16 may be made or with respect to the manner in which effect may be given to the provisions of Art. 335. When the Article says that the State Government need not even consult the Public Service Commission with respect to the matter covered under Art. 16(4) i.e., with respect to the making of provisions for reservation of appointments, in favour of backward classes of citizens, there is no substance in the contention that the Public Service Commission is an authority within the meaning of that word in Art. 12 and that it can make provision for reservation of appointments without reference to the State Government. Article 320(4) would have had no place in the Constitution if the Public Service Commission, was intended to be an authority within the meaning of that word appearing in Art. 12 of the Constitution and if it was intended to possess the power to make provision for reservation. At any rate, it cannot be disputed in view of the above provisions that the Public Service Commission is not an authority within the meaning of Art. 12 of the Constitution at least for purposes of Art. 16(4) thereof. This stand was taken by the present petitioner in his previous Writ Petn. No. 80 of 1955, (Mys) (A). It has been found therein that such a contention could not be put forth by him as he with full knowledge of the rules and their implications voluntarily subjected himself to the operation of the rules for making selection, I do not know how the petitioner could be heard to say again that there has been a delegation of power and that the relevant rule in this behalf is void.

13. Rule 7(3) provides that in the event of the requisite number of qualified candidates belonging to scheduled castes and tribes not becoming available as a result of the examination, it shall be open to the Rajpramukh to fill up the consequent vacancies by appointment of qualified candidates out of those belonging to backward classes. It was contended on the side of the petitioner that this rule makes discrimination in favour of backward classes. I do not think that on that score I can say that the rule is invalid or that it should be scrapped out. There is nothing wrong in allotting the posts reserved for scheduled castes and tribes to other backward classes of citizens when there are no qualified candidates belonging to the former category or in preferring a candidate belonging to a more backward class to another candidate of the backward class which has got better representation in services. This does not opened the provisions of Art. 16(4). On the other hand, this rule is in consonance with those provisions.

14. It was argued that R. 16, so far as it relates to appointment by promotion, is void and that it offends Art. 234 of the Constitution. I am not inclined to uphold this argument. Article 234 deals with recruitment of persons other than District Judges to the judicial service. The word appointments does not necessarily mean fresh appointments directly from the Bar. Appointments referred to in Art. 234 must be intended to include appointments by direct recruitment and also appointments by promotion.

15. Rule 17(4) provides that the Rajpramukh may relax all or any of these rules in regard to candidates belonging to backward communities or scheduled castes or scheduled tribes subject to their possessing the qualification prescribed in Rr. 10 and 11. It was contended that the other communities have been discriminated against, with which contention we do not concur. Rules 10 and 11 stipulate the requisite qualifications and conditions before an appointment could be made. The essential requisites to entitle a candidate for an appointment are laid down under Rr. 10 and 11. The relaxation mentioned in R. 17(4) seems, to refer to very minor and negligible matters and the Rule cannot he taken to be a discrimination against communities other than those mentioned therein. Rule 19(2) provides that the Rajpramukh may discharge any officer if, in his opinion, the work of the officer on probation is unsatisfactory or inefficient. The contention urged was that an arbitrary power has been conferred on the Rajpramukh and if he so chooses, he can discharge an officer without reference to the High Court under whose authority and supervision a judicial officer works. It was further pointed out that the rule restricting the power of the Rajpramukh and requiring him to appoint only such of the candidates whose names appeared in the list submitted by the Public Service Commission vested in the Commission a power not contemplated under Art. 320 of the Constitution and that this offended the provisions of the said Article. It was again contended that the rule giving discretion to the Commission to fix the number of marts a candidate should get in the two law papers to entitle him to be called for viva voce will lead to arbitrary exercise of that power on the part of the Commission and that the rule is therefore bad. It was next contended that the rule fixing 125 marks for viva voce out of 375 in an examination meant to select judicial officers, and the rule directing the adding up of the marks obtained in viva voce to the marks obtained in the written papers in fixing the place of a candidate gave arbitrary power to the Public Service Commission in selection of candidates and that the said rules are invalid. I do not propose to say that the Rules framed are perfect nor are they claimed to be such. As a matter of fact, the learned Advocate General frankly admitted that there are certain flaws in the rules now framed and that the State would revise them in view of the observations made by this Court in the previous Writ Petitions viz. Writ Petn. No. 24 of 1855 (Mys) (B) and Writ Petn. No. 80 of 1955 (Mys) (A). I can do nothing better than reproduce what is stated in the said cases. In W.P. No. 24 of 1955 (Mys) (B), it is observed as follows : "The procedure laid down for both these and conditions to be satisfied constitute an innovation in many respects the glaring effect of which is that the High Court, which so far used to make the selection of all persons to be appointed with the concurrence of Government has, by virtue of these, no hand at all in regard to recruitment and has only a secondary and subordinate part in the choice of persons for promotion, the proportion of which vis-a-vis recruitment is fixed as one to sis." In W.P. No. 80 of 1955 (Mys) (A) the following observation is made : "This proceeding has served to bring to light several important factors which need careful attention on the part of the authority responsible for framing rules."

16. The bona fides of the Commission has been questioned by the petitioner in this petition. What he contends is that candidates who had not obtained the required number of marks in the written law papers have been awarded higher marks in the viva voce examination, that their marks were thus made up to 40 per cent, of the total, that respondents 9 and 11 who were not called for interview at the first instance have been called for interview on the second occasion and that the appointment of respondents 9 and 11 is bad. The undisputed attitude of the Commission in refusing to furnish separately the number of marks obtained by candidates in each subject and in there declining to disclose even to the State Government the number of marks secured by each candidate to each of the law papers and viva voce examination separately and in their insisting on furnishing and in actually furnishing only the total marks obtained by each candidate has given sufficient room for the petitioner to attack the bona fides of the Commission. So far as the refusal with respect to the request of the State Government is concerned, I am of opinion that the attitude of "the Commission was unjustified. Being an advisory or a consultative body to the State Government and in view of the fact that under Art. 323 of the Constitution the Rajpramukh shall have to explain to the Legislature the reasons why in particular cases the advice of the Commission could not be accepted, it is not open to the Public Service Commission to withhold any information wanted by Government.

17. It is not correct to contend that respondents 9 and 11 were first refused an interview. The explanation given by respondent 2 is that the first batch was called for viva voce examination and that in view of R. 5, which provided that candidates who obtained not less than 40 per cent, of the total number of marks in the aggregate were eligible for selection, the second batch was called. I think this explanation is satisfactory and merely because respondents 9 and 11 were called for the viva voce examination on the second occasion, it does not necessarily mean that the Commission had no right to exercise that descretion and that they had already spent it out. In my opinion, the defects in the rules pointed out are not so grave or serious as to warrant the cancellation of the appointments made or to render the procedure adopted void ab initio. I think that for these several reasons, the petitioner cannot succeed.

18. In the result, this writ Petition fails and the same stands dismissed but without costs. HOMBE GOWDA, J. :

19. I have had the advantage of perusing the order prepared by my learned brother Sri K.N. Padmanabhiah, J. and agree with his decision that this petition should be dismissed. I wish to add a word or two in support of the conclusions arrived at by my learned brother on some of the contentions raised by the petitioner.

20. The claim of the petitioner for inclusion in the list of candidates prepared and forwarded by respondent 2 to respondent 1 for being submitted to the Rajpramukh for approval and for being appointed as Munsiffs in preference to some of the candidates that were selected and appointed as Munsiffs is based on the ground that the examination conducted by the "Commission" was a competitive one. It was asserted by the petitioner that he had secured the third rank in the examination and as such had a right to be included in the list respondents land 2 have admitted in their counter-affidavits that the petitioner had secured the seventh rank in the examination. The main question, therefore, for consideration is whether the examination conducted by the "Commission" was a competitive one or a selective one. The examination for selection of candidates to be included in the list of candidates eligible for being appointed as Munsiffs is, it is not disputed, held under the rules called "Mysore Munsiffs (Recruitment and Promotion) Rules, 1934". It is not disputed that those rules are framed under Arts. 234 and 309 of the Constitution of India. A Cursory perusal of the several provisions of these rules will make it abundantly clear that the examination conducted by the "Commission" under the rules is not competitive but selective. The examination, as could be gathered from the rules is one meant to find out the competency of candidates for being appointed as Munsiffs. The petitioner, who is a practising Advocate of this Court, should be presumed to have read the rules and taken the examination with full knowledge of all the rules and their implications and he cannot, therefore, in my opinion, now be heard to contend that he had any misconception about the nature or the scope of the examination that was being conducted by the "Commission". It was held by this Court in W.P. No. 80 of 1955 (Mys) (A), filed by this very petitioner that it is not possible for this Court to issue a direction that an examination which under the rules is selective should be turned into being a competitive one. There is, therefore, no substance in the contention of the petitioner that he understood the examination to be a competitive one and as such he has a right to be included in the list of eligible candidates in preference to respondents 3 to 12. It is not disputed that respondents 3 to 12 are among the list of candidates published in the Mysore Gazette dated 30-12-1954 as successful in the examination. So long as the selection of the candidates for inclusion in the eligibility list is made from the list of candidates that have passed in the examination conducted by the "Commission", the petitioner, in my opinion cannot have any valid grievance against the list.

21. It was contended by the petitioner that the Commission had called for viva voce examination some of the candidates who had failed to secure the minimum number of marks in the two law papers in the written examination and that it was done so to show favouritism or to enable some of their favourite candidates to become eligible for selection on the strength of the marks awarded to them in the viva voce examination. In the counter-affidavit filed by the Secretary of the Public Service Commission, on behalf of respondent 2, the Secretary while admitting that some of the candidates who were not summoned for oral examination at first were subsequently summoned has explained the reasons for such a course as follows : "It is true that at one stage the Commission called for viva voce examination only some of the candidates, Later however, the Commission felt that in the light of R. 5 of the Regulations for the conduct of examinations it was desirable that all the candidates should be called for viva voce examination. The said rule reads as follows : Candidates who obtain not less than 40 per cent. of the total number of marks in the aggregate will be eligible for selection. As the marks obtained in viva voce forms part of the total number of marks in the aggregate, it was thought that it would be unfair to the candidates to exclude them from the viva voce and the Commission therefore called the remaining candidates in another batch. It is not correct to state or to suggest that only respondents 9 and 11 had not been called for viva voce in the first instance. The first batch that was called for viva voce was 52 in number. The second batch that was called for viva voce is 29 in number. The decision of the Commission to call for all the candidates was not exercised arbitrarily and was well within its power. Allegations of mala fide are baseless and are denied. I refute the suggestion that respondents 9 and 11 (along with other candidates) were given marks in the interview otherwise than in any objective manner." I do not wee any valid reasons to doubt the bona fides of "the statements made on behalf of the "Commission", particularly when the action of the "Commission" was consistent with the Rules. It was urged by Sri S.K. Venkata Ranga Iyengar, the learned counsel for the petitioner that the attitude adopted by respondent 2 in refusing to send the details of the marks obtained by the several candidates in the written and oral examinations separately clearly indicated want of bona fides on the part of the "Commission". The learned Advocate-General on the other hand contended that no useful purpose would be served by compelling respondent 2 to submit the details of the marks obtained by the several candidates, inasmuch as, this Court is not competent to sat in judgment and to assess the correctness of the valuation of the papers and the marks given to each candidate either of the written or of the viva voce examination. I do not think it is necessary to examine the arguments bearing on this question. This Court, in my opinion, cannot take upon itself the function of the "Commission" or of the examiners selected by the "Commission" and revalue the papers or scrutinise the marks given by the "Commission" to the several candidates in the viva voce examination and modify the results. Doubtless it is the "Commission" constituted under the Rules that had the authority to conduct the viva voce examination and to assess the relative merits of the several candidates. There is thus no substance in this contention of the petitioner also.

22. The other objection raised by Sri S.K. Venkata Ranga Iyengar, the learned counsel for the petitioner is to the representation of castes or communities being a consideration for the selection of the candidate. It was urged that the selection of respondents 4 to 12 as candidates belonging to the backward classes without making necessary provision for reservation in their favour under Art. 16(4) of the Constitution of India and without determining as to what classes or communities of the State are backward and are inadequately represented in the public services so as to entitle them to claim that concession is ultra vires the Constitution. Article 16 of the Constitution reads thus : "(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under any State specified in Sch. 1 or any local or other authority within its territory, any requirement as to residence within that State prior to such employment or appointment. (4) Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State. (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs, of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination." It is clear from the above that Cl. (4) is an exception to the general provisions of the main article. This clause empowers the State to make such provision as it may deem necessary for the purpose of securing adequate representation to the backward classes of the State. Two conditions are necessary for the application of this Clause : (1) The Community or class for which the State makes provision is backward in the opinion of the State. (2) That community or class in the opinion of the State is not adequately represented in the services under the State. The term "Backward class" has not been defined anywhere in the Constitution of India. In my opinion it is wide enough to include all kinds of backwardness, social, educational, economical or any other kind. Doubtless the State is the sole authority to classify the communities as "backward classes". It was submitted that in the rules annexed to the "Mysore Munsiffs (Recruitment and Promotion) Rules, 1954" it has been stated that backward classes for the purposes of the rules are those that are treated as such by the orders issued by the Government from time to time. The learned Advocate-General submitted that the order of the Government of Mysore determining the backward communities was passed in the year 1921 and was based on the Miller Committee Report and the same is still in force. He submitted further that the State Government have been awaiting the orders of the Central Government on the report of the Backward Class Commission (appointed by the President of India under Art. 340 of the Constitution of India) to have a sound and reasonable basis to reclassify the backward classes under Art. 16(4) of the Constitution of India. The need to determine the communities that are backward and are inadequately represented in the services of the State to avoid unnecessary bickering and to avoid the possibility of the present uncertain provision being used by any particular authority to the advantage of a particular community and to the detriment of the less fortunate community, has been pointed out by this Court previously in the course of the orders passed in the other two Writ Petitions filed challenging the validity of the Mysore Munsiffs (Recruitment and Promotion) Rules, 1954. It is necessary that specific provision is made for reservation of appointments for backward classes to be in conformity with the provisions of the Constitution of India and to avoid unnecessary confusion. There is no substance in the contention of the learned Advocate for the petitioner that in the absence of specific provision for reservation made under Art. 16(4), Constitution of India in favour of backward and inadequately represented classes no reservation can be made in favour of any of the backward classes. The learned counsel for the petitioner tried to support his contention by referring to the decision of the Supreme Court in AIR 1951 SC 229 (C). This decision, in my opinion, does not support the contention of the petitioner. All that this decision laid down was that provision for reservation of posts in the Communal G.O. for communities other than Harijansi and Backward Hindus was void and illegal. As a matter of fact reservation of posts for Harijans and backward Hindus in the Communal G.O. of Madras was held to be valid. Therefore, there is no substance in this contention of the petitioner.

23. The several other contentions raised by the petitioners counsel are dealt with at length by my learned brother in the course of his order. I have nothing more which I can usefully add. I therefore agree with my learned brother that this petition should be dismissed. Petition dismissed. AIR 1956 MYSORE 28 (Vol. 43, C. 9 April) "Brahmeswara v. Rudriah" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA, C.J. and HOMBE GOWDA, J. ( Division Bench ) Brahmeswara Devaru and others, Appellants v. Rudriah and others, Respondents. Regular Appeals Nos. 119 to 140 of 1952-53 against award of Sub-J., Shimoga in Misc. Case Nos. 12, 14, 16, to 18, 20 to 22, 25 to 27, 31, 32, 35, 36, 40, 41, 43 to 45 and 61 of 1951-52, D/- 14 -10 -1955. Land Acquisition Act (1 of 1894), S.54, S.18, S.30 - ACQUISITION OF LAND - APPEAL - HIGH COURT - Forum of appeal - Order on composite reference u/S.18 and S.30 - Appeal lies to High Court as an award. It is no doubt true that orders made on a reference under Section 30, Land Acquisition Act settle disputes about apportionment of compensation, are to be deemed as decrees and appeals against them are to be filed in the Courts having, jurisdiction according to the amounts involved. But when there is a composite reference under Sections 18 and 30 to the Civil Court for adjudication, of the adequacy of compensation and also the persons to whom it is due and both these are disposed of by one order, the order is an award within, the meaning of S. 54 and the forum of appeal against it will be the High Court irrespective of whether the appeal is directed against the order as to the amount of compensation only or against the order about persons to whom it is declared to-be payable. 23 Cal 526 and AIR 1942 Oudh 141, Relied on. AIR 1922 PC 80 and AIR 1934 All 260 (FB) and AIR 1931 Mad 586, Dist. (Para 2) Anno : AIR Man Land Acq. Act, S. 8 N. 8, S. 30, N. 6; S. 54, N. 2, 6. Cases Referred : Courtwise Chronological Paras (A) (V 9) AIR 1922 PC 80 : 48 Cal 481 (PC) 2 (B) (V 21) AIR 1934 All 260 : 56 All 656 (FB) 2 (C) (V 18) AIR 1931 Mad 586 : 54 Mad 722 2 (D) (96) 23 Cal 526 3 (E) (V 29) AIR 1942 Oudh 141 : 17 Luck 506 2 Asst. Advocate-General, for Appellants; S.K. Venkataranga Iyengar (in RA Nos. 121, 122 and 129) and C.C. Veerappa (in RA Nos. 119, 120, 122 to 127, 130 to 140), for Respondents. Judgement VENKATARAMAIYA, C. J. :- These are appeals filed under Section 54, Land Acquisition Acts by the Amildar, Shimoga Taluk, on behalf of three Muzrai Institutions against the order of the learned Sub-Judge, Shimoga, disallowing claim of the appellants to the compensation-awarded for compulsory acquisition of lands in Mathodu village, Shimoga Taluk. The Land Acquisition Officer awarded compensation for the wet lands at Rs. 200/- per acre, for the dry lands at a Rs. 75/- per acre and directed the amounts to be paid to the appellants. The appellants claim to the amount and the adequacy of the compensation were both questioned by the persons in actual possession of the lands. They sought for and obtained a reference to the Court for determination of both these questions. The learned Sub-Judge confirmed the award with respect to the amount payable but held that the amounts were payable to the persons in possession of the lands and not the Appellants. The decision as regards the amount payable is not appealed against by either party and the only question raised in the appeal is as to who should get it.

2. A preliminary objection is taken by the Respondents to the maintainability of the appeal in this court on the ground that the order to the extent it affects rights of persons to obtain payment has to be treated as a decree and according to the provisions relating to appeals from decrees, these appeals should have been filed in the Court of the District Judge. If the orders are to be treated as decrees, there can be no doubt the objection has to prevail as the amounts involved, are such as to render the appeals possible and necessary in the Court of the District Judge. In support of the contention that orders which determine rights of persons to receive the amount of compensation are not awards from which appeals lie to this court under Section 54 of the Act reliance is placed on - Mt. Sabitri Thakurain v. Savi AIR 1922 PC SC (A); - Makhan Lal v. Secy, of State, AIR 1934 All 260 (FB) (B), and - Bagavathi Doss v. Sarangaraju Iyengar, AIR 1931 Madras 586 (C) by Shri S.K. Venkataranga Iyengar. These decisions no doubt are authorities to show that orders made on reference under Section 30 of the Act settle disputes about apportionment of the money, are to be deemed as decrees and appeals against these are to be filed in the courts having jurisdiction according to the amounts involved. The circumstances under which the reference was made in these cases make it difficult to uphold the objection on the strength of these cases. It is seen that what was sought for in the applications for reference relating to these cases was not merely the determination of the persons entitled to the amount but also the adequacy of compensation and Section 30 as well as S. 18 of the Act are both mentioned for the purpose. Section 30 relates only to apportionment being subject to reference but Section 18 is comprehensive. Even so Sri Venkataranga Iyengar argued that "Award" mentioned in Section 54 as being appealable to the High Court must be construed as a decision of matters other than apportionment and for this referred to other sections in which the word is found. The argument if correct, requires that when, as in these cases, there is a composite reference to the civil court for adjudication of the amount of compensation and also the person, to whom it is due, both these are, disposed of by one order, the forum for appeal against it cannot be the same if the grievance is only about the amount or if it is only about the persons to whom it is declared to be payable.

3. The appeal concerning the former has to be filed always in the High Court and in the latter not necessarily there. The order therefore has to be split up and portions thereof are to be made use of for preferring separate appeals in different courts. A situation like this was considered in - Balaram Bharamaratar v. Sham Sunder Nerendra, 23 Cal 526 (D). Where the question was whether an appeal against an order for apportionment of the amount could be filed in the Court of a District Judge. The learned Judges observed : "....... .If the decision of the Judge upon the question of the amount of compensation is to be called an award, there is no reason why his decision upon the question of apportionment should not also be called by the same name. Moreover it appears to us that by substituting Sections 53 and 54 of the present Act for Sections 36 and 39 of the old Act the Legislature has intentionally made all appeals in Land Acquisition cases to lie to the High Court; and the contention of the petitioner if given effect to would lead to this anomoly that whereas an award as far as it relates to the fixing of the amount of compensation being clearly an award within the meaning of Section 26 and therefore of Section 54 can be questioned by way of appeal only before the High Court, if in addition to a, dispute as to the amount of compensation there is also a dispute as to how it is to be apportioned and an order is made as to such apportionment a different court is to have jurisdiction, in hearing an appeal from that part of the order. That is an anomoly which in the absence of more clear and express language we do not think that the legislation can be credited with having intended. That being so, we must hold that the learned District Judge was right in his view that the appeals lay not to his court but to this Court". The case in - Mahabir Prasad v. Mt. Dharma, AIR 1942 Oudh 141 (E) was also one in which a similar question was raised and the same view was expressed. Reference is made there to Section 31 which so far as is relevant reads thus : "(1) Upon making an award under Section 11 the Deputy Commissioner shall tender payment of the compensation awarded to persons interested entitled thereto according to the award ........ (2) If they shall not consent to receive it or if there be - any dispute as to the title to receive the compensation - the Deputy Commissioner shall deposit the amount of the compensation in the court to which a reference under Section 18 would be submitted". The learned Judges observe : "when there is a reference under S. 18 the decision of the court must be an award but not when the decision is not on a reference under that section. An order on a reference under S. 30 or an order under S. 32 is therefore not an award". The cases including that of the Privy Council are distinguished as being those in which the reference was under sections other than Section 18. Even if the District Judge is assumed to have jurisdiction to entertain the appeal, it is conceded that there is no impediment to this Court disposing them off. The preliminary objection therefore fails. (3) Turning to the merits of the case it is seen that while the respondents have produced receipts for payment of kandayam, adduced evidence to show enjoyment of the lands for a number of years, there is hardly any material placed by the Appellants to support their title to toe properties. The inam title deed Exhibit in relied upon is not of much help as what can be made out from it is that the village in which the lands were situated is a Devadaya inam which does not necessarily imply that all the lands in the village are also Devadaya. This is evident from the fact that admittedly there are several lands in the same village with respect to which kandaya is payable to Government. Some of the lands at least relating to the present acquisition are of this category as is spoken to by the respondents and their witnesses. The clerk of the Taluk Office examined on behalf of Appellants has stated that, there is a register in which the amount due to the Temples from the occupant of each land is noted. That, register or any other account showing the amount recoverable from any holding is not produced. The clerk further admits that the lands alleged to belong to the temples are situated in many villages. Some of the respondents have sworn that they never paid any rent to the temples. The khatha of some lands is made out in the name of the occupants. There have been instances in which the lands were auctioned for arrears of land revenue. In the absence of any document or proof that the lands were endowed for the upkeep of the temples or that there was any payment of cash or delivery in kind by the persons in possession of the lands, it is difficult to hold that the Appellants are entitled to the amount awarded as compensation. Assuming that they have any right, it can only be that of a superior holder the nature and extent of which are left for speculation. The persons or officers responsible for safeguarding the interests of the temples have not exhibited the care and attention necessary to satisfactorily support the claim or even indicate the basis for it. In view of this there is no option but to dismiss the appeals but without costs. Appeals dismissed. AIR 1956 MYSORE 30 (Vol. 43, C. 10 April) "Veerappa v. Gurubasappa" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) Meti Veerappa, Plaintiff, Petitioner v. Gurubasappa, Defendant, Respondent. Civil Revn. Petn. No. 221 of 1955, D/- 29 -11 -1955, against order of Munsiff, Sagar, D/- 16 -2 -1955. Negotiable Instruments Act (26 of 1881), S.118(a) - NEGOTIABLE INSTRUMENT - PROMISSORY NOTE - EXECUTION - EVIDENCE - Nature of presumption under - Suit on promissory note - Admission of execution - Presumption as to consideration and onus - Onus when shifts to plaintiff. Evidence Act (1 of 1872), S.101, S.102, S.103. The presumption arising under S. 118(a), Negotiable Instruments Act is a rebuttable presumption. (Para 5) Where in a suit on the basis of a promissory note the defendant admits execution of the suit pro-note but denies a part of the consideration, the presumption under S. 118(a) would come into play and the burden of proof of showing that the pro-note was not supported for a part of the consideration would be on the defendant. But if the plaintiff in his reply avers that no cash consideration passed under the suit pronote and that the same was executed in satisfaction of a debt due on a previous pro-note which fact is denied by the defendant in his rejoinder, these circumstances are sufficient enough to rebut the presumption under S. 118(a) and would have the effect of shifting the onus of proof with respect to the passing or consideration on the plaintiff and the plaintiff should prove the passing of consideration to the extent disputed by the defendant. (Para 6) Anno : AIR Man., Neg. Inste. Act, S. 118, N. 1, 2; Evi. Act, Ss. 101 to 103 N. 4, 24. R.V. Sreenivasaiya, for Petitioner; B.S. Puttasiddiah, for Respondent. Judgement This is a revision petition filed by the petitioner-plaintiff against the order of the learned Munsiff of Sagar, on I.A. No. 1 in O.S. No. 183 of 1954 refusing to delete the first issue framed in the suit.

2. The facts that have given rise to this petition are briefly as follows :

3. The petitioner was the plaintiff and the respondent the defendant in the lower Court. Plaintiffs suit was based on a pronote executed by the defendant for a sum of Rs. 800/-. Including interest and notice charges, plaintiffs claim came up to Rs. 1093/- odd. The defendant admitted the execution of the suit pronote and contended that it was supported by consideration only to the extent of Rs. 600/- that the said sum of Rs. 600/- plus the interest due thereon was subsequently paid to the plaintiff on 6-2-52, that the debt has thus been discharged and that out of ill will the suit has been filed on the discharged document. In his reply statement, the plaintiff denied the allegations made in the written statement of the defendant and contended that the suit pronote was executed in satisfaction of debt due under another pronote executed by the defendant on 17-11-50, that the discharge pleaded was false and that he was entitled to a decree as per plaint. In his re-joinder statement, the defendant denied having executed the pronote on 17-11-1950 and affirmed the allegations made in his written statement.

4. On these pleadings, the learned Munsiff framed the following issues : (1) Whether the suit pronote was executed by the defendant in discharge of another pronote dated 17-11-50 as alleged by the plaintiff ? (2) Whether the suit pronote is supported by consideration to the extent of Rs. 600/- only as pleaded by the defendant ? (3) Whether the plea of discharge of Rs. 636/- in full satisfaction of the suit pronote is true ? (4) To what reliefs, if any, are the parties entitled ? The plaintiff made an application under O. 14, R. 5, Civil P.C. contending that the first issue was unnecessary in view of the admission of execution of the suit pronote by the defendant and that the same should be deleted. This application was opposed by the defendant and the learned Munsiff dismissed this application and as against that order, the revision petition is filed.

5. It appears to me that the order of learned Munsiff has to be upheld. Reliance was placed on the side of the petitioner on S. 118, Negotiable Instruments Act. That section provides that it must be presumed, until the contrary is proved, that a negotiable instrument was made for consideration. This proposition of law is not, and cannot be, disputed. A recital of receipt of consideration in a document is sufficient proof of consideration having passed under it. The presumption arising under S. 118, Negotiable Instruments Act is a rebuttable one and the point for consideration is whether the said presumption arising under S. 118 is rebutted in this case. I think it is.

6. The allegation in the plaint is that the defendant executed the suit pronote for consideration. The defendant admitted execution and denied consideration to the extent of Rs. 200/- If things had stopped there and if the Court had framed the first issue on the basis of those pleadings, certainly there would have been such force in the contention of the petitioner that the first issue was unnecessary and that the same should be deleted, because, on account of the admission of execution of the suit pronote by defendant, the presumption arising under S. 118, Negotiable Instruments Act came into operation and the burden of proof of showing that the document was not supported by consideration would be on the defendant. But, in this case, the pleadings did not stop merely there. In his reply statement the plaintiff, in order to substantiate his contention that the pro-note was supported by consideration, averred that no cash, was paid under the said document and that the same was executed in satisfaction of a debt that was due from the defendant on a previous pronote executed by him on 17-11-50. Thus it is seen that the plaintiff shifted the ground regarding the mode or manner in which consideration passed for the suit pronote. This averment that the defendant had previously executed a pronote on 17-11-50 is denied by the defendant in his rejoinder. If the defendant had admitted the execution of that pronote also, the contention of the plaintiff that the first issue was unnecessary could have been upheld. The admission on the part of the plaintiff that no cash consideration passed under the suit document and the averment that it was executed in satisfaction of a debt due under another pronote, which fact has been denied by the defendant, is of a sufficiently serious character which, in my opinion, has the effect of shifting the onus of proof with respect to the passing of consideration on to the plaintiff. The circumstances referred to above are sufficient enough to rebut the presumption arising under S. 118, Negotiable Instruments Act and the plaintiff should prove the passing of consideration to the extent disputed by the defendant.

7. It was contended by the learned counsel for the petitioner that the first issue as framed will have the effect of disallowing the entire claim of the plaintiff if he failed to prove the pronote of 17-11-50. I do not think such a contingency can happen. The defendant has dearly admitted receipt of consideration to the extent of Rs. 600/- under the suit pronote. The plaintiff will have to prove pronote of 17-11-50 for the purpose of showing that it is supported by consideration to the extent of Rs. 200/- also which has been disputed by the defendant. Even if plaintiff fails to prove the first issue, his suit can fail only to the extent of Rs. 200/- and not to the extent of the whole claim. For these various reasons, I hold that the first issue as framed should stand.

8. In the result, the order of the learned Munsiff is confirmed, and this revision petition stands dismissed but without costs. Revision dismissed. AIR 1956 MYSORE 31 (Vol. 43, C. 11 April) "State of Coorg v. Assu" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA, C.J. AND PADMANABHIAH, J. ( Division Bench ) State of Coorg, Appellant v. P.K. Assu and Another, Respondents. Criminal Appeal No. 108 of 1953, D/- 5 -9 -1955, against order of Munsiff and First Class Magistrate of Virajpet D/- 9 -7 -1953. Essential Supplies (Temporary Powers) Act (24 of 1946), S.7 - ESSENTIAL COMMODITIES - CRIMINAL TRIAL - Notification of Chief Commissioner of Coorg, dated 28-02-1949 - Contravention of - Conviction - Mens rea, if essential. Penal Code (45 of 1860), S.40. Criminal Trial - Mens rea. Ordinarily, in penal statutes intention is considered to be a necessary factor for the purpose of conviction. If this is to be dispensed with the statute must provide for it. (Para 3) According to the notification of the Chief Commissioner of Coorg, dated 28-2-1949, export of food-grains without a permit is a punishable offence. Where the cleaner and the driver of a lorry which had been hired by a person for his use had no knowledge that the lorry contained some bags of rice and paddy underneath some bags of charcoal and the lorry was stopped at the frontier of Coorg : Held, that the driver and the cleaner could not be held guilty of contravening the notification by exporting the food-grains without the permits, and could not be convicted for an offence under S. 1. (Para 4) Anno: AIR Man, Penal Code, S. 40 N. 1. Cases Referred : Courtwise Chronological Paras (A) (V 34) AIR 1947 PC 135 : 26 Pat 460 (PC) 3 (B) (V 38) AIR 1951 SC 204 : 52 Cri LJ 768 (SC) 3 (C) (V 34) AIR 1947 Pat 236 : 48 Cri LJ 53 4 (D) (V 31) AIR 1944 Lah 339 : 46 Cri LJ 1 (FB) 4 Asst. Advocate General, for Appellant; P.M. Nanaiya, for Respondents. Judgement VENKATARAMAIYA, C. J. :- This is an appeal filed by the State of Coorg against the acquittal of the Respondents who were tried in the Court of the Munsiff and First Class Magistrate, Virajpet, in C.C. No. 416 of 1953, for having exported food-grains out of Coorg without a permit on 19-2-1953. There were four accused in the case of whom the 3rd and 4th accused were discharged and A-1 and A-2 who are the respondents were acquitted.

2. The evidence let in by the prosecution is sufficient enough to prove that a lorry of which A-1 is the driver and A-2 the cleaner contained some bags of paddy and rice underneath some bags of charcoal when it was stopped and searched by the Police. According to the notification of the Chief Commissioner of Coorg, dated 28-2-1949, exports of food-grains without a permit is a punishable offence. Admittedly the respondents had no permit with them for removal of the rice and paddy found in the lorry outside the limits of Coorg and the lorry would have left the frontier of Coorg but for its being stopped. The learned Magistrate considered that this is not sufficient to render them guilty as there was no proof of their having had knowledge of the paddy or rice bags placed in the lorry. A-3 is the person who had hired the lorry for use, and P.W. 5, the owner of the vehicle has stated that at the time of hiring neither of the accused was present. The question therefore is whether a person is culpable for being a driver or cleaner of a lorry when there are food-grains in it without necessary permit and without their knowledge.

3. Mr. Channappa, learned Assistant Advocate-General, argued that the provision for contravention of which the accused are prosecuted is special in character and that knowledge or intention to commit the act is not essential to constitute the offence. Ordinarily, in penal statutes intention is considered to be a necessary factor for the purpose of conviction. If this is to be dispensed with, the statute must provide for it. This is enunciated in - Srinivas Mall v. Emperor, AIR 1947 PC 135 (A) thus : "It is of the utmost importance for the protection of the liberty of the subject that the Court should always bear in mind that, unless the statute, either clearly or by necessary implication, rules out mensrea as a constituent part of a crime, an accused should not be found guilty of an offence against the criminal law unless he has got a guilty mind". while dealing with a case under the defence of india rules in which a master was held to be liable for the acts of his servant by the Courts in India. Their Lordships of the Privy Council set aside the conviction and observed that such offences are not within the limited and exceptional class of offences which may be held to be committed without a guilty mind. This view is referred to with approval In - Hariprasad Rao v. The State, AIR 1951 SC 204 (B) which was a case under the Motor Spirits Rationing Order. The principle to be applied to this case cannot be different as the servants are sought to be made liable for what is done by the master or the agent for the fault of the principal.

4. The evidence in this case shows that both the accused, were absolutely ignorant of what was loaded in the lorry. P.W. 5 has stated that at the time of loading the driver and the cleaner would go out to attend to their own work and that A-3 stated that the lorry was needed for carrying charcoal. Servants and carriers cannot in the absence of a rule be expected or required to ascertain the contents of the box or vehicle assigned to their charge for transit or to satisfy themselves about the nature of the articles to be carried by them, in the absence of a clear rule to that effect. For a conviction under the Arms Act it is held in several cases that possession of a gun or explosive should be conscious and that the bare fact of its, being found with a person or in his premises without the person being aware of it is not sufficient. (See - Bhekha Ahir v. Emperor, AIR 1947 Pat 236 (C), and - Emperor v. Santa Singh, AIR 1944 Lah 339 (PB) (D). It is rather curious that the discharge of A-3 who engaged the lorry and who got the lorry loaded, is not questioned and that A-1 and A-2 apparently ignorant of what was loaded and acted under the direction of A-3 are sought be punished.

5. There is no reason to interfere with the acquittal. The appeal is dismissed. Appeal dismissed. AIR 1956 MYSORE 32 (Vol. 43, C. 12 April) "A.G. Maban v. Bank of Mysore" MYSORE HIGH COURT Coram : 2 PADMANABHIAH AND SREENIVASA RAU, JJ. ( Division Bench ) A.G. Maban, Appellant v. Bank of Mysore Ltd., Respondent. Misc. Appeal No. 78 of 1954, against Order of Second Addl. Dist. Judge, Bangalore, in Ex. Case No. 67 of 1953, D/- 23 -9 -1935. Civil P.C. (5 of 1908), O.40, R.1 - APPOINTMENT - RECEIVER - CIVIL COURT - Receiver if can be appointed for a company - Civil Court can appoint receiver in respect of company - AIR 1925 Cal 817, Dissented from. The provisions of O. 40, R. 1 are applicable to a case where the debtor happens to be a company. Hence civil Courts have got jurisdiction to appoint Receivers at the instance of a creditor in respect of assets belonging to a company in deserving cases when it is found just and convenient. AIR 1950 Mad 116; AIR 1949 All 112 and AIR 1946 Lah 193, Foll, AIR 1925 Cal 817, Dissented from. (Para 5) Anno : AIR Com., C.P.C., O. 40, R. 1, N. 17. Cases Referred : Courtwise Chronological Paras (A) (V 37) AIR 1950 Mad 116 : 1949-2 Mad LJ 382 4 (B) (V 38) AIR 1949 All 112 : ILR (1948) All 432 4 (C) (V 33) AIR 1946 Lah 193 : 225 Ind Cas 362 4 (D) (V 12) AIR 1925 Cal 817 : 52 Cal 513 5 K. Sriranganathan, for Appellant; D.R. Chandrasekhariya, for Respondent. Judgement PADMANABHIAH, J. :- This is an appeal preferred by the appellant and Judgment-debtor against the order of the learned Second Additional District Judge, Bangalore City, allowing I.A. No. III in Ex. Case No. 67 of 1953 filed for the appointment of a Receiver.

2. The petitioner is the 2nd judgment-debtor and the respondent the decree-holder in Ex. Case No. 57/1953. The decree-holder filed an application as per IA. No. III praying for the appointment of a Receiver. This application was allowed by the learned District Judge, and as against that order this appeal is preferred.

3. The only ground urged on the side of the appellant is that the third judgment-debtor, of which the 2nd judgment-debtor is the Managing Director, is a public limited company and that the Court below had no jurisdiction to appoint a Receiver in other words, the argument advanced was that the Companies Act makes provision for the management of the business of a company and that civil Courts have no jurisdiction to appoint Receivers in respect of properties belonging to a company. We are not prepared to accept this proposition of law as propounded by the learned Counsel for the appellant.

4. The jurisdiction of civil Courts to appoint Receivers in respect of properties of a company is recognised by the High Court of Madras in the case reported in - Sinaprakasa Mudaliar v. Samarapuri, AIR 1950 Mad 116 (A), by the High Court of Allahabad in the case reported in - Raghunath Prasad v. Budaun Electric Supply Co. Ltd., AIR 1949 All 112 (B), and by the High Court of Lahore in the case reported in - Ratanlal v. Jagadhri Light Rly. Co. Ltd., AIR 1948 Lah 193 (C). In the Madras case, their Lordships have held that though the Companies Act makes provision in a vast majority of cases for dealing with circumstances in which a company was mismanaged, the Act did note exclude the jurisdiction of a civil Court to appoint a Receiver for a going concern. In the Allahabad case also, a Receiver was appointed for the management of the business of a company. The same view is taken by the Lahore High Court in the case cited above.

5. The learned Counsel for the appellant relied on a decision reported in - Kailash Chandra v. Sadar Munsif Silchar, AIR 1925 Cal 817 (D). No doubt, that case supports the view as enunciated by him. Their Lordships therein have held that a civil Court has no jurisdiction to appoint a Receiver to conduct the business of a company unless a Receiver is appointed in a debenture-holders action. This view is not endorsed by their Lordships of the Lahore High Court in the case adverted to above. With the greatest respect to the learned Judges, we are inclined to take the view as expressed by the other High Courts referred to supra. It will be noticed that all these cases refer to the management of the company itself and relate to disputes between share-holders and the office-bearers of the company. The present case, however, is one in which a creditor has filed a suit against a debtor, and it so happens that the debtor is a company. The learned Counsel for the petitioner has not shown that the provisions of the Civil Procedure Code of which Order 40, Rule 1, is one, would not be applicable to a case where the debtor happens to be a company. We hold that civil Courts have got jurisdiction to appoint Receivers at the instance of a creditor in respect of assets belonging to a company in deserving cases when it is found just and convenient.

6. In the result, the order of the learned District Judge is confirmed and this appeal stands dismissed with costs. Advocates fee Rs. 25/-. Appeal dismissed. AIR 1956 MYSORE 33 (Vol. 43, C. 13 May) "Chennappa v. State of Mysore" MYSORE HIGH COURT Coram : 2 SREENIVASA RAU AND H. HOMBE GOWDA, JJ. ( Division Bench ) R. Chennappa, Petitioner v. State of Mysore and others, Respondents. Writ Petn. No. 136 of 1955 connected with Civil Petn. No. 92 of 1955, D/- 14 -11 -1955. (A) Mysore Town Municipalities Election Rules (1951) (framed u/S.23), R.11 - Mysore Town Municipalities Act (22 of 1951), S.208- MUNICIPALITIES - ELECTION - Municipalities - Intention behind procedure indicated in Rule - Government if can arrive at independent conclusion - Inquiry by Government. The intention behind the procedure indicated in R. 11 is to enable the inquiry to be held by a subordinate officer, to make the resulting material available to Government and to enable the Government, with the assistance of the Deputy Commissioners opinion to arrive at its own conclusion. Whether the opinion of the Deputy Commissioner is in favour of setting aside the election or of allowing it to remain undisturbed, there is nothing in the language of R. 11 to fetter the discretion of Government in arriving at an independent conclusion. Though there is no specific provision for Government directly holding an inquiry under R. 11, there is nothing in that rule which prevents Government from holding an inquiry if, in its view, it is necessary to do so. (Paras 3, 4) (B) Mysore Town Municipalities Election Rules (1951), (framed u/S.23 and S.208) - , Mysore Town Municipalities Act (22 of 1951), R.11 - MUNICIPALITIES - ELECTION - APPEAL - WRITS - Municipalities - Decision on appeal petition questioning ejection - Character of - Principles of judicial approach if should be followed - Decision based on material obtained behind back of party affected - Issue of writ of certiorari. Constitution of India, Art.226. A decision on an appeal petition questioning the election of a candidate as president of a Town Municipality is clearly of a judicial character. Conceding that it is not necessary for the functionary invested with the right to inquire to observe all the formalities of judicial procedure in a Court of law, principles of a judicial approach are required to be followed in arriving at a decision. One of the unchallenged principles is that the parties affected must be apprised of the material appearing against them and must be given a chance of meeting it or having their say about it. A decision based on material gathered behind the back of the party affected is opposed to principles of natural justice, and writ of certiorari will issue against such decision. (Paras 8, 9) Anno : AIR Com. Const. of India, Art. 226, N. 59. Cases Referred : Courtwise Chronological Paras (A) (V 37) AIR 1950 SC 222 : 1950 SCR 621 (SC) 8 (B) (V 39) AIR 1952 Mad 605 : ILR (1952) Mad 351 9, 10 (C) (V 39) AIR 1952 Cal 808 9 (D) (V 42) (S) AIR 1955 SC 65 : 1955 SCR 941 (SC) 9

V. Krishnamurthi, for Petitioner; Advocate-General (for No. 1) and H. Munivenkatappa (for Nos. 2-9), for Respondents. Judgement SREENIVASA RAU, J. :- This writ petition relates to the election to the office of the President of the Anekal Town Municipality held on 19-5-1954. While under S. 17, Town Municipalities Act the term of office of Municipal Councillors elected at a general election is 4 years, under S. 23(11) the Presidents term of office is 2 years. The general elections were held in March 1952. The period of office of the first president having expired in April 1954 the election of a president for the remaining period was scheduled to be held on 19-5-1954. The present petitioner and respondent 2 were the competing candidates. At the election each of them got 7 votes. Lots were drawn and they went in favour of the petitioner who was accordingly declared to have been elected president. Thereupon respondents 2 to 8 filed an appeal before the Deputy Commissioner, Bangalore District, under R. 10 of the rules framed under S. 23(2) and (3) and S. 208. Mysore Town Municipalities Act and notified as No. L.8606-ML.150-51-3, dated 12-11-1951. The main allegation in the appeal seems to have been that one of the councillors respondent 3 Yelenarasappa, was removed by force on the night of 18-5-1954 and kept away from the place where the election took place with a view to prevent him from exercising his vote, that this was done at the instance of the present petitioner as it was known that the said councillor would exercise his vote in favour of the rival candidate and that his vote would have resulted in the success of the rival candidate respondent 2 since the two candidates had (without reckoning the said vote) obtained an equal number of votes. The Deputy Commissioner remitted the matter for inquiry to the Sub-Division Officer and after receipt of the records of the inquiry reported the proceedings together with his opinion to Government through the Commissioner for Local Self-Government. The election petition was heard on 4-1-1955 by the Minister for Local Self-Government, both the parties being represented by Counsel. On 22-7-55, the Minister visited Anekal, met most of the Councillors and on 26-8-55 orders were passed holding that respondent 3 had been wrongfully prevented from exercising his vote at the presidential election and that there had been no free and fair election and declaring the election of the petitioner as President invalid and directing a fresh election to be held.

2. This order is challenged as being without jurisdiction on the grounds (1) that under R. 11 Government had no power to examine any witnesses or make further inquiry and had to act only on the basis of the report sent by the Deputy Commissioner and (2) that the inquiry conducted by the Minister was against the principles of natural justice as he called one person at a time, heard him in camera and in the absence of the petitioner and as the material so gathered was not made available to the petitioner.

3. From para 1 of the Government Order dated 26-8-55 it appears that the Sub-Division Officer and the Deputy Commissioner had concluded that there were no adequate grounds to hold that Sri Yelenarasappa was in any way prevented from exercising his vote at the elections and that there were no grounds to set aside the election. It is urged by Sri V. Krishnamurthy, the learned Advocate for the petitioner, that under R. 11, it is not open to Government in such a case to set aside the election. For this he relies on the wording of R. 11 which provides that the Deputy Commissioner shall report the proceedings together with his opinion to Government through the Commissioner for Local Self-Government and that thereupon it will be open to Government to pass orders declaring the election to be invalid. It is suggested That the intention of this rule is that if the opinion of the Deputy Commissioner is not in favour of disturbing the result of the election it is not open to Government to pass orders declaring the election to be invalid. If, on the other hand, the Deputy Commissioners opinion is in favour of setting aside the election it would be open to Government either to accept his opinion or not to accept his opinion. We see no force in this interpretation of the language of R. 11 either on the basis of any principle or on the plain construction of the language. The intention behind the procedure indicated in R. 11 is to enable the inquiry to be held by a subordinate officer, to make the resulting material available to Government and to enable the Government with the assistance of the Deputy Commissioners opinion, to arrive at its own conclusion. Whether the opinion of the Deputy Commissioner is in favour of setting aside the election or of allowing it to remain undisturbed, there is nothing in the language of R. 11 to fetter the discretion of Government in arriving at an independent conclusion.

4. It is also argued that R. 11 does not contemplate a further enquiry by Govt. and that any such inquiry would be ultra vires of posters of Government under that rule. It is true that there is no specific provision for Government directly holding an inquiry under R. 11, but there is nothing in that rule which prevents Government from holding an inquiry if, in its view, it is necessary to do so. It may be remembered that the final decision and, indeed, the only decision is to be given by Government and, if for any reason Government is not satisfied with the available material, there is no reason in the absence of compelling language relevant provisions why Government should take, measures to satisfy itself. It may be suggested that the only way in which such supplementary material should be record is by remitting the matter for inquiry to the Deputy Commissioner; but if the reasoning adopted by the learned Advocate for the petitioner is accepted, even that course would not be permissible since R. 11 does not specifically provide for it. It therefore appears to us that this contention has no force.

5. Of the same character is the objection that Government should not have entertained the petition filed by respondent 2 and other Municipal Councillors before arguments were heard by the Minister. That was only a representation of their and it is stated by the learned Counsel for respondent 2 that a copy of it had been served petitioners advocate before arguments were heard by Government on 4-1-55. As the present petitioner had an opportunity of meeting whatever was contained in that petition at the time of arguments, he could have no grievance merely on the ground that it was permitted to be filed.

6. The next contention is in regard to the manner in which the supplementary inquiry was held by the Minister. It has already been mentioned above that arguments were heard by the Minister on 4-1-1955. What happened thereafter for a period of more than six months is not clear. The Minister appears to have visited Anekal on 22-7-55. The petitioner complains that he was not previously intimated of the intended visit and its purpose. It would appear from the papers available in the case that the Municipality was informed of the intended visit which was stated to be for the purpose of inquiries presumably in relation to the dispute about the presidential election. The communication appears to have been addressee to the petitioner who was functioning as the President of the Municipality and who accordingly arranged for a meeting of the Council. As regards the inquiry itself it is alleged in the affidavit in support of the petition that the Minister called in 13 of the Councillors including the petitioner, that the petitioner was interrogated about the presidential election and that the other 1, 2 councillors were similarly interrogated but not in the presence of the petitioner, that no statements were recorded and that the petitioner was not given an opportunity to know what the various persons examined had stated about the matter in dispute. This is not controverted in the counter-affidavit filed on behalf of the Minister. It is stated in that affidavit that no formal inquiry was contemplated and that therefore no statements were recorded, that the Minister had an informal talk with each of the councillors with a view to ascertain the atmosphere prevailing and also to have an idea of the background in which to assess the testimony of witnesses recorded by the Sub-Division Officer. It is clear that the petitioner was not made aware of what was gathered by the Minister in consequence of his inquiry.

7. It is urged by the learned Advocate-General appearing for the State that in an inquiry under the rules framed under the Town Municipalities Act, it is not necessary to observe all the formalities of a judicial trial. It is further urged by him that the tenor and tone of the Government Order make it clear that it is based entirely upon the material resulting from the inquiry made by the Sub-Division Officer and not upon anything gathered subsequently by the Minister. Our attention is drawn to para 2 of the order in which it is stated : "After going through the evidence recorded by the Sub-Division Officer Dodballapur Sub-Division, and the Deputy Commissioner, Bangalore District, and hearing the Counsel for the petitioner it was felt that the findings of the Sub-Division Officer and the Deputy Commissioner could not be beyond controversy and that the matter might be inquired into at Anekal before a final decision could be taken." It is urged that this statement clearly implies that the Minister disagreed with the finding of the Sub-Division Officer and the Deputy Commissioner in other, words, that the Minister had at that time come to the conclusion that the election had to be set aside. It is difficult to accept this contention. In the first place, the above quoted statement neither expressly nor by implication indicates that the Minister had arrived at any conclusion. All that it shows is that the Minister did not see his way to accept the findings of the Sub-Division Officer and the Deputy Commissioner straightway. Secondly, it shows that in the Ministers view something more was to be done to enable him to arrive at a final decision. This necessarily means that he had not arrived at a final decision in the matter. This is placed beyond all doubt by what is contained in the counter-affidavit filed on behalf of the Minister. In para 3 it is stated that he had an informal talk with each of the councillors with a view to ascertain the atmosphere prevailing and also to have an idea of the background in which to assess the testimony of witnesses recorded by the Sub-Division Officer. These were apparently the additional factors, according to the stand taken by tie Minister in the counter-affidavit that it was necessary for him to gather and consider to enable him to come to a final decision.

8. The petitioner characterises the procedure adopted by the Minister in his inquiry as opposed to natural justice and contends that as the decision arrived at by the Minister is based in part at least on his own inquiry, it has to be quashed. The learned Advocate-General, appearing for the State argues that the inquiry held by the Minister, though it might not have been attended by the formalities relating to a judicial inquiry in Court, was conducted fairly. He has referred to the decision reported in - Province of Bombay v. Khushaldas S. Advance AIR 1950 SC 222 (A), for the proposition that prescribed forms of procedure are not necessary to make the inquiry judicial. That was a case relating to the requisitioning of certain premises under the Bombay Land Requisition Ordinance (5 of 1947). The majority of the learned Judges of the Supreme Court held that both the act of requisitioning and the determination whether such requisitioning was for a public purpose or not were administrative acts and while discussing the distinction between an administrative act and a judicial or a quasi-judicial act, the above observations have been made. They are made in the context of the criteria by which it has to be ascertained whether an act permitted or prescribed under an enactment is an executive act or a judicial act and do not relate to the question as to how judicial or quasi-judicial functions are to be fulfilled. In this case, there is no doubt or dispute about the nature of the act performed by Government in giving a decision under R. 11. A decision on an appeal petition questioning the election of a candidate as president of a Town Municipality is clearly of a judicial character. Nor does the learned Advocate-General dispute this. Nevertheless, it may be conceded that it is not necessary for the functionary invested with the right to inquire to observe all the formalities of judicial procedure in a Court of law. But to use the wording employed in the above decision of the Supreme Court, the well recognized principles of a judicial approach are required to be followed in arriving at a decision. One of the unchallenged principles is that the parties affected must be apprised or the material appearing against them and must be given a chance of meeting it or having their say about it. As mentioned above, the procedure employed by tie Minister in interviewing each of the Councillors separately precluded the possibility of the affected parties knowing what the material gathered by the Minister was. It is admitted that the petitioner was not apprised of it and that no statements were recorded. It is also admitted that after the Ministers inquiry, the petition was not posted for hearing arguments again before the order dated 26-8-55 was passed by Government. It is dins clear that the petitioner had no opportunity whatever of acquainting himself with the material, if any, against him, resulting from the Ministers inquiry which he had to meet. It is urged by the learned Advocate-General that such material has not been used by him as could be seen from the tenor of the order. This has already been dealt with above and shown to be untenable. If, in the Ministers view, the background and the atmosphere were factors necessary for enabling him to assess the evidence already on record it is clear that the material relating to the background and atmosphere was of importance and the parties had the right to be apprised of it and that this was a matter of substance and not merely of form. The inquiry held by the Minister was therefore is contravention of natural justice.

9. In this connection reference may be made to the decision reported in - Sattar Sahib v. State of Madras, AIR 1952 Mad 605 (B). That was a case in which the Government of Madras set aside an order of the Central Road Traffic Board. The High Court quashed the order of Government on the ground that it disclosed ex facie that they had passed the order after reading a petition from certain Congress workers which was not strictly permissible in law. The Government did not say that they acted upon the petition. At the same time they did not say that the petition did not in any manner influence them in coming to their conclusion. The High Court held that in these circumstances it could not be said that that petition might not have influenced the, Government in passing their order. It was on this, ground that the Governments decision, was quashed. In the present case, not only is there no statement in the Government Order to the effect that the further inquiry did not influence the Minister in coming to his decision but it is stated that the inquiry itself was conducted by the Minister to enable him to arrive at a final decision. The proposition that a decision based on material gathered behind the back of the party affected is opposed to principles of natural justice is well established and hardly needs support. The learned Advocate for the petitioner has quoted a number of English decisions laying down this principle. This has been accepted and acted upon by Indian Courts. Reference may be invited to - Debendra Bandhu v. State of W.B., AIR 1952 Cal 808 (C), in which it was held that the Excise Commissioner who decides an appeal from the order of the Collector cancelling a license in respect of a country spirit shop after hearing the Excise Officer behind the back of the licensee and confirms the order of the Collector without giving an opportunity to the licensee of meeting any particular statement the Officer might have made, fails to follow the principles of natural justice. In - Dhakeswari Cotton Mills Ltd. v Commissioner of Income-tax, West Bengal, (S) AIR 1955 SC 65 (D), the Supreme Court sot aside the order of the Income-tax Appellate Tribunal, Calcutta, in respect of the assessment of the Appellate-Company to income-tax on the ground that an assessment made without disclosing to the assesses the information supplied to the assessing authority and without giving flu opportunity to the assessee to rebut the information so supplied constituted a violation of the fundamental rules of justice. The matter no doubt came up before the Supreme Court under Art. 136 of the Constitution, but it as undoubted that a Writ of Certiorari will issue against the proceedings of an inferior tribunal not only when it acts without jurisdiction or in excess of its jurisdiction, but when it contravenes the principles of natural justice.

10. We accordingly direct the issue of a Writ of Certiorari quashing the order No. L. 6207-09/ML 95-55-5 dated 26-8-55 declaring the election of the petitioner as President of the Town Municipal Council Anekal, to be invalid. It is hardly necessary to add that since in quashing the order we have not dealt with the merits of the election appeal petition, it is not only permissible but incumbent upon Government to take up the appeal petition from the stage which we have found to e affected by the breach of the fundamental rule of natural justice i.e., from the stage of arguments heard on 4-1-1955 and dispose it if according to law. (Vide the Madras decision already referred to above, AIR 1952 Mad 605. (B)). There will be no order as to costs.

11. The petitioner has also approached this Court with an application under Art. 227 of the Constitution directed against the same order of Government. Since relief has been granted by the issue of a Writ there is no need to consider this petition. C.P. 92/55 is accordingly dismissed. There will be no order as to costs of this petition also. Order quashed. AIR 1956 MYSORE 36 (Vol. 43, C. 14 May) "Akhayyamma v. Papaiah" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) Muni Akhayyamma, Plaintiff-Petitioner v. Maistry Papaiah, Defendant-Respondent. Civil Revn. Petn. No. 34 of 1955, D/- 17 -1 -1956, against order of Sub-J., Civil Station Bangalore, D/- 11 -12 -1954. Civil P.C. (5 of 1908), O.14, R.5 - CIVIL PROCEDURE - AMENDMENT - MORTGAGE - EVIDENCE - Amendment of issue - Shifting of onus - Transfer of Property Act (4 of 1882), S.59. Evidence Act (1 of 1872), S.68, S.101, S.102, S.103. The general rule as to the onus of proof is that the issue must be proved by the party who states an affirmative and not by a party who states a negative. If under the law or on facts, either admitted or proved, a presumption arises in favour of any party, the burden of proof will lie on the adverse party to rebut it. Thus where the plaintiffs case was that the defendant borrowed money and executed the suit hypothecation deed, it was a registered document admittedly bearing the signature of the defendant and the attestation of two witnesses and there was nothing suspicious on the race of the document to doubt these facts, but the defendant applied for the amendment of issue so as to throw the burden on the plaintiff. Held that under the circumstances, a presumption arose in favour of the plaintiff that the suit document had been validly executed and attested. If the defendant wanted to challenge the genuineness or validity of the execution and attestation lie had to establish his contention. There was no justification for amending the issue so as to throw the burden of proof on the plaintiff. (Para 4) Held further that neither S. 59, T.P. Act nor S. 68 Evidence Act could be of any avail to the defendant. (Para 5) Anno : AIR Com., C.P.C., O. 14, R. 5, N. 3. 1953 Mulla : O. 14 R. 5 (Topic not discussed In Mulla). AIR Com. : T.P. Act, S. 59, N. 2. 1949 Mulla : S. 59 P. 389 N. "Mode of transfer" (9 Pts. extra in AIR Com. note - AIR Com. note exhaustive). AIR Com.: T.P. Act, S. 59 N. 8 (See also S. 3 Ns. 11 to 19). 1949 Mulla : S. 59, P. 390 N "Attested". AIR Man. : Evidence Act, S. 68 N. 1, 16; Ss. 101-103 N. 2, 4. Nanjundaswamy, for Petitioner; F.M. Xavier, for Respondent. Judgement This is a revision petition preferred by the petitioner-plaintiff against the order of the learned Subordinate Judge, Civil Station, Bangalore, allowing respondent-defendants application, I.A. No. 1 for the amendment of the second issue in Original Suit No. 117 of 1954.

2. The petitioner is the plaintiff and the respondent the defendant in the lower Court. Plaintiffs suit was for the recovery of about Rs. 6,981/- due under a hypothecation deed executed by the defendant in his favour. The defendant inter alia pleaded that the hypothecation deed was not validly attested according to law and that the same was not binding on him. To put the contention in the very words used by the defendant, it runs as follows : "Defendant denies that the mortgage deed has been validly attested according to law. He therefore submits that it is not binding on him as a mortgage." This is what the defendant has stated in para 2 of his written statement. The learned Subordinate Judge framed the following issue covering this point : "Is the suit document legally defective and therefore is the suit claim not maintainable ?" Thereafter the defendant filed an application, I.A. No. 1 under O. 14 R. 5 Civil P.C. praying for the amendment of the second issue. He contended that the burden of proof on issue 2 as framed was wrongly thrown on him, that the same should have been thrown on the plaintiff and that the issue must be so amended as to throw the burden of proof on the plaintiff. The learned Subordinate Judge allowed this application, and the issue as now framed as a result of allowing this application runs thus : "Has the mortgage deed been validly attested according to law, and if so, is it binding on the defendant as a mortgage ?" As against this order on I.A. No. 1, this revision petition is filed.

3. It appears to me that the order of the learned Subordinate Judge allowing I.A. No. 1 cannot be sustained. The pleadings in the case did not warrant the amendment for the issue as originally framed. From a perusal of the written statement of the defendant, it is seen that he does not deny the execution of the suit document. He has by implication admitted execution of the document and his signature in it. The learned counsel for the petitioner also did not dispute this point. What he has pleaded is that the attestation to the document is not valid. We also see nothing on the face of the document to doubt its genuineness or the attestation it bears. The document is attested by two witnesses. As a matter of fact, the learned counsel for the petitioner also conceded that the document is attested by two witnesses but his contention was that those witnesses who have attested the suit document were not present when the defendant put his signature to it and that, therefore, the said attestations are not valid attestations.

4. Now the point that arises for consideration is whether the learned Subordinate Judge was right in allowing I.A. No. I and in amending issue 2 as originally framed in the case. The point involved is one of burden of proof. The general rule as to onus of proof of any particular fact is that it lies on the party who alleges it and not on him who denies it in other words, the issue must be proved by the party who states an affirmative and not by a party who states a negative. It is the plaintiff that is bound, in the first instance, to show that he has a prima facie case. But a plaintiff on whom the initial burden of proof lies will be relieved of such burden where the defendant does not deny what is alleged against him but relies on some new matter which, if true, is an answer to the, claim of the plaintiff, in which case the burden, of proof would lie on the defendant. If under the law or on facts, either admitted or proved, a presumption arises in favour of any party, the burden of proof will lie on the adverse party to rebut it. The plaintiffs case is that the defendant borrowed money and executed the suit hypothecation deed. It is a registered document admittedly bearing the signature of the defendant and the attestations of two witnesses. As pointed out before, there is nothing suspicious on the face of the document to doubt these facts. Under these circumstances, a presumption arises in favour of the plaintiff that the suit document has been validly executed and attested, observing all the formalities as required by law. In such a case, it is the person who challenges the genuineness or the validity of the execution and attestation that has to establish his contentions. In view of the admissions made by the dependant and the presumptions arising in plaintiffs favour, I am of opinion that the learned Subordinate Judge had no justification in allowing I.A. No. I and thus throwing the burden of proof on the second issue on the plaintiff.

5. Reliance was placed on S. 59, Transfer of Property Act and S. 68, Evidence Act. The learned Subordinate Judge has also relied upon these two provisions in allowing I.A. No. 1. It appears to me that neither of these sections can be of any avail to the defendant. Section 50, Transfer of Property Act runs thus : "Where the principal money secured is one hundred rupees or upwards a mortgage other than a mortgage by deposit of title-deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid or except in the case of a simple mortgage by delivery of the property." It is not clear how this section helps the defendant. Its scope is that a mortgage is not effectual or operative unless it conforms to the requirements of that section. In the present case, the document is admittedly registered signed by the executant and attested by two witnesses. The requirements of S. 59, Transfer of Property Act have prima facie been satisfied in the present case.

6. Again, S. 68, Evidence Act runs thus : "If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence." This section evidently deals with proof of execution of documents required by law to be attested i.e. the principle underlying this section is that any document not properly proved is not admissible in evidence and should not be used. The learned counsel for the defendant was not able to cite any provision or case law directly dealing with burden of proof in such cases. I am of opinion that the issue as originally framed throwing the burden on the defendant was correct and that the learned Subordinate Judge was not right in allowing I.A. No. I to amend the said issue.

7. In the result, the order of the learned Sub-ordinate Judge on I.A. No. I is set aside and this revision petition is allowed with costs. Advocates fee Rs. 25/-. Revision allowed. AIR 1956 MYSORE 37 (Vol. 43, C. 15 May) "Seshappa v. Venkataramana" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) P. Seshappa Setty and others, Petitioners v. Katta Venkataramana Setty and others, Respondents. Civil Revn. Petn. No. 24 of 1955, against order of Sub-J., Bellary on I.A. No. 311 of 1954, D/- 20 -1 -1956. Civil P.C. (5 of 1908), O.6, R.17 - AMENDMENT - PLEADINGS - Amendment allowing plaintiff to sue on original cause of action. Where a negotiable instrument is a mere seque to an earlier transaction and not the basis of the transaction itself, a suit on the original consideration can be based. A creditor can be allowed to amend the plaint so as to base his suit on the original cause of action when it is found for any reason that he cannot maintain a suit on an instrument like a pronote, or a, hundi, as being inadmissible on some legal or technical ground. It is no doubt true that the cause of action on the pronote is different from the cause of action of the alleged loan which, has given rise to the pronote. Such an inconsistent claim will not have the effect of changing the nature of the suit. To allow an amendment to base the suit on the original cause of action or on original consideration it is not necessary that the original transaction should be indicated in the plaint already filed or in the document itself. That should be a matter for evidence. AIR 1954 Madh-B 117 and AIR 1936 Mad 785, Rel. on. (Paras 4, 5, 7) Anno : AIR Com. : Civil P.C., O. 6, R. 17, N. 2. 1953 Mulla : O. 6 R. 17 P. 595 N "Leave to amend when given" (See also N. 1 to O. 6 R. 17 in AIR Com.) AIR Com. : Civil P.C., O. 6, R. 17, N. 3. 1953 Mulla : O. 6 R. 17 P. 599 N. 4 "Leave... case" (Law under old code with case law thereon, indicated in N. 3 to O. 6 R. 17 in AIR Com. - 10 Pts. extra in N. 3 to O. 6 R. 17 in AIR Com, - See also N. 12 to O. 6 R. 17 in AIR Com.) Cases Referred : Courtwise Chronological Paras (A) (V 41) AIR 1954 Madh-B 117 : ILR (1954) Madh-B 20 4 (B) (V 23) AIR 1936 Mad 785 : 165 Ind Cas 301 (PB) 7 M.R. Janardhanam, for Petitioners; V. Krishnamurthy, for Respondent No. 1. Judgement This is a revision petition preferred by the petitioners against the order of the learned Subordinate Judge, Bellary, allowing I.A. No. 311 of 1954 filed by the respondents for amendment of the plaint in Original Suit No. 45 of 1954.

2. The petitioners are the defendants and the respondents the plaintiffs in the lower Court. Plaintiffs suit in the lower Court is for the recovery of Rs. 7,000/- due on certain hundies executed by defendant 1. The allegations made in the plaint are that defendant 1 as manager of defendants family borrowed on 23-3-1954 Rs. 7,000 and, executed the sub hundies. But after the suit was filed, it appears that the office took objection that the hundies on which the suit was based were inadmissible in evidence, the same having not been written on Mysore Stamp Paper. Then the plaintiffs filed an application as per I.A. No. 311 of 1954 under O. 6, R. 17, Civil P.C. praying for the amendment of the plaint. The amendment sought was that defendant 2 as manager of the joint family of defendants had dealings with the plaintiffs between 5-11-52 and 23-3-54, that on settlement of accounts the defendants were found due to the extent of Rs. 7,000/- and that in satisfaction of that debt, the suit hundies were executed.

3. This application was opposed by the defendants on the ground that the same was not maintainable, that the amendment, if allowed would have the effect of substituting an entirely new case, that it would also have the effect of altering the cause of action and the nature and scope of the suit, and that the application should be dismissed. The learned Subordinate Judge allowed the amendment, and as against that order this revision petition is filed.

4. The only point that arises for consideration is whether the order of the learned Subordinate Judge cannot be sustained. It appears to me that the said order has to be upheld. The question that arises for decision is whether a creditor can be allowed to amend the plaint so as to base his suit on the original cause of action when it is found for any reason that he cannot maintain a suit on an instrument like a pronote, or a hundi as in tins case, as being inadmissible on some legal or technical ground. The law on this point appears to be now well settled, that being that where a negotiable instrument is a mere sequel to an earlier transaction and not the basis of the transaction itself, a suit on the original consideration can be based. The case law even goes to the extent of holding in such a case that a creditor can base the suit on the pronote or, in the alternative, on the original consideration. The point is well enunciated in the case reported in Baburam v. Ochhelal, AIR 1954 Madh B 117 (A), where the case law has been discussed in detail.

5. In the present case, it is no doubt true that the cause of action on the pronotes is different from the cause of action of the alleged loan which has given rise to the pronotes in question. In the Madhya Bharat case referred to above, it is accepted that two distinct or inconsistent causes of action or claims can be set up alternatively. When that is so, I do not see any reason why a creditor should not be allowed to put forth a different or inconsistent cause of action at a subsequent stage or substitute one claim for the other. It is found that such an inconsistent claim I will not have the effect of changing the nature of the suit. In the present case, as a result of the amendment having been allowed, the nature of the suit does not change and has not changed. The parties and their liability continue to be the same even after the amendment and the claim which is for the recovery of money continues to remain the same. Therefore the contention that the nature of the suit would change cannot be countenanced.

6. Another argument advanced by the learned counsel for the petitioner was that an amendment of this kind cannot be allowed unless the plaint as originally laid or the document on which the suit is based indicated the previous transaction which is sought to be made the basis of the amendment. The learned counsel for the petitioners was not able to cite any provision or case law touching this point specifically. He drew my attention to the very cases relied on by the learned Subordinate Judge in the course of his order. In all those cases, it is true that there as an indication in the plaint or in the document itself about the previous transactions between the parties which ultimately gave rise to the execution of the documents. The observation by the learned Subordinate Judge to the contrary in the course of his judgment cannot be accepted but the learned counsel for the petitioner was not able to place his hand on any decision which deals specifically with the point urged, that an amendment to base the suit on the original consideration cannot be allowed unless the original consideration is indicated in some way or the other in the original plaint or the document. On the other hand, it is seen from the decision of the High Court of Madhya Bharat already referred to that such an indication of the original cause of action in the plaint is not at all necessary.

7. In that case, the suit was laid for the recovery of Rs. 3,400/- due on a dishonoured hundi. During the course of evidence, the plaintiff applied to convert the suit into one based on the original cause of action i.e., by the amendment he sought to allege facts and circumstances which gave rise to the execution of the suit hundi. The lower Court allowed this amendment and the High Court affirmed that order. Again the case reported in Official Assignee v. Kuppuswami Naidu, AIR 1936 Mad 7B5 (FB)(B) also goes to show that the previous transactions need not be disclosed in the original plaint to enable an amendment to base the suit on the original cause of action. In that case also, the plaint did not contain sufficient materials upon which to found a claim upon any debt irrespective of that evidenced by the promissory note. The lower Court had dismissed the application for amendment but the High Court set aside that order and allowed the amendment. I am of opinion that to allow an amendment to base the suit on the original cause of action or on original consideration, it is not necessary that the original transaction should be indicated in the plaint already filed or in the document itself. That should be a matter for evidence. If a plaintiff fails to establish the original consideration or the original cause of action, then his suit will certainly be thrown out. It is usual in this country to get negotiable instruments executed in satisfaction of past transactions and introduce words in such instruments as if cash was paid. To refuse permission to a creditor to fall back upon the original consideration in cases where the instruments are found inadmissible in evidence would cause much hardship to him.

8. The defendants have not been prejudiced as a result of the amendment having been allowed. They have not even filed their written statement. They have got full opportunity of meeting the plaintiffs case. In this connection, it has also to be remembered that the plaintiffs, if they so choose, can maintain a suit against these defendants on the accounts for which, according to them, the present hundies have been executed. One of the objects of allowing amendment of pleadings is to avoid multiplicity of suits. Under these circumstances, I think the order of the learned Subordinate Judge has to be affirmed.

9. In the result, the order of the learned Subordinate Judge is confirmed and this revision petition stands dismissed but without costs. Revision dismissed. AIR 1956 MYSORE 38 (Vol. 43, C. 16 May) "Kuttappa v. State of Coorg" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) B.N. Kuttappa, Accused, Petitioner v. State of Coorg, Complainant, Respondent. Criminal Petn. No. 234 of 1955, D/- 20 -1 -1956. (A) Criminal P.C. (5 of 1898), S.536(1)(a) - TRANSFER OF CASE - Reasonable apprehension of failure of justice - Test of. Though confidence in the administration of justice is an essential element of good Government and reasonable apprehensions of failure of justice in the mind of the accusedshould be taken into consideration in dealing with the applications for transfer of criminal cases, at the same time, it must be remembered that the apprehension entertained by an accused must be such as a reasonable person placed in that situation would entertain. Mere fanciful apprehension on the part of an accused cannot be a ground for transfer of a criminal case. (Para 6) Anno : AIR Com.: Cr. P.C. S. 526 N. 5. 1949 Mitra, S. 526 P. 1594 N. 1371 "Clause (a) ... .trial" and P. 1598 N. 1372 "Instances .....apprehension". (B) Criminal P.C. (5 of 1898), S.526(1)(a) - TRANSFER OF CASE - Apprehension of failure of justice - Grounds which are not reasonable. It is the sacred duty of any Government to maintain law and order and if in so doing any person or group of persons are affected, that cannot be a ground to urge that no Court within the jurisdiction of that Government should try a particular person. (Para 7) Thus an unfounded belief in the mind of the accused that the congress party in power in the State is trying to demolish his trade union and is supporting their own union cannot be a valid ground for transfer of his case. (Para 7) Further, simply because the trial Magistrate is subordinate to the District Magistrate who in his capacity as Labour Commissioner and Conciliation Officer has dealt with some matters relating to the Union of which the petitioner is the President, it does not mean that he will be influenced by the latter. (Para 11) Anno : AIR Com. Cr. P.C. S. 526 N. 5. 1949 Mitra, S. 526 P. 1594, N. 1371, "Clause (a) .......trial" and P. 1598 N. 1372 "Instances .... apprehension". C.B. Motaiya, for Petitioner; Asst. Advocate-General, for Respondent. Judgement This is an application filed by the petitioner under S. 526, Criminal P.C. praying that C.C. Nos. 43 and 44 of 1955 pending on the file of the learned Munsiff First Class Magistrate, Mercara, Coorg, may be transferred to any other Court of competent jurisdiction outside the State of Coorg.

2. The facts that have given rise to this petition are briefly as under :

3. The petitioner is accused 16 in C.C. 43/55 and accused 8 in C.C. 44/55. The accused in C.C. 44/55 are eight of the sixteen accused in C.C. 43/55. The petitioner is stated to be the President of the Indian Coffee Board Labour Union, Coorg Branch, of which the other accused in these cases are said to be the members. It is further stated that the petitioner is also the President of All Coorg Estate Workers Union and one of the Vice-Presidents of Indian Coffee Board Labour Union.

4. In C.C. 43/55 the charge-sheet against the petitioner is stated to be that he abetted the commission by the other fifteen accused persons of offences under Ss. 148, 353 and 324 I.P.C. In C.C. 44/55 the case against the petitioner is that he abetted the commission by the other seven accused of offences under Ss. 148 and 353 I.P.C. The allegations made in the application and the affidavit attached to it are that the Congress Party in power in Coorg has been against the Unions of which the petitioner is the office-bearer, that the said party has been supporting the Indian National Trade Union Congress, which is the Labour Wing of the Congress Party, that on this account the Congress Party which is in power in Coorg has been harassing the Unions of which the petitioner is the President, that some of the members of the Indian Coffee Board Labour Union had put forth, certain demands regarding the wages and other amenities before the District Magistrate, that the said demands have not favourably been considered, that the District Magistrate is further the Labour Commissioner, and Conciliation Officer, that he has dealt with many matters arising in connection with the demands made by the Unions, that the Magistrate before whom the cases are pending is subordinate to the said District Magistrate, that the Magistrate refused bail to the accused in C.C. 21/55 for whom the petitioner had stood surety, that the said accused have subsequently been released oh bail by the learned Sessions Judge, Mercara, that C.C. 21/55 was posted for trial to 1-3-55, that the case was taken up earlier on 18-2-1955 without notice to the petitioner, that one of the accused - Kandaswami - was convicted and sentenced on that day on his own admission, that on 18-2-1955 the learned Magistrate issued a notice to the petitioner to produce Kandaswami and the other accused in C.C. 21/55 as he had stood surety for them though Kandaswami had been released earlier, that in C.C. 38/55 in which the petitioner appeared as a defence witness the same Magistrate convicted 16 accused persons belonging to. All Coorg Estate Workers Union, that C.C. 37/55 and the two cases in question have got a common background that in C.C. 43/55 some articles that were seized in C.C. 44/55 have been marked as material object in spite of the objections raised by the defence that the learned Magistrate has further permitted the Police to investigate the case coming under Ss. 124A and 153A, I.P.C. without a complaint from the Central Government as required by law, that under these circumstances the petitioner apprehends that he will not have a fair and impartial trial at the hands of the learned Magistrate and that justice requires that the two cases pending before him should be transferred to a Court of competent jurisdiction outside the State of Coorg.

5. The respondent-State oppose the application and have denied in their counter-affidavit the various allegations made against them by the petitioner.

6. It appears to me that there is no substance, in any of the grounds urged by the petitioner for the transfer of the two cases in question. The basis of applications under S. 526, Criminal P.C. for transfer of criminal cases is, and must be, that accused must have reasonable apprehension that he will not have a fair trial. The person who wants a transfer of the case must show good grounds for believing that he will not have a fair trial in the Court in which his case is pending. In the absence of such grounds, it is not proper to transfer the case from the file of that Court. Before ordering the transfer of a case the Court must be satisfied on this fact. No doubt, the importance of the principle that confidence in the administration, of justice is an essential element of good government and that reasonable apprehensions of failure of justice in the mind of the accused should be taken into consideration in dealing with such applications cannot be ignored. But at the same time, we will have to remember that the apprehension entertained by an accused must be such as a reasonable person placed in that situation would entertain. Mere fanciful apprehension on the part of an accused cannot be a ground for transfer of a criminal case.

7. Now we will proceed to const one by one the grounds urged by the petitioner for the transfer of his cases. The first ground urged on the side of the petitioner is that the Congress Party which is in power in Coorg has been attempting to put down the Unions of which the petitioner is the President and has been supporting the Indian National Trade Union Congress which is the Labour Wing of the Congress Party. I am of opinion that this apprehension is more imaginary than real and absolutely unfounded. It is the sacred duty of any Government to maintain law and order and if in so doing any person or group of persons are affected, that cannot be a ground to urge that no Court within the Jurisdiction of that Government should try a particular person. If this contention that the Congress Party in Coorg is trying to demolish the Petitioners Unions and support their own Union viz. the Indian National Trade Union Congress is true, then that would be a common policy all over the country wherever the Congress Party is in power, which means that the petitioner will have to be tried by a Court within the jurisdiction of a non-Congress Government. I am of opinion that this unfounded belief in, the mind of the petitioner cannot be a valid ground for the transfer of his cases.

8. The second ground urged in support of this petition is that the Magistrate before whom the cases are pending is subordinate to the District Magistrate, who, in his capacity as Labour Commissioner and Conciliation Officer has dealt with some matters relating to the Unions of which the petitioner is the President, thereby suggesting that the Magistrate will be influenced. This again is without any substance and what is more is an unwarranted reflection on the trying Magistrate and the District Magistrate. Simply because, the trial Magistrate is subordinate to the District Magistrate, it cannot be and that an officer of the status of the District Magistrate would go to the extent of influencing a subordinate officer. Further it is significant to note that this ground is not specifically urged in the affidavit filed by the petitioner in support of his application, which goes to indicate want of bona fides on his part.

9. The fact that the learned Magistrate refused bail to the accused in C.C. 21/55 and the accused were subsequently released on bail by the Court of Session, cannot give rise to any inference that the Magistrate has been prejudiced against this petitioner who was a surety for those accused. Much was made by the learned counsel for the petitioner of the fact that Kandaswami, one of the accused in C.C. 21/55 who was convicted and released, was directed to be produced by the petitioner on the date of hearing. Evidently this is a mistake as explained by the learned Magistrate in his explanation submitted to the Court. On the face of it, it is clear that it was due to some bona fide error on the part of the Court in having issued a notice to the surety to produce an accused who had been already released by the same Court.

10. The other ground is that sixteen persons belonging to the Unions of which the petitioner is the President have been convicted in C.C. 38 of 1955. This, in my opinion, cannot be a valid ground for transfer of the cases in question. The vague allegation that C.C. 38/55 and the cases on hand have got a common background cannot be accepted and the same does not appear to be true. If that is so, I am sure the learned Magistrate will himself abstain from proceeding with the cases before him. The very fact that Kandaswami, one of the accused in C.C. 21/55, and one of the accused in C.C. 33/55 were released by the same Magistrate under S. 562, Criminal P.C. goes to negative that the Magistrate has been prejudiced against the petitioner or that he has been influenced by outside agencies.

11. There cannot be any truth in the bald statement that the Coorg Government is interested in securing petitioners conviction. No Government worth the name can entertain such a base idea and thus pollute the administration of justice in the State and consequently degrade itself in the estimation of the public. It is the duty of every Government established by law to keep, the judiciary independent. The existence of an independent judiciary is a necessity and a great asset to any State and its maintenance a duty and equally a compliment to itself. These are the principles that should govern the conduct of any Government in dealing with the Judiciary of the State. There is nothing to show or suggest that the Coorg Government has departed from the well-laid and recognised principles.

12. There is also no substance in the other grounds, that the learned Magistrate was wrong, in marking certain articles seized in C.C. 44/55 as material objects in C.C. 43/55 and that the learned Magistrate was also wrong in according, permission to the Police to investigate the matter under Ss. 124A and 153A, I.P.C. without the formal complaint of the Central Government according to rules. There can be nothing irregular in marking articles seized in another case if the same are relevant for the case on hand, and if the learned Magistrate had no jurisdiction to permit the Police to investigate the matter arising under Ss. 124A and 153A I.P.C., that cannot be a ground for transfer of the cases. At the most, it is a wrong order a bona fide error of judgment. A bona fide error of judgment or that a judicial order happens to be passed against a party in the course of proceedings cannot be considered as at valid ground for the transfer of cases.

13. The application is highly belated and indicates want of bona fides on the part of the petitioner. Many of the grounds urged in the application and the affidavit and also by the learned counsel at the time of arguments in support of the transfer were available to the petitioner even long prior to the date of the present application. In spite of them, the petitioner kept quiet and allowed the case to proceed. It is admitted that nearly thirty witnesses have been examinees in one of the cases. The apprehensions entertained by the petitioner are not reasonable. The circumstances relied on by him are not such as to afford a reasonable apprehension in his mind that he would not receive a fair trial in the Court of the learned Magistrate. No sufficient grounds exist to justify the transfer of the cases.

14. In the result, this petition stands dismissed. Petition dismissed. AIR 1956 MYSORE 40 (Vol. 43, C. 17 May) "Durugappa v. State of Mysore" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) P. Durugappa, Accused-Petitioner v. State of Mysore, Complainant-Respondent. Criminal Revn. Petn. No. 214 of 1955, D/- 19 -12 -1955, against decision of S.J., Bellary in Criminal Appeal No. 16 of 1955. @page-Mys41 The point that the Courts have to consider is not whether the defence put forth by the accused was proved but whether the prosecutions has discharged the burden that initially lay on it. Where, therefore, Courts below appear to have been very much influenced in their decision by the fact that the contentions urged by the accused in defence have not been made out, their procedure to determine the guilt of the accused is not correct. (Para 3) Anno : AIR Com.: Cr. P.C., S. 367, N. 6. 1954 Mitra : S. 367 P. 1475 N "Decision thereon", P. 1477 N "Circumstantial evidence" (Topic discussed in N. 6 to S. 367 in AIR Com. on "Appreciation of evidence" extra). (B) Penal Code (45 of 1860), S.403, S.409 - MISAPPROPRIATION - BREACH OF TRUST - WORDS AND PHRASES - Misappropriation and converting to own use - What amounts to - Mere retention of money - Effect. Words and Phrases. To establish an offence under S. 409, I.P.C. the prosecution must prove that the accused misappropriated or converted the amount in question to his own use and that too dishonestly. To misappropriate means improperly setting apart for ones use to the exclusion of the owner. Converts means appropriation and dealing with property of another without right as it is his own property. (Paras 4, 5) Dishonesty may be proved by evidence or may be presumed from the circumstances but under no circumstances can it be assumed as a matter of course. Where it is not clear from the evidence what the accused did with the money during the period he was in possession of it, the Court cannot assume, in absence of any evidence to show or circumstances to infer, that he misappropriated the amount dishonestly. (Para 5) Mere retention of money is not itself sufficient to conclude that the accused was guilty of criminal breach of trust. AIR 1941 Mad 761, Rel. on. (Para 5) Anno : AIR Man.: I.P.C., S. 403, N. 3, S. 409, N. 1. Cases Referred : Courtwise Chronological Paras (A) (V 7) AIR 1920 Pat 168 (2) : 21 Cri LJ 509 5 (B) (V 28) AIR 1941 Mad 761 : 43 Cri LJ 445 5 C. Siddiah, for Petitioner; Advocate General, for Respondent. Judgement This is a revision petition preferred against the judgment of the learned Sessions Judge, Bellary, in Cr. App. No. 16 of 1955, confirming the conviction and modifying the sentence passed by the Sub-Divisional Magistrate, Hospet, in C.C. No. 56 of 1954.

2. The case for the prosecution was that the accused, who was a panchayatdar and a member of the Co-operative Society at Kuruvathi, was entrusted on 21-1-1953 with a sum of Rs. 7,700/- by the Hospet Co-operative Central Bank, Ltd., for being credited to the Co-operative Society at Kuruvathi, that he did not credit the said amount till 21-2-1953, that he misappropriated the same temporarily and that he thereby committed an offence under S. 409, I.P.C. The learned Magistrate found the petitioner guilty of the offence with which he stood charged and sentenced him to undergo simple imprisonment for one month and also to pay a fine of Rs. 1,000/- and in default to undergo simple imprisonment for a period of six months. The petitioner preferred an appeal as against this judgment to the learned Sessions Judge who confirmed the conviction but reduced the sentence of imprisonment to the period already undergone. The sentence of fine was also confirmed. As against that decision, this revision petition is filed.

3. The point that arises for consideration is whether the conviction of the petitioner can be sustained. It appears to me that the guilt has not been brought home to the petitioner beyond all reasonable doubt. That the petitioner was a public servant at the relevant time and that he was entrusted with a sum of Rs. 7,700/- on 21-1-1953 is admitted on his side, and there is also both oral and documentary evidence adduced to the case in support of these contentions. It is also proved and admitted by the petitioner that the sum he drew from the Hospet Co-operative Central Bank was credited to the Co-operative Society at Kuruvathi on 21-2-1953 i.e. a month after he was entrusted with the money. But the contention of the petitioner was, and is, that after he withdrew the amount from the Co-operative Central Bank at Hospet he fell ill and had to stay at Dayangere upto 21-2-1953 and that he could not credit the amount earlier, and that he did not misappropriate the amount as alleged on the side of the prosecution. It may be pointed out, in this connection, that the illness set up by the petitioner has not been proved, as found by the Courts below. But the point that the Courts had to consider, and will have to consider, is, not whether the defence put forth by the accused was proved, but whether the prosecution has discharged the burden that initially lay on it. The Courts below appear to have been very much influenced in their decision by the fact that the contentions urged by the petitioner have not been made out. In my opinion, the way in which the Courts below have proceeded to determine the guilt of the petitioner is not correct.

4. Section 409 I.P.C. prescribes the penalty for the offence of criminal breach of trust. What is criminal breach of trust is denned is S. 40, I.P.C. To sustain a conviction under S. 403 I.P.C. the prosecution, besides proving that the accused is a public servant and that he was as such public servant entrusted with property, has also to establish that the accused committed criminal breach of trust in respect of the money so entrusted. One of the most essential ingredients of that offence is the dishonest intention on the part of, the accused for the commission of the alleged crime. What is criminal misappropriation is defined under S. 403 I.P.C. A person will be guilty of that crime only when it is proved that he dishonestly misappropriated the property or converted it to his own use. Dishonestly is defined under S. 24 I.P.C. as doing anything with the intention of causing, wrongful gain to one person or wrongful loss to another person. To appropriate means setting apart or assigning to a particular person or use, and to misappropriate means improperly setting, apart for ones use to the exclusion of the owner Converts means appropriation and dealing with property of another without right as if it is his own property.

5. In the present case, it appears to me that the prosecution has not proved that the accused misappropriated or converted the amount in question to his own use and that too dishonestly. Dishonesty may be proved by evidence or may be presumed from the circumstances but under no circumstances can it be assumed as a matter of course. In the present case, there is no evidence worth the name that the petitioner appropriated the amount in question dishonestly to his own use or that he dealt with it for some other purpose. The learned Magistrate has observed in the course of his judgment that the accused parted this money in favour of P.W. 6 which fact has been denied by the latter. Even the learned Magistrate is not definite as to whether the accused had paid this amount to P.W. 6 because he observes in the course of his judgment that the accused must have paid it to P.W. 6 or somebody else. This is not a correct view to have been taken under the circumstances, nor are there circumstances, to infer that the accused made use of this amount for himself or somebody else. What the accused did with the money during the period he was in possession of it is not clear from the evidence. We cannot assume, in the absence of evidence to show or circumstances to infer, that he misappropriated the amount dishonestly. The possibility of his not having credited the amount negligently and his having kept the amount with himself without being used for any other purpose cannot at all be excluded. He was not asked to deposit the money in the Co-operative Society at Kuruvathi within such and such a time i.e. no period was fixed within which he amount had to be deposited. This is not a case of a public servant not depositing the amount within a particular time fixed or within a particular time according to the departmental rules. In this connection, I would like to refer to a case in Nurul Hassan v. Emperor, AIR 1920 Pat 168 (2) (A). In that case also an accused was entrusted with money and he had to deposit a certain amount to the treasury but no period was fixed as to during which time the amount had to be deposited. It is found in that case that the accused under those circumstances committed no criminal breach of trust. Again we have got another case reported in Muthuswami Udayan, In re, AIR 1941 Mad 761 (B). In that case, a Village Munsiff collected some amounts on 15-3-37 and 17-4-1937 and he remitted the first collection on 21-5-1937 and the subsequent one on 24-4-1937. It was held therein that the mere retention of money was not itself sufficient to conclude that the accused was guilty of criminal breach of trust. This is contrary to the view taken by the learned Magistrate that even mere retention in this case had completed the offence of criminal breach of trust. In the present case, except that the accused retained money for one month, there .is no other evidence to show that he has committed an offence under S. 409 I.P.C. At any irate, his complicity in the crime is full of suspicion and he is entitled to the benefit of doubt.

6. In the result, the conviction of the petitioner and the sentence passed on him are set aside and this revision petition is allowed. The fine, if already recovered, shall be refunded to him. Revision petition allowed. AIR 1956 MYSORE 42 (Vol. 43, C. 18 May) "Govinda v. State of Mysore" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) Govinda Setty and another, Accused-Petitioners v. State of Mysore, Complainant-Respondent. Criminal Revn. Petn. No. 124 of 1955, D/- 4 -11 -1955, against decision of Principal S.J., Bangalore in Criminal Appeal No. 180 of 1954. (A) Mysore Police Act (5 of 1908), S.38 - POLICE OFFICERS - WARRANT - SEARCH AND SEIZURE - Essentials of a valid search warrant. Criminal P.C. (5 of 1898), S.101, S.79. Section 38 contemplates that the warrant for execution should be issued to a particular police officer by name and designation and thus authorise him to conduct the search. And if the warrant is not so addressed to any police officer, in particular, it is defective. Further if it does not bear the seal of the office from which it is issued or of the officer who issued it, that also renders the warrant defective. (Para 5) Anno : AIR Com., Cr. P.C., S. 101, N. 1 (See also generally S. 5 and N. 14 on S. 36); 1953 Mitra, S. 101 N. 1 (Topic extra in AIR Com.); AIR Com.: Cr. P.C., S. 79 N. 2a (See also S. 75 N. 5a); 1953 Mitra, S. 79 P. 156 N. 156 "Warrant .........Act." (B) Mysore Police Act (5 of 1908), S.38, S.63 - POLICE OFFICERS - WARRANT - GAMBLING - INVESTIGATION - Effect of defective warrant on presumption to be drawn under Explanation to S.63 and conviction. Public Gambling Act (3 of 1867), S.6. Criminal P.C. (5 of 1898), S.163. It is not correct to say that the entire proceedings conducted in pursuance of a defective warrant should be held void ab initio or that the irregularity and illegality in the search vitiate the trial and affect the conviction. The only contention that the accused can put forth, as a result of the warrant being defective is that the presumptions arising under the explanation to S. 63 do not arise. 10 Mys LJ 99, Foll. But it does not necessarily follow that the convictions should be set aside because even without the help of these legal presumptions, a conviction can be sustained if there is evidence that the accused are guilty of the offences with which they are charged and also on the basis of natural presumptions. (Para 6) Anno : AIR Man., P.G. Act, S. 6, N. 1; AIR Com., Cr. P.C., S. 103, N. 17 Pt. 1; 1953 Mitra, S. 103 P. 207 N. 215 "Irregular search," (pudh, Patna and Lahore views not noticed in Mitra). Cases Referred : Courtwise Chronological Paras (A) (32) 10 Mys LJ 99 6 T.N. Ramachandra Setty, for Petitioners Asst. Advocate General, for Respondent. Judgement This is a Revision Petition preferred by the petitioner accused 1 and 2 against the judgment of the learned Principal Sessions Judge, Bangalore, in Criminal Appeal No. 180 of 1954, confirming that of the learned Additional First Class Magistrate, Bangalore, in C.C. No. 4413/54, convicting the first petitioner under S. 63(1), Mysore Police Act and sentencing him to undergo simple imprisonment for one month and also to pay a fine of Rs. 200/- and in default to suffer simple imprisonment for a further period of one month, and convicting the second petitioner under S. 63(2), Mysore Police act and sentencing him to undergo simple imprisonment till the rising of the court and also to pay a fine of Rs. 50/- and in default to suffer simple imprisonment for three weeks.

2. The case for the prosecution was that on 4-7-1954 at about 1 P.M. the accused were found gaming on Horse betting in a shop in the occupation of the first petitioner in Choudeswari temple street, that the said shop was being used as a common gaming house and that the accused thereby committed an offence punishable under S. 63, Mysore Police Act. Both the accused pleaded not guilty but the learned Magistrate ultimately convicted and sentenced the petitioners as stated above. As against that decision, the petitioners went in appeal and the learned Sessions Judge confirmed the convictions and sentences passed on the petitioners and dismissed their appeal. As against that judgment, this revision petition is preferred.

3. The main point that arises for consideration is whether the guilt of the petitioners has been brought home to them. So far as A-1 is concerned in appears to me that there is no substance in this petition. He has been convicted and sentenced under S. 63(1), Police Act for having used his shop as a common gaming house. It appears to me that the evidence adduced in the case fully justifies the conviction of this accused under the aforesaid section. That he is in occupation of shop No. J2 in Choudeswari temple street has been, proved by the evidence of P.W. 2, the owner of that shop. His testimony is that he has leased that shop to A-1. The 1st accused also admits the lease and his having been in possession of it on the date of the occurrence. So the only point that arises for consideration is whether the 1st petitioner used or allowed the shop to be used as a common gaming house.

4. What a common gaming house is, has been defined under expln. (3) to S. 4, Mysore Police Act, according to which it means, "a building, enclosure, room, place or vehicle in which any instruments of gaming are kept or used for the profit or gain of the person owning or occupying such building, enclosure, room, place or vehicle or of the person using such building, enclosure, room, place or vehicle, whether he has a right to use the same or not, such profit or gain being either by way of a charge for the use of the instrument of gaming or of the building, enclosure, room or vehicle or otherwise nowsoever." All the ingredients necessary to constitute the shop of the 1st petitioner as a common gaming house have been satisfied. It was contended by the learned counsel for the petitioners that the search warrant issued by the District Superintendent of Police as per Ex. P-2 is highly defective and that the presumptions arising under the explanations to S. 63, Police Act do not arise and that the proceeding taken in pursuance of that warrant was void ab initio. There seems to be considerable force in the contention of the learned Counsel for the petitioners that the warrant is defective. But I am not prepared to accept his contention that the convictions of the petitioners should be set aside just because the search warrant is defective.

5. Exhibit P-2 is issued by the District Superintendent of Police, Bangalore City, under the provisions of S. 38, Police Act. In my opinion, this warrant does not comply with the requirements of the law. Session 38 contemplates the warrant being issued o a particular police officer by name and designation above the rank of constable who is authorised to make the search. In the present case, the warrant Ex. P-2 is not addressed to anybody. It only contains the name and designation of the officer who issued it. This omission seems to make the warrant highly defective. Section 38 does not authorise the issue of a search warrant to all police officers above the rank of a constable in general; nor can such a warrant be executed by a person who is in possession of it without being addressed to him. What it contemplates is that the warrant for execution should be issued to a particular police officer by name and 4esignation and thus authorise him to conduct the search. In this connection, I would like to refer to the form prescribed for writing out the warrant. That form contemplates and provides that it should contain the name and designation of the police officer or other person or persons who have to execute the warrant. In this case, as pointed out already, Ex. P-2 is not addressed to any police officer in particular and that it is therefore defective. Further it is seen that it does not bear the seal of the office from which it is issued or of the officer who issued it. This also renders the warrant defective. The learned Assistant Advocate-General too did not seriously dispute about the warrant being defective for the reasons stated above. Under these circumstances, I hold that Ex. P-2 is a defective warrant.

6. The next point that arises for consideration is as to what the consequences are which ensue on account of the warrant being defective. It is not correct to say that the entire proceedings conducted in pursuance of this defective warrant should be held void ab initio or that the irregularity and illegality in the search vitiate the trial and affect the conviction. The only contention that the petitioners can, put forth, as indeed it was put forward, as a result of the warrant being defective is that the presumptions arising under the explanation to S. 63 do not arise and the said proposition has to be accepted as sound in view of the decision reported in Sannappa v. Govt. of Mysore, 10 Mys L.J. 99 (A). But it does not necessarily follow that the convictions should be set aside because even without the help of these legal presumptions, a conviction can be sustained if there is evidence that the petitioners are guilty of the offences with which they are charged and also on the basis of natural presumptions. So the point for consideration is whether there is other evidence in the case to implicate the petitioners.

7. P.W. 3 is the Inspector of Police who conducted the search and P.W. 1 is another independent witness who speaks to what he saw in the shop of A-1. P.W. 3 has sworn that A-1 was writing the betting slip M.O. 2 on which the names of the horses that had to run on that day have been noted. He has also sworn that M.O. 3, the carbon paper, was used for writing the betting slip and that M.O. 1, the two Race Books were found there. This evidence is corroborated by the evidence of an independent witness like P.W. 1. It is further seen from their evidence that some money was also found and that A-1 was also gaming. In view of the evidence of P.Ws. 1 and 3 and also from the fact that these various articles of gaming were found in the shop of A-1 it can safely be inferred that the shop was being used as a common gaming house. It is not possible or easy to get over the evidence of P.Ws. 1 and 3 so far as A-1 is concerned. It appears to me that the charge against him has been made out.

8. As regards A-2, however, I am of opinion that his conviction cannot be sustained. As stated already, the accusation against him is that he was gaming in a gaming house. He has been convicted under S. 63(2), Police Act. That section provides that whoever is found in any common gaming house gaming or present for the purpose of gaming shall be punished with imprisonment which may extend to six months and fine, etc. There is no evidence worth the name to show that A-2 was gaming in the common gaming hous6 that was being run by A-1 or that he was present there for the purpose of gaming. That A-2 was present in the shop of A-1 has no doubt been proved by the evidence of P.Ws. 1 and 3. This fact is also conceded on the side of the second petitioner. But that is not sufficient in the circumstances on this case to hold that A-2 is guilty. The only evidence as against A-2 is that he was holding a Race Book. Even on this point the evidence is not quite consistent. P.W. 1 is not definite as to whether the book that A-2 was holding was a Race Book. Moreover by the mere fact that A-2 was holding a Race Book it cannot be presumed that he was gaming or that he was present for the purpose of gaming. P.W. 1 has further sworn that A-2 gave the name of some horse to A-1, but immediately thereafter he has stated that he does not remember if A-2 really gave the name of the horse or not. This portion of the evidence of P.W. 1 is not at all corroborated by the evidence of P.W. 3 nor is this fact mentioned in the mahazar Ex. P-1. Thus it is seen that file evidence to implicate A-2 is not sufficient. If at all there is anything against A-2, it is mere suspicion, and suspicion, however strong cannot be the basis of a conviction. Therefore I am of opinion that the conviction of the 2nd petitioner cannot be sustained.

9. In the result, the conviction of the first petitioner and the sentence passed on him are confirmed and this petition, so far as he is concerned, stands dismissed. He will surrender to the bail and undergo the unexpired portion of the sentence. The conviction of the second petitioner and the sentence passed on him are set aside and the petition to that extent is allowed. His bail bonds are cancelled. The fine, if recovered, shall be refunded to him. Order accordingly. AIR 1956 MYSORE 44 (Vol. 43, C. 19 May) "Bheeraasenachar v. Basiah" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) Jois Bheeraasenachar, Plaintiff, Petitioner v. Thekkalakota Basiah Reddy and others, Defendants, Respondents. Civil Revn. Petn. No. 681 of 1954, D/- 19 -12 -1955, against order of Dist. Munsiff, Bellary, D/- 24 -11 -1954. (A) Civil P.C. (5 of 1908), O.6, R.17 - PLEADINGS - AMENDMENT - "At any stage of the proceedings". Necessary amendments should be allowed at any stage of the proceedings provided no injustice is caused to the other side and that the amendment sought for is necessary for the purpose of determining the real question in controversy between the parties. Where the parties have not yet gone to the stage of evidence it cannot be said that the application is belated and even if it is, that is no ground to reject such an application. (Para 5) Anno : AIR Com., C.P.C. O. 6, R. 17, N. 13; 1953 Mulla: O. 6, R. 17, P. 605 N. "At ......proceedings" (7 Pts extra N. 13 to O. 6 R. 17 in AIR Com. - 2 Pts extra in Mulla). (B) Civil P.C. (5 of 1908), O.6, R.17 - PLEADINGS - AMENDMENT - Substitution of new source of title in place of another. The plaintiffs suit was one for a declaration of his title, for possession and for recovery of, mesne profits. The amendment which he sought was to substitute a new source of title in place of another source of title which he urged in the plaint. Instead of claiming the suit schedule property as the one purchased by his father, he now sought to amend the plaint to give up that position and introduce a new source of title to the effect that he had inherited the property from his father directly. In other words, the effect of the amendment was the shifting of one source of title to another. Held that the amendment did not propose to introduce a new or inconsistent case as an alternative to the existing one but the amendment was for deleting the source of title as put forward in the original plaint, and to substitute in its place another source of title. Even after the amendment was allowed, the parties would continue to be the same; the subject matter would be the same and the relief claimed would also be the same. Such being the case the effect of allowing the amendment would not be to change the nature of the suit as brought by the plaintiff. Case law discussed. (Paras 7, 9) Anno : AIR Com., C.P.C. O. 6, R. 17, N. 3; 1953 Mulla: O. 6 R. 17, P. 599, N. 4 "Leave... .case" (Law under old Code with case law thereon indicated in AIR Com. note - 10 Pts extra in AIR Com. note - See also N. 12 to O. 6 R. 17 in AIR Com.) Cases Referred : Courtwise Chronological Paras (A) (V 41) AIR 1954 Nag 54 7 (B) (V 21) AIR 1934 Rang 234 : 153 Ind Cas 931 8 (C) (32) 37 Mys HCR 519 8 (D) (09) 34 Bom 244 : 2 Ind Cas 146 9 (E) (V 35) AIR 1948 Mad 179 : 1947-2 Mad LJ 183 9 M. Narayana Rao and N. Ranga Rao, for Petitioner; M.P. Somasekhara Rao, for Respondent (No. 1). Judgement This is a revision petition filed by the petitioner-plaintiff against the order of the learned District Munsiff, Bellary in O.S. No. 392/53, dismissing his application under O. 6 R. 17, C.P.C., for amendment of the plaint.

2. The facts that have given rise to this petition are briefly as under.

3. The petitioner is the plaintiff and the respondents defendants in the lower Court. The plaintiffs suit was for a declaration of his title to the schedule property, for possession of the same and also for recovery of mesne profits. The title that the plaintiff urged in support of his claim was that his father purchased the schedule property from one Sriniyasachar. The plaintiffs contention now so that he does not acquire title to the schedule property in that way; that such an allegation was made in the plaint due to some bona fide mistake and ignorance on his part; that the real source of title which he wants to set up is that the schedule properly actually belonged to his fathers maternal grandfather and Srinivasachar as co-owners; that in the division between them the schedule property fell to plaintiffs fathers maternal grandfathers share; that from him the property passed to plaintiffs fathers mother and then to plaintiffs fathers family; that at the time of division between the plaintiffs father and his brothers the schedule property fell to plaintiffs fathers share under a registered partition deed dated 14-2-1889 and that after his death the plaintiff has become entitled to it. To have necessary amendment of the plaint in this behalf the plaintiff filed an application in the lower Court praying that the portion in the plaint setting up the purchase of the schedule property by his father from Srinivasachar may be deleted and that he may be allowed to put forth the new source of title as mentioned above.

4. The defendants opposed this application on the ground that the application was belated and that the amendment, if allowed, would have the effect of converting the plaint into a totally different and inconsistent character. This contention found favour with the learned Munsiff who dismissed the plaintiffs application. As against that order of dismissal the present revision petition is preferred.

5. It appears to me that the order of the learned District Munsiff cannot be sustained. As regards the first objection that the application is belated there is no substance. Order 6 R. 17, C.P.C., provides that the Court may allow either party to alter or amend his pleadings at any stage of the proceedings. There are instances where an amendment of the pleading has been allowed even at the stage of appeal and also second appeal. The consensus of opinion appears to be that necessary amendments should be allowed at any stage of the proceedings provided no injustice is caused to the other side and that the amendment sought for is necessary for the purpose of determining the real question in controversy between the parties. In the present case the parties have not yet gone to the stage of evidence and, therefore, it cannot be said that the application is belated and even if it is, that is no ground to reject an application of this type.

6. The next point for consideration is whether the amendment sought for is one that should be allowed. It need hardly be stated that the main object of allowing an amendment is to get at the right of the parties and also to avoid multiplicity of suits. No doubt, an amendment of the pleading should be refused only under certain circumstances, namely, -

(i) when it is not necessary for the purpose of determining the real question in controversy;

(ii) when the amendment, if allowed, has the effect of wholly displacing the plaintiffs case;

(iii) when the amendment has the effect of taking away any legal right already vested in the other side; and

(iv) when the amendment has the effect of introducing a totally different and inconsistent new case. In the present case I do not find any such condition for not allowing the amendment.

7. The plaintiffs suit, as already mentioned, is one for a declaration of his title, for possession and for recovery of mesne profits. The amendment which he seeks is to substitute a new source of title in place of another source of title which he has urged in the plaint. Instead of claiming the suit schedule property as the one purchased by his father, he now seeks to amend the plaint to give up that position and introduce a new source of title to the effect that he has inherited the property from his father directly. In other words, the elf en of the amendment would be the shifting of one source of title to another. Even after the amendment is allowed, the parties will continue to be the same; the subject matter will be the same and the relief claimed will also be the same. Such being the case, I cannot accept the contention urged on the side of the respondents that the effect of allowing the amendment would be to change the nature of the suit as brought by the plaintiff. In this connection, I would also like to refer to a case reported in Mahebubkhun Himmat Khan v. Mohamad Khan Lalknan. AIR 1954 Nag 54 (A). This is a decision of his Lordship Sinha, C.J. (as he then was) and it is laid down in that case that even the introduction of a new case is no ground for refusing an amendment so long as the defendants are not prejudiced as a result of the amendment being allowed. His Lordship has also observed that such an amendment will not have the effect of changing the nature of the suit and that such an amendment should be allowed to avoid multiplicity of suits.

8. The case reported in U Min Sin v. Mamon, AIR 1934 Rang 234 (B) enunciates the proposition that shifting of the source of title cannot be a ground for rejection of an amendment. Again it is found by their Lordships of this Court in the case reported in 37 Mys HCR 519 (C) that it is not an inflexible rule of law that an amendment by which it is sought to modify the original cause of action or add another relief founded upon a different cause of action should be disallowed, and that such all amendment should be disallowed only when it will have the effect of converting the suit as originally filed into one of a different character and it by disallowing (sic) such amendment the defendant is likely to be prejudiced or embarrassed in the trial.

9. On the side of the defendants, reliance is placed on three cases, viz., Bayabai v. Haji Noor Mahomed, 34 Bom 244 (D), 35 Bom 299 (sic) and Seshamma v. Seshadri Ayyangar, AIR 1948 Mad 179 (E). None of these cases seems to support the contentions of the respondents. It is to be pointed out that the first two cases cannot have any bearing on the facts of the present case inasmuch as those are cases decided under the old Civil Procedure Code i.e. under S. 53 of the old Code. The proviso to that section reads thus : "Provided that a plaint shall not be amended either by the party to whom it is returned for amendment, or by the Court, so as to convert a suit of one character into a suit of another and inconsistent character." It is significant to note that the above proviso has been omitted from O. 6. R. 17 of the Code of 1908, under which the present application has been filed. Therefore, whatever justification the learned Judges had in the two Bombay cases referred to above, those cannot be made applicable when dealing with an application filed under O. 6 R. 17 of the present Code. Under the present Code wide powers relating to granting of amendments are conferred on the Courts. In the third case viz. AIR 1948 Mad 179 (E), the suit was origin by based on two specific inconsistent titles. The plaintiff in that case claimed the property as the adopted son and in the alternative as legatee under a will. He sought to introduce by way of amendment a third title, i.e., a title under an earlier will to fall back upon in case the will which he propounded in the case was far some reason or other found to be not true. The amendment sought was so inconsistent and destructive of one another of the reliefs that the learned Judges disallowed the amendment. Here the amendment does not propose to introduce a new or inconsistent case as an alternative to the existing one, but the amendment is for deleting the source of title as put forward in the original plaint, and to substitute in its place another source of title. Therefore, I am of opinion that this case of the Madras High Court also does not support the contention of the respondents-defendants.

10. As mentioned before, trial in the present case has not yet begun. By allowing the amendment the defendants will not be prejudiced because they will certainly be allowed to file their written statements to the amended plaint and also adduce evidence in support of their contentions. The source of titile as now put forth can conveniently be gone into the present suit itself and the defendants will not in any way be embarrassed in the trial. From a perusal of the application and the affidavit in support of if it is seen that the petitioner was not aware of this new source of title till he filed the application. He appears to have bona fide believed till then that the source he had put forth in the original plaint was the correct one. Therefore, his bona fides in filing this application cannot be questioned. Under these circumstances, I am of opinion that the order of the learned District Munsiff cannot be upheld.

11. In the result, the order of the learned District Munsiff of Bellary is set aside and this revision petition is allowed. I direct the parties to bear their own costs. Revision allowed. AIR 1956 MYSORE 46 (Vol. 43, C. 20 May) "A. H. Desai v. State of Mysore" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) A.H. Desai and another, Petitioners v. State of Mysore, Respondent. Criminal Revn. Petn. No. 237 of 1955, D/- 15 -12 -1955 against order of City Magistrate, Mysore, D/- 17 -8 -1955. (A) Criminal P.C. (5 of 1898), S.439 - REVISION - Interlocutory orders. Ordinarily the High Court will be very reluctant to interfere with interlocutory orders in criminal cases, more so in quashing charges framed by the lower Courts. It is only in cases where there is absolute paucity of evidence in support of the charge framed that a charge can be quashed and in which event the High Court will certainly interfere. (Para 8) Anno : AIR Com.: Cr. P.C., S. 439, N. 26. 1949 Mitra: S. 439 P. 1333 N "(4) Preliminary or Interlocutory order and P. 1344 N. 1215 "Power ..... ....case". (B) Criminal P.C. (5 of 1898), S.177 - CRIMINAL COURT - OBJECT OF AN ACT - INTERPRETATION OF STATUTES - PREAMBLE - Scope. Interpretation of Statutes - Mandatory provision - Use of word "shall". Civil P.C. (5 of 1908), Pre.. Section 177 is a general section which of course, has to be read subject to the provisions of the succeeding sections. The use of the word "shall" indicates the mandatory nature at the provision and all offences which do not come within the special provisions under the exceptions provided by the Code should be tried by a Court within the local limits of whose jurisdiction the Offence is committed. (Para 4) Anno : AIR Com.: Cr. P.C., S. 177, N. 1. 1953 Mitra : S. 177 P. 670 N. 457 "General, rule". (7 Pts. extra in AIR Com. note - AIR Com. note exhaustive). (C) Penal Code (45 of 1860), S.120B - CRIMINAL CONSPIRACY - Conspiracy - Proof. To sustain a charge under S. 120B, one of the essential ingredients that the prosecution should establish is that there was an agreement between one or more persons to do an illegal act or a legal act by illegal means. There can be no conspiracy without an agreement in this behalf. No doubt, it is true that direct evidence in proof of conspiracy is seldom available and even when available it will be tainted, being that of an accomplice and requires corroboration. Generally conspiracy is a matter of inference, to be deduced from the criminal acts committed by the accused. Acts and declarations of conspirators in the furtherance of the common design or anything said or done or written by any one of such persons in reference to their common intention and the evidence of conduct of the accused and the surrounding circumstances, both before and after the commission of the offence, may be given in evidence to support or prove the offence of conspiracy. (Para 7) Anno : AIR Man.: Penal Code, S. 120B, N. 4.

V.K. Govindarajulu, for Petitioners; Asst. Advocate-General, for the State. Judgement This is a revision petition filed by Petitioners 1 and 2, who are accused 5 and 6 respectively in C.C. No.1752 of 1953 on the file of the City Magistrate, Mysore, praying that the charges framed against them under S. 120-B and 420, I.P.C. may be quashed, on the ground that the City Magistrate, Mysore, has no territorial jurisdiction to try them and that the evidence adduced in the case does not warrant a charge being framed against them.

2. The charges framed against A-5 and A-6 i.e., the Petitioners in this case, are under Ss. 120-B and 420, I.P.C. According to the charges framed, these accused along with four others, criminally conspired together at Bombay and Mysore between 21-5-1952 and 11-6-1952 with the common intention of cheating P.W. 2 and that in furtherance of that common intention they dishonestly induced P.W. 2 to go to Bombay and made him part with a sum of Rs. 15,992/- after making him believe that a loan of Rs. 4,00,000/- would be granted to him, all along knowing full well that no such loan would be granted.

3. The contention urged on the side of the Petitioners is that they are residents of Bombay, that they are not parties to the offence of conspiracy under S. 120-B, I.P.C. which is alleged to have taken place in Mysore, that the offence of alleged cheating has admittedly taken place in Bombay and that under these circumstances the Courts in Mysore have no territorial jurisdiction to try these petitioners. Section 177, Cr. P.C. was relied on in support of this contention. As against this contention the learned Assistant Advocate-General agreed that the alleged conspiracy commenced in Mysore and was completed in Bombay, that the offence under S. 420, I.P.C. took place in pursuance of the conspiracy mentioned above and that, therefore, the Court of the City Magistrate, Mysore, had jurisdiction, and reliance was placed on S. 182 Criminal P.C.

4. Section 177, Criminal P.C. runs thus : "Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed." This section is a general section which of course, has to be read subject to the provisions of the succeeding sections. The use of the word "shall" indicates the mandatory nature of the provision, and all offences which do not come within the special provisions under the exceptions provided by the Code should be tried by a Court within the local limits of whose jurisdiction the offence is committed. No doubt, under S. 182 Criminal P.C., in certain cases, an offence committed in one place may be tried in another. The circumstances under which that can be done are enumerated in the section itself, and they are : (1) when it is uncertain in which of the several local areas an offence was committed; (2) when an offence is committed partly in one local area and partly in another; (3) Where an offence is a continuing one and continues to be committed in more local areas than one, or (4) where the offence consists of several acts done in different local areas. In those cases, the offence committed may be inquired into or tried by a Court having jurisdiction over any of such local areas. Therefore the point that arises for consideration in this case is as to within the Jurisdiction of which Court or Courts the offences with which the petitioners are charged, have taken place. The City Magistrate in Mysore will have jurisdiction to try the petitioners accused 5 and 6, only if the offences complained of or any portion of them are committed within the local jurisdiction of his Court.

5. It is common ground that these petitioners are residents of Bombay and that they never set their foot on the soil of this State until they were produced before the Court of the learned City Magistrate under a warrant issued by him. It is also conceded that the offence of cheating took place in Bombay. The offence of cheating may be tried either at the place where the cheating was actually committed or at the place where the loss ensued. In this case, both these have admittedly taken place in Bombay. Therefore, so far as the offence under S. 420, I.P.C. is concerned, it is only the Court of Bombay that will have jurisdiction to try these petitioners and the Courts in Mysore cannot have jurisdiction to try the petitioners who are permanent residents of Bombay, for offences alleged to have been committed in Bombay itself. So the other point, whether the offence of alleged conspiracy as against these petitioners can be tried in Mysore, will have to be considered.

6. There does not appear to be any truth or substance in the contention of the learned Assistant Advocate-General that the conspiracy started in Mysore and was completed in Bombay. The evidence adduced in the case does not warrant that conclusion. The case for the prosecution appears to be that accused 1 to 4 conspired together at Mysore and that, in pursuance of that conspiracy, they joined accused 5 and 6 at Bombay and cheated P.Ws. 1 and 2. That this is so can easily be gathered from the evidence of P.Ws. 1 and 2 and their conduct. They are the persons who are actually cheated. Exhibit P-11 is the complaint given by P.W. 1 to the Honble Home Minister to the Government of Mysore. This is dated 6-8-1952. We do not find the names of the petitioners in this complaint petition. The prayer therein is that the Police may be directed to take action against H.V.R. Iyengar and Krishnappa, who are accused 1 and 3 respectively in this case, and who are residents of Mysore. Even earlier to this petition, the same P.W. 1 gave a petition as per Ex. P-12 to the Commissioner of Police, Bombay, on 1-7-1952. In Ex. P-11 the Honble Home Minister was requested to take action as against A-1 and A-3 and in Ex. P-12 the Commissioner of Police was requested 10 take action against A-5 and A-6 who have been living in Bombay. From a reading of these petitions and the evidence of P.Ws. 1 and 2, it will be clear that they too believed that the Mysore authorities had no jurisdiction to take action against A-5 and A-6.

7. To sustain a charge under S. 120-B, one of the essential ingredients that the prosecution should establish is that there was an agreement between one or more persons to do an illegal act or a legal act by an illegal means. There can be no conspiracy without an agreement in this behalf. No doubt, it is true that direct evidence in proof of conspiracy is seldom available and even when available it will be tainted, being that of an accomplice and requires corroboration. Generally conspiracy is a master of inference to be deduced from the criminal acts committed by the accused. Acts and declarations of conspirators in the furtherance of the common design for anything said or done or written by any one of such persons in reference to their common intention and the evidence of conduct of the accused and the surrounding circumstances, both before and after the commission of the offence, may be given in evidence to support or prove the offence of conspiracy.

8. In the present case, the evidence on the prosecution side has been over the evidence adduced does not in any way connect the petitioners, with the conspiracy that is alleged to have taken place in this case. The evidence of P.Ws. 1 and 2 goes to show that the conspiracy took place at Mysore among the other accused viz. A-1 to A-4. As admitted by them, A-5 and A-6 did not come to Mysore at all. There is neither oral nor documentary evidence to connect these petitioners with the conspiracy in any manner. There is no force in the contention that the conspiracy also took place in Bombay. The charge itself is that P.W. 2 was dishonestly induced to go to Bombay in pursuance of the conspiracy that was hatched. Further the evidence of P.Ws. 1 and 2 goes to disclose that none of the other accused mentioned the name of A-6 as the financier or the name of A-5 as the legal adviser of A-6 before-they went to Bombay and that it is only after accused 1, 2 and 3 went to Bombay that A-6 was introduced as the financier who directed them to his legal adviser A-5. When that is so, it is impossible to believe that the petitioners could have had anything to do with the conspiracy that is alleged to have taken place in Mysore. As pointed out already; there is not even an iota of evidence, oral or documentary, to connect these petitioners with, the alleged conspiracy. I am of opinion that the learned City Magistrate, Mysore, has no jurisdiction to try the present petitioners for the alleged offences. Section 182, Criminal P.C. is of no avail to the learned Assistant Advocate-General. None of the conditions laid down therein can be made applicable to the facts of the present case. Ordinarily this Court will be very reluctant to interfere with interlocutory orders in criminal cases, more so in quashing charges framed by the lower Courts. It is only in cases where there is absolute, paucity of evidence in support of the charge framed that a charge can be quashed and in which event the High Court will certainly interfere. It appears to me that it is not expedient in the interests of justice to continue these proceedings against these petitioners which, to my mind, appear to be quite illegal.

9. In the result, this petition is allowed, and the charges framed against the present petitioners under Ss. 120-B and 420, I.P.C. are quashed and direct that the proceedings against these petitioners be dropped. The petitioners who are stated to be under trial prisoners in the Mysore Sub-Jail are directed to be released forthwith. Revision allowed. AIR 1956 MYSORE 47 (Vol. 43, C. 21 May) "Muniyappa v. Ramakrishna" MYSORE HIGH COURT Coram : 2 PADMANABHIAH AND SREENIVASA RAU, JJ. ( Division Bench ) Muniyappa, Defendant, Appellants v. S.V. Ramakrishna, Plaintiff, Respondent. Misc. Appeal No. 44 of 1955, D/- 4 -11 -1955, against order of First Addl. Dist. J., Bangalore, D/- 30 -7 -1955. (A) Civil P.C. (5 of 1908), O.41, R.27(h), R.25 - APPEAL - EVIDENCE - APPELLATE COURT - Application for adducing additional evidence dismissed - Dismissal whether bars remand. @page-Mys48 Dismissal of the previous application for adducing additional evidence cannot be a bar to the order of remand directing the lower Court to allow plaintiff to adduce additional evidence. (Para 3) Under O. 41, R. 27 Cl. (b), the appellate Court 4ias jurisdiction and discretion to direct that additional evidence, either oral or documentary, be produced. Under this provision, the admissibility of additional evidence does not depend upon the relevancy to the issue on hand or on the fact whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The expression substantial cause confers a wide discretion on the appellate Court to admit additional evidence when the ends of justice require it. (Para 3) Anno : AIR Com., Civil P.C. O. 41 R. 25, N. 6; 1953 Mulla: (Topic discussed in AIR Com. note extra). AIR Com., Civil P.C. O. 41 R. 27 N. 8; 1953 Mulla: O. 41 R. 27 P. 1220 N "Or... .cause" (13 Pts extra in AIR Com. note. - Footnotes in AIR Com. exhaustive and illustrative - Views of other High Courts not noticed in Mulla). (B) Civil P.C. (5 of 1908), O.41, R.27 - APPEAL - EVIDENCE - APPELLATE COURT - Admission of additional evidence. When a party has discovered new and important evidence which was not available at the trial the appellate Court is entitled to admit such evidence under O. 41 R. 27(b). (Para 4) Anno : AIR Com., C.P.C., O. 41, R. 27 N. 9; 1953 Mulla: O. 41, R. 27 P. 1220 N "Where... .produced" and P 1318 N "when.... .admitted" (Patna case AIR 1937 P 583 not properly interpreted in Mulla). B.T. Ramaswami for Appellant; R. Anantharaman, for Respondent. Judgement PADMANABHIAH, J. :- This is an appeal preferred by the appellant, defendant against the decision of the learned First Additional District Judge, Bangalore, in R.A. 106/54, setting aside the judgment and decree in O.S. 66/53 on the file of the learned Principal Subordinate Judge, Bangalore, and remanding the suit for fresh disposal.

2. The respondent was the plaintiff and the appellant the defendant in O.S. 66/53. Plaintiffs suit was on a pronote. The defence was denial of execution and of receipt of consideration. The defendant contended that he does not know English, that the signature in English on the suit pro-note was not his and that he had not executed the pronote. This contention found favour with the learned Subordinate Judge who dismissed the suit. The plaintiff took up this in appeal and the learned Additional District Judge set aside the judgment and decree of the Court below and remanded the suit for fresh disposal according to law. As against that order of remand, this appeal is filed.

3. The main question that arises for consideration is whether the order of remand can or cannot be supported. It is seen from a perusal of the judgment of the lower appellate Court that after considering the evidence in the case and hearing arguments, the learned District Judge felt that it was necessary in the interests of justice to allow the plaintiff to adduce additional evidence, and he accordingly set aside the judgment and decree and remanded the suit. The contention urged on the side of the appellant is that an application filed by the plaintiff-respondent as per I.A. No. I under O. 41, R. 27, praying for permission to adduce additional evidence was dismissed by the very Judge and that the lower appellate Court had no jurisdiction to grant the same relief to the plaintiff which was previously refused. We are of opinion that the dismissal of the previous application cannot be a bar to the order of remand. No doubt, it is true that plaintiffs prayer for adducing additional evidence was refused by the lower appellate Court by dismissing plaintiffs application, I.A. No. 1. But it is not correct to say that that Court had no jurisdiction to remand the suit for additional evidence because the previous application filed by the plaintiff was dismissed. Under O. 41, R. 27, Cl. (b), the appellate Court; has jurisdiction and discretion to direct that additional evidence, either oral or documentary, be produced. Under this provision, the admissibility of additional evidence does not depend upon the relevancy to the issue on hand or on the fact whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is seen that the expression substantial cause confers a wide discretion on the appellate Court to admit additional evidence when the ends of justice require it. I.A. No. 1 was dismissed by the learned Judge earlier for reasons other than those for which he has now granted the same relief. Therefore, we are of opinion that the dismissal of I.A. No. 1 is no bar to the appellate Court granting the same relief under O. 41, R. 27(b).

4. What the plaintiff wants in this case is to summon certain documents bearing the signature of the defendant in English and to examine the Handwriting Expert to prove that the signature in the suit pronote is that of the defendant. From the affidavit filed by the plaintiff, it is clear, that some of the documents which he now wants to summon were not within his knowledge at the time when the case was disposed of in the trial Court. When a party has discovered new and important evidence which was not available at the trial, the appellate Court is entitled to admit such evidence under O. 41 R. 27(b). The evidence sought to be adduced appears to be quite essential and material to come to a correct conclusion with respect to the matter in dispute. The defendant will not be prejudiced in any way by the order of remand inasmuch as he will have plenty of opportunity to rebut the evidence that the plaintiff may adduce. Under these circumstances, we are of opinion that the order of remand should be upheld on payment of some costs to the appellant.

5. In the result, the order of remand, is confirmed and this appeal stands dismissed. However, we direct that the plaintiff shall pay a sum of Rs. 25/- as costs to the appellant-defendant before he is permitted to adduce evidence. Order accordingly. AIR 1956 MYSORE 49 (Vol. 43, C. 22 July) "Sheikh Ahmed v. State of Mysore" MYSORE HIGH COURT Coram : 1 HOMBE GOWDA, J. ( Single Bench ) Sheikh Ahmed and another, Accused-Petitioners v. State of Mysore, Complainant-Respondent. Criminal Revn. Petn. No. 130 of 1955, D/- 7 -12 -1955, against decision of Sub-Divisional Magistrate, Hospet, in Criminal Appeal No. 30 of 1954. (A) Penal Code (45 of 1860), S.379, S.447 - THEFT - CRIMINAL TRESPASS - Removal of crop - Accused claiming bona fide right in land - Nature of offence - Points to be proved. When it is asserted by a person accused of theft and trespass that the land in dispute was in his possession; that he had raised the crop in dispute and had a right to cut and remove the same and his assertion is supported by some evidence, he cannot be convicted for offences of trespass and theft unless it is proved beyond doubt that his claim is a mere pretence. Where the alleged theft consists in the removal of the crop grown on the land, the most vital point to be investigated is as to which of the parties had raised the crop in question and the decision on the point will, in the majority of cases, enable the Court to come to a definite conclusion as to whether the claim of the accused person is made in good faith or is a mere pretence. 23 Mad 304, Rel. on. (Para 4-5, 4-5) Anno : AIR Man., I.P.C., Ss. 378, 379 N. 9, 22; Ss. 441, 447, N. 5. A Magistrate is bound to consider the evidence of the defence witnesses, for what it may be worth, before arriving at a conclusion. The conspicuous omission to refer to the evidence of the defence witnesses in the course of the judgment shows clearly that the Magistrate did not actually apply himself to the facts of the case and form an explicit opinion of his own on the questions of fact involved in the case, as required under the law. (Para 2) Anno : AIR Com., Cr. P.C., S. 367, N. 6; 1954 Mitra, S. 367 P. 1475 N. "Decision thereon" and P. 1477 N. "Circumstantial evidence" (Topic discussed in N. 6 to S. 367 in AIR Com, on "Appreciation of evidence" extra). Cases Referred : Courtwise Chronological Paras (A) (05) 28 Mad 304 6 G.S. Ullal, for Petitioners; Advocate General, for Respondent. Judgement This revision petition is directed against the judgment of the Sub-Divisional Magistrate, Hospet, in Cr. App. No. 36 of 1954, confirming the convictions and sentences passed against the petitioners by the Stationary Sub-Magistrate, Hospet, in C.C. No. 1352 of 1953 on his file. The petitioners have been convicted under Ss. 447 and 379, I.P.C. and have each been sentenced to pay a fine of Rs. 10/- and Rs. 15/- respectively and in default of payment of fine, to suffer rigorous imprisonment for one week and two weeks respectively on each of the counts. The case for the prosecution is that the petitioner trespassed into the wet land bearing S. No. 318/2 of Malapanagudi village belonging to one Sulakshana Bai on 7-12-1952 and forcibly cut and removed the paddy crop which had been raised by her tenants and thereby committed offences punishable under Ss. 447 and 379, I.P.C. On the report of the V.M. of the village, the Sub-Inspector of Police placed a charge-sheet against the petitioners before the Stationary Sub-Magistrate, Hospet for offences under Ss. 447 and 379, I.P.C. after necessary investigation. The learned Magistrate framed charges for the above said offences against both the petitioners and called upon them to enter upon their defence. The petitioners stated before the learned Magistrate, when they were examined under S. 342, Criminal P.C. that the land in dispute was in the possession of petitioner I and that the crop in dispute had been raised by him and that they had not committed any act of trespass or theft in respect of the said crop. Having entered upon their defence, the petitioners examined some witnesses to prove that petitioner 1 was in actual possession and enjoyment of the land in dispute and the crop in question had been raised by his tenants for and on his behalf and that he had a bona fide right to cut and remove the said crop. The learned Magistrate held that the land in dispute was in the possession of Sulakshana Bai; that the crop in dispute had been raised by her tenants; that the bona fide claim advanced by petitioner 1 was untenable and found the petitioners guilty for offences punishable under Ss. 447 and 379, I.P.C. and convicted and sentenced them as above said. The petitioners preferred an appeal against the convictions and sentences passed against them by the learned Stationary Sub Magistrate, Hospet, to the Court of the Sub-Divisional Magistrate, Hospet. The learned Sub-Divisional Magistrate, as already stated, dismissed the appeal and confirmed the convictions and sentences passed against the petitioners. It is against this judgment that the present revision has been filed by the petitioners.

2. It was contended by Sri Ullah, the learned Advocate for the petitioners, that the appellate Court had not at all considered the evidence of the defence witnesses and had not applied its mind to the question as to whether there was any substance in the contention of the petitioners that the land in dispute was actually in the possession and enjoyment of petitioner 1 and the crop in dispute had been raised for and on his behalf by the tenants. He contended further that the judgment of the appellate Court was almost a paraphrase of the judgment of the trial Court and did not disclose that it had applied its mind independently to the facts of the case, and had arrived at a conclusion of its own. There is some force in this contention. The conspicuous omission to refer to the evidence of the defence witnesses in the course of the judgment of the appellate Court supports the contention of the learned Advocate for the petitioners that the learned Sub-Divisional Magistrate did not actually apply himself to the facts of the case and form an explicit opinion of his own on the questions of fact involved in the case, as required under the law. The learned Magistrate has not formulated the questions for decision and discussed the evidence under the necessary heads and arrived at conclusion of his own before confirming the convictions and sentences passed against the petitioners. The learned Magistrate was bound to consider the evidence of the defence witnesses, for what it may be worth, before arriving at a conclusion that the land in dispute was in the possession of P.W. 1 - Sulakshana Bai and the crop in question had been raised by her tenants. On the evidence on record, it cannot reasonably be said that the claim of petitioner 1 that he was in actual possession of the land in dispute, that he had raised the crop in dispute, and had a right to cut and remove the same was mala fide or baseless. It is admitted by the prosecution that the land in question had been granted to petitioner 1 an ex-military employee, in the year 1947 and was in his possession till it was granted to Sulakshana Bai on 21-12-1949, under Ex. P-6. It is the case of the prosecution that the land in dispute which was in the possession and enjoyment of petitioner 1 was actually delivered over to Sulakshana Bai on 21-12-1949. It is undisputed that no eviction order had been passed or served on petitioner 1. It is not also disputed that petitioner 1 was not a party to Ex. P-6 or to any other document under which the land is alleged to have been delivered over to Sulakshana Bai on 21-12-1949. It is alleged by the prosecution that P.W. 5 Sidappa, who was a tenant of petitioner 1 attorned to Sulakshana Bai on and from 21-12-49 by attesting Ex. P-6 and therefore, the land was actually delivered over to the possession and enjoyment of Sulakshana Bai from that day onwards.

3. That the land in dispute was not actually delivered over to Sulakshana Bai on 21-12-49 is clear from Ex. P-10, a petition presented by P.W. 2, Seetha Bai, the mother of Sulakshana Bai on 29-7-1952. It is stated in this petition that Siddappa, had joined hands with the petitioner and had helped them to take forcible possession of the same on the ground that the same had been allotted to petitioner 1, (an ex-service military man). It is further recited in Ex. P-10 that none of the villagers of Malapanagudi were coming forward to cultivate the land on behalf of P.Ws. 1 and 2 being afraid of the petitioner and their tenant Siddappa; that the petitioner had illegally deprived P.Ws. 1 and 2 of their enjoyment of the land and as such it was necessary that the matter should be enquired into urgently and the right of Sulakshana Bai protected. Exhibit P-11 is another complaint lodged before the Tahsildar of Hospet, Bellary District, by P.W. 1, Sulakshana Bai on 28-7-1952 asking for the same relief. Exhibit P-12 is the statement of petitioner 1 recorded by the Tahsildar on 30-7-1952 in respect of Exs. P-10 and P-11. It is clear from a perusal of Ex. P-12 that petitioner 1 stated in unequivocal terms that he was in actual possession and enjoyment of the land in dispute; that he had raised the crop without the knowledge of the fact that the land had been allotted to Sulakshana Bai and that he was not prepared to give his possession. It is, therefore, clear that in the month of July 1952, petitioner 1 was in possession and enjoyment of the land and had asserted his right to continue to be in possession and had further stated that he had raised the crop on the land. It is after all these proceedings that the Tahsildar of Hospet sent Ex. P-13 to the Sub-inspector of Police, Hospet Kasaba to take action against petitioner 1 and to submit a report in the matter. Exhibit P-14 is the report submitted try the Sub-Inspector of Police Hospet on 27-8-1952, in which he has stated that the parties had settled their disputes amicably and Sheik Ahmed (petitioner I) had given possession of the land to Sulakshana Bai and therefore, no further action was necessary or called for in the matter. It is interesting to note that Ex. P. 14 is not signed by petitioner 1. There is no other documentary evidence to prove that petitioner 1 had settled the matter with Sulakshana Bai or her mother and had agreed to give up possession or had actually delivered possession to any one of them on or before 27-8-52. The evidence, on the other hand, discloses that petitioner 1 continued to be in possession and enjoyment of at least a portion of the land even subsequent to the date of Ex. P(14) and had raised the crop on the same. 4-5. (His Lordship then discussed the oral evidence and continued as under :-) It is clear, therefore, from a perusal of the evidence adduced in the case that petitioner 1 was asserting his bona fide right to be in possession and enjoyment of the land and Had been contending that he had raised the crop in question and had a right to cut and remove the same. The dispute between the parties is mainly one of civil nature. Petitioner 1 has been contending throughout that he bona fide believed that the land belonged to him, having been granted to him in the year 1947 by the Revenue Authorities and that he had a right to be in possession thereof, till he was duly evicted. He had also been contending that he had raised the crop in dispute and therefore, had a right to cut and remove the same. P.W. 2, on the other hand, has been asserting her right to the crop on the ground that her tenants had raised the crop. When it is asserted by a person accused of theft and trespass that the land in dispute was in his possession; that he had raised the crop in dispute and had a right to cut and remove the same and his assertion is supported by some evidence, he cannot be convicted for offences of trespass and theft unless it is proved beyond doubt that the claim is a mere pretence. As already pointed above, in this case, it cannot reasonably be urged that the claim of petitioner 1 that he continued to be in possession of the land in dispute and had raised the crop in dispute was a mere pretence. In cases of the type on hand, where the alleged theft consists in the removal of the crop grown on the land, the most vital point to be investigated is as to which of the parties had raised the crop in question and the decision on the point will, in the majority of cases, enable the Court to come to a definite conclusion as to whether the claim of the accused person is made in good faith or is a mere pretence. On the evidence on record, the claim of petitioner 1 to the crop in question cannot be said to be mala fide or a mere pretence. Petitioner 1 was admittedly in possession of the land on 30-7-52. It is impossible to believe the version of the P.Ws, that petitioner 1 had allowed the tenants of P.Ws. 1 and 2 to enter upon the land in dispute and to raise the crop subsequent to the month of July 1952. In these circumstances, the learned Magistrate was not justified in finding the petitioners guilty of offences punishable under Ss. 447 and 379, Penal Code, and convicting them.

6. Reference in this connection may be made to a decision reported in - Alagaraswami Tewan v. Emperor, 28 Mad 304 (A), wherein it has been laid down that it is the province of civil Courts to decide questions of ownership of land between Government and parties and if the Revenue Authorities take summary possession of land (as in the present case) they become mere trespassers and there is nothing dishonest in the owner taking possession of his own property. In that case, the accused had removed certain bamboos on the ground that he was the owner of the land. Prior to his conviction, disputes had arisen between the Revenue Authorities and the accused regarding the ownership of the land. The accused contended that he bona fide believed bamboos to be his property at the time he cut and removed them. The learned Magistrate found that the Revenue authorities had taken possession of the land at the time which the bamboos were cut and removed and found him guilty of the theft of the bamboos and convicted him. The High Court of Madras held that the conviction was wrong. It was observed by the High Court that the questions to be considered were (1) whether the Bamboos did in fact belong to the petitioner or to Government or (2) whether if they did not belong to the petitioner he bona fide believed they did. The facts of the present case are almost similar to the facts established in the abovesaid case. Applying the principles laid down in the above case, it cannot be said that the petitioners had, committed any offence under Ss. 447 and 379, Penal Code and the convictions of the petitioners cannot, therefore, be supported and are liable to be set aside.

7. In the result, therefore, this revision petition is allowed and the convictions and sentences passed against the petitioners are set aside and they are acquitted. The fine amounts, if already paid, are ordered to be refunded to them. Revision petition allowed. AIR 1956 MYSORE 51 (Vol. 43, C. 23 July) "Devaiya v. State of Coorg" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) J.K. Devaiya, Accused-Petitioner v. State of Coorg, Complainant-Respondent. Criminal Revn. Petn. No. 304 of 1955, against decision of S.J. Coorg, Mercara in Criminal Appeal No. 12 of 1955, D/- 28 -2 -1956. (A) Penal Code (45 of 1860), S.243 - COUNTER-FEIT - POSSESSION - Essential ingredients - Proof of. To sustain a conviction under S. 243, I.P.C., the prosecution should establish: firstly, that the accused was in possession of coins; secondly, that the said coins were counterfeit coins; thirdly, that the accused was in possession with intent to defraud, and fourthly, that the accused, at the time he became possessed of them, knew that they were counterfeit. (Para 5) Anno : AIR Man., Penal Code, S. 243, N. 1. (B) Criminal P.C. (5 of 1898), S.439 - REVISION - EVIDENCE - Interference with finding of fact based on appreciation of evidence. Generally the High Court will not interfere with or differ from the opinion of the trial Courts regarding the credibility of witnesses. But where the acceptance of the opinion will lead to miscarriage of justice, the High Court will certainly interfere. (Para 9) Anno : AIR Com., Criminal P.C., S. 439, N. 15. (C) Evidence Act (1 of 1872), S.114 - EVIDENCE - Non-examination of a material witness - Inference. Where a material witness for the prosecution, has not been examined and no explanation is forthcoming for his non-examination an adverse inference against the prosecution may be drawn. (Para 10) Anno : AIR Man., Evidence Act, S. 114, N. 11. (D) Evidence Act (1 of 1872), S.3, S.134 - WITNESS - EVIDENCE - Standard of proof - Conviction on basis of evidence of single witness. The indian evidence act does not provide that any particular number of witnesses should be examined in proof of any fact and therefore a conviction can be based even on the solitary testimony of a single witness provided that witness is believed by the Court. This principle will generally hold good when the fact to which he deposes is not within the knowledge of any one else or when the incident or the occurrence is not witnessed by anybody else. But when there are others equally respectable and disinterested who have witnessed the occurrence, which is in issue, and when those witnesses or at least some of them are not examined in corroboration of the evidence of the other witness and no explanation is offered for their non-examination, generally it is unsafe to rely on the uncorroborated testimony of a single witness in a case of this type where the liberty of the subject is at stake. The non-examination of the other material witnesses, though available, will very much weaken the evidence of the single witness, however respectable he may be. (Para 11) Anno : AIR Man., Evi. Act, S. 134, N. 1; C.J.I. Evi. Act, S. 3, N. 44. (E) Criminal P.C. (5 of 1898), S.154 - FIR - First information - What constitutes. To constitute a first information report two conditions are to be fulfilled, firstly what is conveyed must be an information, and secondly, that information should relate to the commission of a cognizable offence on the face of it. (Para 14) A person told the District Superintendent of police that the accused was carrying on a scheme for the manufacture of counterfeit coins and currency notes with fraudulent intention and that the accused was in possession of M.O. 1 counterfeit coins, with the intention of setting the police in motion. The District Superintendent of Police, relying on this information, started investigation by deputing P.W. 1 to apprehend the accused and seize M.O. 1 : Held that the information conveyed to the D.S.P. was information regarding the commission of an offence and not an information which led to the discovery of a crime. (Para 14) Anno : AIR Com., Criminal P.C., S. 154, N. 3, 4. (F) Criminal P.C. (5 of 1898), S.154 - FIR - Recording of information whether discretionary - Information to officer superior in rank to officer in charge of police station - Procedure. It is not correct to say that police officers superior in rank to an officer in charge of a police station may or may not record information which is given to them regarding the commission of a cognizable offence, because to accept such a proposition may lead to absurdities and ultimately to failure of justice. The first information regarding the commission of cognizable offence conveyed to a police officer superior in rank to an officer-in-charge of a police station, if not immediately recorded, may not some times become available subsequently for various reasons. Therefore, two courses should suggest themselves to police officers superior in rank to an officer-in-charge of a police station when information regarding the commission of a cognizable offence is reported to them. When such information is conveyed, the police officer in question must, in eases where he is not inclined to record the information, make arrangements to cause the production of the informant that the said officer may record the information as required under S. 154, Criminal P.C. The other course is to record the information himself in cases where he intends to take action on the first information. (Para 16) Anno : AIR Com., Criminal P.C., S. 154 N. 5, 7. (G) Criminal P.C. (5 of 1898), S.154 - FIR - Importance of first information. The importance of the first information from the stand-point of the accused cannot lightly be ignored. The very object of insisting on a first information regarding the commission of the offence is to obtain early information regarding the alleged criminal activity and to record the circumstances before there is time for the parties concerned to embellish or develop the case as circumstances present themselves to them. That information so far as the accused is concerned because he is entitled to know as to what was the nature or the manner in which the occurrence was first related or started. The first information report is a very valuable document and the accused is entitled to know what was said before the officer in charge of the police station so that he may be in a position to protect his interests by cross-examining the prosecution witnesses with respect to say additions or alterations in the story of the prosecution which may subsequently be made in evidence. (Para 17) Anno : AIR Com., Criminal P.C., S. 154, N. 9. (H) Criminal P.C. (5 of 1898), S.154 - FIR - Non-recording of first information - Effect. The non-recording by the D.S.P. of the information given to him by a witness and his non-examination are serious omissions from which an adverse inference has to be drawn as against the prosecution. (Para 17) Anno : AIR Com., Criminal P.C., S. 154, N. 5, 12.

(I) Criminal P.C. (5 of 1898), S.156 - POLICE OFFICERS - INVESTIGATION - Non-examination of investigating officer - Effect. An accused is entitled to know from an investigation officer what witnesses have been examined in the course of investigation, whether the witnesses examined in court were examined by him or not what story the witnesses told before him and whether the same is consistent with the evidence given before Court. The non-examination, of the investigating officer is also a serious omission on the part of the prosecution. (Para 18) Anno : AIR Com., Criminal P.C., S. 156, N. 3. C.B. Motiya, for Petitioner; D.M. Chandrasekhar, for Advocate-General, for Respondent. Judgement This is a revision petition preferred by the petitioner-accused against the judgment of the learned Sessions Judge, Mercara, in Criminal Appeal No. 12/1955, confirming that of the learned Munsiff and First Class Magistrate, Mercara, in C.C. No. 295/1054, convicting him of an offence under S. 243, I.P.C., and sentencing him to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 560/- and in default to suffer rigorous imprisonment for a further period of three months.

2. The facts that have given rise to this petition are briefly as follows :

3. The accused was charge-sheeted for an offence under S. 243, I.P.C. in the Court of the learned Munsiff and First Class Magistrate, Mercara, and the case for the prosecution was that on 23-11-53 the accused was found in fraudulent possession, of four counterfeit India Government Rupee coins of 1947 pattern having known at the time he became possessed of them that they were counterfeit and that he thereby committed an offence punishable under S. 243, I.P.C. The accused pleaded not guilty to a charge framed under the above section but the learned Magistrate ultimately convicted and sentenced the petitioner as stated above. As against that judgment, the petitioner preferred an appeal to the learned Sessions Judge. Mercara, who confirmed the conviction of the petitioner and the sentence passed on him by the trial Court. As against that decision, this revision petition is filed.

4. The main point that arises for consideration is whether the guilt has been brought home to the petitioner. Though both the Courts below have concurrently found that the accused is guilty, yet I am constrained to observe that the conviction cannot be sustained inasmuch as it is based on evidence which is very meagre and inconclusive. The offence relates to coins which form the currency of the land, and S. 243, I.P.C., provides a substantive sentence of seven years as punishment for this offence. Thus it is seen that the charge brought against the petitioner is a serious one and in such cases Courts should expect a higher degree of proof in support of the case for the prosecution.

5. To sustain a conviction under S. 243, I.P.C., the prosecution should establish firstly that the accused was in possession of coins; secondly that the said coins were counterfeit coins; thirdly that the accused was in possession with intent to defraud, and fourthly that the accused, at the time he became possessed of them, knew that they were counterfeit. From a perusal of the evidence, I am of opinion that the first two ingredients have been established but not the other more important ingredients viz., ingredients Nos. 3 and 4.

6. The four coins in question are marked as M.O. 1 in this case. That they are counterfeit coins is proved by the evidence of P.W. 8, the Coins and Currency Expert. Exhibit P-6 is his report. He has assigned four reasons for coming to the conclusion that M.O. 1 are counterfeit coins, they being : (1) that M.O. 1 coins are cast coins and that all cast coins are counterfeit coins; (2) that M.O., 1 coins are not attracted by magnet whereas the genuine coins of the year 1947 are attracted;

3. that the milling and securing groves on the edges of these coins are crude and irregular and

4. that these coins are lighter in weight than the genuine coins. In view of the evidence of P.W. 8 and also the evidence of P.Ws. 1 and 7 who had actually seen the coins and also in view of the circumstances that the above fact is not disputed on the side of the defence, I think the Courts below were right in coming to the conclusion that M.O. 1 coins are counterfeit coins.

7. It is P.W. 1 who actually seized M.O. 1 from the possession of the accused under the mahazar Ext. P-1. This is sworn to by P.W. 1 and the mahazar witnesses. Further the fact of seizure is not disputed by the accused. As a matter of fact, he has admitted his having been in possession of these coins but his contention has been that he came into possession of these coins in the course of his paddy trade. So the first two ingredients necessary to constitute an offence under S. 243, I.P.C., may be taken as having been proved.

8. But the more important ingredients necessary to sustain a conviction for an offence under S. 243, I.P.C., have not, in my opinion, been established, they being that possession of these coins by the accused was fraudulent and that he knew, at the time he became possessed of those coins, that they were counterfeit coins. The Courts below have mainly relied on the uncorroborated oral testimony of P.W. 7 in coming to the conclusion that the possession by the accused was fraudulent and that he knew at the time when he became possessed of these coins that they were counterfeit coins. No doubt, the evidence of P.W. 7 is clear that the accused disclosed to him his scheme to manufacture counterfeit currency notes and coins and that the accused also showed the witness the four coins M.O. 1 some time prior to their seizure by P.W. 1. It is also true that if the evidence of P.W. 7 is accepted without any reservation, the case for the prosecution will have been proved. But, in my opinion the Courts below were wrong in accepting the solitary testimony of P.W. 7 in arriving at this conclusion, on such an important point as that.

9. Generally this Court will not interfere with or differ from the opinion of the trial Courts regarding the credibility of witnesses. But, in this case, to accept the above principle without any reservation seems to lead to miscarriage of justice. Therefore I am compelled to go into the question whether the Courts below were right in accepting the evidence of P.W. 7 in toto and in convicting the accused. The prosecution is, in my opinion, guilty of serious omissions in the conduct of the case, and the police in the investigation thereof.

10. Under S. 243, I.P.C., only possession of coins which the person in possession knew to be counterfeit at the time he became possessed of them is criminal and not any other kind of possession. This was a very material ingredient which the prosecution should have made out with all the available evidence that they had. This has not been done. It is not the case for the prosecution that the only witness who was conversant with the scheme of the petitioner for manufacturing counterfeit coins and currency notes was P.W. 7. The evidence discloses - and it is also not disputed - that these facts to which P.W. 7 has deposed were within the knowledge of another person by name Muthanna, who is said to be equally respectable as P.W. 7 and that it is through Muthanna that P.W. 7 got into contact with the accused. According to the prosecution, it is that Muthanna that first came to know through the accused about his scheme. In my opinion, this witness Muthanna was a material witness for the prosecution, and the observation of the learned Sessions Judge that the examination of this witness was immaterial cannot be countenanced. This witness has not been examined and no explanation is forthcoming for his non-examination. From the omission to examine this witness an adverse inference against the prosecution has to be drawn.

11. It was contended that P.W. 7 is a respectable witness and that reliance should be placed on his evidence. No doubt, the evidence discloses that P.W. 7 is a respectable witness. The indian evidence act does not provide that any particular number of witnesses should be examined in proof of any fact and therefore a conviction can be based even on the solitary testimony of a single witness provided that witness is believed by the Court. This principle will generally hold good when the fact to which he deposes is not within the knowledge of any one else or when the incident or the occurrence is not witnessed by anybody else. But when there are others equally respectable and disinterested who have witnessed the occurrence, which is in issue, and when those witnesses or at least some of them are not examined in corroboration of the evidence of the other witness and no explanation is offered for their non-examination, generally it is unsafe to rely on the uncorroborated testimony of a single witness in a case of this type where the liberty of the subject is at stake. The non-examination of the other material witnesses, though available, will very much weaken the evidence of the single witness, however respectable he may be.

12. It has to be remembered that it is P.W. 7 who set the law in motion by reporting the matter to the District Superintendent of Police. As a matter of fact, he is the first informant regarding the commission of the offence to the police. Beading his uncorroborated evidence in that context, the same loses much of its force. What value we have to attach to the evidence of P.W. 7 is to be judged from the manner in which it is recorded. The learned Sessions Judge has made damaging remarks against the trial Court regarding the manner in which the evidence of P.W. 7 has been recorded. The learned Sessions Judge has observed that the learned Magistrate did not bring to bear an active mind or bear in mind the rules of evidence as regards the exclusion of hearsay. He has further observed that there was absolute absence of alertness on the part of the learned Magistrate when he was engaged in recording the evidence. He has further given a note of warning to the learned Magistrate that he (Magistrate) should not allow to trip himself into such lapses which are clearly not proper and likely to affect judicial determination. The learned Sessions Judge seems to be unnecessarily severe in his remarks against the learned Magistrate. But, anyway, it is clear from the observations of the learned Sessions Judge that the evidence of P.W. 7 has not properly been recorded. This is also one of the reasons why I am not prepared to accept his evidence as conclusive.

13. The evidence of P.W. 7 discloses beyond any shadow of doubt that it is he who gave the first information regarding the commission of the offence by the accused to the District Superintendent of Police. Admittedly that information has not been reduced to writing by the latter. Further, the District Superintendent of Police is not examined in the case. It was contended on the sidle of the respondent that what P.W. 7 told the D.S.P. was not information relating to the commission of an offence, but it was only an information likely to lead to the discovery of a crime and that it was not necessary for the D.S.P. to have recorded that information. It is really unfortunate that this view should have found favour with the learned Sessions Judge, according to whom what P.W. 7 told the D.S.P. was not in relation to the commission of any offence.

14. What P.W. 7 told the District Superintendent of Police is that the accused was carrying on a scheme for the manufacture of counterfeit coins and currency notes with fraudulent intention and that the accused was in possession of M.O. 1 counterfeit coins. It cannot be denied that P.W. 7 reported this matter to the Police with the intention of setting the police in motion. The District Superintendent of Police, relying on this information, started investigation by deputing P.W. 1 to apprehend the accused and seize M.O. 1. If what P.W. 7 told the D.S.P. is not the first information regarding the commission of the offence, it is not clear what else it could be. To constitute a first information report two conditions are to be fulfilled firstly what is conveyed must be an information, and secondly, that information should relate to the commission of a cognizable offence on the face of it. These two conditions have been satisfied in this case, and I fail to understand how the learned Sessions Judge could hold that this is not the first information regarding the commission of the offence. He holds that by the seizure of M.O. 1 by P.W. 1 he came into possession of information regarding the commission of the offence. As P.W. 1s report Ext. P-5 itself puts, he proceeded to apprehend the accused and seize the articles on receipt of credible information regarding the commission of the offence. Apprehending the accused and seizure of the articles concerned in the case cannot be considered as first information regarding the commission of the offence. On the other hand, P.W. 1s arresting the accused and seizing the incriminating articles were almost the last stage in the investigation of the case. Under these circumstances, I am of opinion that the information conveyed by P.W. 7 to the D.S.P. was information regarding the commission of an offence and not an information which led to the discovery of a crime, as found by the learned Sessions Judge.

15. As stated already, this information conveyed by P.W. 7 to the District Superintendent of Police has admittedly not been recorded. Another ground urged on the side of the prosecution for the District Superintendent of Police not recording this information, is that he is not bound under S. 154, Criminal P.C., to record such information and that the recording of information contemplated under that section is confirmed to the officer-in-charge of the police station. In this connection, I would like to refer to S. 561, Criminal P.C., which provides as follows : "Police-Officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station." It was also contended that there is no authority for the proposition that the word may in the above section means must and thereby suggesting that the recording of the information as contemplated under S. 154, Criminal P.C., is purely discretionary when the same is given to police officers superior in rank to an officer-in-charge of a police station.

16. In my opinion, it is not correct to say that police officers superior in rank to an officer-in-charge of a police station may or may not record information which is given to them regarding the commission of a cognisable offence, because to accept such a proposition may lead to absurdities and ultimately to failure of justice. The first information regarding the commission of a cognizable offence conveyed to a police officer superior in rank to an officer-in-charge of a police station, if not immediately recorded, may not some times become available subsequently for various reasons. Therefore two courses should suggest themselves to police officers superior in rank to an officer-in-charge of a police station when information regarding the commission of a cognizable offence is reported to them. When such information is conveyed, the police officer in question must, in cases where he is not inclined to record the information, make arrangements to cause the production of the informant before the officer-in-charge of the police station so that the said officer may record the information as required under S. 154, Criminal P.C. The other course is to record the information himself in cases where he intends to take action on the first information. In this case, on the information furnished by P.W. 7, the D.S.P. himself took action and set the law in motion and started investigation by deputing P.W. 1 to arrest the accused and seize the properties. When he chose that course it was his duty to have recorded the information furnished by P.W. 7 or caused a record of what P.W. 7 said made. Even P.W. 1, before whom the information given to the District Superintendent of Police was repeated, has not recorded the said information. This appears to be a serious omission in the investigation of the case.

17. The importance of the first information from the stand-point of the accused cannot lightly be ignored. The very object of insisting on a first information regarding the commission of the offence is to obtain early information regarding the alleged criminal activity and to record the circumstances before there is time for the parties concerned to embellish or develop the case as circumstances present themselves to them. That information is very important so far as the accused, is concerned because he is entitled to know as to what was the nature or the manner in which the occurrence was first related or started. The first information report is a very valuable document and the accused is entitled to know what was said in that report to connect him with the offence so that he may be in a portion to protect his interests by cross-examining the prosecution witnesses with respect to any additions or alterations in the story of the prosecution which may subsequently be made in evidence. After all, What P.W. 7 reported to the D.S.P., in the first instance may not be the same as what the witness has stated before Court. The possibility of the witness having forgotten on the date on which he was examined in Court, what lie told the District Superintendent of Police some months previously cannot be excluded. What is more, human memory is defective, and I am of opinion that this omission on the part of the D.S.P. has highly prejudiced the accused. The non-recording by the D.S.P. of the information given to him by P.W. 7 and his non-examination are serious omissions from which an adverse inference has to be drawn as against the prosecution. The view of the learned Sessions Judge that the examination of the District Superintendent of Police was not material is not at all correct.

18. Again, another serious omission I find in the conduct of the case is that the investigating officer has not been examined. This circumstance has lightly been brushed aside by the learned. Sessions Judge by saying that the investigating officer could not have given any more information regarding this case. That is not a correct view. It is conceded that it is the Inspector of Police of Virajpat that investigated the case. We do not know what things he did and what he did not. An accused is entitled to know from an investigation officer what witnesses have been examined in the course of investigation, whether the witnesses examined in Court were examined by him or not, what story the witnesses told before him and whether the same is consistent with the evidence given before Court. The non-examination of the investigating officer in this case is also a serious omission on the part of the prosecution.

19. From a reading of the judgment of the learned Magistrate, it is seen that another case, in which the petitioner and some others are accused, was in his mind. It looks as though the learned Magistrate imported to the present case his impressions formed in the other case against this petitioner. Though there is only one accused in this case, he has referred in the course of his judgment to this petitioner as A-1. The learned Sessions Judge has gone to the extent of suggesting that what the learned Magistrate has recorded as the evidence of P.W. 7 may not be the correct version of the witness. Under these circumstances, I am of opinion that the treatment of the case by the Courts below is anything but satisfactory.

20. The accused has, no doubt, admitted his having been in possession of M.O. 1, but his explanation is that he is a trader in paddy and that he came into possession of these coins in the course of his trade. In the absence of satisfactory evidence to show that he knew, when he became possessed of these counterfeit coins, that they were counterfeit, this explanation of the petitioner which looks plausible has to be accepted. At any rate, there is too much of doubt regarding the complicity of the petitioner in the offence alleged. In conclusion. I am constrained to observe that the investigation of the case is highly perfunctory and this is not the kind of investigation that is expected from the officers concerned in a case of this type where the offence alleged is against the currency of the land, upon the preservation of which depend the prosperity of the country.

21. In the result, the conviction of the petitioner and the sentence passed on him are set aside and the petitioner stands acquitted. This petition is allowed and the bail bonds are cancelled. Petition allowed. AIR 1956 MYSORE 55 (Vol. 43, C. 24 July) "C. I. and B. Corpn. v. A.M. Siddabasaviab" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA, C.J. AND PADMANABHIAH, J. ( Division Bench ) Canara Industrial and Banking Syndicate Ltd. Decree-holder-Appellant v. A.M. Siddabasaviab and Sons, Judgment-debtor-Respondent. Regular Appeal No. 72 of 1955, D/- 13 -2 -1956, against decree of Dist. J., Shimoga, D/- 4 -3 -1955. Civil P.C. (5 of 1908), O.21, R.72, R.43, R.1(j) - EXECUTION - DECREE - APPEAL - SALE - Execution application - Sale in execution - Application by decree-holder to allow him to bid at sale - Disposal of execution application arbitrarily - Appeal - Competency of. Where an appeal is preferred from an order which inter alia has refused the request of the decree-holder made under O. 21, R. 72 to allow him to bid at an execution sale, the appeal cabinet be dismissed as being one not provided for by O. 43, R. 1(j) when it is not merely the propriety of the order on the application of the decree-holder for permission to bid which requires consideration but also the disposal of the execution petition. If it is found that the lower Court has acted in a mechanical manner while treating this application as closed and arbitrarily in prescribing the decree amount as the price for which the decree-holder may if at all, buy the properties, the error has to be set right in the appeal from the dismissal of the execution application. Otherwise, there is no likelihood of a finality to the case. The processes provided for by law, to secure satisfaction of the decree will become ineffective if proceedings are allowed to drift and the Court does not apply its mind to regulate these by appropriate orders so that the procedure prescribed is not turned into a weapon for thwarting or frustrating realisation of what is due. 38 Cal 717 (PC), Expl. and 1924 Bom 515 (AIR V 11) and 1926 Pat 140 (AIR V 13), Rel. on. (Para 4) Anno : AIR, Com., C.P.C., O. 21, R. 72, N. 13; O. 43, R. 1, N. 5. Cases Referred : Courtwise Chronological Paras (A) 1929 Mad 903 (AIR V 16) : 122 Ind Cas 161 3 (B) (10) 38 Cal 717 : 38 Ind App 126 (PC) 3 (C) (86) 13 Cal 174 3 (D) 1924 Bom 515 (AIR V 11) : 83 Ind Cas 379 4 (E) 1934 Pat 345 (AIR V 21) : 150 Ind Cas 757 4 (F) 1926 Pat 140 (AIR V 13) : 92 Ind Cas 350 4 K.V. Subba Rao, Appellant; D. Veerasetty, for Respondent. Judgement VENKATARAMAIYA, C. J. :- The appellant is the decree-holder whose main grievance is that the lower Court has arbitrarily rejected his application for permission to bid and purchase the properties of the judgment-debtor for a sum of Rs. 16,000/-. The decree amount for which he is allowed to buy the same is alleged to be very high. The decree was passed by consent on 17-12-1949 and this appears to have been made final in 1952. No payment is made or attempted to be made by the judgment-debtor and sale of the properties has proved infructuous more than once. The last order in the execution case passed on 27-6-1955 was "Decree-holder by Sri K.P. Immoveable properties not sold for want of bidders. Decree-holder was permitted to bid. Sale coming on 5th time. Decree-holder absent (which is contrary to the note made at first). This petition is closed."

2. It is contended for the decree-holder that in the absence of any bid and any one coming forward to buy the properties on five occasions, the offer made by decree-holder should be treated as the best and that this was bona fide. When attachment of the properties before judgment was applied for by the plaintiff, the estimated value of the properties was mentioned as Rs. 12,000/- and the value is repeated in the schedule to the decree passed by consent. The amount claimed in the execution petition is Rs. 56,280/- and odd and there is no particular reason apparently for compelling the decree-holder to purchase the properties for treble the amount at which he valued them as the judgment-debtor wants him to do, when none else is prepared to offer any price. The judgment-debtor beyond asserting that the properties are very valuable has not placed any material to support it or made any effort to raise money or secure buyers on any terms. In the sale proclamation the estimated value is stated to be less than the decree amount and this was not objected to. It looks as if the persons disposed to buy the properties are kept out to avert the possibility of a sale for less than the decree amount with a view to force the properties on the decree-holder in full discharge of the decree. The lower Court has overlooked this and the futility of holding further sales without allowing the decree-holder to offer the bid proposed by him.

3. Mr. Veera Setty raised a preliminary objection to the appeal as not being competent on the ground that the order fixing terms on which the decree-holder may purchase the properties is not appealable. He cited - Ulaganatha v. M. Alagappa, 1929 Mad 903 (AIR V 16) (A), in which the Court relying on the observations of the Privy Council in - Ko Tha Hnyin v. Ma Hnin, 38 Cal 717 (PC) (B), observed : "An order giving or refusing leave to bid is only ministerial order and not appealable." The observation of the Privy Council is based ,on the view expressed by it in - Jodoonath Mundul v. Brojo Mohun Ghose, 13 Cal 174 (C), to the effect that no appeal lies from an order passed under S. 294, Civil P.C. refusing permission to a decree-holder to bid at a sale in execution of his decree. In that case the learned Judges construed the terms of S. 588, Cl. (16) of the old Code corresponding to Order 43, Rule 1, Cl. (j) as providing for an appeal against an, order confirming or setting aside a sale of immoveable property and not against an order refusing to give a decree-holder permission to bid. As a safeguard against possibility of relief being denied to him on this ground Mr. Subba Rao learned counsel for the appellant has filed an application for converting the appeal into a petition for revision.

4. The appeal cannot be dismissed as it is not merely the propriety of the order on the application of the decree-holder for permission to bid which requires consideration but also the disposal of the execution petition. The lower Court has acted in a mechanical manner while treating this application as closed and arbitrarily in prescribing the decree amount as the price for which the decree-holder may, if at all, buy the properties. Judgment-debtors counsel has not suggested any alternative to the grant of the application by adopting which any amount can be expected to be realised without disadvantage to either party. Dealing with the application of the decree-holder in a routine manner without taking into account the result of the previous sales has led to the needless prolongation of the proceedings. The question to be considered now is whether the termination of the execution case is justified and if this is brought about by the unreasonable rejection of the decree-holders request the error has to be set right in the appeal from the dismissal of the execution application. Otherwise, there is no likelihood of a finality to the case. The processes provided for by law, to secure satisfaction of the decree will become ineffective if proceedings are allowed to drift and the Court does not apply its mind to regulate these by appropriate orders so that the procedure prescribed is not turned into a weapon for thwarting or frustrating realisation of what is due. If there was any reason to doubt the bona fides of the request the Court should have called for further information and then determined the amount for which he should be allowed to buy. A situation similar to that in this case arose for consideration in - Motilal Parsharam v. Pulchand, 1924 Bom 515 (AIR V 11) (D). It appears that at the first sale a property did not fetch a bid of more than Rs. 5,000/- it was valued by the Panch at Rs. 40,000/- and by the judgment-debtor at Rs. 60,000/-. The decree-holder was permitted to bid not for Rs. 20,000/- as prayed for by him but for Rs. 40,000/- the value fixed by the Panch. The decree-holder declined to raise his bid at the sale subsequently held and the executing Court closed the darkhast. The High Court set aside the order and Fawcett, J. observed : "Prima facie the offer of the judgment-creditor to bid up to Rs. 20,000/- seems to be a bona fide one; and I do not think there was any good ground for refusing to allow him to bid unless he was prepared to go up to Rs. 40,000/-." Shah, Acting C.J. remarked : "There is apparently no reason on the record why the decree-holder should not have been granted leave to bid under Rule 72 of Order 21. We set aside the order disposing of the Darkhast." In - Raghunath Rai v. Jatan Ram, 1934 Pat 345 (AIR V 21) (E), the statement in - Badrisahu v. Pearelal, 1926 Pat 140 (AIR V 13) (F), that "There is no provision of Jaw compelling the decree-holder to bid up to any sum that may be fixed by the Court", is quoted with approval.

5. On a consideration of all the circumstances of the case I set aside the order of the Court closing the application, direct that the properties should be put up for sale after issuing a fresh proclamation setting forth particulars, if any, which the judgment-debtor wants to be included and that the lower Court dispose of afresh, the application filed by the decree-holder for permission to bid in the light of the above observations. Parties will bear their own costs in this Court.

6. PADMANABHIAH, J.:- I agree. Order accordingly. AIR 1956 MYSORE 57 (Vol. 43, C. 25 Dec.) "Globe Theatres Ltd. v. Abdal Gani" MYSORE HIGH COURT FULL BENCH Coram : 3 VENKATARAMAIYA, C.J. PADMANABHIAH AND SREENIVASA RAJU, JJ. ( Full Bench ) Globe Theatres Ltd., Plaintiff, Appellant v. Khan Saheb Abdal Gani and another Defendants, Respondents. Regular Appeal No. 158/1950-51, against decree of Dist, J., Civil Station, Bangalore, inCri. Suit No. 21 of 1948-49, D/- 6 -2 -1956. Mysore House Rent and Accommodation Control Order (1941), Cl.6(c) - HOUSES AND RENTS - ACCOMMODATION CONTROL - WORDS AND PHRASES - CONTRACT - Houses and Rents - Residence - Meaning of - Occupation for exhibiting cinema shows - Payment made in excess of fair rent - Recovery of - Recovery on ground of mistake and unjust enrichment. Contract Act (9 of 1872), S.72. Words and phrases. The term "residence" is different from occupation and means where the man lives and where he has his home 1929 AC 1 Foll. (Paras 6 and 7) The plaintiff, a limited company, became the lessee of a building for exhibiting cinema shows. The plaintiff applied to the House Rent Controller for determination of fair rent of the building and alter it was determined it brought a suit for the recovery of a sum of money as representing the total overpayment. Held that the provisions of the Rent Control Order did not justify the plaintiffs claim. (Para 9) Held further that the plaintiff could not seek the relief claimed on the ground of mistake and unjust enrichment. Parties voluntarily entering into a contract are ordinarily bound by it and when they have unreservedly acted up to it for a fairly long time they must be content with the result beneficial or otherwise, and the doctrine of unjust enrichment cannot be applied for recovery of unconditional voluntary payment under no mistake of fact. (Paras 10, 11) Anno : AIR Man., Con. Act, S. 72, N. 1. Cases Referred : Courtwise Chronological Paras (A) 50 Mys 147 6 (B) (1929) 1929 AC 1 : 98 LJ KB 1 6 (C) (1832) 9 TLR 57 : Fox and S Reg 293 6 (D) (1944) 1944-1 KB 200 9 (E) 1949 PC 297 (AIR V 36) : 28 Pat 913 10 N.P. Engineer, R.A. Gagrat, A.R. Somanath Iyer and F.M. Xavier, for Appellant; T.M. Krishnaswamy Iyer and Md. Haneef, for Respondents. Judgement VENKATARAMAIYA, C. J. :- This is an appeal from the decision of the learned District Judge, Civil Station, Bangalore, by which the suit filed by the Appellant for refund of part of the amounts paid to respondents as rents with respect to a building used as a cinema theatre was dismissed. It has been referred to a Full Bench by the Division Bench which heard it for disposal owing to difference of opinion about the correctness of the conclusion arrived at by the lower Court.

2. The facts relevant for consideration are not in dispute. The plaintiff is described in the cause title to the plaint as a company with limited liability having its registered office in Calcutta and represented by its managing director. The plaintiff became the lessee of a building situated in the Civil Station at first in 1937 for exhibiting cinematograph shows. The defendants purchased the building on 22-1-1943 and the plaintiff continued to be in occupation of the properly on terms embodied in a lease deed dated 12-4-1943 executed in their favour. At the expiration of the period prescribed therein the lease was renewed for a further term of three years by means of a document dated 26-3-1946. On 2-7-1946 the plaintiff applied to the House Rent Controller, Civil Station, for determination of fair rent. The application was dismissed, remanded in appeal, subsequently resulted in fair rent being fixed at Rs. 950/- and increase of this by Rs. 450/- being allowed from 1-10-1946. The final order to this effect was passed on 15-3-1947. On the strength of this the plaintiff sent notices for adjustment of the amounts paid in excess of the fair rent towards future rent or return of the same. Defendants insisted on the stipulated rent of Rs. 2,000/- being paid and instituted proceedings for eviction. Finally the plaintiff filed the suit from which, this appeal arises for recovery of Rs. 41,090/- as representing the total overpayment after deducting from payments made for the period 26-6-1943 to 1-10-1946 at the agreed rate of Rs. 2,000/- per month the amount payable at Rs. 950/- per month as fixed by Rent Controller.

3. The principal question, for determination is whether the fixation of fair rent in the Rent Control proceedings entitles the plaintiff to the refund claimed by him and this is covered by issues 2 and 3 framed in the case. In the lower Court the parties seem to have sought consideration of only the provisions of the House Rent Control Order in force from time to time for disposal of the case and it was held that these do not justify the claim. Mr. Engineer, learned counsel for the appellant, contended that the construction of these by the learned Judge as being not helpful to sustain the claim is wrong and referred to the orders and notifications issued from the beginning so as to facilitate the understanding of the changes made from time to time, the meaning to be attached to these and the purpose thereof.

4. Till 1-7-1948 when the Mysore Rent and Accommodation Control Order became applicable to the Civil Station it was governed by orders and notifications issued specially for this area. The first of these was brought to force on 7-5-1941. Of the eight clauses contained in this Cl. 2(2), defines "House" as meaning a building or part of a building suitable for occupation as a residence and includes (a) garden........appurtenant to such building (b) any furniture supplied by landlord for use in such building; Clause 3 provides for the Controller recording a finding that the rent of any house is excessive with or without a written complaint, Clause 4 for his determining the fair rent and clause 5 for matters to be taken into account. Clause 6 states : "When the Controller has determined the fair rent of a house - (a) the landlord shall not charge any rent in excess of such fair rent; (b) any agreement for the payment of rent in excess of such fair rent shall be null and void in respect of such excess and shall be construed as if it was an agreement for payment of the said fair rent; (c) any sum in excess of such fair rent paid, whether before or after tire commencement of the order in respect of such residence after the commencement of this order shall be refunded to the person by whom it was paid or at the option of such person otherwise adjusted". By a notification dated 22-6-1943 it was declared that "House" means (in the area specified in the schedule appended to this order) any building or part of a building . . . (let separately or to be let separately) suitable for any purpose residential or non-residential and elsewhere a building or part of a building suitable for occupation as a residence and includes............... In the next order dated 19-9-1945 there is nothing new and of importance to be mentioned. The last one to which attention was drawn is the order dated 26-9-1946 which came to force on 1-10-1946. In this the definition of "House" given in the previous order is repeated but tine words in Cl. 7(c) are different from those of Cl. 6(c) of the earlier order. Sub-clause (c) reads thus : "When the Controller has determined the fair rent of a house (c) any sum paid in excess of the fair rent whether before or after the commencement of this law in respect of the use of the building after the commencement of this law shall be refunded to the person by whom it was paid or at the option of that person otherwise adjusted. The House Rent Control Order was passed in exercise of powers under the defence of india rules and essentially a war measure intended to minimise the hardship due to inadequacy of accommodation and tendency of owners of buildings to exploit the situation. As in the case of prices of commodities and dealings in articles, rents of buildings were subjected to control by Government under special orders and grant of relief under specified circumstances was made possible. To the extent this was done or could be done there was interference with contractual rights and obligations. The conditions and limits of interference and its effects were laid down in the orders which underwent modifications to meet exigencies arising form time to time. The control provided for in the first order of 1941 related only to "Houses" as ordinarily understood, that is buildings in which persons lived. The meaning of the term was extended in 1943 so as to include buildings other than those In which persons lived, perhaps because of the need to afford relief to all occupants of buildings irrespective of the manner these were used. This, by itself, does not justify the inference that in all respects the nature and degree of control capable of being exercised over "Houses" residential and non-residential were the same and no difference was intended to be made in regard to the directions which may be issued about both. The notification of 1943 implies that but for it, non-residential houses were exempt from control as otherwise it was superfluous. The effect of enlarging the meaning of "House" was to extend the application of the provisions in the Order of 1941 concerning houses to non-residential buildings. That order enabled the Controller to find out under Cl. 3 if the rent stipulated for a house was excessive and if it was so, to fix the fair rent under Cl. 4 in accordance with the terms of Cl. 5. The result of the determination of fair rent is stated in Cl. 6 to be threefold; there is no limitation of applicability so far as prohibition of landlord to charge rent in excess of fair rent or the agreement relating to the payment of amount above the fair rent being ineffective. As regards the liability for refund of what has been received in excess of Fair Rent the obligation is attached to payments "in respect of residence" and not house. If the notification was intended to make all the clauses in the Order of 1941 as operative to non-residential houses as to residential houses, the word, "residence" would or should have been replaced by the word "House" in Cl. 6(c). The continuance of the same word after the notification cannot be ignored or treated as inconsequential for the purpose of refund. Even so, the contention on behalf of the appellant is that the word "residence" in Cl. 6 has to be liberally construed and that the benefit of refund should not be denied to tenants who are not dwellers. The plaintiff admittedly was not a lessee who lived in the premises but was in occupation of these for the purpose of exhibiting cinema shows as a business. Whether this is tantamount to or synonymous with residence was a point on which there is disagreement in the Division Bench.

6. The word "Reside", "Resident" or "Residence" is found in several enactments such as the Income-tax Act, Divorce Act, Representation of the People Act, Civil Procedure Code. This Court in 50 Mys 147 (A) which pertained to an election under the Municipal Act held that a person who ordinarily lived at a particular place and was obliged to leave it under pressure of an order of Government did not cease to be a resident of that place. This view may be useful for interpreting the term when it affects the qualification of a voter or candidate for election under that Act but cannot be of help to ascertain its exact meaning in all cases. Indeed no such meaning can be attached to the word. In Ramanath Iyers Law Lexicon after quoting from some cases that Residence has variety of meanings according to the statute (or document) in which it is used. .......... It is an ambiguous word and may receive a different meaning according to the position in which it is found, the author adds that "it is a word capable of different meanings ............. a word whose statutory meaning depends on the contest and purpose of the statute ............ (It) may receive a larger or more restricted meaning according to what the Court believes the intention of the legislature to have been in framing the particular provision in which the word is used. It is true there are cases in which it has been held that the residence of a corporation or company is the place where it is registered or where it carries on business. This must be understood as having reference only to the construction of the term for the application of the particular laws in which it is found. When a company is registered in one country and carries on business in another the question as to where it must be deemed to have residence has arisen in some cases to determine liability for income-tax. The decision in - Egyptian Delta Land and" Investment Co. Ltd., v. Todd, 1929 AC 1 (B) clearly states that for income-tax purposes it is the place where business is carried on. While considering the import of the expression "person resident in the United Kingdom" in the Income-tax Act, 1918 Viscount Sumner at page 12 said "I do not think that residence is ever determined for a natural person simply by the law. Accordingly under the decisions as well as in principle "resident is a term exceedingly unsuited to describe a statutory person which can never be non-resident because by the law of its being it is a fixture". Lord Buckmaster observed at page 35 "The difficulty which this question presents is due to the fact that residence is essentially a condition applicable to men and the tests for its determination such as living and sleeping can have no proper counterpart in an abstract entity such as an incorporated company which can neither live nor sleep. It must however be assumed that the company has a residence, with reference to a provision in the Representation of the People Act. Lord Coleridge, C.J., expressed in - Barlow v. Smith, (1892) 9 TLR 57 (C), "The Act distinguishes between occupation and residence and requires that the person who occupies must reside in the borough .......... The party may occupy and not reside there........ Residence ............... Under the enactment is different from occupation and means where the man lives and where he has his home. It has always been held that a man resides where he lives and has his home".

7. I think, residence in Cl. 6(c) has to be construed in the manner expressed by these 4 words.

8. If "Residence" was meant to include us or occupation of the holding, it may have been so defined either in the Order of 1941 itself or in the Notification of 1943 as was done in regard to the word "House". The absence of this and replacing it by the word "use" in the order of 1946 are significant and imply recognition of the necessary change of words to permit refund of amounts paid towards rent of non-residential buildings. The order passed by the Resident fixes the fair rent but does not decide the liability for refund.

9. It would be a strained construction of the term "Residence" having regard to all this, to apply it to the use of a building as a cinema theatre, (1944) 1 KB 200 (D), cited for the appellant is distinguishable from the present case. No doubt the sub-tenant in that case who had paid rents in excess of what was due on the basis of the standard Rent succeeded in enforcing his claim for refund of the excess but this was rendered possible by a definite statutory provision as is pointed out at page 209 by the statement "The plaintiffs claim to recover the alleged overpayment is based on S. 14 of the Act of 1920 as amended by............". The language in Sub-cls. (a) and (b) of Cl. 6 indicates the result at present and in future and Sub-cl. (c) expresses the result concerning acts of the past. It may be that there is a lacuna in the provision perhaps because of the orders "being passed in a hurry that it was with a very large number of other Acts when war was imminent" and having over-looked some aspects, or because the handicap or hardship alleged by appellant was not contemplated by the authorities but the Court cannot improve upon it to afford relief. I do not find any good reason on the whole to discharge with the view of the lower Court that the provisions of the Rent Control Order do not justify the claim. The plaintiff no doubt may have cause to complain that this involves discrimination between residential and non-residential tenants. At the very outset the existence of the distinction between the two is noticed and only two years later the non-residential class was placed within its range. Even after this the two were not on a par in all respects as limits imposed for enhancement of rents are not the same for both. The reasonableness or propriety of the distinction is not a matter relevant for the decision and even if the object was to treat them alike, it is not so much the supposed as the expressed object which is material for the decision. The disadvantages or difficulties entailed on the plaintiff are due to the provisions not being such as may be availed of by him to support the claim and that being so the appeal has to fail.

10. Mr. Engineer argued that if relief cannot be had under the Rent Control Order, the appellant can seek it on the ground of mistake and unjust enrichment. The ground is a new one, not raised in pleadings or in issues but is alleged to be one apparent and vital to require consideration without need for any evidence. In support of this the decision in - Shiba Prasad Singh v. Srish Chandra Nandi, 1949 PC 297 (AIR V 36) (E), was strongly relied upon. The resemblance between that case and this is that the dispute is between lessor and lessee, that refund of the over-payment is claimed by the lessee. Here, the terms of the contract are clear and the obligation of the lessee is not in controversy. What is urged is a statutory right and the existence of this is contested. In the Privy Council case, differences between the parties related to the construction of the terms embodied in the written agreement and the question whether there was an over payment at all had to be determined on the interpretation of the conditions. It was found that more was paid than what was due under the agreement and the recipient was not entitled to retain it. On the facts of the present case the appellant cannot reasonably plead that payments were made by mistake unless it be a mistake to pay what one has voluntarily agreed to but what is held by another to be more. The correspondence between the parties and the earlier order of the Rent Controller show that the property was leased to appellant in compliance with its wish to have the advantage of continuing the business in the premises and that the respondents were more anxious to secure it for their own use than to let it out on any terms. The finding of the Controller at first was that the rent stipulated for was not excessive and payment at the agreed rate was made without demur for more than three years. The present litigation would not have arisen but for the Order issued in 1946 during the pendency of the proceedings under the prior Order and the Resident as the appellate authority not having disposed of the application finally under the prior Order or later one and but for his leaving the claim for refund open.

11. Parties voluntarily entering into a contract are ordinarily bound by it and when they have unreservedly acted up to it for a fairly long time they must be content with the result beneficial or otherwise. No case in which the doctrine of unjust enrichment has been applied for recovery of unconditional voluntary payment under no mistake of fact has been cited.

12. The claim is permissible, if at all, under the provisions of the Rent Control Order and since this has been found to be not possible, this decision of the lower Court has to be upheld.

13. The appeal is consequently dismissed with costs.

14. PADMANABHIAH, J. :- I agree.

15. SREENIVASA RAU, J. :- I also agree. Appeal dismissed. AIR 1956 MYSORE 60 (1) (Vol. 43, C. 26 Dec.) "Shankaramma v. Nagar Manjappa" MYSORE HIGH COURT Coram : 2 PADMANABHIAH AND HOMBE GOWDA, JJ. ( Division Bench ) Shankaramma and others, Defendants, Appellants v. Nagar Manjappa and another, Plaintiffs, Respondents. Second Appeal No. 217 of 1951-52, D/- 5 -3 -1956, against decree of Sub-J., Shimoga, in R.A. No. 49 of 1950-51. Civil P.C. (5 of 1908), O.32, R.2 - LEGAL REPRESENTATIVES - Necessity of application with sufficient stamp affixed. No application (requiring sufficient stamp) is necessary to bring on record the legal representative of a deceased appellant or respondent when there are more than one and when the right to sue survives to the surviving appellant or appellants alone or against the surviving respondent or respondents alone. A memo filed in this respect is sufficient. 1929 All 347 (1) (AIR V16) and 1929 Mad 152 (AIR VI6) and 1954 Cal 205 (AIR V41), Ref. (Para 2) Anno : AIR. Com. C.P.C., O. 22, R. 2, N. 1, Pt. 6. Cases Referred : Courtwise Chronological Paras (A) 1929 All 347 (1) (AIR V 16) : 116 Ind Cas 746 3 (B) 1929 Mad 152 (AIR V 16) : 51 Mad 347 2 (C) 1954 Cal 205 (AIR V 41) : 58 Cal WN 221 2 G. Lingappa for B.S. Puttasiddiah, for Appellants; K.S. Ramadas for K.R. Gopivallabha Iyengar, for Respondents. Judgement PADMANABHIAH, J. :- This appeal was originally filed by three appellants, viz., Shankaramma, Sanna Mariyanna and Sonnappa. The first appellant Shankaramma is reported to be dead subsequently, and the remaining appellants filed a memo stating that the right to sue survives to them and that they may be brought on record as legal representatives of the deceased first appellant. The office has put up a note stating that an application duly stamped is necessary and a mere memo seeking that relief is not sufficient. On the side of the appellants, it is contended by their learned Counsel that no application is necessary and. that the memo filed is sufficient.

2. It appears to us that the view taken by the office is not correct and that the contention of the learned Counsel for the appellants has to be upheld. Order 22, R. 2, Civil P.C. runs thus : "Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants." In the present case, the first appellant is dead and the right to sue has survived to the remaining appellants. Both the conditions stipulated under Order 22, Rule 2, Civil P.C. have been satisfied. In such cases i.e. in cases where one of the plaintiffs or defendants these and the right to sue survives, what is contemplated under R. 21 of Order 22 is that the Court should cause an entry to that effect to be made on the record and direct that the suit should proceed at the instance of the surviving plaintiff or plaintiffs or against the surviving defendant or defendants. It does not contemplate an application in this behalf as is contemplated in Rules 3 and 4 of the same order. No question of abatement also arises in cases falling under Rule 2 of O. 22, Civil P.C. These principles have been enunciated in the cases reported in - Nankoo Ahir v. Bhagelu Ahir, 1929 All 347 (1) (AIR V 16) (A); - Achuthan Nair v. Manavikraman, 1929 Mad 152 (AIR V 16) (B) and Himangshu Bhusan v. Manindra Mohan, 1954 Cal 205 (AIR V 41) (C). In view of the clear language used in Order 22, Rule 2, C.P.C. and the decisions referred to above, we are of opinion that no application is necessary to bring on record the L. Rs. of a deceased appellant or respondent when there are more than one and when the right to sue survives to the surviving, appellant or appellants alone or against the surviving respondent or respondents alone.

3. In the result, the objection raised by the office is overruled and an entry bringing appellants 2 and 3 in place of the deceased first appellant is directed to be made and the appeal proceeded with. Order accordingly. AIR 1956 MYSORE 60 (2) (Vol. 43, C. 27 Dec.) "S. Narayanabhatta v. Special First Class Magistrate" MYSORE HIGH COURT Coram : 1 SREENIVASA RAO, J. ( Single Bench ) S. Narayanabhatta, Accused, Petitioner v. Special First Class Magistrate, Sreerangapatna, Complainant, Respondent. Criminal Revn. Petal. No. 6 of 1956, from order of Special First Class Magistrate, Sreerangapatna, in Cri. Misc. No. 19 of 1955, D/- 12 -3 -1956. Penal Code (45 of 1860), S.228 - PUBLIC SERVANTS - ADVOCATE - CONTEMPT OF LAWFUL AUTHORITY - Insult or interruption by lawyer. Civil P.C. (5 of 1908), O.3, R.4. Criminal P.C. (5 of 1898), S.340. While it is true that the Court has the power, and indeed it is its duty, to see that undue advantage is not taken of the ignorance of witnesses or parties, it is no less the duty of the Court to see that there is a faithful record of the proceedings in Court. If for any reason the Court does not see its way to accept the position contended for by a counsel, there is nothing unnatural or wrong in the counsel requesting the Court to place on record its ruling. While it cannot be said that the Court is bound to record all contentions, objections or representations, even if they are of a trivial or a frivolous character, it is undoubtedly the Courts duty to record its decision on any matter of substance that arises in a case. If sometime was taken by the counsel in looking up authorities to satisfy the Court about the correctness, of the position contended for by him and if the discussion took some time and if all this occupied about 20 minutes, it can hardly be said that the counsel interrupted the Courts proceedings. The mere circumstance that the counsel expressed his intention to retire from the case or to move for a transfer of the case did not constitute a threat or insult. It is scarcely necessary to emphasise that when under some exceptional provisions the Court itself is constituted both the prosecutor and the judge, it is all the more, incumbent upon the presiding officer not to lose a sense of perspective while there can be no doubt that it is the duty of all those appearing in Court and more particularly of counsel to conduct themselves with becoming decorum and restrained and to do nothing which is likely to bring down the prestige or dignity of the Court; it is equally essential that no occasion should be given for any party to feel that he has not been given the fullest opportunity to present his case or that there is not a fair, substantial and faithful record of the proceedings in Court. Some latitude should be allowed to the member of the Bar insisting in the conduct of his case upon his question being taken down or his objections noted where the Court thinks the question inadmissible or the objections untenable. There ought to be a spirit of give and take between the Bench and the far in such matters and every little persistence on the part of a pleader should not be turned into an occasion for a criminal trial unless the pleaders conduct is so clearly vexatious as to lead to the inference that his intention is to insult or interrupt the Court 6 Bom LR 541, Rel. on. (Paras 4, 8) Anno : AIR Man. Penal Code, S. 228, N. 3; AIR Com., C.P.C., O. 3, R. 4, N. 12; Cr. P.C., S. 340, N. 9. Cases Referred : Courtwise Chronological Paras (A) (04) 6 Bom LR 541 : 1 Cri LJ 612 8 Judgement The petitioner who is an Advocate of this Court practising at Srirangapatna challenges by this revision petition his conviction for an offence under S. 228, Penal Code by the Special First Class Magistrate at Srirangapatna based on the finding that the petitioners conduct in the course of a proceeding in C.O. No. 1131/55 on his file amounted to insulting the Court and caused interruption to the proceedings.

2. The circumstances leading to the drawing up of proceedings by the learned Magistrate resulting in the conviction of the petitioner are as follows :

3. The petitioner was appearing for the accused in C.C. No. 1131/55. On 21-12-55 one Kempamma was examined, as the second witness for the prosecution. In the course of her cross-examination the petitioner appears to have put a question to the witness seeking to elicit from her an answer involving the time factor. She gave the answer in terms of the hours of the clock i.e., as eight oclock in the morning. The learned Magistrate presumably thought that the witness had not understood the significancy of the use of the words in those terms and himself asked her to signify the hour by pointing out the position of the Sun. She appears to have stated that the position of the Sun was overhead. The learned Magistrate wanted to record the answer in those terms. The petitioner seems to have insisted upon her previous answer, i.e., in terms of the hours of the clock, also being recorded. This led to verbal exchange between the learned Magistrate and the petitioner in the course of which according to the learned Magistrate, the petitioner conducted himself in such a way as to insult the Court and to interrupt the Courts proceedings. Thereupon the learned Magistrate drew up proceedings narrating what according to him had taken place and asking the petitioner to show cause why he should not be committed for contempt of Court under S. 228, Penal Code. The petitioner in answer submitted a statement which seeks to traverse in detail the facts narrated in the proceedings drawn up by the learned Magistrate.

4. It is clear from reading the proceedings and the statement that there is substantial accord between the two as to how the unfortunate situation arose. The petitioner wanted the earlier answer given by the witness indicating the time at 8 a.m. to be recorded while the learned Magistrate not feeling satisfied that the witness could give expression to her idea of time in those terms, elicited an answer from her with reference to the position of the Sun and wanted to record only the latter answer. It is significant to understand what difficulty there could have been in the learned Magistrate recording both answers making a note, if he deemed it necessary, indicating why he himself had to put a question to the witness for elucidating what she meant. It is beyond dispute that the witness had given answer to the petitioners question. If the witness in response to the Courts question gave an answer appearing to be different from the one previously given, it was quite natural for the petitioner to request the Court to record the previous also. It is not suggested that the petitioner wanted only the former answer to be recorded. While it is true that the Court has the power, and indeed it is its duty, to see that undue advantage is not taken of the ignorance of witnesses or parties, it is no less the duty of the Court to see that there is a faithful record of the proceedings in Court. The appropriate course for the learned, Magistrate to have adopted in this instance was clearly to record the answer given by the witness on both occasions with such explanatory note as he deemed necessary.

5. There is some variation between the learned Magistrates version and the petitioners version as to what transpired thereafter. Indeed, even in regard to the context in which the learned Magistrate thought it necessary to question the witness the petitioners statement suggests that it was because the witnesss answer varied from the answer given on the same point by the previous witness and the learned Magistrate therefore thought that the witness could not have understood the question properly the learned Magistrate felt called upon to put his own question. This is not specifically dealt with in the judgment and if that was the context in which the learned Magistrate felt he should ignore the question put by the petitioner and the answer given by the witness, it goes without saying that it was totally unjustified.

6. When the learned Magistrate refused to record the answer given by the witness to the petitioners question the petitioner wanted his objection (as to the non-recording of the first answer) to be noted. The learned Magistrate thereupon wanted him to file an application in writing. The petitioner also appears to have taken some time to place before Court the provisions of law and the views of commentators in regard to the law applicable to the matter on hand. There is some variation between the learned, Magistrate and the petitioner whether this was done by the petitioner and his own initiative or at the instance of the Court. This however is immaterial. Finding that the earlier answer of the witness was not recorded and that his representation in regard to the overruling of his question and answer was not noted and that a written application was insisted upon, the petitioner seems to have told the Court that he wanted to retire from the case and also to have applied for time to move for a transfer of the case. This part of what transpired in Court is also common ground between the petitioner and the learned Magistrate. But while the learned Magistrate appears to think that the petitioners expression of a desire to retire from the case was intended as a threat, the petitioners stand is that he felt that his continuance in the case in the circumstances "would not serve the interests of justice" and that it was only as an alternative that he asked for time to enable him to move for a transfer of the case.

7. According to what is stated in the proceedings drawn up by the learned Magistrate all this occupied 20 minutes during which period the witness had to stand in the witness box. In the learned Magistrates view the conduct of the petitioner amounted to interruption of judicial proceedings and insult to and contempt of Court.

8. It is seen from what is mentioned above that the unfortunate events resulting in the petitioners committal under S. 480, Criminal P.C. developed from a situation of daily occurrence in Courts when counsel contend for particular positions and the Courts require to be satisfied on various points that arise. If for any reason the Court does not see its way to accept the position contended for by a counsel, there is nothing unnatural or wrong in the counsel requesting the Court to place on record its ruling. While it cannot be said that the Court is bound to record all contentions, objections or representations, even if they are of a trivial or a frivolous character, it is undoubtedly the Courts duty to record its decision on any matter of substance that arises in a case. It can hardly be said that the petitioners representation to place on record both the answers given by the witness was not a matter of substance. If some time was taken by the petitioner in looking up authorities to satisfy the Court about the correctness of the position contended for by him and if the discussion took some time and if all this occupied about 20 minutes, it can hardly be said that the petitioner interrupted the Courts proceedings. Nor does it appear to me that the learned Magistrate was justified in thinking that when the petitioner expressed his desire to retire from the case or when he indicated that he was thinking of moving for a transfer, these representations were intended to be a threat. It is quite unnecessary to say whether the petitioners retirement in the circumstances would be justified or whether a transfer application would be warranted. If these steps were taken, they would undoubtedly be appropriately dealt with at the proper stage on their merits. But I cannot see how the mere circumstance that the petitioner expressed his intention to retire from the case or to move for a transfer of the case constituted a threat or insult. Thus even accepting the narration of events as given by the presiding officer or caused any interruption of the Courts proceedings including the charge drawn up by the Magistrate, the statement of the petitioner and the judgment of the learned Magistrate, all bear marks of hurry and lack of clarity and ordered thinking. This may perhaps be partly due to the fact that everything had to be completed before the end of the day since the learned Magistrate took recognizance of the alleged offence under S. 480(1), Criminal P.C. But I am also constrained to remark that they betray a lack of equanimity hardly conducive to the learned Magistrate taking a detached and objective view of the incident. It is scarcely necessary to emphasise that when under some exceptional provisions the Court itself is constituted both the prosecutor and the judge, it is all the more incumbent upon the presiding officer not to lose a sense of perspective while there can be no doubt that it is the duty of all those appearing in Court and more particularly of counsel to conduct themselves with becoming decorum and restrained and to do nothing which is likely to bring down the prestige or dignity of the Court, it is equally essential that no occasion should be given for any party to feel that he has not been given the fullest opportunity to present his case or that there is not a fair, substantial and faithful record of the proceedings in Court. These facts have to be borne in mind by the presiding officer and the counsel alike. As remarked by the Bombay High Court in the case reported in In re Dattatraya, 6 Bom LR 541 (A) : "Some latitude should be allowed to a member of the Bar insisting in the conduct of his case upon his question being taken down or his objections noted where the Court thinks the question inadmissible or the objections untenable. There ought to be a spirit of give and take between the Bench and the Bar in such matters and every little persistence on the part of a pleader should not be turned into an occasion for a criminal trial unless the pleaders conduct is so clearly vexatious as to lead to the inference that his intention is to insult or interrupt the Court."

9. As I have already indicated above I find that even on the basis of the events as narrated In the learned Magistrates charge and his judgment the petitioners conduct cannot be held to have intentionally caused any interruption to the Courts proceedings or to have constituted any insult to the presiding officer.

10. This revision petition is accordingly allowed and the conviction of the petitioner is set aside. The fine if recovered shall be refunded to the petitioner. Revision allowed. AIR 1956 MYSORE 62 (Vol. 43, C. 28 Dec) "Chairman, Village Panchayath v. Thimmasetty" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) Chairman, Village Panchayath, Nagathihalli, Petitioner v. N. Thimmasetty Gowda, Respondent. Criminal Revn. Petn. No. 176 of 1956, D/- 6 -6 -1956, against decision of 1st Class Magistrate, Mandya, in Cri. Appeal No. 7 of 1955. (A) Criminal P.C. (5 of 1898), S.417(3) (as amended by Act 26 of 1955) and S.439(5) - APPEAL - REVISION - Order of acquittal - Appeal provided but not filed - Revision petition barred. Under S. 417(3) of the amended Criminal Procedure Code, an appeal against an order of acquittal is provided, and a complainant in a private case can prefer an appeal against an order of acquittal provided the High Court grants special leave to appeal. When an appeal against an order of acquittal is thus provided and when no appeal is preferred, S. 439(5) bars a private party from having recourse to a revision petition. (Para 3) Anno : AIR Com., Cr. P.C., S. 439, N. 1 and 12. (B) Criminal P.C. (5 of 1898), S.417(3) (as amended by Act 26 of 1955) - APPEAL - Word may in - Effect. The word may in S. 417(3), Criminal P.C. gives an option to the party either to file an appeal or not, and not a discretion to the party either to file an appeal or a revision petition. (Para 4) (C) Criminal P.C. (5 of 1898), S.417(2) and S.417(3) (as amended by Act 26 of 1955) - APPEAL - APPELLATE COURT - "Such an order of acquittal" - Sub-Section (3) applies to order of acquittal passed by appellate Court also. In Sub-S. (2) and (3) of S. 417 the word such is used with reference to an order of acquittal. The words "such an order of acquittal" appearing in Sub-S. (3) can only refer to the order of acquittal mentioned in Sub-S. (1) of S. 417. The order of acquittal referred to in Sub-S. (1) of S. 417 is an order of acquittal of the original or the appellate Court. Therefore S. 417(3) is applicable not only to a case in which the order of acquittal is that of an original Court, but also when it is passed by the appellate Court. (Para 5) M.C. Ranganna, for Petitioner. Judgement This is a revision petition preferred by the Chairman of the Village Panchayat of Nagathihalli in Nagamangala Taluk against the judgment of the learned First Class Magistrate, Mandya, in Criminal Appeal No. 7 of 1955, setting aside the conviction of the respondent-accused under S. 168(1)(a), Mysore Village Panchayats and District Boards Act and the sentence of fine passed on him by the Amildar-Magistrate, Nagamangala, in C.C. No. 4 of 1955-56.

2. The case for the petitioner-complainant was that the respondent-accused had built a shed in site No. 51 without obtaining a licence from the Village Panchayat and that he was thereby liable to be prosecuted under S. 169, Mysore Village Panchayats and District Boards Act. The accused pleaded not guilty but the learned Magistrate ultimately convicted the respondent-accused for an offence under S. 168(1)(a) of the Act and sentenced him as stated above. As against this decision, the respondent appealed and the learned First Class Magistrate, Mandya, set aside the conviction and the sentence passed on the respondent. As against that decision, this revision petition is filed.

3. I think that this revision petition can be disposed of on a point of law. The point that arises for consideration is whether a revision petition under S. 439, Criminal P.C. is competent against an order of acquittal. It seems to me that this revision petition is not maintainable. Under S. 417(3) of the amended Criminal P.C., an appeal against an order of acquittal is provided. Section 417(3) runs as follows : "If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court." From a reading of this section, it is clear that a complainant in a private case can prefer an appeal against an order of acquittal provided the High Court grants special leave to appeal. In this connection, it is necessary to refer to S. 439(5), Criminal P.C. which runs thus : "Where under the Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed." This provision bars a private party from having recourse to a revision petition when an appeal against an order is provided and when no appeal is preferred.

4. It was argued by the learned counsel for the petitioner that the word "may" appearing in Sub-S. (3) of S. 417 after the word "complainant" gives him an option either to file an appeal or a revision petition. This is not a correct interpretation of the word "may". We have to understand the said word "may" as giving an option to the party either to file an appeal or not, and not a discretion to the party either to file an appeal or a revision petition. In view of the provisions of Sub-S. (5) of S. 439 which bar a private party from filing a revision petition against an order of acquittal when no appeal is provided for and when no appeal is preferred, there is no substance in the contention that a party could file either an appeal or a revision petition.

5. It was next contended by the learned counsel for the petitioner that S. 417(3) applies only to original orders of acquittal and not to orders of acquittal passed by an appellate Court. I see no merit in this contention. Section 417(1) runs thus : "Subject to the provisions of Sub-S. (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court." In Sub-Ss. (2) and (3) of S. 417 the word "such" is used with reference to an order of acquittal. The words "such an order of acquittal" appearing in Sub-S. (3) can only refer to the order of acquittal mentioned in Sub-S. (1) of S. 417. The order of acquittal referred to in Sub-S. (1) of S. 417 is an order of acquittal of the original or the appellate Court. Therefore there is no force in the argument advanced by the learned counsel that S. 417(3) is applicable only to a case in which the order of acquittal is that of an original Court. Under these circumstances, it has to be held that, this revision petition is not maintainable.

6. In the result, this petition stands dismissed. Revision dismissed. AIR 1956 MYSORE 63 (Vol. 43, C. 29 Dec.) "Gangappa v. State of Mysore" MYSORE HIGH COURT Coram : 1 VENKATARAMAIYA, C.J. ( Single Bench ) C. Gangappa, Petitioner v. State of Mysore, Respondent. Criminal Revn. Petn. No. 343 of 1955, D/- 27 -6 -1956, against decision of Principal S.J., Bangalore, in Cri. Appeal No. 181 of 1955. (A) Mysore Police Act (5 of 1908), S.4(3), S.63 - POLICE OFFICERS - EVIDENCE - Absence of evidence of gain to house owner - Effect. Though the definition of the expression keeping a common gaming house in S. 4(3) no doubt mentions gain to the person as a necessary element and shows that mere use of the property for gaming is not enough, S. 63, explanation 1 provides for a presumption of gain when instruments of gaming are found, and the presumption is stronger when gaming is proved to have been indulged in. The mere absence of evidence of monetary benefit to the accused owning the building is not therefore sufficient to conclude that he was not keeping a common gaming house. (Para 2) (B) Criminal P.C. (5 of 1898), S.364, S.342 - EXAMINATION OF ACCUSED - SUMMONS CASE - Non-compliance with provisions of - Effect. Section 364, Criminal P.C. requires that the Magistrate should note that the statement was made in his presence and that such a note should be signed by the Magistrate. section 242 of the code enjoins that particulars of the offence should be explained to the accused and his answer there to recorded. As far as possible the plea may be reduced to writing in his own words. If these important provisions have not beer, followed, the questions relating to actual gaming are put to the accused who is charged with keeping a common gaming house, which is obviously wrong and misleading so far as that accused was concerned, his answer is not certified as being taken down by the Magistrate, and the examination of the accused under S. 342 of the Code follows this almost as if it is a continuation of the proceeding under S. 242, the omissions vitiate the trial. (Para 3) Anno : AIR Com., Cr. P.C., S. 342, N. 35. Cases Referred : Courtwise Chronological Paras (A) 7 Mysore LJ 144 3

L. Krishnamurthy, for Petitioner; Addl. Asst. Advocate-General, for Respondent. Judgement The petitioner who was accused 6 in the trial Court has been convicted of the offence of keeping a common gaming house and sentenced to undergo simple imprisonment for one month and to pay a fine of Rs. 200/-. The conviction and sentence are both confirmed in appeal. The correctness of this has been questioned on the ground that proof of any income or profit being derived by allowing the premises to be used for gambling is lacking in the case and that the examination of the petitioner is defective. Five others who were tried along with the petitioner were found guilty of gaming and sentenced to fines. These have not challenged the convictions. It must therefore be taken as established that there was gaming in the premises by those persons.

2. Though it is not disputed that the building in which gaming was carried on is that of the petitioner, the contention is that in the absence of evidence of monetary benefit to the petitioner from this he cannot be considered to be keeping a common gaming house under the Act. The definition of the expression in S. 4(3) of the Act no doubt mentions gain to the person as a necessary element and shows that mere use of the property for gaming is not enough. If that was all to be considered the contention would have had some force. But S. 63 explanation 1 provides for a presumption of gain when instruments of gaming are found. The presumption is stronger as gaming is proved to have been indulged in the objection to the sufficiency of evidence is therefore untenable.

3. The criticism of the manner in which the petitioner was examined and his answers have been recorded cannot be lightly treated. Though the allegation against the petitioner was different from that against others, the same question as was put to others was repeated to the petitioner. He was not apprised that the complaint concerning him was that he had kept a common gaming house and the trial Magistrate seems to have ignored the distinction between the accusation against the petitioner and against others though they were all tried together. Even more serious is the omission to certify that the answer was recorded by him and leaving the authenticity of the petitioner having made the statement in doubt. Section 364, Criminal P.C. requires that the Magistrate should note that it was made in his presence and that such a note should be signed by the Magistrate. section 242 of the code enjoins that particulars of the offence should be explained to the accused and his answer thereto recorded. As far as possible the plea may be reduced to writing in his own words. See 7 Mysore LJ 144 (A). These important provisions of law have not been followed. The question put relates to actual gaming and was obviously wrong and misleading so far as the petitioner was concerned. His answer is not certified as being taken down by the Magistrate. The examination of the petitioner under S. 342 of the Code follows this almost as if it is a continuation of the proceeding under S. 242. The interval as can be seen from the order sheet is more than a month. The question formulated even then was mechanical. It is regrettable that the Magistrate who has been in service for some years already should have overlooked the essential provisions of law and dealt with the case in an unsatisfactory manner. The defects referred to cannot be lightly passed off and the learned Additional Assistant Advocate-General was not able to cite any instance in which such omissions are held to be inconsequential.

4. The conviction and sentence of the petitioner are set aside as the defects referred to are likely to have prejudiced the petitioner. Accused 6 (petitioner) is acquitted. The bail bonds are cancelled and the fine if levied, will be refunded. Revision petition allowed. 1955 AIR 1955 MYSORE 1 (Vol. 42, C.N. 1) "B. N. Subba Rao v. State of Mysore" MYSORE HIGH COURT Coram : 1 VENKATARAMAIYA, J. ( Single Bench ) B. N. Subba Rao, Accused-Petitioner v. State of Mysore. Criminal Revn. Petn. No.121 of 1954, D/- 11 -8 -1954, against the conviction and sentence passed by Second Magistrate, Kolar, in Criminal Case No.1342 of 1953. Criminal P.C. (5 of 1898), S.4(1)(h), S.195(1)(a) and S.537 - CONTEMPT OF LAWFUL AUTHORITY - CRIMINAL PROCEEDINGS - CHARGE SHEET - COMPLAINT - Charge-sheet by police is not complaint - Complaint in respect of offence under S.182, Penal Code. The accused made a false complaint to the police against one A alleging illicit manufacture of toddy. After investigation a B-report was filed. After sanction of superintendent of police was obtained the accused was prosecuted and convicted of an offence under S.182, Penal Code on the basis of a charge-sheet filed by the police. Held that the charge-sheet could not be held to be a complaint in writing as prescribed in S.195(1)(a), Criminal P.C. and the absence of a complaint was a fatal defect not curable under S.537. The definition of a complaint as given in S.4(1)(h) does not include the report of a police officer. Case law ref. (Para 2) Anno: Criminal P.C., S.4(1)(h) N.13; S.195 N.6, 9; S.537 N.7. Cases Referred : Chronological Paras (A) (V23) AIR 1936 Nag 86 : 37 Cri LJ 587 2 (B) (V40) AIR 1953 Nag 290 : 1953 Cri LJ 1573 2 (C) (V41) AIR 1954 Nag 30 : 1954 Cri LJ 15 2 (D) (V35) AIR 1948 Cal 103 : 48 Cri LJ 665 2 (E) (35) 40 Mys HCR 348 2 S.V. Ranga Rao Kadom, for Petitioner; Nittoor Srinivasa Rao, Advocate-General, for the State. Judgement ORDER:- The Petitioner has been convicted under S.182 for making a false complaint against one Avani Munivenkatappa alleging illicit manufacture of toddy. The complaint was made to the darfedar Malur on 8-10-52 and after investigation a B report was filed. Sanction was obtained from the Superintendent of Police to prosecute the Petitioner for making a false complaint and a charge-sheet was filed in Court for the same. The prosecution examined seven witnesses and two were examined on behalf of the Petitioner. The learned Magistrate disbelieved the evidence in support of the defence, convicted the petitioner and sentenced him to pay a fine of Rs.30/-.

2. Sri Ranga Rao Kadom, learned counsel for Petitioner, contended that the conviction is illegal on the ground that the condition necessary for the initiation of the proceedings has not been satisfied and that it is unwarranted since there is no finding that the Petitioners complaint was false to his knowledge. The first ground is based on S.195(1)(a), Criminal P.C., which reads as follows: "195 (1) (a) No Court shall take cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate;" It is argued that charge sheet cannot be regarded as complaint in writing and without a complaint as defined in the Code, the Magistrate had no jurisdiction to try the Petitioner. - Emperor v. Babulal Munnilal, AIR 1936 Nag 86 (A); - Maganbhai v. State of M.P., AIR 1953 Nag 290 (B); - Banshilal v. State, AIR 1954 Nag 30 (C) and - Santi Lal v. Emperor, AIR 1943 Cal 103 (D) cited by Sri Ranga Rao Kadom support the contention. The same view is taken by a learned Judge of this Court in 40 Mys H.C.R. 348 (E). The learned Advocate-General did not dispute that a complaint in writing was necessary in the case but stated that the F.I.R. concerning the petitioners complaint may be treated as the complaint in writing against the Petitioner. He pointed out that the objection now put forward was not raised in the lower Court or in the revision petition. As the complaint alleged to be false was made in this case to a police officer and the F.I.R. was sent with respect to it by an officer above him in rank, it would be sufficient for the purpose of the Section provided it can be deemed to be complaint. I do not think that the F.I.R. touching one complaint can serve as a complaint against the complainant and afford basis of a prosecution. The F.I.R. was open to further scrutiny by the court and in spite of what was stated therein there was possibility of the case ending in a conviction. The learned Magistrate has not taken it as the complaint for the present case and the order sheet shows that proceedings started with a charge sheet and not on the basis of the F. I. R. The definition of complaint as given in the Code does not include the report of a Police Officer. It is clear from this and the cases referred to that a charge sheet cannot be held to be a complaint in writing prescribed by S.195, Criminal P.C. The absence of the complaint is a vital defect not curable by the provisions of S.537 of the Code. The charge-sheet in this case was not warranted having regard to the nature of the offence complained of and has to be considered as superfluous and not as furnishing a necessary requirement. The conviction and sentence are set aside and the accused is acquitted. The fine, if paid, will be refunded. Accused acquitted. AIR 1955 MYSORE 2 (Vol. 42, C.N. 2) "K. G. Mani v. J. H. Leutin" MYSORE HIGH COURT Coram : 1 VENKATA RAMAIYA, J. ( Single Bench ) K.G. Mani, Defendant-Petitioner v. J.H. Leutin, Plaintiff, Respondent. Civil Revn. Petn. No.375 of 1953, D/- 5 -2 -1954, against order of First Munsiff, Bangalore, in O.S. No.468 of 1946-47. Civil P.C. (5 of 1908), S.151, S.152, S.153, O.9, R.8, R.7 - INHERENT POWERS - AMENDMENT - DECREE - APPEARANCE - Amendment of ex parte decree. The plaintiff sued a firm of which M was alleged to be a partner with two brothers for recovery of money said to be due under a cheque. There was no mention in the pleadings of the person who signed the cheque. M was ex parte but the other two defendants contested the suit. Finally the suit was dismissed for default of plaintiffs appearance. More than 4 years later the plaintiff filed an application under sections 151, 152 and 153, Civil P.C. for amendment of the decree so as to make M liable for payment of the amount claimed in the suit. On the correctness of the trial Courts order allowing the amendment: Held, that Rule 8 of Order 9, Civil P.C. provides for a decree being passed in favour of the absent plaintiff only when there is an admission of the claim by a defendant in whole or in part and not merely because the defendant is ex parte. Placing the defendant ex parte cannot by itself mean that the suit is decreed against him. The plaintiff therefore could not enforce the claim against such defendant. AIR 1939 Mad 385 Ref. (Para 2) Further, an amendment can be allowed if the decree is not in conformity with the judgment or there is any mistake due to accidental slip or inadvertence. The decree was not at variance with the judgment and there was no basis to hold that there was any error committed unintentionally or by accident. If relief due to plaintiff was unreasonably denied the plaintiff could have appealed. He neither preferred an appeal nor applied for the dismissal of the suit being set aside under Order 9, or for a review. The application for amendment was filed more than four years after the dismissal of the suit. The power to allow amendment, even if the circumstances exist, was discretionary. No good reason was given for the inordinate delay in filing the application. The amendment therefore was not justified. AIR 1939 Mad 385 Ref. (Para 4) Anno: Civil P.C.S. 151 N 2; S.152, N 6; S.153, N 4; O.9 R 8 N 1; O.9 R 7 N 2. Cases Referred : Chronological Paras (A) (V26) AIR 1939 Mad 385 : 185 Ind Cas 247 2 Guloor Srinivasa Rao, for Petitioner; B.V. Srinivasiah, for Respondent. Judgement ORDER:- In O.S. 468 of 46-47 of the Court of the First Munsiff, Bangalore, the Respondent who was the plaintiff sued a firm of which the petitioner was alleged to be a partner with two others for recovery of money said to be due under a cheque. There is no mention in the pleadings of the person who signed the cheque. The petitioner was ex parte but the other two defendants contested the suit. Finally on 31-5-1948 the suit was dismissed for default of plaintiffs appearance. More than 4 years later on 15-7-1952 respondent filed an application under sections 151, 152 and 153, Civil P.C., for amendment of the decree so as to make petitioner liable for payment of the amount claimed in the suit. The amendment has been allowed and correctness of this has been questioned in this petition for revision.

2. The lower Court seems to be of opinion that the fact that petitioner was treated ex parte and that he did not get it set aside is enough or makes it necessary to hold that the suit could not be or was not intended to be dismissed against him. I do not think that this is a correct view. Rule 8 of Order 9, Civil P.C., provides for a decree being passed in favour of the absent plaintiff only when there is an admission of the claim by a defendant in whole or in part and not merely because the defendant is ex parte. Placing the defendant ex parte cannot by itself mean that the suit is decreed against him. It would affect his right to reopen or participate in the proceedings. See - Perumal v. Kondama, AIR 1939 Mad 385 (A), No decree is drawn up when the defendant is treated ex parte and the plaintiff cannot enforce the claim against such defendant.

3. The orders to treat the petitioner ex parte and for dismissal of the suit subsequently were not made by the learned Munsif who has allowed the amendment but by his predecessor. Apart from what the proceedings indicate, it is not possible to assume or infer anything as to what was in the mind of the court when the orders were passed. The terms of the orders and the provisions of law bearing on the same do not justify the amendment of the decree by imposing a liability for the amount claimed on the petitioner.

4. Amendment can be allowed if the decree is not in conformity with the judgment or there is any mistake due to accidental slip or inadvertence. Obviously the decree is not at variance with the judgment and having regard to the terms of the orders there is no basis to hold that there was any error committed unintentionally or by accident. If relief due to plaintiff was unreasonably denied the plaintiff could have appealed. He neither preferred an appeal nor applied for the dismissal of the suit being set aside by means of a petition under Order 9, or for a review. The application for amendment was filed more than four years after the dismissal of the suit. The power to allow amendment, even if the circumstances necessary exist, is discretionary. No good reason is given for the inordinate delay in filing the application.

5. In view of all this, I do not think that the order of the lower Court is justified. It is, therefore, set aside and the application for amendment is dismissed. Parties will bear their own costs. Order accordingly. AIR 1955 MYSORE 3 (Vol. 42, C.N. 3) "Venkataravanappa v. Dasappa" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Venkataravanappa and others, Appellants v. Dasappa and others, Respondents. Second Appeal No.493 of 1950-51, D/- 1 -12 -1953, against decree of Sub-J., Tumkur in Regular Appeal No.181 of 1948-49. (A) Specific Relief Act (1 of 1877), S.27 - CONTRACT - EVIDENCE - Purchaser for value without notice - Burden of proof. Evidence Act (1 of 1872), S.101, S.102, S.103. Where a person claims to be a purchaser for value without notice of the original contract, the burden lies on him to prove that he fulfils that character. 36 Bom 446, Ref. (Para 4) Anno: S.R. Act, S.27 N.3; Evi. Act, Ss.101 to 103 N.45. (B) Specific Relief Act (1 of 1877), S.27 - CONTRACT - OBJECT OF AN ACT - Scope - Equitable principles. Section 27 is based on the equitable principle that from the time of the contract for the sale of the property the vendor is in the position of a trustee for the purchaser in respect of the property and the purchaser is in a similar position as regards the purchase money, for which he has a lien and every one claiming under any subsequently arising title, including a later purchaser with notice, will be liable to the same equities as the party from whom he claims or has purchased. If the subsequent purchaser cannot show that he is a bona fide purchaser for consideration and without notice his purchase cannot override the previous contract. Case law referred; AIR 1954 Mad 116, decision held obiter. (Para 4) Anno: S.R. Act, S.27 N.1. (C) Civil P.C. (5 of 1908), S.100 - APPEAL - Question of fact - Want of notice. The question whether a party has or has not proved want of notice is a question of fact, the determination of which would depend on the evidence and probabilities in each case. (Para 5) Anno: Civil P.C., S.100 N.28. 1953 Mulla: S.100 (Topic discussed in N.28 to Ss.100-101 in AIR Com. not separately dealt with in Mulla - See Mulla, P.367 N. "No......facts"). Cases Referred : Chronological Paras (A) (12) 36 Bom 446 : 16 Ind Cas 680 4 (B) (V12) AIR 1925 Cal 61 : 52 Cal 121 4 (C) (V16) AIR 1929 Lah 249 : 113 Ind Cas 140 4, 5 (D) (V1) AIR 1914 Mad 634 : 26 Mad LJ 218 4 (E) (V23) AIR 1936 Mad 949 : 166 Ind Cas 852 4 (F) (V10) AIR 1923 Lah 108 : 67 Ind Cas 888 4 (G) (V3) AIR 1916 All 342 : 38 All 184 4 (H) (V5) AIR 1918 Pat 526 (1) : 44 Ind Cas 470 4

(I) (V41) AIR 1954 Mad 116 : 1952 Mad WN 373 4 (J) (47) 52 Mys HCR 205 (FB) 5 Mir Iqbal Hussain, for Appellants; B. Venkata Rao, for Respondents. Judgement

2. The plaintiffs case is that defendant 1, who was admittedly the owner of the land, had agreed to sell the schedule property to him for Rs.850/-. He had received an advance of Rs.100/- and had executed a consideration receipt Ex.A dated 20-6-47, promising to receive the balance of Rs.750/- before the Sub-Registrar after executing a proper registered sale deed. The suit was brought by the plaintiffs on 7-7-1947 originally against defendant 1. Some days later by an application dated 14-8-1947 the plaintiff sought for permission and in pleaded defendants 2 to 5 as supplemental defendants on finding that defendant 1 had on 7-7-1947 conveyed the suit property to them for Rs.1,125/-and executed a sale deed Ex.C in their favour. Defendant 1 was ex parte. Defendants 2 to 5 denied knowledge of the prior agreement in favour of the plaintiffs and pleaded that they were bona fide purchasers for value without notice of that prior agreement and that the plaintiffs could not therefore enforce the same against them.

3. Both the Courts below have found that Ex.A is genuine and that defendant 1 had agreed to convey the suit property to the plaintiffs on 20-6-1947 and received Rs.100/- as advance. That finding is not challenged before me. It cannot also be seriously disputed that the plaintiffs have all along been ready and willing to perform their part of the contract by paying the balance of the purchase money and obtain a sale deed. Plaintiff 2 examined as P.W.5 has sworn that on the fourth day after the date of Ex.A the plaintiffs tendered the amount of Rs.750/- to defendant 1 in his village, Maruvekere, and asked him to execute the sale deed. Defendant 1 then took time for 2 or 3 days. They went to him again after 2 days and defendant 1 told them that he would execute the sale deed on the last date agreed and not earlier. On the final due date they went to defendant 1 in the morning and asked him to execute the sale deed. He asked them to go to Madhugiri, which is said to be about six miles away, in advance and that he would meet them near the Sub-Registrars office. They waited near the Sub-Registrars office till 4 p.m. that day and as he did not turn up they consulted a lawyer and sent the notice Ex.B dated 30-6-47 and a sum of Rs.750/- to defendant 1 by telegraphic money order. They accompanied the Postman along with P.W.2 to defendant 1 who was then in his field, ploughing. Defendants 4 and 5 also were present there. The plaintiffs pointed defendant 1 to the postman who tendered the notice Ex.B and also offered the amount of the money order. Defendant 1 refused to receive both, and an endorsement was made to that effect as per Ex.D1. Then they filed this suit as soon as the Court opened on Monday 7-7-1947. On 8-7-1947 defendant 1 had a notice Ex.P issued through a lawyer and returned the advance of Rs.100/- by money order. In Ex.P he stated that as misunderstandings in the matter of sale had arisen, defendant 1 had returned the advance and wanted the karar back. Defendant 1 has not been examined by defendants 2 to 5, and there is no explanation as to what that misunderstanding was and how he was justified in backing out of the contract. The plaintiffs have therefore been thoroughly prompt and willing to perform their part of the contract by paying the balance of purchase money and taking the sale deed and are clearly entitled to obtain specific performance against defendant 1.

4. Under S.27 of the Specific Relief Act specific performance of a contract may be enforced not only against either party thereto but also any other person claiming under him by a title arising subsequent to the contract, except a transferee for value who has paid this money in good faith and without notice of the original contract; and it is contended for the plaintiffs that defendants 2 to 5 do not come within the exception contained in Cl.(b) as they were aware of the earlier contract with the plaintiffs when they obtained their sale deed. The law is now clearly established that where a person claims to be a purchaser for value without notice of the original contract, the burden lies on him to prove that he fulfils that character. The wording of Cl.(b) itself would imply this as the transferee would have to bring himself within the exception provided in that section in order to avoid his obligation under that section; see in this connection - Himatlal v. Vasudeo Ganesh, 36 Bom 446 (A); - Hemchandra v. Amiya Bala, AIR 1925 Cal 61(B); Lekh Singh v. Dwarka Nath, AIR 1929 Lah 249 (C); Tiruvenkatachariar v. Venkatachariar, AIR 1914 Mad 634 (D); Arunachalam Thevar v. Madappa Thevar, AIR 1936 Mad 949 (E); Kanhaya v. Ishwar Das, AIR 1923 Lah 108 (F); Naubat Rai v. Dhaunkal Singh, AIR 1916 All 342 (G); Dharamdeo Singh v. Ram Prasad Sah, AIR 1918 Pat 526 (1)(H). Mr. Iqbal Hussain, learned counsel for the appellants, has referred to a case decided by a single Judge in Sanga Thevar v. Thanukodi Ammal, AIR 1954 Mad 116 (I). That case merely lays down that in suits for specific performance there should be a specific allegation in the plaint that the plaintiff has been ready and willing to perform his part of the contract and that where the suit is against a subsequent purchaser the conditions mentioned in S.27(b) must be averred and proved. The learned Judge who decided that case has not referred to any of the above cases and has made only a casual reference to sub-cl.(b) to S.27 and has observed that the conditions to be satisfied are that the plaintiff himself must prove that the 2nd defendant purchaser was not a purchaser for value and that he had not purchased it in good faith and that he had notice of the original contract, and has dismissed the suit on the former ground, viz., that the plaintiff was not ready and willing to perform his part of the contract and could not therefore claim specific performance. I am not therefore inclined to agree with his observation which appears to be more in the nature of obiter. That section is based on the equitable principle that from the time of the contract for the sale of the property the vendor is in the position of a trustee for the purchase in respect of the property and the purchaser is in a similar position as regards the purchase money, for which he has a lien, and every one claiming under any subsequently arising title including a later purchaser with notice will be liable to the same equities as the party from whom he claims or has purchased; see Colletts Specific Relief Act, 5th Edn., page 242. If the subsequent purchaser cannot show that he is a bona fide purchaser for consideration and without notice his purchase cannot override the previous contract; see 36 Bom. 446 (A).

5. Mr. Iqbal Hussain has urged that the burden of proving want of notice laid on the subsequent purchaser can only be a light one as he cannot be expected to prove a negative and that as has been pointed out in AIR 1929 Lah. 249 (C) it is sufficient if he came to court and denied on oath that he had any such notice. Ordinarily it may be so; but the question whether a party has or has not proved want of notice is a question of fact, the determination of which would depend on the evidence and probabilities in each case. There may be cases where, for instance, possession of the property (as in Srinivasa Hatwar v. Srinivasa Upadhyaya, 52 Mys HCR 205 (FB)(J),) or of the original title deeds, or the conduct of the parties in relation to the transaction or the probabilities in the case or other circumstantial evidence may afford grounds for holding that the subsequent purchaser must be deemed to have constructive notice of the prior agreement of sale or by which such knowledge can be reasonably inferred.

6. Mr. Iqbal Hussain has next argued that in this case the evidence does not justify the finding of the learned Subordinate Judge that the Appellants must have had such notice. I have been taken through the entire evidence and on a consideration of the same and the probabilities I think the finding of the learned Subordinate Judge is correct and must be affirmed. (After discussing the evidence of D W 3 relating to the hurry in subsequent transaction, his Lordship proceeded). The extraordinary hurry in a transaction of some magnitude between villagers is very unusual and raises a strong suspicion about its being a normal open and bona fide sale and shows that the defendants were anxious to complete the sale deed before the plaintiffs took any action. By that time the plaintiffs had got a lawyers notice Ex.B issued to defendant 1 on 30-6-1947 and had also sent a telegraphic money order for Rs.750/-, the balance of purchase money. That notice and the T.M.C. had been tendered to defendant 1 by the village postman in the presence of the village patel on 3-7-47. In these circumstances the agreement to sell in favour of the plaintiffs must have become a matter of public talk in the village of the plaintiffs and defendant 3 and it is difficult to believe that defendants 3 to 5 did not know of it.

7. Defendant 3 also admits that defendant 1 represented on the morning of Saturday 5-7-1947 that there was a prior hypothecation over the property for Rs.200/- and that he had a pronote debt of Rs.100/- which had to be discharged; and defendant 3 told him to pay off these debts and then execute the sale deed. Defendants 3 and 4 made no further enquiries about any other encumbrances and accepted the plaintiffs assurance and immediately started to Madhugiri with the object of buying a stamp paper and putting through the sale deed the same day. On Monday the deed Ex.C was written up and executed. By that time the previous mortgage deed and pronote were, according to defendant 3, produced by defendant 1 duly discharged. In Ex.C, however, it is recited that Rs.208/- to discharge the mortgage and Rs.76-8-0 to discharge the pronote debt, i.e., in all Rs.284-8-0 had been left with the purchasers and only Rs.804-8-0 was to be paid by them before the Sub-Registrar. This discrepancy between the evidence of defendant 3 and the recital in Ex.C has not been attempted to be explained. Ex.C. recites that possession of the lands was delivered on its date and defendant 3 says it was so delivered. The sale deed was got written and executed and attested at Madhugiri with the help of a writer of that place and two attestors who were comparative strangers and not of the village in which the parties lived, though Sunday intervened. This secret way in which the sale deed was put through while the plaintiffs were making frantic efforts to secure a sale deed for themselves are circumstances from which it can be inferred that defendants 2 to 5 were not so innocent or ignorant of the prior contract. Another circumstance which throws further suspicion about the bona fide and normal nature of the sale under Ex.C is that it does not contain the usual covenant for peaceful title and quiet enjoyment. This is particularly significant as defendants 2 to 5 apparently made no independent enquiries of their own as to the title and prior encumbrances over the properties.

8. Apart from these probabilities from which a Court may reasonably infer knowledge there are some positive circumstances on which the plaintiffs have relied which belie the defendants plea of want of knowledge or notice. P.W.2, the Patel of Maruvekere, has sworn that he accompanied the postman Cheluva at the request of the latter to identify defendant 1 to whom he wanted to tender the postal registered cover Ex.B and a M.O. for Rs.750/-. They were offered to defendant 1 in his field and he refused to receive them. P.W.2 has written the endorsement Ex.B-1 relating to the refusal. According to him there were also present at the time defendants 4 and 5. The plaintiffs are also said to have been present then and P.W.2 has sworn to this incident. Nothing has been elicited during this witnesss cross-examination as to why his evidence should not be believed. Defendant 3 who says he was born and bred up in Halehatti 3 furlongs from Maruvekere and defendant 4 who is a resident of Gollarhatti say they do not know P.W.2 at all, and defendant 3 says he has not even seen the Postman Cheluviah. Defendant 4 says he does not know Maruvekere or who is the Shanubhogue or patel of that village. Defendant 1 has not been examined and has not denied this incident. The plaintiffs allege that the shanubhogue of Maruvekere, one Narasinga Rao, who is the scribe of Ex.A, later on helped defendants 2 to 5 to purchase the property from Deft. 1, that he was present when Ex.C was written and supplied the necessary information such as survey numbers, boundaries, assessment etc., to be incorporated in. the sale deed. This is vehemently denied by the defendants. P.W. 2 is the scribe of Ex. C and he has identified defendant 1 before the Sub-Registrar. He has sworn that he wrote that document, not in Chinnisabs mundy, but in the house of one Thimmappa where he was taken by Shanubhogue Narasinga Rao and defendants 2 to 5, and that Thimmappa is the elder brother of that Narasingarao and that the boundaries and survey numbers were furnished by the latter whom he has known for 8 or 10 years. He says Chinnisab was also present then and that he usually writes the latters documents. At that time 3 persons (it is alleged that they are the plaintiffs) whom he cannot identify as the plaintiffs came and remonstrated with Narasinga Rao as to why he was acting in that manner when a suit had already been filed. Chinnisab who was examined on 22-1-49 admits that he was present in Court when P.W.3 was examined on 12-1-49 and that he has written many documents for him. Nothing is elicited in the cross-examination of this witness to discredit him. Chinnisab has apperently taken a much more active part and knows much more of the facts of this case than he admits and it is clear he is helping the defendants and is interested in them. He admits that there was a case of murder against defendants 4 and 5 two or three years ago when he stood surety for them and got them released on bail. Defendant 4 denies that D.W.3 was surety for him though he admits there was a case of murder against him and that he was discharged in it. The attestors of Ex.O who are examined as DWs.1 and 2 are residents not of these parties villages but of Shankarpur and Madhugiri. They came to Chinnisabs mundy, it is said, on their business with him and were strangers to the parties to this sale. DW.1 had gone to take DW 3 to his village to help him to buy some bulls. He is clearly a friend of DW 3 and he says he usually takes D.W.3 with him for that purpose. D.W.3 admits this. DW 2 went to collect some dues from DW 3 and has known him from 10 or 20 years. Chinnisab has not attested Ex.C though he says it was written in his mundy and the reason he gives is that as he signs in Urdu he thought he would have to go to the Sub-Registrars office to get his attestation transliterated. This is not a convincing explanation.

9. I think the evidence of PW 2 that Ex.C was written in the house of Thammiah, a brother of Narasinga Rao and with the latters active help must be believed in preference to that of defendant 1 and his witnesses. It is very usual (unusual?), though of course it is not impossible or by way of a general rule, that for villagers like the parties in this case to purchase or sell lands in the village without consulting the Patel or the shanubhogue if not with the assistance of one or other of them. The plaintiffs and defendant 1 had already approached the shanubhogue Narasingarao and got Ex.A written by him. Later on his assistance must have been sought by the defendants and hence their anxiety to deny his presence at the time of execution of Ex.C Mr. Iqbal Hussain has urged that the plaintiffs have for the first time in their evidence referred to two other incidents which are not in their pleadings to impute knowledge to his clients. One is that they bid for the property at some private auction where they offered the highest price before Ex. A was executed and that they were actually present when Ex.A was executed. Plaintiff 2 as well as PW 4, one of the attestors of Ex.A, have deposed to this though PW 1, the other attestor, has not referred to it. The second is that the plaintiffs had protested to the Shanubhogue in the forenoon or afternoon of the 7th when the sale deed was still being written. Mr. Iqubal Hussain urges that they would have immediately gone to their lawyer and applied to the Court to have defendants 2 to 5 inpleaded in the suit. The plaintiffs say that they did tell their counsel and that he said it could be done next day, and that they applied to implead defendants 2 to 5 within about a week later after getting a copy of the sale deed. I think even if the plaintiffs suspected that the shanubhogue was trying to get the property conveyed to some one else they could not have, without more definite information, which they could only get by obtaining a certified copy of the sale deed, apply for impleading defendants 2 to 5 or any or all of them as possible alienees. Even apart from these two grounds I think there was abundant material for the learned Subordinate Judge to hold that defendants 2 to 5 are not bona fide purchasers for value without notice and that their sale under Ex.C is therefore subject to the contract in the plaintiffs favour.

10. In the result this appeal is dismissed with costs. (Advocates fee in this Court Rs.30/-.) Appeal dismissed. AIR 1955 MYSORE 6 (Vol. 42, C.N. 4) "Gurubasaviah v. Karibasappa" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) R. Gurubasaviah, Plaintiff Petitioner v. Rumale Karibasappa and others, Defendants-Respondents. Civil Revn. Petn. No.538 of 1952/53, D/- 27 -1 -1954, against order by 1st. Addl. Dist. J., Bangalore, D/- 15 -7 -1952. Civil P.C. (5 of 1908), O.20, R.18 and O.22, R.10 - DECREE - PARTITION - Partition suit - Preliminary decree - Adjustment of rights arising after. @page-Mys7 Where subsequent to the preliminary decree in a suit for partition, there has been either an enlargement or dimunition of the shares or rights of the parties by reason of succession or subsequent purchases or by assignments of interest by whatever cause, the Court, before passing its final decree can and ought to go into the matter and grant a final decree in accordance with such subsequent devolutions to avoid multiplicity of suits and give complete and appropriate relief to all the parties. The Court can do this under the provisions contained in O.22, R.10. 32 Cal.483 Ref. (Para 4) Anno: C.P.C., O.20, R.18, N.7; O.22, R.10, N.13. Cases Referred : Chronological Paras (A) (05) 32 Cal 483 3 D. Srinivasiah, for Petitioner. Judgement ORDER:- The plaintiff made an application, I.A.28, praying that his right to a 2/3 share in certain items of the plaint-schedule immoveable properties and his full ownership in respect of certain other items may be recognised and that the same may be divided by metes and bounds. The 7th defendant, who is the only contesting defendant in this matter, objected to such a relief being given on the ground that the decree that had been passed in the case earlier on 2-12-1936 was a consent decree whereby the parties had decided about the shares due to each other and that the plaintiff could not ask for any larger share or for other items to be allotted to him contrary to that compromise decree. The learned District Judge dismissed I.A.26 holding that the decree which was passed on 2-12-36 was not a preliminary decree but a compromise decree which was in the nature of final decree and that therefore no relief could be given in this suit beyond what had been conceded in the compromise decree; and that the remedy of the plaintiff to recover any larger share must be by other proceedings. I do not think that this order of the learned District Judge can be supported. The decree that was passed on 2-12-1936 merely recognised though by consent, the shares to which the parties were then entitled in the immoveable properties. It did not finally dispose of the suit. There were other questions relating to moveables and the actual division by metes and bounds of the immoveables and other matters which had still to be gone into. It is represented in I.A.26 that by reason of a purchase in Court auction subsequent to the compromise decree the plaintiff has become entitled to an enhanced share, and that he has also become entitled to a further share or certain items as heir of his mother who had since purchased the rights of some who were parties to the compromise decree. These matters were all subsequent to the compromise decree and their consideration would really fall within the ambit of O.22, R.10, Civil P.C., which provides that in other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

3. It has been held in Jotindra Mohan v. Bijoy Chand, 32 Cal 483 (A) that a suit for partition, even after the report of the Commissioners is confirmed and decree is directed to be drawn up in accordance therewith, is a pending litigation, until the Court signs the final decree, and that a decree for partition, to be operative, must be engrossed on stamped-paper as required by the Stamp Act, and until the Judge signs the decree so engrossed, it cannot be said that the suit has terminated; and an order directing a party to be added under S.32, Civil P.C. can therefore be made in such a suit before it has actually terminated. The decree of 2-12-1936 cannot be said to be a final decree. The definition of a preliminary decree is that further proceedings are to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit.

4. It cannot be said that the decree of 1936 finally disposed of the suit, even in respect of the immoveable properties as the shares had still to be divided by metes and bounds either through a commissioner or otherwise. If in the meantime and subsequent to that decree there has been either an enlargement or dimunition of the shares or rights of the parties by reason of succession or subsequent-purchases or by assignments of interest by whatever cause, the Court, before passing its final decree can and ought to go into the matter and grant a final decree in accordance with such subsequent devolutions to avoid multiplicity of suits and give complete and appropriate relief to all the parties. This matter has been discussed in the Code of Civil Procedure by Mulla, (12th Edn.), Vol.2, at page 963. According to the learned author the words: " "During the Pendency of a suit" mean before a final decree or order has been passed or made in the suit. Hence, the provisions of this rule (O.22, R.10) apply if the assignment, creation or devolution of interest takes place before a final decree or order is passed or made in the suit.......Until the decree is passed, a transferee pendente lite is entitled to apply under this rule to be joined as a party". The learned District Judge could not, therefore, dismiss I.A.26 on the ground that he has done. It does not appear to be even just or reasonable or even convenient to drive the plaintiff to a separate suit to recover any share or items which may now be due to him from practically the same parties.

5. This revision petition is allowed. The order of the learned District Judge on I. A. 26 is set aside He will enquire into and dispose of that application in accordance with law in the light of the observations made above. The parties will bear their own costs of this revision petition. Revision allowed. (S) AIR 1955 MYSORE 8 (Vol. 42, C.N. 5) "B. V. Sundariah v. B. R. Ramasastry" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) B. V. Sundariah, Appellant v. B. R. Ramasastry and others, Respondents. Second Appeal No.488 of 1951-52, D/- 12 -1 -1954, against decree of Addl. Sub. J., Bangalore, in Regular Appeal No.72 of 1950-51. (A) Transfer of Property Act (4 of 1882), S.43 - CONTRACT - Principle. Section 43 is based on the general rule of equity that where a transferor purports to convey a particular property and has not the title under which he professes to convey, the transferee must be satisfied out of any title which the transferor then has or afterwards acquires in the said property. It may be regarded as only an extension of the law of specific performance of contracts. 7 Mys LJ 249; AIR 1939 Pat 116 and AIR 1927 Cal 665 Ref. (Para 7) Anno: T.P. Act, S.43 N.2, 3. (B) Transfer of Property Act (4 of 1882), S.41 and S.43 - CONTRACT - Distinction between. There is a substantial difference between the ambit of Section 41 and S.43. Section 41 provides that a transfer by an ostensible owner cannot be avoided on the ground that the transferor was not authorised to make it; and that rule is made subject to an express provision that the transferee should take reasonable care to ascertain that the transferor had power to make the transfer and act in good faith before he can claim its benefit. On the other hand S.43 enables a transferee to whom a transferor has made a fraudulent or erroneous representation to lay hold at his option of any interest which the transferor may subsequently acquire in the property, provided his doing so does not adversely affect the rights of any subsequent bona fide purchaser for value without notice. The right to obtain relief under S.43 is based, not on the diligence of the transferee but, on the principle that the transferor who has made an erroneous or fraudulent representation should not be allowed to get away with it and should be compelled to make good the bargain which it has become possible for him later on to do, subject, of course, to any subsequent lawful rights. (Para 11) Anno: T.P. Act S.41 N.1, S.43 N.2, (C) Transfer of Property Act (4 of 1882), S.43 - CONTRACT - Transfer by person with defective title - Subsequent acquisition of title - Effect. A and his sons B and C, who was minor, formed a joint Hindu family. On 1-11-1939 A and B on their own behalf, and A as guardian for C, executed a sale deed of certain joint family property in favour of D in consideration of D paying certain debts binding on the family. Among other debts so paid, D paid off certain amount to a Society E who held the property on mortgage. In 1944 when A was the president of the Society E, A got an application from C requesting E to accept the amounts due from him and convey the property to him. A sale deed was thus executed by E in favour of C on. 16-10-44 of the same property. D being dispossessed in 1947 sued A, B and C for possession. C contested the suit on the basis of his sale deed. Held that (1) the real purchaser from the society was the joint family on which the debts were binding. (2) that A and B were clearly under the belief, may be erroneous, that they could convey the property to D and that if the latter paid off the society he would become the absolute owner and that there was no need for a sale deed from the society. (3) That as A made such a representation to the plaintiff D which the plaintiff was led, to believe on account of the position held by A vis-a-vis the society, Section 43 clearly applied to the case. (Para 14) Anno: T.P. Act S.43 N.9. Cases Referred : Chronological Paras (A) (V38) AIR 1951 SC 193 : 1951 SCR 258 (SC) 5 (B) (07) 34 Ind App 115 : 31 Bom 381 (PC) 5 (C) (29) 7 Mys LJ 249 8 (D) (V26) AIR 1939 Pat 116 : 182 Ind Cas 829 9 (E) (V14) AIR 1927 Cal 665 : 104 Ind Cas 206 9 (P) (80) 5 Cal 198 : 6 Ind App 145 (PC) 9 (G) (V37) 1950 All 121 10 (H) (13) 17 Cal WN 10 : 16 Ind Cas 825 11, 12

(I) (98) 2 Cal WN 18 12 (J) (98) 2 Cal WN 330 : 25 Cal 616 12 (K) (99) 3 Cal WN 468 : 26 Cal 381 12

(L) (03) 30 Cal 539 : 30 Ind App 114 (PC) 12 (M) (08) 12 Cal WN 481 12 (N) (1714) 2 Eq Cas Abr. 515 : 22 ER 435 12 (O) (1879) 41 LT 378 : 12 Ch D 675 12 (P) (1880) 6 Ir 328 12 (Q) (1862) 1 B and S 836 : 121 ER 924 12 (R) (1858) 3 De G and J 63 : 44 ER 1192 12 (S) (1844) 3 Hare 503 : 67 ER 479 12 (T) (1872) 41 LJ Ch 435 : 26 LT 607 12 .R. Somanatha Iyer and M.K. Srinivasa Iyengar. for Appellant; H.K. Srinivasamurthy, for Respondent (No.1). Judgement Defendant 2 pleaded that he merely signed Ex.11 as desired by the plaintiff and was not liable for the suit claim. Defendant 3, who is the main contesting defendant in the suit and who has now come up in second appeal, pleaded that he had purchased the property from defendant 4 from out of his own self-acquisitions under a sale deed Ex.3 on 16-10-1944 and that the plaintiff had never been in possession of the suit property. He, however, admitted that the property in suit had been hypothecated to the Society by defendant 1 who was then the manager of the family for a purpose binding on the family. No question therefore now arises as to the binding nature of the debt which was due to defendant 4.

2. Both the Courts below have rightly held that the suit property is not the self-acquisition of defendant 3 but belonged to the family of defendant 1 and his sons Defendants 2 and 3 as admittedly they are members of a joint-family. They have also held that Ex.11 was really a sale deed and was not intended to evidence a mortgage and have accordingly decreed the plaintiffs suit.

3. I think the judgments of the Courts below are correct and must be upheld. The concurrent finding of the Courts below is that Ex.11 was really meant to convey the property by way of sale to the plaintiff and was not intended to be a mortgage. Though, defendant 1 pleaded in his written statement that Ex.11 was intend to be a mortgage, his witness, D.W.5, has deposed that the plaintiff told him during the earlier negotiations preceding Ex.11 that defendant 1 might execute a sale deed and take a reconveyance whenever he wanted and that he asked defendant 1 to execute a sale deed. He also suggested that agreements might be written in respect of the two sale deed Exs.11 and 12. An agreement Ex.13 dated 2-11-1939 has been executed in favour of defendant 1 by the plaintiff. Under that agreement the plaintiff has agreed to reconvey an item of property which had been sold to him under Ex.12 dated 1-11-1939 for Rs.350/- back to defendant 1 if he paid that sum within three years. A similar agreement of reconveyance has not been taken in respect of the sale under Ex.11 which was also on the same date as Ex.12. The explanations that there was only one stamp paper availble, that Ex.13 was written up on it and that the execution of a similar agreement in respect of Ex.11 was postponed and that while three years period was stipulated for the reconveyance of the property covered by Ex.12, no such period was at all stipulated in respect of Ex.11 properties are obviously unconvincing and has been rightly rejected by the Court below. Defendant 1 who was examined as D.W.3 has deposed that the plaintiff told him that he might pay Rs.1,000/- at any time and take a reconveyance and has not let in any evidence that Ex.11 was really intended to be a mortgage.

4. It has been next contended for the Appellant that the suit item which had been mortgaged along with others to defendant 4 had been purchased on 18-4-39 by the society, defendant 4, at the Revenue auction held by the Amildar in execution of the decree obtained by that society against defendant 1, that that sale had been duly confirmed as evidenced by Ex.8 dated 20-7-39 and the society had thereby become full owner of the property and that defendants 1 and 2 could not therefore validly convey any interest in that property to the plaintiff by the sale under Ex.11, on 1-11-1939. The society had validly conveyed their rights in favour of defendant 3 on 16-10-1944 and the plaintiff could not challenge that sale. The Courts below have held that defendant 3 has not made out that the suit item was one of the items which was sold at the Revenue auction or that its sale was duly confirmed in favour of the society. They have referred to Ex.7 which does not contain any description of the property sold at the auction. The learned Munsiff refused to receive in evidence a copy of the sale list, which was filed before him after the case was reserved for judgment after hearing arguments and after all the evidence in the case had been recorded on the ground that the original was not got produced in time and proved. In the first appellate Court an application was made for the admission of additional evidence in the shape of a certified copy of the sale list and some other documents relating to the sale by which it was sought to be inferred that the suit property had been sold at the auction and confirmed in favour of the society. The lower appellate Court refused to admit such additional evidence on the ground that defendant 3 had not made out a case for such admission as he had not been prevented by any sufficient cause from putting in that evidence in the trial Court. D.W.4, now the Secretary of the society and who was one of the Directors of the society in October 1944 i.e., on the date of Ex.20-b when, the question of selling the property to defendant 3 was considered and the resolution Ex.2 was passed, has stated that he does not even know what is the property involved in this suit, that he does not know if the plaintiff has paid any amount to the society and that they have no references to show that properties were sold at the auction and they had not taken a sale certificate. D.W.1 who was the President of the society in 1950 says that the society had taken possession of the property which had been sold in the Revenue sale which is obviously not true. He was also a party to the resolution Ex.2. The best evidence in the matter would have been the sale certificate to be issued by the sale conducting officer and this the society had admittedly not obtained. As the evidence now stands the concurrent finding of the Courts below and which is binding on this Court in second appeal is that defendant 3 has not proved that the suit item was one of the items purchased by defendant 4 and if so this appeal must necessarily fail.

5. In this Court a similar application for admission of additional evidence has been filed. It is contended by Mr. H.K. Sreenivasamuxthy, learned Counsel for Respondent 1, that the law is strict as regards the admission of additional evidence by an appellate Court. He has referred to two cases reported in Arjan Singh v. Kartar Singh AIR 1951 S.C. 183 (A) and Kessowji v. GIP Railway; 34 Ind App. 115 (P.C.) (B). I think that in the view I am taking it is unnecessary to consider the Appellants application for additional evidence, though it cannot be said that the learned Subordinate Judge was not justified in refusing to admit such evidence as the reasons given by him for so doing appear to be proper. Even assuming that the suit item had been sold and had been purchased by defendant 4 and the same had been confirmed in favour of defendant 4 I think the plaintiff is still enittled to succeed. In this connection, it is necessary briefly to refer to the circumstances under which the sale in favour of defendant 3 has taken place.

6. Defendants 1 to 3 executed Exs.11 and 12 as already referred to on 1-11-1939 for Rs.1,000/-and Rs.350/- respectively. Out of the consideration under Ex.11 Rs.700/- was to go in discharge of a hypothecation debt due to the plaintiff under Ex.16, which represented a debt due by defendant 1, Rs.200/- to be paid to one Aswathanarayana Sastry on another hypothecation debt and Rs.100/- towards the decree debt due to defendant 4. Out of the consideration of Rs.350/-under Ex.12 Rs.25/- was received in cash by defendant 1 and the balance of Rs.325/- was to be paid by the plaintiff to defendant 4 towards a decree debt. Defendant 1 admits in his evidence that the plaintiff has paid Rs.200/- to Aswathanareyana Sastry and Rs.100/- to the society as per Ex.11 recital and that Rs.700/- was duly adJusted towards the debt due under Ex.16 which had come into existence to discharge the previous debts due by his deceased father. The plaintiff has produced several receipts Exs.B-1 to B-9 and both the Courts below have held that he has so paid the amount which he was liable to pay to defendant 4 in accordance with Exs.11 and 12. No attempt has been made either by defendant 1 or defendant 3 to show that he had not so paid and that he was still due to pay any further sums to the society for and on account of defendants 1 to 3. The khata of the suit property was made out in his name as seen from Ex.H, the R.R. extract and Ex.J. the endorsement regarding transfer of khata and the plaintiff has paid kandayam as per Exs.K to K-4. Immediately after the sale on 2-11-1939 or thereabout the plaintiff is said to have sent a petition to the society informing them that he had purchased the suit property and asking them to receive the amount from him; that he made such application is clear from Ex.C, an acknowledgment dated 2-11-193S signed by the Secretary of the society and which defendant 1 who was the President of the society at the concerned times has admitted to be genuine. Ex.19 which is a suit register of the society shows nil. balance after receiving six annas from the plaintiff on 19-8-1944; and it is urged for Respondent 1 that there was really no amount due to the society thereafter from defendant 1. In Ex.20(b) which is a copy of the resolution dated 2-10-44 of defendant 4 society, it is stated that defendant 1s son defendant 3 has made an application that he would discharge Rs.39-9-0 being the balance of interest due in Case No. 369/38-37 wherein the mortgaged property had been sold and Rs.67-12-3 principal and Rs.34-6-9 interest due under a decree in Case No.509/36-37 aggregating Rs.141-12-0 that the same may be received from him and the Society may reconvey the property to him that the society had agreed to do so and might execute a reconveyance accordingly after receiving the amount It is noteworthy that the interest of Rs.39-9-is not shown as due and outstanding under Ex.19 in Case No.369/38-37 and it is shown only as a claim on 17-10-44. Ex.21 is an application dated 5-8-44 by defendant 3 referred to in Ex.20(b) and Ex.3 is the sale deed dated 16-10-1944 executed by the society in favour of defendant 3. It is admitted by D.W.1 who was the President of the society in 1950 and who was a Director in 1944 that defendant 1 was the President in 1944 though defendant 1 says he does not remember if he was the President in 1944; and that he does not even remember if he was a Director then. Neither D.W.1 nor D.W.4 nor any one else on behalf of the society has explained how a balance of Rs.39-9-0 was claimed as still due when nil balance was shown in Ex.19 much less that the same was claimed from the plaintiff. D.W.1 who admits that he and defendant 1 are on good terms says that he is illiterate and knows only how to sign and that he does not know if the plaintiff had paid any money towards the decrees obtained by the society. He admits that the plaintiff had paid kandayam for the suit land, that the khata was in his name and that it was in the possession of the plaintiff for some years.

7. It is clear from the above that defendant 1 taking advantage of the fact that he was the President of the Society, with the aid of people like D.W.1 and D.W.4 to support him managed to obtain a speculative sale deed Ex.3 in favour of his son defendant 3, having in mind the legal argument now advanced for him that the title to the property having vested in the society in 1938 alone the conveyance under Ex.11 may be challenged through a subsequent purchase from the society. I think this is a clear case where Section 43, T.P. Act would in effect if not in terms apply. That section provides that where a person fraudulently or erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists, and that nothing in that section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option. The section is based on the general rule of equity that where a transferor purports to convey a particular property and has not the title under which he professes to convey, the transferee must be satisfied out of any title which the transferor then has or afterwards acquires in the said property. It may be regarded as only an extension of the law of specific performance of contracts. When there is a contract for sale, the law compels the vendor to perform the contract specifically by conveying to the vendee the property sold and to execute a sale deed. "................It is a species of relief which the courts are on the constant watch of giving either against the vendor himself or any person claiming as heir or volunteer under him, whether the contract for the sale remains wholly unexecuted, or is defectively executed and whether the vendor had good title to the premises at the time of the sale, or whether such title accrued to him afterwards: See Gours Law of Transfer, Vol.I page 503." It is but just and reasonable that a person who conveys property to another representing that he is entitled to do so and puts him in possession of the property he or persons claiming under him other than the bona fide purchaser from him for value without notice should not be permitted to deny the right which he so represented and. under which he purported to transfer the property; and even if there was some defect in his title or his right to convey he should be compelled to make good the same out of any subsequently acquired rights.

8. In - 7 MysL.J. 249 (C), which was a case of a mortgage by a person who had erroneously represented that he was authorised to mortgage certain property and, while the mortgage was still subsisting, the mortgagor acquired an interest in the property as legatee under the will executed by the real owner, it was held that the mortgage would operate on such subsequently acquired interest of the mortgagor and could be enforced against it.

9. In - Ram Japan v. Mt. Jagesara, AIR 1938 Patna 116 (D), on the death of a person his daughter became the sole life holder of the estate. During her lifetime the maternal grandsons of the deceased fraudulently representing that they were in possession of the estate and were entitled to mortgage the same mortgaged it to a certain person. The daughter brought a suit for setting aside the sale held in execution of the mortgage decree. During the pendency of the appeal from the decision of that suit the daughter who had instituted the suit died and the estate of the deceased devolved on the maternal grandsons of the deceased. It was held that under Section 43, the maternal grandsons could not retain their share in the mortgaged property and the mortgagee could insist that though the mortgagors were not entitled to transfer the property which they did, but as a portion of the estate had devolved upon them the transfer and sale should be held good to the extent of their shares. To a similar effect is the case reported in - Behari Lal v. Indra Narayan, AIR 1927 Cal 665 (E). In that case where some of the members of a joint Hindu family mortgaged the joint family properties, each of them representing to the mortgagee that whatever interest did not belong to others belonged to him, and the mortgagee brought a suit on his mortgage against one of them, the suit being time-barred against others, it was held that whatever share the defendant got by inheritance after the institution of the suit would be liable for the mortgage debt. In that case reference has been made to - Kishan Datt Ram v. Mumtaz Alikhan, 5 Cal 198 (PC) (F), where it was held that English Law as regards this matter is found in justice and may be applied to an Indian mortgage also as it was undoubtedly based on equity.

10. It is urged for the Appellant that defendant 3 was a minor on the date of the sale under Ex.11 and that as there could be no representation on his part erroneous or otherwise, Section 43, or its principles could not be invoked against him. It must be remembered that defendant 8 is no other than the undivided son of defendant 1. Defendant 1 purported to sell the property as the natural and lawful guardian of defendant 3 and as the manager of the family along with the only other adult member then living, defendant 2. The purchase under Ex.3 in the name of defendant 3 has been rightly held to be a purchase by the family and defendant 3 is at the most merely a name lender. In - Somnath Singh v. Ambika Prasad, AIR 1950 All 121 (G) it has been held by Malik C.J. and Desai J. that while a representation made by an infant is not allowed to operate against him as an estoppel, where the estoppel, if allowed, would have the effect of depriving him of the protection against liability on his contract, still where the representation was made on behalf of the infant by his guardian, or next friend, or ether person legally competent to bind him by such representation, the infant on attaining his majority, or the person so making the representation on his behalf until that event, as the case may be, is liable to be estopped thereby; see Bower en Estoppel by Representation, 1923, page 162.

11. In this connection Mr. M.K. Srinivasa Iyangar, learned counsel for the Appellant has relied on a. case reported in - Ram Charan v. Joy Ram, 17 Cal WN 10 (H) and urged that a purchaser is bound to make enquiry into the title and if he does not take reasonable care to do so he takes a chance of his claim being defeated by the real owner and that an infant is not estopped by the acts or admissions of other persons. In that case the Court was concerned with the application of Section 41, T.P. Act and not S.43. There is in my opinion a substantial difference between the ambit of those two sections. In Section 41, it is provided that a transfer by an ostensible owner cannot be avoided on the ground that the transferor was not authorised to make it; and that rule is made subject to an express provision that the transferee should take reasonable care to ascertain that the transferor had power to make the transfer and act in good faith before he can claim its benefit. On the other hand, Section 43 enables a transferee to whom a transferor has made a fraudulent or erroneous representation to lay hold at his option of any interest which the transferor may subsequently acquire in the property provided his doing so does not adversely affect the rights of any subsequent bona fide purchaser for value without notice. The right to obtain relief under Section 43, is based, not on the diligence of the transferee but, on the principle that the transferor who has made an erroneous or fraudulent representation should not be allowed to get away with it and should be compelled to make good the bargain which it has become possible for him later on to do subject of course to any subsequent lawful rights.

12. In - 17 Cal WN 10 (H), the consideration of Section 43 never arose. On the question whether the infant is bound by estoppel their Lordships observe as follows: "In so far as the first of these contentions is concerned, viz., that there can never be an estoppel against an infant, we are of opinion that the proposition is too broadly formulated. The decision in - Mohun Bibi v. Saral Chand, 2 Cal WN 18 (I) indicates that the statement requires qualification in cases of fraud (see also the decision in - Dhurmadas v. Brohmo Dutt, 2 Cal WN 330 (J); - Brohmo Dutt v. Dharmo Das, 3 Cal WN 468 (K); - Mohori Eibi v. Dharmo Das, 30 Cal 539 (PC) (L); - Sarat Chandra v. Rajoni Mohan, 12 Cal WN 481 (M). As Lord Cowper said in - Watts v. Creswell, (1714) 2 Eq Cas Abr 515 (N) if an infant is old and cunning enough to contrive and carry on a fraud he ought to make satisfaction for it. - - (Lampriere v. Lange, (1879) 41 LT 378 (O). A similar view is supported by well-known textwriters (Bigelow on Estoppel, page 602 and Herman on Estoppel, Vol.2, Sections 1116 and 1121). The cases on the subject, however, specially in England, are difficult to reconcile, and - Bateman v. Kingston, (1880) 6 Ir 328 (P) and - Bartlett v. Wells, (1862) 1 B and S 836 (Q) may possibly support the view that an estoppel does not arise against the infant, whereas Exp. - Unity Joint Stock v. Mutual Banking Association, (1858) 3 De G and J. 63 (B); - Overton v. Banister, (1844) 3 Hare 503 (S), and - Cornwall v. Hawkins, (1872) 41 LJ Ch 435 (T), may perhaps be relied upon in support of the view that a false representation by an infant may create an estoppel against him. See also Laws of England by Lord Haisbury, Vol.13, Section 537, note (s) and Section 560, note (o). But it is not necessary to pursue the subject further or to decide for the purposes of this case whether in a case of fraudulent representation, an infant may be bound by an estoppel, because it is plain in the case before us, that there was no representation by the infant himself". (See page 13). Again at page 14 of the report they point out that even if it be conceded that the infant could be estopped by the conduct of his mother, there has been no such conduct on her part as could create an estoppel; and they hold that as the mother of the infant did not place the transferor in a position where she knew he should be able to commit a fraud there was no ground for a plea of estoppel as contemplated by S.41, T.P. Act. That case therefore has no application to the present.

13. It is pointed in Bigelow on Estoppel, 6th Edn. page 628 as follows: "It apears to be the better doctrine with these authorities that both infants (of years of discretion) and married women may be estopped to set up a claim to their property against a purchaser. Both are liable when properly sued for their torts in an action which does not seek the enforcement of a contract or demand damages for repudiating, or for fraudulently inducing the plaintiff to make a contract; and in an action for a fraudulent representation of title whereby the plaintiff has been induced to expend money for the purchase of property belonging in reality to the defendant the measure of damages must of course be the sum paid. Now, to prevent a circuity of action (which indeed is the ground of many estoppels, if not also of this very class of equitable estoppels) it is but right on analogy that the infant or female should be rebutted when proceeding to regain possession." In Ex.21 defendant 3 has stated that he was prepared to pay the balance due to the society after taking into account the amounts already credited towards it. By that time the plaintiff had paid the whole amount claimed by the society. Defendant 3 could not take advantage of those payments as if they had been made by himself and secure a conveyance of the suit property by paying a small sum of Rs.39/- and odd the alleged dues in Case No.369/36-37 which alone concerned the plaintiff and not Case No. 509/38-37.

14. It is not even contended much less proved that in entering into Ex.11 transaction defendants 1 and 2 were in any way imprudent or that it is a transaction which was not for the benefit of the minor defendant 3 or that it was not binding on him. It was mainly in order to discharge prior debts due by the deceased father of defendant 1 and to the society by defendant 1; and as noticed already it is admitted in this case even by defendant 3 in his written statement that that latter debt was binding on him. So any representation made in that connection would be similarly binding. It is clear that defendants 1 and 2 then were clearly under the belief, may be erroneous, that defendants 1 to 3 could convey the property to plaintiff and that if the latter paid off the society he would become the absolute owner and that there was no need for a sale deed from the society. It seems probable that the society of which defendant 1 was the President was then quite agreeable to this course and not to enforce or pursue its remedies under the Revenue sale in its favour. If defendant 1 therefore made such a representation to the plaintiff which the plaintiff was led to believe on account of the position held by defendant 1 vis-a-vis the society, I think a case clearly arises for the application of S.43, T.P. Act.

15. The appeal has been argued fully before me and I have been taken through the entire oral and documentary evidence and I am unable to come to a conclusion different from that reached by the Courts below. This appeal is accordingly dismissed with costs. Appeal dismissed. AIR 1955 MYSORE 13 (Vol. 42, C.N. 6) "Bharamappa v. Rudrappa" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) Bhogara Bharamappa, Plaintiff-Appellant v. Rudrappa and others, Defendants-Respondents. Second Appeal No.211 of 1950-51, D/- 18 -12 -1953, against decree of Sub-J., Shimoga, in Regular Appeal No. 8 of 1949-50. (A) HINDU LAW - ATTACHMENT - SALE - Hindu Law - Joint family property - Alienation - Attachment and sale of undivided share of co-parcener. Civil P.C. (5 of 1908), S.64 and S.65. Where the undivided share of a co-parcener in the joint property is attached and sold in execution of a decree against him for a separate or personal debt, the attachment precludes the accrual of title by survivorship and the transfer in favour of the decree-holder is effected when the share is actually sold and the extent of the share sold dates back to the attachment subsisting on the death of the coparcener. 48 Mys HCR 221 distinguished. (Paras 5 and 6) (B) Limitation Act (9 of 1908), Art.144, Art.137 and Art.138 - LIMITATION - HINDU LAW - Suit by stranger to enforce, possession against cosharers in joint family property. Hindu Law - Joint family proprety. A stranger purchaser of the shares of coparceners in the joint family steps into the shoes of the judgment-debtors whose interest is sold and becomes a co-sharer or a tenant-in-common with the other coparceners. A suit by such purchaser to enforce possession against the cosharers falls under Art.144 and not under Art.137 or Art.138. Consequently the suit when brought within 12 years from the date when the sale became absolute is in time. (Para 7) Anno: Limitation Act, Art.137 N.2; Art.138 N.9 Pt.3; Arts.142 and 144 N.36. (C) Mysore Land Revenue Code (4 of 1888), S.54 - LAND REVENUE - Forfeiture - Deputy Commissioners discretion to forfeit rights of immediate defaulter only. Under S.54 it is undoubtedly open to the Deputy Commissioner to forfeit not all the rights liable for forfeiture under that section, but only those of the immediate defaulter as they stand at the time, if he thinks fit, without affecting tenure, encumbrances and rights derived from the immediate defaulter or his predecessors-in-title. (Para 8) (D) Mysore Land Revenue Code (4 of 1888), S.54 - LAND REVENUE - Forfeiture does not extinguish rights subsisting between private parties. A mere forfeiture while it no doubt operates so far as Government is concerned, as a resumption of the holding, does not, unless it is followed by a sale, necessarily extinguish rights and equities that may be subsisting as between private parties. It is obviously open to Government, and generally followed as a policy, to restore the forfeited occupancy in the event of the arrears being paid. (Para 8) Cases Referred : Chronological Paras (A) (43) 48 Mys HCR 221 5 (B) (80) 5 Cal 148 : 6 Ind App 88 (PC) 5 (C) 39 Mys CCR 293 6 (D) (02) 25 Mad 690 (FB) 6 (E) (47) 53 Mys HCR 438 6, 7 (F) (49) 55 Mys HCR 156 7 (G) (V16) AIR 1929 Cal 250 : 56 Cal 616 7 (H) (38) 43 Mys HCR 325 8

(I) (45) 50 Mys HCR 337 8 (J) (13) 18 Mys CCR 76 8 (K) (V39) AIR 1952 Mys 61 : ILR (1952) Mys 37 8

(L) (14) 19 Mys CCR 142 9 Nittoor Sreenivasa Rao, for Appellant; M.P. Somasekhara Rao (for Nos.1, 2, 4, 9, 13, 19, 21 and 23) and B.S. Puttasiddiah, (for Nos.9 to 18, 20 and 21) for Respondents. Judgement

2. It is undisputed that the suit properties formed the joint family properties of defendants 1 to 23 and the Late Sivarudrappa and his sons Sivappa and Mahadevappa since dead. After the death of Sivarudrappa a suit to enforce a debt on a money bond executed by him was filed against his sons Sivappa and Mahadevappa and the right, title and interest of the said Sivappa and Mahadevappa in the joint family properties were attached before judgment in O.S. No.417/ 1916-17 on the file of the Munsiff, Sagar. In pursuance of the decree obtained, a fourth share in the properties which was agreed to have been possessed by the then Judgment-debtors Sivappa and Mahadevappa, was sold by the Court and one Laxmanappa became the auction-purchaser. The plaintiff is the assignee of the said right from the auction-purchaser Laxmanappa. No delivery in pursuance of sale was, or could have been, obtained through Court either by the plaintiff or his vendor, the auction-purchaser, as the subject-matter of the Court sale was merely an undivided share of the Judgment-debtors in the joint family property.

3. The points that arise for decision in this appeal are: the nature of title derived by the purchaser in the Court sale and the bar of limitation to the suit pleaded by the defendants.

4. The attachment before judgment was effected on 8-6-1917 and the decree was obtained against the assets of the deceased Sivarudrappa and also against the interests in the family properties of his sons Sivappa and Mahadevappa who were impleaded as defendants in the earlier original suit. It is not denied that the attachment before judgment and the decree obtained were during the life-time of the Judgment-debtors, Sivappa and Mahadevappa. These two Judgment-debtors having died in the year 1925, the execution proceedings for the realization of the decree amount were continued against their legal representatives in Ex. Case No. 103/28-29 and the interest already secured by attachment before judgment was sold by the Court and the said sale was confirmed on 29-11-35. The assignment of the right in favour of the plaintiff was in 1945 and the suit for partition and possession was filed on 28-11-47 by the assignee of the original purchaser.

5. The main contention of the respondents is that the original Judgment-debtors ceased to have any interest in the properties on the date of sale as they were not alive then and defendants 1 to 23 being the remaining members of the family had become the full owners of the properties by right of survivorship earlier to the sale. They rested their contention on the decision reported in - 48 Mys HCR 221 (A). An observation is made in that decision that the interest of the Judgment-debtors in the property sold should be determined as on the date of sale and not as it was on the date of attachment. In that case the Judgment-debtor appeared to have had a third share in the family property at the time of attachment which was sold in execution and in a subsequent suit by the purchaser for partition and possession a contention regarding the quantum of share sold in execution was raised and it was decided that the sale is effective to the extent of only 1/12, as, by the time of sale, some more coparceners were born in the family of the Judgment-debtor. The Judges who decided the case referred to the decision of the Judicial Committee in - Suraj Bunsi Koer v. Sheopersad Singh, 5 Cal 148 (PC) (B) but without any comment or explanation about the principle decided therein. However, the decision of this Court does not need further consideration as the proposition laid down therein is not relevant for the consideration of the facts in this case as the Judgment-debtors were not alive and the surviving members could only take the estate by survivorship subject to the equities that were available at the time of succession. A coparcener of a joint Hindu family governed by Mitakshara School of Hindu Law has a right to sell or mortgage his interest in the joint family property and it is well established that the undivided interest of a coparcener can be seized by attachment and sold in execution of a decree against him for a separate or personal debt. In proceedings for sale, the attachment of the property whether made before or after the decree, is effective provided in the former case, a decree is made for the plaintiff during the lifetime of the debtor, as, under Order 38 Rule 11 Civil P.C., the property attached before judgment will become the property attached after decree in execution; if the creditor effects no attachment before the death of the debtor, he is altogether without remedy against the debtors interest in the coparcenary property and the entire property passes by survivorship and the surviving coparceners will not be liable for the personal debt of the deceased co-parceners. However, the subsistence of an attachment at the death of a co-parcener will preclude the right of survivorship. The attachment thus creates a specific lien in the property and renders the right of survivorship subject to the rights of the creditor under attachment. Their Lordships of the Judicial Committee have laid down in - 5 Cal 145 (PC) (B), which has been followed by this Court, as also by other Indian High Courts that the property attached before judgment during the life time of the debtor can be sold after his death in satisfaction of the decree obtained against him. Hence the attachment does preclude the accrual of title by survivorship and the sale should be deemed to have been made to the extent of the subsisting attachment.

6. This leads us to the consideration of the defendants contention that the Judgment-debtors possessed no interest in the property. Miller C.J. in - 39 Mys C.C.R.293 (C), posed the question whether the alienees share is to be held as it stood on the date of alienation or whether the share attached is subject to increase or diminution by subsequent events in the family, and answered the same by stating that the alienors interest is definite and vested as it was on the date of transfer. The decisions of Bhashyam Ayyangar J. in - Aiyyagari Venkataramyya v. Ramayya, 25 Mad 690 (FB) (D) and that of Miller C.J., in - 39 Mys OCR 293 (C), have been approved and relied upon in - Veerappa v. Anantharaman, 53 Mys HCR 438 (E). To apply the principles laid down in these decisions it is necessary to fix the date when the interest in the property became vested. The transfer is effected obviously when the share was actually sold and the extent of share sold dates back to the attachment subsisting on the date of the death of the Judgment-debtor It is not disputed by the respondents that the right, title and interest of the Judgment-debtors was attached and a decree was passed during their life-time. In the course of the execution proceedings the parties thereto were required to file memos specifying the share attached. The decree-holder and the legal representative of the judgment-debtors filed memos on 25-10-29 and 1-11-29 respectively. The Court then passed an order to the following effect: "Both parties admit that the deceased Judgment-debtors Sivappa and Mahadevappa were entitled to 1/4th share in the properties attached before judgment. The present Judgment-debtors have no objection to proceed against that 1/4th share. I therefore direct that the decree-holder may proceed against the 1/4th share of his original Judgment-debtors in the attached properties." (Vide Ex.K). The sale certificate Ex.E also contains that the 1/4th share of the original judgment-debtors was auctioned as lots Nos.1 to 5 and it was confirmed to the purchaser. In this view, there is little or no doubt that a fourth share in the properties has passed to the purchaser in the Court sale.

7. The next question raised for consideration is about the limitation. It is established law that a stranger purchaser of the shares of coparceners in the joint family steps into the shoes of the Judgment-debtors whose interest is sold and becomes a co-sharer or a tenant-in-common with the other coparceners Plaintiff has derived his interest from Lakshmanappa who has purchased in court auction the interest of the Judgment-debtors, the coparceners in the joint family. The rule of limitation applicable for the plaintiffs suit is that which would have been applied had there been a suit amongst the coparceners themselves. The mere fact that the other coparceners who had a share in the property continued to be in possession thereof does not affect the position of the purchaser until and unless the person in possession is shown to have begun to claim adversely by some overt act. In the present case, the starting point of limitation should be taken to be the date when the sale is made absolute as the purchaser would not, have been in a position to sue for possession before that date. The suit is obviously filed within 12 years from the date on which the Court sale was made absolute. The question that is raised for decision does not relate to adverse possession but to the specific provision of the limitation act that is applicable to the circumstances of the case. The trial Court by applying Article 138 held the suit claim to be in time whereas the appellate Court applied Article 137 and dismissed the suit. I am unable to follow the reasoning of either Court and the approach for the determination of this point appears to be incorrect. Article 137 applies to cases where the Judgment-debtor being, out of possession on the date of the sale obtains possession at a later date. In such a case the starting point of limitation begins from the date when possession is regained by the Judgment-debtor. In this case as the Judgment-debtors had died long earlier they could not be said to get into possession subsequent to the sale and therefore Art.137 has no application. Article 138 implies possession by Judgment-detbors on the date of sale which is not the case here. As already observed amongst co-sharers or tenants-in-common, the possession of one will be presumed to be for the benefit of all; hence, in order to make such possession adverse there must be open assertion or hostile title on the part of the persons setting up adverse possession and an overt act of dispossession amounting to ouster of the co-owner. This point has been considered. and settled in - 53 Mys HCR 438 (E), and - Siddiah v. Rangadas, 55 Mys HCR 156 (F). In the later case it has been laid down as follows: "A co-owner or a co-tenant cannot be considered to acquire adverse possession of the other co-owners shares. A purchaser of a co-owners interest, occupies the same position as his transferor and by the mere fact of obtaining a transfer in his favour and appropriating to his own use some of the joint land, he does not acquire title by adverse possession as against his co-owners. His possession is limited, if at all to the portion acquired by him. There must be some assertion of hostile title on his behalf accompanied by distinct acts of ouster of his co-sharers for a period of over 12 years prior to the suit before he can acquire title by adverse possession". The article that is applicable to the circumstances of the present case was also considered in the former case. In - 53 Mys HCR 438 (E), it is held in circumstances similar to the present case that the suit was governed by Article 144 and not by Article 138. Similar is the law laid down by the Calcutta High Court in - Viswanath Charkrawarti v. Rabija Khatun, AIR 1929 Cal 250 (G) where it was held that when a purchaser at Court sale sues the co-tenants of the Judgment-debtor Article 138 will not apply for that Article applies only against Judgment-debtor and persons claiming through him and that the suit would be governed only by Article 144. The present suit is obviously to enforce possession against the co-sharers in the joint family property by a (Stranger in whom a share by sale is vested and hence it falls clearly under the residuary Art.144; consequently the suit brought within 12 years from the date when the sale became absolute is in time.

8. It is next contended by the respondents, though not seriously, that the suit for partition to the extent of properties lots 1 to 3, of the plaint schedule, is not maintainable as those properties were forfeited to Government for non-payment of land revenue and that the fact of forfeiture could be gathered, inferentially from the note in the remarks column of Ex.L, wherein it is stated that the said lands were included in Government waste. This contention is unsustainable. Under (Section 54, Land Revenue Code it is undoubtedly open to the Deputy Commissioner to forfeit not all the rights liable for forfeiture under that section, but only those of the immediate defaulter as they stand at the time, if he thinks fit, without affecting tenures, encumbrances and rights derived from the immediate defaulter or his predecessors-in-title. (Vide - 43 Mys HCR 325 (H).) It is also observed in - 50 Mys HCR 337 at page 344 (I), that "We must therefore examine the order of forfeiture to decide what exactly was forfeited in this case". In the absence of specific evidence, it is very difficult to come to a conclusion whether there was any forfeiture and if so, to what extent. Even otherwise, a mere forfeiture, as held in - 18 Mys CCR 76 (J), while it no doubt operates so far as Government is concerned, as a resumption of the holding, does not, unless it is followed by a sale, necessarily extinguish rights and equities that may be subsisting as between private parties. It is obviously open to Government, and generally followed as a policy, to restore the forfeited occupancy in the event of the arrears being paid. The respondent rested his contention on a case of this Court reported in - Krishna Murthy v. Subba Rao. AIR 1952 Mys 61 (K) wherein there is an observation that it is not necessary that the property forfeited should be actually sold by the Deputy Commissioner in order that the rights of the defaulting holder may be affected and that the moment there is an order of forfeiture on failure of payment of revenue, the defaulting holder loses all rights in the property..........and that all the members of the family must be deemed to have lost their rights as jodidars and they cannot file a suit for partition and possession of the property. The decision is distinguishable and is not applicable to the facts of the present case as there is no sufficient evidence of forfeiture. Further, the evidence discloses that the properties in question continue to be in the possession and enjoyment of defendant 13, in spite of forfeiture which cannot be reconciled without proper explanation. If the defendants have no interest in the properties, a decree in favour of the plaintiff will not affect their rights.

9. The learned Subordinate Judge has observed that the attachment of the properties was not made during the life-time of the judgment-debtors. This is a manifest mistake of facts. It is difficult to see how he has reached that conclusion as both the attachment before judgment and the fact of the decree having been made during the life-time of the judgment-debtors, is proved beyond doubt. Moreover the decision in - 5 Cal 148 (B), which is followed by this Court in - 19 Mys CCR 142 (L) has been completely ignored. The learned Judge holds that the auction purchaser has derived no interest, as the rights of the judgment-debtors had by the date of sale been lost by right of survivorship. To say the least, he has misread the facts and misconceived the law applicable and this has landed him into an error of judgment. On the point of limitation also, he has misdirected himself despite a definite decision in - 53 Mys HCR 438 (2), that the article applicable is 144 of the limitation act.

10. Viewed from any point, the judgment and decree of the learned Subordinate Judge cannot be upheld. The learned Munsif has given a decree for declaration that the plaintiff is entitled to 1/4th share and for partition and possession of the same. He has rightly disallowed the past mesne profits claimed but I do not see any reason why mesne profits should not be allowed from the date of suit. The judgment and decree of the learned Subordinate Judge are hereby set aside and those of the learned Munsiff restored with the modification that the plaintiff will have further relief of getting future mesne profits to be ascertained by an application under Order 20 R.12, Civil P.C.

11. In the result, this appeal is allowed as indicated above with costs. Appeal allowed. (S) AIR 1955 MYSORE 17 (Vol. 42, C.N. 7) "In re Shivanna" MYSORE HIGH COURT Coram : 3 MALLAPPA, J. ON DIFFERENCE OF OPINION BETWEEN MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Full Bench ) In re Shivanna and another, Appellants. Criminal Appeal No.52 of 1952-53, D/- 17 -9 -1954, against the judgment of Principal S. J. Bangalore in Tumkur Sessions Case No.2 of 1952-53. (A) Criminal P.C. (5 of 1898), S.418 and S.423(2) - APPEAL - APPELLATE COURT - Verdict of jury and opinion of assessors - Power of appellate Court to interfere. The charge against the two accused was that on a particular night they travelled with one N in the mail train, murderd her and also robbed her of a silver belt, a pair of ear ornaments and a karimanisara. The offence under Section 392 I.P.C., was tried with the aid of jury and that under S.302 I.P.C. was tried with the aid of the same persons acting as assessors. The evidence adduced at the trial was purely circumstantial. The articles of jewellery worn by the deceased N were traced to the possession of the two accused within six days of her death and were seized by the police from the custody of other persons. The accused failed to explain the circumstances under which they came to be in possession of the said articles. In his charge to the jury the Judge drew the pointed attention of the jurors to the aspect relating to the unidentifiable nature of the articles. The charge to the jury was clear and cogent without any misdirection. The jurors after deliberation came to the conclusion that the articles were capable of identification and on that basis returned a verdict of guilty against the accused. The accused were convicted and sentenced under Ss.302 and 392, Penal Code. On appeal to the High Court: Held (i) Per Medapa C.J. and Vasudevamurthy, J.:- that the question whether the articles traced to the possession of the accused were capable of identification or not was clearly a question of fact. It would not be proper for the appellate Court to differ from the verdict of the jury on questions of fact unless that verdict could be said to be perverse. Hence, the accused must be held to have been correctly convicted for an offence under S.392, Penal Code, and the conviction and sentence passed on them for that offence should be confirmed. (Para 2)

(ii) Per Mallappa, J.: (on difference between Medapa, C.J. and Vasudevamurthy J.) that the conviction of the accused under S.302, Penal Code, could not be sustained. The Judges are not bound by the opinion of assessors as they are bound by the verdict of jurors. Unless it was shown that the jewels were worn by the deceased before she left her village and that they could have been removed from her only after her being murdered, no presumption would arise that the accused committed the murder merely on the ground that her jewels were found with them. The evidence on record did not prove beyond reasonable doubt that the accused were in possession of the jewels worn by the deceased prior to her death. (Paras 26, 36) Anno: Cr.P.C., S.418 N.1, S.423 N.40. (B) Evidence Act (1 of 1872), S.114, Illus.(a) - EVIDENCE - MURDER - ROBBERY - POSSESSION - Murder and robbery - Recent unexplained possession of stolen articles of deceased - Presumption that persons found in such possession are guilty of murder when can be raised. Per Mallappa J. No doubt possession of stolen articles soon after theft raises a presumption under S.114, illustration (a), that the person in possession of the articles is the thief. But to draw a further presumption that persons found in the possession of stolen articles must have committed the murder of the owner of the stolen articles other circumstances are necessary. When the unexplained possession of stolen property is the only circumstance appearing in the evidence against an accused charged with murder and robbery, the accused cannot be convicted of murder unless the court is satisfied that possession of the property could not have been transferred from the deceased to the accused except by the former being murdered. AIR 1926 Mad 638 and 54 Mys. HCR 493 Ref. to. (Para 34) In cases in which it has not only been shown that stolen articles have been traced to the possession of the accused but also that these articles were in possession of the deceased at the time of the murder and that they could not have been removed without the deceased being murdered the presumption of murder also would follow. 17 Mys LJ 158 - AIR 1941 Bom 139 and AIR 1949 Nag 277, Ref. to. (Para 34) Anno: Evid. Act, S.114 N.7. (C) Penal Code (45 of 1860), S.34 and S.302 - COMMON INTENTION - MURDER - Common intention - Murder by two accused - Conviction. Two accused charged with murder and robbery - Prosecution alleging that both accused were present at the time of the murder - No evidence to show that both accused took part in beating deceased - Medical evidence showing that act of murder was committed by only one person - Prosecution not proving which of them caused the murder - Held that neither of the accused could be convicted of murder unless it was shown that the murder was committed in furtherance of common intention. (Para 35) Anno: Penal Code, S.34 N.1, S.302 N.19. Per Medapa, C.J.:- Photographs and particularly photographs of a persons taken several hours after death are very unsafe guides for guaging the build and strength of a person. The physical and chemical changes that follow physical violence and death make this obvious. (Para 6) Anno: Cr.P.C., S.367 N.6. Evidence Act (1 of 1872), S.3 and S.101, S.102, S.103. Per Medapa, C.J.:- The accused have to be presumed to be innocent until they are proved to be guilty and the onus is always on the prosecution to establish by conclusive evidence the guilt of the accused. The accused are not required to establish their innocence when they are charged with an offence under the Penal Code. It is well settled that circumstantial evidence must be so conclusive as to be incompatible with the innocence of the accused to warrant a conviction. (Para 10) Anno: Cr.P.C. S.367 N.6, Evid. Act, S.3 N.6. Ss.101 to 103 N.3. Cases Referred : Chronological Paras (A) (V20) AIR 1933 Mad 233 : 34 Cri LJ 481 9, 22 (B) (44) 49 Mys HCR 444 9, 16 (C) (39) 17 Mys LJ 158 9, 34 (D) (V13) AIR 1926 Mad 638 : 50 Mad 274 : 27 Cri LJ 394 9, 31, 34 (E) (V28) AIR 1941 Bom 139 : 42 Cri LJ 697 9, 22, 34, 36 (F) (V41) AIR 1954 Mys 53 : ILR (1953) Mys 516 : 1954 Cri LJ 481 9, 35 (G) (V38) AIR 1951 Mys 1 : ILR (1951) Mys 169 : 51 Cri LJ 1603 9, 16 (H) (V41) AIR 1954 SC 173 : 1954-1 Mad LJ 157 : 1954 Cri LJ 451 17

(I) (V33) AIR 1946 PC 151 : 47 Cri LJ 905 (PC) 17, 26 (J) (V36) AIR 1949 Nag 277 : 50 Cri LJ 713 22, 34 (K) (V41) AIR 1954 SC 1 : 1954 Cri LJ 225 (SC) 22

(L) (50) 55 Mys HCR 48 29, 30 (M) (49) 54 Mys HCR 493 : 29 Mys LJ 176 30, 34

V. Krishnamurthy, for Appellants; Asst. Advocate General, for the Government. Judgement MEDAPA, C. J.:- The facts of the case leading up to this appeal have been set out in the judgment of the learned Sessions Judge and also of my learned brother and need no repetition. The evidence discloses that articles of jwellery said to have been worn by the deceased Nanjamma have been traced to the possession of the accused persons within 6 days of the date of her death and seized under a mahazar 15 days thereafter. The appellants have not explained the circumstances under which they came to be in possession of the said articles. Section 114, Evidence Act, and in particular illustration (a) to that section warrants under the circumstances a presumption of guilt against the appellants. The learned counsel for the appellants contended that the jwellery traced to the possession of the appellants are unidentifiable articles and as such there was no material to warrant a presumption under S.114(a), Evidence Act.

2. A perusal of the charge to the jury in the judgment of the learned Sessions Judge indicates that the Judge drew the pointed attention of the Jurors to the aspect relaing to the unidentifiable nature of the articles. The question whether the articles are identifiable or unidentifiable is clearly a question of fact. The Jurors have after deliberation come to the conclusion that the articles were capable of identification and have on that basis returned a verdict of guilty against the appellants. It will not be proper for the appellate Court to differ from the verdict of the Jury regarding a question of fact, unless that verdict can be said to be perverse. It must therefore be held that the appellants have been correctly convicted for an offence under S.392, Penal Code. The conviction and sentence passed on them for an offence under S.392, I.P.C., are confirmed.

3. The more important point for consideration in this case however is whether the appellants could also be deemed to be guilty of the offence of murder. The deceased Nanjamma has met with a violent and unnatural death. The injuries on her person and the opinion of the doctor regarding the cause of her death conclusively establish that she has been murdered.

4. The question is whether both the appellants or only one of them and, if so, which of them is and can be held to be guilty of murder. There is no direct evidence in the case to connect the appellants or either of them with the murder of the deceased. The prosecution rely first on the possession of the articles worn by the deceased with both the appellants a few days after her death and next on the failure of either of the appellants to give any satisfactory explanation regarding their possession of the said articles. The prosecution press into service the provisions of S.114, Evidence Act, to support their contention that both the appellants must be deemed to be guilty of the offence of murder. The learned Advocate-General also contended that, apart from the presumption under S.114, Evidence Act, there were other circumstances in the case which went to support his contention that the appellants are guilty of murder. Those other circumstances are: (1) That the appellants have been held to be guilty of an offence under S.392, I.P.C.; (2) that the injuries on the person of the deceased could not have been caused by only one person; (3) that the appellants knew the deceased and were in her company when the deceased left her house; (4) that the deceased must have been murdered in the train; and (5) that there are circumstances to indicate that the appellants travelled in the same train.

5. The conviction of the appellants for an offence under S.392, I.P.C., by the learned Sessions Judge and the confirmation of that conviction by this Court do not prove that the appellants were also guilty of the offence of murder. It has already been pointed out that the confirmation by this court of the conviction of the appellants for an offence under S.392 is largely, if not entirely, the result of the well-established rule that an appellate court should not interfere with the findings of facts by the Jury unless the said findings can be said to be perverse. The conviction of the appellants by the trial court was based not on positive or direct evidence adduced in the case but on a presumption under S.114, Evidence Act.

6. The contention that the several injuries found on the person of the deceased could not have been inflicted by only one person does not impress me. The suggestion made on behalf of the prosecution that the deceased was a strong and well-built woman is the result of an inference drawn by a look into her photograph, exhibit P-1, which admittedly was taken several hours after the death of the deceased. Photographs and particularly prhotographs of a person taken several hours after death are very unsafe guides for guaging the build and strength of a person. The physical and chemical changes that follow physical violence and death make this obvious. The deceased was a woman of about 40 years. The appellants are 24 and 25 years of age respectively. It cannot under the circumstances be said, in any case conclusively, that only one of them could not have caused all the injuries seen on the person of the deceased.

7. The submission that the appellants knew the deceased and were in her company when the deceased left her house and the contention that the deceased must have been murdered in the train can be taken as established by the evidence on record; but these two circumstances do not warrant the conclusion that the appellants murdered or had anything to do with the murder of the deceased. The submission that the appellants travelled in the same train in which the deceased was murdered is a very relevant circumstance to be taken into account in deciding the question whether the appellants robbed the deceased but has at best a very remote bearing on the question whether the appellants murdered or had anything to do with the murder of the deceased. There is besides no direct evidence regarding the allegation that the appellants travelled with the deceased in the same train. The learned Sessions Judge and the Jury have relied on the evidence of the prosecution witnesses who state that they saw the deceased and the appellants on the railway platform at Tiptur before the train started and they did not see them anywhere on the platform after the train steamed off. This evidence cannot be said to conclusively establish that the appellants travelled in the same train with the deceased, though it must be said that such an inference is permissible. The submission that the appellants may have left the platform without getting into the train and without being noticed by the prosecution witnesses is also equally permissible. It was also strenuously contended that the evidence of the prosecution witnesses on this point is not free from suspicion but even if the evidence on this point is accepted, the case for the prosecution regarding the charge of murder is not substantially furthered much less established.

8. No evidence has been let in to show that there was common intention on the part of the appellants to commit an offence. The charge against them did not include S.34, I.P.C. There is no direct evidence or conclusive circumstances to show that the two appellants had arranged or agreed to rob the deceased, much less to kill her for that purpose. Even if it is assumed that the two persons had agreed to rob and did rob the deceased, there is no warrant for the proposition that both of them had agreed to cause hurt or kill the deceased. It may be that the injuries on the person of the deceased were caused after the robbery and for the perpetration of a crime other than robbery regarding which there was no privity between the appellants. The antecedents of the deceased and the alleged intimacy between the deceased and one, at any rate, of the appellants discernible in the evidence make such an inference plausible and even probable. The murder of the deceased may not have been for the purpose of committing or concealing robbery and therefore totally unconnected with robbery. The jewels may have been removed from the person of the deceased after murder and even if it is assumed that removal of the jewels was prior to murder it does not necessarily follow that both the appellants are guilty of murder. It may well be that one protested against the infliction of injuries on the deceased and even implored the other not to hurt or kill the deceased. The argument based on the failure of the appellants to satisfactorily explain away their recent possession of stolen articles to buttress the submission that the appellants are guilty of murder is, as already stated, not strictly warranted by the words appearing in S. 114, Evidence Act. The said argument is based on a presumption which in its turn is itself based on another presumption. It appears to me to be unsafe to hold the appellants guilty on the strength of what may be termed as a Double Presumption.

9. The learned Advocate-General referred us to cases reported in - Narayana v. Emperor, AIR 1933 Mad 233 (A) and - Papiah v. Govt. of Mysore, 49 Mys H.C.R. 444 (B), and submitted that the accused-appellants must be held to be guilty of the offence of murder. The observations of Reilly J. in AIR 1933 Mad 233 (A): "It is not the law that the Judge or Jury must be certain that no other explanation of the facts is possible before they find the accused person guilty. But if their inference is that he is guilty it must be a reasonable inference, reached with due regard to all the circumstances and with such care and assurance as a reasonable man would think necessary before he drew an important inference in his own most serious affairs." were reiterated by the same Judge in a case reported in In re Earrappa, 17 Mys L.J. 158 (C), "The inference to be drawn against an accused person from the unexplained possession of property concerned in the offence with which he is charged may, sometimes, be very seriously affected by the interval between the date of the offence and the date when the property is found to be in his possession. But in each case the proper inference to be drawn depends on the circumstances of the case. * * * * Where, however, there is no such explanation forthcoming the fact that the accused is proved to have been in possession of such property is of far greater importance than the point of time when his possession of it is disclosed." These observations are opposed to the observations of their Lordships Wallace and Spencer JJ. reported in In re, Sogaimuthu Padayachi, AIR 1926 Mad 638 (D) respectively. Wallace J. in his judgment in 50 Mad 274 (D) says: "In such a case I am confident that neither law nor justice justifies the hanging of a man simply because he does not plead guilty to being a thief or a receiver of stolen property. The court has to be satisfied, not merely that the thief could not have come into possession of the property unless murder has been committed, but also that he could not have come into possession of the property unless he himself has taken part in the murder or was privy to it." Spencer, J. observed thus in AIR 1926 Mad 638 (D) at p.640: "When the charge is that the accused committed murder or theft in a building or both, is it legitimate to presume that the accused are guilty of the more serious offence of murder because they are unable or unwilling to explain their possession of stolen property? I think the answer must be that if there is other evidence to connect the accused with the death of the murdered man, a jury, or in this country a Judge, may find upon circumstantial evidence that he is the murderer. But when the unexplained possession of stolen property is the only circumstance appearing in the evidence against an accused charged with murder and theft, the accused cannot be convicted of murder unless the court is satisfied that possession of the property could not have been transferred from the deceased to the accused except by the former being murdered." It will be seen that these observations are more or less in line with the observations of Beaumont, C.J. in a case reported in - asangouda Yamanappa (No.1) v. Emperor AIR 1941 Bom 139 (E) regarding the rule relating to circumstantial evidence: "In my opinion, the rule is that circumstantial evidence must be consistent, and consistent only with the guilt of the accused, and that if the evidence is consistent with any other rational explanation, then there is an element of doubt of which the accused must be given the benefit. No doubt one of the circumstances, which has to be taken into account, is the fact that the accused has offered no explanation, or has offered a particular explanation; but it must be borne in mind that in this country the accused cannot go into the witness-box, and is not bound to give any explanation at all. An accused person, who knows the law, is quite entitled to say: "he evidence is just as consistent with the guilt of somebody else as with my guilt and that being so, there is a doubt, and you cannot convict me, and I am not going to open my mouth. The fact that he does not open his mouth cannot be used against him. One must remember also that very frequently the accused is an illiterate person, and makes a statement under S. 342, Criminal P.C., which is obviously untrue. Very frequently he is not prepared to admit anything, whereas, if he was wise, he would admit facts which are definitely proved against him, and offer an explanation about them. But very often he will not admit anything. The fact that an accused is not willing to admit that he took part in a robbery which is proved against him ought not to prejudice the question whether he committed murder at the same time. (I particulary dissent from the view of Reilly J. that it is not the duty of the court to suggest possible explanations)". The two decisions reported in In re, Thipperudrappa, AIR 1954 Mys 53 (P) and In re Basappa, AIR 1951 Mys 1 (G), follow and reiterate the above principles.

10. The accused have to be presumed to be innocent until they are proved to be guilty and the onus is always on the prosecution to establish by conclusive evidence the guilt of the accused. The accused are not required to establish their innocence when they are charged with an offence under the Penal Code. It is well settled that circumstantial evidence must be so conclusive as to be incompatible with the innocence of the accused to warrant a conviction.

11. The conviction of the appellants for the offence of murder is based upon the presumption to be drawn according to the provisions of S.114, Evidence Act. It has already been pointed out that S.114 does not in terms warrant a presumption that the persons convicted of robbery on account of recent possession of stolen articles are guilty of murder. The accused are entitled to the benefit of doubt and their conviction for the offence of murder cannot, in my opinion, be sustained, and has to be set aside.

12. My learned brother has taken a different view on this question. The question is therefore referred to the opinion of a third judge according to the provisions of S.429, Cr.P.C. VASUDEVAMURTHY, J.:-

13. The appellants who were accused 1 and 2 in the Court of Sessions, Banglore Division, have been convicted for offences under Ss.302 and 392, I.P.C., and sentenced to transportation for life and to undergo R.I. for seven years respectively the sentences being directed to run concurrently.

14. The charge against them was that in the night of 8-6-1951 or in the early hours of 9-6-51 they murdered one Nanjamma and also robbed her of her jewels. These offences are said to have been committed during the course of the railway journey from Tiptur Railway Station towards Arsikere or Shimoga. The body of Nanjamma with a large number of injuries including several broken ribs was found in the lavatory of a First Class compartment when the train reached Shimoga station on the morning of 9-6-51. The 1st accused is said to have been on intimate terms with Nanjamma who had abandoned her husband P.W.22 long ago and who was a petty shopkeeper in Ammasandra where A-1 was a Railway Porter in the railway station. A-2 was a resident of a village very close to Ammasandra. It is alleged that A-1 owed some moneys to Nanjamma and A-2 to the brother of one Shivanna P.W.13 and that there was demand for the return of the amounts and this is suggested to be one of the reasons why A-2 who was hard up joined A-1 to do away with Nanjamma, the other reason of course being that they wanted to rob her jewels.

15. The case under S.392 was tried with the aid of a Jury of 5 persons and they also aided the trial for the offence under S.302 as assessors. The jury, after hearing the summing up of the case by the learned Sessions Judge, which we must observe has been clear, careful, exhaustive and fair to the accused persons, returned a unanimous verdict of guilty against both the accused of the offence under S.392, and the assessors were unanimously of the opinion that both the accused were guilty of the offence under S.302, I.P.C.

16. Sri V. Krishnamurthy, the learned Counsel who appears for the appellants, has urged that there has been some defect in the address to the jury by the learned Sessions Judge inasmuch as he has not made it quite clear to them that in a case like the present where the evidence is entirely circumstantial, the jury must be satisfied that such evidence is conclusive of the guilt of the accused. But it has to be observed that as a matter of fact the learned Sessions Judge has clearly told the jury that there is no rule of law to the effect that a conviction should be based only on direct evidence, that the law allows a conviction even on circumstantial evidence provided that one is satisfied that the circumstantial evidence adduced in the case is reliable and true. He has also referred them to the decisions laid down in 49 Mys H.C.R. 444 (B) where it has been held that where there is no direct evidence as to the crime and the whole evidence is circumstantial, to deduce an inference of guilt from such evidence the incriminating facts must be such as to be incompatiable with the innocence of the accused; and to AIR 1951 Mys 1 (G) where it is laid down that a conviction cannot be based on the circumstantial evidence if an inference consistent with the innocence of the accused is possible even if such evidence is believed. That point could not therefore have been put more clearly to the jury. Sri Krishanamurthy has next urged that the evidence of P.W.29, a police constable, who deposed that he saw the accused in the Arsikere railway station in the early hours of 9-6-51 waiting for the train to take them back to Ammasandra, is highly suspicious and that the learned Sessions Judge has not sufficiently cautioned the jury from accepting it. The point that was apparently attempted to be made before the Sessions Judge, as against that witness was that it was clear that he was sent for by the Investigating Officers on 19-6-1951 at a late stage of investigation only with a view to identify the accused 1 and 2 and that there was some discrepancy as to whether he was on duty at the railway station platform at Tumkur (vide Ex.D-6) or on lock-up guard duty. A further reason is mentioned why P.W.29s evidence should be viewed with grave suspicion. P.W.29 has stated in cross-examination that when he came to Tumkur he was deputed as a guard to the lock-up at the Town Police Station and that he saw these accused in the lock-up and that he told the Sub-Inspector Siddappa P.W.48, about his having seen them at Arsikere station. It appears from the special diary of investigation maintained by P.W.48 and his evidence in Court that this witness P.W.29 was examined on 20-6-51. It is clear from the arrest report that A-1 had been arrested by that time while A-2 was arrested only on 21-6-51 a day later, and it was naturally argued with some apparent force that P.W.29 should not be believed and that the investigation itself was not straightforward. But this point was not however put in that way to the Sub-Inspector, P.W.48, while he was in the box and it is quite clear from the very entry in the police diary on which the appellant relies that the Sub-Inspector has noted that P.W.29 has identified only A-1 on the 20th and that A-2 had not been apprehended by that time though he was said to be moving about in the locality and the Sub-Inspector directed his men to trace him. There is therefore nothing in this point and moreover P.W.29 does not even say that he saw both the accused together and identified them on the same occasion. The learned Sessions Judge has in paragraph 22 of his judgment clearly stated the arguments of the learned Counsel for the defence about the transfer of P.W.29 to Tumkur and that his evidence is highly suspicious and he has left it to the jury to judge whether the evidence of this witness was true or not. The case for the prosecution may not seriously suffer even if P.W.29s evidence is not accepted though by saying so it need be inferred that his evidence cannot be believed. There is also no reason why it should not be believed. He has referred to a conversation with A-1 that night and there is no reason why he should invent a story of that kind; nor is it likely that the prosecution should have concocted an incident which is not really a very important link in their case. The prosecution has really to show that the deceased and the accused were together on their journey towards Shimoga where the body of the deceased was found and they have tried to show that on the return journey A-1 and A-2 were alone. Though it might be relevant or even a strong probabilising circumstance it cannot be said to be a vital one on which the truth of the prosecution case would hinge.

17. It has been held recently by the Supereme Court in AIR 1954 SC 173 (H) that if the facts and circumstances of the case are such that a reasonable body of men could arrive at the one conclusion or the other it is not competent to the Sessions Judge or the High Court to substitute their verdict in place of the verdict which has been given by the jury, that the jury are the sole judges of the facts and it is the right of the accused to have the benefit of the verdict of the jury; that even if the Sessions Judge or the High Court would if left to themselves have arrived at a different verdict it is not competent to the Sessions Judge to make a reference, nor the High Court to accept the same and substitute their own verdict for the verdict of the jury provided the verdict was such as could be arrived at by a reasonable body of men on the facts and circumstances of the case and that the High Court will only interfere with the verdict of the jury if it finds the verdict "perverse in the sense of being unreasonable" "manifestly wrong" or "against the weight of evidence". In support of that judgment they have referred to - Ramanugrah Singh v. Emperor, AIR 1946 P.C.151(I) where it has been observed that the High Court should accept the jurys verdict and not substitute their own verdict for the verdict of the jury unless the verdict was such that no reasonable body of men could have reached at the conclusion arrived at by the jury.

18. As regards the charge under S.302, I.P.C., also it appears to me that the case has been clearly made out against the accused. That the deceased Nanjamma was wearing the jewels which have been recovered as a result of information supplied by the accused and hence traced to them has been spoken to by P.Ws.20, 21, 25, 28 and 27. Nanjamma was living as a tenant in the house of P.W.22 who is the husband of P.W.20 and son of P.W.21 and they as well as P.W.19 her daughter have also identified the jewels as hers. P.Ws.25 and 27 who are neighbours and P.W.26 have also corroborated their evidence that she was wearing those jewels when she left Ammasandra. There is also the evidence of P.W.42, the jeweller who sold the jewels, supported by the bills issued from his shop and the evidence of P.W.23 his clerk and of P.W.41 who had accompanied the deceased when she bought some of those jewels, that the jewels were purchased by the deceased. The jury were asked to consider whether the evidence oral and documentary let in by the prosecution established that those jewels belonged to the deceased Nanjamma and that she was wearing them; and they have by their verdict accepted the same as proved and that they were in her possession at the time when she left her house on the night of 8-6-51.

19. The jewels have also been traced to the possession of Accused 1 and 2 on the information given by them. P.Ws.30 and 31 have sworn that A-1 who was known to them brought a pair of voles M.O.15 and borrowed Rs.25/- from P.W.31. P.W.44 Krishnaiahsetty produced M.O.16 some gold kasus and M.O.20 a silver waist belt which he had purchased from A-2 under the bills Exs.P-31(a) and P-31(a)(1) and stated that he purchased a silver waist thread M.O.41 as per Ex.P-32(a) which contains his name. P.W.39 Sunnilal has deposed that A-2 sold him some gundus and gajjes, one gold thali and some gold pieces or powder for Rs.34/- as per Ex.P-29 in his account-book to whiciri A-2 has affixed his signature. The witness kept some of the gundus as they were good and the rest he melted into a gold ingot. He has produced M.O.18 the gundus which he had preserved and the gold ingot M.O.22 when the police came and asked him to produce the gold articles which A-2 had sold to the witness. The evidence of P.W.39 has been corroborated by the evidence of P.W.47 who valued the jewels. P.W.8 has produced a gold coin which A-2 is said to have sold him for Rs.9/-. The accused denied their signatures and also denied altogether that they pledged or sold these jewels. The jury to whom this part of the case was put have believed the prosecution story; and on going through the evidence of these witnesses I see no reason at all why this large body of apprently disinterested evidence should be rejected and the bare denial of the accused accepted.

20. That A-1 and A-2 were in the house of the deceased on the night of 8-6-51 when she left with P.W.25 to the station has been spoken to by P.W.25. He asked the deceased whether she was going to a distant place like Bhadravathi alone when she said that A-1 and A-2 were going with her. He says that when the train came from Gubbi side A-1 and A-2 and Nanjamma went into the carriage and the witness was on the platform till the train left. P.W.28 Gongoji Rao saw the three prsons at the Tiptur Railway Station. A good deal of comment has been made on this witnesss evidence; but there can be no doubt that the witness has deposed to the truth. He had known the accused and had also seen Nanjamma. They arrived in a local train from Banglore side and reached Tiptur at 9-30 P.M. on 8-6-51. He spoke to A-1 and the latter said that he was going to Birur and that Nanjamma was going to Bhadravati. A-1 invited him to a cinema and the witness who was a Railway Porter said that he was on duty. Then the accused and Nanjamma went into the town and returned and told the witness that the show in the cinema had already commenced. He saw the three persons again on the platform. Later when the mail train came from Bangalore side he saw all the three persons on the platform and they were no longer on the platform after the train left. It is urged by Mr. Krishnamurthi that the same is not conclusive that they left together from Tiptur. But it can very properly and safely be inferred that if they had remained behind they would have been noticed by P.W.28 as they were known to him. There is therefore no substance in that contention.

21. Mr. Krishnamurthi has urged that it may be that the accused may be presumed to have stolen the jewels or received them from someone else who had stolen them and that possession of those jewels does not necessarily prove that they had committed the murder. There is no force in this contention either. It has been found that they have been guilty of robbery and that finding almost by necessary implication establishes the offence under S.302, I.P.C.

22. It has also been urged that it cannot be said with certainty in this case as to which of the accused committed the murder. The deceased was a woman of about 40 years age and from the photograph Ex.P-1 appears to be well built and strong. There were as many as 23 wounds on her person and as many as 6 or 7 of her ribs on each side were found broken when her body was recovered and it is impossible that all these injuries could have been inflicted by one man; and it is to be observed that none of the accused bore any marks of injury. This would indicate that both the accused must have overpowered the woman when she was lying down or was asleep and killed her by sheer physical violence even without any arms. In this connection reference may be made to a case reported in AIR 1941 Bom 139 (E) where a deceased woman was found robbed and murdered: The three accused who produced the stolen property came from the same village as the deceased and were acquainted with her: They did not offer any explanation of the possession of the property but merely said that they did not produce it: The murder was committed with a crowbar: It was held that in view of the fact that the accused were known to the deceased and came from the same village as the deceased the only rational explanation which fitted in with the whole of the evidence was that pursuant to their common intention to rob the deceased, and to avoid detection they had the further intention of murdering her and that they carried that intention out. Beaumont, C.J. and Sen, J. on circumstantial evidence very similar to the present case upheld the conviction and sentence of death passed on three persons in that case. See also - Ramprashad Mokundram v. Crown, AIR 1949 Nag 277 (J) and AIR 1933 Mad 233 (A). Even in - Tulsiram Kanu v. The State, AIR 1954 SC 1 (K), which was relied on for the appellants, it is pointed out that the presumption permitted to be drawn under S.114, illustration (a), has to be read along with the time factor and that if ornaments or things of the deceased are found in the possession of a person soon after the murder the presumption of guilt may be permitted. But if several months expire in the interval the presumption may not be permitted having regard to the circumstances of the case. Moreover, in that case the ornaments were not proved to be the ornaments of the deceased.

23. In the light of the above discussion I think that there are no grounds to interfere with the convictions and sentences passed on the appellants-accused and this appeal is accordingly dismissed. (As the matter was referred to a third Judge on account of differing judgments this appeal came on for final hearing on 13-8-54 and the Court delivered the following:) MALLAPPA, J.:-

24. The case against the accused is that on the night of 8-6-1951 they travelled with one Nanjamma in the mail train from Tiptur to Arasikere, murdered her and robbed her of a silver belt, a pair of ear ornaments (voles) and a "Karimanisare", said to contain some gold beads and a few, what are known as "Lakshmi Kasus".

25. Evidence has been let in to show that when the accused came to the house of the deceased and stated that they were travelling that night to Birur by train, the deceased said that she would also travel in the same train to Bhadravathi and that the accused went away saying that they would go in advance and that she might come to the station later. It is in evidence that the accused and the said Nanjamma travelled to Tiptur from Ammasandra, where she lived to catch the mail train in which they had to travel as it does not stop at Ammasandra, They were all seen waiting for the mail train at Tiptur, but A. 1 and A. 2 alone got down the mail train at Arasikere. The prosecution case is therefore that the accused must have murdered her in the mail train between Tiptur and Arasikere Railway Stations. The dead body of Nanjamma was found in the lavatory of a first class compartment at Shimoga railway station on the early morning of 9-6-51, with broken ribs and abrasions. * * * * * * * * * *

26. As regards the conviction and sentence of the accused of the offence of murder there is difference of opinion between the Chief Justice and Vasudevamurthy J. and the question has been referred to me for decision under S.429, Cr.P.C. It will be noticed that the offence under S.302, I.P.C., is triable with the aid of assessors. The Judges are not bound by the opinion of assessors as they are bound by the verdict of Jurors. As observed in AIR 1946 P.C. 151 (I); "The Legislature drew a sharp distinction between a trial by jury and a trial with the aid of assessors. A jury, aided by the Judge, is the final tribunal for deciding the facts; assessors merely aid the Judge who decides the facts as well as the law".

27. Some evidence has been let in to show that the accused and the deceased travelled in the same train. This by itself could be of no consequence as a large number of persons must have travelled in that train. It is not even in evidence that they travelled in the same compartment. On the other hand what is significant is that the accused never showed any interest in taking her to the train with them. When the woman offered to travel with them they stated that they would be going to the station to catch the train and that she could come to the station later. It has not been shown that the accused had any motive worth the name to commit the murder. What is said to have been realised by the sale of the jewels is about a couple of hundred rupees. While cases are known where infants are killed for the sake of jewels worth a few rupees, it is difficult to conceive of murder of an adult woman in a moving train full of people merely to rob her of jewels worth a couple of hundred rupees. To me it looks more like a case of the deceased having been brutally murdered somewhere in a lonely place and the dead body having been some how brought at midnight and placed in the lavatory of a first class compartment. It is difficult to believe that the deceased was murdered in a faw minutes after the mail train left Tiptur station and reached the busy station at Arasikere which is only a few miles away from Tiptur. It has not been shown that there were any signs of blood or marks of struggle inside the compartment and the story that she was assaulted without her cries being heard by the people travelling in the adjacent compartment in the moving train within half an hour between Tiptur and Arasikere appears to me to be wholly improbable.

28. As regards the first accused it is not contended that he can be convicted of the offence of murder unless the ear rings M.O.15, said to have been worn by the deceased is traced to the possession of this accused. As stated by the learned Sessions Judge: The case for the prosecution is that A 1 had pledged M.O.15, with P.W.31, and had taken a loan of Rs.25/-. P.W.31 has sworn to it. Her evidence is that A 1 gave her M.O.15 and asked for a loan of Rs.25/-, that she had no money, that she borrowed Rs.20/- from P.W.30, Lakshamma on the pledge of M.O.15, that she had Rs.5/- with her, and that this Rs.25/-she gave to A 1. It was contended by the learned counsel for the accused that P.W.31 did not support the case for the prosecution in the lower Court, that as a result she was treated as hostile, that in this Court she has come and supported the case for the prosecution and that her evidence cannot at all be believed. The Public Prosecutor on the other side urges that as a result of threat of A 1s brother P.W.31 Sm. Sivamma did not speak the truth in the lower Court, and that what she has stated in this Court is true". The reason given by the learned Sessions Judge for believing the evidence of P.W.31 in the Sessions Court though her version in the lower Court was inconsistent with A 1 having pledged M.O.15, with her, is that her evidence is fully corroborated by the evidence of P.W.30 and P.W.32 Yaduraiah. If this is correct there is some justification for the learned Sessions Judge believing the evidence of P.W.31. P.W.30 Lakshamma has stated that A 1 had come to the house of P.W.31, Shivamma and that Shivamma told her that he had come to buy butter. She states that shivamma pledged with her a pair of ear rings M.O.15. She has not stated that the accused has anything to do with the earrings. P.W.32 is a blacksmith whom P.W.31 is stated to have consulted about the value of M.O.15. P.W.32 does not say about his having any personal knowledge of A1 having given M.O.15 to P.W.31. What he deposes is merely what he remembers to have heard. It cannot be said therefore that there is any evidence worth the name to corroborate the version of P.W.31 that Al, gave M.O.15 a pair of Voles, to her. Her own evidence on the point in the committal Court is inconsistent with A1 having given M.O.15 to her. It will thus be noticed that the only piece of evidence but for which the 1st accused cannot be held to be guilty of murder is completely shaky and cannot be relied on.

29. As regards A 2, there is evidence to show that he disposed of M.O.20 a silver belt and M.Os. 16, 17 and 18 some gold beads etc. tied in a string M.O.19 as per Exts.P.29 and 31. These articles purchased from a shop in Tumkur have no identification marks by which any one of the purchasers from that shop, can distinguish articles purchased by him from similar articles purchased by others. The learned Sessions Judge observes: "It was pointed out by the learned counsel for the defence that none of these jewels bear any special mark of identification, and that therefore these jewels cannot be held to belong to the deceased in spite of the oral and documentary evidence referred to above. No doubt, it is true that these jewels do not bear any mark of identification, but the oral evidence of P.W. 20 Sm. Ningamma, P.W.21 S. Deveeramma, P.W.25 Sri Muddalingiah, P.W.26 Sri Mariyappa and P.W.27 Sri Mudda Maistry, and particularly that of P.W.20 and P.W.21 who were closely in contact with the deceased and who were seeing the deceased wearing these jewels for a sufficiently long time, is sufficient to conclude that these jewels belonged to the deceased. In a case reported in - Parsurama v. Govt. of Mysore, 55 Mys HCR 48 (L), their Lordships have held that the existence of any special mark of identification is not invariably, a criterion for a person knowing that a particular article was used by another, inasmuch as people often recognize a thing by touch or look. The substance of that decision appears to be that it is possible for persons who have constantly seen an article being in possession of another to say that the article belongs to such and such a person, even without any particular mark on it. So, I do not see much substance in this contention." P.W.26 says: "When she came to P.W.22s brothers house, she had white stoned earrings. The other jewels must have been got made subsequently. I do not know about them. I know the jewels that my wife wears. I cannot say what jewels my neighbours wear. There are no identification marks on these jewels. I stated in lower Court that I did not know what jewels my wife wears". P.W.27 says: "I was not going to her house or shop. My womenfolk used to talk to her when she used to come to my house. I was not talking to her. Jewels of the like can be had elsewhere also". P.W. 20 admits that she had not used the jewels at any time. P.W.21 admits that she has not touched them. P.W.25 admits: "If these are mixed with other similar jewels and Kasus it is not possible to pick these".

30. Silver belt and a string of what is known as Karimanisara containing gold beads or gold kasus are almost what every woman in villages wears and it looks to me strange that any person who has not worn such articles or handled them could, identify one set of them from another. If as in this case the string is cut and loose gold beads etc., have to be identified I seriously doubt whether they could be identified at all even by persons who have handled the string of these when they were bound by it. None of the witnesses were living with the deceased. They had not touched them. The observation in - 55 Mys HCR 48 (L), is applicable to case of very much bigger articles that are identified by an inmate of the house in which the person wearing the article was also residing and had occasion to handle it. The observation cannot apply to persons who have seen small articles like ear rings, beads or a belt worn by a woman from some distance as in this case. That is the only way this decision has to be understood, as the opinion in this case is to be reconciled with the opinion in - Puttamadasetty v. Govt. of Mysore, 54 Mys HCR 493 (M), dealing with a case of ear-rings, R. Venkataramaiya, J. being a party to both these cases. The articles traced to the possession of A2 are not identifiable and it cannot be said that they are articles worn by the deceased 31. Wallace, J. observed in 50 Mad 274 (D). "In such a case I am confident that neither law nor justice justified the hanging of a man simply because he does not plead guilty to being a thief or a receiver of stolen property. The Court has to be satisfied, not merely that the thief could not have come into possession of the property unless murder has been committed, but also that he could not have come into possession of the property unless he himself has taken part in the murder or was privy to it".

32. Now in this case first accused has been shown to be one of the persons in intimacy with the deceased and the contention that he might have got these jewels from her for disposal and got them disposed of is not on the face of it so absurd as not to need some consideration. Any way unless it is shown that the jewels were worn by the deceased before she left her village and that they could have been removed from her only after her being murdered no presumption would arise that the accused committed the murder merely on the ground that her jewels are found with them. As regards the evidence of the jewels being found on the person, the evidence again is shaky. P.Ws.20, 21 and 25 state that they saw the belt M.O.20 and the string of Karimanisara containing M.Os.16 to 19. P.W.20 admits that "It was a dark night when she left the house. It was late for train. She was in a hurry". P.W.21 concedes "It was very dark. So she took Muddalingiah". The latter examined as P.W.25 also says so.

33. It cannot therefore be said that these witnesses were able to notice that the woman was wearing silver belt M.O.20, or the string containing M.Os. 16 to 18. The evidence of these persons having seen the deceased leaving the house for catching the train is highly doubtful. P.W.25 Muddalingiah who states that he took her from her house to the train deposes that "When I took Nanjamma to station, P.W.20 and P.W.21 were near their house. They were inside. Nanjamma called out to them and asked them to look after the house. P.W.20 and P.W.21 did not come outside." P.W.20 says that Nanjamma did not come to their house on that night and that she did not stop and talk to them as it was late for train. The evidence of these witnesses would make it clear that while P.Ws.20 and 21 were inside Nanjamma did not come there. P.W.26 says that the deceased bowed down to touch the legs of P.W.21. Any way the evidence on record does not prove beyond reasonable doubt that the accused were in possession of the jewels worn by the deceased prior to her death.

34. Assuming however that certain jewels of Nanjamma had been traced to the possession of the accused soon after the murder the point that arises for consideration is whether a presumption arises that the accused are the persons who actually murdered her. It must be remembered that under S.114, Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The presumption that a man who is in possession of stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen is not what is stated in the section itself but is found as an illustration to it. This is an illustration to show how presumption under S.114 could be drawn. No doubt possession of stolen articles soon after theft raises a presumption that the person in possession of the articles is the thief. But to draw a further presumption that persons found in the possession of stolen articles must have committed the murder of the owner of the stolen articles other circumstances are necessary. As Spencer C. J. observed in AIR 1926 Mad 638 CD),: "When the unexplained possession of stolen property is the only circumstance appearing in the evidence against an accused charged with murder and theft, the accused cannot be convicted of murder unless the Court is satisfied that possession of the property could not have been transferred from the deceased to the accused except by the former being murdered." I may also refer to the decision reported in 54 MysH.C.R.493(M) where it is observed: "Before a presumption of murder can be drawn against the accused from the mere unexplained possession of an article shown to have belonged to the deceased, there must be evidence to show that the article recovered from the accused was not only in the possession of the deceased at the time of murder but also that it could not have been transferred from the deceased to the accused except by the person being murdered." In cases in which it has not only been shown that stolen articles have been traced to the possession of the accused but also that these articles were in possession of the deceased at the time of the murder and that they could not have been removed without the deceased being murdered, the presumption of murder also would follow. I may here refer to the decision reported in 17 Mys LJ 158 (C) where an old man wearing a gold sarige was murdered and the accused who were found in possession of the same were convicted. Sarige could not have been removed without murdering the deceased who was found to be wearing it at that time. AIR 1941 Bom 139 (E) and AIR 1949 Nag 277 (J) are cases of the same kind.

35. Another point that arises for consideration in this case is that medical evidence makes it clear that the only injury that caused the death is the injury due to the breaking of ribs of the deceased. According to the doctor: "To cause fracture of the ribs on both sides of the chest, there might be pressure used on the middle of the chest ** ** ** The ribs must have fractured simultaneously."It is thus clear that the murder was committed by only one person. The prosecution case is that both the accused were present at the time of the murder. As it is shown that the death could have been caused only by one of them, it is clear that neither of them can be convicted of murder unless it is shown that the murder was committed in furtherance of a common intention. It was observed by Vankatararniah, J. in AIR 1954 Mys .53 (F): "Existence of common intention to assault Kotrappa which, is necessary for application of S.34, I.P.C., may be inferred from the acts of the accused in jointly attacking him. This is not by itself enough to render them guilty of the offences under S.326 and the fact that Kotrappa subsequently died cannot necessarily imply a common intention to cause death. There is absolutely no proof of any motive for the assault, of what led to it and of the part played by each in the incident. Of the injuries caused to Kotrappa only the first which is a fracture to the skull is serious and such as is likely to cause death in the opinion of the doctor. But for this injury the person may not have died. The evidence does not show who, as between the two accused, caused this injury. It may be that the common intention was only to give an ordinary beating as indicated by the other injuries and one of the accused suddenly in rage or excitement struck the man on the head." It was held in that case that as there was no common intention to cause death and the act committed was not in furtherance of any common intention, both the accused could be convicted only of the offence of voluntarily causing hurt punishable under S.323, I.P.C., but not of murder.

36. In this case there is not even the evidence to show that both the accused took part in the beating of the deceased. According to the doctor; "The abrasions might be due to a struggle. The ribs must have fractured simultaneously".As such it is difficult to convict either of the accused of the offence of murder as it is not shown which of them fractured the ribs and thus committed the murder. It is no doubt true that if both the accused had the common intention of committing robbery and murder both of them might be convicted of murder as well as of robbery, as was done in the case reported in AIR 1941 Bom 139 (E). In that case it will be noticed that the object of murder was undoubtedly robbery, as boxes had been broken open and large number of ornaments and other articles had been taken away. In this case as already observed by me the value of the articles are a couple of hundred rupees only and it is not possible to hold that the accused had any intention of murdering the deceased with the object of taking away the jewels. In fact it cannot be said that any of the accused and particularly the second accused could have any motive for murdering Nanjamma and there could have been no common intention of murdering her. The fact that they did not, according to the evidence of the prosecution, try to take the woman with them to the train, but went away to the railway station leaving her free to take the train with them or not, makes it clear that they had no such intention. If at all, any one of the accused murdered her it must be due to some quarrel or sudden difference of opinion between the deceased and one of them he being possibly the first accused who is said to have been in intimacy with the woman who was of a very loose character. No case of common intention is made out and it is not made out definitely which of the accused murdered her. On the whole I do not think that a case is made out for convicting either of the accused for the offence of murder. The conviction and sentence of the accused for the offence of murder are therefore set aside. Order accordingly. (S) AIR 1955 MYSORE 26 (Vol. 42, C.N. 8) "K. P. Chandrasekharappa v. Govt. of Mysore" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) K. P. Chandrasekharappa, Appellant v. Govt. of Mysore, Respondent. Appeal No. 104 of 1949-50, D/- 18 -12 -1952, against Order of Dist. J., Civil Station, Bangalore, D/- 14 -9 -1948. MUSLIM LAW - SUCCESSION - Muhammaddan Law - Succession - Hindu convert to Muhammadanism. Succession to the estate of a convert to Muhammadanism is governed by the Muhammadan Law, and according to Muhammadah Law a Hindu cannot succeed to the estate of a Muhammadan. (Para 2) Cases Referred : Chronological Paras (A) 11 Mys LR 406 2 (B) (V17) AIR 1930 PC 251 : 57 Ind App 313 (PC) 2 (C) (V36) AIR 1949 Mad 141 : 1948-2 Mad LJ 87 2

V. Krishnamurthy, for Appellant; Advocate-General, for Respondent. Judgement VENKATA RAMAIYA, J.:- This is an appeal under the Indian Succession Act against an order dismissing the application of the Appellant for grant of Letters of Administration with respect to properties of his deceased sister in the Civil Station, Banglore. The applicant is a Hindu governed by the Hindu Law as in force in Mysore. His sister, it is said, at first married a Hindu but after his death embraced Mahomadanism and married a Muslim of Civil Station and lived with him. H.M. Yunus, her Muslim husband died in 1939 and she in January 1947 leaving no children and intestate properties she was possessed of at the time of her death are according to the petition, of considerable value. The application was opposed by the brothers of the Muslim husband of the deceased. The learned District Judge held that neither the Appellant by virtue of his relationship by birth nor others on account of relationship to the husband could claim the letters. The order is not challenged by any one except the brother of the deceased.

2. It is not disputed that at the time of her death, the deceased was a Mohamadan and that there is nothing to avoid the application of the rules of Mahomadan Law except if at all that she was a convert from Hinduism. As page 79 of Maynes Hindu Law, 10th edition, it is stated: "The descendants of a Hindu convert to Mohamadanism cannot claim to inherit to his Hindu collaterals nor conversely can his Hindu collaterals succeed to the convert or his descendants". So long back as 1888 in 11 Mys L.R. 406 (A) in a case relating to the Civil Station it was observed: "As he died a Mohamadan this must be decided with reference to the principles of Mahomadan Law, according to which the first plaintiff was his sole heir, the 2nd plaintiff being incapable of inheriting by reason of being a Hindu (Vide Ameer Alis Personal Law of Mahomadens, page 276, Macnaughtens Mahomadan Law 5th edition, pages 466-484". In Mullas Mohamadan Law, 11th edition, page 17 this is made clear thus: "In the absence of a custom to the contrary succession to the estate of a convert to Mahomadanism is governed by the Mahomadan Law. According to the Mahomedan Law, a Hindu cannot succeed to the estate of a Mahomadan." The Caste disabilities removal act xxi of 1850 can be of no assistance to Appellant as he is not the person who renounced his religion and no question of his rights on that ground arises for consideration. Dealing with a case of succession to the property of a Hindu who died as Muslim convert in - Mitar Ser Singh v. Maqbul Hasan, AIR 1930 P.C. 251 (B). Lord Atkin held that the provision of the said Act cannot be availed of to support the claim of the Hindu relations, with an observation "Mahomadan Law would in itself prevent a Hindu from succeeding as heir" and "When once a person has changed his religion and changed his personal law, that law will govern the rights of succession of his children." The order of the lower court refers to another proceeding in Madras High Court where on the death of the same woman the court held that her properties escheated to the State or States in which these were situated. The order to this effect is reported in - Mahomed Ismail v. Abdul Hameed, AIR 1949 Mad 141 (C). Learned counsel for Appellant has in the memo of appeal sought to distinguish this case by alleging that Act XV of 1938 - the Caste Disabilities Removal Act of Mysore applicable to properties in Civil Station was not taken into account for the purpose of that decision. This Act which came into force in Mysore on 13-7-38 was made applicable to the Civil Station only on 15-8-1948 by Act LVII of 1948. The lady with respect to whose properties the Letters of Administration are claimed died in January 1947, before the Mysore Act was made applicable. As the inheritance cannot be in abeyance and the operation of the Mysore Act is not shown to be retrospective it is unnecessary to examine its provisions to see how far these would support the claim. The appeal is dismissed. There will be no order as to costs. Appeal dismissed. AIR 1955 MYSORE 27 (Vol. 42, C.N. 9) "In re, Malayara Seethu" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) In re, Malayara Seethu, Accused-Appellant. Criminal Appeal No.112 of 1953, D/- 9 -11 -1954, against order of Offlg. S.J., Coorg, in Sessions Case No.3 of 1953. Evidence Act (1 of 1872), S.3. To base a conviction on circumstantial proof it should be such as to be incompatible with the innocence of the accused. (Para 2) Anno: Cr.P.C., S.367 N.6; Evid. Act, S.3 N.6. (B) Evidence Act (1 of 1872), S.30 - CONFESSION - OBJECT OF AN ACT - Scope. Section 30 is a very exceptional, indeed an extraordinary, provision by which something which is not evidence may be used against an accused person at his trial. Such a provision must be used with the greatest caution and with care to make sure that it is not stretched one line beyond its necessary intention. It is true that the section provides only that the confession of one accused person may be "taken into consideration" against the fellow accused. But the confession cannot take the place of evidence against the co-accused; nor can it be added to supplement evidence otherwise insufficient. The provision goes no further than this: where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in S. 30 may be thrown into the scale as an additional reason for believing that evidence. AIR 1931 Mad 177 and 13 Mys LJ 69, Foll. (Para 5) Anno: Evid. Act, S.30 N.1, 4 and 7. (C) Penal Code (45 of 1860), S.312 - MISCARRIAGE - OBJECT OF AN ACT - APPLICABILITY OF AN ACT - Scope and applicability. A distinction is made in S.312 between miscarriage to a woman "with child" and "quick with child" as a larger punishment is provided for the former. (Para 6) Where the pregnancy has advanced beyond seven months from gestation, acts of doctors and nurses which facilitate or accelerate delivery cannot be treated as offences under the section only because the delivery otherwise would have been delayed and particularly when the child is born alive and no injury is caused to the mother or the child. Modis Medical Jurisprudence Ref. to. (Para 6) Anno: Penal Code, S.312 N.1. Cases Referred : Chronological Paras (A) (V18) AIR 1931 Mad 177 : 32 Cri LJ 448 5 (B) (35) 13 Mys LJ 69 5 (C) (V20) AIR 1933 Cal 893 : 35 Cri LJ 97 6 E. Kanakasabhapathy, for Appellant; Advocate General, for the Government. Judgement

2. The act constituting the offence is alleged to be the insertion of a green stick into the womb of Ammayya the 2nd accused although this had not been expressly mentioned in the charge framed against the appellant. Nor is there any reference to it in the First Information Report, Exhibit P-1, sent by P.W.3 the Patel to the Sub-Inspector of Police on 1-12-1952. What is stated therein is: "On 30-11-1952 M. Ammaiahs elder brother Uthiah went and brought a nurse called Seeth-amma and took medicine from her hand and has given medicine to the girl." There is no direct evidence concerning the act as no one examined in the case has deposed to having seen a stick with the appellant or its being used by her in the manner alleged. The conviction must, if at all, rest on circumstantial proof and as has been often pointed out, it should be such as to be incompatible with the innocence of the accused.

3. The learned Judge has set forth the evidence of the prosecution witnesses in detail and in para 32 of the judgment stated the facts established to be that A-2 while unmarried became pregnant, that A-4 on 30-11-1952 engaged the taxi of P.W.15, took it to Marnad and brought appellant to Madapur, then both went to Boothankad Estate, where A-4 and A-1 had a talk with the manager there and stopped at the Meenkolli river owing to difficulty of crossing the river: that thereafter A-4 went to his house and brought A-2 and A-3, A-1 got down from the taxi, joined A-2 and A-3 who were on the other side of the river and that all these "disappeared from the view of persons that were near the taxi": after about a quarter of an hour A-1 came back to the taxi and A-2 and A-3 returned to their house. The appellant in her statement denied this version but admitted that she was taken by A-4 to his house and came away without doing anything. The learned Judge has disbelieved her Statement and we think rightly since there is ample evidence such as that of P.Ws.8 and 15 the cleaner and driver of the taxi, P.W.3 the Patel and P.W.7 about movements of the persons in the taxi. The learned Sessions Judge has also accepted the testimony of P.W.7 though it is uncorroborated that after A-1 crossed the river he observed A-2 and A-3 accompanying her to a spot on the other side of the river. What happened there is a matter of suspicion or speculation. Even A-3 in her statement only alleges that she saw A-2 lie down cross-wise and nothing more. It is however undisputed that after the return of A-2 and A-3 to the house, A-2 delivered a female baby on the next day and the child died an hour or two later. P.W.11 a relation of the girl was present at the time of the delivery and she says that the child was born alive and after the birth, the placenta came out along with a stick of about 6 inches. The placenta and the stick were sent to the Chemical Examiner but as stated in the judgment of the lower Court in paragraph 4 the report of the Chemical Examiner does not disclose anything that would throw any light upon the facts relevant for this case. P.W.9 the Assistant Surgeon who conducted the post mortem examination of the child stated that it was not possible to say whether the delivery was natural or forced, that there were no external marks of injury on the child, that the child was born alive and that illness of the mother was also one of the causes for the premature delivery of a child. P.W.10 the Lady Assistant Surgeon who examined the 2nd accused has stated that she was not keeping good health at the time, was bloodless, running temperature and that there was no injuries at the uterus of accused 2. She too is unable to say whether the delivery was natural or forced.

4. The learned Judge has in the course of the judgment referred to certain letters Exhibits P-10, P-11, P-12 and P-13 said to have been seized in the house of the appellant as indicative or suggestive of criminal intention on the part of the appellant to bring about miscarriage. No one has been examined to prove the writing of these letters and the appellant denies having received these. Since the learned Advocate-General mentioned that these may be left out of consideration for the purpose of the decision, we do not express any opinion about the bearing or utility of these for the case.

5. The only facts proved therefore are that A-1 was taken in a taxi from her house to the bank of a river, she went to the other side and was in company with A-2 for some time at a distance in a lonely place, the delivery of A-2 on the next day and emergence of a green stick along with the placenta. Since no one except A-2 knew, if at all, the alleged insertion of the stick by the appellant, the information said to have been given by A-3 or A-4 to the other persons of the village is of no consequence. The statement of A-2 is not evidence in itself. Nor is it a substitute for evidence. As pointed out in - Periyaswami Mooppan v. Emperor, AIR 1931 Mad 177 (A) at p.178 "Section 30, Evidence Act, is a very exceptional, indeed an extraordinary, provision by which something which is not evidence may be used against an accused person at his trial. Such a provision must be used with the greatest caution and with care to make sure that we do not stretch it one line beyond its necessary intention. It is true that the section provides only that the confession of one accused person may be "taken into consideration" against the fellow accused. As I understand the section the confession cannot take the place of evidence against the co-accused; nor can it be added to supplement evidence otherwise insufficient. As I understand the matter, the provision goes no further than this: where there is evidence against the co-accused sufficient, if believed to support his conviction, then the kind of confession described in S. 30 may be thrown into the scale as an additional reason for believing that evidence." The same view is reiterated by Reilly C.J. in - Sauna Huduga v. Govt. of Mysore, 13 Mys LJ 69 (B). The fact that a green stick was seen with the placenta when it came out no doubt implies that it must have been inside the body earlier. Besides lack of proof that appellant introduced it, there is uncertainty of its having caused the delivery and the delivery being a miscarriage.

6. A distinction is made in S.312 between miscarriage to a woman "with child" and "quick with child" as a lesser punishment is provided for the former. The appellant is charged with the offence under the former part and this seems to refer to a state of pregnancy less advanced than in the case of the latter. According to the appellant who is an experienced village nurse the girl had advanced in pregnancy for a period of 9 months at the time. P.Ws.9 and 10 say that the period was 7 or 8 months. In Modis Medical Jurisprudence at page 325 it is stated "Legally, miscarriage means the premature expulsion of the product of conception, an ovum or a foetus, from the uterus, at any period before the full term is reached. Medically, three distinct terms, viz., abortion, miscarriage and premature labour, are used to denote the expulsion of a foetus at different stages of gestation. Thus, the term, abortion, is used only when an ovum is expelled within the first three months of pregnancy, before the placenta is formed. Miscarriage is used when a foetus is expelled from the fourth to the seventh month of gestation, before it is viable, while premature labour is the delivery of a viable child possibly capable of being reared, before it has become fully mature." At page 303 it is stated that children born at or after 210 days or 7 calendar months of uterine life are viable, i.e. are born alive and are capable of being reared. The child in this case was born alive and the pregnancy was beyond 7 months, so that medically this is a case of premature labour and not of miscarriage. Acts of doctors and nurses which facilitate or accelerate delivery cannot be treated as offences under the section only because the delivery otherwise would have been delayed and particularly when the child is born alive and no injury is caused to the mother or the child as in this case. The evidence of P.Ws.9 and 10 raises a doubt about the delivery being natural or forced and the green stick having brought about the delivery as it is said that a stick with irritants is used for such a purpose and the chemical examination of the stick in this case did not disclose any trace of irritants or poison on it. In - Asgarali Pradhania v. Emperor, AIR 1933 Cal 893 (C) the accused was held to be not guilty of attempt to cause miscarriage as the materials sought to be made use of were not harmful. All the assessors were unanimously of opinion that the case against the appellant was not satisfactorily made out and the conclusion we have arrived at is also the same. In any event, this is a case in which there is room for doubt, the benefit of which is due to the appellant.

7. The conviction of the appellant and the sentence passed on her are both set aside and we acquit her. The bail bonds will be cancelled. Accused acquitted. AIR 1955 MYSORE 29 (Vol. 42, C.N. 10) "Sarode Vithoba v. Madanlal Lalchand" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Sarode Vithoba and another, Appellants v. Madanlal Lalchand and Co. and others, Respondents. Second Appeal No.70 of 1953, D/- 28 -10 -1953, against decision of First Addl. Dist. J., Bangalore in R.A. No.46 of 1952-53. Provincial Insolvency Act (5 of 1920), S.61(3) - INSOLVENT - Interim receiver taking charge of debtors moveables kept in house belonging to appellant - Rent of premises. In the course of the insolvency proceedings the official Receiver was appointed an interim Receiver on 26-3-1949. He was directed to take charge of the properties of the debtor. Accordingly the Receiver took possession of some machinery belonging to the debtor kept in a rented house belonging to the appellant, locked it and sealed the premises on 29-3-1949. He was thus in possession of the premises from that date till the articles were sold. The order of adjudication was passed on 24-2-51: Held that the rent due from the date on which the interim receiver took possession of the moveables and locked and sealed the premises, up to the date of sale of the moveables had to be treated as "expenses of administration or otherwise" within the meaning of S.61, sub-cl.(3) of the Insolvency Act. (Para 3) Held further that the rent and other incidental expenses had to be deducted out of the gross proceeds of the sale in order to arrive at the net proceeds. The rent due to the appellant should, therefore, be paid out of the amount realised by the sale. (Para 4) Anno: Provincial Insol. Act, S.61 N.3. Cases Referred : Chronological Paras (A) (V17) AIR 1930 Cal 459 : 57 Cal 1210 3 H. Nanjundasastry, for Appellants; T.V. Nathamuni Iyengar, for Respondents. Judgement In the course of the proceedings the Official Receiver was appointed an interim Receiver on 26-3-1949 in I.C. 19 of 48-49 on the file of the Subordinate Judge, Bangalore. He was directed to take charge of the properties of the first respondent (debtor). Accordingly the Receiver took possession of some machinery belonging to the debtor kept in a rented house belonging to the appellant, locked it and sealed the premises on 29-3-1949. He was thus in possession of the premises from that date till the articles were sold.

2. It has to be observed that the order of adjudication was passed on 24-8-51. The first respondent in this Court claimed that the moveables had been mortgaged to him under a registered document. He however agreed that they may be sold free of the encumbrance provided that the net proceeds were to be paid towards the adjustment of what was due to him as a secured creditor. He also agreed to take interest at 6 per cent though according to the mortgage deed he was entitled to interest at Rs.1-4-0 per cent per mensem. The contention of the first respondent is that the appellant is not entitled to recover rent from the amount realised by the sale of these moveables, as according to the agreement his secured debt should first be discharged out of the proceeds of the sale. This contention found favour with the learned Judge of the first appellate Court. He has therefore set aside the order of the learned Subordinate Judge, who had directed that the rent should be paid to the appellant out of the sale proceeds and it is against this order of 1st appellate Court that this second appeal has been filed.

3. It is urged in this Court on the authority of the decision in - Official Trustee of Bengal v. Kissen Gopal, AIR 1930 Cal 459 (A) that rent due to the appellant after the date of adjudication alone has to be deducted and not the rent due up to that date and for this the creditor should be treated as an ordinary creditor. A careful reading of the decision will show that the order of adjudication in that case was passed on 17-8-1926. But before that, an interim receiver had been appointed. The proceedings made it clear that the appointment of an interim receiver was more or less for purposes of doing certain preliminary investigations and that he was not directed to take possession of any property as he might have been under S.20, Insolvency Act, as observed by the learned Judges. It was also clear from the proceedings in that case that from the date on which the order of adjudication was passed the interim receiver was ordered to continue as receiver, that the insolvents property vested in him under S.28(2) and that from the date of order of adjudication the Receiver was in possession in the eye of law. It is evidently so because the interim receiver had been appointed only for purpose of doing certain preliminary investigation and was not directed to take possession and could not be regarded to be in possession even in the eye of law, the rent due up to the date of order of adjudication was not regarded as expenses of administration and that he was treated as an ordinary debtor. In this case as already pointed out the interim receiver appointed even before the order of adjudication, was directed then alone to take possession of the property. The result is that the rent due from the date on which the interim receiver took possession of the moveables and locked and sealed the premises, up to the date of sale of the moveables has to be treated as "expenses of administration or otherwise" within the meaning of S.61, sub-cl. (3), Insolvency Act. No distinction can be made in this case between the rent due from the date he took possession of the premises up to the date of order of adjudication and the rent due from the date of the order of adjudication up to the date of sale of the articles as the receiver was in possession of the house during both the periods and he had authorities to do so. If a distinction was made in the Calcutta case referred to above and the rent due up to the date of order of adjudication was not treated as "expenses of administration or otherwise" within the meaning of S.61, sub-cl.(3), it was because, as already observed, the Receiver was not authorised to be in possession of the premises and he could not have been deemed to be in possession in the eye of law, as no order had been passed till the date of adjudication vesting the insolvents property in him in that case.

4. It was contended that under the agreement the first respondent is entitled to get the amount due to him out of the realisations of sale of the machinery and it is particularly so as he agreed to take interest at only 6 per cent. This is the view taken by the first appellate Court also. The learned Judge of the first appellate Court should have noticed that according to the agreement the secured debt due to the first respondent had to be paid out of the not proceeds and not out of the gross realisations. In fact it is net contended that the expenses of sale and other incidental expenses should not be deducted out of the gross realisations. The Receiver was in possession of the premises in order to keep the machinery in safe custody and he is bound to pay the rent. Rent and other incidental expenses have to be deducted out of the gross proceeds of the sale in order to arrive at the net proceeds. The rent due to the appellant should, therefore, have been paid out of the amount realised by the sale as even according to the agreement of respondent he is entitled only to the net proceeds.

5. The appellant is entitled to get out of the sale proceeds, rent due to him from the date on which the official receiver took possession of the property even prior to the date of order of adjudication up to the date of sale of the machinery out of the sale proceeds.

6. The appeal is, therefore, allowed the order of the learned District Judge is set aside and that of the learned Subordinate Judge restored. Parties will bear their own costs in this Court. Appeal allowed. (S) AIR 1955 MYSORE 31 (Vol. 42, C.N. 11) "Marisamappa v. Channiah" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Marisamappa, Appellant v. Channiah and others, Respondents. Second Appeal No.261 of 1950-51, D/- 25 -8 -1953, against decree of Addi. Sub. J., Mysore, in R.A. No.30 of 1949-50. Limitation Act (9 of 1908), S.21(3) - LIMITATION - INTEREST - Payment of interest by manager of Hindu joint family - 11 Mys CCR 190 and 26 Mys CCR 75, held no longer good law. Where the Hindu family continues to be joint on the date of payment of interest by the manager of the family by whom or on whose behalf the liability is incurred, it must be deemed according to sub-s. (3)(b) of S.21, Limitation Act, that the payment is made on behalf of the family, it being not now necessary to ascertain whether the payment is really made on behalf of the family or not. AIR 1930 PC 54, Ref.11 Mys CCR 190; 26 Mys CCR 75, held no longer good law. (Para 3) Anno: Lim. Act, S.21 N.20 Pt.2. Cases Referred : Chronological Paras (A) (06) 11 Mys CCR 190 3 (B) (21) 26 Mys CCR 75 3 (C) (V17) AIR 1930 PC 54 : 54 Bom 216 (PC) 3

V. Krishnamurthy, for Appellant; C.N. Ramaswami Sastry, for Respondent. Judgement

2. The main point for consideration is whether the suit document is barred by time. The plaintiff-appellant relies on endorsements for payment of interest made by Javarayigowda as per Ext.A-3 on the document. The thumb impression on the document is clear and even a layman could say that the thumb impression to the endorsement very closely resembles the thumb impression affixed by Javarayigowda on the registered hypothecation deed before the Sub-Registrar. The learned Munsiff was right in holding that this endorsement is genuine. There is hardly any doubt therefore that there could be a decree as against the 1/3rd interest of Javarayigowda and his son the first defendant in the suit property.

3. The more serious point for consideration is whether payment of interest by Javarayigowda saves limitation even as against his brothers defendants 3 and 4. It has been held in this court more than once that payment of interest by a person who happens to be a manager of the joint family, does not necessarily mean that payment is made on behalf of the other members particularly when the other members have also executed the suit document along with the manager of the joint family. It did not, however, necessarily follow that in all cases in which payment was made by the manager of the joint family it had to be inferred that the payment was not binding on such members of the joint family who happened to have executed the document, that is because, it may so happen that the manager of the joint family pays money belonging to the joint family towards interest on behalf of all, and this may be so even in cases where one or more of the junior members of the family have executed the document along with him. Now at any rate whether he pays the money on behalf of all or not, he must be deemed to have made the payment on behalf of all if the liability had been incurred on behalf of the family as according to the amended S.21, Limitation Act, sub-s.(3)(b) of S.21 states: "Where a liability has been incurred by, or on behalf of, a Hindu undivided family as such, an acknowledgment or payment made by, or by the duly authorised agent of, the manager of the family for the time being shall be deemed to have been made on behalf of the whole family." This amendment was made subsequent to the decisions in 11 Mys CCR 190 (A) and 26 Mys CCR 75 (B). Therefore these decisions cannot be followed now. If the joint family continued on the date of payment and Javarayigowda was the manager of the family by whom or on whose behalf the liability was incurred, it must be deemed according to sub-s.(3)(b) of S.21, Limitation Act, that the payment was made on behalf of the family, it being not now necessary to ascertain whether the payment was really made on behalf of the family or not. As observed in - Commr. of Income Tax, Bombay v. Bombay Trust Corporation Ltd., AIR 1930 PC 54 (C): "When a person is "deemed to be" something the only meaning possible is that whereas he is not in reality that something, the Act requires him to be treated as if he were."

4. The question, therefore, for consideration now is whether at the time of payment by Javarayigowda the family continued to be joint or whether there was partition as pleaded. The learned Munsiff has discussed the oral evidence of the three witness adduced on the point and has shown a number of discrepancies. The learned Subordinate Judge, however, appears to think that these discrepancies would not matter as witnesses cannot be expected to remember what took place years ago. When there is no documentary evidence to prove a transaction of this kind and it is sought to be proved by oral evidence only, the evidence must be consistent, probable, and disinterested before it could be accepted. Moreover, the best way of proving partition when there is no registered partition deed is by showing that the brothers were paying similar amount of Kandayam separately every year according to their shares. This has not been done. Then again the learned Subordinate Judge has failed to take note of the evidence of the first defendants mother that there was no division prior to the death of her husband. I therefore feel sure that the appreciation of evidence by the learned Munsiff, who recorded it, has to be preferred to that of the learned Subordinate Judge. I accordingly agree with the finding of the learned Munsiff that there was no partition.

5. Javarayigowda was the eldest member of the family and must be presumed to have been the manager of the joint family and there is nothing to show that he ceased to be the manager when he made the payment of interest. The debt was one contracted on behalf of the family. The result is that it must be held that payment of interest made by Javarayigowda as per the endorsement on the document saves limitation running against all the defendants. The appeal is, therefore, allowed, the judgment and decree of the learned Subordinate Judge are set aside and those of the learned Munsiff restored. There is no order as to costs in this appeal. Appeal allowed. AIR 1955 MYSORE 32 (Vol. 42, C.N. 12) "Dasa Naika v. Ramjee Naika" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) Dasa Naika, Petitioner v. Ramjee Naika, Respondent. Criminal Revn. Petn. No.110 of 1954, D/- 10 -8 -1954, against order of Dist. Magistrate, Chitaldroog, D/- 30 -3 -1954. Criminal P.C. (5 of 1898), S.520 - DISPOSAL OF PROPERTY - APPEAL - REVISION - Order of conviction or acquittal - Appeal - Order as to disposal of property - Appeal or revision. The legislature intended in the case of S.520 to confer concurrent jurisdiction on the District Magistrate and the Court of Session. When once the applicant elects one or the other form, the remedy is exhausted. But on general principles where an appeal has been preferred to a particular court from the main order of conviction or acquittal no appeal or revision against an order as to the disposal of property can be preferred to the other Court under S.520. The jurisdiction of the other Court, as to the revision of the order, ceases owing to the seisin of the entire case by the court of appeal. (Para 4) Anno: Criminal P.C., S.520 N.1, Pt.1. Cases Referred : Chronological Paras (A) (38) 16 Mys LJ 73 3 (B) (V16) AIR 1929 Rang 97 : 7 Rang 345 : 30 Cri LJ 540 (FB) 3 (C) (04) 1 Cri LJ 764 : 17 CPLR 17 4 G.S. Ullal, for Petitioner; B.S. Puttasiddiah,for Respondent. Judgement ORDER:- This petition is filed by the complainant in C.C. No.976 of 53 on the file of the Second Magistrate, Chitaldroog against the order of the District Magistrate, Chitaldroog in Criminal R.P. No.6/54 on his file directing the disposal of property under S.520, Criminal P.C.

2. The revision petition before the District Magistrate has been preferred by the respondent, P.W.12 in the trial court, against the order of the Second Magistrate, Chitaldroog, directing that the property, the subject-matter of the criminal case viz., Rs.1000/- be delivered to the complainant.

3. During the course of arguments in this Court Mr. B.S. Puttasiddiah learned counsel for the respondent disclosed that an appeal has since been filed by the accused, before the Sessions Judge, against the judgment of conviction. The disposal of property being an integral portion of the judgment is finally subject to the order in appeal. Where no appeal is filed, it is clear that both the District Magistrate and the Sessions Judge have concurrent jurisdiction under S.520, Cr.P.C. In a decision of this Court reported in 16 Mys LJ 73 (A), it has been laid down that a Court which ordinarily exercises appellate or revisional jurisdiction such as a Court of Session or a District Magistrate, may in regard to orders passed under Ss.517, 518 or 519, Criminal P.C. by a Subordinate Court, revise such orders by virtue of the provisions of S.520 of the Code, although there are no proceedings by way of appeal or revision from the main decision itself. - U Po Hla v. Ko Po Shein, AIR 1929 Rang 97 (B) is referred to therein with approval. The Rangoon High Court while holding that an order of the trial court passed under S.517, Criminal P.C. may be interfered with by the Sessions Judge or the District Magistrate in their revisional jurisdiction even when there is an acquittal by the trial court, further lays down that in a case of conviction by a First Class Magistrate the District Magistrate has in the absence of an appeal to the Sessions Court powers to interfere with an order passed under S.517 of the Code.

4. It is clear that the legislature intended in the case of S.520, as in some other section, to confer concurrent Jurisdiction on the District Magistrate and the Court of Session. When once the applicant elects one or the other forum, the remedy is exhausted. But it appears to me on general principles, that where an appeal hat been preferred to a particular court from the main order of conviction or acquittal no appeal or revision against an order as to the disposal of property can be preferred to the other court under S.520, Cr.P.C. The jurisdiction of the other Court, as to the revision of the order, ceases owing to the seisin of the entire case by the Court of Appeal (Vide - Emperor v. Hussain Shah, 1 Cri LJ 764 (Nag) (C)).

5. In this case, however, there is little doubt that the trial Magistrate at Chitaldroog is exercising first class powers and, as has been frankly admitted, an appeal has since been filed before the Sessions Judge against the order of conviction. I therefore set aside the order of the District Magistrate and direct that the petition filed by P.W.12 may be transferred to the Court of the District and Sessions Judge, Shimoga for consideration and disposal along with the main case pending in appeal before him. Order set aside. (S) AIR 1955 MYSORE 33 (Vol. 42, C.N. 13) "Puttathayamma v. Rathnarajiah" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Puttathayamma and another, Appellants v. Rathnarajiah and another, Respondents. Second Appeal No.389 of 1952-53, D/- 15 -10 -1954, against decree of Sub. J., Hassan, in R.A. No.23 of 1951-52. Limitation Act (9 of 1908), Art.144 - LIMITATION - ADVERSE POSSESSION - Adverse possession claimed - Parties close relations - Nature of proof. Where the plaintiff and defendant are close relations, very much more and better and stronger evidence of a positive character is necessary to establish title by prescription and adverse possession in favour of the plaintiff. Substantial and clear evidence of neighbours and other villagers and tenants of continued exclusive possession of the land by plaintiff to the deprivation of any enjoyment by defendant is necessary before the plaintiff can rely upon his title by prescription. 21 Ind Cas 21 (Mad.); 10 Ind Cas 413 (All); AIR 1916 Bom 68; 20 All 182, Rel. on; 17 Mys LJ 510, Expl. (Para 4) Anno: Lim. Act, Art.144 N.96 Pt.14. Cases Referred : Chronological Paras (A) (13) 21 Ind Cas 21 : 1913 Mad WN 674 4 (B) (11) 10 Ind Cas 413 (All) 4 (C) (V3) AIR 1916 Bom 68 : 41 Bom 315 4 (D) (98) 20 All 182 : 1898 All WN 19 4 (E) (33) 17 Mys LJ 510 4 R.V. Srinivasaiya, for Appellants; Mirle N. Lakshminaranappa, for Respondents. Judgement

2. The plaintiff is defendant 1s fathers brothers son. Defendant 2 is a nephew of defendant 1s husband. The plaintiffs case is that he had been in possession and enjoyment of the suit property from 1917 openly and as of right, that he had leased the property from two years previous to suit to one Rangegowda, who had cultivated the land, and that the defendants who had no manner of right or title to the land had interfered with his possession. He gave his cause of action as June 1949. Defendant 1 pleaded that the land had been purchased by her deceased husband on 26-6-1904, that after his death (in 1905 or 1906) she had succeeded to it and was all along in possession and enjoyment of it, that as she was very young when her husband died, her father Payanna and after her fathers death, her elder brother, one Dharanappa, who is also now dead, were looking after the property and getting it cultivated for her; and on 10-3-1909 her elder brother had executed a release deed in her favour in respect of the land, that thereafter the 1st defendant was herself getting the land cultivated for some years and through the plaintiff also as he was her fathers own younger brothers son; that till 1946 he had been giving her the produce, that later he failed to do so and then applied for transfer of khatha to his own name; so she had taken away the land from the plaintiffs possession and given it for cultivation to one Krishnaiah and had since got it cultivated personally through one Manja Setty. She also pleaded that the suit land was not in possession of the plaintiff and that the suit for bare injunction was not maintainable. In his reply, the plaintiff denied that after defendant 1s husbands death her father or her brother had ever cultivated the land and pleaded that the release deed of 10-3-1909 was a fraudulent and nominal transaction. The defendant had never been in possession of the land and it had all along been in his possession.

3. The learned Munsiff held that the plaintiff had not made out any title to the suit property nor had he made out that he was in adverse possession continuously in his own right for over 12 years in order to perfect his title; that he had made false and inconsistent statements as regards his title and was not entitled to the relief of injunction. The learned Subordinate Judge, however, differed from the Munsiff and held that though the plaintiff had failed to establish his title, he had proved that he had been in possession adversely to defendant 1; and that as defendant 1 had not proved that he was in such possession as her manager or agent or permissively, the plaintiff had acquired title by prescription which could be protected. The learned Subordinate Judge has thus concurred with the learned Munsiff in holding that it was clear from the evidence of the plaintiff himself that he could not claim any title to the suit schedule properties either by virtue of a gift from Dharaniah or by virtue of succession to him. He has also observed that the question of genuineness of the original of Ext.J., which is a registered release deed executed by Dharaniah so far back as 10-3-1909, was not canvassed in the pleadings though it had been specifically referred to in the written statement. In the reply it was not stated that it was not a genuine document but only that it was a fraudulent one. The learned Munsiff has expressly held Ext.J to be a genuine document. Ext.J evidences a release by Dharanappa, the elder brother of defendant 1, in favour of defendant 1. It recites that the khatha had been transferred to Dharanappas fathers name, that the land was till then in the releasors possession and that he would see that the khatha also was transferred to the name of the releasee. It is rather curious that though the plaintiff did not admit it in the pleadings he has admitted that Dharaniah was owner. In fact, he has pleaded that the land was given to him by Dharaniah as a gift. Both the Courts below have rightly disbelieved that story. It is contrary to what he stated before the Revenue Authorities as in Ext.III where he has merely relied for his title on adverse possession. During the course of his evidence he has stated that his uncle Payannas son Dharanappa was messing in his house, that he the plaintiff was taking the produce, when Dharaniah was so living in his house and that the latter raised no objection. It is also admitted by him that he was on amicable terms with defendant 1 prior to suit. She had lost her husband over 40 years ago and misunderstandings between them arose only two or three years after the date of Ext.E which was in March 1945; the second defendant then got the standing crop cut and that was the reason for the trouble. The plaintiff has not suggested any reason why he should have held and enjoyed the property adversely against his own niece who was widowed when she was very young and who had apparently no one to look after her interests after the death of her father and her brother. The brother appears to have been anxious to place her title beyond dispute as the khatha had been transferred to the name of his father ap parently because he was managing the property for her. In those circumstances, it is difficult to conceive why either she or Dharaniah should have allowed the plaintiff who had no title whatever to the land to enjoy the property and take away the produce. It is much more probable, as sworn to by defendant 1 that for some years he was helping the defendant in looking after the land and was paying its kandayam and was giving her the produce. If the property really belonged to the plaintiff, he would not have allowed the khatha to continue to remain in the name of defendant ls father. The evidence regarding his possession also is not strong or impressive or even consistent. (After reviewing the evidence his Lordship proceeded:)

4. In a case like this where the plaintiff and defendant 1 are close relations, I think very much more and better and stronger evidence of a positive character was necessary to establish title by prescription and adverse possession in favour of the plaintiff. Defendant 1 is an illiterate old woman of 65 years who is also deaf; for the respondents, it is urged that she has stated in the course of her lengthy cross-examination that she did not ask the plaintiff to manage the land for her; but earlier, she has stated that she asked the plaintiff to look after the land as she was a woman. P.W.2, Hanumanthegowda who has executed a lease deed in favour of the plaintiff says that D.W.1 and the plaintiff both used to come to the land. Sri Lakshminaranappa, learned counsel for the respondents, has urged that the evidence of D.W.2, Krishnasetty, who has also deposed that both plaintiff and defendant 1 used to come to the land and that defendant 1 used to say that she had lost her husband and that the plaintiff was helping her, is unreliable as he had executed a lease deed in favour of the plaintiff. But he has practically only confirmed the evidence of P.W.2. The ordinary presumption in such cases is that possession goes with title which is so clearly in defendant 1. There is not even a show of title in the plaintiff as claimed by him in the light of Exhibit IV. Better and more substantial and clearer evidence of neighbours and other pillagers and tenants of continued exclusive possession of the land by plaintiff to the deprivation of any enjoyment by defendant 1 was necessary before the plaintiff could rely upon his title by prescription. As pointed out in - Thangavelu Chetty v. Mangathaye Ammal, 21 Ind Cas. 21 (Mad) (A), "Acts which are alleged to create adverse possession must be scrutinised in the light of the relationship that exists between the parties who assert against each other the title by adverse possession." Where a female lives with her male relatives, the ordinary presumption is that they manage her property for her and do not hold it adversely. (See - Inayat Husain v. Aziz Banno, 10 Ind Cas 413 (All) (B)) Where possession has commenced lawfully, e.g. by an agreement as to the management of the property, the court would be slow to hold that it has subsequently become adverse to the rightful owner unless the evidence clearly and unequivocally establishes ouster. - Liaxmipatirao v. Venkatesh Tirmal, AIR 1916 Bom 68 (C). "In dealing with the question of possession as. between brothers and sisters, in native families, regard must be had to the conditions of life under which such families live, and the fact that in such families the management of the property of the family is by reason of the seclusion of the female members, ordinarily left in the hands of the male members. In the case of such families slight evidence of enjoyment of income arising from the property is sufficient prima facie proof of possession". (See - Inayak Husen v. Ali Husen, 20 All 182 (D)). Defendant 1 belongs to the Jain community and it is not suggested that she was actually cultivating the land. She was widowed when she was quite young and it is much more probable that the plaintiff was looking after the land and giving her the produce and often times paying the kandayam on her account, rather than that he enjoyed the income of the property in assertion of a hostile title to her complete exclusion. - Nanjappa Setty v. Hussain Bee, 17 Mys LJ 510 (E) has been relied on by the learned Subordinate Judge. In that case, the defendant was in possession; it was pointed out that possession of property was presumptive proof of ownership; it was also observed that possession is prima facie adverse and is presumed to be as of right until such presumption is rebutted by evidence. Even in that case, it is pointed out that permissive possession need not always rest on an agreement and may be a legal inference to be drawn from the circumstances of a particular case. I think the circumstances of the present case clearly negative any intention on the part of the plaintiff to enjoy the property adversely in his own right as against defendant 1 and support the case of defendant 1 that his dealing with the land must have been with her acquiescence and for her benefit until 1948-49 when the plaintiff appears to have claimed title in himself by applying for a transfer of the khatha to his own name. In fact there is no evidence that he put forward or asserted or exercised any rights over the land at any time earlier than that and his paying kandayam is susceptible of the explanation given by defendant 1 and does not by itself prove possession. It is doubtful whether the plaintiff was in possession at all at the time of the suit and whether his suit is maintainable. But the Courts below have not gone into that question and I do not propose to do so in the view I have taken.

5. In the result, this appeal is allowed, the judgment and decree of the Subordinate Judge are set aside and those of the Munsiff restored with costs throughout. Appeal allowed. (S) AIR 1955 MYSORE 35 (Vol. 42, C.N. 14) "C. G. Sastry v. B. V. Patankar" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND BALAKRISHNAIYA, J. ( Division Bench ) C. G. Sastry, Judgment-debtor, Appellant v. B. V. Patankar and others, Decree-holders, Respondents. Civil Petn. No.66 of 1954, D/- 18 -11 -1954, for leave and appeal to the Supreme Court from judgment of this Court in R.A. No.195 of 1951-52. (A) Constitution of India, Art.133 - APPEAL - APPLICABILITY OF AN ACT - Applicability - Subject-matter of dispute - Claim respecting property - Certificate of fitness. In execution of a decree the petitioners applied to the trial Court for delivery of possession of the leased property after the expiry of the period fixed in the decree. The executing Court, without notice to the respondent, ordered delivery and this was duly effected on 22-7-1951. The respondent thereupon filed a petition for setting aside the ex parte order and, as a consequence, to restore possession of the property along with some movables which were represented to have been fixed by him for better enjoyment of the leased premises. He also contended in that petition that the executing Court had no jurisdiction to order delivery of possession of the property without the permission of the Rent Controller, under the House Rent Control Order, for the reason that the decree actually passed in the original suit partook of the nature of eviction of a tenant by the landlords. That petition was dismissed by the trial Court, and on appeal by the respondent the High Court upheld the contention of the judgment-debtor. It was against that order that the petitioners sought a certificate to appeal to the Supreme Court. Held (1) that the moveables were not the subject-matter of dispute under cl.(1)(a) of the Article. (Para 5) (2) Under cl.(1)(b) it is the rights and claims which should be worth Rs.90 000/-and not merely the property to which the rights and claims relate. The case did not fall under cl.(b) of Art.133. since the claim or question involved was not shown to be worth more than Rs.20.000/-. The controversy about the lease of the immovable property was finally set at rest by an affirming judgment of the High Court in regular appeal holding that the judgment-debtor should deliver the property after 1-5-1951. All that the juagment-deotor claimed was that the decree for eviction could not be enforced by a civil court without the express permission of the House Rent Controller. The final order sought to be appealed from did not involve a dispute relating to the property of the value of Rs.20,000/- or more. (Para 6) (3) It was not a case fit for appeal under cl. (c) of Art.133 on the ground that the decision involved a substantial point of law touching the interpretation of the Constitution itself. No conflict did exist on 22-7-1951 between the Civil P.C. and T.P. Act and the House Rent Control Order. Section 4, Civil P.C., gives a local Act, local validity and the special procedure therein prescribed validity within its own sphere, the result being that the special procedure prescribed in the House Rent Control Order should be followed in preference to the provision in the Civil Procedure Code. The other act, viz., the central t.p. act could not be deemed to have been in force in the State in or about July 1951 when the execution proceedings involved in the dispute took place. Even otherwise the case was not of sufficient private importance to both the parties in the sense in which it was generally understood so as to deserve consideration on that ground. No other case of the nature giving rise to conflict had arisen during the short interval between 1-4-1951 and 16-8-1951 of the alleged, repugnancy of the local law before it received the assent of the President. ILR (1951) Mys 423, Rel. on; AIR Commentary on Constitution of India cited. (Paras 7, 8) Anno: Const. of India, Art.133 N.12, 14, 15. (B) Constitution of India, Art.133(1)(c) - APPEAL - Incorrect application of law. Incorrect application of principles of law is not a sufficient ground to conclude that the case is a fit one for appeal to the Supreme Court as involving a substantial question of law of such general application as to require the highest Tribunal of the realm to adjudicate upon. Case law rel. on. (Para 8) Anno: Const. of India, Art.133 N.15. Cases Referred : Chronological Paras (A) (V40) AIR 1953 Hyd 177 : ILR (1953) Hyd 206 8 (B) (V39) AIR 1952 Puni 191 : 53 Pun LR 449 8 (C) (V35) AIR 1948 Mad 111 : 1947-2 Mad LJ 194 8 (D) (V33) AIR 1946 Nag 307 : ILR (1946) Nae 609 8 (E) (V19) AIR 1932 Lah 56 (1) : 132 Ind Cas 2 8 (F) (V36) AIR 1949 Bom 134 : 50 Bom LR 744 8 (G) (51) ILR (1951) Mys 423 8 S.N. Gopala Rao, for Petitioners; Mirle N. Lakshmmaranappa, for Respondents. Judgement ORDER:- This petition is filed under Arts.132 and 133 of the Constitution of India by the petitioners for issuing a certificate to prefer an appeal to the Sunreme Court against the order of this Court in R.A.195/51-52, relating to execution proceedings.

2. Briefly stated, the relevant facts necessary for appreciation of the points raised in this petition are these: Late M.P. Viswanatha Rao, the manager of a Joint Hindu family of himself and his sons (the petitioners) leased out a family property in Bangalore, to the respondent under a registered deed of lease dated 3-2-1941, for a period of ten years certain and the lease to commence from 1-5-1941 coupled with an agreement reserving an option to the respondent to renew the lease after the expiry of the original period. The lessor died on 25-1-1945. Soon after this, the petitioners filed a suit in O.S. 63/45-46 on the file of the Court of the District Judge, Bangalore, for the relief that the lease effected by their father was not for legal necessity binding on them and that as a consequential relief they claimed immediate possession of the property, when nearly six years of the initial period of lease had to run. Amongst other contentions, the respondent raised a preliminary objection regarding the maintainability of the suit on the ground that such a suit was barred under the provisions of the House Rent Control Order, then in force. The trial Court upheld the objection of the respondent and dismissed the suit. On appeal, the High Court in R.A.41/47-48 set aside that judgment and remanded the suit for disposal on merits, for the reason that the suit, as framed, was not by a landlord against a tenant but by the junior surviving coparceners to set aside an alienation by their father who was managing the family estate. Ultimately, the trial Court held, on merits, that the lease by the then managing member of the family was prudent act binding on the petitioners in all respects, excepting the agreement to renew the lease after the expiry of the initial period of ten years. Being aggrieved against that decision both the parties preferred appeals. The petitioners filed R. A. 128/48-49 and the respondents filed cross-objections in the High Court. Both the appeal and the cross-objections were dismissed.

3. While deciding the suit, the trial Court declared, under the general issue framed in the suit, that the option of renewal of lease after the expiry of the initial period, was void and unenforceable on account of uncertainty and directed the respondent to hand over posssssion of the property after the termination of the original period of lease which had to expire on 1-5-1951. This conclusion was also confirmed by the High Court in the appeal referred to above. In Ex.74/51-52, the petitioners applied to the trial Court for delivery of possession of the property after the expiry of the period fixed in the decree. The executing Court, without notice to the respondent, ordered delivery and this was duly effected on 22-7-1951. The respondent thereupon filed a petition for setting aside the ex parte order and, as a consequence, to restore possession of the property along with some moveables which were represented to have been fixed by him for better enjoyment of the leased premises. He also contended in that petition that the executing Court had no jurisdiction to order delivery of possession of the property without the permission of the Rent Controller, under the then House Rent Control Order, for the reason that the decree actually passed in the original suit partook of the nature of eviction of a tenant by the landlords. That petition was dismissed by the trial Court, and on appeal by the respondent this Court upheld the contention of the judgment-debtor in R.A. No.195/51-52. It is against that order that the petitioners seek a certificate to appeal to the Supreme Court.

4. The learned counsel for the petitioners argued that his clients were entitled to the certificate prayed for, under all the three clauses set forth in Art.133 of the Constitution. The arguments addressed in that behalf will be dealt with seriatim.

5. It is contended that Cl.1(a) of Art.133 is satisfied as the subject-matter of the dispute both in the Court of the original instance and on appeal is over Rs.20,000/- as the moveable items of property said to have been left by the judgment-debtor in the premises, and the restoration of which he claimed, are admittedly valued by him at Rs.26,000/-. The question therefore arises whether the alleged moveables were the subject-matter of the original suit and in the appeal. It may be noticed in this connection that the moveables claimed were admittedly fixed by agreement into the structure of the building, such as water-pipes and electric appliances, which the lessee was entitled to take away at the termination of the lease. It is not denied that the question about moveables was not agitated in the original suit and that only after delivery of the leased property in the execution proceedings they were referred to by the judgment-debtor in I.A. No.I of Ex.74/51-52. The petitioners are alleged to have agreed to the right of the judgment-debtor to take away some of the moveables claimed by them as could be seen by the observation of the learned District Judge in para 10 of his order which runs thus: "As regards the B schedule moveables, the decree-holders also claim a portion of them. The learned counsel for the decree-holders represented that he has absolutely no objection to the judgment-debtor removing the other moveables. If there is any dispute between the parties with respect to any of the moveables mentioned in the B schedule, that is a matter to be decided by separate proceedings." Though the petitioners stated that some of the moveables claimed belonged to them and that they had otherwise no objection to the judgment-debtor removing the other moveables, they have at no time specified the moveables belonging either to them or conceded to the judgment-debtor. In fact, at an earlier stage of arguments in the appeal the petitioners took time to specify the moveables belonging to the judgment-debtor, so as to enable the Court to permit the judgment-debtor to remove them but they failed to do so. No further arguments were addressed at the time the appeal was heard before this Court about the contentions of either party regarding the moveables. All that was decided by us in the appeal was that the moveables then in existence should be restored to the judgment-debtor which obviously referred to the moveable expressly admitted by the petitioners to belong to the judgment-debtor. It is now represented before us by the Judgment-debtor and conceded by the petitioners that a separate suit for the recovery of the said moveables has since been filed and is pending decision. It is thus clear that the moveables referred to were not the subject-matter of dispute in either Court and are since admittedly covered by pending suit yet to be decided.

6. It was next contended with some seriousness that the order in question attracts cl.(b) of Art.133 as the decision involves indirectly a claim respecting the leased property whose undoubted value is far beyond Rs.20,000/-. It will be seen from the earlier portion of this order, that the controversy about the lease of the immoveable property was finally set at rest by an affirming judgment of this Court in R.A.128/48-49, holding that the judgment-debtor should deliver the property after 1-6-1951. As against that decretal direction to evict, after 1-5-1951, the judgment-debtor could have had no defence at all, except the bar of the provisions of the House Rent Control Order. All that the judgment-debtor claimed was that the decree for eviction could not be enforced by a civil Court without the express permission of the House Rent Controller. The question therefore is whether the final order sought to be appealed from, involves a dispute relating to the property of the value of Rs.20,000/- or more. "It is the rights and claims which should be worth Rs.20,000/- and not merely the property to which the rights and claims relate" (vide Commentary on the Constitution of India, by Chitaley, Vol.II, page 1118-19, Note 14). We are therefore unable to appreciate the arguments of the learned counsel that the case falls under cl. (b) of Art.133, since the claim or question involved is not shown to be worth more than Rs.20,000/-.

7. The last and the most important point pressed before us in this case is that in any event, it must be deemed to be a case fit for appeal under cl. (c) of Art.133 on the ground that the decision involves a substantial point of law touching the interpretation of the Constitution itself. It was argued that the bar in execution of a civil court decree is contained in the House Rent Control Order, a local Act, which cannot override the Central Acts such as Civil Procedure Code and the T.P. Act, and when there is a conflict between them the former should give way and the latter should prevail over the local law, by reason of its being repugnant and thus void under Art.254 of the Constitution. This argument, though plausible, is not sound. We have discussed these aspects at some length in our order in appeal R.A.s195/51-52, and it is unnecessary to elaborate them over again. Suffice it to say that S.4, Civil P.C., "gives a local Act local validity and the special procedure therein prescribed validity within its own sphere", the result being that the special procedure prescribed in the House Rent Control Order should be followed in preference to the Provision in the Civil Procedure Code.The other act, viz., the central t.p. act cannot be deemed to have been in force in the State in or about July 1951 when the execution proceedings involved in the dispute took place.Indeed, the Part B States (Laws) Act, 1951, which was enacted on 22-2-1951 came into effect from 1-4-1951 introducing the Central Acts including the T.P. Act into the States from the appointed date; the point of time when the provisions of the t.p. act were extended to the State of Mysore was the first day of October 1951, under the following notification: "No.2676-Cts. 46-51-5, dated Bangalore 12th September 1951. In exercise of the powers conferred by paragraph 4 of S.1, Transfer of Property Act, 1882 (Central Act 4 of 1882) His Highness the Maharaja of Mysore is pleased to extend the provisions of the said Act to the whole of the State of Mysore with effect from the first day of October 1951." This aspect of conflict between the Central Act (T.P. Act) and the local Act (House Rent Control Act) was, on the previous occasion, considered to be very important and occupied much time needless as it now seems) for argument at the Bar. It is obvious that no conflict did exist on 22-7-1951 between the central acts and the local act. It may incidentally be observed that the House Rent Control Act which was adopted by the State Legislature was, during the relevant time of the disputed period, pending the assent of the President of the Union of India, which was given on 16-8-1951.

8. Some other questions of law such as res judicata, acquiescence and consent which were raised by the petitioners and discussed by us in the appeal are not controversial questions as the principles involved therein have long since been settled. What the petitioners questioned in the appeal decided by us and seek to question before the Supreme Court, is not the correctness of the said principles themselves but their application by us to the facts of the present case. Conceding for a moment that the contention of the petitioners that our application of those principles is incorrect, yet the said contention by itself does not warrant the grant of a certificate as the alleged incorrect application is not a sufficient ground to conclude that the case is a fit one for appeal to the Supreme Court as involving a substantial question of law of such general application as to require the highest (Court?) of the realm to adjudicate upon. Amongst several authorities available on this point in the Indian High Courts, Borne of the latest are these: Noor Mahomed v. Sedmal, AIR 1953 Hyd 177 (A); Bishen Singh v. Mt. Kishno, AIR 1952 Punj 191 (B): Chinnaswami Reddiar v. Nallappa Reddiar, AIR 1943 Mad 111 (C); Abdul Majid Khan v. Dattoo Raoji, AIR 1946 Nag 307 (D) and Amrit Lal v. Behari Lal, AIR 1932 Lah 56 (1) (E). In addition, the following extract from the judgment of his Lordship the Chief Justice of the Bombay High Court, reported in - Kaikhushroo Pirojsha v. C.P. Syndicate Ltd., AIR 1949 Bom 134 at p.135(P), may be quoted in extenso and if we may say so with the greatest respect to the Chief Justice it aptly describes the position. "Now, in order to determine this question one or two very fundamental principles have to be borne in mind. The first is that the Court of Appeal in this Province is the final Court; it is the final Court normally and ordinarily. The other principle is that law favours a finality in litigation and that it is only in the special circumstances laid down in the Code, that a litigant is entitled to travel outside the Province and go to the highest Court in the realm, which is now the Federal Court. When the trial Court and the Court of Appeal have concurred in their judgment, it is for the petitioner to satisfy the Court of Appeal, before which he comes for leave to appeal to the Federal Court, that a substantial question of law arises which requires further deliberation and adjudication by the highest Court. Frankly, it is not at all easy to determine what a substantial question of law contemplated by S.110, Civil P.C., is. The only guidance that we have had from the Privy Council is that substantial question is not necessarily a question which is of public importance. "It must be a substantial question of law as between the parties in the case involved. But here again it must not be forgotten that what is contemplated is not a question of law alone; it must be a substantial question. One can define it negatively. For instance, if there is a well-established principle of law and that principle of law is applied to a given set of facts, that would certainly not be a substantial question of law. Where the question of law is not well settled or where there is some doubt as to the priniciple of law involved, it certainly would raise a substantial question of law which would require a final adjudication by the Highest Court." Even otherwise the case is not of sufficient private importance to both the parties in the sense in which it is generally understood so as to deserve consideration on that ground vide - Muthayala Chetty v. Appajiah Setty and sons, ILR (1951) Mys 423 (G). No other case of the nature giving rise to conflict has arisen during the short interval between 1-4-51 and 16-8-51 of the alleged repugnancy of the local law before it received the assent of the President. In the light of the matter discussed above, it can hardly be said that the present case has features which satisfy the requirements of any of the clauses of Art.133 of the Constitution. Leave to appeal to the Supreme Court asked for is, therefore, refused.

9. In conclusion we cannot help remarking that the petitioners have, in our opinion, very needlessly tried to involve themselves and possibly the respondent, in heavy expenditure by intending to take the case to the highest Court in the land occupying its valuable time while they can obtain their remedy without delay nearer home and at a cheaper cost. Their course is obviously very simple. They may, if they so choose, approach the House Rent Controller with a request to permit the Civil Court to execute the decree enabling the petitioners to obtain possession for running a hotel after making out a bona fide case therefor.

10. Before we finally part with the case, we think it our duty to advert to one of the grounds mentioned in the memo of appeal proposed to be filed by the petitioners in the Supreme Court. Ground No.15, though not pressed before us in the arguments, is in the nature of a complaint or a grievance against the High Court, that the petitioners were not permitted to argue their case in appeal in extenso and were merely asked to file a list of authorities, implying thereby that the filing of the list was in substitution of a full argument at the bar. The facts are otherwise. The petitioners were heard in the first instance so early as March 1953 by another Bench of this Court of which one of us was a member, when time was taken by them to furnish some information required by the Court. The appeal then came up again before the present Bench in March of this year, when the petitioners were heard for the greater part of one day and the whole of the second day. While citing a number of decisions during the course of the arguments, the petitioners also submitted that in support of their argument they would file a list of additional authorities to which the Court acceded and they did so. The references mentioned by them in the list were all perused and the important ones, having a bearing on the case under consideration, were duly noticed in the order rejecting their contentions. The suggestion made is therefore baseless.

11. In the result, the petition is dismissed with costs. Advocates fee Rs.100/-. Petition dismissed. (S) AIR 1955 MYSORE 38 (Vol. 42, C.N. 15) "Chikkannaswamy v. Hayat Khan" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) B. Chikkannaswamy and others, Appellants v. Hayat Khan, Respondent. Second Appeal No.131 of 1953, D/- 22 -11 -1954, against decree of Addl. Sub. J., Mysore, in R.A. No.57 of 1951-52. (A) Transfer of Property Act (4 of 1882) - CONTRACT - MORTGAGE - POSSESSION - Acts of part performance - Mortgagee in possession purchasing property - Payment of consideration. If a mortgagee purchaser under an unregistered deed of sale has paid either the whole or part of the consideration, the same can be said to be in pursuance of the contract of sale within the meaning of S.53-A and he can claim the benefit of that section. Case law referred. (Para 7) Anno: T.P. Act, S.53-A N.10. (B) Transfer of Property Act (4 of 1882), S.60 - MORTGAGE - Purchase of equity of redemption by mortgagee - Effect. The effect of a mortgagee purchasing property mortgaged to him is, that the mortgage is extinguished as between the mortgagor and mortgagee; the equity of redemption of the mortgagor is lost and he cannot thereafter claim to redeem the property though the mortgagee may choose to keep it alive for his own defence against a puisne mortgagee. AIR 1953 Mys 122, Rel. on. (Para 8) A receipt given by a mortgagee that a mortgage debt has been satisfied is admissible in proof of the discharge of the mortgage amount and would put an end to the relationship of mortgagor and mortgagee. AIR 1952 Mys 82, Rel. on. (Para 8) Anno: T.P. Act, S.60 N.22. Cases Referred : Chronological Paras (A) (V21) AIR 1934 Rang 304 : 13 Rang 17 4 (B) (V40) AIR 1953 Mad 925 : 1953-1 Mad LJ 812 4, 5 (C) (V39) AIR 1952 Raj 141 : ILR (1951) 1 Raj 918 4 (D) (V41) AIR 1954 Ajmer 70 4 (E) (V37) AIR 1950 Ass 129 4 (F) (41) 45 Cal WN 489 5 (G) (36) 40 Cal WN 1176 5 (H) (V28) AIR 1941 Cal 378 : 45 Cal WN 498 5

(I) (V37) AIR 1950 PC 1 : 1949 PCR 484 (PC) 6 (J) (V11) AIR 1924 Rang 381 : 84 Ind Cas 514 6 (K) (V12) AIR 1925 Mad 965 : 87 Ind Cas 552 6

(L) (V40) AIR 1953 Mys 122 : ILR (1952) Mys 227 8 (M) (V39) AIR 1952 Mys 82 : ILR (1952) Mys 337 8 R. Ramadas, for Nittoor Srinivasa Rao, for Appellants; B.T. Ramaswamy, for Respondent. Judgement

2. Both the Courts below have held that Exs II and III and the consideration receipts which go with them viz. Exs.V and VI, are all genuine; and that the story of the plaintiff that they were taken from him by some kind of fraud is not true. They have also found that the plaintiff must have received consideration as recited in those documents. Exs II and III state that the plaintiff has sold parts of the suit survey number comprised in them for Rs.600/- in each case, and has left Rs.350/- under Ex II and Rs.550/- under Ext III with the defendant in full payment of the mortgage debts in his favour, and has received the balance of Rs.250/- and Rs.50/- respectively of the sale price. They recite further that the whole of the purchase money had thus been received by the plaintiff, that the properties sold were already in the possession of the defendant and that he may enjoy the same peacefully, paying kandayam. On the facts, therefore, there is no doubt that the plaintiff has sold the property to the defendant, agreeing to the purchase money being appropriated towards discharge of the defendants mortgages, and has received the balance of purchase money. The ground, however, on which the plaintiff claims relief in this suit is that in spite of this, he still continues to be the owner of the property and that the defendant has to redeem him while the defendant relies on S.53-A, Transfer of Property Act, to resist the plaintiffs claim.

3. Section 53-A which gives legislative sanction to the equitable doctrine of Part Performance provides that where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.

4. It was urged for the respondent, and that argument has been accepted by the learned Subordinate Judge, that, in this case, the transferee was already in possession, that he merely continued in possession which was not in part performance of the contract of sale, that he had not done any act in furtherance of that contract and that, therefore, S.53-A cannot come to his rescue. Mr. Ramadas, learned Counsel for the appellant, has relied on several cases to contend that in a case like the present where a part of the purchase money had been paid by the purchaser under the documents Exs II and III, such payments constituted his doing some act in furtherance of the contract of sale. - Mathet v. Ma Se Mai, AIR 1934 Rang 304 (A), was a case where the purchaser was already in possession of the property as a mortgagee and then continued to remain in possession after an agreement to sell had been concluded and a portion of the price had been paid in addition to the amount already due on the mortgage. It was held in that case that such payment was an unequivocal act which could not be referred to any other matters than the agreement of sale and as such it was sufficient to satisfy the requirement of S.53-A, that is, that some act must be done in furtherance of the contract. In - Gopalan v. E.V. Kanasan, AIR 1953 Mad 925 (B), a payment described as a demise fee which had been made under the unregistered document was held sufficient compliance with the requirement of S.53 A. That was a case where the defendant was already in possession as a lessee. The document referred to an earlier oral demise, admitted receipt of kanom amount of Re.1/-, and a demise fee of Rs.25/- and proceeded to confer a lease for a period of 12 years under an unregistered document. Ratanlal v. Kishanlal, AIR 1952 Raj 141 (C), was a case very similar to the present. In that case, the plaintiff sued for redemption and the defendant to whom the property had been mortgaged set up an agreement of sale under the terms of which the mortgage debt had been adjusted and some cash was paid to the plaintiff who had agreed to take the balance of purchase money on executing a registered deed of sale. It was held that as the transferee, was already in possession as mortgagee and had paid some amount towards the consideration to the transferor he could claim the benefit of S.53 A and that his suit for redemption was not maintainable. In - Mohan Lal v. Prithvi Raj, AIR 1954 Ajmer 70 (B), which was a similar case it was observed that in many cases the only act open to the mortgagee or the vendee is the payment of the price if he was already in possession. It was not always possible for the mortgagee or the vendee to make substantial alterations in the building to bring himself within the protection of S.53 A. If the payment of the money is made in furtherance of the contract there was no reason why it should not be treated as an act in furtherance of the contract, a view with which I entirely agree. It is indeed difficult to see what more a mortgagee in possession who purchases the property and who cannot therefore be put in possession afresh is bound to do in furtherance of the contract of sale other than securing a registered deed of conveyance. And it is exactly in the case of an omission of that kind that S.53 A applies. The learned Judge who decided that case did not agree with the view to the contrary of Thadani C.J. in - Gopinath Sarma v. Hangeanath Sarma, AIR 1950 Assam 129 (E). In the last mentioned case one of the Judges Ram Labhaya J. took the view that payment of consideration for a transfer could be said to be done as an act in furtherance of the contract.

5. Mr. B.T. Ramaswami, learned Counsel for the Respondent, has relied on - Bharat Chandra Das v. Md. Ramjan Choudhury, 45 Cal WN 489 (P), which has followed an earlier case in - Bahadur Singh v. Rani Jyotirupa, 40 Cal W.N. 1176 (G). The facts of those cases were different. They related to leases and there was no question of any further payments having been made in pursuance of the agreement to lease as was the case in AIR 1953 Mad 925 (B). Moreover, in - Jamadar Singh v. Naiyab Ali, AIR 1941 Ca5 378 (H), it was found as a question of fact that there was no evidence showing that the defendant continued in possession pursuant to the deed. The defendant, it was observed, had said no such thing in his evidence; he had merely failed to pay rent and that did not necessarily mean that he continued in possession in part performance of the contract. In 40 Cal W.N. 1176 (G), which was also a case of lease, it was observed that a person who wishes to reply on S.53 A must show either from the contract itself or from some other evidence that his continuing in possession was pursuant to or in furtherance of the contract of sale.

6. The learned Subordinate Judge has in his judgment relied on some cases which really do not help the plaintiff. In - Subba Rao v. Matapalli Raju, AIR 1950 F.C.1(I), the mortgagee had never been put in possession nor was he allowed to continue to be in possession, actual or constructive and S.53 A could obviously have no application. In - Ma Shwe Kin v. Ka Hee, AIR 1924 Rang 381 (J), the plaintiff sued to redeem a mortgage with possession. The defence was that the plaintiff and her husband, since deceased, had later on received a further sum of money and orally sold the land to the defendants and it was rightly held that where a mortgage is effected by a registered deed and possession of the mortgaged property was transferred to the mortgagee, the mortgage is not extinguished by an oral sale of right of redemption, nor could the doctrine of part performance be applied to such a case. No doubt, the learned Judges go on further to observe that possession of the property was not delivered under the contract of sale but was already with the mortgagee under the mortgage as an additional reason for his conclusion. This latter observation was really not necessary for a decision in that case as an oral sale cannot attract to itself the provisions of S.53 A. In - Dakshinamurtni Mudaliar v. Dhanakoti Animal, AIR 1925 Mad 985 at p.967 (K), Ramesam J. has referred to Pry on Specific Performance at page 279 where it has been observed: "to make the acts of part-performance effective to take the contract out of the Statute of Frauds, they must be consistent with the contract alleged and also such as cannot be referred to any other title than a contract, nor have been done with any other view or design than to perform a contract....................." and held that as the case was one relating to landlord and tenant all the acts of part performance were explainable as evidence of a willingness to continue the tenancy. In those circumstances, the doctrine of part performance could have no applicability.

7. From the above discussion, it is seen that the preponderance of legal opinion is in favour of holding that if a mortgagee purchaser under an unregistered deed of sale has paid either the whole or part of the consideration, the same can be said to be in pursuance of the contract of sale within the meaning of S.53-A and he can claim the benefit of that section.

8. It was urged by Mr. Ramaswamy that in the present case the mortgagee has not made any endorsement of payment on the mortgage bond, nor has he stated unequivocally by any other document that he is not going to enforce the mortgage deeds against the plaintiff or given up his lien on the mortgaged property. In the written statement filed by the defendant he has nowhere stated that the mortgages are still extant or that he is claiming anything from the mortgaged property or the plaintiff. The endorsement on the mortgage deed might have been necessary if the purchaser was different from the mortgagee, and the plaintiff can really have no further interest in the question of discharge or security in the circumstances of this case. If, under the terms of the sale by the plaintiff in favour of the defendant by Exs.II and III, the mortgage debt has already been discharged, there is no further right left in the mortgagor to redeem as the mortgage debt is no longer subsisting. As has been held in - Nanjundasetty v. Venkatachar, AIR 1953 Mys 122 (L), the effect of a mortgagee purchasing property mortgaged to him is, that the mortgage is extinguished as between the mortgagor and mortgagee; the equity of redemption of the mortgagor is lost and he cannot thereafter claim to redeem the property though the mortgagee may choose to keep it alive for his own defence against a puisne mortgagee. See also - Krishnamurthi v. Krishnarao, AIR 1952 Mys 82 (M), where it has been held that a receipt given by a mortgagee that a mortgage debt has been satisfied is admissible in proof of the discharge of the mortgage amount and would put an end to the relationship of mortgagor and mortgagee.

9. For the above reasons, I allow this appeal, set aside the judgment and decree of the learned Subordinate Judge and restore those of the learned Munsiff with costs throughout.

10. In the view I have taken, there is no need to consider the cross-objections which are dismissed but without costs. Appeal allowed. (S) AIR 1055 MYSORE 41 (Vol. 42, C.N. 16) "Mohamed Khasim v. State of Mysore" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) Mohamed Khasim, Petitioner v. State of Mysore by Sales Officer, No.7th Sub Circle Bangalore, Respondent. Criminal Revn. Petn. Nos.113 and 114 of 1954, D/- 10 -8 -1954, against orders of 1st Class Magistrate, Civil Station, Bangalore, in C.C. Nos.1180 and 1181 of 1953, respectively. (A) Criminal P.C. (5 of 1898), S.233 - CHARGE - JOINT TRIAL - Joint trial. Cases tried together as the offences were similar and against the same person - Procedure adopted held was neither illegal nor was it shown that any prejudice had been caused to the accused thereby. (Para 2) Anno: Cr.P.C., S.233 N.1. (B) Mysore Sales Tax Act (46 of 1948), S.14, S.15, S.20, S.22 - SALES TAX - CRIMINAL COURT - Sales Tax - Power of Criminal Court regarding adjudication on validity of tax. A Criminal Court cannot adjudicate upon the validity of the tax under the provisions of the Sales Tax Act. When the assessing, officer has sought the help of the Court under S.20 for enforcement of the demand, the plea put forward by the assessee that he is not liable for taxation is not available to him under S.22, when he does not avail himself of the remedies under Ss.14 and 15. AIR 1951 Mys 70, Rel. on. (Para 4) (C) Mysore Sales Tax Act (46 of 1948) - SALES TAX - WORKS CONTRACT - Sales Tax - Works contract - Power to tax - AIR 1954 Mad 980 - AIR 1954 Mad 1130, Dissented from. The case of the construction of a building comes under the definition of works contract with taxable turnover. The material that is supplied for construction merges in the imrnoveable property and its value has to be apportioned for purposes of taxation, as contemplated in the Sales Tax Act and hence the meaning of sale in the Sales Tax Act can neither be confined nor limited to the meaning of that expression as understood in the Sale of Goods Act. The contract to supply labour and work cannot be taxed under the Sales Tax Act. Where in the absence of proof regarding the exact value of labour expended a reduction of 30 per cent. on the aggregate value of the bills drawn by the assessee for having constructed the building is allowed towards labour by the assessing officer and the balance is adopted as the basis for fixing the turnover for purposes of determining the valise of materials supplied and used in the contracts, this is neither inadequate nor unreasonable. AIR 1954 Mad 9S0; AIR 1954 Mad 1130, Dissented from. (Para 4) Cases Referred : Chronological Paras (A) (V38) AIR 1951 Mys 70 : ILR (1951) Mys 399 : 52 Cri LJ 825 4 (B) (V41) AIR 1954 Mad 1130 4 (C) (V41) AIR 1954 Mad 980 : 1954 Mad.WN 512 4 S. Ranjundaswamy, for Petitioner; Nittoor Srinivasa Rao Advocate-General, for Respondent. Judgement ORDER:- The petitioner who is common to these petitions has been convicted by the First Class Magistrate, Civil Station, Bangalore in C.O. Nos.1180 and 1181/53 on his file and sentenced to pay a fine of Rs.25/- in each case.

2. The prosecution was under S.20, Mysore Sales-tax Act, and related to the default in the payment of sales-tax assessed amounting to Rs.243-11-3 for the year 50-51 and Rs.956-8-3 for the year 49-50. A common plea that he is not liable to pay taxes levied was entered into in both these cases. They were tried together as the offences were similar and against the same pepson. Mr. Nanjundaswamy, on behalf of the petitioner, raised rather faintly, an argument that the joint trial is void. I am unable to appreciate the argument since the procedure adopted is neither illegal nor is it shown that any prejudice has been caused to the petitioner thereby.

3. It is next contended by the learned Advocate for the petitioner, that the petitioner was not afforded adequate opportunity to prove his defence. This contention is not supported by records. The petitioner failed to produce the records offered to the Court as evidence and closed his case by examining one defence witness. He is admittedly a building contractor who has drawn the consolidated bills tendered to the Corporation for having constructed buildings. In the absence of proof regarding the exact value of labour expended a reduction of 30 per cent. on the aggregate value of the bills drawn was allowed towards labour by the assessing officer and the balance was adopted as the basis for fixing the turnover for purposes of determining the value of materials supplied and used in the contracts.

4. It is undisputed that the assessing officer did follow the procedure prescribed under S.12 of the Act in levying the tax under question. In spite of demand notices having been served on the petitioner, the taxes remained unpaid and hence a prosecution was launched. Against the tax levied by the Sales Tax Officer, the assessee has a right to object to the tax under S.14 of the Act. Section 15 provides for revision by Government and a demand for reference to the High Court on a question of law may be availed of by the assessee under S.16 of the Act. He does not appear to have availed himself of the remedies so provided. When the assessing officer has sought the help of the Court under S.20 of the Act for enforcement of the demand, the petitioner has put forward his plea that he is not liable for taxation. That plea was not available to him under S.22 as the court is permitted (sic) to call into question the assessment levied in accordance with the provisions of the Act. It has been held in more than one case by this High Court that a criminal court cannot adjudicate upon the validity of the tax under the provisions of the Sales Tax Act. (Vide - Rama Iyer v. Govt. of Mysore, AIR 1951 Mys 70 (A)). Lastly it was contended that a works contract of the nature is not liable to be taxed under the Sales-tax Act and the learned counsel for the petitioner rested his contention on a recent decision of the Madras High Court. I am referred to the extract in the journal section of 67 Mad LW 72 (- Gannon Dunkerly and Co. v. State of Madras, AIR 1954 Mad 1130 (B)). In that case the Madras High Court has held that the power of taxing works contract under the pretence of sale of goods is ultra vires the Provincial Legislature. In the absence of a full report it is rather difficult to appreciate the applicability of that decision to the facts of the cases under consideration. A month earlier to that decision the same Bench of the Madras High Court dealt with a case of a job printer and it has been reported in - Ramaswami v. State of Madras, AIR 1954 Mad 980 (C). The assessee there was a job printer and tendered bills for printing work making a distinction between the value of printing and also the value of papers supplied separately. The learned Judge observed that if it was the customers paper that was used and if that paper was sold by the printer himself and used for the printing, that sale would be liable to tax, if the total turnover of these sales was above Rs.10,000/-. Regarding another item in the bill shown as a receipt for Civil Court work done, which obviously included the value of paper supplied and the labour involved in printing, the Court remarked that there was no need to apportion the amount between the cost of labour and cost of material deemed to have been sold within the meaning of the definition of "Works contract" as the amount is below the taxable limit. In the latter decision referred to above, full report of which is yet to be published, the assessee was engaged in constructing contracts of all kinds such as buildings, road and bridges, etc. He contended that works contracts, of the nature are not contracts for sale of goods and cannot be brought within the ambit of the Madras General Sales Tax Act. The learned Judges who dealt with that contention observed that the transaction denoted by the expression "sale of goods" in the Sale of Goods Act has a well defined meaning under law and that the power of Provincial Legislature to levy a tax on sale of goods is confined only to the transaction of sale as understood by the Parliament in the United Kingdom in the law relating to sale of goods and any attempt of the Legislature to tax under the guise of such power transactions which are outside it, will be ultra vires and must be declared as invalid. It was also held in that case that contracts which involve labour and work may relate either to chattel or to immoveable properties and that as the contractor is required to supply himself with the materials necessary for producing the things by employing labour and work such contracts are considered in law to be entire and indivisible in the sense that complete fulfilment of promise is a condition precedent for demanding consideration and that the supply of material by the employee or the contractor does not involve any element of sale. In that view the learned Judges concluded that the amendment introduced in 1947 containing a definition of "works contract" including an extension of the concept of sale of goods was ultra vires the Provincial Legislature. It is difficult to follow this reasoning. It will be remembered that earlier the same Judges had held that the case of a job printer who supplied paper for printing the material used may be deemed as, having been sold and that such sale would be liable to tax. Following the same train of reasoning building contract cannot also be considered indivisible any more than a contract to produce a book. The Amending Act takes note of the moveable properties utilised in the works contract and includes the material used for construction of immoveable property in the definition of goods. The Legislature has made its intention very clear and hence necessary changes were also made in the definition of the word sale which provided that sale includes also a transfer of property in goods involved in the execution of a works contract. The new definition that was introduced relating to works contract may basically relate to immoveable property like building, road and bridge or it may relate to moveable property like car, radio, or other articles. The nature of the work may be construction, fitting out, improvement or repair. So the case of either the construction of a building or the repair of a car comes under the definition of works contract with taxable turnover. It is obvious that the material that was supplied for construction merges in the immoveable property and its value has to be apportioned for purposes of taxation, as contemplated in the Sales-tax Act and hence the meaning of sale in the Sales-tax Act can neither be confined nor limited to the meaning of that expression as understood in the Sale of Goods Act. The Mysore Sales-tax Act of 1948 incorporates the amendments of 1947 in the Madras Act. It is not necessary to labour this point further as the petitioner has not raised these grounds in any of the petitions under consideration; besides, as already remarked the particular bills of construction by which he has drawn the amounts from the Corporation were not made available. Indeed, the contract to supply labour and work cannot be taxed under the Sales-tax Act. The contention was once raised by the assessee that he supplied merely labour. That contention is now abandoned. The taxing officer has in the absence of proof allowed a reduction of 30 per cent. from the entire bill amount and this does not appear to be either inadequate or unreasonable. On a consideration of the circumstances, I am of opinion that no cases is made out for interference in either of these petitions.

5. Lastly, the learned advocate urged that the fines levied are rather severe. The amounts of taxes in respect of which there was default in payment are Rs.243-11-3 and Rs.956-6-3 respectively. The Advocate-General who was heard, has left to the Court the consideration of the question of severity of the sentence. Taking all circumstances into consideration, I reduce the amount of fine to Rs.10/- and Rs.20/- respectively in place of Rs.25/- and Rs.25/- respectively imposed by the trial court. The direction for the recovery of tax levied will stand. With the modification of the sentence as indicated above, both the petitions are dismissed. Order accordingly. (S) AIR 1955 MYSORE 43 (Vol. 43, C.N. 17) "Rama Rao v. Dasarathy Rao" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) S. Rama Rao, Appellant v. Dasarathy Rao and others, Respondents. Second Appeal No.476 of 1950-51, D/- 23 -3 -1954, against decree of Addl. Dist. J., Mysore, in R.A. No.105 of 1948-49. (A) Sale of Goods Act (3 of 1930), S.27, Proviso - SALE OF GOODS - Sale of shares through mercantile agent - Purchaser when protected. The delivery of share certificates with the transfers executed in blank, passes not the property in the shares but a title, legal and equitable, which enables the holder to vest himself with the shares without the risk of his right being defeated by the registered owner or any other person deriving title from the registered owner. AIR 1922 Bom 303 and (1890) 15 AC 267, Rel. on. (Para 6) Thus where the mercantile agent delivered the documents of title and also the transfer deed signed by the registered owner, there was nothing in the papers which indicated any reason for suspicion and so far as the buyer could make out, the title was in order, the buyer was satisfied with the correctness of the transaction, paid the money and took the shares. Held that he was a bona fide purchaser of the shares for value without notice of any fraud or of anything defective in the transaction and that he had acted in good faith. (Para 7) Anno: Sale of Goods Act, S.27 N.4, 6. (B) Sale of Goods Act (3 of 1930), S.27 - SALE OF GOODS - Good faith of purchaser - Proof of. Where in a sale of shares through a broker the evidence given by the purchaser shows that there was nothing which could make the purchaser suspect the bona fides of the broker and he had satisfied himself before purchasing that the broker had full authority to sell, the evidence adduced by him shifts the burden on to the owner. AIR 1929 Pat 300, Rel. on. (Para 7) Anno: Sale of Goods Act, S.27 N.4. Cases Referred : Chronological Paras (A) (1908) 1908-1 KB 221 : 77 LJKB 209 5, 6 (B) (1838) 13 AC 333 : 57 LJ Ch 986 6 (C) (1892) 1892 AC 201 : 61 LJCh 732 6 (D) (42) 47 Mys HCR 554 6 (E) (V9) AIR 1922 Bom 303 : 46 Bom 489 6 (F) (1890) 15 AC 267 : 60 LJCH 131 6 (G) (V16) AIR 1929 Pat 300 : 119 Ind Cas 70 7 Nittoor Srinivasa Rao, for Appellant; C.N. Ramamurthy, for Respondents 1 to 3. Judgement

2. Defendant 1 is a broker. Defendant 2 is the purchaser of these shares from defendant 1 and defendant 3 is Sri Krishnarajendra Mills Ltd., to which Company the shares relate. The plaintiffs are three in number. Plaintiff 3 is the widowed mother of plaintiff 2, who is the grand-son of plaintiff 1, Dasarathy Rao. The shares were in the names of plaintiffs 2 and 3 and Dasarathy Rao had deposited prior to 2-2-1947 the two share certificates comprising of 14 shares in the Indian Bank Ltd., Branch Office at Mysore. Defendant 1 is said to have approached plaintiff 1 and offered to sell the shares within a week from 2-2-47 and to pay the amount within that period or return the shares. Dasarathy Rao addressed a letter to the Indian Bank asking them to hand over to Defendant 1 the two share certificates and the relative transfer deed duly signed by the owners of the shares, viz., plaintiffs 2 and 3. Defendant 1 has passed the voucher Ex.N dated 3-2-47 but failed to comply with the alleged agreement entered into by the plaintiffs. In the amended plaint, the plaintiffs asked for a decree against both defendants 1 and 2 for Rs1,182/- with costs and current interest. The trial Court decreed the suit against both the defendants. Defendant 2 having appealed, his appeal was dismissed and he has now preferred this Second Appeal against those decisions.

3. The case for the plaintiffs is that defendants 1 and 2 have colluded and made a common cause to defeat the rights of the plaintiffs to get back the shares. It. is, however, admitted that defendant 2 was dealing with them as a mercantile agent and that since he has not acted in good faith, no title passes to him.

4. Section 27, Sale of Goods Act, lays down that where goods are sold by a person, who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the sellers authority to sell. The proviso makes an exception to this rule and provides that where a mercantile agent is, with the consent of the owner, in possession of the goods or of a document of title to the goods, any sale made by him, when acting in the ordinary course of business of a mercantile agent, shall be as valid as if he were expressly authorised by the owner of the goods to make the same; provided that the buyer acts in good faith and has not at the time of the contract of sale, notice that the seller has no authority to sell. Mr. Ramamurthy, learned counsel for the respondents contended that defendant 1 had no authority on the date of sale to sell to defendant 2 and could not have passed a better title than what he had on 22-2-47, the date of sale. The contention does not appear to be sound. It is admitted that the transfer deed, Ex.I was signed by the parties on 23-1-47 and Exs.II and II(a) which are the share certificates were along with Ex.I the transfer deed in the possession of defendant 1 who passed an acknowledgment marked Ex.N in which there was an undertaking to effect the sale within a week or return the documents and Ex. M is in confirmation of it. There is no evidence to prove that the agreement contained in Ex.N between defendant 1 and the plaintiffs was known to defendant 2. Exhibits M or N do not form part of the relevant documents of title, viz., Exs.I, II and II(a). It cannot be therefore said that the purchaser had notice of the defect in title of defendant 1 on the date of sale.

5. The next point urged was that the transaction between defendants 1 and 2 was not carried on in the ordinary course of business and the learned counsel rested his contention on the observation in - Oppenheimer v. Attenborough and Son, 1908-1 KB 221 (A). Buckley L.J. who formed the Bench with Kennedy L.J. and Lord Alverstone C.J. has observed in that case that to act in the ordinary course of business is to act in such a way as a mercantile agent acting in the ordinary course of business of a mercantile agent would act, that is to say, within business hours, at a proper place of business, and in other respects in the ordinary way in which a mercantile agent would act, so that there is nothing to lead the pledgee to suppose that anything wrong is being done, or to give him notice that the disposition is one which the mercantile agent had no authority to make. It is argued that since defendant 1 has approached defendant 2 and settled the matter, defendant 2 should, as a man of prudence have suspected the authority of defendant 1 to sell. From the facts elicited in this case, there is. nothing to show that the transaction was not done in the ordinary course of business of a mercantile agent; besides, the plaintiffs have admitted that defendant 1 is a mercantile agent: I am unable to agree with the contentions set forth by the respondents that the transferee has not, in the terms of the proviso to S.27, acted in good faith or had at the time of the contract of sale notice that the seller had not the authority to sell.

6. Another English case, viz., - Earl of Sheffield v. London Joint Stock Bank, Ltd., (1888) 13 A.C.333 (B), was cited for the proposition that where a transferee was held to have had reason to believe that the securities sought to be transferred might not belong to the person purporting to transfer, the transaction is taken away from the act of person acting bona fide and in good faith. In that case one S gave to E certificates of railway stock with transfers thereof executed by him in blank, and bonds of foreign companies for the purpose of raising some amount. E gave these securities to M, a money-lender to secure a sum. M deposited the transfers and securities together with other securities of his customers with various banks, as security for large loan accounts running between him and them, the blanks in the transfers of stock being filled up with the names of nominees of the banks. In those circumstances, it was held that the banks in so dealing either actually knew or had reason to believe, that the securities did or might belong not to M but to his customers, and that the purchaser for value without notice was entitled to the value of such of the securities as had been sold by the banks, and to redeem the remainder. This case does not help the respondents as the bank knew the defect in title of M who purported to have pledged those securities. This case is distinguished in - London Joint Stock Bank v. Simmons, 1892 A.C. 201 (C) where it was laid down that a person taking a negotiable instrument in good faith and for value obtains a valid title though he takes from one who had none. A broker in fraud of the owner pledged negotiable instruments together with other instruments belonging to other persons with a bank as a security en bloc for an advance. The Bank did not know whether the instruments belonged to the broker or other persons, or whether the broker had any authority to deal with them and made no inquiries. The Broker having absconded, the bank realised the securities: Held that there being, as a matter of fact, no circumstances to create suspicion, the bank was entitled to retain and realise the securities, having taken negotiable instruments for value and in good faith. As stated above in that case, the securities were in the possession of the broker and he had the transfer deed also. Section 27, Sale of Goods Act, is substantially similar to S.2, Factories Act, 1889. In 1908-1 K.B. 221 (A) Lord Alverstone C.J. observes (at p.228) that: "the preamble of the Factors Act 1842 recites that it is expedient and necessary that owners entrusting agents with the possession of goods should be bound by any contract of pledge in like manner as they would be bound by a contract of sale, that is notwithstanding the pledgee has notice that the pledgor is an agent." In the same case Buckley L.J. states (at page 229) that: "the object of the Act, as regards sale and as regards pledge was that a person who with the consent of the owner, is in possession of goods as a mercantile agent, shall have the same rights of dealing with them as if he were himself the owner. That was the purpose of the Act." In 47 Mys H.C.R. 554 (D) it is observed at page 571 "that the ordinary way of effecting a sale of shares is by handing over the certificates and blank transfers by the seller to the buyer who accepts them and gives the seller the price. The shares become ascertained and the sale is complete, even though the Company may refuse to effect the transfer in the name of the buyer." In -Fazal D. Allana v. Mangaldas, AIR 1922 Bom 303 (E), it is laid down following Colonial Bank v. Cady, (1890) 15 A.C. 267 (F), that "delivery of share certificates with the transfers executed in blank, passed not the property in the shares but a title, legal and equitable, which will enable the holder to vest himself with the shares without the risk of his right being defeated by the registered owner or any other person deriving title from the registered owner". In the present case, the mercantile agent did deliver the documents of title and also the transfer deed signed by the plaintiffs. Defendant 2 in his statement avers that there was nothing in the papers which indicated any reason for suspicion and so far as he could make out, the title was in order. C.S. Rao, the 1st defepdant, was a recognised broker and there was no reason why defendant 2 should start an investigation, when there was really nothing to suspect his bona fides. He states that he was satisfied with the correctness of the transaction, paid the money and took the shares. He is a bona fide purchaser of the shares for value without notice of any fraud or of anything defective in the transaction and he has acted in good faith. In his deposition he states that Ex.I is the transfer deed duly signed by plaintiffs 2 and 3 and Ex.II and Ex.II(a) are the share scripts. He has satisfied himself that these were in order before he purchased the shares, that the holders of the shares had signed the transfer deed, Ex.I that he paid defendant

1 by two cheques one for Rs.800/- and the other for Rs.100/-, that he paid a cash sum of Rs.50/-thus completing full payment of consideration and that he did not know of the existence of any agreement between plaintiffs 2 and 3 and defendant 1. In another portion, he also states that when he looked into Ex.I and Ex.II (1) there was nothing which could excite any suspicion in his mind. In those circumstances he took defendant 1 as the owner and purchased the shares for value.

7. It is argued for the respondents that since defendant 1 wanted financial help he parted with the shares on condition of repurchasing for a lesser sum than what he bargained for, and that circumstance ought to have put defendant 2 on guard to investigate whether the agent had authority to sell. It is undoubtedly true that the transfer deed did not excite any suspicion and defendant 2 and he acted with the full belief that defendant 1 had authority. It was contended that the evidence is not sufficient to show good faith in the purchaser. The decision reported in -Ramdeni Singh v. Gumani Raut, AIR 1929 Pat 300 (G), which was cited by the respondents, lays down that very little evidence, and in certain circumstances a mere denial, regarding want of knowledge of the plaintiffs contract would discharge this onus and shift the burden on the plaintiff. There was indeed nothing which could make defendant 2 suspect the bona fides of defendant 1 and in any event he did satisfy himself before purchasing that defendant 1 had full authority to sell and the evidence adduced by him in the circumstances of the case does shift the burden on to the plaintiffs, who have not discharged the same inasmuch as they have not shown that he had notice of the defect.

8. The Courts below have approached the case from a wrong angle and have held that defendant 2 is not a bona fide purchaser and that the transaction amounts to a pledge and not a sale. I am unable to agree with those findings. The plaintiffs when asked whether they are even agreeable to redeem the shares by payment of the money advanced on the foot of the transaction being a pledge expressed their unwillingness to redeem defendant 2 by paying the sum advanced by him. The transfer which was merely conditional could not be said to have become a pledge on the failure of the condition.

9. In the result, this appeal by defendant 2 is allowed and the judgments and decrees of both the Courts against him are set aside. In the circumstances of the case, defendant 2 and the plaintiffs will bear their own costs throughout. Appeal allowed. AIR 1955 MYSORE 46 (Vol. 42, C.N. 18) "Thimma Reddi v. Dammur" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench )

V. Thimma Reddi and others, Petitioners v. Dammur Gangamma, Respondent. Civil Revn. Petn. No.255 of 1954, D/- 19 -11 -1954, against decree of Dlst. J., Beliary in C.M.A. No.15 of 1950. (A) Criminal P.C. (5 of 1898), S.416 and S.476B - CONTEMPT OF LAWFUL AUTHORITY - APPEAL - APPELLATE COURT - Refusal to make a complaint under S.4.6 - Order reversed in appeal - Appellate Court should itself make a complaint and not direct lower Court to make it. After the disposal of a suit an application under S.476, Criminal P.C., was made by the defendant to prosecute the plaintiff for certain offences in relation to the suit. The successor District Munsiff investigated into the merits and dismissed it on ground that no prima facie case was made out. On appeal, the District Judge re-assessed the same evidence and allowed the appeal by directing the trial Court to lodge the complaint as prayed for, leaving it to the Magistrate before whom it might be filed to hold a preliminary enquiry either by himself or through the police, to enable both sides to produce such additional evidence as they might have relating to the points in issue before the case was taken up on file and proceeded with. Held that the order of the District Judge was illegal and without jurisdiction. The procedure to be followed in a case of complaint by the Court is essentially different from that obtaining in the case of any private person doing it in his own right. It is open to the Court under S.476, Criminal P.C., before which an offence is committed to prefer a complaint, and the special procedure prescribed by S.476 which is supplemental to S.195, constitutes that Court itself as the complainant. Under S.478 the Court enquiring should satisfy itself that it is expedient in the interests of justice to take such action. The policy of law is not to allow private parties to take undue advantage of the right given and misuse that right, to satisfy a private grudge. The Court filing the complaint should form its own opinion and not take the opinion from others secondhand. If the District Munsiff acted or purported to act not of his own accord but at the direction of the District Judge it must be held to be bad and such an act was, by implication, not warranted by the statute. In fact, under S.476B, the superior Court may itself make the complaint which the subordinate Court might have made under S.476. AIR 1929 Cal 195 and AIR 1931 Mad 768, Rel. on. (Para 5) Anno: Criminal P.C., S.476 N.10; S.476B N.3, 4. (B) Criminal P.C. (5 of 1898), S.476B and S.439 - CONTEMPT OF LAWFUL AUTHORITY - REVISION - Revision. Civil P.C. (5 of 1908), S.115. Proceedings under S.476, Criminal P.C., are of a criminal nature irrespective of the fact that the proceedings have arisen from a civil or criminal Court. (Para 6) Where a Civil Court refuses to make a complaint under S.476 and on appeal the Appellate Court directs the lower Court to make a complaint a civil revision under the provisions of S.115, Civil P.C., against the order of the Appellate Court is misconceived. A revision to the High Court lies only on the criminal side and not under S.115, Civil P.C. But whatever be the method adopted in bringing the matter to its attention, the High Court can act in revision under S.439, Criminal P.C. AIR 1931 Lah 761 (FB); AIR 1938 Bom 225 (FB), Rel. on. (Para 6) Anno: Criminal P.C., S.476 N.13. Cases Referred : Chronological Paras (A) (V9) AIR 1922 Mad 495 : 24 Cri LJ 78 (FB) 5 (B) (V16) AIR 1929 Cal 195 : 55 Cal 1277 5 (C) (V18) AIR 1931 Mad 768 : 33 Cri LJ 51 5 (D) (V25) AIR 1938 Bom 225 : 39 Cri LJ 495 (FB) 6 (E) (V18) AIR 1931 Lah 761 : 33 Cri LJ 178 (FB) 6 (F) (V26) AIR 1939 Mad 472 : 41 Cri LJ 705 6 B. Ramachandra Rao, for Petitioners; B.S. Keshava Iyengar, for Respondent. Judgement ORDER:- This petition arises out of an order passed by the District Judge, Beliary, directing the District Munsiff to lodge, a complaint against the petitioners under S.476, Cr.P.C., for offences under Ss.193, 209, 463. 465 and 467, I.P.C. The District Munsiff before whom a petition had been filed under S.478, Cr.P.C., had dismissed it on the ground that no prima facie case was made out to impel him to take action.

2. The facts leading to the said petition are as under: The petition in O.P.4/49 from which this petition arises, was filed before the District Munsiff by the 1st defendant in O.S.145/48 of that Court. The said suit was filed against her for the recovery of the amounts due on a pronote dated 16-5-45 for Rs.2000/- alleged to have been executed by the late Thimma Reddy, her deceased husband. The defendant having opposed the claim the trial Court dismissed the suit for the reason that the pronote was not genuine. The oronote bore genuine signature on the stamps affixed thereon but on the circumstantial evidence available in the case, the court upheld the theory of the defendant that they were the stamps that had already been used for some other document and which are re-affixed to concoct the suit pronote.

3. The suit is said to have been disposed of on 7-10-48. More than three months thereafter, O.P.4/49 was filed by which time, the Judge who bad decided the original suit had left the place. The succeeding Judge investigated into the merits of the evidence and reached the conclusion that it was not a fit case where the Court should lodge a complaint, as there was no direct evidence to make out a prima facie case connecting the counter-petitioners with the alleged concoction of the pronote. On appeal, the District Judge re-assessed the same evidence and allowed the appeal by directing the trial Court to lodge the complaint as prayed for, leaving it to the Magistrate before whom it might be filed to hold a preliminary enquiry either by himself or through the police, to enable both sides to produce such additional evidence as they may have relating to the points in issue before the case is taken up on file and proceeded with. This revision petition has been filed against that order.

4. Mr. B. Ramachandra Rao, for the petitioners, contended that the District Judge had no jurisdiction to pass the order under revision. The contention must be accepted.

5. The procedure to be followed in a case of complaint by the Court is essentially different from that obtaining in the case of any private person doing it in his own right. It is open to the court under S.47G, Cr.P.C., before which an offence is committed to prefer a complaint, and the special procedure prescribed by S.476 which is supplemental to S.195, constitutes that Court itself as the complainant. Under S.476 the Court enquiring should satisfy itself that it is expedient in the interests of justice to take such action (Vide K.V. Muniswami Mudaliar v. Rajaratnam Pillai, AIR 1922 Mad 495 (FB) (A)). The policy of law is not to allow private parties to take undue advantage of the right given and misuse that right, to satisfy a private grudge. It is obvious that the Court filing the complaint should form its own opinion and not take the opinion from others secondhand. If the District Munsiff acts or purports to act, not of his own accord but at the direction of the District Judge it is held to be bad and such an act is, by implication, not warranted by the statute. In fact, under S.476-B, the superior Court may itself make the complaint which the subordinate Court might have made under S.476. That is the effect of the plain reading of the section itself. The order of the District Judge is therefore illegal and without jurisdiction. No decision of this Court touching the point has been brought to my notice. A Division Bench of the Calcutta High Court has held that under S.476-B, Cr.P.C., the appellate Court cannot remand a case directing the Court of first instance to file a complaint but must do so itself (Vide Manir Ahamad v. Jogesh Chandra Roy, AIR 1929 Cal 195 (B). In Kuppaswami Rao v. Sathiapria Rao, AIR 1931 Mad 768 (C), Jackson J. observed that there is no provision of law by which a Sessions Judge can direct the Additional District Magistrate to prefer a complaint under S.476-B and that the superior Court may itself make a complaint.

6. The counsel for the respondent while not disagreeing with the above aspect, suggested that the case might be sent back to the appellate Court to rectify the procedure, and in support of his argument he cited certain cases which were filed and decided under S.115, no, Civil P.C. Latterly, the majority view is chat a revision to the High Court lies only on the criminal side and not under S.115, Civil P.C. Revision may arise either on the civil side or on the criminal side. Irrespective of the denomination of the Court dealing with the alleged offence it is only under the specific powers invested under S.47d, Cr.P.C., that the preliminary enquiry is started. For the purpose of that section, a civil or revenue Court is empowered as the Criminal Court. The decisions holding that as a civil Court of appeal, the cases may be remanded to the trial Court are no longer countenanced. In Emperor v. Bhatu, Sadu Mali, AIR 1938 Bom 225 (FB)(D), it has been laid down that an application for revision from an order under S.476, Cr.P.C., by a Civil Court to the High Court should be heard and decided by the High Court, in accordance with the provisions of S.439 of that Code, that the order being an order made by a Court exercising criminal powers, such powers, to revise such order arises under the Cr.P.C. and not under S.115, C.P.C. Similar is the opinion of the Lahore High Court (Vide Dhanpat Rai v. Balak Ram, AIR 1931 Lah. 76 (FB)(E), that irrespective of whether the trial Court be civil or criminal or revenue the procedure of appeal under S.476-B is a procedure only under the provisions of Cr.P.C. It is further observed that an appellate Court cannot remand a case to the trial Court but can itself make an enquiry into the case, when it comes to the conclusion either that the trial Court has made no preliminary enquiry at all, or has made a defective enquiry, and take all evidence that is necessary for completing the preliminary enquiry. The Madras High Court has followed these decisions (Vide In re D.S. Raju Gupta, AIR 1939 Mad 472 (F)). I respectfully agree with those decisions and hold that the nature of the proceedings to hold an enquiry in order to lodge a complaint is of a criminal nature irrespective of the fact that the proceedings have arisen from a civil or a criminal Court. It is doubted at this stage whether this Court could deal with this revision petition at all as it is filed under S.115. Civil P.C. The provision of the law under which the petition is filed, is, in the view I have taken, obviously incorrect. Whatever be the method adopted in bringing the matter to its attention, the High Court can act in revision under S.431. Cr.P.C. as observed by Beaumont C. J. in the Full Bench case of the High Court of Bombay referred to above.

7. It may finally be observed that the pronote alleged to have been concocted is dated 16-5-45; the order of the trial Court is of the year 1948 find that of the appellate Court is of 1950. It appears to me that at this distance of time it is futile to think of prosecuting the parties on mere suspicious circumstances, especially as the Court of the first instance has found that the facts are too insufficient to warrant a prima facie conclusion that there is likelihood of conviction of the concerned parties, if the prosecution is launched. In any view of the case, the order of the District Judge is unsustainable and is set aside. The revision petition is allowed confirming the order of the Court of first instance. Revision allowed. AIR 1955 MYSORE 48 (Vol. 42, C.N. 19) "Srinivasiah v. Thayamma" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Srinivasiah, Petitioner v. Thayamma, Respondent. House Rent Control Revn. Petn. No.112. of 1954, D/- 19 -10 -1954, against order of 1st Addl. Dist. J., Bangalore, D/- 19 -11 -1953. Mysore Houses Rent and Accommodation Control Act (30 of 1951), S.8, Cl.5(b) - HOUSES AND RENTS - ACCOMMODATION CONTROL - TENANCY - Houses and Rents - Tenants application to be put back in possession after repairs - Maintainability - Tenants proper remedy. Before the tenant claims to be put in possession of the house after the repairs Cl.5(b) of S.8 requires that he should have fulfilled the condition of the order and vacated the house within the time fixed. Where, therefore, the tenant was directed to vacate the premises by 1-11-52, but he did not vacate the building on that date and had to be expelled later on by a coercive process: Held, that he was not entitled to apply for being put in possession of the property after the repairs: Held further, that the remedy for a tenant, who has obtained an order under S.8, Cl.5(c) for being put in possession of the property which he has vacated, is by filing an application under the said section. As no such application had been filed by the tenant, but on the other hand he filed an application for review of an order, to which he was not a party, the application was not maintainable. (Para 1) C. Nagaraja Rao, for Petitioner; K.R. Gopivallabha Iyengar, for Respondent. Judgement ORDER:- This revision petition is against the order of the learned First Additional District Judge, Bangalore, in H.R.C. Appeal No.90 of 1953, setting aside the order of the Additional Munsiff and House Rent Controller, Corporation Area, Bangalore, in H.R.C. Petition No.224/ .ACC(B)/1953 that the petitioner should be put in possession of the premises of which he was formerly a tenant, but had to vacate as the respondent-landlady had to effect some repairs. This High Court in its order dated 1-9-1952 in H.R.C. Revision Petition No.047/51-52 directed that the present petitioner should vacate the premises by 1-11-52 and that he should be put back in possession of the property within two months from that date. It has to be noticed that the petitioner did not vacate the building on 1-11-52, but had to be expelled later on by a coercive process. As such, as contended by the learned Advocate for the respondent, he is not entitled to apply for being put in possession of the property. It will be noticed that, according to S.8, Cl.5(b), Mysore House Rent Accommodation Control Act, 1951, "if the tenant delivers possession on or before the date specified in the order, the landlord shall, on the completion of work of repairs place the tenant in occupation of the house or part thereof on the original terms and conditions without prejudice however to the landlords claim for enhancement of rent, if any, admissible under this Act in view of the repairs effected to the house." As such it is clear that before the tenant claims to be put in possession of the house after the repairs he should have fulfilled the condition of the order and vacated the house within the time fixed. It was contended by the learned Advocate for the petitioner that he could have got the time, fixed by the Court, extended under S.148, Civil P.C. But that point does not arise for consideration as he did not get the time extended. There is one other point which the lower Court has not taken into consideration. That point is that the remedy for a tenant, who has obtained an order under S.8, Cl.5(e) for being put in possession of the property which he has vacated, is by filing an application under the said section, which is as follows: "If, after the tenant had delivered possession on or before the date specified in the order, the landlord fails to commence the work of repairs within one month of the specified date or fails to complete the work within a reasonable time or having completed the work fails to place the tenant in occupation of the premises in accordance with Cl.(b), the Court may on the application of the tenant made within one year of the specified date order the landlord to place him in possession of the house or part thereof on the original terms and conditions and on such an order being made, the landlord or any person who may be in occupation shall give vacant possession to the tenant of the house or portion thereof." The lower Court should have noticed that no such application has been filed by the petitioner. On the other hand he filed an application for review of an order, to which he was not a party, allotting the premises to other persons. The application is not maintainable and should have been dismissed by the Rent Controller. The learned District Judge was right in setting aside the order allowing the application for review though it is difficult to agree with the reasons given by him.

2. This revision petition stands therefore dismissed. It will however be noticed that the points of law referred to above were not pressed and they have not been taken into consideration by the Courts below. Considering this circumstance the parties will bear their own costs throughout. Petition dismissed. AIR 1955 MYSORE 49 (Vol. 42, C.N. 20) "City Tobacco Mart v. I.-T. Officer" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND MALLAPPA, J. ( Division Bench ) City Tobacco Mart, Avenue Road, Bangalore City and others, Petitioners v. Income-tax Officer, Urban Circle, Bangalore, Respondent. Civil Petns. Nos.52 and 53 of 1953 and Writ Petns. Nos.105 and 106 of 1954, D/- 14 -12 -1954. (A) Finance Act (25 of 1950), S.13 - FINANCIAL PROVISIONS - INCOME-TAX - Assessment - Does not include power to re-open assessment under S.34, Mys I. Tax Act. Mysore Income-tax Act (5 of 1923), S.34. Indian Income-tax Act (1932), S.34. AIR 1954 Trav-C 137 (FB), Dissented from. Section 13, Indian Finance Act which repeals the Mysore Income-tax Act does not save S.34 of that Act so as to entitle the Income-tax Officer to re-open under its S.34 pre-integration assessments. AIR 1938 PC 175 - AIR 1936 Lah 897, Rel. on. AIR 1954 Trav-C 137 (FB), Dissented from. (Para 14) The omission of the word re-assessment in S.13, Finance Act, must be deemed to be intentional as it was necessary to implement the recommendations of the Indian States Finance Inquiry Committee and the Agreement between the President and the Rajpramukh. The absence of the word reassessment in the section makes it incompetent for the Income-tax Officer to issue notices for the purpose of re-assessing under S. 34, Mysore Income-tax Act, the escaped income of the petitioner for the year 1949-50. (Para 16) Per Mallappa J.: The Indian Income-tax Act as well as the Mysore Income-tax Act clearly refer to assessment and re-assessment in S.34 and if it was intended that for purposes of recovering re-assessment the Mysore Income-tax Act should subsist even after the Indian Income-tax Act came into force, that fact would have been clearly stated in S.13 of the Indian Finance Act. The fact that S.13 refers only to assessment and not to re-assessment makes it clear that what was intended is to secure finality of completed proceedings under the Mysore Income-tax Act and not permitting re-opening of completed proceedings for re-assessment under S.34 of the Mysore Income-tax Act. (Para 23) (B) Mysore Income-tax Act (5 of 1923), S.34 - INCOME-TAX - WORDS AND PHRASES - Assess and reassess - Meaning: of. Words and Phrases. Income-tax Act (11 of 1922), S.34. section 34 of the Mysore Income-tax Act deals with two kinds of cases. One is a case of first assessment and the other is a case of re-assessment. That is why both the words assess and re-assess are used in S.34. When no assessment has at any time been made under Ss.22 to 33, it is a case for the Income-tax Officer to assess. If he has already passed an order of assessment in proceedings under Ss.22 to 33, the question of re-assessing arises either because a portion of the income has escaped assessment or the entire income has been assessed at a low rate. In other words, the word assess in S.34 is used for assessment under S.34 when an assessee has not been previously assessed, and the word re-assess is used when the assessee has been once assessed and has to be re-assessed either because a portion of his income has escaped assessment or because he has been assessed at too low a rate. (Para 22) Anno: I. Tax Act, S.34 N.1. (C) PRECEDENT - INTERPRETATION OF STATUTES - INCOME-TAX - PREAMBLE - Precedents - Matters of common policy - Decision of other High Courts. Interpretation of Statutes - Fiscal Statutes. Income-tax Act (11 of 1922), Pre.. Civil P.C. (5 of 1908), Pre.. The Courts should ordinarily follow a decision of another High Court in matters such as income-tax when it is desirable to lay down a common policy. But where the wording of the section is not clearly in favour of a decision against the tax-payer and it is, to say the least, a case of doubt, the statute has to be interpreted in favour of the subject when the Court is dealing with a case of fiscal enactment. AIR 1946 Nag 216, Ref. (Para 26) Anno: C.P.C., Pre. N.15. (D) Civil P.C. (5 of 1908), Pre. - PREAMBLE - INTERPRETATION OF STATUTES - Interpretation of statutes - Reference to objects and reasons. Though the objects and reasons for the enactment of a statute may not be looked into when the wording of a statute is clear, it is not unusual to rely on the objects and reasons for its enactment when the meaning of the words of the section is open to more than one interpretation. (Para 27) Anno: C.P.C., Pre. N.7. (E) Finance Act (25 of 1950), S.13 - FINANCIAL PROVISIONS - CONSTITUTIONALITY OF AN ACT - LEGISLATION - CESS - AGREEMENT - Validity - Contravention of agreement between the President and the Rajpramukh. Constitution of India, Art.245, Art.265 and Art.278. Per Mallappa J.: Courts cannot avoid taking note of the object of the Finance Act, 1950 as found in the agreement between the President and the Rajpramukh of Mysore as the agreement is one recognised by the Constitution and if S.13 of the Finance Act is not in accordance with the agreement it is open to the objection that it is constitutionally bad. (Para 27) Cases Referred : Chronological Paras (A) (V25) AIR 1938 PC 175 : ILR (1938) Bom 487 (PC) 9, 12, 25 (B) (V21) AIR 1934 PC 30 : 61 Ind App 10 : 61 Cal 285 (PC) 9, 10, 25 (C) (V23) AIR 1936 Lah 897 : 168 Ind Cas 181 10, 25 (D) (V41) AIR 1954 Trav-C 137 : ILR (1953) Trav-C 1232 (FB) 11, 28 (E) (V41) AIR 1954 Cal 564 : 1954-26 ITR 637 13, 25 (F) (V40) AIR 1953 Trav-C 526 : ILR (1953) Trav-C 623 24 (G) (V38) AIR 1951 Raj 94 (2) : 1951-20 ITR 214 24 (H) (V40) AIR 1953 Bom 441 : ILR (1954) Bom 212 24

(I) (V33) AIR 1946 Nag 216 : ILR (1946) Nag 674 26 O.B. Motaiya (in Civil Petns. Nos.52 and 53/53) and A.R. Somnath Iyer (in W.P. Nos.105 and 106/54), for Petitioners; D.M. Chandrasekhar for C.R. Ethirajulu Naidu, for Respondent. Judgement MEDAPA, C. J.:- The petitioners in these four petitions pray under the provisions of Art.226 of the Constitution for the issue of a writ or prohibition against the respondents from proceeding with the enquiry pursuant to the notice under S.34, Mysore Income-tax Act or in the alternative for a writ of certiorari, for quashing the said notice.

2. The impugned proceedings were initiated by the Income-tax Officer, Urban Circle and by the Special Income-tax Officer, Bangalore, on 15-3-1951, 29-3-1952, 2-12-1953 and 24-2-1954 respectively for the purpose of assessing under S.34, Mysore Income-tax Act, the escaped income of the petitioners. The petitioners contend that the Income-tax Officer had no jurisdiction or authority to start such proceedings. The argument in support of this contention is two-fold: (1) that section 34 of the Mysore Income-tax Act stood repealed on and from April 1, 1950 and that therefore the notice issued under that section by the Income-tax Officer after its repeal was without authority, and (2) that even otherwise, the agreement made between the President of India and the Rajpramukh of Mysore on February 2, 1950 under Art. 278 of the Constitution of India forbade the initiation of such proceedings. It would be necessary to state certain admitted facts to understand and appreciate the contentions put forward on either side. A Committee known as the Indian States Finances Enquiry Committee was appointed by the Union Government to examine and report among other matters - (5) Apart from the constitutional requirements in connection with the integration of federal finances in State - Vide paragraphs 37 and 40 of Part I of our Report - certain important issues of a legal nature will arise in connection with the actual taking over of federal subjects in the States by the Centre. This is a difficult subject upon which we are not qualified to offer competent advice. We have endeavoured, however, to indicate below the main features of what we conceive will be required in order to establish continuity of proceedings in regard to all federal subjects- whether relating to revenues, expenditure or Service Departments - at the point of their transition from the States to the Centre,....... (a) Almost every federal subject is dealt with in the States as in the rest of India, under powers conferred by appropriate legislation consisting of relevant Codes, Acts, Ordinances and Statutory Rules and Regulations. Subject to the limitations indicated below, - which are designed to secure legal continuity of pending proceedings and finality and validity of completed proceedings under the pre-existing State legislation - we think the whole body of State (a) on the desirability of integrating Federal Finance in Indian States and Union of States with that of the rest of India for the purpose of establishing a uniform system of Federal Finance throughout what then was the Dominion of India; and (b) as regard the legislative ground work and the administrative organisation necessary for the imposition, assessment and collection of Federal Taxes. The said Committee made its report to the Government of India on 22-7-1949 in which it recommended among other matters that when the Federal Financial Integration came into effect, the items of Central Revenues specified on page 13 of Part I of the Report should be taken over from the States by the Central Government - Item 2 in that list being income-tax. On the date of this report, income-tax in Mysore was being levied and collected under the then existing State law, viz., the Mysore Income-tax Act, 1923.

3. The President of India after the commencement of the Constitution, that is to say, on 28-2-1950 entered into an agreement with the Rajpramukh of Mysore under Arts.278, 291, 295 and 306 of the Constitution of India, by which, subject to certain modifications, they accepted the recommendations of the Indian States Finances Enquiry Committee (which will hereafter be referred to as the Committee) contained in Part I of its Report read with Chapters I, II and III of Part II of its Report in so far as they applied to Mysore, together with the recommendations contained in Chapter IV of Part II thereof. In the annexure to Part I of their Report, the Committee made the following recommendation: "III. Technical matters relating to income-tax. Matters affecting most federal subjects including taxes on income. 9. Our suggestions concerning certain legal and other matters general importance, affecting most federal subjects (including taxes on income) which will arise in connection with federal financial integration in all States, have been set out in Paragraph 11 of Chapter II in Part II of our Report. Those relating to legal matters are, however, reproduced below for convenient reference: legislation relating to federal subjects should be repealed and the corresponding body of Central legislation extended proprio vigore to the States, with effect from the prescribed date or as and when the administration of particular federal subjects is assumed by the Centre. (b) For the above purpose, as well as for future federal administration in States, it may be necessary specifically to extend not merely the legislative, but also the executive and administrative competence of the Centre, its officers and authorities, and the judicial authority of its Courts, to the territories of the States. (c) Such State Courts (except Courts of final appeal from orders of the State High Courts) as may in fact correspond to particular grades and classes of British Indian Courts (Civil and Criminal) may have to be statutorily recognised as corresponding judicial authorities for purpose of dealing with cases arising in the States under the federal laws of the Union of India; and the Supreme Court in India will have to be made the Court of final appeal from decisions of the State High Courts to the same extent as in the case of Provincial High Courts. (d) Those sections of the various Indian Acts and Ordinances which set out their territorial extent of application will require amending so as to include State territories with effect from the prescribed date. (e) It will be necessary to provide that all matters and proceedings pending under, or arising out of, the pre-existing State Acts shall be disposed of under those Acts, by so far as may be, the corresponding authorities, (nominated by the Chief Executive Authority) under the corresponding Indian Acts." The recommendations contained in this Part of the Report are also reiterated in other Parts of it to which it is unnecessary to refer.

4. The Parliament thereafter enacted the Indian Finance Act 1950, to which the President accorded his assent on 31-3-1950. The financial integration of the State of Mysore with the Union of India came into effect on and from 1-4-1950. By S.3 of this Act, the Indian Income-tax Act was extended to the whole of India except the State of Jammu and Kashmir and by S.13, the income-tax laws in force in Part B States before 1-4-1950, were repealed except for a limited purpose. Section 13 runs: "13(1) If immediately before the 1st day of April 1950 there is in force in any Part B State other than Jammu and Kashmir or in Manipur, Tripura or Vindhya Pradesh or in the merged territory of Cooch-Behar any law relating to income-tax or super-tax or tax on profits of business, that law shall cease to have effect except for the purposes of the levy, assessment and collection of income-tax and super-tax in respect of any period not included in the previous year for the purposes of assessment under the Indian Income-tax Act, 1922 (XI of 1922) for the year ending on the 31st day of March 1951, or for any subsequent year, or, as the case may be, the levy, assessment and collection of the tax on profits of business for any chargeable accounting period ending on or before the 31st day of March 1949: * * *" The position therefore was that after 1-4-1950, the provisions of the Mysore Income-tax Act could not be used by the income-tax authorities for any purpose other than the levy, assessment and collection of income-tax and super-tax, in respect of the pre-integration period.

5. The respondents contend that the purpose of the proceedings started against the petitioner under S.34, Mysore Act, was to make an assessment of the petitioners escaped income within the meaning of the word assessment occurring in S.13, Finance Act and the proceedings are, therefore, competent. The petitioner contends that the assessment provided for by S.13, Finance Act, refers only to an assessment to be made under S.23, Mysore Act, and not to proceedings under S.34. It is urged that under S.34, the Income-tax Officer does not make an assessment but re-opens an assessment already made and: completed. If this contention is correct, the proceedings initiated by the Income-tax Officer under the Mysore Act would be without jurisdiction or authority for, S.13, Finance Act, does not save the Mysore Act for that purpose.

6. The soundness of the contention urged on either side depends, therefore, on the meaning of the word assessment occurring in S.13 of the Finance Act. According to the petitioners, assessment proceedings under the Mysore Act commence under S.23 and become complete when the Income-tax Officer serves on the assessee a notice of demand under S.29 of the Act. To appreciate this contention it would be necessary to refer here to Ss.23, 27, 30, 31 and 34 of the Mysore Act. These sections run: "23(1) If the Income-tax Officer is satisfied that a return made under S.22 is correct and complete, he shall assess the total income of the assessee and shall determine the sum payable by him on the basis of such return. (2) If the Income-tax Officer has reason to believe that a return made under S.22 is incorrect or incomplete, he shall serve on the person who made the return a notice requiring him on a date to be therein specified either to attend at the Income-tax Officers office or to produce, or to cause to be there produced, any evidence on which such person may rely in support of the return. (3) On the day specified in the notice issued under sub-s. (2), or as soon afterwards as may be, the Income-tax Officer, after hearing such evidence as such person may produce and such other evidence as the Income-tax Officer may require, on specified points, shall by an order in writing, assess the total income of the assessee, and determine the sum payable by him on the basis of such assessment. (4) If the principal officer of any company or any other person fails to make a return under sub-s. (1), or sub-s. (2) of S.22, as the case may be, or fails to comply with all the terms of a notice issued under sub-s. (4) of the same section or, having made a return, fails to comply with all the terms of a notice issued under sub-s. (2) of this section, the Income-tax Officer shall make the assessment to the best of his judgment.

27. Where an assessee or, in the case of a company, the principal officer thereof, within one month from the service of a notice of demand issued as hereinafter provided, satisfies the Income-tax Officer that he was prevented by sufficient cause from making the return required by S.22, or that he did not receive the notice issued under sub-s. (4) of S.22, or sub-s. (2) of S.23, or that he had not a reasonable opportunity to comply, or was prevented by sufficient cause from complying, with the terms of the last mentioned notices, the Income-tax Officer shall cancel the assessment and proceed to make a fresh assessment in accordance with the provisions of S.23. 30.(1) Any assessee objecting to the amount or rate at which he is assessed under S.23 or S.27, or denying his liability to be assessed under this Act, or objecting to a refusal of an Income-tax Officer to make a fresh assessment under S.27, or to any order against him under sub-s. (2) of S.25 or S.28, made by an Income-tax Officer, may appeal to the Deputy Commissioner against the assessment or against such refusal or order: Provided that no appeal shall lie in respect of an assessment made under sub-s. (4) of S.23 or under that sub-section read with S.27. (2) The appeal shall ordinarily be presented within thirty days of receipt of the notice of demand relating to the assessment or penalty objected to, or of the date of the refusal to make a fresh assessment under S.27, as the case may be; but the Deputy Commissioner may admit an appeal after the expiration of the period if he is satisfied that the appellant had sufficient cause for not presenting it within that period. (3) The appeal shall be in the prescribed form, and shall be verified in the prescribed manner. 31.(1) The Deputy Commissioner shall fix a day and place for the hearing of the appeal, and may from time to time adjourn the hearing. (2) The Deputy Commissioner may before disposing of any appeal, make such further inquiry as he thinks fit, or cause further inquiry to be made by the Income-tax Officer. (3) In disposing of an appeal, the Deputy Commissioner may, in the case of an order of assessment,- (a) confirm, reduce, enhance, or annul the assessment; or (b) set aside the assessment and direct the Income-tax Officer to make a fresh assessment after making such further inquiry as the Income-tax Officer thinks fit or the the Deputy Commissioner may direct and the Income-tax Officer shall thereupon proceed to make such fresh assessment; or in the cases of an order under sub-section (2) of section 25 or section 28, (c) confirm, cancel or vary such order: Provided that the Deputy Commissioner shall not enhance an assessment unless the appellant has had a reasonable opportunity of showing cause against such enhancement.

34. If for any reason, income, profits or gains chargeable to income-tax has escaped assessment in any year, or has been assessed at too low a rate, the Income-tax Officer may, at any time within four years of the end of that year, serve on the person liable to pay tax on such income, profits or gains, or in the case of a company, on the principal officer thereof a notice containing all or any of the requirements which may be included in a notice under subsection (2) of section 22, and may proceed to assess, or re-assess such income, profits or gains, and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section: Provided that the tax shall be charged at the rate at which it would have been charged, had the income, profits or gains, not escaped assessment, or full assessment, as the case may be."

7. The petitioner contends that it is S.23, Mysore Act that confers the power on the Income-tax Officer to make an assessment and that the words "cancel the assessment" occurring in S.27, and "set aside the assessment" occurring in S.31 of the Act, support the view that the issue of a demand notice under S.29 of the Act completes the assessment and that the proceedings thereafter do not form part of it. The respondents urge that all proceedings initiated by the Income-tax Officer for the determination of the taxable income and the tax payable thereon, whether under S.23 or S.34 of the Act have to be regarded as assessment proceedings, and support for this view is sought to be derived from the words "assess or re-assess" used in S.34 of the Act.

8. It is significant that the word "re-assessment" is not found in S.13, Finance Act. It is true that S.34, Mysore Act, provides for the taxation of income which has either escaped assessment or has been assessed at too low a rate. The argument for the respondents is that when an Income-tax Officer deals with an escaped income under S.34 of the Act, he assesses it and when he deals with an income which had been assessed at too low a rate he re-assesses it. That is the explanation offered for the use of the words "assess or re-assess" in S.34 of the Act. If that can be a correct explanation, it would still have to be explained why S.13, Finance Act which, according to the respondents, saves S.34, Mysore Act for the assessment of escaped income did not save it for the purpose of re-assessing income which had been assessed at too low a rate. The intendment of the Act could not be to save only a part of S.34 of the repealed Mysore Act, and not the whole of it.

9. The decision of the Privy Council reported in - Commr. of Income-tax, Bombay v. Messrs. Khemchand Ramdas, AIR 1938 PC 175 (A) seems to support the contention of the petitioner that the word assessment used in S.13, Finance Act refers only to an assessment under S.23, Mysore Act and not to proceedings under S.34. In their judgment, their Lordships of the Privy Council have observed as follows: "* * * * In order to answer them, it is essential to bear in mind the method prescribed by the Act for making an assessment to tax, using the word assessment in its comprehensive sense as including the whole procedure for imposing liability upon the tax-payer. The method consists of the following steps. In the first place, the taxable income of the tax-payer has to be computed. In the next place, the sum payable by him on the basis of such computation has to be determined. Finally, a notice of demand in the prescribed form specifying the sum so payable has to be served upon the tax-payer. The second of these steps involves the determination of two sums, namely the sum payable for income-tax and the sum payable for super-tax. The notice of demand in the prescribed form also provides for the sums payable for income-tax and super-tax being specified separately. Considerable discussion accordingly took place before the High Court on the question whether a demand for super-tax in order to be valid ought to be made simultaneously with the demand for income-tax. Aston, A.J.C. considered that the demand for super-tax should be made within a reasonable time of the assessment for income-tax, meaning no doubt, by assessment the service of the notice of demand for income-tax which normally completes the assessment. Rupchand Bilaram A.J.C. was of opinion that the demand for super-tax should be made within a reasonable time, and therefore almost simultaneously with the demand for income-tax. Both of them held for this reason (amongst others) that the service of the notice of demand of 4th May 1929 was illegal and inoperative to impose liability upon the respondents. Their Lordships do not find it necessary to express any opinion upon this point inasmuch as in their view and for the reasons which they will now proceed to give it does not call for determination in the present case. It had been argued on behalf of the appellant that the Act nowhere imposes any limit of time within which an assessment under the provisions of Ss.23 and 29 is to be made, and that the service of the notice of demand can therefore be made at any time. This is true. It had, in effect, been so determined by this Board in - Rajendra Nath Mukerjee v. Commr. of Income-tax, AIR 1934 PC 30 (B). But it is not true that after a final assessment under those sections has been made, the Income-tax Officer can go on making fresh computations and issuing fresh notices of demand to the end of all time. It is possible that the final assessment may not be made until some years after the close of the fiscal year. Questions of difficulty may arise and cause considerable delay. Proceedings may be taken by way of appeal and cause further delay. Until all such questions are determined and all such proceedings have come to an end there can be no final assessment. But when once a final assessment is arrived at, it cannot, in their Lordships opinion be reopened except in the circumstances detailed in Ss.34 and 35 of the Act (to which reference is made hereafter) and within the time limited by those sections. In the present case, the liability of the respondents both for income-tax and for super-tax was determined by the Income-tax Officer on 17th Jan. 1927. In the order made by him on that date he assessed the respondents to income-tax at the maximum rate, but as the respondents were at that time a registered firm he held, as he was bound to hold, that no super-tax was to be levied. On some date before the end of March 1927, he served on the respondents a notice of demand for the tax that he had determined was properly leviable. The assessment having been made under section 23(4) no appeal lay in respect of it. The assessments of the respondents was therefore final both in respect of income-tax and super-tax. Their liability in respect of both taxes had been finally determined, and none the less because the question of their liability to super-tax had been determined in their favour. It was, indeed, contended before their Lordships that the assessment could not be regarded as having been determined inasmuch as the Commissioner might at any time, and apparently after any lapse of time however long, cancel the registration of the respondents as a registered firm and so subject the respondents to liability to pay super-tax. Their Lordships would, in any case, hesitate long before acceding to a contention that would lead to so extravagant results." The view taken by the Privy Council was that an assessment became complete when the Income-tax Officer determined the amount due by the assessee and issued a notice of demand under S.29. The mere fact that the Commissioner of Income-tax could exercise his powers of revision under S.33 of the Income-tax Act or that the Income-tax Officer at any time within one year from the date of any demand may make rectifications and correct mistakes in his assessment did not make the assessment under S.23 of the Act any the less final or the proceedings under the Income-tax Act incomplete.

10. The Lahore High Court in a case reported in - Nawal Kishore v. Commr. of Income-tax, AIR 1936 Lah 897 (C) took the view that an assessment is concluded when the amount of tax payable by the assessee has been determined and a demand notice issued to him. On p.900 while referring to another Privy Council case reported in AIR 1934 PC 30 (B) they said as follows: "It must however be remembered that this observation was made by their Lordships to repel the contention raised on behalf of the appellant to the effect that assessment is a definite act and that if an assessment is not made on income within the tax year, then that income has escaped assessment within that year and can be subsequently assessed only under S.34 within its time limitation. In that case no order of assessment had ever been made against Burn and Co., and their income had at one time been included in the income of Martin and Co. and, thereafter excluded from such assessment. What was really decided in that case was that an assessment can be made under S.23(1) of the Act, more than a year, in fact at any time, after the assessment year, if in the meantime no final assessment has been made. AIR 1934 PC 30 (B) does not justify an inference that an assessment is not concluded when the amount of tax payable by the assessee has been determined and a demand notice issued to him. The use of the words Cancel the assessment, make a fresh assessment, and annul or enhance the assessment in Ss.27, 30 and 31 shows that the proceedings after the issue of the demand notice do not form part of the assessment......"

11. The respondents rely on a decision of a Travancore-Cochin High Court reported in - Lekshmana Shenoy v. Income-tax Officer, AIR 1954 Trav-C 137 (FB) (D) in support of their contention that the word assessment in S.13, Finance Act, includes proceedings under S.34, Income-tax Act. The only discussion in the judgment on this question is contained in paragraph 10 of the judgment which runs: "(10) Point (b): Both the words assessed and re-assessed occur in S.44, Cochin Income-tax Act, 1117, and S.47, Travancore-Cochin Income-tax Act, 1121, and the contention of the petitioner is that as re-assessment is not specified in S.13, Finance Act, 1950, the power to reassess has ceased to exist and is not available any longer. This also is a contention which we are not prepared to accept. The words levy, assessment and collection as we understand, them include all the processes by which the tax is ascertained, demanded and realised and reassesment, being one of those processes comes within the ambit of the phraseology employed."

12. The Privy Council decision reported in AIR 1938 PC 175 (A) does not appear to have been cited before the learned Judges of the Travancore-Cochin High Court and it appears to have been more or less assumed that a re-assessment came within the ambit of the phraseology of the words employed in S.13, Finance Act.

13. The respondents rely on another judgment of the Calcutta High Court reported in - Jagmohan Goenka v. K.D. Banerjee, AIR 1954 Cal 564 (E). All that was decided by the Calcutta High Court in that case was that more than one re-assessment was permissible under S.34, Indian Income-tax Act.

14. The petitioner is, therefore, justified, in my opinion, in contending that S.13, Indian Finance Act which repeals the Mysore Income-tax Act does not save section 34 of the Mysore Income-tax Act so as to entitle the Income-tax Officer to re-open under that section pre-integration assessments.

15. The petitioner, as already stated, contends further that the proceedings initiated by the Income-tax Officer are incompetent for another reason. This contention is based on the recommendations of the Indian States Finance Enquiry Committee read with the agreement entered into between the President of India and the Rajpramukh of Mysore on 28-2-1950. It is urged that the recommendations of the Committee referred to in the agreement and accepted by the parties thereto, preclude the re-opening of the pre-integration assessments made under the Mysore Law. In support of this argument reliance is placed on the recommendation of the Report of the Committee contained on pages 44 and 45 of Part I which has been extracted above.

16. The petitioner submits that it is clear from this part of the Report that the Committee while suggesting that the Mysore Income-tax Act should be repealed and the corresponding body of Central Legislation extended to the Mysore State, was definitely of the view that the State legislation should be saved only for securing the legal continuity of pending proceedings under the State legislation and that proceedings completed under the State law should be treated as final and valid. The argument on behalf of the petitioners is that clauses (b) to (e) printed on p.45 of the Report are, as stated in clause (a) on that page, were designed to secure legal continuity of pending proceedings and "finality and validity of completed proceedings under the pre-existmg State legislation." It is therefore contended that pre-integration assessments which are proceedings completed under the Mysore Act, were agreed to be treated as final and valid without being liable to be reopened under S.34, Mysore Act. It is further submitted that the agreement between the Rajpramukh and the President of India who accepted this recommendation of the Committee, was entered into under Art.278 of the Constitution and continues to be in force for a period of ten years unless terminated by the President after the expiration of five years, and that the legislative power of the Parliament conferred by Art.245 of the Constitution is, as provided by that Article, subject to the other provisions of the Constitution and therefore subject to Art.278 under which the agreement was made. The argument for the petitioner is that if, by enacting S.13, Finance Act, the Parliament empowered the Income-tax Officer to re-open such completed assessments, they exceeded their legislative competence thereby rendering the provisions of S.13, Finance Act unconstitutional and void. This argument of the learned counsel for the petitioners cannot be said to be devoid of merit; but I have already come to the conclusion that the. absence of the word re-assessment in S.13, Finance Act made it incompetent for the Income-tax Officer to issue the notices complained of, to the petitioners. The omission of the word reassessment in the said section must be deemed to be intentional as it was necessary to implement the recommendations of the Committee and the Agreement between the President and the Rajpramukh. In this view, it is unnecessary, for the disposal of these cases, to consider the arguments in support of the contention that S.13, if it is deemed to include the power to issue notices for re-assessment, will be ultra vires of the Constitution.

17. In the result, the petitions are allowed with costs. The writs prayed for will be issued. Advocates fee Rs.250/- in each case. MALLAPPA, J.:-

18. The Petitioner in C. Ps.52 and 53 of 1953 was assessed to income-tax for the years 1946-47 and 1947-48 respectively, while the petitioners in Writ Petitions 105 and 106/53 were assessed for the year 1949-50 and the income-tax due as per assessment made was recovered. Notices have been issued to them for purposes of reassessment under S.34, Mysore Income-tax Act within the period of four years as prescribed in that Section, but subsequent to the enactment of the Indian Finance Act 1950 which came into force from the 1-4-1950. It is not disputed that but for the enactment of the Indian Finance Act 1950, the Petitioners are liable to be proceeded against under S.34 of the Mysore Income-tax Act. But it has been provided in S.13(1), Indian Finance Act, that the State enactments like the Mysore Income-tax Act should cease to have effect "except for the purposes of the levy, assessment and collection of income-tax and super-tax" in respect of certain previous years. It is clear that in respect of the years for which income-tax has been recovered from the petitioners, assessment could have been levied and collected from the petitioners under S.13(1) if assessment had not been previously levied and collected from them, as S.13(1), Indian Finance Act provides that the Mysore Income-tax Act shall continue to have effect "for purposes of the levy, assessment and collection of income-tax and super-tax" for the years under consideration. What is contended on behalf of the petitioners is that the Mysore Income-tax Act ceased to have effect except for purposes of levy, assessment and collection of income-tax, and as the exception does not refer to re-assessment, it must be held that the Mysore Income-tax ceased to have effect for purposes of re-assessment under the provisions of the Mysore Income-tax Act. On the other hand, it is contended for the respondents that the words "levy, assessment and collection" are wide enough to include re-assessment under S.34, Mysore Income-tax Act. The main point for consideration, therefore, is whether the right under the State Act in respect of "levy, assessment and collection" of income-tax of previous years saved under S.13(1), Indian Finance Act includes the right to re-assess under S.34 of the Mysore Income-tax Act, the assessee from whom income-tax has already been collected.

19. It will be noticed that S.13(1), Indian Finance Act was enacted in accordance with the agreement entered into between the President of India and the Rajpramukh of Mysore. That agreement is again in accordance with the recommendations of the Indian States Finances Enquiry Committee. It will also be noticed that in para 9 of the "Annexure Memorandum concerning matters relating to taxes on income", it is stated that Subject to the limitations indicated below - which are designed to secure legal continuity of pending proceedings and finality and validity of completed proceedings under the pre-existing State - legislation - we think the whole body of State legislation relating to federal subjects should be repealed and the corresponding body of Central legislation extended. It is clear that the object of the Committee, and hence that of the agreement, was that pending proceedings should be continued under the old law, but that finality and validity in respect of completed proceedings should be secured. It is with this object that S.13 (1), Indian Finance Act which refers to the repeal of the old Act except for certain purposes, was enacted. Hence S.13(1), Indian Finance Act must be deemed to be in accordance with what was intended by the Indian States Finance Enquiry Committee. It must be noticed that S.13(1), Indian Finance Act was framed with the intention "to secure legal continuity of pending proceedings", as well as to "secure finality and validity of completed proceedings", under the pre-existing State legislation. This is made clear by S.13(1) of the Indian Finance Act which states that the State legislation shall cease to have effect except for levy, assessment and collection of income-tax and super-tax in respect of some previous years. There could hardly be any doubt that what is intended is that the old law would be applied for completing all pending proceedings. It may even be that there could be levy, assessment and collection of income-tax for the previous years if no proceedings had been started and income-tax remained uncollected. It is equally clear, however, that the old Act cannot be applied so as to disturb "finality and validity of completed proceedings" under the pre-existing State legislation; and this means, if proceedings had been begun and completed, nothing could be done under the old Act such as re-assessment as finality had to be secured for completed proceedings under the pre-existing State legislation. The point for consideration, therefore, is what is the difference between pending proceedings and completed proceedings and what is meant by saying that finality of completed proceedings should be secured. The proceedings to recover income-tax under the State legislation are begun by issue of a notice under S.22(2), Mysore Income-tax Act. An assessment is made under Ss.23 to 27 and the collection is made by issuing a notice under S.29. The proceedings are complete if no appeal is filed, but otherwise they are completed by appeal, a second appeal and review under Ss.30 to 33. Though the proceedings are thus completed, the matter is not final as the completed proceedings may be re-opened under S.34 or 35 of the Act. The object of framing S.13(1), Indian Finance Act, as is clear by the Finance Committees recommendation which was adopted for the agreement, on which S.13(1) is based, is that once proceedings are completed under Ss.22 to 33, they cannot be re-opened under S. 34 or 35 but that where these proceedings are still pending and are incomplete, the provisions of the old act are made applicable for levy, assessment and collection in such cases. The old Act is also made applicable for levy, assessment and collection in respect of income of previous years for starting and completing proceedings when previous proceedings had not been started and completed and the income had totally escaped assessment. In such a case, no question of re-assessment under S.34 arises, it being a case of assessment under that Section on the ground that the entire income had escaped assessment.

20. The point as to there being two distinct proceedings is clarified in the commentary on the Indian Income-tax Act by A.C. Sampath Iyangar while dealing with the scope of S.34 in para 981: "An additional assessment comes in only when there is in respect of the assessee a valid assessment for the tax year ex hypothesi insufficient. If hence the first assessment proceedings started duly by the issue of a notice under S.22(2), should not have reached the stage of an assessment order, there is no scope for an additional assessment. What the Income-tax Officer need do in such a case would be simply to include the newly discovered item in the assessment to be made and for that purpose he may issue notices under S.22(4) or 23(2), or Section 37 in order to gather materials in respect of the new item. The position would be the same if an assessment having been made in the first instance was subsequently set aside either by the Income-tax Officer himself acting under Section 27, or by an appellate or revisional authority, or by the High Court. The consequence of such setting aside would be to enable the Income-tax Officer to continue his labours from the stage of a re-consideration of a return, if one had been made, or to again call for a return, if one had not been furnished, under the ordinary procedure of S.23, and not under this section. If, on the other hand, no assessment proceedings had at ail been started during the tax year by issue of notice under S.22(2), then the case would be one of escaped income." It will be noticed that two stages are contemplated one being a case of first assessment and the other a case of re-assessment. The proceedings which are started under S.22(2) are pending till they reach the stage of assessment order and if materials required to proceed under S.34, are discovered before an assessment order is finally made, that could be enquired into and order of assessment rectified in the proceedings previously instituted after going through the procedure laid down in Ss.22 to 33. This is a case of first assessment. If the proceedings have been initiated under S.22(2) and have been completed, the matter could be re-opened under S.34, or a mistake rectified under S.35, as completed proceedings are not necessarily final but liable to reopening under S.34 or S.35. The re-opening is a case of re-assessment as there was previously a completed proceeding in which assessment had been recovered.

21. The above commentary makes it clear that if matter that entitles the income-tax authorities to re-assess under S.34 comes to their knowledge before the original proceedings are completed, the assessment is rectified by including the assessment that is due on account of the new information. In such a case, no question of making a re-assessment under S.34 arises as the original proceedings for recovery of assessment are not complete and as re-assessment can only be conceived after there has been a previous levy, assessment and collection. Para 982 of the above commentary refers to the re-opening of the proceedings under S.34. In other words, it is made clear that proceedings are initiated under S.22(2) and they are completed by being continued up to the stage of S.33. The completion of the proceedings does not make the assessment final or unalterable as the matter could be reopened for re-assessment under S.34 or S.35.

22. Section 34, Mysore Income-tax Act deals with two kinds of cases. One may be a case where the entire income of a person has escaped assessment in any year. As observed in the commentary of A.C. Sampath Iyengar referred to above, the case would be one of escaped income. In such a case, notice under sub-s. (2), S.22 will be issued as stated in S.34, and the Income-tax Officer will proceed to assess the income, profits or gains that has escaped assessment. That would be a case of assessment under S.34 as distinguished from a case of re-assessment under that section. If proceedings have already begun and completed but a portion of the income has escaped assessment or the entire income has been assessed at too low a rate, a notice would be issued under S.22(2) and the Income-tax Officer will proceed to re-assess such income. That would be a case of re-assessment under S.34. That is why both the words assess and re-assess are used in S.34. When no assessment has at any time been made under Ss.22 to 33, it is a case for the Income-tax Officer to assess. If he has already passed an order of assessment in proceedings under Ss.22 to 33, the question of re-assessing arises either because a portion of the income has escaped assessment or the entire income has been assessed at a low rate. In other words, the word assess in S.34 is used for assessment under S.34 when an assessee has not been previously assessed, and the word re-assess is used when the assessee has been once assessed and has to be re-assessed either because a portion of his income has escaped assessment or because he has been assessed at too low a rate.

23. What is intended in the recommendations of the Finance Enquiry Committee and the agreement between the Rajpramukh and the President of India, is to secure finality in respect of completed proceedings while providing for the continuity of pending proceedings. In other words while pending proceedings are allowed to be proceeded with under the old Act, finality has been secured for completed proceedings by not permitting under S.34 the re-opening of completed proceedings under Ss.22 to 33 and. that is why it will be noticed that the word reassessment is not used in S.13 of the Finance Act along with the words levy, assessment and collection. This is supported by the following, statement in para 19 of the Commentary on the Indian Income-tax Act by Sampath Iyengar: "All completed assessments in the Part B States prior to the appointed day, are left undisturbed; the rest awaiting to be completed as on that date are taken over by the Union." It may be added that even without reference to the agreement on the basis of which S.13, Indian Finance Act was enacted the same conclusion could be arrived at by considering S.13, Finance Act. The Indian Income-tax Act as well as the Mysore Income-tax Act clearly refer to assessment and re-assessment and if it was intended that for purposes of recovering reassessment the Mysore Income-tax Act should subsist even after the Indian Income tax Act came into force, that fact would have been clearly stated in S.13, Indian Finance Act. The fact that S.13 refers only to assessment and not to re-assessment makes it clear that what was intended is to secure finality of completed proceedings under the Mysore Income-tax Act and not permitting re-opening of completed proceedings for re-assessment under S.34 of the Mysore Income-tax Act.

24. Sri B.M. Chandrasekhar who ably put forth the case on behalf of the respondents, contended that the words levy, assessment and collection must generally be understood in a broad sense and that these words must be taken as including re-assessment. He relied for the purpose on some decisions which may here be referred to. In - Abdul Khadar v. Commr. of Income-tax, AIR 1953 Trav-C 526 (F), it was observed: "The rule enunciated in S.13 is virtually the same as that contained in S.6, General Clauses Act that normally the repeal of an enactment shall not affect any liability incurred under the repealed enactment. With reference to the assessment proceedings of any year prior to the assessment for 1950-51 chargeability arose under the old State Law though assessment and recovery had to be under the new Central Law. An assessment does not become final until all the proceedings provided in respect thereof are exhausted or the time limit prescribed for such proceedings expired. The scope and amplitude of S.13 of the Finance Act, 1950, is, if we may say so with respect, clearly explained in - Madangopal Kabra v. Union of India, AIR 1951 Raj 94 (2) (G)." It is not clear that their Lordships intended to lay down that after 1-4-50 re-assessment under S.34 could be levied and recovered in respect of incomes of the previous years under Part B States Income-tax Acts the provisions of which have been to some extent saved by S.13(1) of the Finance Act, 1950. It is, no doubt, true that if S.13, Finance Act, had not been enacted, S.6, General Clauses Act, would have made the old Act applicable for recovery ox income-tax for which certain persons had become liable and it may be that under S.6 of the General Clauses Act, it was open even after the new Act came into force, to make re-assessment under S.34 of the old Act. Section 13, Finance Act, has however been enacted with reference to the point as to what extent the old Act is saved and it is that section that settles the question. In fact, the two sections are differently worded and their scope, it must be stated with respect, cannot be the same. Section 13 of the Finance Act, does not say that the old Act was saved for purposes of re-assessment and its levy and collection where as it is stated in it that the old Act is saved for levy, assessment and collection. The fact that S.13 was enacted with a particular object and that it was enacted in pursuance of an agreement referred to previously cannot be ignored. Anyway, the above decision does not go to the length of holding that re-assessment that could have been recovered under the old Act could be levied or collected after S.13, Finance Act, was enacted. Following is the portion relied on in the decision - Bhailal Amin and Sons, Ltd. v. R.P. Dalal, AIR 1953 Bom 441 (H): "The Indian Income-tax Act was only made applicable from 1-4-1949, and therefore the petitioners assessment could not be determined under that Act. Under S.7 the Baroda Income-tax Law ceased to have effect except for the purposes mentioned in that section and those purposes were the purposes of the levy, assessment and collection of income-tax and supertax. Therefore, to the extent that any question arose with regard to the levy, assessment or collection of income-tax from the petitioners, the question had to be determined according to the Baroda Law. In this context, obviously, "assessment" is used in its widest connotation. An assessment in this context is not merely the ascertainment of the amount due or payable by the assessee, but it also means all the procedure that has to be followed for the purpose of arriving at the amount for which the assessee is liable, and when the matter was pending before the Huzur Adalat of the Baroda Court it was in the course of the assessment of the petitioners, and until the Huzur Adalat had given its final decision, the assessment of the petitioners would not be complete." From the above, it is seen that this decision refers to proceedings commenced under S.22 and not completed, as they were pending decisions under some of the sections corresponding the Sections upto S.33 of the Mysore Income-tax Act, or Section 43 of the Cochin Income-tax Act and this observation appears to apply also to AIR 1953 Trav-C 526 (F). Moreover, the Bombay decision makes it clear that proceedings begun under S.22 would be complete only after the final decision in appeal or revision or review under Ss.30 to 33.

25. Next the following observation in AIR 1954 Cal 564 (E) was relied on by Sri Chandrasekhar: "The word assessment is not to be taken in too narrow a sense, and does not mean merely the order of assessment but the whole process culminating in the order. AIR 1934 PC 30 (B)." If what is contended is that AIR 1934 PC 30 (B) lays down that assessment means re-assessment, it must be said that it is not so, as has been clearly shown in AIR 1936 Lah 897 (C) by the following extract: "The learned Counsel for the Commissioner relied on the following observation in the judgment of their Lordships of the Privy Council: That the word assessment is not confined in the statute to the definite act of making an order of assessment appears from S.66 which refers to the course of any assessment. It must, however, be remembered that this observation was made by their Lordships to repel the contention raised on behalf of the appellant to the effect that assessment is not made on income within the tax year, then that income has "escaped assessment within that year and can be subsequently assessed only under S.34 within its time limit. In that case, no order of assessment had ever been made against Burn and Co., and their income had at one time been included in the income of Martin and Co., and thereafter excluded from such assessment. What was really decided in that case was that an assessment can be made under S.23(1) of the Act, more than a year, in fact, at any time, after the assessment year, if in the meantime no final assessment has been made. 61 Cal 285 (also reported in AIR 1934 PC 30 (B)) does not justify an inference that an assessment is not concluded when the amount of tax payable by the assessee has been determined and a demand notice issued to him. The use of the words cancel the assessment, make a fresh assessment and annul or enhance the assessment in Ss.27, 30 and 31 shows that the proceedings after the issue of the demand notice do not form part of the assessment." On the other hand, their Lordships in AIR 1938 PC 175 (A) have made it clear what is meant by an assessment. Their Lordships have observed; "One of the peculiarities of most Income-tax Acts is that the word "assessment, is used as meaning sometimes the computation of income, sometimes the determination of the amount of tax payable and sometimes the whole procedure laid down in the Act for imposing liability upon the tax payer." These observations made in general terms as found in other decisions too, would appear to allow an argument that assessment includes reassessment and its collection. But that no such thing is intended is made clear later. Their Lordships were proceeding with a case in which a firm had not sent a return in compliance with the notice issued by the Income-tax Officer. The Income-tax Officer proceeded to "make the assessment to the best of his judgment as prescribed by S.23(4)". The firm was an unregistered firm and unregistered firms are liable to pay super-tax. But an application had been filed for registration and before making an assessment under S.23(4), the firm was registered and the Assessing Officer made an assessment under S.23(4) stating that "The firm having applied for registration is registered, therefore, no supertax is levied". Later on, the registration of the firm was cancelled and the authorities proceed to levy super-tax which should have been levied previously but for the fact that the previous officer had passed an order registering the firm and had held that on that account no super-tax was due. In that connection, the point arose as to when it could be said that an assessment is finally made. Their Lordships observed as follows: "It had been argued on behalf of the appellant that the Act nowhere imposes any limit of time within which an assessment under the provisions of Ss.23 and 29 is to be made, and that the service of the notice of demand can therefore be made at any time. This is true. It had, in effect, been so determined by this Board in 61 IA 10 (same as AIR 1934 PC 30 (B)). But it is not true that after a final assessment under those sections has been made, the Income-tax Officer can go on making fresh computations and issuing fresh notices of demand to the end of all time. It is possible that the final assessment may not be made until some years after the close of the fiscal year. Questions of difficulty may arise and cause considerable delay. Proceedings may be taken by way of appeal and cause further delay. Until all such questions are determined and all such proceedings have come to an end there can be no final assessment. But when once a final assessment is arrived at, it cannot, in their Lordships opinion be re-opened except in the circumstances detailed in Ss.34 and 35 of the Act (to which reference is made hereafter) and within the time limited by those sections." It will be noticed that, as observed by their Lordships of the Privy Council, an assessment is finally made in proceedings under S.23(4) when no return is sent. No question of appeal arises in cases of that kind as no appeal is provided for. An assessment may be finally made in proceedings under Ss.22 to 29 when a return is sent and these proceedings become complete when no appeals are filed. If appeals are filed on the matter is subjected to review or revision and those proceedings are terminated, the proceedings become then complete. But the proceedings are not final as they can be re-opened under Section 34 or 35. This supports the conclusion that the proceedings of assessment are complete before the question of re-opening the matter arises under S.34 or 35. The Privy Council decision makes it clear that two distinct proceedings are contemplated for recovery of income-tax, one being that of levy, assessment and collection under Ss.22 to 33, and the other being one of reopening the first assessment previously made and making a re-assessment under S.34. This justifies the inference that when under S.13(1), Finance Act, the applicability of the State Act for purposes of levy, assessment and collection of income-tax is saved, it does not mean that the applicability of that Act is also saved for purposes of re-assessment under S.34.

26. It is, no doubt, true that a point exactly similar to the one before us arose before the Travancore-Cochin High Court, and it has been laid down in AIR 1954 Trav-C 137 (FB) (D): "The words levy, assessment and collection in S.13, Finance Act, 1950, include all the processes by which the tax is ascertained, demanded and realised and re-assessment being one of these processes comes within the ambit of the phraseology employed." No reasoning has been given for the opinion of their Lordships and it is not clear whether there is any agreement between the President of India and the Rajpramukh of the State of Travancore-Cochin and, if so, whether the object of enacting S.13, Finance Act, was brought to the notice of their Lordships. We, with very great respect, therefore, cannot follow this decision, though we would ordinarily follow a decision of another High Court in such matters as this when it is desirable to lay down a common policy. When the wording of the section is not clearly in favour of a decision against the tax-payer and it is, to say the least, a case of doubt, the statute has to be interpreted in favour of the subject as we are dealing with a case of fiscal enactment. In - C.P. and Berar Provincial Co-operative Bank Ltd., Nagpur v. Commr. of Income-tax, C.P., AIR 1946 Nag 216 (I), it was held: "The Income-tax Act is a fiscal measure and as such many of its provisions are of necessity arbitrary. Where the provisions of a fiscal enactment are plain and unambiguous, Courts duty is to interpret them according to their plain meaning regardless of the consequences; but if there is any ambiguity the provision should be construed in favour of the subject."

27. Though the objects and reasons for the enactment of a statute may not be looked into when the wording of a statute is clear, it is not unusual to rely on the objects and reasons for its enactment when the meaning of the words of the section is open to more than one interpretation. Moreover, in this case, one cannot avoid taking note of the object as found in the agreement between the President and the Rajpramukh of Mysore as the agreement is one recognised by the Constitution. In fact, if any section in the Indian Finance Act is not in accordance with the agreement referred to above, it is open to the objection that it is constitutionally bad. Article 245 states that the power of the Parliament to make laws is subject to the provisions of the Constitution. Articles 265 and 278 are two such provisions. Article 265 states that no tax shall be levied or collected except by authority of law while Art.278 authorises the Government of India to enter into an agreement with the Government of a Part B State and provides for the provision of the chapter in which Articles 265 and 278 are found to have effect subject to the terms of such agreement. Since such an agreement has been entered into and it is found that according to the terms of that agreement, the State legislation, such as the Mysore Income-tax Act, should only survive for fulfilling the object "to secure legal continuity of pending proceedings and finality and validity of completed proceedings under the preceding State legislation", it cannot be said that taking into consideration this aspect of the matter is of no importance. Giving anxious consideration to the wording of S.13(1) of the Finance Act and the object of the agreement, on the basis of which it is enacted, we do not feel any doubt that finality of completed proceedings which were not otherwise final but are subject to re-opening and re-assessment, was secured by S.13(1) of the Finance Act, by not providing for re-opening and re-assessment under S.34 of the Mysore Income-tax Act.

28. In the result, the notices issued by the Income-tax Department to re-open the proceedings are declared illegal, and as such, writs will issue quashing the proceedings of the Income-tax authorities as prayed for with costs. Advocates fee Rs.250/- in each case. Applications allowed. AIR 1955 MYSORE 59 (Vol. 42, C.N. 21) "Sharada Bai v. Lakshminarayana Rao" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) Sharada Bai and another, Petitioners v. K. Lakshminarayana Rao, Respondent. Criminal Revn. Petn. No.129 of 1954, D/- 12 -1 -1955, against decision of S.J., Mysore, in Criminal Misc. Appeal No.11 of 1953. (A) Criminal P.C. (5 of 1898), S.195(3) and S.476B - CONTEMPT OF LAWFUL AUTHORITY - APPEAL - Subordination of Subordinate Judges Court for purpose of appeal u/S.476B - Subordination where appeals lie to more than one Court. An appeal under S.476-B lies to the Court to which the appeals ordinarily lie. The use of the words ordinarily lie in S.195(3) suggests that for purposes of appeal under S.476-B it is enough if the Court to which the appeal is preferred has ordinarily appellate jurisdiction over the Court which passed the order irrespective of the fact whether an appeal from a particular decree or order lies to that Court or not. The District Court is a Court to which appeals from decrees of a Subordinate Judges Court up to a certain limit ordinarily lie. Therefore, the District Court will have jurisdiction to entertain an appeal under S.476-B against the order passed under S.476 even though the subject-matter of the original suit out of which the proceedings under S.476 arose exceeded the pecuniary appellate jurisdiction of the District Court. AIR 1936 Pat 122, Foll. (Para 5) Anno: Cr.P.C., S.195 N.20 Pts.1 and 2. (B) Criminal P.C. (5 of 1898), S.476 and S.195(3) - CONTEMPT OF LAWFUL AUTHORITY - APPEAL - Nature of proceedings under S.476 - Appeal from order of Subordinate Judge lies to District Judge and not to Sessions Judge. A Civil Court acting under S.476, Cr.P.C. is not a criminal Court. Though an appeal against an order under S.476, Cr.P.C. is allowed under the very Code under S.476-B, yet it does not take away the jurisdiction of the Civil Appellate Court to which the Civil Judge who passes the order is subordinate. Therefore, an appeal against the order passed under S.476, Cr.P.C. by a Munsiff or a Subordinate Judge will lie to the District Judge to whom these Courts are subordinate and such appeals are to be heard by the appellate Court exercising civil jurisdiction. Thus, the Court of the Subordinate Judge is not a Court subordinate to the Court of Session, and the appeal itself being incompetent any order passed by the Sessions Judge in such an appeal is without jurisdiction and hence ultra vires and illegal. AIR 1941 Rang 163 - AIR 1927 Cal 98 - AIR 1934 Oudh 344 (2) - AIR 1931 All 305, Rel. on. (Paras 8, 9, 10). Anno: Cr.P.C., S.476 N.24; S.195 N.19. (C) Criminal P.C. (5 of 1898), S.476 - CONTEMPT OF LAWFUL AUTHORITY - "Record a finding to that effect" - Provision is mandatory. The provisions of S.476(1) are mandatory. Hence, in absence of a finding that the prosecution is expedient in the interests of justice an order under S.476 cannot stand as the defect is incurable. AIR 1928 Cal 862 - AIR 1948 Mad 297, Rel. on. (Para 11) Anno: Cr.P.C., S.476 N.13. (D) Criminal P.C. (5 of 1898), S.5 - CONTEMPT OF LAWFUL AUTHORITY - APPELLATE COURT - REMAND OF MATTER - Powers of appellate Court - Remand of case - Legality. In an appeal under S.476-B the appellate Court acts illegally if it remands the case directing the Court of first instance to file a complaint; it must do so itself. AIR 1929 Cal 195, Rel. on. (Para 12) Anno: Cr.P.C., S.476-B N.4. Cases Referred : Chronological Paras (A) (V23) AIR 1936 Pat 122 : 37 Cri LJ 413 6 (B) (V28) AIR 1941 Rang 163 : 42 Cri LJ 735 8 (C) (V14) AIR 1927 Cal 98 : 28 Cri LJ 92 9 (D) (V21) AIR 1934 Oudh 344(2) : 35 Cri-LJ 824 9 (E) (V18) AIR 1931 All 305 : 32 Cri LJ 367 10 (F) (V15) AIR 1928 Cal 862 : 30 Cri LJ 221 11 (G) (V35) AIR 1948 Mad 297 : 49 Cri LJ 340 11 (H) (V18) AIR 1929 Cal 195 : 55 Cal 1277 12 K.P. Muddappa, for Petitioners; N. Bheemacharya, for Respondent. Judgement ORDER:- This is a revision petition filed by the petitioners against the order of the learned Sessions Judge, Mysore, in Cr. Misc. Appeal No.11/1953 reversing that of the learned Subordinate Judge, Mysore, in Misc. No.103 of 51-52.

2. The facts that have given rise to this petition are briefly as follows: The petitioners 1 and 2, who are wife and husband respectively were defendants in O.S. No.46 of 50-51 on the file of the Subordinate Judges Court, Mysore. The respondent was the plaintiff. The suit filed by the respondent-plaintiff was based on a registered mortgage deed and the petitioners pleaded inter alia partial discharge of the debt in question. In support of the discharge pleaded, the petitioner produced two letters which are marked as Exs.I and II purporting to have been sent to them by the respondent-plaintiff, acknowledging receipt of Rs.4000/-. The learned Subordinate Judge found, on evidence, that the discharge pleaded by the petitioners based on Exs.I and II was false and he accordingly decreed the respondent-plaintiffs suit. Then, the respondent-plaintiff filed an application before the learned Subordinate Judge under S.476 read with S.195, Criminal P.C., requesting the Court to prefer a complaint against the petitioners for offences under Ss.191, 192, 196, 209 and 463, Penal Code. To that application the petitioners filed objections saying that they were not guilty of any offence and that the application was filed just to harass them. The learned Subordinate Judge after going through the evidence adduced in the case and after taking into consideration the surrounding circumstances held that there was not sufficient evidence to prove that the petitioners had forged Exs.I and II, and that no action was necessary under the circumstances and he accordingly dismissed the petition. Then the respondent-plaintiff took that order in appeal to the learned Sessions Judge, Mysore, who disagreeing with the finding of the learned Subordinate Judge held that an offence under S.471, Penal Code was made out against the petitioners. He accordingly allowed the appeal and directed the learned Subordinate Judge to prefer a complaint to the City Magistrate, Mysore against the petitioners for an offence under S.471, Penal Code. It is as against that order of the learned Sessions Judge that this revision petition is filed.

3. The main point that arises for consideration is whether the order of the learned Sessions Judge can be supported. It appears to me that the order of the learned Sessions Judge directing the learned Subordinate Judge to prefer a complaint against the petitioners under S.476, Criminal P.C., cannot at all be sustained and the same has to be set aside on more than one ground. The first ground urged on behalf of the petitioners is that the order of the learned Sessions Judge directing the prosecution of the petitioners is without jurisdiction, ultra vires and illegal. In support of this contention two arguments were advanced by the learned counsel. The first one was that the subject-matter of the suit in O.S. No.46 of 50-51 on the file of the Subordinate Judge, Mysore, exceeded Rs.5000/-, that the District Court has thus no jurisdiction to entertain an appeal on the decree passed in the said original suit, that the appeal lay to the High Court, that the appeal against the order passed by the learned Subordinate Judge dismissing the respondents petition should have been preferred to the High Court and that therefore the District Court had no right to hear the appeal.

4. As a matter of fact in this case the appeal against order of the learned Subordinate Judge was not preferred to the District Judge, but to the Sessions Judge, as can be seen from the records. But in view of the importance of the point of law involved I would like to deal with that question also. It is no doubt true that the subject-matter in O.S. No.46 of 50-51 exceeded Rs.5000/-. As the law then stood the appeal from that decree of the learned Subordinate Judge lay to the High Court and not to the District Court. I am of opinion that for an appeal under S.476 (B), Criminal P.C., it is not necessary that the subject-matter of the suit out of which the proceedings under S.476, Criminal P.C., arise should be within the appellate jurisdiction of the Court to which the appeal is preferred. What the law contemplates appears to be that it is enough that the Court to which the appeal is preferred is a court to which appeals ordinarily lie from the Court which passes the order.

5. In this connection I would like to refer to the provisions of S.476-B, Criminal P.C.: "476-B: Any person on whose application any Civil, Revenue or Criminal Court has refused to make a complaint under S.476 or S.476-A, or against whom such a complaint has been made, may appeal to the Court to which such former Court is subordinate within the meaning of S.195, sub-s. (3), and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be, itself make the complaint which the subordinate Court might have made under S.476, and if it makes such complaint the provisions of that section shall apply accordingly." Prom a reading of S.476-B it is seen that the appeal lies to the Court to which the court passing the order is subordinate within the meaning of S.195, sub-s. (3), Criminal P.C. Section 195 (3) reads as follows: "For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary, original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate:" It is clear from a reading of this section that an. appeal under S.476-B, Criminal P.C., lies to the court to which the appeals ordinarily lie. The use of the words ordinarily lie in S.195(3), Criminal P.C., suggests that for purposes of appeal under S.476-B, Criminal P.C., it is enough if the Court to which the appeal is preferred has ordinarily appellate jurisdiction over the Court which passed the order irrespective of the fact whether an appeal from a particular decree or order lies to that court or not. In this connection I would also like to refer to Cl. (a) (Proviso (a)?) of sub-s. (3) of S.195, Criminal P.C. That provides that where appeals lie to more than one Court the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate. The District Court is a court to which appeals from decrees of a Subordinate Judges Court up to a certain limit ordinarily lie. Therefore, the District Court will have jurisdiction to entertain an appeal under S.476-B. Criminal P.C., against the order passed under S.476, Criminal P.C., even though the subject-matter of the original suit out of which the proceedings under S.476, Criminal P.C., arose exceeded the pecuniary appellate jurisdiction of the District Court.

6. Here I would like to refer to the case reported in - Thakur Prasad v. Emperor, AIR 1936 Pat 122 (A). The view taken above by me is fully supported in the above decision. In that case also the order under S.476, Criminal P.C., arose out of a suit valued at more than Rs.5000/- and the appeal against that order was preferred to the High Court of Patna. The contention urged in that case was that as the subject-matter of the original proceeding exceeded Rs.5000/- the learned District Judge had no jurisdiction to entertain the appeal against that decree and that therefore the order passed under S.476, Criminal P.C., was appealable only to the High Court and not to the District Court. Rowland J. negatived that contention and held that the appeal lay to the District Court in view of the proviso (a) to S.195, sub-s. (3), Criminal P.C. The learned counsel for the petitioners has not been able to point out any provision of law or any case law contrary to the view taken above. In the circumstances I am clearly of opinion that the contention urged by the learned counsel for the petitioners in this behalf has to fail.

7. The next ground urged by the learned counsel for the petitioner in support of his contention that the learned Sessions Judge had no jurisdiction to entertain the appeal and that his order is ultra vires and illegal, is that the appeal itself was incompetent inasmuch as the appeal against the order of the learned Subordinate Judge did not lie to the learned Sessions Judge, but to the District Judge, that the order in question has been passed by the learned Sessions Judge as such and that he had no jurisdiction. This contention has been based relying on the provisions of Ss.195 and 476, Criminal P.C. According to these sections the appeal against an order under S.476, Criminal P.C., lies to the Court to which the court passing the order is subordinate. That the appeal in this case against the order of the learned Subordinate Judge has been preferred to the Court of Session and not to the Court of the District Judge cannot at all be doubted. It is seen from a perusal of the memo of appeal filed in the Court of Session that the appeal was preferred to the Court of Session and not to the District Court. Even the order passed by the learned Sessions Judge goes to show that the appeal was preferred to the Court of Session, and the order has been passed by the Judge as Sessions Judge and not as District Judge. Therefore, it may be taken as an admitted fact that the order under revision Is one made by the Court of Session and not the Court of the District Judge. It need hardly be stated that a Court of Session is different from a Court of the District Judge. These Courts are constituted under different Codes and have different and distinct powers. To put it more plainly, one deals with purely criminal matters and the other with purely civil matters.

8. Therefore, the point that arises for consideration is whether the Court of the learned Subordinate Judge passing the order under S.476, Criminal P.C., can be said to be a Court subordinate to the Court of Session. By no stretch of imagination could it be said to be a court subordinate to the Court of Session. When a Munsiff or a Subordinate Judge takes proceedings under S.476, Criminal P.C., he will be acting as a Civil Judge. It may be that for certain purposes proceedings under S.476, Criminal P.C., are termed as "criminal proceedings". As observed in the case reported in - Daw Saw Khin v. Ko Hpar, AIR 1941 Rang 163 (B), by Mya Bu and Ba U, JJ., there is nothing in the words of Ss.195, 476, 476-A or S.476-B or in the combined effect of the operation of these sections to warrant the view that a Civil Court or a Revenue Court acting under S.476, Criminal P.C., is a Criminal Court.

9. It is no doubt true that an appeal against an order under S.476, Criminal P.C., is allowed under the very Code under S.476-B and it does not take away the jurisdiction of the Civil Appel late Court to which the Civil Judge who passed the order is subordinate. Therefore an appeal against the order passed under S.476, Criminal P.C. by a Munsiff or a Subordinate Judge will lie to the District Judge to whom these Courts are subordinate and such appeals are to be heard by the appellate court exercising civil jurisdiction. In other words it is the provisions of the Civil Procedure Code that are applicable to cases of this nature. If any authority is wanted for this proposition of law, the case reported in - Nasaruddin Khan v. Emperor, AIR 1927 Cal 98 (C), may be perused. Admittedly the court of the Subordinate Judge, Mysore is a Civil Court; if is that Court that made the order under S.476, Criminal P.C. The appeal against that order lies to the Civil Court to which it is subordinate - (Vide Wajid Ali v. Emperor AIR 1934 Oudh 344 (2) (D). The jurisdiction of the Sessions Court arises only when a court subordinate to it passes the order appealed from. In this case, as said already, the Subordinate Judges Court, Mysore is not subordinate to the Court of Session, Mysore.

10. In this connection I would also like to refer to another case reported in - Hikmat Ullah Khan v. Sakina Begam, AIR 1931 All 305 (E). The facts in that case no doubt are not quite identical with the facts of the present case. But the principle as enunciated in that decision may by implication be made applicable to the facts of the present case. In that case the respondents made an application to the Munsiff under S.476, Cr.P.C. That application was refused. The petitioners in that case appealed against that order to the District Court. By some mistake on the part of the Office, the Court to which the appeal was preferred was noted as Court of Session, though in the body of the memo of appeal the appellants had mentioned the Court as the District Court. In that case also the same argument was advanced to the effect that the Court of Session had no jurisdiction to entertain the appeal and that the order was ultra vires and illegal. From a reading of that decision it appears to me that the learned Judges would have accepted that contention, but for the fact that they came to the conclusion on facts that the appeal was filed in the District Court, that the order was passed as District Judge and that the mention of the Court to which the appeal was preferred as Sessions Court was due to some mistake on the part of the office and that the order was quite legal. Therefore, there could be no doubt as regards the proposition of law with respect to this point. I am of opinion that the Court of the learned Subordinate Judge, Mysore, was not a Court subordinate to the Court of Session, that an appeal from an order made by the learned Subordinate Judge as such under S.476, Cr.P.C., was not appealable to the Court of Session, that the appeal itself was incompetent and that the order passed by the learned Sessions Judge is without jurisdiction and hence ultra vires and illegal.

11. Another ground on which the order of the learned Sessions Judge has to be set aside is that he has failed to record a finding that he was of opinion that it was expedient in the interests of justice to prosecute the petitioners as contemplated under S.476(1), Cr.P.C. Section 476, Cr.P.C. lays down that the Judge should record such a finding. The learned Sessions Judge has nowhere in his order recorded a finding to that effect. The provisions of S.476, Cr.P.C. in this behalf are mandatory. This is the view taken in the case reported in - Keramat Ali v. Emperor AIR 1928 Cal 862 (P). I may also refer in this connection to the case reported in - In re Pakkiriswami Pillai AIR 1948 Mad 297 (G). His Lordship has held in that case that in absence of a finding that the prosecution is expedient in the interests of justice an order under S.476 cannot stand as the defect is incurable. Therefore on this ground also the order of the learned Sessions Judge cannot at all be sustained.

12. Again, I see from the concluding portion of the order of the learned Sessions Judge that he has directed the lower court, that is, the Subordinate Judges Court, Mysore, to file a complaint against the petitioners to the City Magistrate, Mysore, for an offence under S.471 I. P.C. I am of opinion that this direction also is bad in law. What S.476-B says is that the superior court to which an appeal is preferred may direct the withdrawal of the complaint or itself make the complaint which the Subordinate Court might have made and has not made. What I mean to say is that when an appellate court comes to the conclusion that it is expedient in the interests of justice that a complaint should be made under S.476 Cr.P.C. that court itself should prefer the complaint and not direct the lower Court to do so. This is the view taken by their Lordships in the case reported in - Manir Ahamed v. Jogesh Chandra AIR 1929 Cal 195 (H). Their Lordships have held in that case that in an appeal under Section 476-B Cr.P.C., the appellate Court has no jurisdiction to remand the case directing the Court of first instance to file a complaint, but must do so itself. In this case the learned Sessions Judge has directed the learned Subordinate Judge, Mysore, to prefer a complaint against the petitioners, which appears to be quite illegal. I am of opinion that on account of these various technical irregularities and illegalities the order of the learned Sessions Judge has to be set aside.

13. The learned Subordinate Judge in the course of his order in Misc. No.103 of 51-52 has observed that no action under S.476, Cr.P.C. was necessary. The learned Subordinate Judge who delivered the judgment in O.S. No.46 of 50-51 is also of the opinion that no action against the petitioners is necessary. The learned Sessions Judge has given a finding that the petitioners have committed an offence under S.471, I.P.C. by making use of Exs.I and II as genuine knowing them to be forged. It cannot be said that the said finding of the learned Sessions Judge is without any foundation. The first petitioner is stated to be a gosha lady and the second petitioner is stated to be her husband. According to the case as set out in the pleadings in the original suit, it is the first petitioner, who is said to have made the payment to the respondent-plaintiff. The first petitioner who, as said already, a ghosha woman appears to have been misguided and I very much doubt whether she was really aware as to what she was actually doing. It is open to the second petitioner to contend that his wife said that she had paid the amount to the respondent-plaintiff and that he believed her. Both the courts below have also come to the conclusion that the possibility of the petitioners having believed Exs.I and II to be genuine cannot at all be excluded. In view of these considerations I am of opinion that it is not expedient in the interests of justice to prosecute the petitioners after such a lapse of time.

14. In the result this revision petition is allowed and the order of the learned Sessions Judge directing the learned Subordinate Judge to prefer a complaint against the petitioners for an offence under S.471 I.P.C. is set aside. Revision allowed. (S) AIR 1955 MYSORE 62 (Vol. 42, C.N. 22) "Narasappa v. Nanjappa" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Narasappa and others, Appellants v. Nanjappa and others, Respondents. Second Appeal No.275 of 1952-53, D/- 29 -9 -1954, against decree of Sub. J., Tumkur in Reg. Appeal No.174 of 1950-51. Easements Act (5 of 1882), S.15, S.18 - EASEMENT - Right of wayAIR 1916 Mad 1001; Not foll. By merely describing the path as a mamool path the dominant owner cannot escape the operation of S.15. If by a right to pass along a mamool path is meant a right to pass along a public way or a pathway belonging to the village, a right which may be established by immemorial user, it would not be really an easement but a property right inherent in every one in the village who has therefore a. right to use it. The claim of a dominant owner to go over anothers land for certain purposes or generally is a right which he can acquire under the other relevant sections of the Easements Act either by prescription or by necessity and would clearly be different in nature from a customary easement provided for in Section 18 or a proprietors or a citizens right to use a public path or a path belonging; to himself and the rest of the community. If an easement to pass over anothers lands could also be brought under S.18 then the provisions of S.15 would be redundant. Section 18 was not meant to be used in that way. Held that as the plaintiffs had failed to establish that they had been continuously, openly and as of right making use of the path for over 20 years, and that they had brought the suit within two years of the effective obstruction to their right, they were bound to fail. AIR 1916 Mad 1001, Not Foll. (Para 3) Anno: Easements Act, S.15 N.7; S.18 N.10. Cases Referred : Chronological Paras (A) (V3) AIR 1916 Mad 1001 : 31 Ind Cas 528 3 K.R. Sethu Rao, for Appellants; R.V. Srinivasaiya, for Respondents. Judgement

2. The learned Munsiff, on a detailed consideration of the evidence, oral and documentary, came to the conclusion that "the plaintiffs had miserably failed to establish that they had acquired a right of easement by way of prescription regarding the alleged suit pathway in S. Nos.4, 6 and 70". The learned Subordinate Judge concurred with him in holding that the suit pathway ABC never existed. He thought that some of the traces of the pathway in S. Nos.4 and 6 would indicate that during the summer season when there was no crop on the lands, bullock carts were permitted to pass and that the same did not establish a right of easement in the plaintiffs. The owners only of S. Nos.6 and 71 have come up in second appeal and the rest of the plaintiffs have dropped out.

3. It is contended by Mr. K.R. Sethu Rao, learned Counsel for the appellants, who has argued the appeal fully before me, that the evidence of the Commissioner P.W.5 Mr. Srikantiah is clearly to the effect that there must have been a cart track along the line ABC and that even Mr. Krishna Rao, D.W.1, another Commissioner who has been examined for the defendants has deposed that there was no other convenient path to go to S. No.71, The Courts below have rightly pointed out that the present is not a case of establishment of an easement of necessity and Mr. Sethu Rao does not put his case on that footing. He represents that the right to pass along the line A B C is not merely a right of easement referred to in S.15, Easements Act, but is really in the nature of a mamool right referred to in S.18 of that Act, and argues that if the right claimed by the plaintiffs falls under S.18 they have 12 years within which they could sue to establish their right and that the same would not depend on the proof of mere long user for over 20 years. He further urges that merely because P.W.4 Shivanna has stated in his evidence that the plaintiffs were prevented from using this pathway some 3 or 4 years before the suit, that would not stand in the way of their suit and that S.15, Easements Act, would not be a bar. For this position he has relied on a case reported in - Muthu Goundan v. Anantha Goundan, AIR 1916 Mad 1001 (A), where Saaasiva Aiyar J. has made the following observations at page 1005 of the report: "But the Statute (Easements Act) is remedial, and is neither prohibitory nor exhaustive. A man may acquire a title under it who has no other right at all, but it does not exclude or interfere with other titles and modes of acquiring easements". In the case before him the right of way was being claimed to pass over the path which was called a mamool path, as in this case also. And when we come to examine that case it is found that the High Court merely confirmed the conclusions which the lower appellate Court had come to, viz.: that the plaintiff and his predecessors-in-title to the dominant tenement were using the plaint path for much longer than 20 years before the interruption took place in September 1910 by the act of the defendants putting up the fence, and that the suit was brought in July 1911. Though the defendant objected to the plaintiff using the way in 1907 or 1908 the plaintiff did actually continue to enjoy the right of way till the fence was put up in September 1910. In view of that finding on the evidence the observations of Sadasiva Aiyar J. would be obiter as the plaintiff in that case would have been able to establish his case without the assistance of any mamool right. Moreover by merely describing the path as a mamool path the dominant owner cannot escape the operation of S. 15. Section 18 provides for customary easements which may be acquired by virtue of a local custom. The two illustrations to that section refer to the right of every cultivator of a village to graze cattle in a common pasture and to the right of privacy respectively. If by a right to pass along a mamool path is meant a right to pass along a public way or a pathway belonging to the village, a right which may be established by immemorial user, it would not be really an easement but a property right inherent in every one in the village who has therefore a right to use it. The claim of a dominant owner to go over anothers land for certain purposes or generally as claimed in this case is a right which he can acquire under the other relevant sections of the Easements Act either by prescription or by necessity and would clearly be different in nature from a customary easement provided for in S.18 or a proprietors or a citizens right to use a public path or a path belonging to himself and the rest of the community. If an easement to pass over Anothers lands could also be brought under S.18 then the provisions of S.15 would be redundant and I do not think that S.18 was meant to be used in that way. I do not think therefore that in the circumstances of this case the plaintiffs rights can be brought under any head other than an ordinary prescriptive right of easement which has to be adjudicated upon under the provisions of S.15. As I have already pointed out the concurrent findings of the Courts below are clearly against the right claimed in the plaint. If the, plaintiffs have failed to establish that they had been continuously, openly and as of right making use of this path for over 20 years, and that they had brought the suit within two years of the effective obstruction to their right, they are bound to fail.

4. In this view this appeal fails and is dismissed. In the circumstances of the case the parties will bear their own costs of this appeal. Appeal dismissed. AIR 1955 MYSORE 64 (Vol. 42, C.N. 23) "Rangamma v. Honappa" MYSORE HIGH COURT Coram : 1 VENKATA RAMAIYA, J. ( Single Bench ) Rangamma, Petitioner v. Honappa and others, Respondents. Civil Revn. Petns. Nos.79 and 80 of 1954, D/- 24 -8 -1954, against order of Dist. J., Mysore, D/- 30 -11 -1953. (A) Limitation Act (9 of 1908), S.5 - LIMITATION - NEGLIGENCE - Condonation of delay - Negligence of counsel or his clerk. Where the delay in obtaining copies is due to a bona fide default on the part of the counsels clerk, it may be condoned on the principle that the party should not suffer on account of negligence of counsel or counsels clerk. AIR 1931 Cal 298; AIR 1932 Mad 142 and AIR 1927 Lah 92, Ref. to. (Para 4) Anno: Limitation Act, S.5 N.11. (B) Civil P.C. (5 of 1908), S.115 - REVISION - Discretion of lower court - Interference in revision. The condonation of delay is a matter of discretion and an order with respect to it is not to be usually interfered with in revision. (Para 4) Held in the circumstances of the case that the order of the lower court not condoning the delay should be set aside. (Para 4) Anno: C.P.C., S.115 N.20. Cases Referred : Chronological Paras (A) (V18) AIR 1931 Cal 298 : 34 Cal WN 1119 4 (B) (V19) AIR 1932 Mad 142 : 135 Ind Cas 737 4 (C) (V14) AIR 1927 Lah 92 : 94 Ind Cas 629 4 H.K. Sreenivasamurthy, for Petitioner; B.T. Kamaswamy, for Respondents (Nos.1 and 2). Judgement ORDER:- The question for decision in these two cases is whether there was sufficient cause for the delay in filing the appeal. Admittedly the appeal rather the application for leave to appeal in forma pauperis was filed beyond the time prescribed and for condonation of the delay an application was filed. The learned District Judge dismissed the application and consequently the appeal. The petitioner seeks revision of these.

2. The delay is said to be due to the application for copy of the judgment and decree of the trial Court filed in Court about 10 days after the date of judgment not being found in the office. The advocate of the Petitioner and his clerk have filed affidavits in which it is admitted that Petitioner paid the amount to the counsel for obtaining the copies on the date of the judgment itself. They are also examined as witnesses. The account books of the advocate written by the clerk show the receipt of the money on 14-7-52 and that an application for copies was filed on 24-7-52. According to them sheets were called for later in August and when these were tendered, the application in which the production had to be noted was not found. The register of the court does not contain any entry as regards the filing of the application on 24-7-52. On this ground and from the absence of any complaint by the clerk about the application for the copies being missed in the office the learned Judge has disbelieved the allegation that the application was filed and has held that the petitioner cannot claim indulgence though she was not at fault.

3. It is not suggested that the entry in the Advocates books about the filing of the application for copies on 24-7-52 is manipulated for the purpose of this case. The advocate says that he signed the application subsequently the clerk took the sheets and reported to him that the application was missing. He says that he has been practising for about 30 years and that the clerk is experienced and honest. It seems to me that the absence of the application is due to mistake somewhere, that the evidence can at best raise a doubt about the filing and cannot be taken to be conclusive against the filing.

4. Even if it is assumed that there was any default on the part of the clerk, I think it was bona fide and the Petitioner, at any rate, should not suffer on this account. Karali Charan Sarma v. Apurba Krishna Bajpayi AIR 1931 Cal 298 (A); Ramji Das v. Kumara Kalathi Mudali, AIR 1932 Mad 142 (B), Firm Amba Prosad Gopinath v. Firm Jawala Dat Ramkanwar; AIR 1927 Lah 92 (C), are cases in which the delay was condoned on the view that the party should not suffer on account of negligence of counsel or counsels clerk. Though it is true that the condonation of delay is a matter of discretion and an order with respect to it is not to be usually interfered with in revision, I think that in the circumstances of this case the view of the lower Court cannot be upheld. The orders of the lower Court dismissing the application for leave to appeal and the application for condoning the delay are set aside. The delay is condoned and the application for leave to appeal is sent back for fresh disposal in accordance with law. Parties will bear their own costs. Application allowed. (S) AIR 1955 MYSORE 65 (Vol. 42, C.N. 24) "H. R. Patel v. Venkatalakshamma" MYSORE HIGH COURT FULL BENCH Coram : 3 MEDAPA C.J., MALLAPPA AND VASUDEVAMURTHY, JJ. ( Full Bench ) H. R. Patel, Plaintiff-Appellant v. Mrs. O. G. Venkatalakshamma and another, Defendants-Respondents. Misc. Appeal No.77 of 1951-52, D/- 16 -12 -1954, decided by Full Bench on order of reference made by Venkata Ramaiya J., D/- 30 -3 -1953. (A) Constitution of India, Art.225, Art.254(1) - Mysore Chief Court Act (1 of 1884), S.15(3) - HIGH COURT - REPUGNANCY BETWEEN STATUTES - CONSTITUTIONALITY OF AN ACT - REPEAL AND SAVINGS - APPEAL - Validity. Civil P.C. (5 of 1908), S.4, S.98. It cannot be held that after the Constitution and the extension of the Central Act of the Code of Civil Procedure to Mysore, the provision in S.15(3) of the Mysore Chief Courts Act must be deemed to have been superseded as per Art.254(1) of the Constitution on the ground that this provision is repugnant to the provision in S.98(2), Civil P.C. which is a Central Act. In the first place, while S.98(2) provides for reference being made to a Full Bench by two Judges, S.15(3) of the Mysore Chief Court Act provides for a reference being made by a single Judge. The provisions in the mysore act are supplementary to those in the Code of Civil Procedure, as the Mysore Act provides for a reference to a Full Bench in a case not provided for in the Civil Procedure Code. It gives a power to the Judges of the High Court in addition to the power they have under the Civil Procedure Code and not inconsistent with it. Further S.4(1), Civil P.C., directs that the provisions in it shall not be deemed to limit or affect any special or local law and thus it is clear that its provisions under S.98(2) do not limit or affect the provision in S.15(3), Mysore Chief Court Act, which is a special and local law of Mysore. Per Vasudevamurthy J.: The provision contained in S.15(3) would also properly fall under Item 3 of List II, State List "Administration of Justice" read with Item 65 "Jurisdiction and Powers" of all Courts except the Supreme Court with respect to any of the matters in List II. This would save it under Art.225 read with Art.254(1) of the Constitution. (Paras 6, 28, 29, 31) Anno: Constitution of India, Art.225 N.5; C.P.C., S.4 N.2, 3; S.98 N.7. (B) Court-fees Act (7 of 1870), S.7(iv)(c), S.7(iv)(d) and S.7(iv)(e) - Mysore Court-fees Act (3 of 1900), S.4(iv)(c), Proviso, S.4(iv)(d) and S.7(iv)(e) - COURT-FEE - DECLARATION OF TITLE - INJUNCTION - Suit for declaration and injunction - ILR 1952 Mys 344 : AIR 1952 Mys 80, Overruled. (Per Medapa, C.J. and Mallappa, J.:) The suit was for a declaration that the defendant who was constructing a house next to that of the plaintiff was bound to construct it in accordance with the conditions laid down by the Municipalities when it formed the sites and for an injunction restraining the defendant from constructing the house contrary to those conditions and for the removal of such portion of the building as had been built contrary to the conditions. Held that the main relief sought by the plaintiff in the plaint was injunction. The said relief could be said to be a consequential relief only if it would not be granted except on a declaration of the right of the plaintiff and not merely on proof of that right. The plaintiff in a suit for recovery of possession of land, if entitled to possession on proof of title is bound to pay court-fee on the basis that it is a suit for possession only though as a matter of fact there is a prayer in the plaint for a declaration of his title. The Court in such a case should be guided by the substance of the case of the plaintiff as set out in the plaint and treat it as if he had not prayed for the superfluous and unnecessary prayer for declaration. To hold otherwise would result in the plaintiff evading payment of legitimate court-fee under Cl. (v) of S.4 of the Mysore Court Fees Act by merely adding an unnecessary prayer for declaration of title. In this case there was no legal impediment to be removed for the grant of injunction if the plaintiff was otherwise entitled to it and the suit had therefore to be regarded as one for injunction falling under Cl.(d) of S.4(iv), Mysore Court-fees Act. The plaintiff must be held to have the right to give his own valuation for purposes of Court-fee and jurisdiction and was not required to pay court-fee on half the value of the property calculated, as if the suit was for possession of the house under cl.(iv)(c) of S.4, Mysore Court-fees Act, with its proviso. The main relief claimed by the plaintiff in the suit was injunction and not easement or any other right to some benefit to arise out of land. The suit could not therefore be said to be one under Cl. (iv)(e) of S.4, Mysore Court Fees Act. Assuming that the suit was for declaration of plaintiffs right to an easement and for a consequential relief, viz., injunction, it could not be said that proviso to (c) was applicable as the main and in fact the real relief asked for was injunction and not declaration. Case law discussed. ILR 1952 Mys 344: AIR 1952 Mys 80, Overruled. (Paras 2, 3) (Per Vasudevamurthy, J.:) A suit like the present is really governed by Cl. (e) of S.4 (iv), Court-fees Act. The proviso to S.4(iv) (c) does not apply to such a case and the plaintiff can pay Court-fee on the amount at which he values the relief sought. (Paras 32, 39) Anno: Court-fees Act, S.7(iv)(c), N.1, 4, 21, 26; S.7(iv)(d), N.1; S.7(iv)(e) N.1. Cases Referred : Chronological Paras (A) (V27) AIR 1940 Mad 113 : ILR (1940) Mad 259 (FB) 2, 14 (B) (07) 34 Cal 329 : 34 Ind App 87 (PC) 2, 13, 16, 18, 20, 23 (C) (V28) AIR 1941 Mad 91 : ILR (1941) Mad 157 2, 13, 15, 18, 34 (D) (V39) AIR 1952 Mys 80 : ILR (1952) Mys 344 8, 32, 33, 37 (E) (V31) AIR 1944 Pat 17 : 22 Pat 783 (FB) 10, 15 (F) (12) 39 Cal 704 : 15 Ind Cas 427 10 (G) (13) 40 Cal 615 : 21 Ind Cas 404 10 (H) (V19) AIR 1932 All 485 : 54 All 812 (FB) 12

(I) (V14) AIR 1927 Mad 348 : 52 Mad LJ 121 17, 33, 34, 35 (J) (V39) AIR 1952 Mad 41 : 65 Mad LW 136 17, 19, 22, 33, 38 (K) (V23) AIR 1936 Mad 201 : 59 Mad 962 #18, 19, 20, 22, 32, 33, 35

(L) (V33) AIR 1946 Mad 235 : ILR (1946) Mad 885 19, 32, 33, 35 (M) (12) 16 Ind Cas 963 : 16 Cal LJ 375 19 (N) (82) 4 All 320 : 1882 All WN 44 (FB) 19 (O) (49) 54 Mys HCR 451 (FB) 27 (P) (V29) AIR 1942 FC 27 : 46 Cal WN (FC) 61 (FC) 28 (Q) (V28) AIR 1941 FC 16 : 1940 FCR 110 (FC) 28 (R) (1932) 48 CLR 128 28 (S) (1926) 38 CLR 441 28 (T) (V38) AIR 1951 SC 69 : 1951 SCR 51 (SC) 29, 30 (U) (1929) 1929-1 KB 211 32

(V) (1842) 114 ER 364 : 2 QB 940 32 (W) (V38) AIR 1951 All 570 : 1951 RD (HC) 55 32

(X) (V41) AIR 1954 SC 496 : 1954 Cri LJ 1333 32 (Y) (V27) AIR 1940 Cal 560 : ILR (1940) 2 Cal 33 37 (Z) (18) 23 Mys CCR 197 (FB) 38 (Z1) (04) 27 Mad 480 38 S.K. Venkatrangiengar, for Appellant; Mirle N. Lakshminaranappa, for Respondents. Judgement MEDAPA, C. J.:- The suit is for a declaration that the defendant who is constructing a house next to that of the plaintiff is bound to construct it in accordance with the conditions laid down by the Municipality when it formed the sites and for an injunction restraining the defendant from constructing the house contrary to those conditions and for the removal of such portion of the building as has been built contrary to the conditions. The point for consideration in this appeal is whether the court-fee paid by the plaintiff according to his valuation is correct as held by Venkataramaiya J. or whether he has to pay court-fee on half the value of the property calculated, as if the suit is for possession of the house, as held by Balakrishnaiya J. The latter would be correct if clause (iv)(c) of S.4, Mysore Court-fees Act, is applicable with its proviso. If the proviso is not applicable, the plaintiff is entitled to put any value on the relief claimed whether the suit falls under clause (c) or (d) or (e) of S.4, Mysore Court-fees Act. That section reads: "The amount of fee payable under this Act....shall be computed

(iv) In suits (c) to obtain a declaratory decree or order where consequential relief is prayed; (d) to obtain an injunction; (e) for a right to some benefit (not herein otherwise provided) to arise out of the land: According to the amount at which the relief is sought is valued in the plaint or memorandum of appeal. Provided that in suits coming under sub-clause (c) in cases where the relief sought is with reference to any immovable property such valuation shall not be less than half the value of the immovable property calculated in the manner provided for by paragraph (v) of this section. In all such suits the plaintiff shall state the amount at which he values the relief sought under paragraph (v);

(v) In suits for possession of land, houses or garden: B. Where the subject-matter is a house or garden - the market value of the house or garden."

2. The main relief sought by the plaintiff in the plaint is injunction. The said relief can be said to be a consequential relief only if it cannot be granted except on a declaration of the right of the plaintiff and not merely on proof of that right. The plaintiff in a suit for recovery of possession of land, if entitled to possession on proof of title - and there is no cloud on the title occasioned for instance by a sale either by himself or through court which has to b3 removed by a declaration before possession can be given - is bound to pay court-fee on the basis that it is a suit for possession only though as a matter of fact there is a prayer in the plaint for a declaration of his title. The court in such a case should be guided by the substance of the case of the plaintiff as set out in the plaint and treat it as if he had not prayed for the superfluous and unnecessary prayer for declaration. To hold otherwise would result in the plaintiff evading payment of legitimate court-fee under clause (v) of S.4, Mysore Court Fees Act by merely adding an unnecessary prayer for declaration of title. This view is supported by the decision in - Ramaswami Ayyangar v. Rangachariar, AIR 1940 Mad. 113 (FB) (A) which follows the observations of their Lordships of the Privy Council in - Bijoy Gopal v. Sm. Krishna Maheshi, 34 Cal 329 (B). Now in this case there is no legal impediment to be removed for the grant of injunction if the plaintiff is otherwise entitled to it and the suit has therefore to be regarded as one for injunction falling under cl. (d) of S.4(iv), Mysore Court-fees Act. This view is supported by the observation of Wadsworth J. in - Venkata Ranga Rao v. Sita Rama Chandra Rao, AIR 1941 Mad 91 (C). The plaintiff must be held to have the right to give his own valuation for purposes of court-fee and jurisdiction.

3. The main relief claimed by the plaintiff in the suit is injunction and not easement or any other right to some benefit to arise out of land. The suit cannot therefore be said to be one under cl. (iv) (e) of S.4, Mysore Court Fees Act. Assuming that the suit is for declaration of plaintiffs right to an easement and for a consequential relief, viz., injunction, it cannot be said that proviso to (c) is applicable as the main and in fact the real relief asked for is injunction and not declaration. The point would arise for consideration if there was a proviso to (iv)(d) in S.4, Mysore Court Fees Act, as has since been introduced to the corresponding clause in the Madras Court Fees Act that proviso being as follows: "In suits for injunction where the relief is sought with reference to any immoveable property on the ground that the defendant denies title of the plaintiff to the property and disturbs or threatens plaintiffs possession thereto the value of the subject-matter of the suit shall not be less than half the value of the immoveable property calculated in the manner provided for by paragraph (v) of S.7 of the Court-fees Act of 1870". This must be compared with the proviso to clause (c) which is as follows: "Provided that in suits coming under sub-cl. (c) in cases where the relief sought is with reference to any immoveable property such valuation shall not be less than half the value of the immoveable property calculated in the manner provided for by paragraph v of this section. In all such suits the plaintiff shall state the amount at which he values the relief sought under paragraph (v)". If it was intended that proviso to cl. (c) should be read as if the consequential relief sought is for possession of the land or as if its title is being questioned, the wording of the proviso would be as in the proviso to cl. (e). The difference in the wording of the proviso to cl. (c) and that to cl. (e) will have to be considered before equating the more comprehensive phrase "with reference to" in the former proviso to what is stated in the latter proviso, but a decision on that point does not arise in this case and may well be left for decision in a case where it directly arises for consideration.

4. The plaint in substance, as already observed, falls within the scope of cl. (iv)(d) to S.4, Mysore Court Fees Act. The learned Subordinate Judge is wrong in holding that the plaintiff is not entitled to give his own valuation. His order is set aside and the suit is remanded for disposal according to law. MALLAPPA, J.:-

5. This reference to a Full Bench has been made by Venkataramaiya, J. as there has been a difference of opinion between him and Balakrishnaiya, J. on the question of the correctness of the court-fee paid by plaintiff in the lower court.

6. A preliminary point of objection was raised by Sri Lakshminaranappa who appears for the respondents and that is as regards the competency of a single Judge to refer a point of law for decision by the Pull Bench as has been done in this case. He relies on the provision under S.98(2), Civil P.C., under which a reference can be made by two Judges. It was not denied by him that S.15(3), Mysore Chief Court Act of 1834 provides for a reference to a Full Bench being made by a single Judge as in this case, but it is contended by him that after the Constitution and the extension of the Central Act of the Code of Civil Procedure, the provision in S.15(3), Mysore Chief Courts Act, must be deemed to have been superceded as per Art.254(1) of the Constitution as this provision is repugnant to the provision in S.98(2), Civil P.C., which is a Central Act. In the first place while S.98(2) provides for reference being made to a Pull Bench by two Judges, S.15(3), Mysore Chief Courts Act, provides for a reference being made by a single Judge. The provisions in the mysore act are supplementary to those in the Code of Civil Procedure, as the Mysore Act provides for a reference to a Pull Bench in a case not provided for in the Civil Procedure Code. It gives a power to the Judges of the High Court in addition to the power they have under the Civil Procedure Code and not inconsistent with it. Further consideration of the point becomes unnecessary as S.4(1), Civil P.C., directs that the provisions in it shall not be deemed to limit or affect any special or local law and thus it is clear that its provisions under S.98(2) do not limit or affect the provision in S.15(3), Mysore Chief Courts Act, which is a special and local law of Mysore.

7. Before taking the point referred to for decision by the Pull Bench, it is necessary to refer briefly to the facts of the case. The plaintiff and defendants are owners of adjacent sites which originally belonged to the Bangalore City Municipality. According to the case of the plaintiff, the defendants like other purchasers of the sites are bound by some restrictive covenants. Under these they are bound not to construct over a portion of the open space on the front and sides of the sites, not to construct rooms of the minimum width of 8 feet by 10 feet and not to put up buildings other than a dwelling house. Since the, defendants are constructing a building in violation of these covenants the suit has been filed for a declaration that the defendants are bound by the covenants and for an injunction preventing them from constructing the building contrary to the covenants and directing them to pull down portions which have been already so put up.

8. While it is contended on behalf of the plaintiff that he is entitled to put his own valuation for purposes of court-fee and jurisdiction it is contended on behalf of the defendants that the case falls under cl.4(c), Mysore Court Fees Act, governed by the proviso to it. Section 4 of the Act states: "The amount of fee payable under this Act....shall be computed (iv) In suits (c) To obtain a declaratory decree or order where consequential relief is prayed; (d) to obtain an injunction; (e) for a right to some benefit (not herein otherwise provided) to arise out of the land. According to the amount at which the relief is sought is valued in the plaint or memorandum of appeal. Provided that in suits coming under sub-cl. (c) in cases where the relief sought is with reference to any immoveable property such valuation shall not be less than half the value of the immoveable property calculated in the manner provided for by paragraph v of this section. In all such suits the plaintiff shall state the amount at which he values the relief sought under paragraph (v). (v) In suits for possession of land, houses or garden; (B) Where the subject-matter is a house or garden - the market value of the house or garden". As the plaint is worded, it looks prima facie that cl. (c) is applicable and that is evidently the view taken by Venkataramaiya J., as he has considered the necessity of deciding whether the Proviso to Cl. (c) is applicable or not. He however finds that Proviso to Cl. (c) is not applicable as, according to him, "it almost seems that the proviso should be read with the clause so as to make with reference to mean, involving the possession of land, house or garden ". As such, the learned Judge was of opinion that the plaintiff is bound to pay only the court-fee according to his own valuation and the court-fee paid by him is sufficient. It may be added here that though the decision in - Motilal J. Boal v. Ramchar, AIR 1952 Mys 80 (D), exactly a similar case, which was in fact between the plaintiff in this case and another neighbour of his, laying down that the court-fee payable in cases of this kind falls under Cl. iv(e) of S.4 was referred to by Venkataramaiya J., neither he nor Balakrishnaiya J. follows that decision and holds that cl. iv(e) of S.4 is applicable. Similarly though Venkataramaiya J. has referred to the applicability of cl. (d) as being argued, neither he nor Balakrishnaiya J. held that the case falls under that clause. On the other hand, Balakrishnaiya J. has held that the relief sought not only falls under cl. 4(iv)(c) but also attracts the proviso to that clause.

9. The prayer in the plaint makes it clear that the suit is for a declaration of plaintiffs right and the consequential relief of injunction. The plaintiff has arbitrarily put some value on the relief sought and the point for consideration is whether the court-fee paid is sufficient. That will depend upon the point whether cl. (c), (d) or (e) of S.4(iv) of the Court Fees Act is applicable and if clause (c) is applicable whether the proviso to that clause is also applicable.

10. When a suit is for a declaratory decree with consequential relief such as injunction or possession of immoveable properties cl. (c), S.4(iv), Court-fees Act, is applicable while a suit for mere injunction falls under cl. (iv) (d) of S.4 and a suit for possession of immoveable property falls under cl. (v) of that section. Now though in the plaint a declaration alone is asked for and no relief is sought for a consequential relief such as cancellation of a document, it is open to the court to find from the substance of the plaint that it is a suit for declaration and consequential relief if relief cannot be given without a declaration. Rupan Singh v. Emperor, AIR 1944 Pat 17 (FB) (E) is clear on the point. As observed in that decision: "It has been laid down in a large number of cases of which the decisions in Calcutta High Court in - Deokali Koer v. Kedar Nath, 39 Cal 704 (F) and - Harihar Prasad v. Shyam Lal, 40 Cal 615 (G) are illustrations that a suit for a declaration that a certain decree was fraudulent and illusory and unfit for execution and that certain property was not liable to be sold in execution of that decree was not a mere suit for declaration though cast in a declaratory form but in substance a suit for a declaration and consequential relief within the meaning of S.7(iv)(c) of the Court-fees Act (equivalent to S.4(iv) (c) of our Act). The court-fee is dependent not on the form of pleadings but on the real substance of the relief claimed". This is equally true even when the form of prayer appears to bring the case as one contemplated under S.4(iv)(c), Court-fees Act, but where in substance it is not a case of that kind.

11. A plaintiff may in his suit for declaration pray for relief such as injunction or possession of immoveable property or cancellation of a deed stating that that relief has to be given in consequence of the declaration. Still the suit may not fall under cl. (c) of S.4(iv) if really the declaration is superfluous and the relief sought may be given without any declaration. In such cases the substance of the suit is taken into consideration and the suit is valued under cl. (d) of S.4(iv) or under S.4(v) of Court-fees Act, according as the main relief is injunction or possession of immoveable property.

12. In suits for possession of immoveable properties based on title it is usual to pray for declaration of plaintiffs title and for possession of the lands as if the latter relief is to be given in consequence of the declaration. If the prayer alone is taken into consideration it falls under cl. (c) of S.4(iv), Court-fees Act, and plaintiff need pay only half court-fee on half the value of the land as estimated under S.4(v), Court-fees Act. This is not done as plaintiff is entitled to possession of the lands on providing his title and there is no need for him for getting a declaration as there is no legal obstacle to be removed before possession can be granted on proof of plaintiffs title. As observed in the Full Bench case - Kalu Ram v. Babu Lal, AIR 1932 All 485 (F): "The Court has to see what is the nature of the suit and of the relief claimed, having regard to the provisions of S.7, Court-fees Act. If a substantive relief is claimed though clothed in the garb of a declaratory decree with a consequential relief, the Court is entitled to see what is the real nature of the relief and if satisfied that it is not a mere consequential relief but a substantive relief it can demand the proper court-fee on that relief irrespective of the arbitrary valuation put by the plaintiff in the plaint on the ostensible consequential relief. Suppose a plaintiff asks for a declaration that the defendant is liable to pay him money due under a certain bond and also asks for recovery of that amount; or suppose that he asks for a declaration that he is the owner of certain property and is entitled to its possession and asks for recovery of its possession: surely the reliefs for the recovery of money or for the recovery of possession cannot be treated as a mere consequential relief which can be arbitrarily valued at any low figure and court-fees paid on that arbitrary valuation only".

13. Similarly when a person prays for an injunction which he is entitled to on proof of his right to it, as in this case, the frame of the suit falls within S.4(iv)(d), Court-fees Act, though he has unnecessarily prayed for a declaration of his right. The decision in AIR 1941 Mad 91 (C) is on all fours with the present case, S.7, Madras Court-fees Act, being the equivalent of S.4, Mysore Court-fees Act. "In matters of court-fee and pecuniary jurisdiction, the real substance of the suit and not the form in which it has been clothed should be looked to. Where there is any legal necessity for the plaintiff to get a declaration of his right of easement before he can get an injunction to protect it, the suit would have to be filed under S.7(iv)(c) even though he has sought the declaration by means of averments in the body of the plaint and not by praying for a declaration specifically amongst the reliefs at the end of the plaint. The safe rule however is that when there is some legal obstacle which has to be removed before a consequential relief can be granted, it is incumbent upon the plaintiff to pray for a declaration which will have the effect of removing that obstacle. But if the plaintiff merely avers a title which can be established without the cancellation of a document or the nullification of any adverse title and only claims the relief which would naturally flow from the establishment of the title which he avers, it is not necessary for the plaintiff to pray expressly for a declaration of that title. The plaintiffs case was that irrigation works in his occupation, situate within the Hyderabad State, received their customary supply of water from the overflow of tanks belonging to the defendant and situate in British India and that he had a right to require that the defendant should do nothing to the tanks in his possession which would adversely affect the customary flow of water to the tanks of the plaintiff. Consequently he demanded a series of injunctions restraining the defendant from carrying out projected works which, it was alleged would endanger the customary flow of water to the plaintiffs tanks. Held that on the frame of the suit, all that the plaintiff had to prove by evidence was that he had subsisting right of easement to the extent and of the nature claimed. If the evidence established the existence of that right, there was no legal impediment which had to be removed before the injunction protecting that right would be granted; and whether he had or had not sued for declaration, it was not necessary for him to pay court-fee on the footing that the finding which he sought as to his title was really a declaration, necessarily required as a preliminary to the grant of the injunction. Consequently, the plaint fell only under S.7(iv)(d) and not under S.7(iv)(c) and the plaintiff was entitled to place his own valuation on the injunction which he sought." (The underlining (here into ) is mine). There is the high authority of their Lordships of the Privy Council for holding that though the plaint contains a prayer for a declaration of plaintiffs right to get a relief such as injunction of possession of immoveable property and for granting such a relief, the suit must be regarded as one for the main relief if the declaration sought for is unnecessary for granting the main relief claimed in the suit. In 34 Cal 329 (B) their Lordships of the Privy Council had to deal with a case in which the appellants who were reversioners filed a suit for a declaration that an Ijara or lease granted by the widow was not binding on them and for possession. If the suit is regarded as one for declaration and consequent relief, it would be governed by S.4(iv)(c) of our Court-fees Act corresponding to S.7(iv)(c), Madras Court-fees Act, and for purposes of limitation Art.91 of Schedule to the Limitation Act which prescribes a period of three years. If the declaration prayed for is regarded as superfluous and that prayer could be ignored as even without it the main relief of possession could be given the suit has to be regarded as one not falling under S.4(iv)(c) but under S.4(v) and for purposes of limitation the suit would be governed by Art.141 which prescribes a period of 12 years. Their Lordships held that the declaration sought for in the prayer was superfluous and the suit must be regarded as one merely for possession. They observed: "A Hindu widow is not a tenant for life, but is owner of her husbands property subject to certain restrictions on alienation and subject to its devolving upon her husbands heirs upon her death. But she may alienate it subject to certain restrictions on alienation and subject to its devolving upon her husbands heirs upon her death. But she may alienate it subject to certain conditions being complied with. Her alienation is not, therefore, absolutely void, but it is prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Court, and he shows his election to do the latter by commencing an action to recover possession of the property. There is, in fact, nothing for the Court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir It is true that the appellants prayed by their plaint a declaration that the ijara was inoperative as against them, as leading up to their prayer for delivery to them of khas possession. But it was not necessary for them to do so, and they might have merely claimed possession, leaving it to the defendants to plead and (if they could) prove the circumstances, which they relied on, for showing that the ijara or any derivative dealings with the property were not in fact voidable but were binding on the reversionary heirs. Their Lordships are of opinion that the article in the Schedule to the Limitation Act applicable to this case is article 141".

14. This decision of their Lordships was followed in the Pull Bench decision reported in AIR 1940 Mad 113 (A) with the observation: "In such cases even if the plaint contains a prayer for a declaration or a cancellation there is good reason for holding it to be one for a purely incidental but unnecessary relief".

15. There are thus indisputable authorities for the position that when the prayer for declaration is superfluous and there is no legal impediment for the grant of relief of possession or injunction without a declaration of plaintiffs right, the suit must be regarded as one for injunction or possession alone. Otherwise it leads to the absurd position of a person filing a suit for declaration of his right to recover a very large sum of money on a pronote and for recovery of the money paying only a nominal court-fee under S.4(iv)(c) or filing a suit for declaration of title to a land and for possession of it paying only half the court-fee, he is bound to pay in case he files a suit for possession only. It was not argued before us that it is not correct to regard such suits as suits merely for recovery of money or possession of lands and recover the court-fee according to the money or value of land. It is based on this principle laid down by their Lordships of the Privy Council that Wadsworth, J. held in AIR 1941 Mad 91 (C) that: "It seems to me that on the frame of the present suit, all that the plaintiff has to do is to prove by evidence that he has a subsisting right of easement to the extent and of the nature claimed. If the evidence establishes the existence of this right, there is no legal impediment which has to be removed before the injunction protecting that right will be granted; and whether he has or has not sued far the declaration, it is not necessary for him to pay court-fee on the footing that the finding which he seeks as to his title is really a declaration necessarily required as preliminary to the grant of the injunction. It follows that the plaint as now amended falls only under S.7(iv)(d) Court-fees Act and the plaintiff is entitled to place his own valuation on the injunction which he seeks. No doubt the valuation which he has placed on these injunctions is palpably inadequate but the Court has no power to revise that valuation." It may be, on the other hand, added, here, that if decree for injunction or other relief such as possession cannot be granted without a decree for declaration, such as, that a deed executed by plaintiff or a decree passed against him is not binding on him, the suit must be regarded as one for declaration and consequent relief even if there is no prayer for a decree for declaration in the plaint as already pointed out on the authority of AIR 1944 Pat 17 (E).

16. In the present suit there is a prayer for a decree for declaration that plaintiff is entitled to enforce certain covenants against defendant and for an injunction. If a decree for a declaration of the right is necessary to the grant of injunction, the suit would have been governed by S.4(iv)(c). But there is no legal obstacle which has to be removed by the grant of a declaratory decree before a decree for injunction could be passed. As such the prayer for declaration is superfluous and in the wording of their Lordships of the Privy Council in 34 Cal 329 (B): "In such a suit it is therefore unnecessary for him to ask for a declaration." This suit has, in spite of the prayer for declaration, to be treated as one merely for injunction contemplated by S.4(iv)(d), Mysore Court-fees Act, just as the suit in 34 Cal 329 (B) was regarded only, as a suit for possession in spite of there being in the plaint a prayer for declaration as well as for possession. As S. 4(iv)(d) is applicable to the case on hand, the plaintiff is entitled to give his own valuation as he has done and this is the answer for the reference.

17. Once it is held as has to be held that S.4(iv)(d) is applicable and not S.4(iv)(c) to cases of this kind in which prayer for declaration is to be regarded as superfluous and the suit has to be regarded as one for injunction only, no question arises of applying S.4(iv)(e) or if construing the proviso to S.4(iv)(c) as if cl.(iv)(c) is applicable. It has however to be noticed that there are a few decisions of the Madras High Court in which the applicability of S.4(iv)(e) is considered and the meaning of the words of Proviso to S.4(iv)(c) is strained to yield a result which could be and should be more easily achieved by applying cl. (iv-d) to those cases. The first of these decisions is by Jackson, J. in - In re, Venkitakrishna Pather, AIR 1927 Mad 348 (I). As observed by Venkatarama Iyer J. in - Pappuk Kannu Anni v. Thoppayya Mudaliar, AIR 1952 Mad 41 (J): "In AIR 1927 Mad 348 (I) the plaintiff sued for a declaration that he had a right of way and drainage over the defendants lands and for injunction. The District Munsiff held that the suit was for a declaration and consequential relief and came under S.7, cl. (iv) (c) and applying the amendment directed payment of half the court-fee payable in a suit for possession under S.7, cl. (v). The plaintiff was content to leave it at that but the defendant took the matter in revision and contended that the suit must be regarded as one for possession and full court-fee was payable under S.7, cl. (v) and not merely half thereof. Jackson, J. rejected this contention. This decision is strongly relied on by Mr. V.V. Raghavan on behalf of the respondent. But it is clear that Jackson J. did not decide that such suits fell within S.7, cl. (iv)(c). He only, decided that it did not fall under S.7, cl. v. It may be noted that in AIR 1927 Mad 348 (I) as in the present case the plaintiff sought to establish a right of easement and prayed for consequential relief by way of injunction but as the plaintiff himself had submitted to the order of the lower Court, this Court had no occasion to decide under which clause it fell. But the words "where relief was sought with reference to any immovable property" were construed as meaning involving possession of lands, houses or garden and as not including easements. This case, therefore, is really some authority for the position that easement suits do not fall under S.7(iv)(c)" - corresponding to 4 (iv)(c) of Mysore Court-fees Act. As observed by Venkataramaiya, J. what Jackson, J. decided is that such suits do not fall under cl 7(iv). He did not decide that such suits fall under S.7(iv)(c) corresponding to S.4(iv)(c) of our Act and as such the question of the meaning of the Proviso to that clause did not arise for consideration. The opinion is obiter dictum and that is why Venkatarama Iyer J. states that that case is some authority and not that it is an authority on the point.

18. The decision in - Gurunatha Chettiar v. Secy. of State, AIR 1936 Mad 201 (K), may be relerred next. That decision deals with a case in which the plaintiffs suit was for declaration that he is entitled to take water from a river free of irrigation cess and for refund of a sum of Rs.50/-and odd which had been wrongly levied from him. It was a case in which declaration was unnecessary as on proof of his right to take water free of irrigation cess, he was entitled to a decree for the money wrongly recovered from him. That is why Varadachariar, J. who decided the case observed that "It is not impossible to read the plaint in such a way as to make the prayer for declaration ancillary to the prayer for refund" and not as independent prayer. Consistently with the decision in AIR 1941 Mad 157 (sic- AIR 1927 Mad 348) and 34 Cal 329 (B) he observed: "If the suit is substantially one for easement, it will fall not under sub-clause (c) of Section 7(iv) but under sub-clause (e) and the Madras amendment introduces a proviso only to sub-clause (c) and not to sub-clause (e)". Varadachariar, J. did not however fail to notice that: "There is no dispute about the plaintiffs title to his mitta; nor is he seeking a declaration even in respect of a right of easement in the strict sense. He is merely asking for an immunity from assessment." Neither the proviso to sub-cl. (c) nor the nature of a suit in respect of an easement arose for consideration in the case and the observations on these points must be regarded as obiter.

19. In re Rajah K.J.V. Naidu, AIR 1946 Mad 235 (L) deals with a case of plaintiffs right to graze cattle, to take leaves of manure, to cut and take wood required for fuel and other building and domestic purposes etc., all free of charges in a forest area belonging to the defendant and for a prohibitory injunction. It was rightly held in that decision that the suit fell under S.7(iv)(e) and not under S.7(iv)(c). It must again be stated even with reference to this case that neither the proviso to cl. IV(c) nor the nature of a suit for lease arose for consideration in the case and the opinion, if any, on these points is an obiter. The same observation has to be made with reference to the decision in - Sundarmal v. Murray, 16 Ind Cas 963 (Cal) (M) which deals with a suit to recover possession of a mine. In - Jogal Kishor v. Tale Singh, 4 All 320 (N), it has been rightly observed, it must be stated with respect, that a suit in which plaintiff "asserted his title to an easement of roof water over defendants land......is for an easement and is governed by S.7(iv)(e)". As observed by Venkatarama Iyer J. in AIR 1952 Mad 41 (J) it cannot be doubted that "section 7 (iv) (e) provides for suits for a right to some benefit to arise out of land not herein otherwise provided for. The language of this clause will apply to suits to enforce rights of easements." That the plaintiff was right in paying court-fee on what he fixed arbitrarily as the value of the suit, was shown by His Lordship to be correct whether the law as laid down in AIR 1936 Mad 201 (K) was applied or whether the law laid down by the other cases referred to by him was applied. AIR 1936 Mad 201 (K) has been referred to and considered in detail. The reasoning in that decision is quoted with approval. Anyway no indication is given of any disapproval. There was no reason for not following this decision apart from reference to some cases in which contrary view is taken though the point did not arise for decision in those cases as explained already.

20. What however has to be considered in cases of this kind is whether a suit for declaration that a person is or is not entitled to an easement and for an injunction falls under sub-cl. 4(iv)(c) or (iv)(d) or (iv)(e). The main relief claimed is one for injunction. If the decree for declaration is unnecessary for granting the relief of injunction, there being no legal impediment for its grant without a declaration of plaintiffs right, the suit must be regarded as one for injunction only governed by S.4(iv)(d), Mysore Court-fees Act, corresponding to S.7(iv)(d) of other Court-fees Acts as is clear from the decision of Wadsworth J. in AIR 1936 Mad 201 (K) following the ruling of their Lordships of Privy Council in 34 Cal 329 (B).

21. If, on the other hand, it is considered that a decree for declaration that the defendant in that case had no right of easement was a condition precedent for granting the relief of injunction it would be correct to hold that the suit is governed by cl. (iv) (c); but then the consequential relief claimed is in respect of injunction and not in respect of easement. Even in such a case, however, there would be no need to consider whether the relief in respect of easement is governed by the Proviso to cl. (iv)(c) as that proviso refers to the consequential relief.

22. Varadachariyar, J. observed in AIR 1936 Mad 201 (K) followed in AIR 1952 Mad 41 (J), that: "I would also point out that the words relief sought in the proviso is relating to the words consequential relief in clause (c) of the main Act. So the consequential relief in the present case does not relate to immoveable property at all, but only to a claim for recovery of money." Applying these observations to the facts of the case in AIR 1952 Mad 41 (J) or to the facts of the present case in both of which declaration is asked for with the consequential relief of injunction, it must be stated that the words relief sought in the proviso must be regarded as relating to the consequential relief of injunction, even in case cl. (iv)(c) is applicable.

23. No question of interpreting the proviso with reference to right of easement arises as that is not claimed as consequential relief in this case. Moreover, no question of easement arises at all in this case as the declaration is in respect of the defendants being bound by some covenants to build a house according to conditions laid down by the Municipality. The declaration claimed in the suit is that the defendant is bound by certain covenants and that consequently an injunction has to be granted. There is no legal impediment to be removed by granting a declaratory decree, to enable the Court to give the relief of injunction. Following the opinion of their Lordships of the Privy Council in 34 Cal 329 (B) the claim for declaratory decree is to be ignored as "even if the plaint contains a prayer for a declaration or a cancellation there is good reason for holding it to be one for a purely incidental but unnecessary relief." Just as the suit referred to in 34 Cal 329 (B) was considered as substantially one for possession though an unnecessary prayer for declaration was found in the plaint, the present suit for injunction must be regarded as one for injunction only in spite of there being an unnecessary prayer in the plaint for a declaratory decree also. The suit is governed by Sub-cl. (iv)(d) of S.4, Mysore Court-fees Act, and the plaintiff is right in paying court-fee according to his own valuation. The appeal is allowed and the order of the learned Subordinate Judge is set aside. He will take the suit on his file and proceed with it in accordance with law. VASUDEVAMURTHY, J.:-

24. The plaintiff is the owner of a site and building thereon in Gandhinagar, Bengalore City. Defendant 1 is the owner of a neighbouring site, she having purchased it with an incomplete building thereon from its previous owner one U.R. Ramachar, and defendant 2 is her husband. The plaintiff instituted the suit in the court of the Subordinate Judge, Bangalore City, and prayed for a declaration that he is entitled to enforce against the defendants certain restrictive covenants laid down by the Bangalore City Municipality at the time of sale by them of the vacant sites in the area in question as to leaving of certain open spaces in their own site between his own and the defendants property as well as in front of their own building and the nature of the building to be constructed on their own site. He also prayed for a permanent injunction directing the defendants from making any alterations in the building or erecting any constructions so as to convert or use it as a non-dwelling house such as a hotel. He valued the relief for purposes of jurisdiction and court-fee at Rs.3,100/- and in the valuation slip attached to the plaint he stated that the market value of the land regarding which consequential reliefs were sought as per S.4(iv) (c) proviso of the Mysore Court-fees Act was Rs.3,100/-and he paid Court-fee on that value. The defendants inter alia pleaded that the court-fee paid was very inadequate and that the Subordinate Judge had no jurisdiction to try the suit. They represented that the plaintiffs property was, according to himself, worth Rs.50,000/-. The defendants had purchased their own property for Rs.1,20,000/- just before suit and had spent half a lakh of rupees more on further construction. Whichever of the properties be considered as the subject-matter of the suit the same was beyond the jurisdiction of the Court.

25. After framing issues in respect of all the matters concerned in the suit the Subordinate Judge heard arguments on the first two of them, viz., regarding jurisdiction and court-fee. He held that the suit was not correctly valued for purposes of court-fee and jurisdiction and directed the plaint to be returned for presentation to the proper Court. Against that order the plaintiff preferred a miscellaneous appeal to this Court in Mis. A. No.77/51-52 and that appeal was heard by a Division Bench consisting of Venkataramaiya and Balakrishnaiya JJ. Venkataramaiya J. came to the conclusion that the valuation of the suit did not fall within the proviso to S.4(iv)(c) and that the plaintiffs valuation was to be accepted He was therefore for allowing the appeal. Balakrishnaiya J. took a contrary view and he was of the opinion that the plaintiff must value the portion of the defendants property and pay court-fee on half the value. If however, he said the whole property was to be in dispute then court-fee would have to be paid on half the value of the whole property. He was for dismissing the appeal. On this Venkataramaiya J. passed an order referring the case under S.15 of the High Courts Act to a Full Bench. He observed that the point upon which there was difference: between himself and Balakrishnaiya, J. related to a material question of court-fee on which there was a decision of a single Judge of this Court and to avoid the doubt and uncertainty it was necessary to have an authoritative decision.

26. Mr. Lakshminaranappa, learned Counsel for the Respondents, has at the outset raised a preliminary objection to the Pull Bench hearing, this matter. He contends that the present reference to the Full Bench has not been validly made as it has been made by one of the Judges forming the Bench and that there is nothing to show that the other Judge concurred with him in doing so. He urges that under S.98, Civil P.C., as now in force in Mysore such a reference to a larger Bench could only have been made by both the Judges and that the power which was given under S.15(3), Mysore High Court Act, to any one of the Judges to make a reference to the Full Bench has been taken away and is now no longer available. He represents that under Art.246 of the Constitution of India the Civil Procedure is one of the items included in the concurrent list III and Schedule VII and is a subject over which the Parliament has power to legislate concurrently with the Legislatures of the states. The concerned provision being one relating to procedure must give way to the specific provision to the contrary as contained in S.98(3) of the Code and being contrary to it must be deemed to have been superseded or cancelled by virture of Art.254(1) of the Constitution.

27. In Mysore the Constitution and powers of the Judges and procedure to be followed in certain matters by the High Court of Mysore (which was then called the Chief Court of Mysore and which by Act XII of 1930 one to be named as High Court) were laid down by the Mysore Chief Court Act I of 1884. That Act repealed certain rules of the Government of India under which the Court was then still functioning and received the assent of His Highness the Maharaja of Mysore. It contains provisions mostly analogous or similar to those in the Letters Patent of other High Courts and the Government of India Act 1935 Ss. (sic). That Act was amended from time to time and when the State of Mysore merged with the territory of India and became subject to the Constitution S.15(3) of that Act stood as follows: "The decision of the majority of Judges comprising any Full Bench of the Chief Court or other Bench of the said Court consisting of not less than three Judges shall be the decision of the Chief Court. When a Bench of the Chief Court consists of only two Judges and there is a difference of opinion between such Judges on any material question pending before it, such question shall be disposed of in the manner prescribed in Section 98 of the Civil Procedure Code, or section 429 of the Criminal Procedure Code, as the case may be, or, at the discretion of either of the Judges composing the Bench, it shall be referred to a Pull Bench and the decision of the majority of the Judges on such Full Bench shall be the decision of the Chief Court." The Code of Civil Procedure Act V of 1908 was extended to Mysore with effect from 1-4-1951 by the Code of Civil Procedure Amendment Act II of 1951. Section 20 of the latter Act provided that if immediately before the date on which the said Code came into force in any Part B State, there is in force in that State any law corresponding to the said Code, that law shall on that date stand repealed. Section 98, Civil P.C., as now in force in Mysore provides for a reference where the Judges composing the Bench differ in opinion on a point of law when the appeal has to be heard upon that point only by one or more of the other Judges and such point must be decided according to the opinion of the majority, if any, of the Judges who have heard the appeal including those who first heard it. Under S.15(3), however, any material question upon which there is a difference of opinion can be referred to a Full Bench by either of the Judges composing the Bench and the decision of the majority of the Judges of such Full Bench will be the decision of the High Court: see - Nanjamma v. Lingappa, 54 Mys HCR 451 (FB)(O), where this matter has been dealt with. The question now raised is whether S.15(3) is or has now become ultra vires as being opposed to S.98(2), Civil P.C.

28. In our opinion, Section 4(1) of the Code of Civil Procedure affords a complete answer to this objection. It provides that in the absence of any specific provision to the contrary nothing in the Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed by or under any other law for the time being in force. The provision which has enabled one of the Judges to make a reference in this case was not contained in the Mysore Code of Civil Procedure Act 3 of 1911. It is embodied in a special or local law and conferred a special jurisdiction or power on the Judges of the High Court to adopt a special procedure which is expressly saved by S.4(a). This view is supported by a decision of the Federal Court reported in - Megh Raj v. Allah Rakhia, AIR 1942 FC 27 (P). In that case the Punjab Restitution of Mortgaged Lands Act set aside the normal procedure for redemption in the case of mortgages with possession and empowered the Collector, on application by the mortgagor, to extinguish the mortgage in certain circumstances or declare it extinguished and restore possession to him. The Act also barred jurisdiction of the Civil Court to entertain any claim regarding mortgages declared extinguished or any question regarding the validity of any proceedings under the Act. It was contended before the Federal Court that that Act was void under S.107, Cl. (1), Government of India Act, to the extent it conflicted with S.37, Indian Contract Act, or S.9, Civil P.C., or the Limitation Act. That contention was negatived by the Federal Court. Varadachariar J., as he then was, pointed out "that Section 37 of the Indian Contract Act which lays down that parties to a contract must either perform or offer to perform their respective promises " qualifies this statement by the words "unless such performance is dispensed with or excused under the provisions of any other law." When the statement of the general rule itself is so qualified, it is difficult to see how a law which excuses performance of any particular kind of contract can be said to be inconsistent with the section, which must be taken as a whole. The impugned law will only be one of the special cases contemplated or saved by the main or paramount Act. Likewise, S.9, Civil Procedure Code, postulates the jurisdiction of the ordinary Civil Courts to try all suits of a civil nature, except "suits of which their cognizance is either expressly or impliedly barred"; and S.4 lays down that in the absence of any specific provision to the contrary, nothing in the Code shall be deemed to limit or otherwise affect any special form of procedure prescribed by or under any other law for the time being in force. He referred to - United Provinces v. Mt. Atiqa Begum, AIR 1941 FC 16 at pp. 26 and 29, 30 (Q), where it was held that the qualifying, or saving words contained in S.9 precluded the contention that an Act which bars a civil remedy in certain cases is repugnant to the provisions of the Code of Civil Procedure. He based his decision on the principle stated in (1932) 48 CLR 128 (R) that where the paramount legislation does not purport to be exhaustive or unqualified, but itself permits or recognises other laws restraining or qualifying the general provision made in it, it cannot be said that any qualification or restriction introduced by another law is repugnant to the provision in the main or paramount law. He has also referred in this connection to (1926) 38 CLR 441 (S) and to Wynes Legislative and Executive Powers in Australia, p.102.

29. The provision contained in S.15(3) would also properly fall under Item 3 of List II State List "Administration of Justice" read with Item 65 "Jurisdiction and Powers" of all Courts except the Supreme Court with respect to any of the matters in List II. The pith and substance of the law contained in the Mysore High Court Act including Section 15 relates not simply or even mainly to procedure but to administration of justice and powers of the Judges "inter se" of that Court in administering law in that Court and properly falls within the ambit of the State Legislature. As observed by Das, J. in - State of Bombay v. Narottamdas Jethabhai, AIR 1951 SC 69 (T), the doctrine of pith and substance would save any incidental encroachment by an impugned law if it is really and in substance within the legislative field of the particular Legislature. Unless any provision in that Act is against any of the provisions of the Constitution relating to the establishment and organization of the High Courts, which is excepted in Item 3, List II and which are provided for in Arts.214 to 225 of the Constitution or the special powers granted to the High Courts, say for instance by Arts.226 to 230 or to the restriction imposed by Art.231 on the powers of the Legislature of any State to make laws with respect to the jurisdiction of a High Court with its principal seat in one State in relation to any area outside that State, it cannot be said that the law contained in S.15(3) of the High Court Act is affected by Art.254(1).

30. Article 225 of the Constitution provides that subject to the provisions of the Constitution and to the provisions of any law of the appropriate Legislature made by virtue of the power conferred on that Legislature by the Constitution the jurisdiction of and the law administered in existing High Courts and the respective powers of the Judges thereof in relation to the administration of justice in that Court including any power to make rules and to regulate the sittings of the Courts and members thereof sitting alone or in division shall be the same as immediately before the commencement of the Constitution. The meaning of the expression "administration of justice" has been the subject of discussion in AIR 1951 SC 69 (T), which was a case arising out of provisions similar to those of the Government of India Act, and Mahajan J. has observed at page 83: "It seems to me that the Legislative power conterred on the Provincial Legislature by Item 1 of List II has been conferred by use of language which is of the widest amplitude (administration of justice and constitution and organisation of all Courts). It was not denied that the phrase employed would include within its ambit legislative power in respect to jurisdiction and power of Courts established for the purpose of administration of justice." Fazl Ali, J. has defined "power" as being a comprehensive word which includes all the procedural and substantive powers which may be exercised by a Court. He has referred to some local and special Acts such as S.13, Aircraft Act, 1934, S.24, Arms Act, 1878, S.10, Central Excises and Salt Act, 1944, Sec.13, Pood Adulteration Act, 1919 and the various Acts relating to money-lenders and moneylending in which power has been given to Courts to pass certain special and unusual orders which might not have been open to them under either the Code of Civil Procedure or the Code of Criminal Procedure or ordinary legislative enactments. He has also discussed the difficulty of accepting an interpretation similar to the one now put forward for the appellant on the entries in the legislative list as involving a curtailment of the meaning of the expression "administration of justice" in such a way as to rob it of its primary content - the jurisdiction and power of the Court without which justice cannot be administered. He has also referred to the anomalies and difficulties attendant upon such an interpretation.

31. That decision is of course based on the provisions of the Government of India Act and the powers of the various Legislatures given under it. Those items are now different under the Constitution, and the constitution and organization of the High Courts and the special powers of the High Court granted under the constitution has been taken away now from the ambit of the Provincial Legislation. But the power to legislate in respect of jurisdiction and powers of all Courts except the Supreme Court with respect to any of the matters in the list including administration of justice by virtue of Items 3 and 65 still remain in the State List. This would I think cover a provision of law like S.15(3) and save it under Art.225 read with Art.254(1) of the Constitution. There is therefore no force in the preliminary objection.

32. As regards the question referred to the Full Bench I have already expressed my opinion in AIR 1952 Mys 80 (D) that a suit like the present is really governed by Cl. (e) of S.4(iv), Court-fees Act, that the proviso to S.4(iv)(c) does not apply to such a case and that the plaintiff can pay court-fee on the amount at which he values the relief sought. The plaintiff in that case is the neighbour of the defendants on one side of their house while the plaintiff in the present case is their neighbour on the other side and the allegations in the pleadings are practically identical. Mr. Lakshminaranappa who also appeared in that case for the defendant has said nothing new which would persuade me to alter my view. I have referred in that case to the observations of Avory, J. and Lord Hewart, C.J. in - The King v. William Jones, (1929) 1 KB 211 (U) and to - Durham and Sunderland Rly. Co. v. Walker, (1842) 114 ER 364 (p.374) (V) and - Shri Nath Singh v. Kashinathrao, AIR 1951 All 570 (W) on which he relied. He has now referred to case in - Tolaram Relumal v. The State of Bombay, AIR 1954 SC 496 (X), (which was a case of a criminal appeal) wherein it has been observed that even if the words "in respect of" used in S. 18, Bombay Rents, Hotel and Lodging House Rates Control Act, are given as their widest meaning "relating to" or with reference to the accuseds act did not aim at an offence. That has really no bearing on the present discussion. I have referred to and chosen to follow AIR 1936 Mad 201 (K), wherein Varadachariar, J. (as he then was) held that the prima facie interpretation of the expression, "relief sought is with reference to immovable property" is that the dispute in some sense should relate to immovable property, and to the following observation of Somayya, J. in AIR 1946 Mad 235 (L), which has followed that decision: "The only decision on the point is that of Varadachariar J. in AIR 1936 Mad 201 (K) and, in my opinion that is the correct view to take. It is preposterous to say that where a plaintiff wants a right of passage across his neighbours land the plaintiff should be called upon to pay court-fee on half of the full value of the neighbours land. There are other difficulties in the way of accepting the petitioners argument. Obviously such cases come under S.7, clause (iv)(e) and that result is achieved by confining the Madras amendment to cases where title to possession of immovable property is involved."

33. Subsequent to the decision in AIR 1952 Mys 80 (D), the same question came up for consideration before Venkatarama Ayyar J. (now a Judge of the Supreme Court) in AIR 1952 Mad 41 (J). That was a suit for a declaration that the defendants who owned some neighbouring lands which were on a higher level than that of the plaintiff had no right to drain their water from their fields into that of the plaintiff and for a permanent injunction restraining the defendants from cutting open the bund and draining their surplus water into his fields. Venkatarama Ayyar J. held that the suit involved a simple case of easement and no question of title or possession and would fall under S.7(iv)(e), corresponding to S.4, Cl. (iv)(e) of our Act. The plaintiff, he said, was at liberty to put his own valuation and that was final, and neither Section 7 (v)(c) nor (d) nor Art.17 (b) could have any application. The language of S.7, Cl. (iv)(e) which provides for suits for a right to some benefit to arise out of land, not therein otherwise provided for applied to suits to enforce rights of easement and there was ample authority for the position that such suits should be valued under that clause. In support of his conclusion he has referred to the judgment of Varadachariar J. in AIR 1936 Mad 201 (K) and followed the judgment of Somayya, J. in AIR 1946 Mad 235 (L). He has quoted with approval the observation of Varadachariar, J. in AIR 1936 Mad 201 (K) that- "If a suit is substantially one for easement it will fall not under sub-section (c) of S.7(iv) but under sub-clause (e) and the Madras Amendment introduced a proviso only to sub-clause (c) and not to sub-clause (e)." He has also referred to and discussed the decision of Jackson, J. in AIR 1927 Mad 348 (I). He has pointed out that Jackson, J. had not in that case decided that such a suit fell within S.7 (iv)(c). He had only decided that it did not fall under Section 7, Cl. (v), viz., suits for possession. In that case, as in the case before him, the plaintiff had sought to establish a right of easement and had prayed for consequential relief by way of injunction; but as the plaintiff himself had submitted to the order of the lower Court to pay the higher court-fee and the defendant had come up in revision saying that court-fee should have been paid as in a suit for possession on the full value of the property, the High Court had no occasion to decide under which clause the valuation fell. But, he observed, the words "where relief was sought with reference to any immovable property" were construed even by Jackson, J. as meaning "involving possession of lands, houses or garden" and as not including easements. Venkatarama Ayyar J. therefore was of the opinion that that case was really some authority for the position that easement suits did not fall under S.7 (iv)(c).

34. In this connection reference may be made usefully to a decision of Wadsworth, J. in AIR 1941 Mad 91 (C). There the plaintiff brought a suit for injunction to restrain the defendants from carrying out some projected works on his own lands which he alleged would endanger the customary flow of water to the plaintiffs land. He valued the injunctions and paid court-fee on them. The valuation was objected to on the ground that the plaintiff should have sought for declaration of his right of easement and injunction and that the case fell under Cl. (c). Negativing that contention Wadsworth, J. observed that in matters of court-fee and pecuniary jurisdiction the real substance of the suit and not the form in which it is clothed should be looked into. It is only if it was legally necessary for the plaintiff to obtain a declaration of his right to easement before he could get an injunction to protect it the suit would have to be valued under S.7 (iv)(c). It was incumbent on the plaintiff to pray for such a declaration only when there was some legal obstacle which had to be removed before a consequential relief could be granted. But if the plaintiff merely averred a title which could be established without the cancellation of a document or the nullification of any adverse title and only claimed a relief which would naturally flow from the establishment of the title which he averred it was not necessary for the plaintiff to pray expressly for a declaration of that title and in such a case it was not necessary for him to pay court-fee on the footing that the finding which he sought as to his title was really a declaration necessarily required as a preliminary to the grant of an injunction and it did not matter whether he had or had not asked for a declaration in the plaint. The plaint in such a case fell under S.7 (iv)(d) and not under S.7 (iv)(c) and the plaintiff was entitled to put his own valuation on the injunction which he sought and the Court had no power to revise that valuation even if it was palpably inadequate. He referred to AIR 1927 Mad 348 (I) at p.94 of the report and has interpreted that judgment as holding that the suit fell under S.7 (v)(c) and that the subject-matter was not land but the value of the easement.

35. Balakrishnaiya, J. has tried to distinguish the cases reported in AIR 1936 Mad 201 (K) and AIR 1946 Mad 235 (L) and has relied on some observations of Jackson, J. in AIR 1927 Mad 348 (I) in preference to the judgments of Varadachariar, J. and Somayya, J. I would respectfully agree with the interpretation put upon the judgment of Jackson J. by Venkatarama Ayyar, J.

36. There is also another aspect from which the plaintiffs suit can be viewed. The disputes between the parties are really not with reference to any claim by the plaintiff of any right, title or interest in the immovable property of the defendants or involve a declaration of his title to or right to possession of the property owned by himself. They merely relate to the implementation or enforcement which the plaintiff seeks for the better or more beneficial enjoyment of his own property of some terms and conditions said to have been laid down by the Municipality for observance by all the purchasers of their sites and which the defendants say that the plaintiff cannot do as those terms and conditions are only to govern as between himself and the Municipality and cannot be availed of by the plaintiff.

37. In AIR 1952 Mys 80 (D), I have referred to the hardship, uncertainty and difficulty in valuing a suit like the present if the contention of the Respondents were to be accepted. If with reference to immovable property in connection with a suit means relating to or in respect of immovable property, however remote may be the connection or reference, it is a question why the defendants property should be the subject for plaintiffs valuation of his relief. It might with equal force of logic apply to the plaintiffs property and what is the disputed property. Is it the site or building on it or both? Is the valuation dependant on and vary with the stage at which the defendants house construction stands at the time of the suit and how an incomplete building to be valued? I have pointed out in AIR 1952 Mys 80 (D) how difficult it is to determine the valuation if the same is to be made on the basis of the likely loss or damage to the plaintiff as directed in - Mir Akhtar Hossain v. Gurupada Haldar, AIR 1940 Cal 560 (Y). That difficulty is clearly apparent from the direction contained in the concluding paragraph of Balakrishnaiya J.s judgment wherein he has directed the Court below to give an opportunity to the plaintiff "to value the portion of the property in dispute and allow him to pay court-fee on half the value of such disputed property"; and added that "if however the whole property is likely to be in dispute then the court-fee will have to be paid on half the value of the whole property." Far from finding a ready and expeditious method of determining the court-fee on which would depend the jurisdiction of the Court such a direction would require the embarking by the Court on an elaborate enquiry where a great deal of controversy would be raised as to the exact portion or part of the property of defendants which is likely to be affected by granting the injunction even before it is granted or its exact nature and scope determined, and the determination of the market value of such portion. Instead of trying the suit on its merits and doing justice between the parties, the Court will be losing itself in a maze of complicated questions which are really collateral and very subsidiary and with respect to which the Respondents cannot justly claim to have any real and vital interest. The present case itself affords a striking example of the delay and difficulty attendant on the launching of such a comparatively barren enquiry for the purpose and in the hope of merely collecting some more court-fee.

38. Mr. Lakshminaranappa appears to have raised before the Bench the question of the finality of the valuation made by a plaintiff in such a case. That matter was however not argued before us and it has not been shown how the valuation made by the plaintiff in this case is unduly low or arbitrarily undervalued. Venkataramaiya, J. has, in support of his order which accepts the plaintiffs valuation, referred to the cases bearing on the point including - Narasamma v. Venkatappa, 23 Mys CCR 197 (FB) (Z), wherein Sir Leslie Miller C.J. has observed at page 208 that the language of Section 4 (iv) (c) is in favour of the view that the plaintiffs valuation cannot be questioned (see also - Chinnammal v. Madarsa Rowther, 27 Mad 480 (Z1) and AIR 1952 Mad 41 (J)).

39. I therefore agree with Venkataramaiya, J. and would answer the reference by saying that the plaintiffs suit is really governed by Cl. (e) of Section 4 (iv), Court-fees Act and that the plaintiff could have simply valued the relief sought and paid court-fee on the amount on which he valued it. The plaintiff has somewhat complicated the matters by fixing the value of his suit on the basis of half the value of the portion of the defendants site which, according to him, he should have left vacant and for the purpose of deciding this case that may be accepted as sufficient and proper valuation.

40. I think the plaintiff in this case has been somewhat to blame for not taking a definite stand as to the exact clause under which the suit was to be valued and this has led to this reference. I would, therefore, while allowing the appeal, direct the parties to bear their own costs in this court. Appeal allowed. (S) AIR 1955 MYSORE 76 (Vol. 42, C.N. 25) "Irani Basettappa v. Municipal" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Irani Basettappa, Appellants v. Municipal Council Davangere City Municipality, Respondent. Second Appeals Nos.419 and 420 of 1950-51, D/- 3 -11 -1953, against decree of Sub. J., Chitaldrug in R.A. Nos.20 and 29 of 1949-50. Contract Act (9 of 1872), S.2(h) - CONTRACT - MUNICIPALITIES - Contract - Offer and acceptance - Purchase of site from Municipality - Resolution of Municipal Committee. Municipalities. Mysore City Municipalities Act (7 of 1933), S.41(7). Where the defendant applied to the municipality for a site and the municipal committee by its resolution granted a site to the defendant in pursuance of the resolution and the defendant deposited the money: Held that whether the defendants application for the site was treated as an offer and the resolution of the Municipal Council was treated as an acceptance or whether the resolution was treated as an offer and the Defendants depositing the required purchase money was treated as an acceptance, clearly a concluded contract had come into existence. (Para 4) (The case was remanded for adducing evidence on the question of applying S. 53A, T.P. Act, and it was held that it would be after that that the effect of S.41(7), Mysore City Municipalities Act, would be considered. (Para 8) Anno: Contract Act, S.2(h) N.1. Cases Referred : Chronological Paras (A) (V31) AIR 1944 Bom 105 : 212 Ind Cas 543 5 (B) (V37) AIR 1950 SC 1 : 1950 SCR 75 (SC) 5 (C) (V31) AIR 1944 Oudh 212 : 19 Luck 565 5 (D) (22) 28 Mys CCR 119 6 (E) (05) 27 All 592 : 2 All LJ 321 6 (F) (04) 28 Bom 66 : 5 Bom LR 689 6 (G) (37) 42 Mys HCR 507 6 (H) (41) 46 Mys HCR 258 6

V. Krishnamurthy, for Appellant; M.K. Srinivasa lyengar, for Respondent. Judgement In O.S. No.499 of 48-49 the plaintiff Erani Basetappa prayed for a similar declaration that he was the owner of the same piece of land or in the alternative directing the Municipal Council to execute a sale deed conveying the same to him for the consideration of Rs.500/- which had already been paid by him or for a proper title deed and for a similar injunction. Defendant 2 was impleaded in that suit as he was claiming some interest in the site under a later grant from the Municipal Council. The Davangere Municipal Council, who will hereafter be referred to as the plaintiff, admitted in its plaint that by a resolution of the Council at a meeting held on 22-11-47, it had granted the site in question to Erani Basettappa, who will hereafter be referred to as defendant. But the resolution had been passed under some mistake and by a later resolution at a meeting held on 20-10-48 the earlier resolution was cancelled. The first resolution was communicated to the defendant on 1-12-47 and the defendant had deposited the value of the site later on. Subsequently, the later resolution was also communicated to the defendant on 17-11-48 and he could not therefore claim any rights in the site. Possession had not been given to him by the plaintiff and he could not apply for permission to build on it. His application for license load therefore been rejected, though somewhat late, but the same did not confer any right on the defendant to build on the schedule site which was vested in the plaintiff and which continued to belong to the plaintiff and to which the defendant did not acquire any right in law. Moreover it was pleaded that the contract of sale of that space had to be completed by the same being reduced to writing and signed by the President, or Vice-President and two Councillors and sealed by the common seal of the Council if it was to have any validity, and as these formalities specified by S. 41(7), City Municipalities Act (Act 7 of 1933) had not been observed the defendant could not enforce any rights under the resolution.

2. The defendant pleaded that he had all along been in possession and was using the suit land for over 20 years, that he had applied to the Municipality for the grant of it, that a resolution had been passed granting him the same, that the same was communicated to him and that in pursuance of it he had paid the entire purchase money of Rs.500/- and obtained a proper receipt therefor. He was permitted to take possession of the site and continued as owner thereof. He had applied for a licence to the Municipality for erecting a compound wall. As the Municipality had not replied within 30 days he had secured a statutory right to effect the construction and the subsequent resolution of the Municipality could not therefore affect him. With regard to the objection of the plaintiff based on S.41(7), City Municipalities Act, he pleaded that the resolution recorded the required sanction of the Council and conferred title and the objection taken by the Municipal Council was not sustainable in law and even if that section applied, under S.53-A, Transfer of Property Act, the plaintiff was debarred from claiming to dispossess the defendant.

3. The learned Munsiff who tried the suit did not record any evidence. He heard arguments after marking as exhibits the two resolutions aforesaid. He upheld the objection of the plaintiff based on S.41(7), Municipalities Act, and decreed the suit of the Municipal Council and dismissed the suit of Erani Basettappa. On appeal the Subordinate Judge of Chitaldrug upheld his decision. Erani Basettappa has filed these two second appeals which can be disposed of by a common judgment.

4. The learned Munsiff was of the view that there was no concluded contract between the parties and that the resolution of the Municipal Council could in no event be treated as a concluded contract. Here I think he is clearly wrong. A contract requires an offer and an acceptance. The acceptance may be either express or implied. Whether the defendants application for the site is treated as an offer and the resolution of the Municipal Council is treated as an acceptance or whether the resolution is treated as an offer and the defendants depositing the required purchase money is treated as an acceptance, clearly a contract has come into existence. If the first resolution was communicated to the defendant, as it admittedly was done, and he deposited the full purchase money, it is difficult to see what more was required to constitute a concluded contract. A contract between two private individuals to sell or purchase immoveable property does not require any writing and can even be by an oral agreement and such an agreement can be enforced by a suit for specific performance. Sale is transfer of ownership in exchange for a price paid or promised and can be made only by a registered instrument, in the case of immoveable property of the value of over Rs.100/-.

5. It is contended by Mr. V. Krishnamurthy, learned counsel for the appellant, that there was no longer any contract for sale to be enforced as such between the parties. The contract had been executed as the price had been deposited and the only thing left was the execution of a sale deed which the plaintiff was bound to give under S.55(1)(d), Transfer of Property Act. This was a statutory right independent of any contract. Mr. Krishnamurthy has also urged that the case reported in - Hormasji Jamshedji Ginwala and Sons v. Maneklal Mansukhbhai, AIR 1944 Bom 105 (A), on which the learned Munsiff has relied and which held that under S.53-A, Transfer of Property Act, if a contract was required to be reduced to writing and signed, it must itself be proved by primary and secondary evidence and its terms must be determined from the contract itself and not from what purports to be its quotation in another document, had been set aside on appeal by the Supreme Court in - Maneklal Mansukhabhai v. Hormusji Jamshedji Ginwala and Sons, AIR 1950 SC 1 (B), where it has been held that a formal lease is not necessary to attract the application of S.53-A, all that was required being that an agreement in writing signed by the transferor can be gathered from the evidence. The word transferor will naturally include any person who is authorised to sign for him. In - Ewaz Ali v. Mt. Pirdous Jehan, AIR 1944 Oudh 212 (C), it has been held that all that S.53-A requires is that there should be a writing signed by the transferor and from it the terms necessary to constitute a transfer should be as certainable with reasonable certainty. In that case a receipt which had been given by the vendor for the earnest money in respect of the sale of a house was held to be such a contract in writing within the intendment of S.53-A, Transfer of Property Act. In this view it may be open to the defendant to rely not merely on his application and the resolution but also on the terms of its communication to him and other correspondence between himself and the Municipal Council in that matter and the terms of the receipt which he obtained for the payment of the purchase money. This part of the case could, therefore, not have been disposed of without recording evidence.

6. The learned Munsiff was of the view that assuming there was a contract it was still executory and not executed and that the defendant was barred by S.41(7), City Municipalities Act, from relying on any such writing or from invoking the aid of S.53-A, Transfer of Property Act, as the necessary formalities required under S. 41(7) had not been observed. It is urged by Mr. Krishnamurthy that S.53-A is in general terms and that "where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute a transfer can be ascertained with reasonable certainty and the transferee has, in part performance of the contract, taken possession of the property, or the transferee being already in possession continues to be in possession in part performance of the contract and has done some act in furtherance of the contract and the transferee has performed or is willing to perform his part of the contract, then notwithstanding that the contract though required has not been registered or where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any rights in respect of the property." Mr. Krishnamurthi urges that in the present case the transferee has already in performance of the contract paid the whole of the purchase money and is in possession; and has applied for a licence to construct a compound wall and must be deemed to have been granted that permission as the Municipal Council has not objected in time; that there is nothing more for the transferee to do and that he is entitled to claim a formal sale deed and even without such a sale deed the plaintiff is debarred from claiming any rights over the property under S.53-A. The learned Munsiff has referred to some cases none of which deals directly with the sale or contract to sell immoveable property by a Municipal Corporation, or where a provision like S.41(7), City Municipalities Act, has been considered in connection with such sale or a completed contract to sell. They are cases of contracts relating to moveable property; Vide - Munivenkatappa v. Bangalore City Municipal Council, 28 Mys CCR 119 (D); - Radha Krishna Das v. Municipal Board, Benares, 27 All 592 (E), right of collection of tolls, vide - Abaji v. Trimbak Municipality, 23 Bom 68 (F); 42 Mys HCR 507 (G); 46 Mys HCR 258 (H), (which is more in favour of the defendant) enforcement of road contracts with District Boards, and even in those cases it has been held that if the contract has been executed (vide 46 Mys HCR 258 (H)), the section which prescribes the formalities for such contract to be valid may no longer have any significance and that it is only if the contract is to be enforced that the question of the bar comes in. Even in this Court I have not been referred by the respondent to any case which lays down that in circumstances like the present a person in the position of the defendant cannot rely upon S.53-A or wherein it has been held that a Municipal Council which has in pursuance of a contract to sell received the full purchase money and has either put or has permitted the purchaser to take or remain in possession can plead the bar of S.41(7), City Municipalities Act.

7. It is urged by Mr. Krishnamurthy with considerable force that the Municipalities in the State, almost as a rule, never issue registered sale deeds nor enter into formal contracts to sell sites in accordance with S.41(7), City Municipalities Act, that they usually auction sites, or merely receive the purchase money and issue receipts or certificates to evidence sale of the sites and that it would be putting a premium on bad faith if Municipalities are allowed, long after such sales, to claim the benefit of S.41(7) and that no title would be safe as the Municipalities have 30 years within which they can bring suits for possession of the sites ignoring their own resolutions and actions including receipt of consideration. I do not wish to say anything further in this matter as when the question of applying S.53-A arises after the parties have adduced evidence the trial Court may be called upon to consider the effect of S.41(7) also in that context.

8. In the result these two appeals are allowed, the judgments and decrees of the Courts below are set aside and the suits are remanded to the trial Court which will permit both parties to adduce all their evidence and dispose of the suits afresh in accordance with law. As regards costs Erani Basettappa will have his costs in both the appeals both here and in the lower appellate Court. The costs of the trial Court will be costs in the cause and will abide the final decision in the suit. The Court-fee paid in these second appeals will be refunded to the appellant. Appeals allowed. (S) AIR 1955 MYSORE 79 (Vol. 42, C.N. 26) "Narasimha v. Sengodi" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND VASUDEVAMURTHY, JJ. ( Division Bench ) S.N. Narasimha Raghavachar, Obstructor-Petitioner v. S.S. Sengodi Mudaliar, Plaintiff-Respondent. Civil Revn. Petn. No.158 of 1954, D/- 15 -12 -1954, against order of Sub. J., Shimoga, D/- 23 -2 -1954. Civil P.C. (5 of 1908), O.39, R.7 - INJUNCTION - INSPECTION - Commission cannot be directed to enter upon land of stranger and inspect property not subject matter of suit - Procedure. A stranger cannot be directed or rather compelled at the instance of a party to a suit to allow a Commissioner appointed by the Court to enter upon his lands for purpose of inspection and preparation of an inventory as regards property not subject matter of suit. (Paras 2, 3) Except in cases, such as representative suits a person who is not a party to a proceeding is not bound by orders passed therein and as such the Court should avoid contingency of causing unnecessary annoyance and harassment to third parties by passing orders on the ground that these would further the interests of a litigant. The proper course to be adopted if the order is to be binding on them is to implead them as parties to the action. (Para 4) Ordinarily notice should be given to the party against whom the order under O.39, R.7 is sought to be enforced. While that is so when the person concerned is a party to the suit, there is greater need for it in the case of a third party. The fact that the stranger was represented by counsel cannot be a ground to pass an order not warranted by law and extend the scope of the Rule to the prejudice of persons not concerned with the proceedings. (Para 5) Anno: C.P.C., O.39, R.7, N.2C, 3, 5. Cases Referred : Chronological Paras (A) (V6) AIR 1919 Cal 312 : 52 Ind Cas 4 3 (B) (96) 24 Cal 117 : 1 Cal WN 99 2 (C) (1913) 1913-1 KB 150 : 82 LJ KB 117 3 (D) (1883) 10 QBD 465 : 52 LJ QB 269 3 S.K. Venkatarangiengar, for Petitioner; D.M. Chandrasekhar, for Respondent. Judgement ORDER:- This case has been referred to a Division Bench by the learned Judge before whom it was first posted for hearing as the point involved for decision is said to be a novel one about which there is no ruling of this Court. The question raised is whether a stranger can be directed or rather compelled at the instance of a party to a suit to allow a Commission appointed by the Court to enter upon his lands for purpose of inspection and preparation of an inventory as regards stumps of trees etc. On the application I.A. 23 filed by the plaintiff in a suit relating to partnership after passing of a preliminary decree a Commissioner was appointed to make a report about the quality and number of trees cut and removed some years ago by seeing the stumps. It appears that the petitioner sold the trees to the defendant in the suit under Ex.VIII or Ex.M and that the information sought for has a bearing on the final decree to be passed in the case. The petitioner offered obstruction to the -commissioner when he tried to enter upon his lands and thereupon an application, I.A. XXXI for removal of the obstruction was filed by the plaintiff. The learned Sub-Judge allowed the application rejecting petitioners contentions and the correctness of this is required to be examined.

2. It is conceded that the order can be justified if the provisions of O.39, R.7, Civil P.C. are applicable to the case and not otherwise. The said Rule is as follows: "The Court may, on the application of any party to a suit, and on such terms as it thinks fit, (a) make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit, or as to which any question may arise therein; (b) for all or any of the purposes aforesaid authorise any person to enter upon or into any land or building in the possession of any other party to such suit;" X X X X As is evident from the words in the Rule, an order of the kind mentioned therein can be passed only with respect to property which is the subject matter of the suit. Admittedly the lands belong to the petitioner and are not included in the litigation. There are also no trees at present on the lands. It is difficult to hold that the stumps alleged to be and if at all in existence are the subject matter of the suit, whatever may be the view as regards the trees which were cut and removed some years ago after sale to one party or the other in the suit.

3. A more important point than this which has to be taken into account is that petitioner is not a party to the suit. Clause (b) of R.7 expressly mentions that the person against whom the order may be made should be a party to the suit. Sri Chandrasekhar on behalf of the respondent argued that it is enough if the requirement of cl. (a) about the property being the subject matter of the suit is satisfied and that cl. (b) is disjunctive. He did not refer to any case in support of such a construction. - Jitendra Nath v. Asoke Nath, AIR 1919 Cal 312 (A), cited for the petitioner is distinguishable as the order was one against a party to the action but it suggests that he should have at least control over the property he is called upon to produce. As pointed out by Ameerali, J. in - Dhoroney Dhur v. Radha Gobind, 24 Cal 117 (B), the words of O.39, R.7, Civil P.C. are the same as in the English Supreme Court rule. In - Coomes and Son v. Hayward, 1913-1 KB 150 (C), the construction of O.12 R.3 of the County Court Rules 1903 and 1904 similar to cl.2 of O.39 R.7, Civil P.C. was raised. It was held that an order cannot be made under the rule to inspect the property of several tenants in common, some of whom are not before the Court. Reliance was placed in that case on the observation in - Kearsley v. Philips, (1883) 10 Q.B.D. 465 (D) that "the right to the production and inspection of documents does not apply to documents which are not in the sole possession or power of the party to the suit who is called upon to produce them but are only in his possession or power jointly with some other person who is not before Court". with the remark that those words apply to the case and that the other co-tenants should have been made parties to the action. There is stronger reason for not allowing inspection in the present case as the lands are the exclusive property of the petitioner and the defendant has no interest whatever in these.

4. Except in cases such as representative suits a person who is not a party to a proceeding is not bound by orders passed therein and as such the court should avoid contingency of causing unnecessary annoyance and harassment to third parties by passing orders on the ground that these would further the interests of a litigant. The proper course to be adopted if the order is to be binding on them is to implead them as parties to the action.

5. The order of the lower Court suffers from other defects. It has been stated in several cases that ordinarily notice should be given to the party against whom the order under the Rule is sought or (sic) to be enforced. While that is so when the person concerned is a party to the suit, there is greater need for it in the case of a third party. It is not shown that there was urgency or other justifiable reason to dispense with notice to the petitioner. The learned Judge seems to be influenced by the fact that the petitioner was represented by counsel for the defendant. This cannot be a ground to pass an order not warranted by law and extend the scope of the Rule to the prejudice of persons not concerned with the proceedings. The petitioner was not even asked if he has any objection to the application of plaintiff and when he protested against enforcement of the order he is directed to give way as if there is an obligation on him in relation to the plaintiff. The order is unjust and summary. It is therefore set aside. I. As. 23 and 31 are both dismissed. Parties will bear their own costs in this Court. Order set aside. (S) AIR 1955 MYSORE 81 (Vol. 42, C.N. 27) "Gopala Chetty v. Director of Public Instruction" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA AND VASUDEVAMURTHY, JJ. ( Division Bench ) T.K. Gopala Chetty and another, Petitioners v. Director of Public Instruction in Mysore and another, Respondents. Writ Petn. No.84 of 1954, D/- 4 -3 -1955. (A) Constitution of India, Art.226, Art.19(1)(g), Art.245 - WRITS - FREEDOM OF TRADE - LEGISLATION - Notification by Director of Public Instruction prescribing certain copy books for use in schools - Order arbitrary and creating monopoly - Notification quashed. By a petition under Art.226, two Notifications dated 20th and 30th March 1954 respectively and a Circular dated 11-5-1954 issued by the Director of Public Instruction in Mysore were attacked as being unwarranted and unconstitutional. The notifications prescribed the text books and copy books to be used in all the Primary and Middle Schools of the State. Objection was taken only to the prescription of the Kannada Copy Books described as "Adarsha Lipi Pusthaka" printed by the second Respondent. Special emphasis was laid on the use of the Copy books by means of a "N.B." in the notifications, and the Educational Officers were enjoined in the Circular to enforce the same. The petitioner was a dealer in Kannada copy books, who was materially affected by his books being excluded from use in schools during the year. It was alleged by him that the orders were arbitrary and designed to benefit a particular businessman by creating a monopoly of trade in his favour. Held that on reading the provisions in the Mysore Education Manual and Notifications as a whole, the Director could not be deemed to be competent to prescribe the books of his choice suo motu. (Para 4) (2) That the agency for determining the text books was the Secondary Education Board and the determination had to be given effect to by a formal notification. In any event, the consideration of the books by the Board was a pre-requisite for an order prescribing them. (Para 6) (3) That the principle that if there are no rules for guiding and controlling the exercise of discretion by the person or body of persons then the power must be held to arbitrary and unreasonable applied to the acts of the Director. AIR 1951 Cal 90 and AIR 1952 Mad 565, Ref. (Para 9) (4) That under Article 19 (1) (g) of the Constitution the citizen had the right to carry on any occupation, trade or business, subject to such restrictions as the State may impose in the interests of the public and such qualifications as are necessary for carrying on any occupation, trade or business. (Para 9) (5) That the persons who made a living by sale of books or to whom it was a calling and those who had to provide the books necessary for education of pupils who depend on them were entitled to expect and demand the observance of rules and adherence to methods settled by practice so that there was no room for doubt - fancied or real - about play of personal predilections in the choice of books. (Para 9) (6) That the orders in question were found to be without or in excess of jurisdiction and not in conformity with practice. Restrictions were placed on the use of books published by the petitioner and several others by granting monopoly of supply to the 2nd respondent. The burden of paying more for the 2nd respondents books than for books of others was imposed on the pupils. Orders suffered from the infirmity of the absence of reasons for all this. The petitioners were, therefore, justified in challenging them and the notifications and the circular so far as the copy books of 2nd respondent were concerned were quashed. (Para 10) Anno: AIR Com.: Const. of India, Art.226, N.119; Art.19, N.72, 77, 79. (B) Constitution of India, Art.226 - WRITS - HIGH COURT - Powers of High Court under - Extent of - Administrative Orders. The powers of the High Court under Article 226 are wide and not limited to cases for safeguarding fundamental rights as implied from the words "for any other purpose." AIR 1952 Nag 330 and AIR 1953 Mys 156 (FB), Ref. (Para 10) Administrative orders may be challenged by a petition under Art.226 if those involve infringement of constitutional rights or disregard of rules. AIR 1952 All 752 and AIR 1952 All 753, Ref. (Para 9) Per Vasudevamurthy, J.: Under Article 226, the High Court has ample powers to issue to any person in authority, including any Government, a direction for the enforcement of any of the rights conferred by Part III and for any other purpose. Interference by the Court will be warranted by the law when even an executive authority is not exercising its powers bona fide for the purpose contemplated by the law or influenced by extraneous and irrelevant considerations and where injustice has resulted. AIR Commentary on Constitution, Art.226 N.119, Rel. on: (Distinction between bona fide actions and mala fide actions pointed out). (Paras 22, 23) Anno: AIR Com., Const. Ind., Art.226, N.7, 17, 119. (C) Constitution of India, Art.226 - WRITS - Existence of other remedy - Effect. Ordinarily, the court will not allow parties to invoke the aid of Art.226 when they have other means of obtaining redress and their rights or interests are not substantially affected by the acts or orders of the authorities. (Para 9) Anno: AIR Com., Const. Ind., Art.226, N.19. (D) WORDS AND PHRASES - Words and Phrases - Text book - Meaning - Copy book is not a text book. The word "Text book" would involve either some original matter contributed and published by the author or it may even include an intelligent selection of the work of another author or authors for use in schools. It may also include some books which have been copyrighted and if the scheme of the book or books involves a graduated or considered study or training the particular subject like say books of drawing, it might be said to be text-book. A copy book cannot, however, be strictly a text-book in that sense. (Para 17) Cases Referred : Chronological Paras (A) (V38) AIR 1951 Cal 90 9 (B) (V39) AIR 1952 Mad 565 : ILR (1952) Mad 957 9 (C) (V41) AIR 1954 SC 561 : 1934 SCJ 678 (SC) 9 (D) (V39) AIR 1952 All 752 : ILR 1953-1 All 251 9 (E) (V39) AIR 1952 All 753 : ILR 1953-2 All 112 (FB) 9 (F) (V37) AIR 1950 SC 163 : 1950 SCR 566 (SC) 10 (G) (V39) AIR 1952 SC 115 : 1952 SCR 572 (SC) 10 (H) (1950) 1950 AC 235 : 1949-2 All ER 755 10

(I) (V41) AIR 1954 SC 728 : 1954 SCJ 819 (SC) 10 (J) (V39) AIR 1952 Nag 330 : ILR (1952) Nag 409 10 (K) (V40) AIR 1953 Mys 156 : ILR (1953) Mys 440 (FB) 10

(L) (V41) AIR 1954 SC 592 : 1954 SCJ 644 (SC) 23 S.K. Venkataranga Iyengar, for Petitioners; Advocate-General (for No.1) and M.P. Somasekhara Rau (for No.2), for Respondents. Judgement VENKATARAMAIYA, J.:- Two notifications dated 20th and 30th March 1954 respectively and a Circular dated 11-5-1954 issued by the Director of Public Instruction in Mysore are attacked in this petition filed under Art.226 of the Constitution of India as being unwarranted and unconstitutional. The notifications prescribed the text books and copy books to be used in all the Primary and Middle Schools of the State during the year 1954-55. Objection is taken to the prescribing note of text books i.e., books to be read and taught but of the Kannada Copy Books described as "Adarsha Lipi Pusthaka" printed by Maruthi Book Depot, laying special emphasis on the use of these by means of a "N.B." in the notifications and enjoining Educational Officers in the Circular to enforce the same. Of the two persons who have filed the petition, the first is a dealer in Kannada copy books, who of course would be materially affected by his books being excluded from use in schools during the year; the second petitioner is a Christian who complains that the books contain writings on tenets of a particular creed and inculcate sectarian precepts in the minds of the pupils who copy the same. It is alleged by both that the orders are arbitrary and designed to benefit a particular businessman by creating a monopoly of trade in his favour. These allegations are denied in the counter-affidavits of the Director. The person in whose favour the orders were made was not impleaded in the petition. He applied for permission to be added as a party in the proceedings after petitioners applied for and obtained an order to stay the operation of the orders. Since he is a person interested in the result of the case, his right to participate in the proceedings was not seriously questioned by the other parties and he has been therefore treated as 2nd respondent in the case.

2. The orders have been subjected to severe and searching criticism in the affidavits filed by the petitioners and the arguments advanced by their learned counsel Sri Venkataranga Iyengar. The learned Advocate-General on behalf of the Director and Mr. Somosekhara Rao on behalf of the 2nd respondent strongly contended that the petition is misconceived and claimed justification for the orders.

3. There is no statute in which the powers of the Director are defined or the exercise of these is regulated and these are to be gathered from tiotifications, circulars and directions issued from time to time by Government about matters pertaining to Education. The notification relating to Text Books in Secondary Schools was issued in 1941. By this the Secondary Education Board was constituted to select text books with the aid of sub-committees. The procedure to be followed is mentioned at page 53 of the Mysore Education Manuals, Volume VI thus: "Authors or publishers desiring departmental patronage will submit lour copies of each book to the Secretary, Text Book Committee, with an application in the prescribed form..... The books received shall be noted in the Text Book Committee Register and a copy of each book will be sent to two members and the Chairman of the Sub-Committee concerned for review....... After the review is received the opinion of the Chairman shall be recorded in the review form.......The several books recommended by the Chairman of the several Sub-Committees to be prescribed as Text Books should be placed, as a general rule, before the special or ordinary Sub-Committees appointed to recommend text books annually. The text books thus recommended should be placed before the Secondary Education Board for approval and copies of the lists of books prescribed for different grades of schools sent to the Inspecting Officers concerned." For the Primary Classes "A separate Committee has been constituted for consideration and prescription of text books in all languages. The personnel of the Committee will be appointed by the Director of Public Instruction with the Deputy Director for Elementary Education as the Chairman." (Page 2 of Rules relating to text books Sub-Committee). "The recommendations of this Committee could either be placed before the Central Board of Education or be disposed of by the Department as may be necessary or expedient." (Page 51, Volume VI of Education Manual). It will be noticed that in the first instance the textbook for primary classes as well as middle school classes must receive consideration of two different Sub-Committees. Reference to the Secondary Education Board is obligatory for selection of text books in middle schools but, in the case of primary schools, the Department has discretion to make the selection alter the Deputy Director and his committee have applied their minds to the selection. It is not known whether the books for the primary classes were placed before the committee which had to review the same. The books - including these or not it is not clear - were however examined by a Sub-Committee and found by the Chairman and another member not suited to be text books. Thereafter, without seeking the opinion of the Secondary Education Board, the Director made the orders. The questions which arise for examination are (1) whether the Director has the power to determine the text books assuming that these include copy books; (2) whether he can exercise the power, if he has it, without ascertaining the views of the Sub-Committee in the case of books for primary classes and without obtaining the opinion of the Secondary Education Board regarding books for Middle Schools and (3) whether the petitioners can claim relief under Article 226.

4. The Director as the head of the department has, on account of the increasing activities and institutions for the spread of education, large number of duties to perform. To afford him time and facility for giving attention to matters of importance, a number of officers are appointed and Boards and Committees constituted to attend to work in several spheres. The books to be prescribed are many, relate to various subjects and in different languages. It is certainly difficult if not impossible for the Director to look into all the books received and assess their worth unless he is familiar with the languages and subjects of these. The difficulty is relieved and scrutiny made practicable by a small committee of persons who are conversant with the language and the subject of the books examining them at first, and the books being selected on a consideration of their opinions. It is not disputed that the opinion of the Committee has to be considered by the Secondary Education Board which is larger than the Committee and composed of persons presumed to be experienced and qualified to judge the quality of the books. According to petitioners the decision as to which book is to be prescribed rests with the Board but according to respondents the Board is only a consultative body like the Text Book Committee, its opinion is only recommendatory, the authority to select and prescribe any book as a text book is vested in the Director and he is at liberty to select any book irrespective of the views of the Board or the Committees and without consulting them. The powers of the Director enumerated in Volume VI do not include authority to prescribe text: books. But it is argued that the existence of such power is inherent to the office and implied by the position held by him as he has the responsibility for making timely announcement of books to be used in schools. When a special machinery is created, specific instructions are given to do anything in a particular manner such inference is unsafe as it may lead to uncertainty and speculation about the means and manner of selection. The jurisdiction to make orders which may not strictly fall under any specific provision is conferred in some statutes on the highest court or the highest authority. The Director derives powers from the orders of Government and it is the Government which may, if at all, act in the exercise of inherent powers. The learned Advocate-General has not pointed out any rule or order which empowers the Director to prescribe text books by virtue of the office. The words such as "Recommend" found here and there with reference to the Board and the Committee cannot signify this as the word "prescribe" is also seen in some places. The conclusion to be drawn on reading the provisions in the Manual and Notifications as a whole is that the Director cannot be deemed to be competent to prescribe the books of his choice suo motu.

5. The next point to be examined is the effect of the omission to place the opinion of the Sub-Committee before the Secondary Education Board. The rules bearing on this are "All books received on or before 31st March of a year will be reviewed by the members and considered in the respective Sub-Committees. Such books will be placed before the Secondary Education Board at its meeting in November or in May or June of the succeeding calendar year for final approval. Books prescribed as text books will be notified in the Mysore Gazette in December or June after the meeting of the Secondary Education Board." In Volume VI of the Education Manual constitution of several Boards of which the Secondary Education Board is one has been mentioned to "deal with all questions relating to the examinations concerned such as the framing of the rules, sylabuses and courses of study, prescription of the books etc." Management of S.S.L.C. Middle and Upper Primary Examination is assigned to Secondary Education Board. The Boards, it is stated, meet ordinarily twice a year.

6. It is evident from these that the Board is given a very important position in the scheme for selection of books and the notifications of selection have to be published after the meeting of the Board. The Director as President of the Board may take part in the discussion about the merits and drawbacks in books and may select the members of the Board. The agency for determining the text books is the Board and the determination has to be given effect to by a formal notification. In any event, the consideration of the books by the Board is a pre-requisite for an order prescribing them. Otherwise the rules would become a dead letter and the Board an ornamental body. The learned Advocate General in the course of the argument mentioned that the requirement of reference to the Board must be treated as satisfied since the Board later on ratified the orders for prescribing the 2nd respondents book. This is not mentioned in the first affidavit of the Director but is referred to in the affidavit filed as rejoinder to the petitioners reply. Learned counsel for petitioners contended that the plea is belated and an afterthought. He cited some cases to show that ratification even if true, cannot be called in aid since the orders are vitiated by lack of jurisdiction. Apart from all this, the plea implies that the prescribing power lies in the Board as otherwise there was no need for the Director to apply for its approval, and such approval cannot be effective as if it was given prior to the orders since the Board was faced with a fait accompli and could not form an opinion with an open mind unfettered by the declared commendation of 2nd respondents books by the Director.

7. Urgency of the situation and necessity for timely intimation to teachers and pupils of the books to be used are urged as circumstances which compelled the Director to make the orders. The learned Advocate-General represented that the consideration of the books was shelved or put off in a meeting of the Board, that the schools had to commence working before the Board could meet again and therefore the 2nd respondents books which were the only books received were prescribed by the Director in exercise of his discretion. It is contended that the act is administrative not liable to be questioned under Art.226 and that the petitioners having failed to apply for selection of their books are not entitled to impugn the orders. The explanations cannot be easily accepted as there was nothing like an emergency except that occasioned by the Director in not calling for one or more meetings earlier, no special power is conferred on the Director to act on behalf of the Board or for its being dispensed with and no reason whatever is advanced for adopting an unusual course. The notification inviting authors and publishers to send books intended to be considered is dated 19-4-52 and during the interval of more than two years between that date and the dates of the orders now in question it cannot have been difficult for the Director as President of the Board or the Secretary to have the matter disposed of at any of the meetings of the Board, if they were seriously mindful of it. Dilatoriness or delay on the part of the Board in dealing with the question of selection cannot be assumed when there is uncertainty about the meeting at which the opinion was sought and no allegation that either the President or Secretary pressed for it. Moreover the Director, at the time of the order was not under necessity of providing some book for use as the Government publications were available and he had only to be satisfied that the copy books of the 2nd respondent were really superior to those in spite of the condemnation by the Chairman and a member of the Sub-Committee. There is a rule that "when there is a departmental text book on any subject for any class, no non-departmental book will ordinarily be considered to replace it." Petitioners counsel represented that Government publications were cheaper and better in quality than 2nd respondents books and that the writings in the latter were faulty so as to be ill-suited for copying. Strictly the books of 2nd respondent were not entitled to consideration as these were not sent before 31-3-53 as required in the notification. The 2nd respondent stated in his affidavit that he submitted the books on 10-9-1953 which is nearly five and a half months later and that the Secretary intimated to him by communication dated 15-12-1953 and another of the following day that some publications were prescribed for primary classes and some others for middle school classes. The meeting of the Board had to be held under the rules in November, May or June and the books are to be placed for consideration in any of the meetings which means that if it is not possible in November, then in May and failing that in June. What happened in November is not known and the notifications were issued in March.

8. Sri Venkataranga Iyengar has commented upon the orders as mala fide on the ground that these are passed contrary to practice, rules and principles governing selection of text books. Petitioners in one of the affidavits state that 2nd respondent has been "patronised to reap huge profits." Some books published by the 1st petitioner are produced to show that in respect of quality they are as good as 2nd respondents books, if not better, but appreciably cheaper. The difference in price is not disputed and is striking if sales in gross are taken into account. Accrual of substantial gain from the orders to the 2nd respondent is obvious as the total number of books required is said to be about five lakhs, the use of his books is made compulsory and price of each book is fixed at three annas with a margin of profit. It is also mentioned that as a result of the orders more than a lakh of copy books printed by Government for use in previous years will remain unsold and that the insistence on the use of only 2nd respondents books savours of the needless preference shown to these. The last criticism is based on the fact that in a former notification for English handwriting about 14 publications were specified with a "N.B.: Teachers should advice students to select particular style of copy books suited to their individual style of writing." Similar choice is provided for in the case of Hindi writing. The ideas underlying this apparently is that writing of each has to be improved according to his own peculiarity and not by enforcing imitation of a pattern. What is desired in the Manual is not that the writing should be of a uniform type but that "pupils should practise writing running hand throughout school course." Another point raised against the orders is that when no one submitted any books for consideration within the date fixed, the books received months after were held to be unsuited to be text books, the Director should have at least called for books from publishers inside or outside the Mysore State before making the selection. If this course was adopted, the order may have implied that the 2nd respondents books stood the test of comparison with books of others. The absence of applications for selection by others is said to be due to the impression that copy books are different from text books, that the notification called for only text books without indicating the discontinuance of Government publications from use. The explanation has some force as not even one amongst the several publishers of copy books sent any book by the appointed date and the 2nd respondent too does not state why he did not offer his books in due time and why he applied for the selection after long delay when his books were not entitled to consideration.

9. It has been held in several cases that statutory provisions which permit exercise of power in an arbitrary manner or the possibility of it are invalid. In - Anumathi Sadhu Khan v. A.K. Ghatterjee, AIR 1951 Cal 90 (A), Bose, J. observed "It is clear law that an arbitrary or capricious exercise of the power is no exercise at all. If no reasons are assigned it is not possible to know or judge whether the order is a valid, mala fide or arbitrary order", while dealing with a case under West Bengal Rice Mills Control Order. At p.574 in - Balakrishnan v. State of Madras, AIR 1952 Mad 565 (B) Venkatarama Iyer J. expressed "if there are no rules for guiding and controlling the exercise of discretion by the person or body of persons then the power must be held to be arbitrary and unreasonable", with reference to a clause in Textile Control Order by which absolute power was given to an officer in certain matters. The application of these principles cannot be avoided only because of the absence of a statute governing the acts of the Director. It is not disputed that administrative orders may be challenged if these involve infringement of constitutional rights or disregard of rules. In - State Of Bombay v. Bombay Education Society, AIR 1954 SC 561 (C) an order of the Bombay Government about admission of pupils in schools teaching English was held to be unconstitutional. The cases in - Ram Charan Lal v. State of U.P., AIR 1952 All 752 (D) and - Buddhu v. Municipal Board, Allahabad, AIR 1952 All 753 (FB) (E) are other instances of relief being granted under Article 226 with respect to orders not strictly judicial. Ordinarily the court will not allow parties to invoke the aid of this Article when they have other means of obtaining redress and their rights or interests are not substantially affected by the acts or orders of the authorities. In this case it is alleged that a request was made to the Director by the Association of Publishers for the withdrawal of the orders but in vain. The question whether petitioners could or should have approached Government for cancellation of the orders does not arise since the stand taken is that these are final and the power of the Director to make them is absolute. The contentions raised cannot be treated as academic when the orders, if given effect to, will benefit one individual to the exclusion of others at the cost of the students. Persons who make a living by sale of books or to whom it is a calling and those who have to provide the books necessary for education of pupils who depend on them are entitled to expect and demand the observance of rules and adherence to methods settled by practice so that there is no room for doubt - fancied or real - about play of personal predilections in the choice of books. Whatever may be the considerations for the use of other books being made compulsory, the insistence on the use of particular copy books is a novel and striking feature of the notification. Under Art.19(1)(g) of the Constitution the citizens have the right to carry on any occupation, trade or business, subject to such restrictions as the State may impose in the interests of the public and such qualifications as are necessary for carrying on any occupation, trade or business.

10. In - Rashid Ahmed v. Municipal Board, Kairana., Kairana, AIR 1950 SC 163 (F), a Municipal bye-law which provided for the grant of a monopoly to a contractor in wholesale transactions at a place fixed as market was held to be void by the Supreme Court on the ground of being repugnant to the Article. There is no express prohibition of the sales of books by petitioners and other publishers in the orders but it is implied and almost certain as copy books are likely to be purchased only by pupils for necessary use. The prohibition indirectly resulting from grant of monopoly in a trade was disapproved by the Supreme Court in - Mohd. Yasin v. Town Area Committee, Jalalabad, AIR 1952 SC 115 (G). From the observations in - Commonwealth of Australia v. Bank of New South Wales, 1950 AC 235 at p.311 (H) "Their Lordships do not intend to lay it down that in no circumstances could the exclusion of competition so as to create monopoly either in a State or Commonwealth Agency or in some other body be justified. Every case must be judged on its own facts and in its own setting of time and circumstances....." quoted in - Saghir Ahmad v. State of U.P., AIR 1954 SC 728 (I), a doubt may arise whether monopoly is altogether forbidden. Assuming it is permissible, there should be something more than a bare order unsupported by reasons to justify it. For, as remarked in the Madras case already referred to "If the yardstick is only the personal opinion of the officer concerned it is plainly a case of naked arbitrary power." The orders in this case are found to be without or in excess of jurisdiction and not in conformity with practice. Restrictions are placed on the use of books published by the 1st petitioner and several others by granting monopoly of supply to the 2nd respondent. The burden of paying more for the 2nd respondents books than for books of others is imposed on the pupils. Orders suffer from the infirmity of the absence of reasons for all this. The petitioners are therefore justified in challenging them. In this view it is unnecessary to discuss whether the compulsory use of the books amounts to imparting religions instruction in Government schools and affects freedom of conscience, in violation of the Constitutional provisions. The powers of this Court under Article 226 are wide and not limited to cases for safeguarding fundamental rights as implied from the words "for any other purpose". (See - G.D. Knrkare v. T.L. Shevde, AIR 1952 Nag 330 (J); - Sampu Gowda v. State of Mysore, AIR 1953 Mys 156 (FB) (K)). The notifications and the circular so far as the copy books of (2nd respondent are concerned are quashed. Respondents will pay the petitioners costs of this proceeding. Advocates fee Rs.100/-. VASUDEVAMURTHY, J

11. By two notifications dated 20-3-1954 and 30-3-1954 published in the Mysore Gazette on 15-4-1954 the Director of Public Instruction in Mysore, respondent 1 herein, prescribed for use in the Middle and Primary Classes certain copy books named "Adarsha Lipi Pusthaka" published by the supplemental respondent 2 the proprietor of the Maruthi Book Depot in Bangalore City. By those notifications he directed that they were to be used in the Primary and Middle Schools of the State during the year 1954-55. In those notifications he made a further express direction that these copy books alone as printed and published by the Maruthi Book Depot should be used in all schools whether wholly or partly maintained out of the State funds. He also issued a Departmental Circular dated 11-5-1954 in which he stated that the Kannada copy books published by the Maruthi Book Depot have an appeal to religion and culture as they "contained sayings of Ramakrishna, Basaveswara, Epics etc.," and that orders had therefore been passed that those copy books alone should be used in the schools and he directed that the Inspecting Officers should issue strict instructions to Heads of Institutions under their control to insist upon boys and girls not to use any other than the prescribed copy books, referred to above. These words are underlined (here in ) in the original circular.

12. The 1st petitioner is a Hindu and claims to be the printer and publisher of copy books in Kanarese for the last 30 years as an item of his family trade. He has also a son studying in an aided Middle School and a daughter studying in the Government Girl School, Chickpet. The 2nd petitioner is a Christian, a graduate of the Mysore University, who claims to be taking an intelligent interest in the public affairs of the State. The petitioners have filed this application under Article 228 of the Constitution of India for a declaration that the notifications and the circular order referred to above are void and inoperative as infringing Articles 14, 19 and 28 of the Constitution and for the issue of a suitable writ for withdrawing or cancelling those notifications and circular.

13. I have had the benefit of reading the judgment of my learned brother Venkata Ramaiya, J. and I am in full agreement with his findings and decision. As the matter is of some importance I would like to supplement his judgment by a few words of my own.

14. After the petition was filed on 25-6-1954 this Court issued an ad interim stay order against the operation of those notifications and circular. The Maruthi Book Depot later on applied to be impleaded and this was done. The parties have filed detailed affidavits and counter affidavits and elaborate arguments have been ably advanced before us by Mr. S.K. Venkataranga Iyengar, learned Counsel for the petitioners and the learned Advocate-General and Mr. Somasekhara Rau who appear for respondent 1 and the supplemental respondent 2 respectively.

15. The prescribing of text books and other books, like several other matters involving questions of policy and patronage, have in Mysore been from a very long time entrusted by a far seeing Government of the day to various committees, and we have the Mysore Educational Manuals and Departmental Orders and Circulars which have been printed from time to time for the information and guidance of the officers of the department. So far back as in 1921 the Government have prescribed the Curricula of Studies for Middle Schools. It has been provided in Mysore Educational Manuals, Volume III at page 117 in regard to writing that pupils should practise writing running hand throughout the school course; and each pupil should show 50 copies per year and each exercise should be carefully corrected by the teacher. The Text-Book Committee was constituted in May 1892, to help Government in the selection and preparation of text-books for all Lower Secondary and Primary Schools with eight Sub-Committees. In 1925, the Government laid down rules regarding the constitution and functions of the Text-Book Committee and permitted the formation of 13 Sub-Committees under it. With the constitute of the Secondary Education Board in 1941, the Text-Book Committee was abolished and its various Sub-Committees were ordered to work under the Secondary Education Board. In 1945, a separate Committee was formed with the permission of Government to consider all technical matters relating to Primary School text-books and syllabus. The Director of Public Instruction was the President of the Secondary Education Board and the Deputy Director of Public Instruction was the Chairman of the Primary School Text-Book Committee. The functions of the sub-committees were also laid down, and it was to consider such books as may be referred to it by the Secretary, Text-Book Committee under the orders of the Director of Public Instruction and to advise the latter as to their suitability as text-books for the several classes and as library books. To advise the Education Department as to the steps to be taken for the preparation and publication of Departmental text-books when necessary. The Government also appointed a Secretary to the Text-Book Committee whose business was to implement the rules and to carry on correspondence and to act as a liaison between the various text-book committees and the Director and the Deputy Director.

16. It appears that so far back as in April 1947 the Government had printed a large number of Kannada copy books with the assistance, it is argued, of some experts. These books were initially priced at Re. 0-1-6. Later the price was raised to Re. 0-2-6 probably in view of the general rise in the cost of materials, though one would think that there was not much justification for doing so as the books were long ago printed and they were running slowly. It does not appear as though those books were ever condemned or their use superseded except through the notifications and circular now impugned and it was represented to us - and it is not seriously denied - that more than a lakh of such copy books of the value of about Ss.10,000/- or a little over are lying in the godowns of the Government Central Book Depot in Bangalore. This circumstance has been strongly relied on by the petitioners in the course of their attack on the present notifications and circular.

17. Mr. Venkataranga Iyengar, learned Counsel for the petitioners, has urged that copy books are not text-books and he has referred to certain dictionary meanings of the word "text-book". I think the word "text-book" would involve either some original matter contributed and published by the author or it may even include an intelligent selection of the work of another author or authors for use in schools - say like the Palgraves Treasuries of Songs and Lyrics. It may also include some books which have been copyrighted and if the scheme of the book or books involves a graduated or considered study or training the particular subject like say books of drawing, it might be said to be text-book. I do not think that a copy book could be strictly a text-book in that sense. As contemplated in the circular of 1921, the teachers were concerned in seeing that the boys wrote a number of copy books and improved their handwriting. The proper kind of paper, say not too thin or too smooth and suitably ruled, with any suitable headings and maxims which were not likely to be offensive and may preferably be of some use for developing the character of the boy might be insisted. As pointed out by my learned brother I do not think it is either feasible or within anybodys view that every boy and girl should write absolutely similar hand without reference to the innate characteristic of his or her handwriting and capacity for development.

18. It has been urged by Mr. Somasekhara Rau in this connection that if these copy books are not text-books, then they would not fall within the ambit of any rules or regulations at all and that the Director was absolutely at liberty to prescribe what he liked and in whatever terms he wanted in the matter of copy books. That argument no doubt appears plausible; but I think there is really nothing in it. The Director has prescribed these copy books as text-books and his whole case has been that they are text-books. Even otherwise it would be in the nature of a tall order if the prescribing of such books involving important issues were left to the unfettered discretion of the Director while even the selection of cheaper books which are called text-books would have to pass through the various Text-Books Committees. Mr. Venkataranga Iyengar has urged that the publishers were not being asked to send selection of; those copy books and it is rather a significant circumstance in this case that suddenly respondent 2 alone has offered the impugned copy-books. He has also urged that these copy books were placed before the concerned sub-committee and the Chairman declared against the use of these books and notwithstanding that the Director, without placing it before either the Primary Education Board or the Secondary Education Board or the Text-Book Committee prescribed these text-books.

19. For the Director the learned Advocate-General took a rather extreme stand. He argued that the Director was the Head of the Department and that he was fully at liberty to choose whatever books he liked with a view to see that the schools were supplied with proper text-books, that the functions of these various sub-committees are merely advisory and that though he had not placed the matter before the sub-committee he got the selection ratified later and such a course was not merely permissible but became necessary in the circumstances of this case as the Text-Book Committee could not meet in time. I think such a representation is not entitled to any consideration. Formal rules have been framed by the Government containing elaborate checks and counter checks and I do not think it can be claimed that the Director can ignore them and that he is responsible to nobody. After the Constitution at least, as pointed out by my learned brother such naked, arbitrary and unfettered or unregulated exercise of power even by the Executive is not allowable and especially if, as in this case, it is shown that it offends any of the articles of the Constitution or is ultra vires of the rules framed by Government or can be reasonably assumed to be either mala fide, or at least not bona-fide, as contended by Mr, Venkataranga Iyengar, I think this Court must issue a writ at least to avoid such improper exercise of official power.

20. The number of copy books required for the use of the school is very large and is said to be in the region of five lakhs. The difference in price between the "Government copy book" and the impugned copy book which is priced at 0-3-0 each is 0-0-6. The cost of the copy book printed and published by the 1st Petitioner is 0-2-6 and the petitioners have sworn that their price per gross is as low as 7-8-0. There is no doubt therefore that there is room for enormous profit in the marketing of those copy books and that such copy books can be produced at very low cost. Indeed those copy books are merely the ordinary kind of exercise books cut into half with printed headlines. The number of pages is only 24 per book while the ordinary note-book would have as many as 32 or 40 pages and the cost thereof would be in the region of 1 annas or two annas. These books are to be used universally by the rich and the poor alike and one can imagine the unnecessary drain. The State is pledged to impart free and compulsory Primary and Secondary Education in the State and one of the directive principles of the Constitution as laid down in Article 45 is also to the same effect, viz., that the State shall endeavour to provide for free and compulsory education for all children until they complete the age of 14 years. As argued by Mr. Venkata Ranga Iyengar it would involve unnecessary and tremendous hardship if the parents are to be compelled to buy these particular books at this exorbitant cost when there is no doubt that it could have been easily avoided by either inviting competition in this matter or by publishing such books through the State agency.

21. Mr. Venkataranga Iyengar has argued that the Secretary, Text-Book Committee, has his own duties to perform under the rules and that apparently he has been ignored in this whole matter. There appears to be considerable force in this argument. The Secretary, Text-Book Committee is a responsible officer who is expected to arrange meetings of the Text-Book Committees well in time and I think it is no answer to say that he or the Director was not able to arrange such meetings for securing their recommendations in time before prescribing the books. The scheme of such selection suggests that more than a year is available for holding such meetings and consultations before the books are prescribed and there can be no excuse for not obtaining the necessary permission of the concerned committees.

22. Mr. Venkataranga Iyengar has argued that the notifications and circular created a monopoly in Marathi Book Depot and that other publishers like his own client and others are discriminated against and excluded unfairly from the field and that this is opposed to Article 14 of the Constitution, and in my opinion he has a just grievance.He has also urged that they amount to an unauthorised infringement of his right to carry on his trade or business as printer and publisher of such copy books and text-books. Under Article 226 this Court has ample powers to issue to any person in authority including any Government a direction for enforcement of any of the rights conferred by Part III and for any other purpose. Interference by the Court will be warranted by the law when even an executive authority is not exercising its powers bona fide for the purpose contemplated by the law or influenced by extraneous and irrelevant considerations and where injustice has resulted - See The Constitution of India by V.V. Chitaley 1954 Edn., Vol.2, pp.1799-1800.

23. It has been urged for the petitioners that the sudden and secret way in which Respondent 2s books were tendered to the Department, the way in which they have been accepted against recommendation of the Sub-Committee, the enormous margin of profit which has been made available to Respondent 2 and the very emphatic way in which these copy books alone are sought to be forced on the students, all point only to the want of bona fides if not mala fides. The dividing line between a highly arbitrary action of an officer which may be interpreted as bona fide or considered as within the limit of bona fides and such action which may be interpreted as mala fide is exceedingly thin and I think it is therefore necessary that rules and regulations in the matter of distribution of such large scale patronage are strictly observed by the officers concerned if they wish to avoid any challenge of their actions. As pointed out by the Supreme Court in - Guruswamy v. State of Mysore, AIR 1954 SC 592 (L), in such matters "deeper considerations are also at stake, namely the elimination of favouritism and nepotism and corruption and to permit what has occurred in this case would leave the door wide open to the very evils which the Legislature (here the Rules) in its wisdom has endeavoured to avoid. All that is part and policy of the Legislature. None of it can be ignored." Their Lordships were no doubt speaking on that occasion about an Act of Legislature and the rales framed under it but for the purposes of this case those high and pregnant observations are equally apposite. Petition allowed. AIR 1955 MYSORE 88 (Vol. 42, C.N. 28) "Madappa v. Basaviah" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA AND VASUDEVAMURTHY, JJ. ( Division Bench ) Madappa, Plaintiff-Appellant v. Basaviah and others, Defendants-Respondents. Second Appeal No.349 of 1952-53, D/- 10 -3 -1955, against judgment and decree of Sub. J., Mysore, in R.A. No.55 of 1949-50. Civil P.C. (5 of 1908), S.11 - RES JUDICATA - PARTITION - HINDU LAW - Alienation by Hindu coparcener - Suit for partial partition by non-alienating coparcener to recover his share from alienee - Subsequent suit by alienee for general partition is not barred. Hindu Law - Partition. A mere alienation by a coparcener of his share in the joint-family property or a suit by a non-alienating coparcener to have it declared that his share is not bound by the alienation or even a suit for partial partition by such a non-alienating coparcener to recover his share from the alienee would not by itself effect a division in status between himself and the other coparceners. He cannot be compelled to change his suit into one for general partition. An alienee can bring a suit for general partition, and such a suit would not be barred by res judicata by reason of the decree in the earlier suit. It is, however, advisable that the two such suits should be tried together to avoid a possible plea of res judicata. In the suit for general partition it is open to the Court, notwithstanding the judgment or decree in the earlier suit, to make some equitable arrangement by which, if possible, while the non-alienating coparcener will not be put to any inconvenience or loss the alienee may also not suffer. The alienee cannot of course insist or claim as of right upon the entirety of the property he has purchased being allotted to his alienors share. (Para 6) A, a coparcener in a joint Hindu family sold some property to B. The sons of A brought a suit for declaration that the alienation by A was not binding on their share. That suit was decreed and then they filed a suit for separation and delivery of possession of their share which had been so declared unaffected by the alienation. During the pendency of this suit the vendee B brought a suit for general partition by metes and bounds with a view to ascertain the share of A and to allot the suit item to the share of A so that the plaintiff B who had purchased the same from A might get it. The plaintiff B made an application for the two suits being tried together but his request was not granted. Held that the suit brought by B was not barred by res judicata: AIR 1926 Mad 774 - AIR 1954 Mys 115 and AIR 1918 Bom 101, Rel. on. (Paras 4, 6) Anno: AIR Com.: C.P.C., S.11 N.36. Cases Referred : Chronological Paras (A) (V41) AIR 1954 Mys 115 : ILR (1953) Mys 655 2, 4 (B) (V13) AIR 1926 Mad 241 : 49 Mad 483 3, 5 (C) (V13) AIR 1926 Mad 774 : 50 Mad 320 3, 4, 5, 8, 9 (D) (13) 40 Cal 966 : 40 Ind App 213 (PC) 3 (E) (V5) AIR 1918 Bom 101 : 43 Bom 17 3, 5, 8, 9 (F) (04) 9 Mys CCR 43 4 (G) (17) 22 Mys CCR 293 4 (H) (43) 21 Mys LJ 206 4

(I) (02) 25 Mad 690 (FB) 4 (J) (V39) AIR 1952 Mad 419 : ILR (1952) Mad 835 (FB) 4, 5 (K) (V27) AIR 1940 Mad 217 : ILR (1940) Mad 405 5

(L) (66) 11 Moo Ind App 75 : 8 Suth WR (PC) 1 (PC) 7 (M) (02) 25 Mad 149 : 11 Mad LJ 353 7 Nittur Sreenivasa Rao, for Appellant; M.A. Gopalaswamy Iyengar, for Respondents (Nos.2 to 4). Judgement VASUDEVAMURTHY, J.:- The plaintiff has brought a suit for partition by metes and bounds of the plaint schedule properties, which consist of three items with a view to ascertain the share therein of defendant 1 and to allot suit item 1 which is a house, to the share of defendant 1, so that the plaintiff who has purchased the same from defendant 1 by a sale deed dated 6-7-1943 might get it. After that sale defendants 2 to 4 who were all then minors sued the plaintiff in O.S. No.110/ 44-45 for a declaration that that alienation by defendant 1 their father was not binding on their three-fourths share in that item. That suit was decreed in their favour and then they filed a second suit O.S. No.182-/47-48 for separation and delivery of possession of their share which had been so declared unaffected by the alienation. The plaintiff subsequently filed the present suit O. S. No. 72/48-49 for a general partition with a prayer as above. The Munsiff who heard the suit held that the suit was not maintainable and was barred by the earlier suit O.S. No.182 of 47-48 on the principles of res judicata. On appeal the Subordinate Judge confirmed that judgment and the plaintiff has come up in second appeal.

2. The plaintiffs suit was filed during the pendency of O.S. No.182/47-48. The plaintiff made an application for the two suits being tried together. His request was not granted and the suit O.S. No.182/47-48 was decreed without reference to the present suit. It is urged before us by Mr. Ramdas, learned counsel for the Appellant, that the Courts below were in error in dismissing the plaintiffs suit altogether and that his case is fully covered by the decision of this Court in - Narasimhaiah v. Chikkathimmaiah, AIR 1954 Mys 115 (A). In that suit on similar facts it was held that the alienees subsequent suit for general partition was not barred by res judicata by reason of an earlier suit for partial partition brought by the sons of the alienor. It was pointed out in that case, that an alienee could not insist that a suit for partial partition, to recover his own share by a coparcener, which he is entitled to bring, should be converted into one for general partition, the remedy of the alienee in such a case being to bring a suit for general partition and to ask that if the circumstances of the case permit the property sold to him may be allotted to his vendors share and consequently to himself.

3. Mr. Gopalaswamy Iyengar, learned Counsel for the Respondents, has sought however to distinguish that case. He urges that in the present case the rights of the sons to hold the share which they had won through declaration in O.S. No.110/44-45 had been finally allotted to their share in O.S. No.182 of 47-48, that that share in item 1 had become their separate property and that the effect of that decision could not be whittled down or negatived by making a decree in the present suit realloting that share to the plaintiff. He has also urged that the plaintiff should have got the two suits tried together or at least got a direction made in O.S. No.182/47-48 that the reallotment therein would be subject to the decision in the present suit and that having failed to do so he cannot be heard to complain. He has in this connection referred to such a direction made in - Sowrimuthu v. Pachia Pillai, AIR 1926 Mad 241. (B) and - Kandaswami Udayan v. Velayutha Udayan, AIR 1926 Mad 774 (C). For the argument that the share allotted in the above circumstances becomes the separate property of the sons he has referred to a passage in Mullas Hindu Law, 1952 Edn., page 320. That passage is based upon the decision in AIR 1926 Mad 241 (B). And it is followed by a passage that such a share would continue as joint if the relief granted to the non-alienating coparceners is made conditional on their assenting to the results of a suit for general partition which the alienee may offer to bring, and reliance is placed on - Ramkishore Kedarnath v. Jainarayan Ramrachhpal, 40 Cal 966 (PC) (D) and - Hanmandas Ramdayal v. Valabhdas Shankardas, AIR 1918 Bom 101 (E). The share allotted to a non-alienating coparcener is, according to that text, his separate property as between him and the alienating coparcener, but not as between him and his male issue. On the same page the equitable right of a purchaser on partition has been described thus: "The alienee of a specific property or of the undivided interest of a coparcener in such property has on a general partition an equitable right to have that property, or his alienors share in that property, as the case may be, assigned to him if it could be done without injustice to the other coparceners. But there may be equities between the coparceners or liabilities attaching to the alienors share which may render it inequitable or impracticable to do so. In such a case the alienee is entitled to recover from his alienor property of an equivalent value out of the properties allotted to the alienor for his share in substitution of the property alienated." 4. It cannot be properly contended that a subsequent suit for general partition by the alienee would be barred by res judicata. If the non-alienating coparcener is permitted to bring a suit for partial partition in respect of a particular item as against an alienee, and the alienee cannot compel him to convert it into a suit for general partition it cannot be said that he was bound to have raised a plea by which he could claim that equities should be worked out in that suit itself, as if it was a suit for general partition, and that it is a matter which might and ought to have been decided in the earlier suit. That is the only argument by which a bar of constructive res judicata can be put forward. In AIR 1954 Mys 115 (A), reference has been made to cases of this Court reported in - Lemaji Mylarappa v. N. Siddoji Rao, 9 Mys CCR 43 (F), 22 Mys CCR 293 (G) and - Ramiah v. Siddalingappa, 21 Mys LJ 206 (H) and to cases reported in - Aiyyagari Venkataramayya v. Ramayya, 25 Mad 690 (FB) (I), - Peramanayakam Pillai v. Sivaraman, AIR 1952 Mad 419 (FB) (J) and AIR 1926 Mad 774 (C).

5. AIR 1926 Mad 241 (B), which was decided by Phillips and Ramesam, JJ. is no doubt in favour of the respondents contention. In that case Ramesam, J. has observed that so long as a suit for partial partition is permissible, and the decree directs division of the property by metes and bounds the result of the decree must be that the coparcener gets his share as separate property and if there is no condition or reservation attached to the former decree, that decree would be final and cannot be reopened in another suit, which would be barred by res judicata. In AIR 1926 Mad 774 (C) decided by Devadoss and Wallace, JJ. their Lordships did not agree with that view. They observed that when a coparcener brings a suit for declaration that an alienation is not binding on him and on his share of the property alienated, the Court gives him a decree for his share if it finds that the alienation is not binding on the plaintiff; but his share does not thereby become absolutely his, for the alienating coparcener still continues a member of the joint family, and on a suit for partition lay him the property alienated may fall to his share in which case the alienee would be entitled to get it. The matter would not be different when the alienee himself brings a suit for general partition and prays to be allowed to retain the property which was sold to him. An alienation by a coparcener of an item of joint family property or his share in it would not operate as effecting a division in status of the family or of the alienating member. When the non-alienating coparcener sues to set aside an alienation made by another coparcener that suit is not for partition and does not involve necessarily the status of division between him and the other members of the joint family. It was further pointed out in that case that if both the suits, viz., the suit for partial partition and the suit for general partition, are tried together there would be no difficulty at all as the possible plea of res judicata can then be obviated; and they referred to a case in AIR 1918 Bom 101 (E), wherein the execution of the decree of the suit for partial partition was stayed for three months and the alienee was directed to bring his suit for general partition within that time. They made a similar direction in the case before them, to avoid a possible plea of res judicata. In AIR 1918 Bom 101 (E) it was also held that when a coparcener was suing an auction purchaser it was not a valid objection to the suit that the coparcener claimed only a partial partition and that the auction purchaser should be allowed to file a suit against the plaintiff for general partition of the entire family properties. In Ramasubbaraya Sastri v. Appalanarasimharaju, AIR 1940 Mad 217 (K), it was decided by Venkataramana Rao and Abdur Rahman, JJ. that: "The strict theory of Hindu law does not recognize alienation as a mode of severance of a joint family. An alienation by a member of his share in whole of the joint family property or in any part thereof would not sever his status from the family and make him a divided member in respect of the property alienated. He continues to be an undivided member of the family with rights of survivorship between himself and the remaining members in respect of all the joint family property other than what he has transferred." In that case their Lordships found that there was nothing in the plaint before them to indicate that in the plaint of non-alienating coparcener there was an intention to hold his share of the property in severalty that by the litigation in the prior suit the alienating father and his son did not become divided in status and that the father after the death of the son was competent to alienate the reversion in the lands. All the decisions of the Madras High Court and other High Courts bearing on this matter have been fully considered in AIR 1952 Mad 419 (FB) (J) and the view of Hindu Law in this matter taken in AIR 1926 Mad 774 (C) and AIR 1940 Mad 217 (K) has been affirmed.

6. Some of the results of these decisions may be summarised as follows: A mere alienation by a coparcener of his share in the joint family property or a suit by a non-alienating coparcener to have it declared that his share is not bound by the alienation or even a suit for partial partition by such a non-alienating coparcener to recover his share from the alienee would not by itself effect a division in status between himself and the other coparceners. He cannot be compelled to change his suit into one for general partition. An alienee can bring a suit for general partition, and such a suit would not be barred by res judicata by reason of the decree in the earlier suit. It is, however, advisable that the two such suits should be tried together to avoid a possible plea of res judicata. In the suit for general partition it is open to the Court, notwithstanding the judgment or decree in the earlier suit, to make some equitable arrangement by which, if possible, while the non-alienating coparcener will not be put to any inconvenience or loss the alienee may also not suffer. The alienee cannot of course insist or claim as of right upon the entirety of the property he has purchased being allotted to his alienors share.

7. The coparcener has his share or a right to share in every item of family property and until there is a division none of them can predicate either his share or his right in any specific item of joint family property. See - Appovier v. Rama Subba Aiyan, 11 Moo Ind App 75 at p.89 (PC) (L), - Sudarsanam Maistri v. Narasimhulu Maistri, 25 Mad 149 (M), Mullas Hindu Law 11th Edn. 843. In a suit for partition, ordinarily, properties are divided by metes and bounds, and it is only in cases where there cannot be such division conveniently or profitably to the family that items are separately valued and divided on that basis.

8. In adjusting equities in a suit for general partition the Court would have to see that the alienating coparcener or the alienee from him does not get an unfair advantage over the family. It must also see that the alienating coparcener and the other coparceners do not combine so as to defeat an alienee who may often times have acquired rights bona fide and for consideration. Such a suit for general partition must obviously be brought as early as possible in order to avoid uncertainty in or confusion of titles and a scramble among the members of the coparcenary to obtain unfair advantage over each other or against the alienee. The object of granting a conditional decree as was made in AIR 1918 Bom 101 (E) and AIR 1926 Mad 774 (C) was to avoid such a contingency. It is not quite clear how such a direction can override a plea of res judicata if such a plea could be legally available; and if such a plea is not available the making of such a direction can merely be a step in the direction of doing equities between the parties.

9. In the present case the two suits were tried together and we are informed that the alienee is still in possession of the property sold to him and has not yet been dispossessed as a result of the decree in O.S. No.182 of 1947-48 a situation referred to and relied upon in AIR 1918 Bom 101 (E). In the present suit the alienee made every effort to see that the two suits were tried together. He was resisted by the defendants and the earlier suit has been decided, only recently during the pendency of the present suit. There does not appear to be any difference in principle between the present case and the case in AIR 1926 Mad 774 (C) or AIR 1918 Bom 101 (E) for the purpose of attempting to apply the equitable principles referred to above though the procedure adopted in those cases may well be followed in such cases.

10. For the foregoing reasons this appeal is allowed, the judgments and decrees of the Courts below are set aside and the suit is remanded to the Munsiff who will receive any further evidence that may be let in by both the parties and dispose of the suit afresh on the lines indicated above. The parties will bear their own costs in this Court and in the lower appellate Court. The costs of the trial Court will abide and follow the result of the suit. Appeal allowed. (S) AIR 1955 MYSORE 91 (Vol. 42, C.N. 29) "Gangappa v. Boregowda" MYSORE HIGH COURT FULL BENCH Coram : 3 MEDAPA C.J., MALLAPPA AND VASUDEVAMURTHY, JJ. ( Full Bench ) Gangappa, Appellant v. Boregowda and others, Respondents. Second Appeal No.489 of 1950-51, D/- 16 -12 -1954, decided by Full Bench en Order of Reference made by Venkata Ramaiya and Balakrishnaiya JJ., D/- 29 -11 -1954. Civil P.C. (5 of 1908), O.38, R.9 - ATTACHMENT - OBJECT OF AN ACT - APPEAL - Scope - Attachment before judgment - Suit dismissed - Attachment ceases to be operative - Dismissal of suit reversed in appeal - Attachment is not revived.AIR 1952 Trav-C 414 (FB), Dissented from. An attachment before judgment which ceased to be in force with the dismissal of the suit will not revive when the decree dismissing the suit is subsequently reversed and a decree in plaintiffs favour is passed by the same Court or by a superior Court. AIR 1952 Trav-C 414 (FB), Dissented from; 32 Mys CCR 97 - 34 Mys CCR 450 (FB) and 49 Mys HCR 220 held good law; Case law ref. (Para 1) An attachment before judgment is in the nature of an interlocutory order. It is an extraordinary relief granted to a plaintiff even before his claim is adjudicated upon and found to be true and if a suit is dismissed either for default or on its merits by the trial Court and the attachment before judgment has therefore to cease, he can certainly have not as much grievance as a person who has obtained a decree and attached property of the judgment-debtor whose right to attached property has been questioned and decided in summary proceedings and which are made expressly subject to a decision in a regular suit. Moreover, it cannot also be urged that all interlocutory orders like say those passed on applications for temporary injunction the operation of which would have to cease on the dismissal of a suit, would automatically be revived or can be deemed to be in force without any further orders by an appellate Court or by the same Court after the suit is dismissed. To hold so would lead to obvious and real difficulties. It is not also as though the plaintiff in such a case has no remedy. He could always apply to the same Court if a suit which has been dismissed for default is restored to file or to an appellate Court which has also ample powers to grant an order of attachment before judgment under the provisions of S.107(2), Civil P.C. In any event the possibility of hardship cannot warrant the ignoring of the express provisions of O.38, R. 9 by which it is specifically laid down that an attachment before judgment shall cease by the dismissal of a suit. (Para 10) Anno: AIR Com. Civil P.C., O.38, R.9, N.1; 1953 Mulla, O.38, R.9, P.1148, N "Removal....dismissed" (Madras and Oudh views which are contra to Rangoon view noticed in Pt. (d) in Muila, not noticed in Mulla - Pts. 4 to 8 in AIR Com. extra - Rangoon contra view not noticed in Pt. 3 in AIR Com. note - Pt (e) in Mulla extra). Cases Referred : Chronological Paras (A) (27) 32 Mys CCR 97 : 5 Mys LJ 23 1, 3, 4, 5, 11 (B) (44) 49 Mys HCR 220 1, 5, 11 (C) (V39) AIR 1952 Trav-C 414 : 1952 Ker LT 264 (FB) 1, 7 (D) (14) 19 Mys CCR 275 2, 3, 4 (E) (83) 10 All 506 : 1888 All WN 195 3, 6, 10 (F) (11) 13 Cal LJ 243 : 9 Ind Cas 918 3, 6 (G) (V5) AIR 1918 Cal 39 : 45 Cal 780 3, 6 (H) (V8) AIR 1921 Cal 101 : 25 Cal WN 544 3

(I) (V2) AIR 1915 Lah 217 : 29 Ind Cas 271 3 (J) (29) 7 Mys LJ 369 : 34 Mys CCR 450 (FB) 3, 4, 9, 11 (K) (V14) AIR 1927 Rang 310 : 5 Rang 492 4, 5, 6

(L) (V12) AIR 1925 Mad 114 : 47 Mad LJ 523 4 (M) (V15) AIR 1928 Mad 940 : 111 Ind Cas 887 4, 6 (N) (V15) AIR 1928 Mad 976 : 113 Ind Cas 63 4 (O) (V17) AIR 1930 Mad 514 : 53 Maa 334 (FB) 5, 6, 7 (P) (V22) AIR 1935 Mad 365 : 58 Mad 721 (FB) 5, 7 (Q) (V6) AIR 1919 PC 55 : 42 All 158 (PC) 5 (R) (V15) AIR 1928 Bom 545 : 30 Bom LR 1488 6 (S) (V15) AIR 1928 Cal 235 6 (T) (36) 14 Mys LJ 65 7 (U) (36) 14 Mys LJ 140 7

(V) (34) 25 Trav LJ 320 7 (W) 30 CLR 510 7

(X) (V30) AIR 1943 Mad 515 : 210 Ind Cas 453 7 M.K. Srinivasa Iyengar, for Appellant; B. Venkata Rao, for Respondent 1. Judgement ORDER OF REFERENCEVENKATA RAMAIYA AND BALAKRISHNAIYA, JJ.: In a suit on a pronote, the plaintiff obtained an attachment before judgment. The suit was dismissed in the trial Court. Subsequent to the dismissal of the suit the property was sold by the original owners to third persons. On appeal from the judgment of dismissal the suit was decreed and that decision was confirmed in the second appeal. In pursuance of the ultimate decree the properties which were attached before judgment in the trial Court were brought to sale and were purchased by strangers and the said sale having been confirmed, the properties were delivered by the Court to the purchasers. The material point on which the decision in this appeal turns is whether the attachment before judgment, which ceased with the dismissal of the suit, is revived, when the decision of dismissal is reversed by the superior Court. In 32 Mys C.C.R.97(A), it is laid down that "the reversal of the judgment of dismissal on appeal does not operate to revive the attachment or the suretys liability in every case irrespective of the terms of the bond." In another case reported in 49 Mys HCR 220 (B), this position is doubted by the observation that "whether the view that an attachment before judgment would cease the moment the suit is dismissed by the Court of first instance according to the provisions of O.38, R.9, is correct or not...." Both these cases related to the continuing liability of the surety. In the present case, the question of continuing liability of the property attached is raised. This aspect came up directly for decision in a recent Full Bench case of the Travancore-Cochin High Court (Vide - Muhammad Abdul Khadir v. Padmanabha Pillai, AIR 1952 Trav-C 414 (C)) where it was definitely laid down that "an attachment before judgment which ceased to be in force with the dismissal of the suit, will revive when the decree dismissing the suit is subsequently reversed and a decree in the plaintiffs favour is passed even by the same Court or by a superior Court and this revival will be in force from the date on which the attachment before judgment is effected as provided for in the Code." In view of the conflicting decisions in the various High Courts, it is felt that the question is not free from doubt and as the Judges composing the Bench, differ in their opinion it is referred for disposal by a larger Bench. The point of law is "whether the attachment before judgment which ceased to be in force with the dismissal of the suit will revive when the decree dismissing the suit is subsequently reversed and a decree in plaintiffs favour is passed by the same Court or by a superior Court and if revived whether the revival will be in force from the date on which the attachment before judgment is effected as provided for in the Code." In pursuance of the order of the Division Bench on 29-1-54 this appeal came on for hearing, the Court expressed the following opinion (16-12-1934): VASUDEVAMURTHY, J.:- This is a reference to the Full Bench by Venkataramaiya and Balakrishnaiya, JJ. The point of law referred to us is: "Whether the attachment before judgment which ceased to be in force with the dismissal of the suit will revive when the decree dismissing the suit is subsequently reversed and a decree in plaintiffs favour is passed by the same Court or by a superior Court and if revived whether the revival will be in force from the date on which the attachment before judgment is effected as provided for in the Code." In a suit for recovery of monies due to him by defendant 4 on a promissory note, defendant 1 obtained an order of attachment before judgment of some immoveable properties and got them duly attached. His suit was dismissed by the trial Court and subsequent to such dismissal the suit property which was one of the items attached was sold by him to the plaintiff. On first appeal the suit was decreed and that decree was confirmed in a second appeal. In execution of that decree the properties which had been attached before judgment were brought to sale and the suit item was purchased in Court auction by defendant 2. In a suit by the plaintiff for declaration of his title and injunction it was contended that by reason of the prior attachment before judgment and the consequent court sale in favour of defendant 2, the plaintiff had derived no title by his purchase.

2. The earliest case in which the matter appears to have been considered by this Court is in 19 Mys CCR 275 (D), where Chandrasekhara Aiyar and Wallace, JJ. held that the dismissal of a suit does not by itself operate as a release of an attachment before judgment, ordered in the course of the suit, and that such an attachment must be deemed to subsist unless and until it is expressly withdrawn by a further order of the Court. In that case the plaintiffs suit for recovery of money due on accounts was dismissed by the Munsiff, and on appeal decreed by the District Judge, who set aside the order of dismissal; and the point arose whether the attachment before judgment, which had been passed by the Munsiff, was available and operated as against a mortgage of the attached properties made by the defendants subsequent to the dismissal of the suit. Chandrasekhara Aiyar, J. considered that the circumstance that S.488 of the Code of 1882 which applied to that case (corresponding to O.38, R.9 of the new Code) no doubt made it obligatory on the Court to remove the attachment when the suit was dismissed. He, however, thought that that provision seemed scarcely to warrant the conclusion that the attachment is to be deemed to have been removed even without an order of withdrawal and the circumstance that the Legislature had thought it necessary that a formal order of withdrawal should be passed tended rather to suggest that the attachment was intended to subsist till it should be formally withdrawn by an order. Wallace, J. concurred with him and thought that if it was intended that the attachment should cease automatically on the furnishing of security or on the dismissal of the suit, the section would be worded in a manner similar to O.21, R.57, Civil P.C.

3. The matter came up again for consideration in 32 Mys CCR 97 (A), before a single Judge Doraswami Iyer, J. In that case when the warrant of attachment before judgment was taken to the defendant he offered to give security. Thereupon the respondents executed a surety bond holding themselves liable for payment of the decree amount in case a decree should be passed in favour of the plaintiff. The warrant was, in those circumstances, not executed and returned to the Court. The plaintiffs suit was later on dismissed by the Munsiff and his decision was confirmed in appeal by the Subordinate Judge of Shimoga. In second appeal, however, those judgments were reversed and a decree was passed in his favour. In the meantime the defendant applied, soon after the dismissal of the suit in the first Court, for the cancellation of the surety bond and obtained an order to that effect but without notice to the plaintiff. Doraswami Iyer, J., while confirming the order of the Court below that the security bond had been properly cancelled, observed that the attachment would cease to have any effect as soon as the Court of first instance dismissed the plaintiffs suit; O.38, R. 9 provided that where an order is made for attachment before judgment the Court shall order the attachment to be withdrawn when the defendant furnishes security required or when the suit is dismissed; and it had been held in several cases that the attachment would be treated as having come to an end on the dismissal of the suit though no formal order was made withdrawing the attachment since it is obligatory on the Court to withdraw the attachment on the dismissal of the suit. In support of this conclusion he referred to - Ramchand v. Pitam Mal, 10 All 506 (E); - Sasirama Kumari v. Meherban Khan, 13 Cal LJ 243 (F); - Abdur Rahaman v. Amir Sharif, AIR 1918 Cal 39 (G) and - Protap Chandra v. Sarat Chandra, AIR 1921 Cal 101 (H). He observed further that the reversal of the judgment of dismissal on appeal does not operate to revive an attachment which had been so cancelled and referred to - Shanker v. Ram Kishen, AIR 1915 Lah 217 (I), and some other cases where it has been held that when a property is attached before judgment or when a surety on behalf of the defendant makes himself personally liable and pledges property by way of security so as to save the defendant from attachment of his property, the attachment of the defendants property or the liability of the surety in person or property, as the case may be, comes to an end if the first Court dismisses the suit and thereupon the suretys person and property cease to be liable in any way. He also observed that the liability of a surety under a bond which is but a substitution for the attachment before judgment and which really takes its place stands on the same footing. 19 Mys CCR 275 (D) was not brought to his notice when he decided this case so that when a similar matter arose before him he referred the matter for opinion of a Pull Bench consisting of himself, Sreenivasa Iyer and Ramachandra Rao, JJ. in 7 Mys LJ 369 (J).

4. It was held by the Pull Bench in 7 Mys LJ 369 (J), that the decision reported in 19 Mys CCR 275 (D), was not correct in view of the provisions of O.38, R.9, Civil P.C. Doraswami Iyer C.J. wrote the leading judgment with which the other two Judges concurred and he again relied on the cases already referred to by him in 32 Mys CCR 97 (A), i.e. of the Allahabad and Calcutta High Courts and to the case reported in - D. Manackjee v. R. M.N. Chettyar Firm (1), AIR 1927 Rang 310 (K). He noticed that in Madras the trend of authorities had not been uniform and in that connection referred to - Subbarama Iyyar v. Somalinga Subba Ayyar, AIR 1925 Mad 114 (L); - Namagiri Ammal v. Muthu Velappa Goundan, AIR 1928 Mad 940 (M) and - Seethai Ammal v. Narayana Ayyangar, AIR 1928 Mad 976 (N). In the last case Madhavan Nair and Jackson JJ. had held that an attachment before judgment automatically terminated with the dismissal of the suit as contrasted with the view taken in AIR 1928 Mad 940 (M), by Phillips and Devadoss JJ.

5. In 49 Mys HCR 220 (B), the plaintiff obtained an order of attachment before judgment and certain moveable properties of the defendant were attached. The attacnment was subsequently raised on security being furnished. The suit was decreed in the trial Court, reversed in the first appellate Court and decreed again in the High Court in second appeal. On the surety, who was sought to be proceeded against, raising an objection that by the dismissal of the suit in the first appellate Court his liability ceased in accordance with the language of O.38, R.9, Civil P.C. Venkataramana Rao, C.J. and Singaravelu Mudaliar, J. held that the terms of the bond by which the surety had undertaken to pay if a decree was passed against the defendant as prayed for in the plaint were general and that there was nothing in the language of the bond to confine the operation of those words to a decree to be passed by the Court of first instance. The obligation secured under a security bond would always depend upon the language of the bond; and by the bond before them the appellant had bound himself to satisfy any decree that may ultimately be passed against the defendant. That decision was therefore based on the terms of the surety bond. In the course of their judgment Venkataramana Rao C.J. referred to the cases decided by this Court (sic) in 32 Mys CCR 97 (A); AIR 1927 Rang 310 (X) and - Balaraju Chettiar v. Masilamani Pillai, AIR 1930 Mad 514 (FB) (O). He observed that in the last of the cases it was decided by the Full Bench that an attachment before judgment in a pending suit came to an end when the suit was dismissed and it was not revived on the appellate Court setting aside the dismissal, which conclusion was based upon the language of O.38, R. 9. The learned Chief Justice also referred to - T. Veeraswami v. P. Ramanna, AIR 1935 Mad 365 (FB) (P), and observed: "With due respect to the learned Judges (who decided AIR 1935 Mad 365 (FB) (P)), we are not able to appreciate the distinction suggested between a suit dismissed after trial and a suit dismissed for default when construing the provisions of O.33, R.9, Civil P.C. The language of O.38, R.9 is general and would cover both a case of dismissal on merits and a case of dismissal for default." He distinguished the case before them from the case in 32 Mys CCR 97 (A), however, on the ground that the language of the surety bond in the latter case may have warranted the view taken in that case about the liability of the surety and cited with approval the observations of the Privy Council in - Raj Raghubar Singh v. Jai Indra Bahadur Singh, AIR 1919 PC 55 (Q), to the effect that the extent of the obligation under a surety bond would always depend upon the language of the bond as construed with reference to the surrounding circumstances. He further observed that it was open to a surety to undertake a limited or wider obligation and there was nothing in the Code of Civil Procedure which limited the extent or scope of such an obligation. Order 38, R. 9 of the Code in terms did not apply to a case of a surety bond executed in pursuance of an order under O.38, R.5 of the Code. Referring to the observation of Doraswami Iyer, C.J. in 32 Mys CCR 97 (A), that the attachment of a defendants property or the liability of a surety in person or property comes to an end if the first Court dismisses the suit and that thereupon the suretys person and property cease to be liable in any way, he pointed out, that the view that whenever a surety bond is given under the provisions of O.38 it really takes the place of an order of attachment before judgment was not warranted by the provisions of that order; whether the view that an attachment before judgment would cease the moment the suit is dismissed by the Court of first instance, according to the provisions of O.38, R.9, is correct or not would not warrant the view that the obligation undertaken by the surety comes to an end when the suit is dismissed by the Court of first instance. He thought that to import the provisions of O.38, R.9 in interpreting the provisions of a surety bond given for purposes of raising an attachment before judgment and to limit the obligations secured thereunder did not appear to him to be correct. Their Lordships were not therefore called upon and did not decide in that case whether an attachment before judgment would cease on the dismissal of a suit, and nowhere in the course of his judgment has the learned Chief Justice expressed himself to the contrary.

6. In AIR 1930 Mad 514 (FB) (O), the Madras High Court have set at rest the earlier differences of opinion in that Court and decided overruling AIR 1928 Mad 940 (M), that upon a dismissal of a suit an attachment before judgment necessarily ceases under O.33, R.9, Civil P.C. even though the Court does not pass an order withdrawing it. In the course of the judgment the learned Judges point out that the duty to withdraw the attachment order when the suit is dismissed is one thrown directly on the Court and that no application from a party was necessary. They refused to accept the contention, that all property attached, whether moveable or immoveable, was in the custody of the Court and that therefore it could not be released from attachment without an order of the Court. The same view has been taken by the Allahabad High Court in 10 All 508 (E), and by the Calcutta High Court from so far back as 9 Ind Cas 918 (Cal) (F) and AIR, 1918 Cal 39 (G), by the Bombay High Court in - Chindha Rupla V. Chhaganlal Shivlal, AIR 1928 Bom 545 at p.547 (R), and by the Rangoon High Court in AIR 1927 Rang 310 (K). In - Gobinda Chandra Roy v. Abdul Rashid, AIR 1928 Cal 235 (S), when the suit had abated and come to an end on the death of a party, an attachment before judgment was held to die with it.

7. The present reference has been made in view of the decision in AIR 1952 Trav-C 414 (FB) (C). The reasons expressed in it were apparently pressed upon the Division Bench as justifying a reconsideration of the view taken by our Court. Three questions arose for consideration in that case: (1) Whether an attachment before judgment which ceases to be in force with the dismissal of the suit, will revive when the decree dismissing the suit is subsequently reversed and a decree in the plaintiffs favour passed? (2) Whether an attachment which had been effected in execution of a decree and which should be deemed to have been raised with the setting aside of that decree would revive when a decree was subsequently passed in favour of the plaintiff? and (3) Whether an attachment before judgment shall cease to be operative when the execution application seeking to execute a decree pursuant to that attachment is dismissed for default of the decree-holder as contemplated in O.21, R.57, Civil P.C. The two latter points do not arise for consideration in the present reference, but it might be mentioned that it has been decided in - Byamma v. Krishna Singh, 14 Mys LJ 65 (T) and - Soogoolal v. Hyder Sab, 14 Mys LJ 140 (U), that an attachment before judgment does not become extinguished by reason of the dismissal of an application in execution asking for sale of the attached property and O.21, R.57, Civil P.C. cannot be held to apply to an attachment before judgment. Their Lordships of the Travancore-Cochin Court answered the first question in the affirmative. In that Court there was already some support for that view in 25 Trav LJ 320 (V), wherein the whole case law including the ruling in AIR 1930 Mad 514 (O), had been considered and opinion expressed that there was no reason why there should be any difference in the effect of attachment whether before or after judgment in a case where the claim petition was allowed and later on that order was reversed in a suit and a case where the suit was dismissed and restored to file and subsequently decreed. They also relied on the Full Bench decision of the Madras High Court in AIR 1935 Mad 365 (P), referred to in 30 CLR 510 (W) and - Nayudamma v. Sivaraju Dharmachand, AIR 1943 Mad 515 (X), where it was held that when a suit dismissed for default was restored to file, the suit remained as it was on the day when it was dismissed and all interim orders till the disposal of the suit would revive.

8. The decision in the Full Bench case of the Travancore-Cochin High Court is based mainly on a comparison of the incidents attendant upon the allowing of a claim under O.21, R.60, Civil P.C. and the revival of that attachment as a result of a decision is a suit under O.21, R.63. The actual words of O.21, R.60 and O.21, R.63 really lend no support to their Lordships conclusion. O.21, R. 58 provides for an investigation of claims and objections to attached property. Order 21, R. 60 provides that where upon the said investigation the Court is satisfied that for the reasons stated in the claim or objection the property was not, when attached, in the possession of the judgment-debtor or of some person in trust for him shall make an order releasing the property wholly or to such an extent as it thinks fit from attachment. Order 21, R.63 expressly provides that where a claim or objection is preferred the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute but subject to the result of such suit, if any, the order shall be conclusive. Under O.38, R.8 where any claim is preferred to property attached before judgment, such claim shall be investigated in the manner provided in O.21, R.58 for the investigation of claims of property attached in execution of decrees. But there is no provision in R.9 which provides that once an attachment before judgment has ceased when the suit is dismissed, and whether it is followed by an order withdrawing the attachment or not, the same will be revived when the suit once so dismissed is decreed again and restored to file on appeal, review or otherwise.

9. It is contended that an automatic cessation of an attachment before judgment, immediately a suit is dismissed, particularly for default, if it is not followed by its revival when the suit is subsequently restored to file or decreed, involves great hardship on the plaintiff and that the hardship on an alienee who has acquired rights in the property subsequent to such dismissal and before the suit is revived is not either more or different than that of an alienee who has acquired an interest subsequent to the raising of an attachment under O.21, R.60 and its reimposition under O.21, R.63. In 7 Mys LJ 369 (J), Doraswami Iyer, C.J. has pointed out that there is no such undue hardship involved because it was open to the plaintiff to apply for the setting aside of the ex parte order of withdrawal of attachment in the same way in which he may apply for setting aside an ex parte order of dismissal and he may do both simultaneously and observed that there was nothing to prevent a Court while restoring a suit to file to restore also an attachment without the plaintiff being driven to go through all the required formalities for restoring the attachment also.

10. An attachment before judgment is in the nature of an interlocutory order. It is an extraordinary relief granted to a plaintiff even before his claim is adjudicated upon and found to be true and if a suit is dismissed either for default or on its merits by the trial Court and the attachment before judgment has therefore to cease, he can certainly have not as much grievance as a person who has obtained a decree and attached property of the judgment-debtor whose right to attached property has been questioned and decided in summary proceedings and which are made expressly subject to a decision in a regular suit. Moreover it cannot also be urged that all interlocutory orders like say those passed on applications for temporary injunction the operation of which would have to cease on the dismissal of a suit, would automatically be revived or can be deemed to be in force without any further orders by an appellate Court or by the same Court after the suit is dismissed. To hold so would lead to obvious and real difficulties. It is not also as though the plaintiff in such a case has no remedy. He could always apply to the same Court if a suit which has been dismissed for default is restored to file or to an appellate Court which has also ample powers to grant an order of attachment before judgment under the provisions of S.107(2), Civil P.C. In any event the possibility of hardship cannot warrant the ignoring of the express provisions of O.38, R.9 by which it is specifically laid down that an attachment before judgment shall cease by the dismissal of a suit. As observed by Mahmood, J. in 10 All 506 (E), all interim orders cannot survive the pendency of the main litigation.

11. The decisions of this Court in 32 Mys CCR 97 (A); 7 Mys LJ 339 (J) and 49 Mys HCR 220 (B), have been in accordance with the views of the High Courts of Bombay, Calcutta, Madras and Rangoon. With great respect to the learned Judges who decided this point in the Full Bench case of the Travancore-Cochin High Court we are unable to agree with their view to the contrary. We see therefore no reason for re-considering the view already taken by our High Court and would answer the first part of the reference accordingly in the negative. The second part of the reference does not therefore arise. (After the opinion of the Pull Bench the case again went back to the Division Bench who on 28-1-55 dismissed the appeal with costs in accordance with that opinion.) Appeal dismissed. AIR 1955 MYSORE 96 (Vol. 42, C.N. 30) "Bomanji Wookerji v. State of Mysore" MYSORE HIGH COURT Coram : 1 VENKATARAMAIYA, J. ( Single Bench ) K. Bomanji Wookerji, Accused-Petitioner v. State of Mysore, Complainant-Respondent. Criminal Revn. Petns. Nos.307 and 308 of 1954, D/- 4 -1 -1955, against order of Sessions J., Mysore Division, D/- 11 -9 -1954. Criminal P.C. (5 of 1898), S.486, S.561A and S.92 - BAIL - INHERENT POWERS - ARREST - MAGISTRATE - Cancellation of bail - Prosecution hindered by accused remaining absent - Power of Magistrate to take action under S.92. There is no provision for cancellation of bail by the Sessions Judge when the offence alleged is bailable and the bail is granted under S.496 and the bail amount is reduced by Sessions Judge under S.498. An order cancelling a bail is permissible under S.561A of the Code. But S.561-A cannot be invoked in such a case as it relates only to the powers of the High Court and not other Courts. Where, therefore, it is alleged that the accused by his absence is hindering the case from being proceeded with it is open to the trial Magistrate to apply the provisions of S.92 of the Code. AIR 1945 Mad 250 - AIR 1948 All 366 (FB) - 39 Mys HCR 1102, Rel. on. (Para 3) Anno: Criminal P.C., S.496 N.7; S.561-A N 8; S.92 N.1. Cases Referred : Chronological Paras (A) (V32) AIR 1945 Mad 250 : 47 Cri LJ 106 3 (B) (V35) AIR 1948 All 366 : 49 Cri LJ 521 (FB) 3 (C) (34) 39 Mys HCR 1102 3

V.K. Govindarajulu, for Petitioner; Asst. Advocate-General in Mysore, for Respondent. Judgement ORDER:- These two petitions in which the petitioner is the same and the point involved is common can be disposed of by a single order. Both relate to cases in which the petitioner is alleged to have committed an offence under S.420, I.P.C. which, according to the schedule to the Code of Criminal Procedure, is bailable. The petitioner applied for bail and the learned Magistrate granted it on condition of his executing a bond for Rs.25,000/- and furnishing two sureties for a like sum. The amount mentioned being felt to be excessive, the petitioner applied to the learned Sessions Judge, Mysore, for reduction of the amount, and he reduced it to Rs.2500/-. The requirements of this order were satisfied and the cases are still pending in the Magistrates Court. An application was filed on behalf of the prosecution before the learned Sessions Judge for cancellation of the bail on the ground that the petitioner was repeatedly absent on the dates or hearing of the cases and the progress of the case was considerably retarded. The learned Judge in a summary order allowed the application and the correctness of this is impugned in this Court.

2. The order of the learned Judge does not state the reasons for it or the provision of law under which it purports to have been passed. Mr. Govindarajulu on behalf of the petitioner represents that the order is unjust as the accused was not given opportunity to refute the allegations in the application and contends that it is in any event illegal and unwarranted.

3. The provisions for grant and cancellation of bail are contained in Ss.496, 497 and 498 of the Code of Criminal Procedure. Section 496 applies to cases of bailable offences; Section 497 to non-bailable offences for which punishment is other than death or transportation for life and under S.498 power is given to the High Court or Court of Session to admit any person to bail or to reduce the bail required by the police officer or a Magistrate. In both cases against petitioner as already mentioned, the offences alleged are bailable and the order previously made by the learned Sessions Judge is stated to be under Section 498 of the Code of Criminal Procedure since it only reduced the bail required by the Magistrate. There is no provision for cancellation of bail by the Sessions Judge when the offence alleged is bailable and cancellation is allowed in sub-section (5) of S.497 when the offences alleged are non-bailable and punishment for which is not death or transportation for life. The learned Asst. Advocate-General has fairly conceded that the order cannot be supported by any statutory provision. In - Crown Prosecutor, Madras v. N.S. Krishnan, AIR 1945 Mad 250 (A) it was held that bail once granted cannot be cancelled by the same Court under Sec.497 and such an order is permissible under Sec.561-A of the Code of Criminal Procedure. Section 561-A cannot be invoked in the present case as it relates only to the powers of the High Court and not other Courts. To the same effect is the decision in - Seoli v. Rex, AIR 1948 All 366 (B). If as stated in the petition before the learned Sessions Judge the accused by his absence is hindering the case from being proceeded with it is open to the trial Magistrate to apply the provisions of S.92, Criminal P.C., as pointed out in 39 Mys HCR 1102 (C). The orders now passed by the learned Sessions Judge cannot be regarded as warranted by law. These are, therefore, set aside and the applications are allowed. Applications allowed. AIR 1955 MYSORE 97 (Vol. 42, C.N. 31) "Srikantiah v. Honne Gowda" MYSORE HIGH COURT Coram : 1 VENKATARAMAIYA, J. ( Single Bench ) Srikantiah and another, Petitioners v. Honne Gowda and others, Respondents. Civil Revn. Petn. No.320 of 1953, D/- 13 -11 -1953, against order of Dist. J., Mysore, in Misc. A. No.12 of 1952-53. Provincial Insolvency Act (5 of 1920), S.75 - INSOLVENT - LEGAL REPRESENTATIVES - Mysore Insolvency Act, S.75 - Application to bring respondent on record made under Civil P.C., O.22, R.3 rejected - Appeal. Civil P.C., (5 of 1908), O.22, R.3. Section 75 of the Act enables "any person aggrieved by a decision come to or an order made in the exercise of the Insolvency jurisdiction" to prefer an appeal. The right of appeal is substantive and when by the Act it is allowed with respect to "any" decision or order, the right cannot be taken away or curtailed by the restrictive provisions of the Code of Civil Procedure. The words in Section 75 are wide enough to make an appeal possible though the Civil P.C., denies it in some cases. Hence, an order rejecting an application filed under O.22, R.3, Civil P.C., for the respondents 1 and 2 being brought on record in place of a deceased petitioner in an insolvency case is appealable. AIR 1948 Mad 520 - AIR 1946 Nag 42 - AIR 1937 Lah 568, Rel. on. (Paras 1, 3) Anno: P.I. Act, S.75 N.3; C.P.C., O.22, R.3 N.26. Cases Referred : Chronological Paras (A) (V13) AIR 1926 Mad 586 : 49 Mad 450 (FB) 2 (B) (V35) AIR 1948 Mad 520 : ILR (1949) Mad 106 3 (C) (V33) AIR 1946 Nag 42 : ILR (1945) Nag 719 3 (D) (V25) AIR 1938 All 28 : ILR (1938) All 50 3 (E) (V24) AIR 1937 Lah 568 : 174 Ind Cas 857 3 C.B. Nandeeswar, for Petitioners; M.A. Gopalaswamy Iyengar, (for Nos.1 to 3) and H. Venkateshamurthy, (for No.5), for Respondents. Judgement ORDER:-The question raised in this case is whether an order rejecting an application filed under O.22, R.3, Civil P.C., for the respondents 1 and 2 being brought on record in place of a deceased petitioner in an insolvency case is appealable.

2. Two persons Ningamma and Thimme Gowda filed an application on 16-5-1944 in the Court of the Subordinate Judge, Mysore, for one Boriah being adjudged insolvent. The case was registered as I.C. No.16 of 1943-44 and an order of adjudication was passed therein on 8-1-1945. Without referring to what happened in the course of the subsequent proceedings it is sufficient for the purpose of this case to state that an application I.A. No.VI was filed on 24-5-51 by the respondents 1 and 2 alleging that Thimme Gowda 2nd petitioner in I.C. No.16/43-44 died in February 1951 and that they being his son and widow respectively may be impleaded as his legal representatives. The 3rd respondent in the original petition, who is an alienee from the insolvent, objected to this on the ground that the application was filed beyond 90 days from the date of Thimme Gowdas death. The objection was upheld and I.A. VI was dismissed. On appeal by the petitioners who had filed I.A. VI, the learned District Judge on a consideration of the evidence found that death of Thimme Gowda had occurred within 90 days prior to the petition and therefore allowed the application. The correctness of this order is impugned on the ground that no appeal lay against the order of the learned Subordinate Judge on I.A. No.VI as it was filed under O.22, R.3, C.P.C., and the order of the District Judge must be held to be without jurisdiction. There is no indication in the order of the learned District Judge of either a doubt or contention regarding maintainability of the appeal. Nevertheless it is urged that the order has no validity for want of jurisdiction and should not be allowed to stand. The appeal must be held to be not competent if it depends on the provisions of the Civil Procedure Code as the order on I.A. No.VI does not fall within the category of the orders stated in the Code to be appealable and the Full Bench decision in - Venkatakrishna Reddy v. Krishna Reddy, AIR 1926 Mad 586 (A) makes this clear.

3. The rules in O.22 relate to substitution of parties in suits and appeals or other proceedings arising from suits. The application now for consideration was filed in the course of insolvency proceedings governed by special provisions of the Mysore Insolvency Act and the Civil Procedure Code can apply only to the extent required or permitted by these. The argument on petitioners behalf that S. 5 of the Act attracts all the provisions of the Civil Procedure cannot be accepted as it states: "(1)Subject to the provisions of this Act, the Court, in regard to proceedings under this Act, shall have the same powers and shall follow the same procedure as it has and follows in the exercise of original civil jurisdiction. (2) Subject as aforesaid, the High Court and District Courts, in regard to proceedings under this Act in Courts subordinate to them, shall have the same powers and shall follow the same procedure as they respectively have and follow in regard to civil suits." It is, therefore, necessary that other provisions of the Act are to be looked into for finding out if the Code may be resorted to Sections 16 and 17 of the Act for example show that the proceedings may continue even if a debtor dies and the Court may substitute one creditor for another to conduct the proceedings. Besides these particular provisions, S.75 of the Act enables "Any person aggrieved by a decision come to or an order made in the exercise of the Insolvency jurisdiction" to prefer an apeal. The right of appeal is substantive and when by the Act it is allowed with respect to "any" decision or order, the right cannot be taken away or curtailed by the restrictive provisions of the Code of Civil Procedure. The words in S.75 are wide enough to make an appeal possible though the C.P.C. denies it in some cases. In - In re Pedda Iswara Reddy, AIR 1948 Mad 520 (B), an order passed on an application filed under O.1, R.10, Civil P.C., for adding certain persons as parties was sought to be revised in the High Court as no appeal against such an order lies under the C.P.C. The application for revision was dismissed on the view that the parties aggrieved should have filed an appeal under S.75 before a District Judge. In - Wamanrao v. Shrikumar Jaikumar, AIR 1946 Nag 42 (C), the question was whether the finding of the Insolvency Court about its jurisdiction to decide certain matters raised in a case was appealable. The contention that the finding being preliminary, was not appealable was overruled and it was held that in matters arising in the insolvency case the provisions of the Civil Procedure Code are not to be looked into and though the finding did not dispose of the claim, it amounted to a "decision" to be appealed from under S.75(1). Budhsen v. Asharfilal, AIR 1938 All 28 (D) cited for the petitioners does not state anything to the contrary and it deals mainly with the question of a second appeal and not a first appeal. There is no doubt that appeals are more extensively allowed under the Insolvency Act and orders not appealable according to the provisions of the Code such as those passed on applications for review are subject to appeal under the Insolvency Act. See - Sher Singh v. Firm Bishan Lal Suraj Bhan, AIR 1937 Lah 568 (E). In this case, of the two creditors who filed the petition, one is still alive and the legal representatives of the other petitioner can well proceed with the case along with him.

4. The order of the learned District Judge, in my opinion, is correct. There is no reason to interfere with the same. The petition is dismissed but without costs. Petition dismissed. AIR 1955 MYSORE 98 (Vol. 42, C.N. 32) "Jamila Bi v. Mahboob Bi" MYSORE HIGH COURT Coram : 1 K. N. PADMANABHIAH, J. ( Single Bench ) Jamila Bi, Plaintiff-Petitioner v. Mahboob Bi and another, Defendants-Respondents. Civil Revn. Petn. No.152 of 1954, D/- 18 -2 -1955, against order of Third Addl. Dist. J., Bangalore, D/- 19 -12 -1953. Court-fees Act (7 of 1870), S.7(xi)(cc) and S.7(v)(c) - COURT-FEE - APPLICABILITY OF AN ACT - EVICTION - LEASE - Applicability - Suit for ejectment of licensee from house. Mysore Court-fees Act (3 of 1900), S.4(xi)(cc) and S.4(v)(b). Transfer of Property Act (4 of 1882), S.105. AIR 1927 Pat 140, Dissented from. Section 4(xi) (cc) of the Mysore Court-fees Act prescribed a cheap remedy for the recovery of immovable property in possession of a tenant including a tenant holding over. That section cannot be made applicable to the case of a licensee in possession. Therefore the Court-fee payable by the plaintiff for ejectment of a licensee from a house which he was permitted to occupy, is not under S.4(xi)(cc) but under S.4(v)(b) of the Mysore Court-fees Act. (Difference between a tenant and a licensee pointed out). AIR 1927 Pat 140, Dissented from. AIR 1947 Bom 482 - AIR 1949 Cal 621 - AIR 1954 Mad 200, Followed. (Para 6) Anno: AIR Com. Court-fees Act, S.7(v) N.26a, 27, S. 7(xi) N.2. AIR Com. T.P. Act, S.105 N.13 and 14; 1949 Mulla, S.105, P.644 N "License" (7 Pts. extra in N.13 and 14 to S.105 in AIR Com. - AIR Com. notes analytical). Cases Referred : Chronological Paras (A) (V14) AIR 1927 Pat 140 : 5 Pat 631 4 (B) (V34) AIR 1947 Bom 482 : 49 Bom LR 552 5 (C) (V36) AIR 1949 Cal 621 5 (D) (20) 24 Cal WN (Notes) 167 5 (E) (V41) AIR 1954 Mad 200 : 1953-2 Mad LJ 403 5 (F) (V39) AIR 1952 Madh-B 123 5 N.S. Narayana Rao, for Petitioner; S.K. Venkatarangaiengar, for Respondents. Judgement ORDER:- This is a revision petition preferred by the Petitioner-plaintiff against the order of the learned Third Additional District Judge, Bangalore, in Misc. A.81/53, confirming that of the learned Principal Subordinate Judge, Bangalore, in O.S. No.25 of 1952-53, holding that the value of the subject-matter of the suit was beyond the pecuniary jurisdiction of his Court and returning the plaint for presentation to proper Court.

2. The facts that have given rise to this petition are briefly as follows: The petitioner-plaintiff filed a suit against the respondents-defendants in the Court of the learned Principal Subordinate Judge, Bangalore, alleging that the Respondents-defendants were in occupation of the schedule premises with her permission, that the said permission was subsequently revoked by her, that she had issued a notice to quit, that the defendants did not comply with her request and continued to be in occupation and that they should be evicted and possession of the premises secured to her. For purposes of Court-fee and jurisdiction, she valued the suit at Rs.2,694-8-0 describing the suit as a suit for ejectment. In other words, the plaintiff valued the suit for purposes of court-fee under S.4(xi) (cc) of the Mysore Court-fees Act, as if the suit was for the ejectment of a tenant. A preliminary issue was framed regarding the question of jurisdiction and the learned Subordinate Judge found that the valuation made by the plaintiff was not correct, that the valuation should, have been under S. 4(v)(b) of the Court-fees Act and that the value so arrived at was beyond the pecuniary limits of his Court and he accordingly returned the plaint for presentation to proper Court. The plaintiff took up this order in appeal and the learned Third Additional District Judge dismissed the plaintiffs appeal and confirmed the order of the learned Subordinate Judge. As against that order of the learned District Judge, this Revision Petition is filed.

3. It appears to me that there is no substance in this revision petition. The short point that arises for consideration is whether the amount of Court-fee payable by the plaintiff for ejectment of a licensee from a house which he was permitted to occupy, is under S.4(xi)(cc) of the Court-fees Act as contended on the side of the plaintiff, or under S.4(v)(b) of the Court-fees Act as urged on the side of the defendants. I think that the proposition of law as enunciated on the side of the defendants has to be accepted as sound.

4. It was contended by the learned Counsel for the petitioner that the subject-matter of her suit is the right to eject the defendants, that it is the value of that right that has to be taken as the value over which plaintiff has to pay court-fee and that the proper section applicable is Section 4(xi)(cc) of the Court-fees Act. In other words, his contention was that the subject-matter of the suit was not the house in which the defendants were residing but only the right of the defendants to remain therein. According to him, his claim is analogous to the claim of a landlord to evict a tenant and therefore S.4(xi)(cc) is applicable for purposes of court-fee. I think that the proposition of law propounded for the petitioner is not correct, nor sound. In support of his case, the learned counsel for the petitioner relied on a case reported in - Mt. Barkatunnissa Begum v. Mt. Kamiza Fatma, AIR 1927 Pat 140 (A). No doubt, it is laid down therein that a suit to eject a licensee is a suit for ejectment covered for purposes of court-fee by Cl, (v) of S.7, Court-fees Act; and there does not appear to be any decision of our own High Court bearing on this subject. As a matter of fact, the learned counsel appearing for the petitioner and respondents represented that there was no such case. But the other High Courts of the Indian Union have differed from the principle enunciated by the Patna High Court in the aforesaid decision and held to the contrary.

5. In - Ratilal v. Chandulal, AIR 1947 Bom 482 (B), it is held that where a plaintiff claims the possession of a house on the ground that the defendant is in possession as a licensee, the court-fee payable is under S.7(v)(e) of the Court-fees Act according to the market-value of the house. This decision has been followed by the Calcutta High Court in the case reported in - Satish Kumar v. Sailabasini Devi, AIR 1949 Cal 621 (C). That was also a case against a licensee for possession after revocation of the license. His Lordship has held in that case that the plaintiff cannot be allowed to put his own valuation, that the court-fee payable was under S.7(v)(e) of the Court-fees Act, and that for purposes of court-fee, valuation should be made in one of the ways provided in the aforesaid section. In coming to that decision, His Lordship disagreed with a previous decision of that very Court in - Basiram Christian v. Ganesh Chandra Das, 24 Cal WN (Notes) 167 (D), and also disagreed with the decision of the Patna High Court referred to already and they preferred to follow the decision of the Bombay High Court in this respect. Again, the High Court of Madras has in - Nidugonda Rudramani v. C. Srisailam, AIR 1954 Mad 200 (E) preferred to follow the decision of the Bombay High Court in this behalf, and so also the Madhya Bharat High Court reported in - Martandrao Tatyaji v. Tarabai, AIR 1952 Madh B 123(F). Though this Court may not be bound by any of these decisions, yet it appears to me that, the principle laid down by the High Courts of Bombay, Calcutta and Madras is more in consonance with justice, equity and good conscience and I am, therefore, inclined to follow those decisions.

6. Section 4(xi)(cc) of the Court-fees Act governs suits between the landlord and tenant i.e., that provision deals with suits for recovery of immovable property from a tenant including a tenant holding over after the determination of the tenancy. That section prescribes a cheap remedy for the recovery of immovable property in possession of a tenant including a tenant holding over. That section cannot be made applicable to the case of a licensee in possession. It need hardly be stated that there is a lot of difference between a tenant and a licensee. A lease is a transfer of interest in land and the estate transferred to the lessee is called the lease-hold. A license is merely a personal right and does not amount to any interest in immovable property. Therefore a personal right to possession cannot be termed as a lease and that personal right does not create any interest in immovable property. A license is merely a permission to do some act, which without such permission it would be unlawful to do. Thus it is seen that the term license is not analogous to the expression lease Both are quite different. Therefore there is no substance in contending that a suit to eject a licensee comes under Section 4 (xi) (cc) of the Court-fees Act. In the present case, the allegations made in the plaint are that the defendants are the licensees and that the license has been revoked. The subject-matter of the suit is not merely the right to eject but also for recovery of possession from the licensees. The subject-matter of the suit should be valued in the manner provided in S.4(v)(b) of the Court-fees Act. When so calculated, the value of the subject-matter of the suit goes beyond the pecuniary limits of the Court of the learned Subordinate Judge, Bangalore, as found by him and also as concurred by the learned District Judge. I think that, under these circumstances, the decision of the learned District Judge, has to be affirmed.

7. In the result, the order of the learned Third Additional District Judge is confirmed and his petition stands dismissed with costs. Advocates fee Rs.15/-. Petition dismissed. AIR 1955 MYSORE 99 (Vol. 42, C.N. 33) "Guruswamy v. I.-T. Officer" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND PADMANABHIAH, J. ( Division Bench ) K.N. Guruswamy, Petitioner v. Income-tax Officer, Special Circle, Bangalore, Respondent. Writ Petns. Nos.20 to 22 and 25 of 1954, D/- 22 -3 -1955. (A) Mysore Retroceded Area (Application of Laws) Act (57 of 1948), Sch.A - INCOME-TAX - Words "has not been assessed" and "until the stage of assessment" refer only to assessment u/S.23 and not re-assessment u/S.34. @page-Mys100 An assessment under the Income-tax Act becomes complete when it is made under S.23 and a notice of demand is issued under S.29. There is no reason why the words "has not been assessed" and "until the stage of assessment" occurring in Schedule A to Act 57 of 1948 should receive a different interpretation. Hence the assessment permitted by Act 57 of 1948 under the provisions of the Indian Income-tax Act was an assessment under S.23 and not what may be called its "re-assessment" under S.34. (Para 12) (B) Constitution of India, Art.226 - WRITS - Illegal taxation. Where the proceedings against an assessee were commenced under a repealed law, they are liable to be quashed by a writ under Art.226. (Para 13) Anno: AIR Com., Const. of India, Art.226, N.35. (C) Finance Act (25 of 1950), S.13 - FINANCIAL PROVISIONS - INCOME-TAX - Assessment made prior to 1-4-1950 - It cannot be re-opened u/S.34, Indian Income-tax Act in force in the Retroceded Area prior to retrocession. Section 13, Finance Act, which repealed the Mysore Income-tax Act, did not save S. 34, Mysore Income-tax Act so as to entitle the Income-tax Officer to re-open under that section assessment made prior to 1-4-1950. The reason is that the word "assessment" occurring in S.34, Finance Act, referred to assessment under S.23 and not proceedings under S.34. Hence it would not be competent for the Income-tax Officer to re-open the assessment made prior to 1-4-1950 even under S.34, Income-tax Act, as in force in the Retroceded Area, prior to its retrocession. (Para 15) Cases Referred : Chronological Paras (A) (V25) AIR 1938 PC 175 : ILR (1938) Bom 487 (PC) 11 (B) (V23) AIR 1936 Lah 897 : 168 Ind Cas 181 11 (C) (V42) AIR 1955 Mys 49 : (C.P. Nos.52 and 53 of 1953 and W.P. Nos.105 and 106 of 1954 - Mys.) 12, 15, 16 A.N. Somanath Iyer, for Petitioner; C.R. Ethirajulu Naidu, for Respondent. Judgement MEDAPA, C. J.:- The Special Income-tax Officer, Special Circle, Bangalore started proceedings on 5-1-1954 against the petitioner, under S.34, Income-tax Act for assessing, what was described as the escaped or under-assessed income chargeable to income-tax, during the assessment years 1945-46, 46-47, 47-48 and 48-49. The Income-tax Officer made his assessment for the year 1945-46. The assessments for the remaining periods were not completed. The petitioner contends that these proceedings are all without jurisdiction or authority and are liable to be quashed by the issue of appropriate writs under Art.226, Constitution of India.

2. The financial integration of Mysore with the Union of India had come into effect, in pursuance of the recommendations of the committee known as the Indian States Finance Enquiry Committee, recorded in an agreement entered into between the Rajpramukh of Mysore and the President of India on 28-2-1950, that is to say, 3 years before the Income-tax Officer commenced these proceedings. On and from 1-4-1950, by S. 13, Finance Act of 1950, to which the President accorded his assent on 31-3-1950, the Mysore Income-tax Laws stood repealed and the Indian Income-tax Act was extended to the State of Mysore.

3. The contention of the petitioner is that after the enactment of the Indian Finance Act it was not competent for the Income-tax Officer to start proceedings under S.34, Indian Income-tax Act for the purpose of re-opening assessments made before the financial integration. It is undisputed that the petitioners income for the relevant years had been made, before the integration came into effect.

4. The income of the petitioner chargeable to income-tax is in an area which will be referred to herein as the Retroceded Area. This area formerly was part of the State of Mysore. In the year 1881 when the Rendition of the State of Mysore to the Ruler was made by installation of the Maharaja, the Instrument of Transfer came into existence. It was provided under Art.9 of that Instrument that whenever the Governor-General in Council wished to establish and maintain British Cantonments in such area in the State of Mysore as he considered necessary, the Maharaja would grant such land as may be required for the purpose and would renounce all jurisdiction within such lands. The Retroceded Area which until 1947 was known as the Bangalore Civil and Military Station, was the area so assigned to the exclusive management of the British Government for the formation of cantonment therein. His Majesty the King of England exercised the right of jurisdiction in this area in exercise of his powers under the Indian (Foreign Jurisdiction) Order in Council, 1902 made under the Foreign Jurisdiction Act, 1890. The Governor-General provided for the administration of civil justice within the Retroceded Area. The laws administered in that Area included various enactments made applicable thereto by the promulgation of notifications under the Indian (Foreign Jurisdiction) Order in Council, 1902. One of the laws so made applicable to the Area was the Indian Income-tax Act.

5. This Area was rotroceded to the State of Mysore on 26-7-1947 by a notification issued by the Crown Representative under the Indian (Foreign Jurisdiction) Order in Council, 1937. This was preceded by the enactment, of the Indian Independence Act, 1947 which received Royal assent on 18-7-1947. Section 7(1) of that Act provided among other matters that the suzerainty of His Majesty over the Indian States should as from 15-8-1947 lapse, and with it all treaties and agreements in force at the date of the passing of that Act between His Majesty and the Rulers of the Indian States, all functions exercisable by His Majesty at that date with respect to Indian States, all obligations of His Majesty existing at that date towards Indian States and Rulers thereof, and all powers, rights authority or jurisdiction, exercisable by His Majesty by treaty, grant, usage, suffrage or otherwise.

6. The Mysore laws were not forthwith extended to the Retroceded Area. Mysore Act No.23 of 1947 (The Retrocession (Application of Laws) Act) promulgated by His Highness the Maharaja on the 4-8-1947 provided that all laws in force in the Retroceded Area immediately prior to the date of retrocession shall continue to have effect in the Retroceded Area and that the Mysore laws shall not apply thereto. By Mysore Act 24 of 1947 (The Retrocession (Transitional Provisions) Act) which came into force on the same date it is provided that notwithstanding the provisions of the Indian Income-tax Act as in force in the Retroceded Area the Mysore Income-tax Officers shall have power to assess income pertaining to the Retroceded Area which had not been assessed prior to the date of retrocession. It is further provided by that Act that appeals and applications in respect of preretrocession assessments shall lie to the corresponding Mysore Authorities. The Mysore Law (Act 31 of 1948) promulgated by His Highness the Maharaja of Mysore on 30-8-1948 called the Mysore Income-tax and Excess Profits Tax (Application to the Retroceded Area) (Emergency) Act of 1948, extended the Mysore Income-tax Act to the Retroceded Area with effect from 1-7-1948 and the Indian Income-tax Act as in force in that Area was repealed. Section 5 of that Act further provided that in respect of income chargeable to income-tax in the Retroceded Area prior to the first day of July 1948 but which had not been assessed until that date, provisions of the Indian Income-tax Act as in force in the Retroceded Area immediately before that date, shall apply until the stage of assessment and determination of the tax and that after that stage the Mysore Income-tax Act should apply to such proceedings.

7. Finally on 5-8-1948 His Highness the Maharaja promulgated Mysore Act No.57 of 1948 (The Retroceded Area (Application of Laws) Act, 1948). That Act came into force on and from 15-8-1948. By S.3 of that Act, except as provided in that Act, all Mysore laws were made applicable to the Retroceded Area and all laws in force in the Retroceded Area were repealed. Section 4 provided that the Mysore Laws so extended and set out in Schedule A to that Act, applied to the Retroceded Area with the modifications and restrictions specified in 2nd column of Schedule A to that Act. The Mysore Income-tax Act of 1923 and the Mysore Excess Profits Tax Act, 1946 were two of the Mysore Acts so applied to the Retroceded Area. Thus, on 30-6-1948 the Mysore Income-tax Act was extended to the Retroceded Area and the Indian Income-tax Act was repealed except for certain transitional provisions to which reference will be made later. The Income-tax law operating in the Retroceded Area from 15-8-1948 was the Mysore Income-tax Act of 1923 with certain modifications and restrictions and as provided in the Indian Finance Act of 1950. This Mysore law ceased to have effect on and from 1-4-1950 except for a limited purpose. Section 13 of the Indian Finance Act, 1950 runs: "If immediately before the 1st day of April 1950 there is in force in any part B State other than Jammu and Kashmir or in Manipur, Tripura or Vindhya Pradesh or in the merged territory of Cooch-Behar any law relating to income-tax or super-tax or tax on profits or business, that law shall cease to have effect except for the purposes of the levy, assessment and collection of income-tax and super-tax in respect of any period not included in the previous year for the purpose of assessment under the Indian Income-tax Act, 1922 (XI of 1922) for the year ending on the 31st day of March 1951, or for any subsequent year or, as the case may be, the levy assessment and collection of the tax on profits of business for any chargeable accounting period ending on or before the 31st day of March 1949......"

8. It was nearly 4 years after the enactment of the Indian Finance Act that the Income-tax Officer commenced the impugned proceedings against the petitioner. Notices to the petitioner purport to have been issued under Section 34 of the Indian Income-tax Act. Although it is not so stated in the notices it is clear that the Officer who issued them intended to act under S.34 of the Indian Income-tax Act as in force in the Retroceded Area prior to its retrocession. The contentions urged on behalf of the petitioner are: (1) That notices issued under the Indian Income-tax Act, and not under that Act as in force in the Retroceded Area, were defective and rendered the proceedings void; (2) That the proceedings started by the Income-tax Officer under the repealed law, viz., the Indian Income-tax as in force in the Retroceded Area, which was repealed on 30-6-1948 by mysore act 31 of 1948, were without jurisdiction or authority; (3) That on and from 30-6-1948 the Income-tax law applicable to the Retroceded Area was the Mysore Income-tax Act and not the Indian Income-tax Act; (4) That after 30-6-1948 and until 1-4-1950 the Income-tax Officer in the Retroceded Area could re-open the assessment under section 34 of the Mysore Income-tax Act within a period of 4 years specified in that section and not under the Indian Income-tax Act; (5) That in these 4 cases the proceedings against the petitioner which were commenced under the Indian Income-tax Act, and after the expiry of the aforesaid period of 4 years were incompetent; (6) That all Income-tax laws in force in Mysore stood repealed on and from 1-4-1950 and so the Income-tax Officer could not start proceedings thereunder after that date; and (7) That even otherwise the agreement made between the President of India and the Rajpramukh of Mysore on 2-2-1950 under Art.278 of the Constitution of India forbade those proceedings.

9. It seems to us that the petitioner is right in contending that the proceedings against him were started by the Income-tax Officer under a repealed law. The Indian Income-tax Act, as in force in the retroceded area, prior to its retrocession to the State of Mysore was repealed on 30-6-1948 by S.6, Mysore Act 31 of 1948, under which the Mysore Income-tax Act, and the Mysore Excess Profits Tax Act were extended to the Retroceded Area. All the Mysore laws were made applicable to the Retroceded Area by a more comprehensive Mysore law (Mysore Act LVII of 1948) which came into force on 15-8-1948 but by the transitional provisions contained in S.5 of Act 31 of 1948 and in Schedule A to Act 57 of 1948 it was however provided that notwithstanding the repeal of the Indian Income-tax Act as in force in the Retroceded Area, its provisions were applicable to assessment proceedings and the determination of tax payable in respect of income chargeable to income-tax in the Retroceded Area prior to 1-7-1948 and which had not been assessed until that date. The relevant portion of Schedule A to Act LVII of 1948 which is a reproduction of S.8(b) of Act XXXI of 1948 runs: "in respect of the total income or profits chargeable to income-tax or excess profits tax in the Retroceded Area prior to the first day of July 1948, but which has not been assessed until that date, the provisions of the Indian Income-tax Act of 1922, and the Excess Profits Tax Act, 1940, as in force in the Retroceded Area immediately before that date shall apply to proceedings relating to the assessment, and the determination of the income-tax and excess profits tax payable thereon, and the Mysore Income-tax Act, 1923, or the Mysore Excess Profits Tax Act, 1946, as the case may be, shall apply to such proceedings after that stage;"

10. These transitional provisions also provided for the disposal of appeals and applications whether pending or arising out of proceedings under the old law, in other words, the provisions of the repealed indian act and their machinery were permitted to be employed by the Income-tax Authorities for a limited purpose, viz., for the assessment of income pertaining to the period anterior to 1-7-1948 and which had not been assessed until that date. After such assessment and determination of the tax the proceedings were governed by the Mysore Income-tax Act.

11. It is argued for the petitioner that the assessment permitted to be made under the old law was an assessment under S.23 and not a reassessment under Section 34. It is urged that an assessment made under the old law could, if at all, be re-opened after the enactment of Mysore Act XXXI of 1948 only under the Mysore Income-tax Act. It is contended that an assessment becomes complete the moment it is made under S.23 and a notice of demand is issued under S.29 of the Act. It is argued that the words "has not been assessed" and "until the stage of assessment" occurring in Schedule A to Act 57 of 1948 extracted above refer only to an assessment under S.23 which was permitted to be made under the Indian Income-tax Act. Reliance in support of this argument is placed on a decision of the Privy Council reported in - Commr. of Income Tax, Bombay Presidency and Aden v. Khemchand Ramdas, AIR 1928 PC 175 (A) and of the Lahore High Court reported in - Nawal Kishore Kharatilal v. Commr. of Income Tax, AIR 1936 Lah 397 (B).

12. This Court in - City Tobacco Mart, Avenue Road, Bangalore City v. Income Tax Officer, Urban Circle, Bangalore, AIR 1955 Mys 49 (C) has taken the view that an assessment under the Income-tax Act becomes complete when it is made under S. 23 and a notice of demand is issued under S.29. We adhere to that view and we see no reason why the words "has not been assessed" and "until the stage of assessment" occurring in Schedule A to Act 57 of 1948 should receive a different interpretation. It seems to us therefore that the assessment permitted by Act 57 of 1948 under the provisions of the Indian Income-tax Act was an assessment under S.23 and not what may be called its "re-assessment" under S.34.

13. It is admitted that in all these cases the assessment on the petitioners income has been completed under S.23. Any proceedings for reopening those assessments should have been commenced only under section 34 of the Mysore Income-tax Act within the period of 4 years specified in that section and not under S.34 of the Indian Income-tax Act. The contention of the petitioner that the proceedings against him are liable to be quashed on the ground that they were commenced under a repealed law has to be accepted. It is not disputed that if the Income-tax Officer had started proceedings under S.34, Mysore Income-tax Act they would have been clearly time-barred, since the period of 4 years specified in that section had expired when he commenced them. It is therefore rightly contended on behalf of the petitioner that the proceedings for re-opening the assessment of his income were for that reason incompetent.

14. It is urged that even otherwise, after the enactment of the Indian Finance Act (S.13) which repealed the existing Income-tax laws in force in Mysore and with effect from 1-4-1950 any proceeding for re-opening the assessment made prior to that date was not permissible either under S.34 of the Mysore Income-tax Act or under S.34 of the Indian Income-tax Act as in force in the Retroceded Area prior to its retrocession. It is rightly argued that when the Income-tax Officer applied the machinery of the Indian Income-tax Act under the transitional provisions contained in the mysore act 57 of 1948 for the purpose of making assessment as provided therein, he was only acting under the Mysore Income-tax law which permitted that procedure and not under the Indian Law. It is therefore urged that when the Indian Finance Act repealed Mysore Income-tax laws, it repealed not only the Mysore Income-tax Act of 1923 but also that part of Mysore Acts 31 and 57 of 1948 which contain the transitional provisions providing for the applicability of the provisions of the Indian Income-tax Act for certain purposes. Hence it is contended that no proceedings under S.34 could be started against the petitioner after such repeal either under the Mysore Income-tax Act or under the provisions of the Indian Income-tax Act as in force in the Retroceded Area prior to its retrocession.

15. This contention has been dealt with in the judgment of this Court in AIR 1955 Mys 49 (C). This Court has in those proceedings taken the view that S.13 of the Indian Finance Act which repealed the Mysore Income-tax Act did not save S.34 of the Mysore Income-tax Act so as to entitle the Income-tax Officer to re-open under that section assessment made prior to 1-4-1950. The decision of this Court in those cases rested on the view that the word "assessment" occurring in S.34 of the Indian Finance Act referred to assessment under S.23 and not proceedings under S.34. We adhere to that view and for the same reason we are of the opinion that in any view of the matter it would not be competent for the Income-tax Officer to reopen the assessment made prior to 1-4-1950 eves under S.34 of the Indian Income-tax Act as in force in the Retroceded Area, prior to its retrocession.

16. This Court has declined to express its opinion in AIR 1955 Mys 49 (C) on the question whether the agreement executed between the Rajpramukh of Mysore and the President of the Union of India precluded the re-opening of assessment made prior to the financial integration between the state and the Union. We do not feel called upon to go into that matter on this occasion either.

17. We are therefore of the opinion that the respondent acted without jurisdiction or authority in starting the impugned proceedings against the petitioner. These writ petitions must therefore succeed and we direct the writs prayed for by the petitioner to issue.

18. The respondent during the pendency of these cases was permitted by this Court to make an assessment order for the year 1948-47 subject to the condition that the assessment so made by him would be quashed if the writ petitions succeeded. It is now reported to the Court that the assessment order has been made for the year 1946-47. The proceedings started and conducted by the respondent against the petitioner in all these 4 cases and the assessment orders made by him for the assessment years 1945-46 and 46-47 shall be and are hereby quashed. Petitioner will get his costs. Advocates fee Rs.100/-. Order accordingly. AIR 1955 MYSORE 103 (Vol. 42, C.N. 34) "Rajmal Kapurchand v. Asst. I.-T. Commr" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND PADMANABHIAH, J. ( Division Bench ) Rajmal Kapurchand, Petitioner v. Appellate Asst. Commr. of Income-tax, Mysore and another, Respondents. Writ Petns. No.100 of 1953 and Nos.52 and 53 of 1954, D/- 22 -3 -1955. Income-tax Act (11 of 1922), S.34 - INCOME-TAX - WRITS - Proceedings under - Proceedings dropped - Proceedings again taken up - Quashing of. Constitution of India, Art.226. The Deputy Commissioner of Income-tax issued notices to the assessee firm under S.34 in respect of the assessment years 45-46, 46-47, 47-48 and 48-49. After discussing the evidence and materials relating to each of these years, the Deputy Commissioner came to the conclusion that there was no justification for thinking that any income had escaped assessment during any year excepting the assessment year 1947-48. He therefore proceeded further to state that the proceedings relating to the year 45-46, 46-47 and 48-49 "will be dropped". More than a year later, the Income-tax Officer again took up the proceedings in respect of the remaining three years as if they were still pending and made fresh orders under S.34. Held that on a reading of the Deputy Commissioners order it was impossible to say that the proceedings under S.34 relating to the three assessment years did not come to an end and were somehow still incomplete and kept pending. The proceedings of the Income-tax Officer were therefore without jurisdiction and in excess of his powers and must therefore be quashed. (Paras 6, 7) Anno: AIR Man.: I.T. Act, S.34 N.1. AIR Com.: Const. of India, Art.226 N.164(c). A.R. Somanath Iyer, for Petitioner; C.R. Ethirajulu Naidu, for Respondents. Judgement MEDAPA, C. J.:- The petitioner whose assessments for the assessment years 45-46, 46-47 and 48-49 were re-opened by the Income-tax Officer, Urban Circle, Bangalore under S.34, Mysore Income-tax Act, has made these three applications to this Court under Art.226 of the Constitution. The history of these applications may briefly be stated as follows. The income of a firm called Rajmal Kapurchand and Company of which the petitioner claimed to be a partner was assessed under the Mysore Income-tax Act of 1923 for the assessment years 45-46, 46-47, 47-48 and 48-49. The firm paid the taxes so determined. The Deputy Commissioner of Income-tax, Bangalore issued notices on 3-2-1949 and 14-12-49 to the Firm under S. 34, Mysore Income-tax Act for the purpose of assessing the income that had escaped assessment when the assessments were made as aforesaid.

2. The petitioner states that the Deputy Commissioner made an order on 31-3-1950 adding a sum of Rs.15,000/- to the income of the Firm for the assessment year 47-48 and dropping the proceedings for the remaining three years on the ground that no income of the Firm for these years had escaped assessment. The petitioner proceeds to state that although the proceedings relating to the years 45-46, 46-47 and 48-49 had come to an end in that way, the Income-tax Officer, Urban Circle, Bangalore who is the second respondent in these petitions took them up again more than a year after their determination as if they were still pending and made fresh orders under S.34 of the Mysore Income-tax Act.

3. The petitioner appealed against these orders and the Appellate Assistant Commissioner dismissed the appeal relating to the assessment year 46-47 and modified the order relating to the year 45-46. The other appeal, it is stated, is still pending.

4. The petitioner contends that the proceedings conducted by the Income-tax Officer and his orders therein and the orders passed in the appeals preferred against them are without jurisdiction or authority and are liable to be quashed. The learned counsel for the petitioner argued that the Deputy Commissioner of Income-tax had on 31-3-1950 finally disposed of all the proceedings started by him for reassessing under S.34 of the Act and submitted that the Income-tax Officer who more than a year later continued those proceedings as if they were still pending acted without jurisdiction and in excess of his powers. It is pointed out on behalf of the petitioner that the proceedings under S.34 relating to all the four years were clubbed and conducted together and that as shown by the notices issued to the petitioner the Deputy Commissioner of Income-tax who was the Income-tax Officer under the Mysore Income Tax Act, posted the hearing peremtorily to 29-3-1950. It is urged that on account of the impending financial integration between the State of Mysore and the Union of India which later came into effect on 1-4-1950 the Deputy Commissioner who was reluctant to keep these proceedings pending on the date of integration heard and finally disposed of them before that date.

5. The respondents in their affidavit have disputed the petitioners statement that the Deputy Commissioner completed these proceedings under S.34. The petitioner thereupon produced an affidavit deposed to by his counsel, Sri K.B. Parthasarathy, who appeared before the Deputy Commissioner. Sri Parthasarathy in his affidavit has stated: "On that day, that is, on 29-3-1950 I was present with my client Kapurchand (the assessee), and the assessee gave a statement in continuation of the previous statement in connection with the enquiry for all the four assessment years as per notices received. I also argued on behalf of the assessee for all the four assessment years in question and the Deputy Commissioner expressed his agreement and satisfaction with my clients contentions and said that he would add back a sum of Rs.15,000/- for the assessment year 47-48 and pass orders for that year only under section 34. Regarding the proceedings for the other three years he informed us that he accepted the explanations offered by my client and then ordered that the proceedings under section 34 for three years be dropped". The respondents Advocate produced before us during the hearing an order made by the Deputy Commissioner of Income-tax on 31-3-1950. The order leads thus: "The proceedings u/s.34 for the years 1945-46. 1946-47 and 1948-49 will be dropped as the profit in question related to the assessment year 1947-48 only. The question of assessment to Excess Profits Tax does not also arise as the profit related to the year of account 1941-42, though realised between November 1945 and June 1946. The Assessment for 1947-48 will now be assessed under section 34 read with section 23(3)."

6. It is argued for the petitioner that the above order of the Deputy Commissioner related to all the four years and as stated therein the Deputy Commissioner who found that no income for the years 45-46, 46-47 and 48-49 had escaped assessment dropped the proceedings relating to those years, It is contended for the Respondents that although the Deputy Commissioner might have intended to drop the proceedings for these three years, he did not as a matter of fact do so. It is argued that the Deputy Commissioner only stated that the proceedings for those years "will be dropped" and that the words "will be dropped" did not have the effect of actually terminating the proceedings. We find it difficult to read the order in that way. The order of the Deputy Commissioner was made by him in the proceedings relating to all the four years which were conducted and heard together. The Deputy Commissioner after discussing the evidence and materials relating to each of those years came to the conclusion that there was no justification for thinking that any income had escapee assessment during any year except the assessment year 1947-48. lie therefore proceeded further to state that the proceedings relating to the years 45-46, 46-47 and 48-49 "will be dropped". That being so, on a reading of the order it will be impossible for any one to suggest that the proceedings under S.344 relating to those assessment years did not come to an end and were somehow still incomplete and kept pending. The respondents sought support for their contention from certain entries or rather the absence of entries in a register produced by them during the hearing. The register is described as Demand Register in which the Income-tax authorities have to enter particulars of the taxes demanded. It is pointed out that in some cases the two letters "N.D." indicating that there was no demand had been written and that the register contained no entry by the Deputy Commissioner to the effect that there was no demand so far as the petitioner was concerned. It is sought to be made out from this that although he might have intended to drop the proceedings for the 3 years in question he did not actually do so. We are unable to accept this argument. In the first place the order of the Deputy Commissioner leaves in our mind no doubt that the proceedings for those three years were dropped then and there. Secondly, as rightly pointed out for the petitioner, the Demand Register which contains printed columns for the record of certain particulars contains no column for recording the completion of proceedings under S. 34 and so the existence or otherwise of an entry for recording which the register is not maintained has no significance.

7. It is pointed out by the respondents that the Deputy Commissioner after making his order on 31-3-1950 and affixing the signature to it proceeded on the same day to re-assess the income of the petitioner for the year 47-48 but did nothing about the remaining three years. It is argued from this circumstance that all the proceedings before him must be considered to have been still pending even after he made this order. We cannot accede to the soundness of this argument. The action taken by the Deputy Commissioner on the contrary is consistent with the interpretation we have placed on his order. The affidavit of Sri Parthasarathy, the counsel who appeared for the assessee before the Deputy Commissioner, negatives the contention urged for the respondents. If the proceedings for the years 45-46, 46-47 and 1948-49 were dropped by the Deputy Commissioner on 31-3-1950 it is clear and it is not disputed that the second respondent could not again take up those proceedings as he did make an order assailed in these petitions. His proceedings are therefore in our opinion without jurisdiction and in excess of his powers and must therefore be quashed.

8. It is contended on behalf of the petitioner that the impugned proceedings are liable to be quashed for some other reasons as well. It is argued that with the enactment of the Indian Finance Act which repealed with effect from 1-4-1950 the Mysore Income-tax Laws it was incompetent for the 2nd respondent to continue the proceedings commenced by the Deputy Commissioner even though they had been pending on that day. It is also argued that the continuation of such proceedings were forbidden by the terms of the agreement executed between the Rajpramukh of Mysore and the President of India on 20-2-1950 read with the relevant recommendations of the Indian Finance Inquiry Committee. It is further contended that the 2nd respondent acted in excess of his jurisdiction in making the assessment order against the petitioner in proceedings for the reassessment of the income of his Firm. In the view we have taken that the proceedings against the petitioner under S.34 relating to the assessment years 45-46, 46-47 and 48-49 were decided on their merits and dropped by the Deputy Commissioner on 31-3-1950, we deem it unnecessary to express our opinion on these other questions referred to above.

9. The petitioner is entitled to the writs prayed for and we direct them to issue. The proceedings of the respondents against the petitioner under S.34 and in appeal and the orders made by them will be quashed. Petitioner will get his costs. Advocates fee Rs.100 only. Petition allowed. AIR 1955 MYSORE 105 (Vol. 42, C.N. 35) "Abdul Sammad v. Govt. of Mysore" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA AND VASUDEVAMURTHY, JJ. ( Division Bench ) Abdul Sammad, Petitioner v. Govt. of Mysore and another, Respondents. Writ Petn. No.27 of 1955, D/- 1 -3 -1955. (A) Mysore Town Municipalities Act (22 of 1951), S.14(2)(c) - MUNICIPALITIES - Municipalities - Leave of absence. A prima facie interpretation of S.14(2)(c) suggests that the councillor must apply and secure leave in advance if he wishes to absent himself during three successive months. (Para 3) (B) Mysore Town Municipalities Act (22 of 1951), S.14(3) - MUNICIPALITIES - WRITS - Municipalities - Finality of Governments order. Constitution of India, Art.226. Where the decision of the Government is based on a simple question of fact which is admitted by the petitioner, viz., that he was absent from three successive meetings of the Municipal Council, their order declaring the vacancy is final under S.14(3) of the Act. The High Court will not lightly interfere with such an order by the issue of a writ under Art.226, Constitution of India, except on proper and weighty grounds. (Para 4) (C) Mysore Town Municipalities Act (22 of 1951), S.14(3) - MUNICIPALITIES - GOVERNMENT BUSINESS - Municipalities - Decision of Government - Order made not by entire body of Ministers but by one only - Validity. Constitution of India, Art.166(3). Where an order has been passed on a matter which falls within the business allotted to one of the Ministers no objection can be raised on the ground that the order has been made, not by the entire body of Ministers but by only one of them, viz., the Minister-in-charge of the portfolio of Local Self-Government. (Para 5) Anno: AIR Com., Const. of India, Art.166 N.8 (D) Constitution of India, Art.166(1) - Mysore Town Municipalities Act (22 of 1951), S.14(3) - GOVERNMENT BUSINESS - MUNICIPALITIES - Municipalities - Decision by Government - Compliance with Art.166(1), Constitution of India. Strict compliance with the requirements of Art.166(1) gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor; if, therefore, the requirements of that Article are not complied with, the resulting immunity cannot be claimed by the State; this, however, does not vitiate the order itself or render an executive action a nullity. Thus, where the decision has in fact been taken by the appropriate Government and there has been in the circumstances no breach of the procedure established by law, the mere circumstance that the copy of the order produced by the petitioner purports to be issued under the name of an Assistant Secretary to Government cannot affect the validity of the order. AIR 1952 SC 181, Ref. (Para 6) Anno: AIR Com., Const. of India, Art.166 N.4. Cases Referred : Chronological Paras (A) (V39) AIR 1952 SC 181 : 1952 Cri LJ 955 6 (B) (V34) AIR 1947 FC 38 : 1947 FCR 141 : 48 Cri LJ 886 (FC) 6 S.K. Venkata Ranga Iyengar, for Petitioner. Judgement ORDER:- The petitioner has applied for a writ to quash an order of Government dated 4-2-1955 by which it declared that a vacancy had arisen consequent on the disqualification incurred by the petitioner to continue as Municipal Councillor of Mulabagal Town Municipal Council. In his affidavit accompanying the petition the petitioner has sworn that on account of some ill will and rivalry between himself and respondent 2, then President of the Town Municipal Council, Mulabagal, the latter had suppressed and had not placed before the Council a letter of his dated 6-2-1954 which he had sent through post applying for leave of absence from the meeting of the Council and that, in those circumstances his absence from the meetings of the Municipal Council continuously for three months - January, February and March. 1954 - would not entail his disqualification as contemplated by S.14(2)(c) of the Town Municipalities Act. The Deputy Commissioner, Kolar, before whom an appeal was filed by the petitioner held that the petitioner had not incurred the disqualification. The Government, after hearing Counsel for the parties concerned as well as the Town Municipal Council, Mulabagal, observed in. their order that there was no material to show that leave was granted by the Council and that the; petitioner himself made no such claim. Even if his version was to be believed, he merely applied to the President for leave and inasmuch as there was no evidence to show that he had taken permission or leave to absent from the Council the petitioner had become disqualified to continue as a Municipal Councillor by reason of continued absence for three months. It is this order of Government that the petitioner seeks to challenge.

2. Section 14(2)(c) provided that if any Councillor during the term for which he has been elected or appointed absents himself from the meetings of the Municipal Council during three successive months except with the leave of the Municipal Council, he shall be disabled from continuing to be a councillor and his office shall become vacant. Clause (3) provides that if any question or dispute arises whether a vacancy has occurred under this section, the orders of the Government shall be final for the purpose of deciding such question or dispute. It is not disputed in this case that the petitioner was as a matter of fact absent from the meetings of the Municipal Council during three successive months and that the leave of the Municipal Council had not been obtained for such non-attendance.

3. It is urged by Mr. Venkataranga Iyengar, learned Counsel for the petitioner, that such leave need not be obtained in advance but could be secured even later, after the absence. He has not been able to refer to any precedent in support of this contention. A prima facie interpretation of that section would suggest that he must apply and secure leave in advance if he wishes to absent himself during three successive months. It is, however, unnecessary to consider this matter further as the petitioner has not in fact obtained leave either before or subsequent to his absence.

4. That section also provides that a councillor whose office has become vacant under sub-s. (2) shall if his disability has ceased be eligible for reelection or re-appointment; and it does not provide for co-option of the member who has incurred a disability. He is disabled "from continuing to be a councillor and his office shall become vacant." In this connection Mr. Venkataranga Iyengar has referred to S.23(6) which prescribes the consequence of absence of president or vice-president without leave. Under that section those officers of the Municipal Council shall cease to be president or vice-president unless leave to absent himself has been granted by the Municipal Council. And it is argued that if it was contemplated that the Municipal Councillor had also to obtain leave in advance a similar provision would have been made in S.14(2)(c). The office of the president and the vice-president involves more onerous and responsible duties connected with the day to day administration of the Municipal Council and there is nothing strange in providing for leave of absence being obtained in advance in the case of those officers more expressly. These considerations would not exist in the case of an ordinary Municipal Councillor who absents himself continuously for three successive meetings of the Municipal Council. It may be sufficient if by reason of his absence at three successive meetings he is disabled from continuing as a councillor. The intention of that section is apparently to discourage indifference on the part of the councillors who are representing their wards in the Municipal Council. The decision of the Government based therefore on a simple question of fact which was admitted by the petitioner viz. that he was absent from three successive meetings of the council, and their order declaring the vacancy would be final under S.14(3) of the Act. This Court would not lightly interfere with such an order by the issue of a writ except on proper and weighty grounds.

5. Mr. Venkataranga Iyengar has raised another objection against the validity of the order in question. He represents that the order has been made; not by the entire body of Ministers but by only one of them, viz. the Minister-in-charge of the portfolio of Local Self-Government and that the same is not expressed to be taken in the name of the Governor. He contends that the order is therefore of no effect. It is not denied that the order was passed by the L.S.G. Minister after hearing Counsel for parties concerned in the matter. Under Art.166(3) of the Constitution the Governor has power to make rules for the more convenient transaction of the business of the State and for the allocation among Ministers of the said business in so far as it is not business in respect of which the Governor is by or under the Constitution required to act in his discretion. If therefore an order has been passed on a matter which falls within the business allotted to one of the Ministers no objection can be raised on the first ground. Article 166(1) no doubt provides that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. Rule (2) provides that orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor; and if it was authenticated the validity of such order or instrument cannot be called in question on the ground that it is not an order or instrument made or executed by the Governor.

6. This matter came up for consideration before the Supreme Court in - Dattatraya Moreshwar v. The State of Bombay, AIR 1952 SC 181 (A), where their Lordships were concerned with the order of detention under the Preventive Detention Act. In that case S.R. Das, J., has observed at p.185: "I agree that every executive decision need not be formally expressed..........but when the executive decision affects an outsider or is required to be officially notified or to be communicated it should normally be expressed in the form mentioned in Art.166(1), i.e., in the name of the Governor." He accepted the contention of the learned Attorney-General who relied in this connection on a case reported in - J.K. Gas Plant Manufacturing Co. (Rampur), Ltd. v. Emperor, AIR 1947 FC 38 at pp. 41-43 (B) where their Lordships dealt with the interpretation of S.40(1) of the 9th Schedule to the Government of India Act, 1935, which was in terms similar to Art.166. He points out: "It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done." He has gone on to point out that strict compliance with the requirements of Art.166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor; if, therefore, the requirements of that Article are not complied with, the resulting immunity cannot be claimed by the State: this, however, does not vitiate the order itself or render an executive action a nullity. That decision had in fact been taken by the appropriate Government is amply proved on the record. In that case action appears to have been taken by the Home Minister and it was pointed out by Das, J., that the Act itself did not prescribe any particular form of expression of that executive decision. In the present case, therefore, it must be held that the decision has in fact been taken by the appropriate Government and there has been in the circumstances no breach of the procedure established by law. The mere circumstance that the copy of the order produced by the Petitioner purports to be issued under the name of an Assistant Secretary to Government cannot affect the validity of the order.

7. There is therefore no substance in any of the contentions raised on behalf of the Petitioner and this petition is dismissed. Petition dismissed. AIR 1955 MYSORE 107 (Vol. 42, C.N. 36) "Godse v. Ramachandra Iyer" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) D. B. Godse and another, Petitioners v. K.S. Ramachandra Iyer, Respondent. Civil Revn. Petn. No.381 of 1954, D/- 10 -3 -1955, against order of Ist Addl. Dist. J., Bangalore, D/- 31 -5 -1954. (A) Mysore Houses Rent and Accommodation Control Act (30 of 1951), S.2(6)(a) and S.8(2)(vi) - HOUSES AND RENTS - ACCOMMODATION CONTROL - EVICTION - TENANCY - Houses and Rents - Member of his family - Application by landlord for eviction of tenant on ground of bona fide requirement for accommodating his mother, brothers and their children. When a landlord applies for eviction of a tenant from the ground floor on the ground that the premises are required for bona fide use to accommodate his mother, undivided brothers and their children, his prayer has generally to be granted. The mother, brothers and brothers children being members of the landlords family within the meaning of S.2 are persons entitled to live in one and the same place and it is not open to the tenant to contend that the mother, brothers and their children have been living elsewhere from a sufficiently long time, and that they may continue to do so and that there is no necessity to vacate the ground floor. (Paras 6, 7) (B) HINDU LAW - Hindu Law - Joint family - Presumption. There is a presumption in favour of a Hindu family being joint, and in the absence of any evidence to rebut that presumption, the family must be considered to be joint. (Para 6) (C) Civil P.C. (5 of 1908), O.41, R.22 - APPEAL - Respondent may support decree without filing cross-objections. Under O.41, R.22 a respondent supporting the decree appealed against on grounds decided against him but not attacking the decree is not required to file cross-objections. Hence, a defendant against whom a suit is dismissed need not file cross-objections with respect to any finding that may have been against him and he can attack such a finding in. support of a decree in his favour without filing any cross-objections. 17 Mys LJ 481, Rel. on. (Para 8) Anno: AIR Com.: Civil P.C., O.41, R.22 N.2. (D) Mysore Houses Rent and Accommodation Control Act (30 of 1951), S.8(2)(vi) - HOUSES AND RENTS - ACCOMMODATION CONTROL - WORDS AND PHRASES - Houses and Rents - Annoyance or nuisance, meaning of. Words and Phrases. What is "annoyance or nuisance" in a particular case may not be annoyance or nuisance in a different case. Each case has to be judged on the facts of the particular case. For a landlady or landlord who is ailing from some disease, even the noise or disturbance caused by the normal use of the premises may amount to annoyance or nuisance. (Para 10) Cases Referred : Chronological Paras (A) (39) 17 Mys LJ 48 10 R.V. Sreenivasaiya, for Petitioners: M.S. Gopal, for Respondent. Judgement ORDER:- This is a Revision Petition preferred by the petitioners (owners) against the order of the First Additional District Judge, Bangalore, in H.R.C. Appeal No.37/54, reversing that of the learned First Munsiff and House Rent Controller, Bangalore, in H.R.C. No.733/53, directing the eviction of the Respondent from the schedule premises.

2. The facts that have given rise to this petition are briefly as under:

3. Petitioners 1 and 2 are husband and wife respectively and they are owners of a house bearing Municipal No.15, situated in Kalappa Block in Basavangudi, Bangalore. The house consists of two portions - one groundfloor and another upstairs. The respondent-defendant is a tenant in the downstairs and the petitioners are in occupation of the upstairs. The petitioners applied under S.8(2)(vi) of the Mysore House Rent and Accommodation Control Act, 1951 to the First Munsiff and House Rent and Accommodation Controller for eviction of the respondent on the ground that the space in the upstairs was not sufficient for the growing needs of their family, that as a result of want of accommodation they are put to much hardship, that the 1st petitioners aged mother, widowed sister, brothers and their children, who have to stay with the petitioners, have been compelled to stay elsewhere on account of shortage of accommodation, that therefore the groundfloor also is needed for their bona fide use, that the 2nd petitioner is a woman of poor health and of delicate condition, that any disturbance in the downstairs impairs her mental peace and bodily condition, that in spite of repeated requests, the respondent has failed to vacate the premises and that his eviction should be ordered.

4. The respondent opposed the application on the ground that the upstairs was sufficient for the petitioners bona fide use, that it is not true that the respondent has been responsible for any disturbance, that there are no bona fides in the application, that it has been filed just to harass him, that there was no valid notice to quit and that the application was liable to be dismissed.

5. Out of the two grounds urged by the petitioners, the learned Munsiff and House Rent Accommodation Controller rejected the contention of the petitioners holding that the relations mentioned in para.3 of the petition could not be deemed to be members of the petitioners family living with him and that the groundfloor was not required for petitioners bona fide use. He, however, upheld the contention of the petitioners that the 2nd petitioner was of a poor health, that the noise and disturbance created by the respondent in the groundfloor was likely to upset her health and her mental condition and that the groundfloor was necessary for the petitioners to enable the 2nd petitioner to lead a peaceful life and accordingly he ordered the eviction of the respondent from the schedule premises. The learned First Addl. District Judge reversed this order of the learned Munsiff holding that the respondent was not guilty of such act or conduct as amounted to annoyance or nuisance to the petitioners. As against that order this revision petition is filed.

6. It appears to me that the order of the lower appellate court cannot be sustained. As pointed out already, two grounds have been urged for the eviction of the respondent from the schedule premises, first being that the 1st petitioners mother, widowed sister, brothers and their children who want to live with the petitioners have been living elsewhere for want of accommodation in the upstairs of the schedule premises and that the groundfloor is also necessary for the bona fide use of the petitioners family. The learned Munsiff has held that the 1st petitioners mother, his widowed sister, brothers and their children cannot be said to be the members of the petitioners family. I am of opinion that this is an incorrect view. It is strange that the learned District Judge has not referred to this point in the course of his order. From a perusal of the amended S.2 of the Mysore House Rent and Accommodation Control (Amendment) Act, 1954, it is seen that member of his family appearing in C.6(a) when used with reference to a landlord means "his son or daughter or father or mother and where the landlord is a member of a joint Hindu family also his undivided brother or such brothers widow who has not remarried." The allegation made in the petition is that the 1st petitioners mother, brothers and their children want to come and live with the petitioners. The mother and undivided brothers must be deemed to be the members of the family of the 1st petitioner. It was contended that there is nothing to show that 1st Petitioner and his brother living at Hubli are undivided brothers. There is no substance in this contention inasmuch as there is a presumption in favour of the petitioners family being joint, and in the absence of any evidence to rebut that presumption, the family must be considered to be joint. Therefore the brothers and their children referred to in para.3 of the petition must be regarded as members of the petitioners family, and the finding of the learned Munsiff to the contrary cannot be accepted.

7. The further contention that the mother, brothers and their children have been living elsewhere from a sufficiently long time, and that they may continue to do so and that there is no necessity to vacate the groundfloor, is equally devoid of any substance. It is not open to a tenant to dictate terms to a landlord in this way. Mother, brothers and brothers children are persons who are entitled to live in one and the same place. When a landlord applies for eviction of a tenant on the ground that the premises are required for bona fide use to accommodate his mother, undivided brothers and their children, his prayer has generally to be granted.

8. The petitioners attacked the finding of the learned Munsiff that the mother, brothers and brothers children of the 1st petitioner were not members of the petitioners family, before the learned District Judge, but the learned Judge has not dealt with this matter in the course of his order. It was contended by the respondent that the petitioners did not prefer any cross-objections with respect to that finding in the lower appellate Court and that, therefore, the learned Judge was right in not adverting to that matter. In my opinion, this is not a correct view. Order 41, R.22, Civil P.C. inter alia provides that a respondent who has not appealed from any part of the decree may not only support the decree on any of the grounds decided against him in the Court below but may take any cross-objection to the decree which he could have taken by way of appeal. In other words, what that provision means is that a respondent supporting the decree appealed against on grounds decided against him but not attacking the decree is not required to file cross-objections. In this connection, I would like to refer to the decision of this Court reported in - Chikkanagamma v. S. Sivaswamy, 17 Mys LJ 481 (A). Their Lordships have held in that case that where a Court gives a finding on certain issues against a defendant but the suit is dismissed and the plaintiff files an appeal, the defendant need not file cross-objections but may attack such a finding in support of the decree passed in his favour. Therefore it is clear that a defendant against whom a suit is dismissed need not file cross-objections with respect to any finding that may have been against him and that he can attack such a finding in support of a decree in his favour without filing any cross-objections. Therefore, I am of opinion that the point urged by the learned counsel for the respondent is not tenable. The finding of the learned Munsiff that the premises is not required for accommodating the relations of the 1st petitioner like the mother, brothers and brothers children and that the said relations cannot be treated as members of petitioners family cannot be supported.

9. I also do not agree with the finding of the learned First Additional District Judge that there was not sufficient annoyance or nuisance, caused to the petitioners justifying the eviction of the respondent from the schedule premises. The ground urged on the side of the petitioners is that the 2nd petitioner is ill and that any noise caused in the downstairs upsets her health. That the second petitioner is of indifferent health of a serious type is not disputed. P.W.1 the husband of the 2nd petitioner and P.W.2 a relation of the petitioners, have sworn to the illness from which the 2nd petitioner has been suffering. The rejection of the evidence of these two witnesses as interested, is not proper. It is, no doubt, true that no medical certificate has been produced in support of the plea of petitioners illness. It is also true that the neighbours of the petitioners have not been examined. However, in view of the evidence available in the case, it appears to me that neither the medical certificate nor the evidence of any neighbour nor that of the 2nd petitioner herself was necessary. The evidence of P.Ws.1 and 2 that the 2nd petitioner is ill is fully corroborated by the evidence of the respondent himself. At the outset, it has to be pointed out that the illness of the 2nd petitioner has not specifically been denied by the respondent in his objection statement. In the course of his evidence also, the respondent admits that the 2nd petitioner has been unwell for sometime and that the 1st petitioner also told him that the 2nd petitioner was ill and that any noise caused would have an adverse effect on her health. Therefore, in view of these admissions, the evidence of the respondent that he is not aware if the noise created in the downstairs would have an untoward effect on the 2nd petitioners health cannot be taken serious note of. Therefore, it has to be held that the illness of the 2nd petitioner has been established.

10. The finding of the learned District Judge that the respondent has not been guilty of such act or conduct as amounts to annoyance or nuisance to the petitioners has to be negatived. He has referred to S.8(2)(vi) of the House Rent and Accommodation Control Act and opined that the said section does not contemplate that the noise caused by normal use of the premises would amount to nuisance. I do not think that the said interpretation of the learned Judge is correct. Section 8(2)(vi) runs thus: "That the tenant or any person residing with the tenant has been guilty of such acts and conduct as amounts to annoyance or nuisance to the adjoining or neighbouring occupiers or has been convicted of using the house or allowing the house to be used for immoral or illegal purposes. " What is annoyance or nuisance in a particular case may not be annoyance or nuisance in a different case. Each case has to be judged on the facts of the particular case. For a land-lady or landlord who is ailing from some disease, even the noise or disturbance caused by the normal use of the premises may amount to annoyance or nuisance. In the present case, the evidence is conclusive on the point that the 2nd petitioner has been ailing from some disease and that she gets affected by any noise or disturbance caused in the ground-floor occupied by the respondent. The respondent has admitted that some of his friends visit him during holidays. Naturally one could expect that on such occasions there would be more than normal disturbance which may affect an ailing person living next-door. Under these circumstances, I am of opinion that the order of the learned District Judge has to be set aside.

11. In the result, this revision petition is allowed, the order of the learned First Additional District Judge is set aside and the order of the learned First Munsiff directing the eviction of the respondent is restored. No costs. Revision petition allowed. (S) AIR 1955 MYSORE 109 (Vol. 42, C.N. 37) "Nagappa Setty v. Holalkere Municipal" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) A.S. Nagappa Setty and others, Accused-Petitioners v. Holalkere Municipal Council, Complainant-Respondent. Criminal Revn. Petn. No.328, of 1954, D/- 13 -1 -1955, against judgment of Special 1st Class Magistrate, Davangore, in C.C. No.960 of 1954. The words "shall be written by the presiding officer" in S.265 (1) indicate that its provisions are mandatory. Therefore, in summary trials the judgment must be written by the Magistrate in his own hand. 6 Mad 396, Relied on. (Para 4) The words "except as otherwise expressly provided by this Code" in S.367 are also significant. They suggest that S.265(1) must be taken as an exception to the rule laid down in S.367(1), Cr.P.C. (Para 5) Where, therefore, the case was tried summarily and the judgment dictated to the stenographer. Held that the judgment was illegal inasmuch as it offended the provisions of S.265(1). (Para 5) Anno: AIR Com. Cr.P.C., S.265 N.2; 1953 Mitra, S.265, P.1148 N.871-A "Sub-section (1) and (3)". AIR Com. Cr.P.C., S.367 N.3; 1954 Mitra, S.367 P.1472 N. "Presiding officer". Cases Referred : Chronological Paras (A) (81) 6 Mad 396 : 2 Weir 328 4

V. Krishnamurthy, for Petitioners; Nittoor Srinivasa Rao, for Respondent. Judgement ORDER:- This is a revision petition against the judgment of the learned Special First Class Magistrate, Davangore in C.C. No.960 of 54 convicting the petitioner-accused of an offence under S.86(2), Town Municipalities Act and sentencing each of them to pay fine of Rs.20/- and in default to undergo simple imprisonment for one week each.

2. The case for the prosecution was that on the night of 15-4-1954 the petitioners-accused, with intent to defraud the Town Municipality had brought and introduced into the municipal limits certain goods liable for octroi duty, without paying the required duty, and that they thereby committed offences under S.86 (2) and S.87, Town Municipalities Act. The learned Magistrate convicted and sentenced the appellants-accused as stated above. As against that conviction and sentence, this revision petition is filed.

3. The main point that arises for consideration is whether the conviction could be sustained. Various grounds have been urged in the petition and one of the important grounds strenuously argued before me is that the judgment of the lower Court is opposed to law, that though the case has been tried summarily the learned Magistrate has dictated the judgment to the stenographer and has thereby failed to comply with the provisions of S.265 (1), Cr.P.C. which provides the manner in which a judgment in a summary trial has to be written, that according to that provision the judgment in this case should have been written by the learned Magistrate in his own hand-writing, that the judgment is therefore illegal and that the conviction and sentence have to be set aside. It appears to me that there is considerable force in this contention.

4. Section 265(1), Cr.P.C. runs as follows: "Records made under S.263 and judgments recorded under S.264 shall be written by the presiding officer, either in English or in the language of the Court, or, if the Court to which such presiding officer is immediately subordinate so directs, in such officers mother tongue". The words "shall be written by the presiding officer" appearing in the above section clearly go to indicate that the provisions of this section are mandatory. In this connection I would like to refer to a case reported in - Subramanaya Ayyar v. The Queen, 6 Mad 396 (A), where it has been held that in summary trials under the provisions of Chap. XVIII, Cr.P.C., the record in non-appealable cases and the judgment in appealable cases must be written by the Magistrate in his own hand. In this case, as said already, the case was tried summarily and the judgment dictated to the stenographer. According to S.265(1), Cr.P.C. the judgment should have been written by the learned Magistrate in his own hand. There has thus been failure to follow the mandatory provisions of S.265(1), Cr.P.C.

5. Reference has been made by the learned Counsel for the respondent - Municipality, to S.367, Cr.P.C. Section 367, Cr.P.C. runs as follows: "Every such judgment shall, except as otherwise expressly provided by this Code, be written by the presiding officer in the language of the Court, or in English; and shall contain the point or points for determination, the decision thereon and the reasons for the decision; and shall be dated and signed by the presiding officer in open Court at the time of pronouncing it and where it is not written by the presiding officer with his own hand, every page of such judgment shall be signed by him". I am of opinion that this section does not help the respondent-complainant. The words "except as otherwise expressly provided by this Code" appearing in the above section are very significant. How judgments in summary trials have to be written is provided in S.263(1), Criminal P.C. and as such this must be taken as an exception to the rule laid down in S.337(1), Criminal P.C. Under these circumstances, I am of opinion that the judgment of the trial Court is illegal inasmuch as it offends the provisions of S.265(1), Criminal P.C. and that the same has to be set aside. As the conviction of the Petitioners and the sentence passed on them have to be set aside in view of the technical defect referred to above, it is not necessary for me to deal with other grounds mentioned in the petition. But, considering the nature of the case, I am of opinion that it is not expedient to order a retrial.

6. In the result, this revision petition is allowed. The conviction of the appellants-accused and the sentence passed on them are set aside and the fine, if paid, will be refunded to them. Petition allowed. AIR 1955 MYSORE 110 (Vol. 42, C.N. 38) "Bangalore Muncpl. Corpn. v. Tallam Subbaraya Setty" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) Bangalore Municipal Corporation, Defendant-Appellant v. Messrs. Tallam Subbaraya Setty and Sons, Plaintiffs-Respondents. Second Appeal No.232 of 1953, D/- 16 -2 -1955, against decree of Addl. Sub. J., Bangalore, in Regular Appeal No. 114 of 1951-52. Limitation Act (9 of 1908), S.29(2) and Art.62 - LIMITATION - WORDS AND PHRASES - APPLICABILITY OF AN ACT - MUNICIPALITIES - OCTROI - "Special law" or "local law" - Meaning of - Municipal Accounts Manual, R.147, if such law - Suit for refund of octroi duty - Applicability of Art.62. Mysore City Municipalities Act (7 of 1933), S.51 and S.228. A special law or a local law may be taken to mean a legislative enactment for special or local circumstances. Thus it is clear that a special or local law to have the force of the law must be a creature of the Legislature. The Municipal Accounts Manual has no such legal sanction, much less R.147 thereof, either under S.51 or under S.228 of the Municipalities Act and therefore R.147 is not a special or local law within the meaning of S.29(2), Limitation Act. (Paras 5 and 7) Further, R.147 of the Municipal Accounts Manual does not prescribe any period of limitation in the sense it is understood under the Limitation Act. The word lapsed in the Rule is not synonymous with the word extinguished or barred. It clearly implies that the claim could be revived at any time allowed under the general law. (Para 8) Where, therefore, the plaintiff sued for the refund of a sum of money paid by him to the Municipal Corporation as octroi duty on certain bales of cloth which were got into the Corporation limits and which were subsequently removed outside the Corporation limits for purposes of sale and the question was whether the plaintiffs claim was barred by time under R.147 of the Municipal Accounts Manual: Held that R.147 not being a special or local law within the meaning of S.29(2), Limitation Act, the provisions of that section were not applicable and therefore Art.62 of the Act was applicable to the facts of the case. (Para 7) Anno: AIR Com.: Lim. Act, S.29 N.6, Art.62 N.31. Cases Referred : Chronological Paras (A) (V21) AIR 1934 Pat 353 : 151 Ind Cas 107 5 K. Narayana, for Appellant; C. Nagaraja Rao, for Respondents. Judgement

2. The appellant-defendant in this case is the Bangalore Municipal Corporation, and the respondent-plaintiff is a cloth merchant doing business in Bangalore. Plaintiffs suit was for the refund of a sum of Rs.699-11-6 paid by him to the defendant Corporation as octroi duty on certain bales of cloth which were got into the defendant-Corporation limits and which were subsequently removed outside the Corporation limits for purposes of sale.

3. In their written statement the defendant-Corporation put the plaintiff to proof of the facts alleged in the plaint and they further contended that the claim for refund was barred by time as the same was not preferred within two months after the close of the month of registration of the application in the refund ledger as contemplated under R.147 of the Municipal Accounts Manual. The learned Munsiff upheld the contention of the defendant-Corporation holding that R.147 of the Municipal Accounts Manual was a special Law, that it provided a special period of limitation for such claims, that the claim was not preferred within the period mentioned in that Rule and that, therefore, the suit was barred by time. The learned Additional Subordinate Judge disagreed with this finding of the learned Munsiff and held the Municipal Accounts Manual was not a special Law", that Article (S.?) 29(2), Limitation Act had no application, that the suit fell under Art.62, Limitation Act and that the same was in time, and he accordingly decreed the respondent-plaintiffs suit. As against that decision, the appellant-Corporation has come up in appeal.

4. As regards facts, there is no dispute. It is an admitted fact that the appellant-Corporation has collected octroi duty on certain bales of cloth which were subsequently removed outside its limits by the plaintiff for purposes of sale and that the respondent-plaintiff was entitled to refund of the octroi duty collected on such bales of cloth but for the bar of R.147 of the Municipal Accounts Manual. The only point urged and that arises for consideration in this appeal is whether the plaintiffs claim for refund was barred by time under R.147 of the Municipal Accounts Manual. On the side of the respondent-plaintiff it is contended that the Rule in question is no bar and that the suit filed by him is within time. It appears to me that the finding of the learned Additional Subordinate Judge that the suit is in time has to be upheld.

5. The finding of the learned Munsiff that the Municipal Accounts Manual is a special law does not appear to be correct. A special law or a local law may be taken to mean a legislative enactment for special or local circumstances. This is the meaning given to these words special law or local law in the case reported in - Mukund Mahto v. Niranjan Chakravarty, AIR 1934 Pat 353 (A). The learned Subordinate Judge also has understood the above words in the same sense. Thus it is clear that a special or local law to have the force of law must be a creature of the Legislature. Admittedly the Municipal Accounts Manual has no such legal sanction, much less R.147 thereof.

6. It was next contended by the learned counsel for the appellant that the Government had powers under S.228, City Municipalities Act to make rules and pass orders for the purpose of carrying out the provisions of the Act, that S.51 of the same Act empowered the Municipal Council to make, alter or rescind bye-laws and that in view of the powers conferred on the Government and the Municipality under the respective sections, R.147 made by the Municipality must be held to be intra vires and as having the force of law. In none of these contentions there is any merit. No doubt S.228, City Municipalities Act empowered Government to make rules and pass orders for the purpose of carrying into effect the provisions of the said Act. In this connection, I would like to refer to the Preface to the First Edition of the Municipal Manual - Part II. In para.2 of the said preface, it is clearly mentioned that the Government have not expressly reserved to themselves under the Mysore Municipalities Act the power of framing any set of account rules for adoption by the Municipal Councils. From this it is obvious that the Government have not reserved to themselves any power under S.228 of the Municipalities Act to frame any account rules for adoption by the Municipal Councils. Hence S.228 of the Municipalities Act does, not help the contention urged on the side of the Appellant.

7. Section 51 of the Municipalities Act also does not support the contention urged on the side of the appellant inasmuch as it deals with making, altering or rescinding bye-laws. As admitted by the learned Counsel for the appellant, R.147 of the Municipal Accounts Manual is not a bye-law passed by the Municipal Council. As pointed out in the preface referred to above, these account rules embodied in the Municipal Accounts Manual were got made by the Government through a Conference for the use of the various Municipal Councils in the State. Any rule to have the force of law must have the sanction of the legislature or it must be the subject-matter of a bye-law passed in the prescribed form and manner. In para.2 of the preface to the Municipal Accounts Manual, it is provided that the rules contained in it and approved by Government should formally be approved by each Municipal Council by passing single bye-law or rule under the enabling sections of the municipal act. This, as already mentioned, has not been done. Therefore, S.51 of the Municipalities Act does not help the appellant. Under these circumstances, I am of opinion that R.147 of the Municipal Accounts Manual is not a special or local law within the meaning of S.29(2), Limitation Act and that, therefore, the provisions of the said section of the limitation act are not applicable to the facts of the present case, and I agree with the finding of the learned Additional Subordinate Judge that Art.62, Limitation Act is applicable to the facts of the present case and that the suit is in time.

8. Further, I am of opinion that R.147 of the Municipal Accounts Manual does not prescribe any period of limitation in the sense it is understood under the Limitation Act. That rule runs as follows. "If an application for refund is not presented for payment within two months after the close of the month of registration of the application in the refund ledger, the claim shall be considered to have lapsed." The use of the word lapsed appears to be very significant. The rule does not specifically mention that the claim will be barred by time after the lapse of two months. The word lapsed is not, in my opinion, synonymous with the word extinguished or barred. It clearly implies that the claim could be revived at any time allowed under the general law: Words have to be understood in their ordinary and natural sense. The word lapsed indicates that the claim has been passed over in favour of another subject to a right of revival at the request of the party affected provided the said claim is renewed within the period of limitation allowed under the general law. Under these circumstances, I am of opinion that the decision of the learned Additional Subordinate Judge has to be affirmed.

9. In the result, the judgment and decree of the learned Additional Subordinate Judge are confirmed and this appeal stands dismissed. Considering the nature of the defence and the point of law involved, this is a fit case where parties should be directed to bear their own costs throughout. I order accordingly. Appeal dismissed. (S) AIR 1955 MYSORE 112 (Vol. 42, C.N. 39) "Nimba v. State of Mysore" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) Nimba and others, Accused-Petitioners v. State of Mysore, Complainant-Respondent. Criminal Revn. Petn. No.1 of 1955, D/- 2 -2 -1955, against, order of Special IInd Magistrate, Shimoga, D/- 23 -11 -1954. Criminal P.C. (5 of 1898), S.340 - CRIMINAL PROCEDURE - Choice of counsel. There is no rule of law that an Advocate who has appeared as a witness for the prosecution in a particular case should not appear or be allowed to appear for the accused in that case. It is an inherent right of an accused to have a counsel of his own choice. No doubt, Courts have got an inherent power to refuse permission to a counsel or to require him to withdraw from a particular case. What the Courts have to consider in such cases is whether the trial would be embarrassed by permitting an Advocate to appear for the accused. If the Court comes to that conclusion, then permission should be refused if not, percussion should be granted. (Para 3) Anno: AIR Com., Cr.P.C., S.340 N.6 Pt.1; 1954 Mitra, S.340 P.1351 N.967 "Right......pleader" (1 Pt. extra in AIR Com.). AIR Com., Cr.P.C., S.340 N.8; 1954 Mitra, S.340 (AIR Com. topic extra). Cases Referred : Chronological Paras (A) (V26) AIR 1939 Bom 150 : 40 Cri LJ 568#5 D.M. Chandrashekar, for Petitioners; Asst. Advocate-General, for the State. Judgement ORDER:- This is a Revision Petition preferred by the Petitioners-Accused against the order of the learned Special Second Magistrate, Shimoga, in C.C. 545/54, refusing permission to their Advocate Sri Bhavanishankara Rao to appear for and defend them.

2. The facts that have given rise to this petition are briefly as follows: The Petitioners are undertrial prisoners in C.C. No.545/54 on the file of the learned Special Second Magistrate, Shimoga. At a late stage of the enquiry, the Petitioners wanted to engage Sri Bhavanishankara Rao as their counsel to defend them in the case. The said Sri Bhavanishankara Rao was examined as P.W.58 in the case for the prosecution. Therefore he filed an application to the learned Magistrate praying for permission to allow him to appear for and defend the accused. The learned Magistrate refused the said permission on the ground that as Sri Bhavanishankara Rao had been examined as a witness for the prosecution, it was not desirable to permit him to defend the accused. It is against this order that this Revision Petition is filed.

3. I am of opinion that the order of the learned Magistrate cannot be sustained. There is no rule of law that an Advocate who has appeared as a witness for the prosecution in a particular case should not appear or be allowed to appear for the accused in that case. If this proposition is accepted, it may lead to very serious and unexpected consequences, because the prosecution, if they so desire to deprive an accused of the services of an Advocate (whom he wants to defend), may cite him as a witness for the prosecution and examine him and thus deny the accused the services of the concerned Advocate. It is an inherent right of an accused to have a counsel of his own choice. No doubt it has also to be conceded that Courts have got an inherent power to refuse permission to a counsel or to require him to withdraw from a particular case. What the Courts have to consider in such cases is whether the trial would be embarrassed by permitting an Advocate to appear for the accused. If the Court comes to that conclusion, then permission should be refused; if not, permission should be granted.

4. In this case, it is true that Sri Bhavanishankara Rao has been examined as a witness for the prosecution. He has been examined as P.W.58. Further a copy of his deposition has also been filed. A perusal of his deposition goes to show that he is not a witness for the occurrence He has sworn to some litigation between some of the witnesses that have been examined in the case. I do not know how his giving such evidence would embarrass the trial. This aspect of the case has not been considered by the learned Magistrate, nor has he given a finding to that effect.

5. A case reported in - Emperor v. Dadu Ram, AIR 1939 Bom 150 (A), was cited before the learned Magistrate and that case seems to support the contention urged on the side of the petitioners. The learned Magistrate has attempted to distinguish that case on facts. Whatever it may be, the principle enunciated in that decision may be made applicable to the facts of the present case. The principles propounded in the course of this order are fully supported by the decision referred to above. The learned Assistant Advocate General rightly conceded the correctness of the proposition of law laid down in that case. I am of opinion that, under these circumstances, the order of the learned Magistrate cannot be supported.

6. In the result, the order of the learned Magistrate refusing permission to Sri Bhavanishankara Rao to appear for the accused is set aside, and this Revision Petition is allowed. Revision allowed. AIR 1955 MYSORE 113 (V. 42, C. 40 Sept.) "Thimmaiah v. Narasappa" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) Thimmaiah, President Town Municipal Council, Kadur and another Accused-Petitioners v. T. Narasappa, Complainant-Respondent. Criminal Revn. Petn. No.314 of 1954, D/- 10 -3 -1955, against order of Dist. Magistrate, Chickmagalur, D/- 22 -7 -1954. (A) Criminal P.C. (5 of 1898), S.197(1) - PUBLIC SERVANTS - MUNICIPALITIES - President and vice-President of Town Municipal Council. Penal Code (45 of 1860), S.21. Municipalities. Mysore Town Municipalities Act (8 of 1933), S.23(9). President and Vice-President respectively of the Town Municipal Council are public servants as defined in S.21, Penal Code. The word used in S.197(1), Cr.P.C. is "removable" while the word used in S.23(9), Mysore Town Municipalities Act is "vacated". There appears to be much difference between those two words. The word "removable" appearing in S.197, Cr.P.C. connotes altogether a different meaning. For the removal of a president or vice-president the motion must originate from without, and the only agency by which a president or a vice-president can be removed from the office is the local Government. This removal of president or vice-president is provided for in S.23(10) of the Mysore Town Municipalities Act. Sanction of Government is required to remove a president or a vice-president of a Town Municipal Council. AIR 1933 Sind 161, Rel. on.; AIR 1931 Bom 527, Distinguished. (Paras 4, 7) Anno: AIR Com., Cr.P.C., S.197 N.4; AIR Man., Penal Code, S.21 N.8. (B) Criminal P.C. (5 of 1898), S.436, S.438 - REVISION - Order holding sanction of Government necessary for prosecution of accused. The powers of revision given to a District Magistrate under S.436 are limited. Those powers can be exercised only for the limited purpose indicated in the section. The order of the District Magistrate holding that no sanction of Government was necessary to prosecute the accused can neither be said to be an order of dismissal under S.203 or one under sub-s. (3) of S.204, nor an order of discharge made under S.209, 253 or 259, Cr.P.C. Therefore the order of the District Magistrate is without jurisdiction. The only course open to the District Magistrate, if he found that the order of the Magistrate holding that previous sanction of Government was necessary to prosecute the accused was wrong, was to make a report of the same to the High Court as contemplated in S.438, Cr.P.C. (Para 8) Anno: AIR Com., Cr.P.C., S.436 N.1; S.438 N.3. Cases Referred : Chronological Paras (A) (V18) AIR 1931 Bom 527 : 33 Cri LJ 78 6, 7 (B) (V20) AIR 1933 Sind 161 : 34 Cri LJ 191 7 G.R. Ethirajulu Naidu, for Petitioners; C. Siddaiah, for Respondent. Judgement ORDER:- This is a Revision Petition preferred by the petitioners-accused 1 and 2 against the order of the learned District Magistrate, Chickmagalur in Cr.R.P. 8 of 1954, setting aside the order of the learned Special Second Class Magistrate, Tarikere in C.C. 25/54 holding that sanction of Government to prosecute these petitioners was necessary under S.197, Cr.P.C.

2. The facts that have given rise to this petition are briefly these:

3. Petitioners 1 and 2 are accused 1 and 2 and the respondent is the complainant in C.C. 25/54 on the file of the Special Second Class Magistrate, Tarikere. The complainant is a hotel-keeper at Kadur. The petitioners are President and Vice-President respectively of the Kadur Town Municipal Council. A-3 to A-10 are the employees in the said Municipality. Accused 11 and 12 are the Police Constables working at Kadur. The Respondent-complainants petition was that on 16-5-1953 the said accused persons trespassed into his hotel and committed theft of moveables worth Rs.150/-. The learned Magistrate referred the complaint to the police under S.156, Cr.P.C. and the Police submitted a B report. Anyway, the complainant undertook to prove the case and the case was taken on file. The accused took a preliminary objection stating that the Court had no jurisdiction to take cognizance of the complaint as against A-1 and A-2 inasmuch as no sanction of Government as contemplated under S.197, Cr.P.C. was obtained by the complainant to prosecute them. The learned Magistrate upheld this contention and the proceedings against the present petitioners were dropped. The complainant took this order in revision to the District Magistrate, Chickmagalur who set aside the order of the trial Magistrate holding that no sanction of Government was necessary to prosecute them. As against that order, the present petitioners have come up in revision.

4. It appears to me that the order of the learned District Magistrate cannot be sustained. Section 197(1), Cr.P.C. runs as follows: "When any person who is a Judge within the meaning of S.19, I.P.C., or when any Magistrate, or when any public servant who is not removeable from his office save by or with the sanction of a "State Government" or "the Central Government" is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the "previous sanction (a) in the case of a person employed in connection with the affairs of the Union, of the Central Government; and (b) in the case of a person employed in connection with the affairs of a State, of the State Government." Petitioners 1 and 2 who are President and Vice-President respectively of the Kadur Town Mucipal Council, claim to be public servants within in the meaning of S.197, Cr.P.C. and contend that without the sanction of the local Government they cannot be prosecuted.

5. The point that arises for consideration is whether the petitioners are public servants within the meaning of S.197, Cr.P.C. That they are public servants as defined in S.21, I.P.C., cannot be disputed. Any person, whether receiving pay or not and who chooses to take upon himself the duties and responsibilities of a public servant, must be regarded as a public servant. Further, S.45(1) of the Mysore Town Municipalities Act inter alia provides that every councillor, officer or servant of a municipality should be deemed to be a publio servant within the meaning of S.21, I.P.C. So there can be no doubt on the point that the petitioners are public servants within the meaning of S.21, I.P.C.

6. But the question that has to be considered is whether the petitioners are public servants in the sense in which that term is used in S.197, Cr.P.C. The conditions that are to be fulfilled for attracting the provisions of that section are: (1) that the petitioners are public servants; (2) that they are not removable from their office except with the sanction of the State Government; and (3) that they are accused of an offence alleged to have been committed by them while acting or purporting to act in discharge of their official duties. The learned District Magistrate seems to think that the petitioners are not public servants who are not removable by the State Government and in support of that position, he relies upon S.23(9), Mysore Town Municipalities Act. That provision runs as under: "Every president and every vice-president of a municipal council shall forthwith be deemed to have vacated his office if a resolution expressing want of confidence in him is passed by a majority of not less than two-thirds of the whole number of councillors at a special general meeting convened for the purpose; provided that no such resolution shall be moved unless notice of the resolution is signed by not less than one-third of the whole number of councillors and at least fifteen days notice has been given of the intention to move the resolution." Relying on this provision, the learned District Magistrate opines that the petitioners (President and Vice-President) could be removed by a resolution of the Municipal Council expressing want of confidence in them and passed by a majority of not less than two-thirds of the whole number of councillors, and that they are not removable by the State Government. Again, to fortify that view, the learned District Magistrate relies on a case reported in - In re S.S. Shirke, AIR 1931 Bom 527 (A). It appears to me that the view taken by the learned District Magistrate is not correct.

7. The word used in S.197(1), Cr.P.C. is "removable" while the word used in S.23(9), Mysore Town Municipalities Act is "vacated". There appears to be much difference between these two words. Different words have been used in different sections of the town municipalities act. It must be presumed that the Legislature had an object in making use of different expressions in different sections. In S.23(6), Town Municipalities Act it is provided that every president, who, for a period exceeding two months and every vice-president who for a period exceeding one month, absents himself from the municipality in such manner as to be unable to perform his duties as such president or vice-president, shall cease to be president or vice-president, unless leave so to absent himself has been granted by the municipal council. The word used in this provision is "cease". Again in S.23(8) of the same Act it is provided that if a vice-president of a municipal council is elected or appointed as president of the council, he shall be deemed to have vacated his office as vice-president. The word employed is vacated, as used in sub-cl. (9) of S.23. It cannot be said that those different words have been used in different sections without any purpose. "To vacate an office", "ceasing to hold an office" and "removable from an office are quite distinct acts. A person may vacate or cease to hold an office as a result of his own voluntary act. A president or vice-president of a Municipal Council may absent himself for a particular period whereupon he will cease to be a president or vice-president. As a result of a resolution expressing no confidence in a president or vice-president by a majority of not less than two-thirds of the municipal councillors, a president or vice-president will have to vacate his office. But the word "removable" appearing in S.197, Cr.P.C. connotes altogether a different meaning. For the removal of a president or vice-president the motion must originate from without, and the only agency by which a president or a vice-president can be removed from the office is the local Government. This removal of president or vice-president is provided for in S.23(10), Town Municipalities Act. The word used is removable. It provides that a president and vice-president shall, after an opportunity is afforded for hearing him, be removable from his office as such president or vice-president by the Government for misconduct in the discharge of his duties or for neglect of or incapacity to perform his duties or if he is unable to pay his debts. A president or a vice-president of a municipal council ceasing to be such for absenting himself from the municipality for a fixed period or his vacating the office in consequence of a resolution expressing no confidence in him passed by a majority of not less than two-thirds of the councillors, or a vice-president vacating his office as vice-president when he becomes a president, or a president or a vice-president vacating his office by resignation, are different and cannot come within the expression "not removable from his office" occurring in S.197(1), Cr.P.C. In this connection, I would like to refer to the decision reported in - Hidayatullah v. Emperor, AIR 1933 Sind 161 (B). That case also relates to the prosecution of the president of the municipality and their Lordships have held that relinquishment of an office, resignation of an office, vacating or ceasing to hold an office are different from the expression removed from an office, and that it is only the State Government that can remove the president of a municipality. The case relied on by the learned District Magistrate, reported in AIR 1931 Bom 527 (A), is not of much help. In that case, the prosecution related to an administrative officer of the School Board appointed under S.9(1), Bombay Primary Education Act. That section itself (9(2)) provided that the School Board administrative officer shall not, save with the previous sanction of the Government, be removable from office, reduced or suspended, unless by the votes of at least two-thirds of the whole number of councillors. And, therefore their Lordships held that the administrative officer was a person who could be removed from his office without the previous sanction of Government when there was a clear majority of votes of at least two-thirds of the whole number of councillors. The facts of that case appear to be different from the facts of the present case. We do not find the words corresponding to S.9(2), Bombay Primary Education Act in S.23(9), Mysore Town Municipalities Act. I am, therefore, of opinion that the learned District Magistrate was not right in relying upon S.23(9) and coming to the conclusion that no sanction of Government was required to remove a president or a vice-president of a Town Municipal Council.

8. I am also of opinion that the said order of the learned District Magistrate is without jurisdiction. It appears to me that the learned District Magistrate should not have exercised his revisional jurisdiction in a matter of this type. He purports to have made this order under S.436, Cr.P.C. which runs thus: "On examining any record under S.435 or otherwise, the High Court or the Sessions Judge may direct the District Magistrate by himself or by any of the Magistrates subordinate to him to make, and the District Magistrate may himself make, or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under S.203 or sub-s. (3) of S.204 or into the case of any person accused of an offence who has been discharged: Provided that no Court shall make directions under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of shewing cause why such direction should not be made." It appears to me that the powers of revision given to a District Magistrate under S.436 are limited. Those powers can be exercised only for the limited purpose indicated in the section. A further inquiry can be ordered under that section under the revisional jurisdiction of a District Magistrate in cases where a complaint has been dismissed under S.203 or Sub-s. (3) of S.204 or in cases where a person accused of an offence has been discharged. The present order of the learned District Magistrate holding that no sanction of Government was necessary to prosecute the present petitioners can neither be said to be an order of dismissal under S.203 or one under Sub-s. (3) of S.204, nor an order of discharge made under S.209, 253 or 259, Cr.P.C. Therefore I am of opinion that the order of the learned District Magistrate was without jurisdiction. The only course open to the learned District Magistrate, if he found that the order of the learned Magistrate holding that previous sanction of Government was necessary to prosecute the petitioners was wrong, was to make a report of the same to the High Court as contemplated in S.438, Cr.P.C. The present order made by the learned District Magistrate is liable to be quashed.

9. From a perusal of the allegations made in the complaint petition, it is clear that the petitioners are accused of an offence alleged to have been committed by them while acting or purporting to act in the discharge of their official duties. Hence the provisions of S.197(1), Cr.P.C. are attracted. I think that the petitioners are entitled to the benefit of that section.

10. In the result, this revision petition is allowed and the order of the learned District Magistrate is set aside and that of the learned trial Magistrate restored. Revision allowed. AIR 1955 MYSORE 115 (V. 42, C. 41 Sept.) "Krishnaji Rao v. Gokuldas" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) N. Krishnaji Rao, Petitioner v. Gokuldas Harbhagavandas and another, Respondents. Civil Petns. Nos.10 and 11 of 1955, D/- 10 -3 -1955. (A) Civil P.C. (5 of 1908), S.24 - TRANSFER OF CASE - Grounds of transfer. The mere fact that some of the issues in the cases are identical, that the witnesses of the defendant are residing at Mysore and that all the 15 hundies have to be exhibited in each is not sufficient to transfer the cases that are pending in the Subordinate Judges Court, Bangalore to the file of the Subordinate Judges Court, Mysore. (Para 4) Anno: AIR Com. C.P.C. S.24 N.13. (B) Civil P.C. (5 of 1908), S.24 - TRANSFER OF CASE - Court of institution having no jurisdiction. It is not open to a defendant to contend that a particular Court has no jurisdiction to entertain the suit and at the same time ask for a transfer of the case to some other Court. AIR 1932 Sind 215 and AIR 1928 Mad 400, Rel. on. (Para 4) Anno: AIR Com. C.P.C. S.24 N.12. Cases Referred : Chronological Paras (A) (V19) AIR 1932 Sind 215 : 26 Sind LR 277 4 (B) (V15) AIR 1928 Mad 400 : 108 Ind Cas 413 4 C.N. Ramaswamy Sastry, for Petitioner; M.R. Janardanam (in Petn. No.10) and L.S. Seshagiri Rao (in Petn. No.11), for Respondents. Judgement ORDER:- These are two petitions filed by the petitioner-defendant under S.24, Civil P.C. praying that O.S.141/54 and 219/54 pending in the Court of the Principal Subordinate Judge, Bangalore, may be transferred to the Court of the Subordinate Judge, Mysore, to be tried along with O.S. Nos.115 and 116/54 pending on the file of that Court. C.P.10/55 relates to the transfer of O.S.141/54 and C.P.11/55 to the transfer of O.S.219/54. The same point arises for decision in both these cases and therefore both of them will be covered by a common order.

2. The allegations made in the application and affidavit in support of the transfer are that some of the issues in all these cases are identical, that all the hundies which are the subject-matter of these four suits were executed in Mysore that all the 15 hundies will have to be exhibited in each of the four cases, that the oral evidence that the defen dant has to adduce is common to all the cases, that the defendants witnesses are residing in Mysore and that under these circumstances the cases pending in the Court of the Principal Subordinate Judge, Bangalore, may be transferred to the file of the Subordinate Judges Court, Mysore.

3. The respondents-plaintiffs oppose the application. It appears to me that there are not sufficient materials for allowing these petitions. The mere fact that some of the issues in these cases are identical, that the witnesses of the defendant are residing at Mysore and that all the 15 hundies have to be exhibited in each is not, in my opinion, sufficient to transfer the cases that are pending in the Subordinate Judges Court, Bangalore. The plaintiffs are opposed to the transfer of these cases and according to them, their witnesses are living in Bangalore. It has also to be remembered that the plaintiffs in these cases are different. Therefore, I am of opinion, that the grounds urged in the application and affidavit are not sufficient to warrant a transfer as desired by the defendant.

4. Again there appears to be a legal impediment for the transfer of the cases from the Court of Principal Subordinate Judge, Bangalore, to the Court of the Subordinate Judge in Mysore. In the suits pending before the Principal Subordinate Judge, Bangalore, the defendant has admittedly taken a stand that the Sub-Court has no jurisdiction to entertain this suit. It is not open to a defendant to contend that a particular Court has no jurisdiction to entertain the suit and at the same time ask for a transfer of the case to some other Court. In this connection, I would like to refer to the decisions reported in - Gangumal v. Nanikram, AIR 1932 Sind 215 (A), and - Singara Mudaliar v. Govindaswami Chetty, AIR 1928 Mad 400 (B). In the first case, His Lordship has held that a superior Court cannot make an order of transfer of a case under the appropriate section of the Civil Procedure Code unless the Court from which the transfer is sought to be made has jurisdiction to try it, and that a defendant cannot therefore raise an issue as to the jurisdiction of a Court in which the suit is pending and at the same time apply for transfer of the case under S.24. In the latter decision, it is laid down that a transfer cannot be made from one Court to ano ther, unless the suit has in the first instance been brought in a Court having jurisdiction and that such an order if made would be void. I hold that these two petitions are liable to be dismissed.

5. In the result, these petitions i.e., C.P. Nos.10 and 11 of 1955 stand dismissed with costs of the respondents, Advocates fee Rs.25/- in each. Petition dismissed. (S) AIR 1955 MYSORE 116 (V. 42, C. 42 Sept) "Lingappa v. State of Mysore" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) Lingappa and another, Petitioners v. State of Mysore, Complainant-Respondent. Criminal Revn. Petn. No.405 of 1954, D/- 13 -6 -1955, against decision of 1st Class Magistrate, Tumkur, in Criminal Appeal No.61 of 1953. (A) Mysore Prohibition Act (37 of 1948), S.4 - PROHIBITION - EVIDENCE - Articles seized if prohibited articles - Burden of proof. Evidence Act (1 of 1872), S.101, S.102, S.103. The burden of proof is heavily on the prosecution to establish that the articles alleged to have been seized are prohibited articles. (Para 5-6) Anno: AIR Man. Evidence Act, Ss.101 to 103 N.3. (B) Mysore Prohibition Act (37 of 1948), S.32 - PROHIBITION - SEARCH AND SEIZURE - WARRANT - Search without warrant. It is not correct to say that a search should always be preceded by a warrant authorising the search. Powers of entry and search without a warrant are quite valid under certain circumstances under S.32. (Para 7) (C) Constitution of India, Art.14 - EQUALITY - PROHIBITION - CONSTITUTIONALITY OF AN ACT - PREAMBLE - Territorial discrimination - Mysore Prohibition Act - Validity. Mysore Prohibition Act (37 of 1948), Pre.. An Act or enactment would not be invalid merely because it is not put into force in the entire State and is given effect to only in selected places. What is to be seen in such cases is whether the classification is arbitrary and if it is based on a principle which has no relation to the object which the Legislature seeks to attain by enforcing an enactment. The classification made in the Mysore Prohibition Act is not, as its Preamble shows, arbitrary and it has a reasonable relation to the object which the Legislature seeks to attain. The Act is, therefore, valid and does not offend Art.14. AIR 1953 SC 404, Foll. (Paras 10, 11 and 12) Anno: AIR Com. Const. of India, Art.14 N.15 and 32. Cases Referred : Chronological Paras (A) (V39) AIR 1952 SC 75 : 1952 Cri LJ 510 (SC) 9 (B) (V39) AIR 1952 SC 123 : 1952 Cri LJ 805 (SC) 9 (C) (V40) AIR 1953 SC 404 : 1953 Cri LJ 1621 (SC) 9 (D) (V42) (S) AIR 1955 SC 166 : 1955 SCJ 262 (SC) 11 (E) (V42) (S) AIR 1955 SC 191 : 1955 Cri LJ 374 (SC) 11 (F) (V42) (S) AIR 1955 Nag 1 : ILR (1954) Nag 816 (FB) 11 (G) (V42) (S) AIR 1955 Mad 100 : 1955 Cri LJ 452 11 (H) (V41) AIR 1954 Hyd 50 : ILR (1954) Hyd 76 11

(I) (V41) AIR 1954 Raj 197 13 (J) (V41) AIR 1954 SC 297 : 1954 SCR 996 (SC) 13 M. Sadanandaswamy, for Petitioners; Advocate-General, for Respondent. Judgement ORDER:- This is a revision petition preferred by petitioners 1 and 2 against the judgment of the learned First Class Magistrate, Tumkur, in Criminal Appeal No.61 of 1953, confirming that of the learned Second Magistrate, Tumkur, in C.C. No.2066/52-53, convicting them of offences under Ss.4(1)(a) and 4(1)(g), Mysore Prohibition Act and sentencing each of them to undergo rigorous imprisonment for two months under each count and directing that the sentences should run consecutively.

2. The case for the prosecution was that on 3-6-1952 these petitioners were found in unlawful possession of I.D. arrack and materials used for the manufacture of I.D. arrack, in the house of A2 occupied both by A.I and A2 at Mallenahalli in Gubbi Taluk and that they thereby committed offences under Ss.4(1)(a) and 4(1) (g), Prohibition Act. The petitioners pleaded not guilty but the learned trial Magistrate ultimately, convicted and sentenced them as stated above. The petitioners took this judgment in appeal to the learned First Class Magistrate, Tumkur, who confirmed the conviction and sentence and dismissed the appeal. As against the latter decision, this revision petition is preferred.

3. The main point that arises for consideration is whether there are sufficient materials to interfere with the Judgment of the lower Courts. The learned counsel for the petitioners attacked the judgment of the lower Courts on four grounds, viz. (1) that the Mysore Prohibition Act is void inasmuch as it offends the provisions of Art.14 of the Constitution; (2) that the prosecution had not proved that the arrack found in the house of the petitioners was a prohibited liquor; (3) that the search of the petitioners house is illegal as there was no warrant issued for the said search; and (4) that the prosecution has not proved that the house wherein the arrack and the other materials were found belongs to the petitioners. I would like to deal with each of these contentions separately.

4. It appears to me that none of the grounds of attack is tenable or sound. As regards the last contention that the house wherein the arrack and other materials were found has not been proved to be that of the petitioners I should say without the least hesitation that there is absolutely no substance in it. (His Lordship after discussing the evidence held that the accused were in unlawful possession of the articles in their house and proceeded:) 5-6. There is equally no substance in the contention that the arrack found in the house of the petitioners has not been proved to be a prohibited liquor. No doubt it has to be conceded that the burden of proof is heavily on the prosecution to establish that the articles alleged to have been seized are prohibited articles. (On a consideration of the evidence it was held that the lower Courts were right in coming to the conclusion that the liquid contained in M. Os.2 and 3 was I.D. arrack possessed by the petitioner without a permit. His Lordship then proceeded:)

7. The next argument advanced by the learned counsel for the petitioners was that the search itself is illegal inasmuch as no warrant was obtained by P.W.5 before effecting the search. It is not correct to say that a search should always be preceded by a warrant authorising the search. Powers of entry and search without a warrant have been held to be quite valid under certain circumstances under S.32, Prohibition Act. P.W.5 has sworn that the matter was very urgent and that therefore he immediately proceeded to raid the house of the petitioners without obtaining a warrant. Therefore I agree with the findings of the two Courts below that the search is legal.

8. Coming to the more important point urged on the side of the petitioners that the Prohibition Act is void for the reason that it offends the provisions of Art.14 of the Constitution, I am of opinion that the said contention is devoid of substance or force. It is argued for the petitioners that the Act is made applicable only to the Districts of Kolar, Chitaldrug and Tumkur and not to the other Districts and that the people belonging to these Districts have been discriminated against. It was also contended that under S.1(3)(b) the Government has been given arbitrary powers to extend the Act to any area on such date as the Government may by notification appoint, and that these provisions contravene Art.14 of the Constitution. What we have to consider is whether there is any merit in these contentions. It seems to me that the contention urged is not sound.

9. Article 14 of the Constitution runs thus: "the State shall not deny to any Person equality before the law or the equal protection of the laws within the territory of India." The principle underlying Art.14 of the Constitution has been clearly explained by the Supreme Court in the three cases reported in - State Of West Bengal v. Anwar Ali Sarkar,, AIR 1952 SC. 75 (A), - Kathi Raning Rawat v. State Of Saurashtra AIR 1952 S.C. 123 (B), and - Kedar Nath Bajoria v. State Of West Bengal, AIR 1953 S.C. 404 (C), The first two cases were fully considered by their Lordships of the Supreme Court in the third case i.e., AIR 1953 S.C. 404 (C), wherein their Lordships have observed as follows: Now, it is well settled that the equal protection of the laws guaranteed by Art.14 of the Constitution does not mean that all laws must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons or things for the purposes of legislation. To put it simply all that is required in class or special legislation is that the legislative classification must not be arbitrary but should be based on an intelligible principle having a reasonable relation to the object which the Legislature seeks to attain. If the classification on which the legislation is founded fulfils this requirement, then the differentiation which the legislation makes between the class of persons or things to which it applies and other persons or things left outside the purview of the legislation cannot be regarded as a denial of the equal protection of the law, for, if the legislation were all-embracing in its scope, no question could arise of classification being based on intelligible differentia having a reasonale relation to the legislative purpose. The real issue, therefore, is whether having, regard to the underlying purpose and policy of the Act as disclosed by its title, preamble and provisions....classification....can be said to be unreasonable or arbitrary and therefore violative of the equal protection clause." Again, in the course of the same judgment, their Lordships have observed as under: "If the impugned legislation indicates the policy which inspired it and the object, which it seeks to attain, the mere fact that the legislation does not itself make a complete and precise classification of the persons or things to which it is to be applied, but leaves the selective application of the law to be made by the executive authority in accordance with the standard indicated or the underlying policy and object disclosed is not a sufficient ground for condemning it as arbitrary and, therefore, obnoxious to Art.14. In the case of such statute it could make no difference in principle whether the direction which is entrusted to the executive Government is to make a selection of individual cases or of offences, classes of offences or classes of cases. For, in either case, the discretion to make the selection is a guided and controlled discretion and not an absolute or unfettered one and is equally liable to be abused, but as has been pointed out, if it be shown in any given case that the discretion has been exercised in disregard of the standard or contrary to the declared policy and object of the legislation, such exercise could be challenged and annulled under Art.14 which included within its purview both executive and legislative acts."

10. Thus it is seen that the principle enunciated by their Lordships goes to indicate that there is no substance in the contention that an Act or enactment would be invalid if the enactment is not put into force in the entire State and if it is given effect to only in selected places.

11. The same view has been expressed by their Lordships of the Supreme Court in the cases reported in - Sakhawant Ali v. State Of Orissa , (S) AIR 1955 SC 166 (D), and - Budhan Choudhry v. State Of Bihar, (S) AIR 1955 SC 191 (E) In this connection, I would like to refer to some cases of the other High Courts in the Indian Union. In the case reported in - Bhaurao Atmaram v. Sub-Divisional Officer, Chandur-Morsi, (S) AIR 1955 Nag 1 (FB) (F), it is observed by a Full Bench of the Nagpur High Court that it is not necessary for a law to be valid that it must operate in the entire territory of the State, that a State is not prevented from adopting any system of laws it sees fit for all or any part of its territory and that a State is not compelled to extend application of any particular law to all classes of subjects or to all territories within the jurisdiction of the State. Again the Madras High Court has taken a similar view in the decision reported in - In re B.N. Ramakrishna Naidu, (S) AIR 1955 Mad 100 (G), and the Hyderabad High Court in the case reported in - Firm Soma Rajaiah v. Sales Tax Officer, Secunderabad, AIR 1954 Hyd 50 (H). So, what we have to see in such cases is whether the classification is arbitrary and if it is based on a principle which has no relation to the object which the Legislature seeks to attain by enforcing an enactment. If it is not arbitrary and if the principle on which the classification is based has a reasonable relation to the object which the Legislature seeks to attain, then it should be held that such an enactment is valid and does not offend Art.14 of the Constitution.

12. There is no force in the contention that the classification in this case is arbitrary and that it has no reasonable relation to the object which the Legislature seeks to attain. The preamble to the Mysore Prohibition Act provides as follows: "WHEREAS it is expedient, as early as possible, to bring about the prohibition except for medicinal, scientific or industrial or such like purposes of the production, manufacture, possession, export, import, transport, purchase, sale and consumption of intoxicating liquors and drugs in Mysore; And whereas it is desirable to give effect to the above mentioned policy by introducing it in certain selected areas in Mysore and to utilise the experience gained therein for extending it to the other areas thereof;.." The preamble itself indicates the principle which inspired the passing of the Prohibition Act and also the principle involved, and the purpose for which the Act has been made applicable, in the first instance, only to three Districts in the State. Some particular areas have been selected as an experimental measure and the experience gained thereby has to be made use of in extending the Act to other areas. The indication is that if the prohibition succeeded in those Districts, Government might introduce it to other places.

13. My attention was drawn by the learned counsel for the petitioners to a case reported in - Madhosingh v. State of Rajasthan, AIR 1954 Raj 197 (I),. In that case, the Agricultural Rents Control Act has been held void by the Rajasthan High Court as offending Art.14 of the Constitution. It appears to me that the facts in that case are not identical with those in the present case. As observed by their Lordships in that case, the Act nowhere indicated the principle which inspired the passing of the Act or anything to serve as a guide to control the discretion of the State Government regarding the application of the Act to any particular area. They have also observed that the Act nowhere indicates the object which the Legislature sought to attain. Even the principle propounded by their Lordships of the Supreme Court in the case reported in - State Of Rajasthan v. Rao Manohar Singhji, AIR 1954 SC 297 (J), cannot be made applicable to this case where the facts are entirely different. From a consideration of the evidence adduced in the case and the case law referred to above, it appears to me that the decision of the Courts below has to be upheld.

14. The sentence passed by the learned trial Magistrate is by no means severe. But I find that there was no occasion for him to have directed the sentences to run consecutively. I direct that the sentences do run concurrently. With this modification in the sentence, the petition is liable to be dismissed.

15. In the result, except for the modification in the sentence indicated above, this revision petition stands dismissed. The petitioners will surrender themselves to the bail bonds and undergo the unexpired portion of their sentences. Revision dismissed. AIR 1955 MYSORE 118 (V. 42, C. 43 Sept.) "Subba Rao v. Venkata Rao" MYSORE HIGH COURT Coram : 1 VENKATARAMAIYA, C.J. ( Single Bench ) B. Subba Rao, Plaintiff-Petitioner v. B. Venkata Rao and another, Defendants-Respondents. Civil Revn. Petn. No.127 of 1954, D/- 30 -6 -1955, against order of Sub-J., Shimoga in O.S. No.38 of 1952-53. Court-fees Act 7 of 1870, S.7(iv)(c), Sch.II, Art.17(iii) - COURT-FEE - DECLARATION OF TITLE - INJUNCTION - Suit for declaration and injunction. Mysore Court-fees Act (3 of 1900), Art.4(iv)(c). In a suit for a declaration that the plaintiff was entitled to a certain amount lying in deposit in a treasury in the name of Amildar and for a permanent injunction to restrain the defendant from withdrawing the same; the plaintiff need not pay anything more than the fixed Court-fee prescribed under Art.4(iv)(c) to the Schedule of the Mysore Court-fees Act, for the relief of declaration, as the officer who had control over the deposit is not made a party to the suit and no relief for direction to pay the amount to the plaintiff is asked for against him. The relief of injunction is superfluous and unnecessary. 7 Mys LJ 41 - 16 Mys CCR 50 and AIR 1938 Cal 161, Disting; AIR 1935 Mad 318, (1) Ref. (Para 2) Anno: AIR Com., C.F. Act, S.7 (iv)(c) N.1, 4. Cases Referred : Chronological Paras (A) (29) 7 Mys LJ 41 2 (B) (11) 16 Mys CCR 50 2 (C) (V22) AIR 1935 Mad 318 (1) : 159 Ind Cas 454 2 (D) (V10) AIR 1923 Lah 359 : 75 Ind Cas 774 2 (E) (V25) AIR 1938 Cal 161 : 177 Ind Cas 893 2 M.P. Somasekhara Rau, for Petitioner; Maloor Subba Rao (for No.1) and C.K. Narayana Rao (for No.2), for Respondents. Judgement ORDER:- The question raised in this petition is whether the order of the lower Court requiring the plaintiff to pay additional Court-fee on the plaint is correct. The suit was for declaration that the plaintiff is entitled to the amount of Rs.9863/- lying in deposit in the Savings Bank account in the Taluk Treasury at Hosanagar in the name of the Amildar of that Taluk. It appears the Amildar was a Receiver in Cr. Misc. No.1 of 50-51 on the file of the First Class Magistrate, Sagar, and that as a result of the order in the proceedings the amount is payable to the plaintiff. In addition to declaration, the plaintiff sought for a permanent injunction to restrain the 1st defendant from withdrawing the amount from the Treasury. The relief for injunction was valued at Rs.45/-and ad valorem Court-fee was paid on that amount besides the fixed fee for the relief of declaration. The defendants contended that the Court-fee paid was insufficient and the objection has been upheld. The learned Subordinate Judge seems to be of opinion that the claim for relief of injunction affects the Court-fee payable for the relief of declaration and that the value of the relief of injunction at Rs.45/- is arbitrary and low. He has ordered that ad valorem fee on the amount in deposit should be paid.

2. Sri Somasekhara Rao learned Counsel for the petitioner has cited the decision in 7 Mys LJ 41 (A) and 16 Mys CCR 50 (B), to show that in a case like this it is open to the plaintiff to ask for a bare declaration without consequential relief. These may be of help to determine the maintainability of the suit but do not deal with the amount of the Court-fee to be paid. The plaintiff has not applied for a direction to pay the money and the prayer if granted does not entitle him to enforce the realisation of the amount in execution of the decree which may be passed. The officer who has control over the fund and competent to pay it is not a party to the suit. The adjudication of the right to it in plaintiffs favour may suffice for the plaintiff getting the amount. The officer in charge of the money is not interested in the person to whom payment is to be made whether he is the plaintiff or any other and all that he wants is a judicial recognition of the claim. The person who disputes the claim is the defendant and since the money is not with him it does not seem to be necessary or reasonable to call upon the plaintiff to pay ad valorem Court-fee on the amount in deposit. That contingency may arise if the custodian declines to pay it and the plaintiff wants to enforce his claim for payment. In view of this I do not think the plaintiff need pay any thing more than the fixed Court-fee prescribed under Art.4(iv)(c) to the schedule to the Court-fees Act for the relief of declaration. In - Ponnuswami Nadar v. Secy. of State, AIR 1935 Mad 318 (1) (C), it was pointed out that relief of injunction is superfluous and unnecessary in such cases, and the proper relief should be only a declaration for which the fixed Court-fee is sufficient. A similar view is expressed in - Mt. Uttam Devi v. Dina Nath, AIR 1923 Lah 359 (D). - Urmilabala Biswas v. Binapani Biswas, AIR 1938 Cal 161 (E), cited by Sri Malur Subba Rao learned Counsel for the respondent to justify the order of the lower Court is distinguishable as the plaintiff wanted in that case the money in deposit to be given proportionately to the plaintiff. There is no such relief in the present case.

3. The order of the lower Court is set aside as, in my opinion, the Court-fee paid already is sufficient. The suit will be proceeded with and disposed of on the merits expeditiously. Order accordingly. AIR 1955 MYSORE 119 (V. 42, C. 44 Sept.) "In re Chikka Byre Gowda" MYSORE HIGH COURT Coram : 2 SREENIVASA RAU AND HOMBE GOWDA, JJ. ( Division Bench ) In re Chikka Byre Gowda, Accused-Appellant. Criminal Appeal No.53 of 1954 and Criminal Ref. Case No. 6 of 1954, D/- 22 -6 -1955, against judgment of Principal S.J., Bangalore Division, D/- 12 -8 -1954. Evidence Act (1 of 1872), S.3. Penal Code (45 of 1860), S.302 - Evidence. When a conviction is to depend upon circumstantial evidence, the incriminating facts must be such as to be incompatible with the innocence of the accused and incapable of explanation on any reasonable hypothesis other than that of the accuseds guilt. Case law Foll. (Para 7) Anno: AIR Com., Cr.P.C., S.367 N 6 Cases Referred : Chronological Paras (A) (30) 8 Mys LJ 379 7 (B) (44) 49 Mys HCR 444 7 (C) (V39) AIR 1952 SC 343 : 1953 Cri LJ 129 (SC) 7, 8, 10 (D) (V41) AIR 1954 SC 660 : 1954 Cri LJ 1679 (SC) 8 (E) (V41) AIR 1954 SC 720 : 1954 Cri LJ 1802 (SC) 8 E. Kanakasabhapathy, for Appellant; Asst. Advocate-General, for the State. Judgement SREENIVASA RAU, J.:- This is an appeal against the judgment, dated 12-8-1954, of the Principal Sessions Judge, Bangalore Division, in Kolar Sessions Case No.7 of 1954, convicting the accused-appellant, Chikka Byre Gowda alias Nadipina Byregowda, of an offence punishable under S.302, I.P.C. and sentencing him to death. The proceedings have also been submitted to the High Court for confirmation under S.374, Cr.P.C.

2. The prosecution case is as follows.

3. The accused was the second of three brothers who were living as members of a joint Hindu family. The eldest brother Doddabyre-gowda had a son B. Byregowda and a number of daughters. The son studied up to the S.S.L.C. examination and returned home. He thereafter interested himself in the management of the family affairs. He took exception to the accused selling away the goats belonging to the family behind the back of his brothers. Ultimately this dissatisfaction resulted in a partition of the family properties amongst the three brothers much against the will of the accused. The latter was all the more incensed when the goats belonging to the family were auctioned amongst the members of the family and the deceased outbid him and the accused was consequently deprived of them. The family owned two houses, one a big house and another a small one. The small one was allotted to the youngest brother while the big one was divided into two portions, the eastern portion falling to the share of the accused and the western portion to that of the eldest brother. There was only one door for the whole house leading to the street on the western side. Access to this front door could be had from the eastern portion which had fallen to the share of the accused through a door situated in the middle of the wall dividing the two portions. According to the arrangement arrived at during the partition the accused had to open a door into the lane situated on the southern side of the house and close the inner door mentioned above. The partition is said to have taken place about nine or ten days before the incident. There was some delay in the accused opening a door in the southern wall of his portion of the house. The deceased pressed him to expedite it and proceeded to collect bricks to close the inner door. This added to the resentment of the accused: In consequence of all this resentment the accused, some time during the night of 19-2-1954, murdered B. Byregowda with a bachi marked M.O. 15 in the case.

4. There are no eye-witnesses to the occurrence and the decision in the case rests entirely upon the circumstantial evidence available in the case.

5. That the deceased Byregowda was alive and in normal health on the night of 19-2-1954 and that he met with an unnatural death at the hands of some other person than himself in the course of the night has been established beyond doubt.

6. The learned Sessions Judges decision that the accused was guilty of murdering B. Byregowda is based on the following factors: (1) Amongst all the inmates of the house on the fateful night, the accused was the only one who had the strongest motive for doing away with the deceased, and he had the opportunity. (2) The accused was seen washing his bloodstained banian in the pond nearby some time during the following dawn. (3) The accused was found wearing a pair of blood-stained knickers when he was traced on the next evening. (4) The accused gave information to the Investigating Officer and the panchayatdars in consequence of which M.O. 15 (bachi) was traced and the said weapon could have inflicted the injuries which caused the death of B. Byregowda. (5) The said article M.O. 15 fell to the share of the accused at the family partition. (6) The conduct of the accused in coming out of the house early in the dawn and not answering Papanna, P.W.5, when the latter spoke to him and the accuseds conduct in going away from the house immediately after the murder was discovered and keeping away all through the day until he was traced by the Police, and (7) The accused had a strong motive for murdering his nephew as the latter had been responsible for bringing about the partition, had brought shame to the accused and had deprived him of the goats which had been in the accuseds charge all along,

7. It has been repeatedly laid down that when a conviction is to depend upon circumstantial evidence, the incriminating facts must be such as to be incompatible with the innocence of the accused and incapable of explanation on any reasonable hypothesis other than that of the accuseds guilt. This has been laid down by this High Court in 8 Mys LJ 379 (A), and - Papiah v. Govt. of Mysore, 49 Mys HCR 444 (B), and by the Supreme Court in - Hanumant Govind v. State of M.P., AIR 1952 SC 343 (C), in which it is stated: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused".

8. The principle of this decision has been repeated and applied by the Supreme Court in - Kedar Nath Bajoria v. State Of West Bengal, AIR 1954 SC 660 (D), and in - Kutuhal Yadav v. The State Of Bihar, AIR 1954 SC 720 (E), the latter being a case in which the Supreme Court found that the tests laid down in AIR 1952 SC 343 (C), had been satisfied by the circumstantial evidence adduced in the case and confirmed the conviction.

9. Adverting to the present case, the circumstances mentioned above on the basis of which the learned Sessions Judge has arrived at the conclusion that the accused was guilty may be considered. (His Lordship then considered the circumstantial evidence and concluded as follows:)

10. It is thus seen that far from the circumstantial evidence in the case leaving no room for any other hypothesis than the guilt of the accused it is totally inconclusive and fails to satisfy the test laid down in AIR 1952 SC 343 (C). Not only are all the vital facts alleged by the prosecution not established by the evidence on record, but even if the said facts should be regarded as proved, they do not constitute a complete and unbroken chain leading to the inevitable inference of the accuseds guilt.

11. In the light of all the considerations mentioned above, it appears to us that the conviction cannot be sustained and the sentence of death passed by the Court below cannot be confirmed. The decision of the learned Sessions Judge is accordingly set aside and the Appellant is hereby acquitted and he shall be set at liberty forthwith.

12. Pronounced in open Court. Appeal allowed. (S) AIR 1955 MYSORE 121 (V. 42, C. 45 Nov.) "Puttiah v. Mys. City Municipality" MYSORE HIGH COURT Coram : 2 SREENIVASA RAU AND HOMBE GOWDA, JJ. ( Division Bench ) M. R. Puttiah and another, Petitioners v. Mysore City Municipality and another, Respondents. Writ Petitions Nos.113 and 114 of 1955, D/- 8 -8 -1955. (A) Mysore Houses Rent and Accommodation Control Act (30 of 1951), S.20, S.1(2)(a) and S.1(2)(b) - HOUSES AND RENTS - ACCOMMODATION CONTROL - CONSTITUTIONALITY OF AN ACT - EQUALITY - Houses and Rents - Constitutionality - S.20 does not offend Art.14 of the Constitution. Constitution of India, Art.14. The discretion given to Government by S.20 of the Mysore Act is not an unguided and arbitrary discretion. The exercise of it is subject to judicial review and if it is shown in any given case that the discretion has been exercised in disregard of the standard or contrary to the declared policy and object of the legislation or arbitrarily or mala fide, the exercise can be challenged and declared void under Art.14 of the Constitution. (Para 4) Further, S.1(2)(a) and (b) indicates that the Legislature while deciding that buildings owned, requisitioned or taken on lease by Government should be exempted by making a provision in the Act itself, felt that there might be other categories of houses in respect of which provision could not be made in advance and that some authority should be vested with the discretion to grant exemption in conformity with the needs and circumstances and vested such power in Government as the appropriate authority. The Act curtails the rights of landlords under the general law and it would be quite in conformity with the objects of the Act to mitigate the rigours of the Act by providing for exemption in appropriate cases or categories of cases. Section 20 is therefore not void as opposed to Art. 14 of the Constitution: AIR 1954 Mad. 690, Foll. (Para 5) Anno.: AIR Com. Constn. of India, Art.14, N.40. (B) Mysore Houses Rent and Accommodation Control Act (30 of 1951), S.20, S.1(2)(a) and S.1(2)(b) - HOUSES AND RENTS - ACCOMMODATION CONTROL - EQUALITY - Houses and Rents - Government Notification No.797 of 2-11-1951 does not go beyond scope of S.20 - It does not offend Art.14. Constitution of India, Art.14. The contention that the Government Notification No.797, D/-2-11-1951 exempting houses belonging to local bodies is beyond the purview of S.20 as that section permits only a classification of houses and not a classification of owners is not acceptable because classification with reference to ownership is also a mode of classification. The exemption granted in favour of Government by the Legislature under S.1(2) (a) and (b) is an exemption on the basis of ownership. The exemption in favour of local bodies is based on the same principle as that relating to Government, i.e., in favour of a public authority. Nor can such exemption be regarded as unguided or arbitrary as the object of the exemption is clearly to enable local bodies to discharge their functions unhampered by the restrictions of the House Rent and Accommodation Control Act so that they could deal with the buildings owned by them in conformity with the general law and the particular Act governing the functioning of such bodies. The Notification, therefore, does not offend Art.14 of the Constitution. (Para 6) Anno.: AIR Com. Constn. of India, Art.14, N.40. (C) Mysore Houses Rent and Accommodation Control Act (30 of 1951), S.20 - HOUSES AND RENTS - ACCOMMODATION CONTROL - RIGHT TO PROPERTY - CONSTITUTIONALITY OF AN ACT - Houses and Rents - Government Notification No.797, D/-2-11-1951- Constitutionality - Section and the Notification do not offend Art.19(1)(f). Constitution of India, Art.19(1)(f). It cannot be said that either S.20 of the Mysore Act or the Government Notification No.797 affect any right of the tenants under Art.19(1)(f) to acquire, hold and dispose of property, since under operation of the general law the tenants are liable to be evicted and such security as is conferred on them under the House Rent and Accommodation Control Act is necessarily subject to all the provisions of the Act including the provision for exemption. (Para 7) Anno.: AIR Com. Constn. of India, Art.19, N.69. Cases Referred : Chronological Paras (A) (V41) AIR 1954 Mad. 690 : ILR (1954) Mad 616 4 S.K. Venkataranga Ayengar, for Petitioners. Judgement SREENIVASA RAU, J.:- In these two petitions the respective petitioners occupying shops situated in the Devaraja Market, Mysore City, as tenants of respondent 1, Mysore City Municipality, have prayed that S.20 of Act 30 of 1951 (the Mysore House Rent and Accommodation Control Act, 1951) be declared void and for the issue of a writ of certiorari or other appropriate writ or order or direction to quash the notification of respondent 2, i.e., the State Government, bearing No.797 dated 2-11-1951 exempting houses owned by any local authority or muzrai institution from all the provisions of the Act.

2. It may be mentioned that S.20 of the Act authorises the State Government by notification in the Mysore Gazette to exempt any house or class of houses from all or any of the provisions of the Act and that the notification referred to above has been issued in exercise of the powers conferred by S.20.

3. The petitioners case is that they have been tenants in occupation of the shop premises for many years under the Municipality and taking advantage of the exemption granted in the above mentioned notification the Municipality has filed suits against them for eviction in the Civil Court which it would not have been able to do under the provisions of the House Rent and Accommodation Control Act, 1951. The petitioners contend that S.20 empowering Government to grant exemption to a house or class of houses vests unregulated and arbitrary powers in the hands of Government and as it enables discrimination it offends Art.14 of the Constitution and is therefore void. It is further contended that even assuming that S.20 itself is not void, the notification goes beyond the scope of S.20 and the exemption granted under the notification is unrelated to the policy and object of the Act and is clearly discriminatory and has therefore to be struck down as unconstitutional.

4. As regards the constitutionality of S.20 of the Act, a similar question arose in respect of S.13, Madras Buildings (Lease and Rent Control) Act, 1949. The scheme of that Act is similar to the scheme of the Mysore Act, and the wording of S.13 of that Act is identical with the wording of S.20 of the Mysore Act. The case is reported in - Globe Theatres Ltd. v. State of Madras, AIR 1954 Mad 690 (A) and was referred to by the learned Advocate for the petitioners. The matter had apparently come up for consideration in previous cases; but in view of the importance of the question the learned Judges went into all aspects of the matter testing the constitutionality of S.13 with reference to general considerations governing the principles of equality before the law as also with reference to criteria laid down by the Supreme Court of India. They expressed their conclusion as follows: "If such power is improperly exercised in any particular case, that is, not in furtherance of the policy and object of the Act, but arbitrarily, then the Court can strike down the exercise of such power on every such occasion." They then proceeded to ascertain whether any such policy and object could be discovered within the four corners of the Act and whether the discretion vested in the Government under S.13 was in furtherance of such policy and object. They held after considering the scheme of the Act including the preamble that the two main objects were the control of rent and the regulation of letting with a view to prevent unreasonable eviction of tenants. They also took into consideration the circumstance that the Act was a temporary measure declared to remain in force only up to a particular date. They held that the discretion given to Government was not an unguided and arbitrary discretion. They added, however, that the exercise of such discretion was subject to judicial review and that if it be shown in any given case that discretion had been exercised in disregard of the standard or contrary to the declared policy and object of the legislation or arbitrarily or mala fide, the exercise could be challenged and declared void under Art.14 of the Constitution. It may be mentioned that the title and the preamble of the Mysore Act also are in almost identical terms except that the word houses is used in the latter Act instead of the word buildings found in the Madras Act. With great respect, we agree with the view taken by the Madras High Court in the decision mentioned above.

5. We may also add that S.1, (2)(a) and (b) of the Mysore Act exempts any house belonging to the State Government or Central Government and any tenancy or other like relationship created by a grant from the State Government in respect of houses taken on lease or requisitioned by the State Government from the operation of the provisions of the Act except S.23. This exemption itself would indicate that the Legislature while deciding that buildings owned, requisitioned or taken on lease by Government should be exempted by making a provision in the Act itself, it felt that there might be other categories of houses in respect of which provision could not be made in advance and that some authority should be vested with the discretion to grant exemption in conformity with the needs and circumstances and vested such power in Government as the appropriate authority. It has to be remembered that the Act curtails the rights of landlords under the general law and it would be quite in conformity with the objects of the Act to mitigate the rigours of the Act by providing for exemption in appropriate cases or categories of cases. We therefore see no substance in the petitioners contention that S.20 of the Mysore Act is void as opposed to Art.14 of the Constitution.

6. It is next contended that the notification exempting houses belonging to local bodies is beyond the purview of S.20 as that section permits only a classification of houses and not a classification of owners. It is difficult to accept this contention. Classification with reference to ownership is also a mode of classification. As mentioned above, the exemption granted in favour of Government by the Legislature itself under S.1, (2) (a) and (b) is an exemption on the basis of ownership. It may be added that in the Madras case referred to above the building belonged to a charitable trust and it would therefore appear that even there the exemption was granted on the basis of the character held by the owner. The exemption in favour of local bodies is also based on the same principle as that relating to Government, i.e., in favour of a public authority. It cannot therefore be said that the exemption in favour of local bodies is beyond the scope of the mowers granted under S.20 of the Act. Nor can such exemption be regarded as unguided or arbitrary as the object of the exemption is clearly to enable local bodies to discharge their functions unhampered by the restrictions of the House Rent and Accommodation Control Act so that they could deal with the buildings owned by them in conformity with the general law and the particular Act governing the functioning of such bodies. We are therefore of the view that the notification in question does not offend Art.14 of the Constitution.

7. The petitioners also contend that the notification infringes Art.19 of the Constitution. The reference is apparently to Art.19(1)(f). It cannot be said that either S.20 of the Act or the notification in question affects any right of the tenants to acquire, hold and dispose of property since under the operation of the general law the tenants are liable to be evicted and such security as is conferred on them under the House Rent and Accommodation Control Act is necessarily subject to all the provisions of the Act including the provision for exemption.

8. We accordingly dismiss these petitions. The interim applications are also. dismissed. AIR 1955 MYSORE 122 (V. 42 C. 46 Nov.) "Chellaradh and Co. v. M. V. K. Sundaram" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA, C.J. AND PADMANABHIAH, J. ( Division Bench ) Chellaradh and Co. Ltd., Appellants v. M. V. K. Sundaram and another, Respondents. Misc. Appeal No.39 of 1953, D/- 12 -7 -1955, against order of second Addl. Dist. J., Bangalore, D/- 14 -3 -1953. Companies Act (7 of 1913), S.162 - COMPANY - Provisions of section when can be invoked. An order for winding up a company is a compulsory process to be thought of when the conditions mentioned in the section are satisfied and implies exercise of discretion. It is not to be sought for as a short cut and cheap device to coerce payment and stifle contest. The mere failure of payment cannot be treated as a decisive factor to entitle a party invoking, the aid of the section or as a ground for the Court embarking on an elaborate inquiry for the purpose of determining complicated questions as if it is a suit to be tried though no court-fee is paid. AIR 1914 Bom. 251 and AIR 1920 Cal. 1004, Rel. on. (Para 2) Anno: AIR Man. Companies Act, S.162, N.6. Cases Referred : Chronological Paras (A) (V1) AIR 1914 Bom 251 : 39 Bom 47 2 (B) (V7) AIR 1920 Cal 1004 : 58 Ind Cas 561 2 B.N. Krishnaswamy, for Appellants. Judgement VENKATARAMAIYA, C. J.:- This is an appeal against an order passed under S.162, Companies Act, by the learned Second Addl. District Judge, Bangalore, for winding up the Appellant Company. The ground on which the order was made is that the Appellant failed to pay debts due to the Respondents. On a perusal of the petition filed by the Respondents and the objections thereto by the Appellant, it is seen that the claim is seriously disputed. Respondents claimed Rs.8000 and odd as being due but Appellant asserted that they are entitled to get only about Rs.220 and odd which the appellant offered and was ready to pay. The dealings between the parties consist of items of debit and credit with respect to which there is keen controversy. The result of the transactions cannot be determined unless a volume of correspondence and a number of account books are closely looked into and the proceeding treated as if it is a suit on accounts. Part of the difficulty for deciding as to whose version is to be accepted is due to the fact that the respondents appear to have had dealings with the Industrial Expansion Company which functioned as the Managing Agents of the appellant company and the need to distinguish the dealings which the Managing Agents had on their own account from those which they had on behalf of the appellant company. The Respondents, though notified, were absent at the hearing and not represented by any counsel. The lower Court has recorded a volume of evidence and entered into an unduly lengthy discussion of the materials placed before it in support of the claim and contentions of the parties.

2. In a suit filed in the Court of the Subordinate Judge, Bangalore, the liability of the Appellant to Respondents for payment of amounts is said to have been involved. I do not think that the provisions of the companies act can be availed of for obtaining an adjudication of the right to obtain payment when it is contested and the finding involves such a detailed and lengthy investigation as is necessary for a decision in a suit. As stated in Palmer on "Company Precedents" para 2, Chap. III page 52: "It is now well-settled that a petition for winding up with a view to enforce payment of a disputed debt is an abuse of the process of the Court and should be dismissed with costs....A winding up petition is not to be used as machinery to try a Common Law action." In Tulsidas Lalubhai v. Bharat Khand Cotton Mills Co., Ltd., AIR 1914 Bom. 251 (A) it is stated that: "Where the defence is that the debt is disputed all that the Court has first to see is whether that dispute is on the face of it genuine or merely a cloak of the Companys real inability to pay just debts." In The Company v. Rameshwar Singh, AIR 1920 Cal. 1004 (B) is an other case to the effect that "when a debt is bona fide disputed by a debtor company, it cannot be said to have neglected to pay the debt". Beasley, J., observed with reference to a similar petition in A I R 1929 Madras 265: "Courts will never allow creditors of a company to invoke the assistance of the Companies Act for getting payment of their debt. If there is genuine dispute with regard to the debt, then the creditor of the company must be referred to a suit." An order for winding up a company is a compulsory process to be thought of when the conditions mentioned in the section are satisfied and implies exercise of discretion. It is not to be sought for as a short cut and cheap device to coerce payment and stifle contest. The mere failure of payment cannot be treated as a decisive factor to entitle a party invoking the aid of the section or as a ground for the Court embarking on an elaborate inquiry for the purpose of determining complicated questions as if it is a suit to be tried though no court-fee is paid. The apathy to the proceedings shown by the Respondents by their absence indicates want of interest and that they are not seriously mindful of the result. This may be due to the respondents being content with the remedy available by means of a suit.

3. In view of all this, the order of the lower Court has to be set aside. The appeal is allowed. Parties will bear their own costs. Appeal allowed. AIR 1955 MYSORE 123 (V. 42 C. 47, Nov.) "Manasarovar Agencies v. G.-G. in Council" MYSORE HIGH COURT Coram : 2 PADMANABHIAH AND SREENIVASA RAU, JJ. ( Division Bench ) Manasarovar Agencies, Appellant v. Governor-General in Council, Dominion of India, New Delhi and others, Respondents. Regular Appeal No.16 of 1951-52, D/- 2 -8 -1955, against decree of Principal Sub-J., Bangalore in O.S. No.24 of 1949-1950. (A) Railways Act (9 of 1890), S.80 - Mysore Railways Act, S.64 - RAILWAY - Burden of proving delivery by connecting Railway to defendant Railway. When goods are carried by more than one railway, and if a plaintiff wants to make a particular railway liable for the alleged loss of goods, the burden of proving that the goods were delivered by the connecting railway to the railway which is sought to be made liable is heavily on the plaintiff. (Para 8) (B) Evidence Act (1 of 1872), S.114 - EVIDENCE - RAILWAY - Suit against Railway for non-delivery - Railway not producing unloading register - Adverse inference can be drawn. Where in a suit against a Railway for compensation for non-delivery, the unloading register maintained by the railway and which would throw light on the question whether the goods were not received by the railway, is not produced by the railway, an adverse inference has to be drawn against the railway. (Para 11) Anno: AIR Man., Evidence Act, S. 114 N. 10. (C) Civil P.C. (5 of 1908), S.80 - CIVIL PROCEDURE - RAILWAY - Notice u/S.80, Civil P.C. and u/S.77, Railways Act - Distinction. Railways Act (9 of 1890), S.77. The notice contemplated under S.80, Civil P.C. is different from the notice that is contemplated, under S.77, Indian Railways Act corresponding to S.61, Mysore Railways Act. The notice contemplated under the latter section is in respect of a claim to the refund or compensation specified therein, the object being to give an opportunity to the railway administration to make amends and settle the claim. The notice contemplated under S.80, Civil P.C., is also meant to give an opportunity to the Chief Secretary to Government, where the suit is instituted against Government, or the concerned Public officer in other cases, an opportunity to consider the legal position and to make amends or settle the claim without litigation. A notice under this section is necessary irrespective of the nature or character of the suit. AIR 1935 All 900, Ref. (Para 12) (D) Limitation Act (9 of 1908), Art.31 - LIMITATION - Burden of proof. In a suit against a carrier for compensation for non-delivery the burden of proving when the goods consigned to him for carriage ought to have been delivered lies upon the carrier of goods. (Para 14) (E) Limitation Act (9 of 1908), Art.31 - LIMITATION - RAILWAY - Suit against railway for compensation for non-delivery - Starting point for limitation. The question as to the date when the goods ought to have been delivered for purposes of Art.31 is essentially a question of fact, and there can be no hard and fast rule that time must begin to run from the expiry of the ordinary period of transit. Where no particular date is specified for delivery and the plaintiff consignee continues to make demands with respect to the non-delivery of the goods and the Railway goes on to state that the matter is being investigated and ultimately informs the plaintiff that the goods cannot be delivered, the limitation for a suit for compensation for non-delivery will run only from the date on which the refusal to deliver the goods or the incapacity to deliver the same is intimated to the plaintiff-claimant. (Para 14) Anno: AIR Com., Lim. Act, Art.31, N.10. Cases Referred : Chronological Paras (A) (V22) AIR 1935 All 900 : 156 Ind Cas 541 12 S. Gundappa for Appellant; D.M. Chandrasekhar for G.R. Ethirajulu Naidu, Advocate General, for Respondent. Judgement PADMANABHIAH, J.:- This is an appeal preferred by the appellant-plaintiff against the judgment and decree of the learned Principal Subordinate Judge, Bangalore, in Original Suit No.24 of 1949-50 partly decreeing the suit.

2. Plaintiff is a partnership firm carrying on business in machinery in Bangalore. Defendant 1 in the case is the Indian Union, defendant 2 the Government of Mysore, and defendant 3 the General Manager, Mysore State Railway. The case for the plaintiff is that the firm placed two orders, one for the supply of a lathe machine, and another for a drilling machine with Messrs. Halifax Engineering Company, Baroda and Messrs. A. Mill and Company, Lahore, respectively, that the said companies consigned the said goods (the first company under invoice No.49, and the second under invoice No.16 for value received), that the goods so consigned have not been delivered to the plaintiff, that defendant 3 Railway which are responsible for the carriage and delivery of the goods have failed to deliver the same, that the non-delivery is due to the negligence and misconduct of the concerned Railway, that they were therefore liable to make good the value of the said goods amounting to Rs.3,700 that the defendants failed to meet the plaintiffs claim in spite of repeated demands and notice and that hence the suit.

3. Defendant 1 was treated ex parte. Defendant 2 have put the plaintiff to proof of the allegations made in paras. 2, 3 and 4 of the plaint and have pleaded that they are not responsible for the nondelivery of the goods, that they did not receive the goods from the foreign contiguous railway, that the suit is not maintainable under S.64, Railways Act, that the Manager of the Mysore State Railway has not been made a party to the suit and that the suit was liable to be dismissed. In an additional written statement filed by defendant 2 subsequently, it is further pleaded that there was no negligence or misconduct on their part, that the notice issued to them is not valid, that the suit is bad for want of a notice under S.61, Mysore Railways Act, that the suit is further bad for non-joinder of parties and misjoinder of causes of action, that the Court has no jurisdiction to entertain this suit, that the suit is barred by time and that it is liable to be dismissed with their costs.

4. Defendant 3 has filed a separate written statement which is almost the same as that of defendant 2. So it is unnecessary to repeat what is stated therein.

5. In the reply statement filed by the plaintiff, the allegations made by the defendants are denied and those made in the plaint reiterated.

6. The learned Subordinate Judge held that the lathe machine booked under Invoice No.49 from Baroda had not been delivered to the Mysore Railway by the connecting foreign Railway, that the defendants were therefore not liable for the value of the said machine, that the suit with respect to that claim was not maintainable, and he accordingly disallowed that part of the plaintiffs claim. As regards the drilling machine booked under invoice No.16 from Lahore, he, however, found that defendant 3 Railway received the same from the connecting foreign railways, that they failed to deliver the same to the plaintiff and that they were liable for the value of the said machine and he accordingly decreed the suit for Rs.1,850 representing its value, with proportionate costs. The plaintiff has preferred this appeal with respect to the value of the lathe machine disallowed by the lower Court, and defendants 2 and 3 have filed cross-objections in respect of the claim allowed in favour of the plaintiff.

7. The first point that arises for consideration is whether the finding of the learned Subordinate Judge that defendants 2 and 3 Were not liable for the value of the lathe machine is incorrect. It appears to us from a perusal of the evidence that the finding of the learned Subordinate Judge has to be accepted as correct. The contention of defendant 3 Railways is that this lathe machine booked from Baroda under the railway receipt Ex.B was not delivered to them by the connecting foreign railway and that therefore they are not liable for the value of the said machine. There appears to be considerable truth and force in this contention.

8. That the lathe machine was booked with the North Western Railway is proved by the Railway Receipt Ex.B. The point that would arise for consideration is to what extent defendant 3, Railway can be held responsible for the non-delivery of the lathe machine referred to in Ex.B. This leads us to the consideration of certain sections of the mysore railways act that were in force at the time when the cause of action arose to the plaintiff and when the suit was filed. Section 64, Mysore Railways Act deals with institution of suits against the Railways for recovery of compensation where the goods are booked over the lines of more than one railway administration. The aggrieved party is by that section given liberty at his option to sue either the railway with which he entered into the contract or to sue the railway on whose line the injury or loss occurred. In this connection, it has to be remembered that the plaintiff wants to make defendant 3 Railway liable on the ground that the alleged loss occurred when the goods were being carried by that railway. When goods are carried by more than one railway, and if a plaintiff wants to make a particular railway liable for the alleged loss of goods, the burden of proving that the goods were delivered by the connecting railway to the railway which is sought to be made liable is heavily on the plaintiff, and in this case unless the plaintiff establishes that the Mysore State Railway were given possession of the goods in question, he cannot get any relief as against them. It appears to us that the plaintiff has failed to prove, as rightly found by the learned Subordinate Judge, that the machinery in question was delivered to the Mysore State Railway by the connecting foreign railways.

9. It is conceded that the machinery after having been booked with the North Western Railway had to be carried on the G.I.P. and M. and S.M. Railway before it could be delivered to the Mysore State Railway. The plaintiff has not adduced any evidence worth the name in support of his contention that the machinery was delivered to defendant 3 Railway by the connecting foreign railways. One of the partners of the plaintiffs firm has been examined as P.W.1 in the case, and his evidence is that he is not aware if the machinery was delivered to the Mysore State Railway. It was very easy for the plaintiff to have let in evidence, if his case was true, in support of his contention that the goods were delivered to the Mysore State Railway. It is admitted that goods carried by foreign railways booked for delivery in Mysore will be handed over or delivered to the Mysore State Railway either at Harihar or Hindupur. It is rather strange that the plaintiff has not thought it fit to examine the concerned Railway officials at either of those railways stations or to summon the relevant registers which could have thrown some light on this point. The learned counsel for the appellant contended that defendant 3 Railway should have summoned the concerned witnesses and registers to prove this fact. It is curious that such an argument should have been advanced. The burden was entirely on the plaintiff to establish this fact when he wanted to make the Mysore State Railway responsible for the loss or non-delivery. It was not for defendant 3 to have proved this fact, the burden of proving which was, as already stated, entirely on the plaintiff.

10. Besides, the evidence adduced on the side of the defendants, goes to show that the machinery in question was not delivered to the Mysore State Railways at all as contended by them. The evidence of D.W.1, the Commercial Inspector, and Ex.3 series - the correspondence that took place between the Mysore State Railway and the connecting railways go to establish beyond doubt that the machinery in question was not delivered to the Mysore State Railway. Exhibit 4 is an office copy of a letter written by the Mysore State Railway to the plaintiff intimating the firm that the lathe machine was not received by them. It was contended that Ex.U negatives the contention of defendant 3 Railway that the lathe machine was not delivered to them. We do not know how Ex.U supports such a contention because it relates to the drilling machine covered by the railway receipt Ex.D. From a perusal of the evidence adduced on the side of the defendants and from the absence of evidence on the side of the plaintiff, we will be justified in concluding that the lathe machine was not delivered to the Mysore State Railway by the connecting Foreign Railways. We agree with the finding of the learned Subordinate Judge in this behalf.

11. The contention of defendant 3 Railway that the drilling machine also was not delivered to them has to be negatived. The evidence adduced on the side of the defendants themselves establishes that the drilling machine booked under the railway receipt Ex.D with the North Western Railway was delivered to the Mysore State Railway. D.W.2 is the Assistant Traffic Superintendent of defendant 3 Railway. He has sworn, after seeing Ex.D, that a case bearing the same identifying numbers as found in Ex.D had been received at the Bangalore Railway station. He has further stated that Ex.S is a letter written from the office of the Traffic Manager, Mysore State Railway, to the plaintiff, and that the machinery referred to therein is the same as noted in Ex.D. In Ex.S the Traffic Manager has admitted that the drilling machine was received in Bangalore on 1-5-48 and has informed the plaintiff to come and take delivery of the same. We do not know what further evidence was necessary in proof of the fact that the machinery was delivered to the Mysore State Railways by the connecting Railways.It is admitted that an unloading register is maintained by defendant 3 railway in which the description of the goods unloaded are noted. This register would have thrown much light on the question whether the goods were not received by defendant 3 Railway. For reasons not clear, defendant 3 Railway have not produced the said register. From this non-production, an adverse inference has to be drawn against defendant 3 Railway. Reliance was placed by defendant 3 on a portion of the evidence of D.W.2 and also on Ex.VIII which is the delivery register maintained by defendant 3 Railway. Therein as per Ex.VIII (a), the letters "N.H." are noted. Relying on these letters, it was urged that "N" stands for not and "H" for hand, and that they indicate that the goods were not received. We are not prepared to attach any value to this circumstance in view of the other evidence adduced on the side of the defendants alone which, establishes a fact contrary to what is stated by D.W.2 in the earlier portion of his evidence. Exhibit U, which is a letter written by defendant 3 Railway to the plaintiff, throws some more light on this point. Therein defendant 3 Railway have informed the plaintiff that they had already taken delivery of the drilling machine etc. It is disclosed from the correspondence referred to above that the Mysore State Railway received the drilling machine booked with the North Western Railway under the railway receipt Ex.D, that they offered the same to the plaintiff, that the latter refused to receive the machine as it was either damaged or did not answer the correct description and that they (Mysore State Railway) took inconsistent positions with respect to this consignment. In view of the stand taken by them, as disclosed in their own letters addressed to the plaintiff with respect to the drilling machine, it would have been better if defendant 3 railway had not contested the suit in the lower Court or at least if they had not chosen to file cross-objections in this Court. In fairness to their customers, among whom the plaintiff was one, defendant 3 railway should have admitted the plaintiffs claim with respect to the drilling machine. For the reasons stated above, we agree with the finding of the learned Subordinate Judge that defendant 3 Railway are responsible for the value of the drilling machine as claimed in the plaint.

12. Defendant 1 in the case is the Union of India represented by the President. They are sought to be made liable for the suit claim on the ground that the North Western Railway, with which the goods were booked, and the G.I.P. and M. and S.M. Railways, through which the goods were carried, are all owned by the Indian Union. Defendant 1 remained exparte, and the contention urged on the side of the appellant is that the learned Subordinate Judge failed to pass a decree against the Indian Union in spite of their remaining ex parte and that he should have passed a decree against defendant 1 also. Though we do not entirely agree with the reasons advanced by the learned Subordinate Judge for holding that defendant 1 is not liable, yet we are of opinion that the suit as against defendant 1 should fail on account of other reasons, the chief reason being that a notice as contemplated under S.61, Mysore Railways Act has not been served on any of the Railways referred to above. A notice contemplated under S.80, Civil P.C., has been issued to all the three defendants, and, as found by the learned Subordinate Judge, the said notice is not defective in any way, and we may also observe, in this connection, that it is conceded by the learned counsel for the respondents that a valid notice under S.80, Civil P.C., has been issued to the defendants. We are inclined to accept the contention of the learned counsel for the respondents to the effect that the suit is bad for want of a notice under S.77, Indian Railways Act. The notice contemplated under: S.80, Civil P.C., is different from the notice that is ontemplated under S.77, Indian Railways Act corresponding to S.61, Mysore Railways Act. The notice contemplated under the latter section is in respect of a claim to the refund or compensation specified therein, the object being to give an opportunity to the railway administration to make amends and settle the claim. The notice contemplated under S.80, Civil P.C., is also meant to give an opportunity to the Chief Secretary to Government, where the suit is instituted against Government, or the concerned Public officer in other cases, an opportunity to consider the legal position and to make amends or settle the claim without litigation. A notice under this section is necessary irrespective of the nature or character of the suit. The distinction between the notices contemplated under the above two sections has been made clear by Sir Sha Mahomed Suleman, C.J., (as he then was) in the case reported in (Firm) Balakram Atma Ram v. Secretary of State, AIR 1935 All 900 (A). Therein His Lordship has observed that the two sections viz., S.80, Civil P.C., and S.77, Indian Railways Act (corresponding to S.61, Mysore Railways Act) are independent and that two separate notices should be issued before a suit can be maintained. His Lordships finding is that there must be a notice issued to the Railway Administration under S.77, Indian Railways Act within six months of the date of the delivery of the goods and that the plaintiff should also issue a notice to the Collector of the District under S.80, Civil P.C., and must wait for a period of two months before he could sue.

13. In the present case, though a notice as contemplated under S.61, Mysore Railways Act has been issued to the Mysore Railways as per Ex.E with respect to the lathe machine, no notice under that section has been issued to the North Western Railway. What the plaintiff has stated is that he had sent a copy of Ex.E to the latter Railway. This in our opinion is not sufficient and does not meet the requirements of S.61, Mysore Railways Act. By forwarding a copy of Ex.E to the North Western Railway, the plaintiff has made known to them that he had preferred a claim with respect to the lathe machine against the Mysore State Railway. Beyond that, it does not go to show that any claim had been made against the North Western Railway. Exhibit N is a notice of a claim preferred to the Mysore State Railway with respect to the drilling machine. Even in regard to this, there has been no notice to the North Western Railway, as contemplated under S.61 of the Act. It is further seen from the evidence of the plaintiff that part of the North Western Railway belongs to Pakistan since 15-8-1947. We are not in a position to know how the liabilities of the Union Government and the Government of Pakistan are adjusted or fixed, and if the Government of Pakistan is also a necessary party to this suit. In any view of the case, we are of opinion that the plaintiff was not entitled to a decree as against defendant 1 and that the suit as against the Indian Union is bad for want of notice under S.61, Mysore Railways Act. The application, I.A. No.1, filed by the appellant under O.1, R.10, Civil P.C., for impleading the Railways mentioned therein is liable to be dismissed inasmuch as no notice contemplated under S.61, Mysore Railways Act was issued to them. Accordingly I.A. No.1 stands dismissed but without costs.

14. It was contended that the suit is barred by time. There is no merit in this contention and we may also say that the learned counsel for the respondents did not press this ground in the course of his arguments. No doubt, the correct article of the limitation act applicable to suits against a carrier for compensation for non-delivery is Art.31, and the period fixed is one year from the time when the goods had to be delivered. The burden of proving when the goods consigned to him for carriage ought to have been delivered lies upon the carrier of the goods. The question as to the date when the goods ought to have been delivered for purposes of Art.31 is essentially a question of fact, and there can be no hard and fast rule that time must begin to run from the expiry of the ordinary period of transit. In this case there is no particular date specified for delivery. It is seen from the correspondence that took place between the plaintiff and defendant 3 Railway that the plaintiff continued to make demands with respect to the non-delivery of the goods and that defendant 3 Railway went on stating that the matter was being investigated and they ultimately wrote or intimated to the plaintiff that the lathe machine could not be delivered since it was not handed over to them by sthe connecting Railways and they also failed to deliver the drilling machine answering the description found in Ex.D. The suit has been filed within one year from such date after issuing a notice as per Ex.Y, dated 9-4-1949. The suit has been filed on 22-7-1949. In such cases, limitation will run only from the date on which the refusal to deliver the goods or the incapacity to deliver the same was intimated to the claimant. We agree with the finding of the learned Subordinate Judge that the suit is in time. We think that the decision of the lower Court has to be affirmed.

15. In the result, the judgment and decree of the learned Subordinate Judge are confirmed and the appeal as also the cross-objections stand dismissed with costs. Appeal and cross-objections dismissed. AIR 1955 MYSORE 126 (V. 42, C. 48 Nov.) "Radhakrishna v. Mohideen" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA, C.J. AND K. N. PADMANABHIAH, J. ( Division Bench ) Radhakrishna Setty, Appellant v. Mohideen Khan and another, Respondents. Regular Appeal No.162 of 1950-51, D/- 29 -6 -1955, against judgment and decree of Sub-J., Civil Station, Bangalore, in Suit No.45 of 1948-49. (A) Limitation Act (9 of 1908), Art.11 - LIMITATION - APPLICABILITY OF AN ACT - Order passed without investigation - Applicability of Art.11 to set aside such order. Assuming that the view of law applicable to suits in the Bangalore Civil Station was what has been laid down in the decisions of the Madras High Court, still the view of the Mysore High Court shall prevail by virtue of retrocession of Civil Station to Mysore and operation of Act 57 of 1948, which came into force on 15-8-1948. Hence, the view of the Mysore High Court that where an order (passed in a claim proceeding) sought to be cancelled is one passed without investigation, it is not hit by Art.11 will prevail in a case where the suit is instituted after the commencement of Act 57 of 1948. (Para 3) Anno. A.I.R. Com. Lim. Act, Art.11, N.11. (B) Limitation Act (9 of 1908), Pre. - LIMITATION - PREAMBLE - Alteration of period of limitation - Retrospective effect. Alteration of time within which proceedings are to be instituted is held to be procedural and may operate retrospectively. Thus, a statute extending the time within which proceedings may be taken may be held to be retrospective: (1905) 2 KB 335 (338), Foll. (Para 3) Anno. Lim. Act, Pre. N.15. Cases Referred : Chronological Paras (A) (44) 49 Mys H C R 275 3 (B) (V 6) AIR 1919 Mad 738 : 41 Mad 985 (FB) 3 (C) (V 29) AIR 1942 Mad 41 : ILR (1942) Mad 346 (FB) 3 (D) (V 25) AIR 1938 All 542 : 178 Ind Cas 66 3 (E) (V 24) AIR 1937 Nag 149 : 171 Ind Cas 759 3 (F) (V 24) AIR 1937 Oudh 493 : 13 Luck 484 3 (G) (1905) 1905-2 K B 335 : 74 L J K B 450 3

V. Krishna Murthy, for Appellant; E.V. Mathews, for Respondent 1. Judgement VENKATARAMAIYA, C. J.:- The property in dispute which is a house in Civil Station, Bangalore, admittedly belonged to one Chandbi who executed a sale deed Ex.XV dated 30-8-1915 with respect to it in favour of Syed Abdulla. Exhibit G dated 4-2-1938 is the other sale deed similarly executed by her in favour of Dastagir Khan who in turn executed the sale deed Ex.J in favour of Peer Khan. There was resale on 19-2-44 to Dastagir Khan and on the same day he executed Ex.F to the plaintiff. The property was attached in execution of a decree obtained against Syed Dawood son of Syed Abdulla the purchaser under Ex.XV. The plaintiff objected to the attachment alleging that he was the owner but the petition was dismissed on the ground that it was belated. In order to have it set aside the suit from which this appeal arises was filed against the purchaser of the property in execution proceedings who is defendant 1. The decree-holder was impleaded as defendant 2 and the legal representatives of the judgment-debtor Syed Dawood were the other defendants. The learned Subordinate Judge after recording evidence granted a decree to the plaintiff. The purchaser at the execution sale appeals. The plaintiff and the decree-holder are the respondents. The jugment-debtors legal representatives are not parties to the appeal.

2. Two contentions pressed on behalf of the appellant against the decisions of the lower Court are that the sale deed in favour of the judgment-debtors father being anterior to others should be upheld and that even otherwise the suit was barred by limitation. The first is a question of fact and the other is of law. If priority of the sale deeds is the sole test Ex. XV being earlier than Ex. G. the appellant will succeed and there will be no need to consider the question of law. The lower Court has, however, held that in spite of its priority Ex. XV is ineffective as a sale. No one present at the time of sale or who brought it about has been examined, probably because none of them was available for examination. Apart from the bare production of the deed, the appellant has not placed any material to show that the deed was acted upon and that the ostensible purchaser entered upon the property or dealt with it as an owner. According to the evidence, right up to the date of Ex.G, the vendor Chandbi herself continued to be in possession of the property as before. Not a single receipt has been produced by the appellant to show or suggest that Kandayam due to the Municipality was ever paid by Syed Abdulla. On the other hand, several receipts, Exs.L to L65 are produced by the plaintiff which do not mention the name of the person making payment but are nevertheless indicative of payment by the person producing them. It is reasonable to infer from these that the taxes were paid up to 1938 by Chandbi and Ex.K is a special notice issued by the Municipality to Chandbi. In addition to these, there are a number of lease deeds, Exs.A to E, P, Q, R, S, T and W in favour of the plaintiff and his predecessors-in-title. The tenants have been examined to speak to payments of rents under the lease deeds. As against all these, there is absolutely no evidence on the side of the appellant to prove or probabilise that the sale to Syed Abdulla was a genuine transaction or that the property was ever enjoyed by him or members of his family. The plaintiff seems to be ignorant of anything relating to the property before the sale. The learned Subordinate Judge has upheld the later sale by Chandbi to Dastagir Khan in 1938, in preference to the earlier one under Ex. XV and there is no good reason to take a different view.

3. It is, however, contended by Sri Krishnamurthy, learned counsel for the appellant, that the suit is liable to be dismissed as being belated owing to lapse of more than one year from the date of dismissal of the claim petition when the suit was filed. The petition was dismissed on 5-11-47 and the suit was filed on 26-2-1949 obviously beyond one year which is the period of limitation prescribed by Art.11, Limitation Act, for a suit to set aside an order passed in summary proceedings. The order sought to be cancelled in the present case being one passed without investigation, it is said, is not hit by the said Article. The decision of this Court in 49 Mys H C R 275 (A) supports this. Sri Krishna Murthy argued that the decisions of this Court cannot be relied upon as the proceedings arose in the Civil Station and that these are governed by the view of law enunciated by the Madras High Court in particular and some other Courts in India, according to which the application of Art.11 cannot be avoided by reason of the order cancellation of which is sought being one passed without investigation. Judicial opinion about this is not unanimous. While - Venkataratnam v. Ranganayakamma, AIR 1919 Mad 738 (FB) (B) and Cannanore Bank Ltd. v. P.A. Madhavi, AIR 1942 Mad 41 (FB) (C) are some of the cases in which the Article is held to apply to all suits for cancellation of orders whether passed after or without investigation - Kanhaiyalal v. Banke Behari, AIR 1938 All 542 (D), Sitaram v. Ganpati, AIR 1937 Nag 149 (E) and Parsottam Dass v. Ali Haidar, AIR 1937 Oudh 493 (F) support the view taken by this Court that it does not apply to cases in which there is no investigation. Assuming that the view of law applicable to suits in the Civil Station was what has been laid down in the decisions of the Madras High Court, there is still the question whether the view of this Court should not prevail by virtue of retrocession of Civil Station to Mysore and operation of act 57 of 1948. this act came into force on 15-8-1948, i.e., before the expiration of one year from the date of the order and by this all laws in force in Mysore were made applicable to the Civil Station. Nevertheless it was contended that this cannot and does not affect the case and the period of one year within which the suit had to be filed is not enlarged. In support of this it was alleged that the appellant had a vested right to the suit being filed earlier and the remedy to the plaintiff provided for by law must be deemed to have been lost on account of the delay. As already mentioned, when the Act came into force the period of one year had not elapsed, and so the right, if any, to the defendant was only prospective and contingent, not vested. If the interval between the date of the order on the claim petition and Act 57 of 1948 was more than a year and the suit was not filed within a year, the position may have been different. Moreover, alteration of time within which proceedings are to be instituted is held to be procedural and may operate retrospectively. In - Rex v. ChandraDharma, (1905) 2 KB 335 at p.338 (G), Lord Alverstone, C.J., observed: "The rule is clearly established that apart from any special circumstances appearing on the face of the statute in question, statutes which make alterations in procedure are retrospective. It has been held that a Statute shortening time within which proceedings can be taken is retrospective and it seems to me that it is impossible to give any good reason why a statute extending the time within which proceedings may be taken should not also be held to be retrospective." Channel, J., also stated "an alteration of the time within which they may be prosecuted whether by extension or diminution was a matter of procedure only." There is a difference between a case in which the normal period of limitation for a suit is extended before the normal period has run out and a case in which the period is extended after the claim is barred by time ordinarily allowed. This case is of the former class and does not suffer from the bar of limitation. The suit was rightly decreed. The appeal is dismissed with costs. Advocates fee Rs.50/-. Appeal dismissed. AIR 1955 MYSORE 128 (V. 42 C. 49 Nov.) "Chikkananjundappa v. Pillanna" MYSORE HIGH COURT Coram : 1 HOMBE GOWDA, J. ( Single Bench ) M. C. Chikkananjundappa, Petitioner v. D. K. Pillanna and others, Respondents. Civil Revn. Petn. No.428 of 1954, D/- 9 -8 -1955, against order of First Addl. Dist. J., Bangalore, D/- 30 -6 -1954. (A) Civil P.C. (5 of 1908), O.33, R.1 - FORMA PAUPERISM - Application under, if maintainable during pendency of proceedings. Where an objection having been taken to an application for grant of probate on the ground that the applicants are bound to pay court-fee on the value of the trust properties, of which they are not in possession, before they can pray for grant of a probate, the Court directs the applicants to pay the court-fee and thereupon they make an application under O.33, R.1, the Court is justified in permitting them to continue the proceedings in forma pauperis, even if the application is made during the pendency of the proceeding. (Para 3) Anno: AIR Com. C.P.C., O.33, R.1 N.2 Pt.1. (B) Civil P.C. (5 of 1908), O.33, R.1, Expln. - FORMA PAUPERISM - PROBATE - GENERAL CLAUSES - Person - Executors seeking for issue of probate. General Clauses Act (10 of 1897), S.3(39). The term person includes a judicial person. Therefore executors or trustees who seek for issue of a probate satisfy the conception of the term person and are entitled to make an application for being permitted to sue in forma pauperis or continue the proceedings already instituted by them in forma pauperis. AIR 1937 Mad. 549 (FB), Rel. on. (Para 4) Anno: AIR Com. C.P.C., O.33, R.1 N.11; AIR Man. General Clauses Act, S.3, N.20. (C) Civil P.C. (5 of 1908), O.33, R.1 - FORMA PAUPERISM - Trustees possessed of sufficient means of their own - Whether can be allowed to sue in forma pauperis. The capacity of a person suing in a representative character must be kept distinct from his personal capacity. Therefore, even though the trustees are possessed of sufficient means of their own to enable them to pay the court-fee, they can be permitted to sue in forma pauperis if they are not in possession of any of the properties belonging to the trust: AIR 1927 Cal 309, Rel. on. (Para 5) Anno: AIR Com. C.P.C., O.33, R.1 N.11. Cases Referred : Chronological Paras (A) (84) 8 Bom 615 3 (B) (V20) AIR 1933 Cal 238 : 141 Ind Cas 135 (C) (V24) AIR 1937 Mad 549 : ILR (1937) Mad 784 (FB) 3 (D) (1880) 5 A C 857 : 49 L J Q B 736 4 (E) (V5) AIR 1918 Mad 362 : 41 Mad 624 4 (F) (V14) AIR 1927 Cal 309 : 100 Ind Cas 264 5 C. Nagaraja Rao, for Petitioner; D. Shama Rao (for Nos.1 to 4) and C. Narasinga Rao (for No.5), for Respondents. Judgement ORDER.:- This revision petition is directed against an order passed by the First Additional District Judge, Bangalore, in Misc. Case No.106 of 1953 on his file permitting the respondents to continue the proceedings in this case in forma pauperis.

2. The respondents prayed for grant of a probate of the will and codicil alleged to have been executed by S.M. Nanjundappa who died on 22-9-1948 in Misc. Case No.106 of 1953 on the file of the First Additional District Judge, Bangalore. The present petitioner who was one of the respondents in the Court below resisted the application and contended that the respondents were bound to pay the court-fee on the value of the trust properties before they could pray for grant of a probate in the case. The learned District Judge directed the respondents to pay the court-fee. The respondents then made an application under O.33, R.1, Civil P.C., for permission to continue the proceedings in forma pauperis. They alleged in their petition that they were not possessed of any property of the trust with them and that since all the trust properties were in the possession of the present petitioner they were not in a position to raise any money on the security of those properties and as such they were entitled to be permitted to sue or continue the proceedings in forma pauperis. The present petitioner opposed the application and contended that the application under O.33, R.1, Civil P.C., had not been validly presented. He also contended that since the respondents were possessed of immoveable properties of their own, they were not entitled to sue in forma pauperis. The learned District Judge held that the application filed by the respondents was valid and that they were entitled to sue in forma pauperis in spite of the fact that they possessed properties of their own since they were not in possession of any properties belonging to the trust to enable them to raise moneys to pay the court-fee. It is against this order that the present revision petition has been filed by the petitioner.

3. Three points were raised by Sri Nagaraja Rao, the learned Advocate for the petitioner (1) an application filed by the respondents under O.33, R.1, Civil P.C., during the pendency of the proceedings was not maintainable, (2) O.33, R.1, Civil P.C. is not applicable to the case and (3) since the respondents were possessed of properties of their own which were sufficient to enable them to pay the court-fee levied, they should not have been permitted to sue in forma pauperis. There is no substance in any of these three contentions. Order 33, R.1, Civil P.C. reads thus: "Subject to the following provisions, any suit may be instituted by a pauper. Explanation: A person is a pauper when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed when he is not entitled to property worth one hundred rupees other than his necessary wearing, apparel and the subject-matter of the suit." A suit instituted in the ordinary way may be allowed to be continued in forma pauperis - (Vide Revji Patil v. Sakharam, 8 Bom 615 (A) and - Surendra Chandra v. Showdamini Roy, AIR 1933 Cal 238 (B)). Merely because the respondents had filed an application for grant of a probate after paying, the court-fee on the petition it is not correct to contend that they had no right to continue the proceedings in forma pauperis and were bound to pay the additional court-fee. It is only after the present petitioner resisted the claim and contended amongst other things that the respondents had no right to seek for the issue of a probate without paying the court-fee that the Court directed the respondents to pay the court-fee calculated on the market value of the trust properties. The respondents who admittedly were not in possession of any of the trust properties then made an application under O.33, R.1, Civil P.C. praying for permission of the Court to continue the proceedings in forma pauperis. It is not the case of the petitioner that the respondents were or are in possession of any of the properties of the trust to enable them to raise money on the security of those properties. There is, therefore, no force in the contention of the learned Counsel for the petitioner that the learned District Judge was not justified in permitting the respondents to continue the proceedings of the case in forma pauperis because they made their application during the pendency of the proceedings.

4. The next contention raised is that the application filed by the respondents under O.33, R.1, Civil P.C., was not maintainable since the respondents were possessed of the properties of their own which were sufficient to enable then to pay the necessary court-fee. The question for consideration is whether the respondents who are the executors or trustees and who sought for issue of a probate of the will and codicil by S.M. Nanjundappa can institute proceedings as paupers for the recovery of the estate of the deceased testator. The decision on this point turns upon the construction of O.33, R.1, Civil P.C., extracted above and whether the trustees or executors come within the definition of the person within the meaning of the Explanation to O.33, R.1, Civil P.C. The term person has not been defined in the Code of Civil Procedure but the same has been defined in the General Clauses Act as to include any company or association or body of individuals, whether incorporated or not. It is clear from the said definition that the term person would include both natural and legal persons. There cannot be any doubt that the term person includes a juridical person. The fact as to whether the term person includes a juridical person, like Official Receiver or executor or trustee was the subject-matter of a Full Bench decision in a case reported in Swaminathan v. Official Receiver, Ramnad, AIR 1937 Mad 549 (FB) (C). Venkataramana Rao, J., who delivered the judgment held that an Official Receiver satisfied the conception of a person as defined under O.33, R.1, Civil P.C., and that he being the trustee was entitled to maintain his suit in forma pauperis. His Lordship observed thus: "As Lord Selborne pointed out in Pharmaceutical Society v. London and Provincial Supply Association, (1880) 5 A C 857 (D) at page 861: There can be no question that the word person may and....prima facie does, in a public statute, include a person in law; that is, a corporation, as well as a natural person. But although that is a sense which the word will bear in law, and which, as I said, perhaps ought to be attributed to it in the construction of a statute unless there should be any reason for a contrary construction, it is never to be forgotten, that in its popular sense and ordinary use it does not extend so far. The same view was taken by Lord Blackburn at pages 868 and 869. Unless therefore the context and the object of the enactment requires otherwise, person in Order 33, R. 1, Civil P.C., should have the extended meaning given to it in law. Under O.33, R.1 any suit may be instituted by a pauper, that is the intended plaintiff in a suit can be a pauper. Suits under the Code of Civil Procedure can be instituted not only by natural human beings but also by artificial persons such as a corporation or an idol and also by persons like executors, administrators, trustees and Official Receivers who represent the estate of another. Prima facie, therefore, having regard to the scheme of the Code, the context and object of the enactment would not exclude an Official Receiver from the category of persons within the meaning of the said rule." It is clear from the above that the respondents satisfied the conception of the term person and were entitled to make an application for being permitted to sue in forma pauperis or continue the proceedings already instituted by them in forma pauperis. There is also no substance in the contention of the learned advocate for the petitioner that because there is a reference to necessary wearing apparel in the explanation referred to above and the necessity of the presentation of the application by the applicant in person it can only contemplate a natural person and not a juridical person. In the very same Madras Full Bench decision referred to above this point has also been answered against the contention of the present petitioners. Venkataramana Rao, J., has observed thus: "We think this contention is sufficiently met by the observations of Kumaraswamy Sastri, J., in Perumal Goundan v. Thirumalrayapuram Jananukoola Dhanasekhara Sanka Nidhi Ltd., AIR 1918 Mad 362 (E). Dealing with the argument with reference to the wearing apparel he observed thus: The explanation simply allows deduction of the value of the wearing apparel and can only mean that if the applicant has necessary wearing apparel he can deduct its value. We do not think it can be construed to mean that only persons who in law can possess wearing apparel can sue as paupers." With regard to the physical presence of the applicant and his examination contemplated in the Code, the learned Judge observed: "Rule 3, Order 33, Civil P.C., in our opinion only prohibits a pauper who is competent in law to appear in person from taking advantage of R.1 of O.3, Civil P.C. and appearing by a pleader or recognised agent instead of being present personally. It does not cover cases where from the nature of the case physical presence is impossible or where the law owing to any disability directs that all acts required by the Code should be performed by a next friend."

5. The next contention raised by the learned Counsel for the petitioner is that since the respondents were possessed of sufficient means of their own to enable them to pay the court-fee the learned District Judge was not correct in permitting them to sue in forma pauperis merely on the ground that they were not in possession of any of the properties belonging to the trust. It was laid down in a case reported in - Mabiakhatun v. Satkari, AIR 1927 Cal. 309 (F) that the capacity of a person suing in a representative character must be kept distinct from his personal capacity and that a mutawalli, trustee or a shebait can be allowed to sue in forma pauperis. It was observed: "that the test is not whether a person is the legal owner but whether as legal owner he is a pauper or not. If the principle of law is that a natural person in his own right is a different person when he is representing the estate of another, the test is whether in that representative character and as owner of that estate he is a pauper within the meaning of the explanation to O.33, R.1, Civil P.C." It is thus clear that there is no substance in any of the contentions raised by the learned Counsel for the petitioners and that the order passed by the learned District Judge permitting the respondents to continue the proceedings in forma pauperis is correct. This revision petition is therefore liable to be dismissed.

6. In the result, therefore, this revision petition fails and the same is dismissed with costs. Revision dismissed. AIR 1955 MYSORE 129 (V. 42 C. 50 Nov.) "Khivaraj v. State of Mysore" MYSORE HIGH COURT Coram : 1 K. N. PADMANABHIAH, J. ( Single Bench ) M. Khivaraj, Petitioner v. State of Mysore, Complainant, Respondent. Criminal Revn. Petn. No.75 of 1955, D/- 16 -8 -1955, against order of Special First Class Magistrate, Kolar Gold Fields, in C.C. No.1032 of 1955. (A) Criminal P.C. (5 of 1898), S.253, S.254 - WARRANT CASE - DISCHARGE - When charge to be framed. The stage at which a charge is to be framed is when the offence appears to have been proved against an accused. It the evidence adduced in the case does not make out a prima facie case against the accused then the Court should not frame a charge against him. In such a case, what the Court has to do is simply to discharge the accused in a warrant case or acquit him in a summons case. (Para 4) Anno : AIR Com., Cr.P.C., S.253 N.4; S.254 N.4. (B) Criminal P.C. (5 of 1898), S.342 - EXAMINATION OF ACCUSED - When questions should be put. When the evidence does not disclose a prima facie case against an accused, his examination under S.342, Cr.P.C. is not only unnecessary but also illegal: 7 Mys L J 246 and AIR 1916 Mad 407, Rel. on. (Para 4) Anno : AIR Com., Cr.P.C., S.342 N.9. (C) Criminal P.C. (5 of 1898), S.255 - WARRANT CASE - DISCHARGE - PLEA - Recording of plea of guilty. As a rule, the plea of guilty made by an accused should be recorded as nearly as possible in the very words used by him. A record of what exactly the accused said is essential to enable the appellate Court or the Court of revision to determine whether what the accused said really amounts to an admission of guilt and whether the lower Court understood the plea of the accused correctly, because in order that a conviction on the plea of an accused may be sustained it is necessary that he should admit in his plea all the elements of the offence. The irregularity vitiates the trial. (Para 5) Anno : AIR Com., Cr.P.C., S.255 N.9. (D) Criminal P.C. (5 of 1898), S.262 - WARRANT CASE - SUMMONS CASE - Warrant case tried as summons case. Where in a warrant case tried summarily the Magistrate had adopted a procedure prescribed for summons cases the procedure, being illegal, vitiates the entire trial. (Para 3) Anno : AIR Com., Cr.P.C., S.262 N.2. Cases Referred : Chronological Paras (A) (29) 7 Mys L J 246 4 (B) (V3) AIR 1916 Mad 407 : 39 Mad 770 : 16 Cri L J 623 4 S. Vasupala Rao, for Petitioner; Advocate-General, for Respondent. Judgement ORDER:-This is a revision petition preferred by the petitioner-accused against the judgment of the learned Special First Class Magistrate, Kolar Gold Fields, in C.C. No.1032/55, convicting him of an offence under S.411, I.P.C. and sentencing him to pay a fine of Rs.25 and in default to undergo rigorous imprisonment for seven days.

2. The case for the prosecution was that the accused was on 11-9-54 found with a silver sport cup valued at Rs.20 knowing or having reason to believe the same to be stolen property and that he thereby committed an offence under S.411, I.P.C. The accused is said to have pleaded guilty which resulted in the conviction and sentence referred to above. It is against that decision that this revision petition is filed.

3. It appears to me that the proceedings in the lower Court are attended with serious irregularities. It was contended by the learned counsel for the petitioner that the procedure laid down in S.262, Cr.P.C. has not been followed and that it has resulted in prejudice to the accused. There seems to be considerable force in this contention. Section 262 Cr.P.C. inter alia lays down that in trials under Chap. XXII the procedure prescribed for summons cases shall be followed in summons cases and that prescribed for warrant cases shall be followed for warrant cases except as thereinafter mentioned. The offence for which the petitioner has been convicted is one under S.411, I.P.C. which is triable as a warrant ease. The contention strenously put forward by the learned counsel for the petitioner is that the procedure laid down in respect of warrant cases has not been followed in the present case, that no witnesses were examined for the prosecution, that the learned Magistrate recorded the plea of the accused immediately he appeared before Court as in a summons case and that he proceeded to convict the petitioner on the strength of the said plea. These allegations are borne out by the copy of the judgment granted to the petitioner by the lower Court. The judgment in the case was pronounced on 9-3-55, and two days later, viz., on 11-3-55 the copy of judgment produced by the petitioner has been granted to him. In this copy, no reference is made to the examination of any witness and it looks as if the plea of guilty was recorded as soon as the petitioner appeared before Court. It is also clear there from that the learned Magistrate has adopted a procedure which is prescribed for summons cases to a case which ought to have been tried as a warrant case. It is rather significant to note that the original judgment written by the Magistrate himself does not tally with the ceritfied copy of the judgment granted to the petitioner. No doubt, in the original judgment it looks as though the procedure prescribed for warrant cases has been adopted. As to how and why this discrepancy between the original judgment and the copy thereof has arisen is difficult to understand. Anyway, this much is clear that the copy of the judgment granted to the petitioner fully supports the contentions put forward by him. I am of opinion that the procedure adopted by the learned Magistrate is illegal and that it vitiates the entire trial.

4. Even if we were to accept the suggestion as supported by the original judgment in the case that the procedure prescribed for warrant cases has been followed, then also the conviction cannot stand. It need hardly be stated that the stage at which a charge is to be framed is when the offence appears to have proved against an accused. If evidence adduced on the side of the prosecution does not give rise to any presumption that the accused has committed an offence or, in other words, when the evidence adduced in the case does not make out a prima facie case against the accused, then the Court should not frame a charge against him. In such a case, what the Court has to do is simply to discharge the accused in a warrant case or acquit him in a summons case. When the evidence does not disclose a prima facie case against an accused, his examination under S.342, Criminal P.C., is not only unnecessary but also illegal. The object of S.342 is to enable the Court to ascertain from the accused what explanation he may have or desire to give regarding any fact stated by a witness or any circumstance appearing against him. If there is no incriminating evidence or circumstance which the accused has to explain, then the examination under S.342, Criminal P.C., becomes unnecessary and it would be improper to question the accused under those circumstances unless the object be to trap him into some admission or to supplement the case for the prosecution or to fill up the gaps in the prosecution evidence, which is not at all, in my opinion, the object of the provisions of S.342, Criminal P.C. In this connection, I would like to refer to two cases, one of this Court and another of the Madras High Court. In the case reported in 7 Mys L J 246 (A), it is held that an accused should not be examined under S.342, Criminal P.C., when there is nothing in the evidence which requires an explanation from him, and that any statement recorded would be inadmissible. The same view is taken in the case reported in In re, Abibulla Rowthen AIR 1916 Mad 407 (B).

5. Reliance is placed by the learned Magistrate on the evidence of P.W.1, the only witness alleged to have been examined for the prosecution. He has sworn to the registration of the case and the recovery of the property. We have no evidence to show that there was theft of M.O.1 and that the accused had it knowing or having reason to believe that the same was a stolen property. The accused appears to be a bona fide pawn broker, and the dishonest intention contemplated in S.411, I.P.C. and the other ingredients referred to therein have not been proved. Further, except the note in the judgment that the accused has pleaded guilty we have no materials to know what the accused exactly said which convinced the Magistrate as a plea of guilty. As a rule, the plea of guilty made by an accused should be recorded as nearly as possible in the very words used by him. In this case, nowhere do we find as to exactly what the accused said in his plea which is construed by the learned Magistrate as a plea of guilty. Such a record is essential to enable the appellate Court or the Court of Revision to determine whether what the accused said really amounts to an admission of guilt and whether the lower Court understood the plea of the accused correctly, because in order that a conviction on the plea of an accused may be sustained it is necessary that he should admit in his plea all the elements of the offence. This is another irregularity which, in my opinion, vitiates the trial. In any view of the case, I am of opinion that the conviction of the petitioner cannot be sustained.

6. In the result, the conviction of the petitioner and the sentence passed on him are set aside and this revision petition is allowed. The fine, if already recovered, shall be refunded to the petitioner. Revision allowed. AIR 1955 MYSORE 131 (V. 42, C. 51 Nov.) "Katappa v. Serappa" MYSORE HIGH COURT Coram : 1 GOWDA, J. ( Single Bench ) Katappa and others, Accused-Petitioners v. Serappa Sakalathi Rangappa and another, Complainants-Respondents. Criminal Revn. Petn. No.36 of 1955, D/- 22 -8 -1955, against order of Second (First Class) Magistrate, Chitaldrug, in C.C. No.710 of 1954. Criminal P.C. (5 of 1898), S.239B - INSPECTION - Local inspection - Use. A Magistrate is no doubt entitled to inspect any premises after the entire evidence in the case is adduced, to clear any doubt that is created in his mind about the situation of the premises or for purposes of appreciating the evidence but has no right to entirely create evidence and to introduce it into the case for the purpose of finding persons accused of the offence guilty: Case law discussed. (Para 3) Anno : AIR Com. Cr.P.C., S.539B, N.5, 6. Cases Referred : Chronological Paras (A) (V16) AIR 1929 Pat 160 : 30 Cri L J 652 4 (B) (V10) AIR 1923 Pat 366 : 24 Cri L J 487 4 (C) (V38) AIR 1951 Vind-P 1 4 (D) (50) 54 Cal W N 186 : 85 Cal L J 100 4 B.T. Parthasarathy for Petitioners. Judgement ORDER:- This revision petition is directed against the judgment of the First Class Magistrate, Chitaldrug in C.C. No.710/54 on his file convicting the petitioners for offences punishable under Ss.427 and 447, Penal Code and sentencing each of them to pay a fine of Rs.5/- on each of the counts and in default of payment of fine to suffer S.I. for 15 days.

2. The respondents filed a private complaint against the present petitioners on 19-5-1954 alleging that they had unauthorisedly trespassed into the two sites that they had purchased from Manangi Rangappa and had removed the fencing that had been put up and had further constructed five sheds and as such were liable to answer charges for offences under Ss.427 and 447, Penal Code. The learned Magistrate, who recorded the sworn statements of the respondents, registered a case against the petitioners for offences under Ss.427 and 447, Penal Code. After recording the evidence of the petitioners and three other witnesses examined on their behalf, the learned Magistrate framed two separate charges lor the said offences against all the petitioners. The petitioners pleaded not guilty to the charges that were read over and explained to them. After framing the charges and before permitting further cross examination of the prosecution witnesses, the learned Magistrate inspected the premises on 11-12-1954. The petitioners did not examine any defence witnesses on their behalf. The learned Magistrate ultimately held that the present petitioners had trespassed into the sites in dispute and had unauthorisedly constructed five sheds in which they were living and thus were guilty of the two charges levelled against them and convicted and sentenced them as above said. It is against this decision that the present petition has been filed by the petitioners.

3. It was contended by the learned Advocate for the petitioners that the learned Magistrate was not justified in assuming the jurisdiction of a civil Court and proceeding to decide a dispute relating to the ownership and possession of the sites in question. He further contended that the learned Magistrate had no material on record to hold that the petitioners had removed any fencing put up by the respondents and had thereby committed mischief causing damage to the extent of more than Rs.100 to the sites of P.Ws.1 and 2 so as to make them liable for an offence under S.427, Indian Penal Code. It was also urged that the learned Magistrate was not justified in inspecting the premises in dispute suo motu and forming an opinion about the age of the sheds put up on the sites and relying upon the same to come to the conclusion that the petitioners must have constructed those sheds within 12 months prior to the date of the inspection, when the respondents had not adduced any evidence worth the name to substantiate their contention that the sheds were put up by the petitioners on or subsequent to 19-4-54. There is considerable force in all these objections raised by the learned counsel for the petitioners. The respondents who were examined as P.Ws.1 and 2 have not said a word about the value of the fencing that was alleged to have been removed by the petitioners. There was absolutely no data for the learned Magistrate to hold that the cost of the fencing was more than Rs.100 and that the petitioners committed mischief in removing or damaging the said fencing and as such were liable for an offence under S.427, Indian Penal Code. Similarly there was absolutely no evidence adduced by the respondents to prove that Rangappa, the previous owner, had delivered possession of the two sites in dispute to them and that they were in possession of them on 19-4-1954, on which date the petitioners were alleged to have trespassed into them. For reasons best known to them, the respondents did not care to examine Rangappa to prove that he had delivered possession of the sites to them. The evidence of P.Ws.3 and 4 does not threw any light about the actual possession of the sites by the respondents and the alleged trespass committed by the petitioners on 19-4-54. It is obviously to overcome this lacuna in the evidence and to ascertain as to whether there was any truth in the assertion of the petitioners that they were in actual possession of the sites for a pretty long time and that they had put up the sheds long prior to the date of the alleged incident, that the learned Magistrate thought fit to inspect the premises. The evidence adduced by the respondents clearly indicated that the matter in dispute between the petitioners and the respondents about the possession of the sites in question was entirely of a civil nature and that respondents 1 and 2 had taken recourse to the criminal Court as a short cut to get possession of the sites instead of agitating the matter in a proper civil Court and obtaining possession from the petitioners. The learned Magistrate, in my opinion, was not justified in acting on the interested, unreliable and hopelessly discrepant evidence of the respondents witnesses and holding that the petitioners actually trespassed into the sites on 19-4-1954 and constructed the sheds on or subsequent to that date. The only important data that was available for the learned Magistrate to hold that the petitioners must have trespassed into the sites subsequent to or somewhere near about 19-4-54 was the observation that he made from the local inspection. The learned Magistrate has entirely acted upon his observations and as a matter of fact incorporated his observations and opinion in his judgment and entirely relied upon to hold that the sheds put up by the petitioners were of recent origin and as such there was no force in the contention of the petitioners that they were living in those sheds from a long time prior to the date of the alleged incident. The learned Magistrate, in my opinion, was not justified in incorporating his opinion based on the observations he made at the time of the local inspection and relying upon those observations to hold that the petitioners must have trespassed into the sites recently or at any rate just subsequent to 19-4-1954. A Magistrate is no doubt entitled to inspect any premises after the entire evidence in the case is adduced to clear any doubt that is created in his mind about the situation of the premises or for purposes of appreciating the evidence but has no right to entirely create evidence and to introduce it into the case for the purpose of finding persons accused of the offence guilty.

4. In - Haldhar Thakur v. Emperor, A I R 1929 Pat 160 (A), it was held that where a Magistrate went to make local inspection in order to be able to appreciate evidence, but, in fact, created evidence and introduced it into the case for the purpose of his decision, he went beyond his jurisdiction in making the local inspection. His Lordship Wort, J., in the said decision dealing with the jurisdiction of the Magistrate to inspect the disputed place has observed as follows: "The main question which is argued before this Court in revision is that the learned trial Magistrate went to the spot for the purpose of inspecting and for the purpose of appreciating the evidence but in the result he went beyond his jurisdiction inasmuch as he introduced his own evidence, if it may be so described, into the case. It is quite clear from the judgment as well as from the report of the local inspection that he measured up the plots and came to a certain and definite conclusion as to whether the bamboos, the subject-matter of the dispute, were on plot 254 as it is alleged by the prosecution or on plot 1199 as alleged by the defence. I have carefully considered this judgment and am forced to the conclusion which I regret that the learned Magistrate did go beyond his jurisdiction in making this local inspection. It is almost impossible for this Court to lay down the line of demarcation between the exercise of his jurisdiction under S.556 of the Code and what appears to have taken place in this case....It seems to me to be abundantly clear that on what actually took place, there is no doubt that the learned trial Magistrate quite bona fide did create evidence and introduce it into the case for the purpose of his decision." In - Abdul Hamid v. Hasan Raza, AIR 1923 Pat 366 (B), dealing with a similar question relating to the use of the materials gathered at the spot inspection by a Magistrate, it was observed as follows: "The third objection taken by the learned Vakil for the petitioner is that in deciding the case the learned Magistrate has relied upon the result of his own local inspection and not upon the evidence on the record. This objection appears to be of substance and ought to be allowed. On a reference to the judgment of the learned Deputy Magistrate it is quite evident that his finding is based upon the results of his own local inspection. It is salutary principle of law that the finding of a Court must be based upon evidence duly recorded by it and not upon the impression formed by the Judge on a local inspection of the locality. He can in order to elucidate the evidence make a local inspection and the object of a local enquiry would be only with a view to understand the evidence actually adduced in the case." To the same effect are the observations in a decision reported in - Dwarika Prasad v. Ram Nath Modi, AIR 1951 Vind P 1 (C). His Lordship Krishnan, J.C., has observed at para. 10 of his judgment as follows: "There is one more point also. The learned Magistrate has held a local inspection under S.539B. This section is so widely framed as to justify a local inspection at any stage, before framing charge or as for that matter even before recording the evidence. The only purpose of local inspection being to properly appreciate the evidence given at the trial it is only reasonable that the local inspection should as a rule come after all the evidence is recorded. The obscurity, if any, in the earlier stages of the hearing may clear as more evidence is recorded, so the Court should not be hasty unless there are some very exceptional grounds. As more evidence is recorded there may be fresh aspects of the problem, which a local inspection may help in proper appreciation. Obviously, it is neither proper nor practicable for the Court to be holding repeated local inspections at every stage of the case. Thus unless in the exceptional circumstances, no local inspection should be made till alter all the evidence is recorded....Even that should be resorted to very sparingly, the Court taking special precautions to prevent itself becoming a witness unconsciously. On some occasions it is practically impossible for the Court to make a local inspection and not import new materials collected by it. The moment the Court collects new material it becomes a witness and as it cannot cross-examine itself it cannot try the case." Reference also may be made to a decision reported in Kunia Lal v. The King, 54 Cal WN 186 (D) wherein His Lordship Harries, C.J., dealing with the rights of a Magistrate to view a locality to enable him to appreciate the evidence has observed thus: "The learned Magistrate viewed the property in question some seven months after this occurrence. A Judge or a Magistrate may view a locality to enable him to appreciate the evidence. But he can decide nothing as a result of what he himself sees. In short what he himself sees is not evidence in the case and for a very good reason the Judge or Magistrate cannot be cross-examined. The Judge or Magistrate, however, can visit a place in order to appreciate the evidence which has been given. The learned Magistrate in this case noticed certain features, the sprouting of trees and the existence of some platform from which he made certain deductions. He is not entitled to make any deductions whatsoever from what he himself sees and which were not referred to by any other witness." It is thus clear from the above review of the several decisions cited above that the learned Magistrate was not justified in incorporating his observations and relying upon them to hold that the sheds put up by the petitioners were of a recent origin and as such there was no truth in their version that they were in occupation of these sheds long prior to the date of the alleged incident. The convictions of the petitioners based mainly on these observations of the Magistrate, cannot, therefore, be supported and are liable to be set aside.

5. In the result, therefore, this revision petition is allowed. The convictions and sentences passed against the petitioners are set aside. The fine amounts, if any paid by the petitioners, will be refunded to them. Revision allowed. AIR 1955 MYSORE 133 (V. 42, C. 52 Nov.) "Devaralinga v. Puttaswamy" MYSORE HIGH COURT Coram : 1 VENKATARAMAIYA, C.J. ( Single Bench ) Devaralinga Gowda and another, Appellants v. Puttaswamy Gowda and others, Respondents. Second Appeal No.212 of 1953, D/- 27 -7 -1955, against decree of Dist. Judge, Civil Station, Bangalore, D/- 4 -3 -1953. (A) Limitation Act (9 of 1908), S.3 - LIMITATION - Omission to apply for relief within time - Effect. One of the conditions necessary to be satisfied by a party who seeks relief is that he should apply for it within the time prescribed by law and the omission to do so gives the party from whom the relief is claimed a vested right not to be called upon to answer the claim. (Para 4) Anno.: AIR Corn. Lim. Act, S.3, N.2. (B) Limitation Act (9 of 1908), S.5 - LIMITATION - Discretion to excuse delay - Exercise of - Sufficient cause. Though the Court has a discretion under the Limitation Act to excuse delay in the initiation of certain proceedings, the discretion cannot be exercised arbitrarily or lightly in favour of a party unless he shows good or sufficient cause for it. What is sufficient cause depends on the particular facts of each case and cannot be defined for general application. (Para 4) Anno.: AIR Com. Lim. Act, S.5, N.2 and 6, Pt. 7. (C) Limitation Act (9 of 1908), S.5 - LIMITATION - Minority, if sufficient cause. When the delay affects the minors the penalty imposed is vicarious as the person in default is not the sufferer but the consequence of default is inflicted on the minors. For this reason Courts are less rigid in enforcing the bar of limitation and somewhat liberal in exercising power to condone delay when interests of minors are involved. This does not mean that such cases are exempt from the operation of law of limitation but does indicate the need to make a difference in considering delay which affects minors and adults. The principle is applicable to proceedings not merely relating to a suit but also to an appeal as well. (Para 5) Cases Referred : Chronological Paras (A) (V3) AIR 1916 Bom. 153 : 41 Bom. 15 3 (B) (1859-61) 8 Moo Ind App 160 : 3 Suth W R 36(PC) 5 (C) (37) 42 Mys H C R 91 5 A.R. Somanath Iyer, for Appellants; M. Ramaswamy, for Respondents (Nos.1 to 4). Judgement

2. The reason alleged for the delay is that she is an ignorant and illiterate woman, that she was depending upon Rame Gowdas father for the conduct of the litigation, that the father-in-law fell ill and owing to the illness the appeal could not be filed in time. She and her father-in-law both filed affidavits in support of this and a medical certificate was produced. Both have given evidence. The explanation offered has been disbelieved and found to be unsatisfactory with the result the application for the delay being excused and the appeal are both dismissed.

3. Sri Somanath Iyer learned counsel for appellants argued that considerations which ordinarily apply to laches of adults cannot be pressed against minors, that the dilatoriness of the guardian should be viewed with sympathy and indulgence as she is an illiterate woman, the heavy court-fee paid for the appeal is prima facie proof of her bona fides and earnestness and that having regard to the value of the property involved, the appeal should at least on terms be heard and decided. Sri Ramaswamy learned counsel for the respondent-plaintiffs objected to this on the ground that the right vested in respondents by the bar of limitation should not be taken away, that the order against the appellants is one passed in the exercise of discretion not liable to be interfered with, that the delay is enormous and not accounted for. In addition, he urged that the paternal uncles of the minors interested in the property have not challenged the decree of the trial Court passed against them and the minors and this is a circumstance against relaxing the rule of limitation normally applied. The case in - Babu Ganesh v. Sitaram Martand, AIR 1916 Bom 153 (A) was relied upon for this. The facts are somewhat different as in that case the two legal representatives who filed the appeal were not both minors. One was a major and besides him another adult was interested in the property. In this case both the appellants are minors and it is not clear whether the adult uncles are interested in the property as they are alleged in the plaint only to be persons cultivating the land.

4. There is no doubt that one of the conditions necessary to be satisfied by a party who seeks relief is that he should apply for it within the time prescribed by law and that the omission to do so gives the party from whom the relief is claimed a vested right not to be called upon to answer the claim. It is also recognised that though the Court has a discretion under the Limitation Act to excuse delay in the initiation of certain proceedings, the discretion cannot be exercised arbitrarily or rightly in favour of a party unless he shows good or sufficient cause for it. What is sufficient cause depends on the particular facts of each case and cannot be defined for general application.

5. It is, however, necessary to bear in mind that when the delay affects the minors the penalty imposed is vicarious as the person in default is not the sufferer but the consequence of default is inflicted on the minors. For this reason Courts are less rigid in enforcing the bar of limitation and somewhat liberal in exercising power to condone delay when interests of minors are involved. This does not mean that such cases are exempt from the operation of law of limitation but does indicate the need to make a difference in considering delay which affects minors and adults. So far back as 1860, the Judicial Committee in Ranee Birjobutty v. Partaub Singh, 8 Moo Ind App 160 (B) emphasised it and this Court has in 42 Mys H C R 91 (C), applied it in proceedings under O.9, Civil P.C. Sri Ramaswamy contended that this view is possible for proceedings relating to a suit and not to an appeal. On principle it is difficult to appreciate the distinction sought to be made between suit and appeal as applications under O.9, Civil P.C., are filed like appeals only after suits are disposed of, the point of dissimilarity being the forum.

6. Apart from this it has to be noticed that the vested right acquired by respondents-plaintiffs as a result of the appeal not being filed within time is liable to be questioned. So the dismissal of the appeal on the score of delay may for the present serve to terminate the litigation but may provide a ground for multiplying it by affording room for starting another suit to the finality of the decision in the suit in respondents favour as being due to the gross negligence of the guardian in not taking timely steps.

7. The explanation put forward for the delay is not quite convincing and this is partly because of the unsatisfactory manner in which the affidavits are drafted. The affidavit of the guardian bears the date 14-10-52 and the same date appears to have been written in the vakalat. There is a recital in the affidavit that the appeal was filed on that date, and representation to the same effect in the trial Court, but as a matter of fact it was filed only on 11-11-1952. The guardian of the minors is an illiterate woman of a village and had to depend on others for making arrangements to file the appeal. A reference to the affidavits suggests that the appeal was ready and intended to be filed much earlier than the day on which these reached the Court. The admission of the appeal does not entail examination of witnesses or anything more than a hearing of counsel on behalf of the parties to decide it on merits. Considering all this and the substantial value of the property involved, I think that the case is one in which the delay may be condoned.

8. The appeal is, therefore, allowed and the order of the lower Court on I.A.I. in the appeal filed there is set aside. The appeal will be heard and disposed of according to law early by the learned District Judge but a sum of Rs.100 as costs irrespective of the ultimate result will be paid to respondents-plaintiffs by appellants or their guardian before the appeal is heard and within the time fixed by the lower Court. Appeal allowed. AIR 1955 MYSORE 134 (Vol. 42, C. 53 Nov.) "State v. Rangappa" MYSORE HIGH COURT Coram : 1 VENKATARAMAIYA, J. ( Single Bench ) State of Mysore v. Rangappa, Accused-Respondent. Criminal Petn. No.115 of 1954, D/- 4 -1 -1955, made by Dist. Magistrate, Chickmagalur, D/- 31 -3 -1954. (A) Criminal P.C. (5 of 1898), S.526 - TRANSFER OF CASE - Trial in Court having no jurisdiction. Under S.526, Criminal P.C., a case may be transferred to the Court having jurisdiction from a Court not having jurisdiction. 39 Mys HCR 907 - AIR 1920 Mad 824 - 2 Bom LR 394, Rel. on. (Para 1) Anno: Criminal P.C., S.526 N.12. (B) Criminal P.C. (5 of 1898), S.531 - CRIMINAL PROCEEDINGS - Proceedings in wrong Court. Section 531, Criminal P.C. states that the proceedings in a wrong Court are not to be treated as invalid unless there is failure of justice. (Para 1) Anno: Criminal P.C., S.531 N.1. Cases Referred : Chronological Paras (A) (1900) 2 Bom LR 394 1 (B) (V7) AIR 1920 Mad 824 : 42 Mad 791 : 20 Cri LJ 484 1 (C) (34) 39 Mys HCR 907 1 Asst. Advocate-General, for the State. Judgement ORDER:- In the charge sheet presented by the Police in C.C. No.53 of 1954 on the file of the First Class Magistrate, Chikmagalur, the accused is Said to have committed offence of theft with respect to a carpet in Tiptur which is admittedly not within the jurisdiction of the Magistrate. Consequently he desired that the case should be transferred to the Court competent to try it. The District Magistrate on being apprised of this has sought for orders of this Court for the case being tried in Chikmagalur itself as the complainant, the accused and the witnesses are all residents of that place and trial of the case there will be conducive to their convenience as well as speedy disposal of the case. The accused though notified, is absent and unrepresented. A doubt was at first felt whether S.526, Criminal P.C. can be availed of when the case was wrongly instituted in a Court and no question of sending the case from one court to another is involved. There are, however, instances in which this is considered to be possible under the said section. In - Queen-Empress v. Atmaram Govind, 2 Bom LR 394 (A) a case was committed to a Court of Session which had no jurisdiction to deal with it and the High Court nevertheless directed that the case may be proceeded within that Court. In re Ganapathy Chetty, AIR 1920 Mad 824 (B) is a similar case. In 39 Mys HCR 907 (C), it has been held by a Bench of this Court that under S.526, Criminal P.C., a case may be transferred to the Court having jurisdiction from a Court not having jurisdiction. Section 531, Criminal P.C. states that the proceedings in a wrong Court are not to be treated as invalid unless there is failure of justice. In the present case, I am satisfied that it will materially contribute to the convenience of the parties and facilitate the expeditious disposal of the case if it is tried in Chikmagalur. I, therefore, direct that the case be tried in the Court where it is now pending. Order accordingly. AIR 1955 MYSORE 135 (V. 42, C.N. 54 Nov.) "Munithayamma v. Muddobalappa" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) Munithayamma and another, Petitioners v. Muddobalappa, Complainant, Respondent. Criminal Revn. Petn. No.370 of 1954, D/- 26 -7 -1955, against order of first Magistrate, Bangalore, D/- 13 -11 -1954. (A) Criminal P.C. (5 of 1898), S.177 - CRIMINAL COURT - DEFAMATION - Offence of defamation - Place of trial. When a plaint in a suit containing defamatory allegations is filed in the Court at X and a copy thereof is delivered to one of the defendants along with the summons at Y, then the complaint of an offence punishable under S.500 can be filed either in the Magistrates Court at X where the defamatory matter was written and published or in the Court of the Magistrate, within whose jurisdiction the said matter was again published. (Para 5) Anno. AIR Com. Cr.P.C., S.177 N.6. (B) Criminal P.C. (5 of 1898), S.435 - REVISION - HIGH COURT - Power of High Court to call for record at any stage. The High Court has got power under S.435 to interfere in a proceeding pending in the Court of a Magistrate at a stage when the Magistrate frames a charge against the accused in order to test the regularity of the proceeding: 3 Mys L J 209; 22 Mys C C 317, Rel. on. (Para 6) Anno: A I R Com. Cr.P.C., S.435 N.12. (C) Penal Code (45 of 1860), S.499, Exception 9 - DEFAMATION - ADVOCATE - Judicial proceeding - Privilege of counsel. Legal Practitioner. A member of the Bar in India has no absolute privilege; the liability of an Advocate charged with defamation in respect of words spoken or written in the performance of his professional duties depends not on the common law of England but on the provisions of the statutory enactment in S.499, Penal Code. (Para 9) However, there is always a presumption in favour of an Advocate of his having acted in good faith and under instructions for defamatory statements uttered or written by him and that no Court should take cognizance of a complaint in such a case against an Advocate. But this is subject to the other condition that there should be no allegation of malice or improper motive on the part of the Advocate in having made the defamatory statements imputed to him. Cr. Rev. Petn. No.260 of 1945-46 (Mys), Foll. (Para 10) Anno: AIR Man. P.C. Ss.499-500 N.12 Pt.29. Cases Referred : Chronological Paras (A) (25) 3 Mys L J 209 6 (B) (17) 22 Mys C C 317 6 (C) (1883) 11 Q B D 588 : 52 L J Q B 726 8 (E) (45-46) Cri Revn Petn No.260 of 1945-46 (Mys) 9 C.B. Srinivasa Rao, for Petitioners; B. Rangaswamy, for Respondent. Judgement ORDER:- This is a Revision Petition filed by the Petitioners - Accused 1 and 2 praying that the charge framed against them under S.500, I.P.C., in C.C., No.2555 of 1953 on the file of the First Magistrate, Bangalore, may be quashed.

2. The petitioners are the accused and the respondent is the complainant in C.C. 2555 of 1953 on the file of the First Magistrate, Bangalore. The accused stand charged for an offence under S.500, I.P.C. The case of the complainant is that in a suit filed by petitioner 1 in O.S.348 of 1953 on the file of the Munsiff, Chickballapur against her brothers and others, she has made and published certain imputations concerning the respondent-complainant, that the said allegations are false and malicious and per se defamatory, that petitioner 2 is the Advocate who appeared for petitioner 1 and drafted the plaint for her, that there is ill will between the accused and the respondent, that the said imputations were made maliciously just to harass the respondent-complainant, that the respondent-complainant is a respectable person and that the petitioners are liable to be punished for an offence under S. 500, Penal Code.

3. From a perusal of the evidence adduced in the case, the learned Magistrate found that a prima facie case was made out against the petitioners and he accordingly framed a charge under S.500, Penal Code. It is against that order this revision petition has been preferred.

4. The contentions urged on the side of the petitioners are that no prima facie case has been made out to warrant a charge being framed, that the charge is groundless, that the learned Magistrate has no jurisdiction to entertain the complaint and that the charge framed and the entire proceedings should be quashed.

5. The main point that arises for consideration is whether there are sufficient materials to allow this revision petition. There is no substance in the contention that the trial Magistrate has no jurisdiction to entertain this complaint, which is one filed under S.500, I.P.C. The Court, within the jurisdiction of which the defamatory matter is published, will be competent to entertain a complaint of this kind. The case of the complainant, as set out already, is that the defamatory matter regarding him has been published by the petitioners in the plaint in O.S. No.348 of 1953 on the file of the Munsiff of Chickballapur. That such a plaint was filed is not disputed. Exhibit P-2 is the original plaint filed in that case and Ex.P-1 is a copy thereof which was meant to be delivered to the defendants in that case. P.W.3 was one of the defendants in that suit. He has sworn that Ex.P-1 was delivered to him when ho was served with summons at Devanahalli. When Ex.P-1, the copy of the plaint, containing defamatory statements, was delivered to P.W.3 at Devanahalli, that constituted publication of the defamatory matter in that place. Admittedly Devanahalli is within the jurisdiction of the First Magistrates Court, Bangalore. The complaint could be filed either in the Magistrates Court at Chickballapur where the defamatory matter was written and published or in the Court of the First Magistrate, Bangalore, within whose jurisdiction the said matter was again published. Therefore I hold that the learned First Magistrate, Bangalore, has jurisdiction to deal with this complaint.

6. Some doubt was expressed as to whether this Court had power to interfere at this stage of the proceedings in a pending case. Under S.435, Criminal P.C., the High Court can call for and examine the record of any proceeding of an inferior Court not only to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order of such Court, but also as to the regularity of any proceedings of that Court. The section does not merely deal with the finding, sentence or order but with proceedings generally and the power of the High Court extends to calling for and examining the record of any proceedings to satisfy itself as to the regularity of such proceedings and for that purpose it had got every power to interfere at any stage of the proceedings in a pending case. That this Court has got such a power has been recognised in two cases of this Court reported in 3 Mys L J 209 (A) and 22 Mys C.C. 317 (B).

7. Coming to the merits of the case, I am of opinion that this revision petition cannot be allowed. That Ex.P-2, the plaint in O.S.348 of 1953, contains defamatory matter cannot be disputed. (Here his Lordship quoted the words contained in the regional language found in Exts.P-2 (a), P-2 (b) and P-2 (c) and observed that they) are, in my opinion, per se defamatory, and in support of these allegations the complainant P.W.1 has sworn. The same is further corroborated by the other evidence in the case. Exhibit P-2 is signed by petitioner 1 as a party and petitioner 2 as her counsel. In view of the allegations made in the complaint petition and the evidence let in support of them, it cannot be said that no prima facie case warranting the framing of a charge has been established.

8. There are two petitioners, of whom the second petitioner is an Advocate, and it was strenuously contended by the learned counsel for the petitioners that petitioner 2 stands on a different footing from that of petitioner 1 and that he is entitled as an Advocate to special protection at the hands of this Court. This leads us to the question as to what extent an Advocate or pleader is liable for defamatory statements made by him in the course of his duties as a counsel. The law in this country in this behalf appears to be different from what it is in England. According to common law, no action in England will lie against an Advocate for defamatory words spoken or written with reference to and in the course of an enquiry though such words are uttered or written by the concerned Advocate maliciously and without any kind of justification for making them. The law in that country in this matter is well settled and, in this connection, the case reported in - Munster v. Lamle, (1883) 11 Q B D 588 (C) may be perused. That decision lays down the principle enunciated above. Thus it is seen that an Advocate in England has an absolute and unqualified privilege; but, as stated already, the law in this country is different to some extent.

9. The views of the various High Courts in India are not uniform. But the preponderant view prevailing in the Indian Union is that a member of the Bar in India has no absolute privilege and that the liability of an Advocate charged with defamation in respect of words spoken or written in the performance of his professional duties depends not on the common law of England but on the provisions of the statutory enactment in S.499, Penal Code. In an unreported case of this Court viz., Cri. Revn. Petn. No.260 of 1945-46 (Mys) (E) Venkata Ranga Iyengar, J., has referred to the view of the several High Courts of the Indian Union in this matter and has, on a consideration of all the decisions, observed as follows: "A review of the decisions referred to above shows that the preponderent view prevailing in British India is that a member of the Bar in India has no absolute privilege, that the liability of an Advocate charged with defamation in respect of words spoken or written in the performance of his professional duty depends not on the common law of England but on the provisions of the statutory enactment in S.499, Penal Code, that, though strictly speaking, under S.105, Evidence Act, the burden of proving that the case falls within the terms of Excepn. 9 to S.499 would normally be upon the person relying on the exception, in practice the Courts have made an exception to that rule of evidence, on grounds of public policy, by holding that an Advocate is entitled to special protection and that, if he is called in question in respect of defamatory statement made by him in the course of his duties as an Advocate, Courts ought to presume that he acted in good faith and upon instructions and that a Magistrate should refuse to take cognizance of a complaint in such a case against an Advocate for defamation, unless there is some allegation in the complaint petition or in the sworn statement of the complainant recorded under S.200, Criminal P.C., of malice, wantonness or improper motive on the part of the Advocate." It is clear from a perusal of the aforesaid decision that this Court has accepted the preponderent view prevailing in the Indian Union as sound and correct. Therefore, the second petitioner cannot claim absolute privilege for the defamatory statements made in the plaint Ex.P-2.

10. No doubt, as observed in the unreported decision of this Court cited above, there is always a presumption in favour of an Advocate of his having acted in good faith and under instructions for defamatory statements uttered or written by him and that no Court should take cognizance of a complaint in such a case against an Advocate. But this is subject to the other condition that there should be no allegation of malice or improper motive on the part of the Advocate in having made the defamatory statements imputed to him. What we have now to see is whether any malice has been attributed to the petitioner 2 by the respondent in respect of the defamatory statement made in Ex. P-2. In para 6 of the complaint petition, it is alleged that the petitioners bear ill will towards the respondent from about a year prior to the date of that petition. This is also sworn to by the complainant in the course of his evidence. The testimony of the other witnesses, P. Ws. 2, 4 and 5, is also to the same effect. Exhibit P-4 is a notice got issued by the respondent-complainant to the petitioners-accused before the complaint was actually filed. Therein also it is specifically alleged that petitioner 2 bears private malice towards the complainant and that the defamatory matter has been written and published wantonly and with a view to undermine his reputation. This notice admittedly stands unreplied. Thus it is seen that the respondent-complainant has imputed strong ill will and malice and improper motive on the part of petitioner 2 in having made the defamatory statements in Ex. P-2. On a consideration of the allegations made in the complaint petition and the evidence adduced in support thereof, I am of opinion that the charge framed against the petitioners is not groundless but that there is prima facie evidence to warrant it. There are limits to the privilege of an Advocate when the person against whom the imputations are made is neither a party nor a witness. The complainant herein was neither a party nor a witness in O.S. No.348 of 1953. I find no reason to interfere with the charge framed against the petitioners.

11. In the result, this revision petition fails and the same stands dismissed. Revision dismissed. (S) AIR 1955 MYSORE 137 (V. 42, C. 55 Dec.) "Venkatasubbiah v. State" MYSORE HIGH COURT Coram : 2 PADMANABHIAH AND HOMBE GOWDA, JJ. ( Division Bench ) A. G. Venkatasubbiah, Petitioner v. State of Mysore by Chief Secretary to Govt. of Mysore, Bangalore, Respondent. Writ Petn. No.12 of 1955, D/- 19 -8 -1955. Constitution of India, Art.311 - TERMINATION OF SERVICE - RETIREMENT - SERVICE MATTERS - Compulsory retirement and removal or dismissal - Distinction - Petitioner compulsorily retired for corruption and misconduct - Right of petitioner to claim pension - Applicability of Art.223, Mysore Service Regulations. Mysore Service Regulations, Art.223. A distinction has to be made between "compulsory retirement" and "removal" or "dismissal". When an officer is removed from service or is dismissed, it always implies that the officer is guilty of some misconduct. There is no such element of imputation in the case of an officer compulsorily retired: AIR 1954 S C 369, Foll. (Para 6) The term retired or compulsorily retired means that the services of an officer have been terminated for reasons other than those mentioned in Art.223, Mysore Service Regulations. Whenever the services of an officer are dispensed with for corruption or other misconduct, the appropriate word to be employed to such a case is "removed" or "removal". (Para 6) Where the order compulsorily retiring the petitioner gives also the reasons for passing that order, they being that he was found corrupt and guilty of misconduct, the petitioner cannot take advantage of the use of an incorrect term as "compulsorily retired" appearing in the order of Government. The substance of the entire order has to be taken into consideration and the nature of the termination of services should be found out. The proper terminology that should have been employed in the case of the petitioner was that he had been removed from service. (Para 6) The case is covered by Art.223, Mysore Service Regulations. According to that Article, an officer removed for misconduct, insolvency or inefficiency is not entitled to any pension. (Para 5) Cases Referred : Chronological Paras (A) (V 41) AIR 1954 S C 369 : 1955 SCR 26 (SC) 6 C. Narasinga Rao, for Petitioner. Judgement PADMANABHIAH, J.:- This is a petition filed by the petitioner under Art.226, Constitution of India, praying for the issue of a Writ of Mandamus or other direction or order quashing the order of the respondent-Government bearing G.O. No.7012-7016/L. R. 345-49-2, dated 20-1-1950, ordering the compulsory retirement of the petitioner or, in the alternative, to sanction the full pension as ordered in G.O. No.2722-26/L. R.118-53-2, dated 26-5-1953.

2. The facts that have given rise to this petition are briefly as under.

3. The petitioner was an Amildar in the State Service. In their Order No. R.7012-7016/L. R.34549-2, dated 20-1-1950, the Government directed the compulsory retirement of the petitioner on the ground that the Officer was found corrupt and guilty of misconduct. They, however, on the representations made by the petitioner directed in their Order No.R.2722-26/L. R.118-53-2, dated 26-5-1953, that the petitioner should be paid his full pension, but the Accountant-General took objection to the grant of pension to the petitioner on the ground that the order offended the provisions of Art.223, Mysore Service Regulations, and observed that the petitioner was only entitled to compassionate allowances as provided therein. Thereupon the Government modified the original order and withdrew, in their Order No. G. 11972-76/L. R. 118-53-4, dated 23-10-1953, the pension previously ordered, and allowed compassionate allowances permissible under Art. 223, Mysore Service Regulations In this petition, the petitioner has prayed for the issue of a writ of mandamus or other direction or order to quash the order of the Respondent Government directing his compulsory retirement or, in the alternative, to restore full pension ordered by the Respondent in the first instance.

4. The main point that arises for consideration is whether there are sufficient grounds to admit this petition. Out of the several grounds urged in the petition only one was canvassed before us, and that is the petitioners right to the full pension as ordered in the first instance by the Respondent-Government. The learned Counsel for the petitioner frankly conceded that he cannot, and would not, question the validity or the correctness of the order compulsorily retiring the petitioner. Therefore we only confine ourselves to the alternative ground urged by the petitioner with respect to his right to pension.

5. So the point that arises for determination is whether the petitioner is entitled to the full pension as ordered previously by the State Government or only to such compassionate allowances as provided under Art.223, Mysore Service Regulation. It appears to us that there is absolutely no merit in this petition. The concluding paragraph of the order of Government directing the compulsory retirement of the petitioner runs thus: "They therefore direct that he be compulsorily retired from service on such pension as is admissible under the Mysore Service Regulations." Thus it is seen that the order otherwise means that the Petitioner will be entitled to such pension a is admissible under the Mysore Service Regulations. Therefore it follows that it the Mysore Service Regulations permit the payment of pension to a person compulsorily retired, then the petitioner will certainly be entitled to such pension. It is clear from a reading of the order and it was also conceded by the learned counsel for the petitioner that he (petitioner) was compusorily retired on charges of corruption and misconduct. Such a case is covered by Art.223 Mysore Service Regulations, which provides that no pension may be granted to an officer removed for misconduct, insolvency or inefficiency, but in cases in which the officer so removed are deserving of special consideration compassionate allowances may be granted provided that the allowance granted to any officer shall not exceed two-thirds of the pension which would have been admissible to him if he had been retired on medical certificate. According to this Article, an officer removed for misconduct, insolvency or inefficiency is not entitled to any pension. Unfortunately, the use of the words "compulsorily retired" appearing in the order of Government dated 20-1-1950 seems to have given much room for the petitioner to agitate this matter before this Court by means of a writ petition.

6. The term retirement or compulsory retirement seems to imply the right of an officer for pension. Termination of service brought about by compulsory retirement appears to be different from termination of service brought about as a result of misconduct on the part of the officer. A distinction has to be made between compulsory retirement and removal or dismissal. When an officer is removed from service or is dismissed, it always implies that the officer is guilty of some misconduct. There is no such element of imputation in the case of an officer compulsorily retired. This is the distinction made between these words by their Lordships of the Sun reme Court in the case reported in Shyamlal v. State of U.P., AIR 1954 SC 369 (A). The term retired or compulsorily retired means that the services of an officer have been terminated for reasons other than those mentioned in Art.223, Mysore Service Regulations. Whenever the services of an officer are dispensed with for corruption or other misconduct, the appropriate word to be employed to such a case is removed or removal. In this case, it is futile to contend that the use of the words compulsorily retired has placed the petitioner in a better position because the very order under which the petitioner is compulsorily retired gives also the reasons for passing that order, they being that he was found corrupt and guilty of misconduct. The petitioner cannot take advantage of the use of an incorrect term as compulsorily retired appearing in the order of Government. The substance of the entire order has to be taken into consideration and the nature of the termination of services should be found out. As observed already, the proper terminology that should have been employed in the case of the petitioner was that he had been removed from service. If the order of Government had merely stated that the petitioner had been compulsorily retired without assigning reasons for such retirement, then there would have been some substance or force in the contention of the petitioner that he was entitled to pension. Under these circumstances, we are of opinion that there are no sufficient grounds to admit this petition.

7. In the result, this petition stands dismissed. Petition dismissed. AIR 1955 MYSORE 138 (V. 42, C. 56 Dec.) "Kariyappa v. Somanna" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA, C.J. AND SREENIVASA RAU, J. ( Division Bench ) Kariyappa and others, Accused-Petitioners v. Somanna, Complainant-Respondent. Criminal Revn. Petn. No.398 of 1954, D/- 16 -8 -1955, against order of Munsiff-Magistrate, Bhadravati, D/- 23 -8 -1954. Constitution of India, Art.20 - DOUBLE JEOPARDY - AFFRAY - HURT - More than one trial - Legality - Test. Criminal P.C. (5 of 1898), S.403. Penal Code (45 of 1860), S.160, S.323. The test for determining the legality of trial of a person more than once is whether the offences for which he is tried are distinct from those for which he was previously tried. The facts necessary to make out an offence of hurt being altogether different from those for affray, the previous trial and conviction u/S.160, Penal Code, are therefore no impediment to a subsequent case under S.323, Penal Code, filed by one of the parties to that affray. 35 Mys HCR (CCR?) 10 - AIR 1936 Mad 353 (FB) - AIR 1928 Cal 240 and AIR 1930 Cal 60 (1), Disting. 7 Mys CCR 131 - 31 Mys CCR 335 - AIR 1940 Mad 224 and AIR 1925 All 299, Rel. on. (Paras 4, 5) Anno: AIR Com.: Const. of India, Art.20 N.4 (j); Cr.P.C., S.403 N.1, 2, 5; AIR Man.: Penal Code, S.323 N.2. Cases Referred : Chronological Paras (A) (02) 7 Mys CCR 131 2 (B) (26) 31 Mys CCR 335 2 (C) (V27) AIR 1940 Mad 224 : 41 Cri LJ 401 2 (D) (30) 35 Mys HCR (CCR?) 10 3 (E) (V23) AIR 1936 Mad 353 : 37 Cri LJ 637 (FB) 3 (F) (V15) AIR 1928 Cal 240 3 (G) (V17) AIR 1930 Cal 60 (1) : 31 Cri LJ 613 3 (H) (V12) AIR 1925 All 299 : 47 All 28 4 Gulur Srinivasa Rao, for Petitioners; B.S. Puttasiddiah, for Respondent. Judgement ORDER:- The question raised in this case is whether the trial of Petitioners for offences alleged by the Respondent in C.C. No.158/1954 on the file of the Munsif-Magistrate, Bhadravati, is barred by virtue of the proceedings in C.C. No.951/53 in the same Court. In the latter case the Petitioners as well as the Respondent were accused of committing affray, an offence under S.160, I.P.C., convicted of the said offence and sentenced to pay a fine of Rs.20/- each. The Respondent now wants the Petitioners to be dealt with according to law for causing him hurt. Objection was taken to this on the ground that the facts relating to both cases are common and the offences alleged though different are those committed in the course of the same transaction. The contention in the lower Court and repeated here by Sri Gular Sreenivasa Rao on behalf of the accused is that provisions of S.403, Criminal P.C. and Art.20 of the Constitution of India operate as a bar to the case being proceeded with. Article 20 states that no person shall be prosecuted and convicted for the same offence more than once; and according to S.403, Criminal P.C.: "A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall.......not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under S.236, or for which he might have been convicted under S.237." The objection was overruled by the learned Magistrate before whom the case is pending and the Petitioners seek revision of this Order.

2. The petition which was posted for hearing before a single Judge at first has been referred to a Division Bench as the point raised is said to be of importance. The offence for the commission of which the Petitioners were convicted being different from that now complained of, Art.20 of the Constitution cannot prima facie be availed of. As regards S.403, Cr.P.C., since it is admitted that the trial in the former case was confined to the offence of affray, the question which needs consideration is whether the Petitioners should have been tried then also for the offences alleged by the Respondent. It is unnecessary to examine the bearing of this factor on the maintainability of the present complaint in view of the decisions of this Court. So far back as 1902 a Division Bench of this Court in 7 Mys CCR 131 (A) laid down that a previous conviction for affray was no bar to a subsequent trial for causing hurt during affray. Following this decision Doreswamy Iyer, J., in 31 Mys CCR 335 (B) observed that offences of affray and hurt are distinct offences and not merely separable offences as that term is explained in S.35, Criminal P.C. The view taken in these two cases is supported by the decision in Thanammal v. Alamelu Ammal, AIR 1940 Mad 224 (C) where it was held that a conviction under S.75 City Police Act was no bar to the trial for offences under Ss.323 and 352, Penal Code.

3. 35 Mys CCR 10 (D) cited by Mr. Gulur Srinivasa Rao is distinguishable as it is based on the consideration that the facts relating to the offence under the Excise Act of which the accused was acquitted wore the same as those relating to offences under the Indian Penal Code. It cannot be said that the requirements for the offence of affray are the same as those for hurt as likelihood of disturbing the public peace is essential for one and harm or injury to an individual for the other. The decision of the Full Bench of the Madras High Court in - Emperor v. John McIner, AIR 1936 Mad 353 (FB) (E) cannot afford help to the Petitioners as it turned upon the facts constituting offences under Ss.420 (cheating) and 406 (misappropriation) being the same. For the same reason - Chaito Kalwar v. Emperor, AIR 1928 Cal 240 (F) and - Kailashpati Upadhya v. Gopi Koeri, AIR 1930 Cal 60 (1)(G) do not help the Petitioners.

4. It may be mentioned that sub-s. (2) of S.403 states: "A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under S.235, sub-s. (1)". Section 235, sub-s. (1) reads thus: "If, in one series of facts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence." The test for determining the legality of the trial of a person more than once is whether the offences for which he is tried are distinct from those for which he was previously tried. As observed by Mukherji, J., in - Emperor v. Ramsukh, AIR 1925 All 299 (H): "It is true there might be a joint trial but that is because it is convenient under the circumstances to have a joint trial. But for the application of the rule of bar we have to see whether the case does not fall within cl. (2) of S.403." The learned Judge held that the conviction for affray is no bar to the trial for the offence of hurt.

5. As already pointed out the facts necessary to make out an offence of hurt are altogether different from those for affray. There is no impediment to the case filed by the Respondent being proceeded with. This petition is therefore dismissed. Petition dismissed. AIR 1955 MYSORE 139 (V. 42, C. 57 Dec) "Veerasetty v. Nanjundachari" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) Chikka Veerasetty, Plaintiff-Petitioner v. Nanjundachari and another, Defendants-Respondents. Civil Revn. Petn. No.305 of 1954, D/- 6 -9 -1955, against order of Munsiff, Doddaballapur, D/- 19 -5 -1954. Evidence Act (1 of 1872), S.65 - DOCUMENTS - Public document - Original destroyed - Admissibility of uncertified copy. That clause of S. 65 which provides that in case of (e) or (f) a certified copy of the document but no other kind of secondary evidence is admissible seems to apply to a case in which a public document is still in existence on the public records and that provision appears to have been intended to protect the originals of public records from the danger to which they would be subject by constant production of such documents in Courts in evidence, and the said clause does not interfere with the general rule of evidence given in cl. (c), i.e., in cases where the original is destroyed or lost. Where the original depositions have been destroyed and are not available in the Court of the Magistrate the party is entitled to produce the uncertified copies that have been issued to him. 6 Mad 80 and 22 Suth WR 303, Rel. on. (Paras 4, 6) Anno: AIR Man., Evidence Act, S. 65 N. 5, 6, 7. Cases Referred : Chronological Paras (A) (83) 6 Mad 80 6 (B) (74) 22 Suth WR 303 6 B. Ramchandra Rao, for Petitioner; S.J. Srinivasan, for Respondents. Judgement ORDER:- This is a revision petition preferred by the petitioner-plaintiff against the order of the learned Munsiff of Dodballapur on I.A. No.II in Original Suit No.108 of 1953, rejecting some uncertified copies of depositions as inadmissible in evidence.

2. The facts that have given rise to this petition are briefly as follows:

3. The suit in O.S.108/53 referred to above is one for redemption of a mortgage effected by plaintiffs father in favour of 1st defendants father under a registered mortgage deed of date 25-2-1886. The suit was filed on 4-4-1953, i.e., more than 60 years from the date of the mortgage deed. For purposes of limitation plaintiff relied on an admission alleged to have been made on 25-2-1897 by 1st defendants father with respect to the suit mortgage in his deposition in C.C. 33 of 1896-97; on the file of the learned Amildar-Magistrate, Dodballapur. In support of it he produced a copy of his aforesaid deposition granted to him on 22-7-1897. The defendants took objection to the admission of the said copy on the ground that it was not a certified copy, and the learned Munsiff upheld that contention and disallowed the copies of deposition. As against that order, this revision petition is filed.

4. The point for consideration is whether the order of the learned Munsiff rejecting the copies of depositions as inadmissible on the score that they are not certified copies, is correct. It appears to me that the finding of the learned Munsiff cannot be sustained. Section 65 of the Evidence Act mentions instances or cases in which secondary evidence relating to documents may be given. One of such instances is where the original has been destroyed or lost or is not available. The case on hand is one of such instances. Plaintiffs contention is that the original depositions have been destroyed and are not available in the Court of the learned Amildar-Magistrate of Dodballapur and that, therefore, he is entitled to produce the copies that have been issued to him. There is no dispute, nor can there be any, with respect to this allegation in view of the endorsement issued to the plaintiff in that behalf and which is to be found in the records. Section 65 of the Evidence Act further provides that in cases where the originals have been destroyed or lost, the party may adduce any secondary evidence of the contents of the document. The words "any secondary evidence of the contents of the document is admissible" are very significant and clear enough to exclude any other construction to be placed on them. The word "any" indicates that the party can adduce any kind of secondary evidence.

5. What are public documents is described in S.74 of the Evidence Act. There cannot be any dispute on the point that the depositions, copies of which the plaintiff has produced, are public documents within the meaning of this section. The definition of "certified copies" is to be found in S.76 of the Evidence Act. That section provides that any public officer having custody of a public document which any person has a right to inspect, shall give that person, on demand, a copy of it on payment of the legal fees prescribed therefor together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof as the case may be, and that such certificate shall be dated and subscribed by such officer with his name and official title and shall be sealed whenever such officer is authorized by law to make use of a seal and that such copies so certified shall be called as "certified copies". It is, no doubt, true that the copies produced by the plaintiff do not bear the seal of the Court from which they were issued. It is on that ground and on the ground that the depositions do not beat the name or designation of the person under whose authority they have been issued that the learned Munsiff has rejected these documents though they satisfy some of the conditions laid down in S.76. Assuming that the copies of depositions produced by the plaintiff are not "certified copies", even then, it appears to me that the learned Munsiff was not justified in rejecting these copies as inadmissible.

6. That clause of S.65 of the Evidence Act which provides that "in case of (e) or (f) a certified copy of the document but no other kind of secondary evidence is admissible" seems to apply to a case in which a public, document is still in existence on the public records, and that provision appears to have been intended to protect the originals of public records from the danger to which they would be subject by constant production of such documents in Courts in evidence, and the said clause does not interfere with the general rule of evidence given in clause (c) i.e., in cases where the original is destroyed or lost. This is the view taken by the Madras High Court reported in - Kalandan v. Kunhunni, 6 Mad 80 (A). In that case, the original plaint was found to be destroyed and an uncertified copy of it was produced, and has been held to be admissible. In - Hurish Chunder Mullick v. Prosanno Coomar Banerjee, 22 Suth WR 303 (B), it has been held that even oral evidence with respect to an original document which is lost or destroyed is admissible if the Court is satisfied that the original has been lost, and that in such eases Courts need not insist on the production of a certified copy. Under these circumstances, I am of opinion that the order of the learned Munsiff cannot be supported.

7. In the result, the order of the learned Munsiff is set aside and this revision petition is allowed, I make no order as to costs of this petition. The learned Munsiff is directed to receive in evidence the copies of depositions produced by the plaintiff, for whatever they are worth, and dispose of the case according to law. Revision allowed. AIR 1955 MYSORE 140 (V. 42, C. 58 Dec.) "Karibasappa v. Jademallappa" MYSORE HIGH COURT Coram : 1 HOMBE GOWDA, J. ( Single Bench ) Karibasappa, Plaintiff-Petitioner v. Jademallappa and others, Defendents-Respondents. Civil Revn. Petn. No.661 of 1954, D/- 2 -8 -1955, against Order of Dist. J. Shimoga D/- 26 -10 -1954. Court-fees Act 7 of 1870, S.7(iv)(b), Sch.II, Art.17(vi) - COURT-FEE - PARTITION - Suit for partition. A member of the joint family who files a suit for a declaration that he is entitled to a share in the joint family properties and seeks for division of the properties by metes and bounds and alleges that he is in constructive possession of the properties is liable to pay fixed court-fee under Sch.II Art.17(vi). The question whether the Plaintiff is in possession of the joint family properties constructively or otherwise for the purpose of levying Court fee should be determined on the allegations made in the plaint. Merely because the defendants deny that the Plaintiff was in joint possession of the suit schedule properties, the nature of the suit is not altered. Case law discussed. (Para 3) Anno: AIR Com. Court-fees Act, S.7 (Gen) N.3; S.7(iv)(b) N.2, 4. Cases Referred : Chronological Paras (A) (V21) AIR 1934 Lah 563 : 15 Lah 531 (FB) 3 (B) (V19) AIR 1932 Cal 227 : 35 Cal WN 942 3 (C) (12) 16 Ind Cas 773 : 6 Sind LR 72 3 (D) (31) 36 Mys HCR 67 3 (E) (39) 44 Mys HCR 203 3 (F) (V40) AIR 1953 Mys 108 : ILR (1953) Mys 325 3 (G) (V37) AIR 1950 Cal 397 : 54 Cal WN 454 3 R. Anantaraman, for Petitioner; G.C. Veerappa, for Respondents. Judgement ORDER:- This revision petition is directed against an order passed by the District Judge, Shimoga in O.S. No.22 of 1951-52 on his file holding on issue No.7 raised in the case that the present Petitioner was not in possession of the suit schedule properties and directing him to pay an additional Court fee of Rs.800/-.

2. The Petitioner filed a suit for a declaration that he was entitled 1/3 share in all the plaint schedule properties on the ground that he was a member of the joint family along with defendants 1 to 5 and claimed delivery of possession, of his share after division by metes and bounds with mesne profits and costs. He paid a fixed Court fee of Rs.100/- only under Art.11-B, Sch.II, Court Fees Act on the ground that he was in constructive possession of the suit schedule properties, being a member of the joint family. The Respondents alleged in their written statement that the Petitioner had wantonly inflated the value of the suit schedule properties with a view to file the suit in the Court of the District Judge, Shimoga and that his statement that he was in joint possession of the suit schedule properties was false and that he was bound to pay ad valorem Court fee on the value of his share. The learned District Judge, Shimoga raised issues about the valuation of the suit schedule properties and about the Court-fee. After recording the evidence adduced by the parties, the learned District Judge, Shimoga, held that the properties described in the schedule were worth Rs.46,734-13-2 and that the value of the share of the Petitioner was Rs.15,578-4-4. Therefore, on issue No.6 raised in the case, the learned District Judge held that the suit was not below the pecuniary jurisdiction of the District Court, Shimoga. But the learned District Judge held that the Petitioner was in possession of only a house described in the suit schedule and was not in possession of any other items of the suit schedule properties either actual or constructive and as such directed the petitioner to pay an additional Court fee of Rs.800/- calculated on the value of the share claimed by him. It is against this Order that the present revision petition has been filed by the Petitioner.

3. The short question that arises for consideration in this revision petition is whether a member of the joint family who files a suit for a declaration that he is entitled to a share in the joint family properties and seeks for division of the properties by metes and bounds and alleges that he is in constructive possession of the properties described in the schedule is liable to pay ad valorem Court fee or fixed Court fee under Art.11-B, Sch.II, Mysore Court Fees Act (Art.17 of the Central Act). The Petitioner had alleged in his plaint in unequivocal terms that he was in joint possession of the properties along with Defendants 1 to 5. What the Petitioner wanted was division of the properties by metes and bounds and delivery of his 1/3 share. The question whether the Plaintiff is in possession of the joint family properties constructively or otherwise for the purposes of levying Court fee should be determined on the allegations made in the plaint. Merely because the defendants deny that the Plaintiff was in joint possession of the suit schedule properties, the nature of the suit is not altered. (Vide - Asa Ram v. Jagan Nath, AIR 1934 Lah 563 (FB) (A), and In the matter of Nand Lal Mukherjee, AIR 1932 Cal 227 (B). It is fairly well settled law that it is the allegation in the plaint that should be looked into and that the denial of the allegation by the defendants does not in any way take away the suit out of the scope of Art.11-B, Sch.II Court Fees Act (Vide - Manghanmal v. Tolaram, 16 Ind Cas 773 (Sind) (C). Therefore the learned District Judge was not justified in taking into consideration the statements made by the Defendants in their written statement that the Petitioner was not in actual or constructive possession of any of the suit schedule items and proceeding to hold an enquiry as to whether he was in possession of all the suit items and whether the Court fee paid by him was sufficient. The learned District Judge has been entirely influenced by the fact that the Defendants denied that the Plaintiff was in constructive possession of any of the items and by the evidence adduced by them to establish that the Petitioner was in possession of only a house belonging to the joint family and was not in actual physical possession of the other items. He seems to have been further influenced by the fact that the Petitioner had omitted to give a full description of the suit schedule items attached to the plaint in his suit that he had filed before the Munsiff, Tarikere at the first instance. The fact that it is the substance of the plaint and not to the mere shape given to. it in the plaint that has to be looked into for purposes of assessment of Court-fee has been decided in - Aswathanarayana Rao v. Makam Suriya Sety, 36 MysH.C.R. 67 (D). The fact that the order passed by the learned District Judge directing payment of ad valorem Court fee on the value of the 1/3 share of the Petitioner is erroneous is clear from the decision of this Court reported in - Krishnappa v. Bhasyam Iyengar, 44 Mys H.C.R. 203 (E). It was held in that case that where a co-owner, co-sharer or co-tenant alleges that he is in joint possession of the property in suit and wants his share to be separated and put into his possession, a fixed Court-fee under Art.11-B is sufficient. The several decisions of the other High Courts in India have all been reviewed in the above, case and this Court has laid down that when a suit is for partition by a Plaintiff who is in possession of the property, there is no question that Art.17 (11-B of our Act) would apply. It has been further held that even when the property is not joint family property and the Plaintiff is not a coparcener, is only a co-sharer he is entitled to maintain a suit for partition without paying ad valorem Court-fee, if his possession of the joint property is admitted or can be gathered by the allegations made in the plaint. To the same effect is the decision reported in - Nagendriah v. Ramachandriah, AIR 1953 Mys 108 (F). It is laid down by this Court in this case that if a Plaintiff alleges himself to be a co-sharer and to be in joint possession of the plaint schedule properties with the defendants and brings a suit for partition and possession of his snare he is entitled to pay a fixed Court fee under Art.11-B, Court Fees Act (Art.17 of the Central Act), It has been further laid down that even after the trial Court found that the Plaintiff was not in possession of some of the items of the suit schedule properties and was not entitled to claim or get any share in them and the suit in respect of those properties is dismissed the Plaintiff is entitled to pay a fix Court fee on the memorandum of appeal against the decree. The several decisions of the other High Courts in India including a decision of this High Court reported in 44 Mys HCR 203 (E), have all been reviewed in the above case. In the light of the above decisions, the order passed by the learned District Judge that because the Defendants had denied that the Plaintiff was in possession of the properties or that the evidence recorded by him disclosed that the Plaintiff was not in actual physical possession of the suit schedule properties he is liable to pay ad valorem Court fee on the value of his share is untenable. Reference in this connection may also be made to a decision reported in - Premananda v. Dhirendra Nath, AIR 1950 Cal 397 (G) wherein it has been observed: The question as to what Court fees are payable on a plaint has to be decided on the allegation in the plaint and the nature of the relief claimed, whatever may transpire in the evidence, the plaint remains the same until and unless it is amended". It has been further held in this Calcutta case that so long as the plaint is not amended, no ad valorem Court fee is payable. All that the Defendants pleaded in their written statement was that they had given away a share to the Petitioner in all the suit schedule properties. They had not disclosed what items of the suit schedule properties had actually fallen to the share of the Petitioner and were in his actual physical possession. On a consideration, therefore, of the several authorities, I am of opinion that the Order passed by the learned District Judge, Shimoga directing the Petitioner to pay ad valorem Court fee calculated on the value of his share cannot be supported and is liable to be set aside. The Petitioner is entitled to pay a fixed Court fee under Art.11-B of Sch.II, Court Fees Act and maintain his suit.

4. In the result, therefore, this revision petition is allowed and the order passed by the learned District Judge, Shimoga on issue No.7 is set aside. The Petitioner will get his costs from the Respondents. Revision allowed. AIR 1955 MYSORE 141 (V. 42, C. 59 Dec.) "Damodara v. Sanjiviah" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) Damodara Sastry, Defendant, Petitioner v. Nilgiri Sanjiviah, Plaintiff-Respondent. Civil Revn. Petn. No.342 of 1954, D/- 28 -7 -1955, against order of Principal Sub. J., Bangalore, D/- 24 -5 -1954. (A) Civil P.C. (5 of 1908), O.6, R.17 - AMENDMENT - PLEADINGS - Amendment of written statement changing nature of defence - Application not in good faith - Amendment refused. In a suit for recovery of arrears of rent and eviction of the defendant from the suit premises, the defendant while admitting his being in possession of the suit premises pleaded that he was not a tenant under the plaintiff but under somebody else. Subsequently the defendant applied for amendment of his written statement by adding a new plea inconsistent with the original plea, that he was not in possession from a period even prior to the date of the suit. Held that the proposed amendment, if allowed, would change the nature of the defence and would not in any way help to solve the real issue between the parties. Moreover, the conduct of the defendant in applying for such amendment was mala fide with intent to harass the plaintiff and to protract the proceedings. Hence the amendment could not be allowed. (Paras 5, 6) Anno: AIR Com. C.P.C., O.6 R.17 N.4, 7. (B) Civil P.C. (5 of 1908), S.115 and O.6, R.17 - REVISION - PLEADINGS - AMENDMENT - Revision - AIR 1936 All 686 (FB) and AIR 1941 Oudh 87, Not foll. A revision lies from an order allowing or refusing to allow an amendment of a pleading. AIR 1936 All 686 (FB) and AIR 1941 Ondh 87, Not foll. (Para 7) Anno: AIR Com. C.P.C., S.115 N.5. Cases Referred : Chronological Paras (A) (V23) AIR 1936 All 686 : ILR (1937) All 17 (FB) 7 (B) (V28) AIR 1941 Oudh 87 : 191 Ind Cas 729 7 (C) (V28) AIR 1941 Nag 289 : ILR (1942) Nag 478 7 (D) (25) 30 Mys CCR 37 7 (E) (28) 33 Mys CCR 350 7 (F) (32) 37 Mys CCR 519 7 (G) (34) 39 Mys CCR 332 7 E. Kanakasabhapathy, for Petitioner; K.P. Muddappa, for Respondent. Judgement ORDER:- This is a revision petition preferred by the petitioner-defendant against the order of the learned Principal Subordinate Judge, Bangalore, dismissing his application, I.A. No.VI, filed under O.6, R.17, C.P.C. praying for permission to amend his written statement in O.S. No.159/ 52-53.

2. The facts that have given rise to this petition are briefly as follows:

3. The petitioner is the defendant and the respondent is the plaintiff in the lower Court. Plaintiffs suit was for recovery of arrears of rent and eviction of the defendant from the suit premises on the allegation that the defendant is a tenant. The defendant, while admitting his being in possession of the suit premises, has contended that he is not a tenant under the plaintiff but under some other person. Later on, the defendant filed an application as per I.A. No.VI praying for permission to amend his written statement by adding a new plea that he is not in possession of the premises since 10-7-1951 and that one Channiah is in possession thereof. The plaintiff opposed that application, and the learned Subordinate Judge dismissed the same on the ground that the amendment sought for was inconsistent with the case as put forth by the defendant previously and that the application had not been made bona fide. It is against that order that this revision petition is filed.

4. The main point that arises for consideration is whether the learned Subordinate Judge was wrong in disallowing the amendment sought for by the defendant. Order 6, R.17, C.P.C. which deals with amendment of pleadings runs thus: "The Court may at any stage of the proceedings allow eiher party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties." This rule provides for the amendment of his own pleading at the instance of a party. As the rule itself makes it clear, leave to amend will generally be granted at any stage of the proceedings: but this rule is subject to three conditions viz. (1) that the amendment sought for does not change the character of the suit or the nature of the defence; (2) that no prejudice will be caused to the opposite side which cannot be compensated by awarding costs; (3) that the application has been made bona fide. Now, we shall examine whether these conditions have been fulfilled.

5. What the defendant wants is that he may be allowed to introduce a new plea to the effect that he has not been in possession of the suit premises since 10-7-1951 i.e., from a period even prior to the date of suit. The contention urged on the side of the plaintiff, that the amendment sought for has the effect of changing the nature of the defence as originally put forth by the defendant, appears to have much force. In the original written statement filed by the defendant, he has admitted that he has been in possession of the suit premises as a tenant, and his contention is that he is not a tenant under the plaintiff but under some one else. Thus, it is clear that the proposed amendment, if allowed, would change the nature of the defence as originally put forward by the defendant; for the amendment allowed must be such as is either raised in the pleadings or is consistent with the case as originally laid. The object of O.6, R.17, C.P.C. is to allow amendment for the purpose of determining the real questions in dispute between the parties. The real issue between the parties, according to the pleadings, would be whether the defendant is a tenant of the plaintiff or not. The amendment sought for does not in any way help in solving this question. On the other hand, it will, if allowed, enable the defendant to raise a new plea which will have the result of abandoning the case put forward by him earlier. I am of opinion that there will be a complete change of front in the defence put forth by the defendant at the first instance. Therefore I am inclined to the view that the amendment sought for was rightly refused by the lower Court.

6. I am also of opinion that the petitioner is wanting in bona fides. His conduct in having applied for this amendment which will have the effect of abandoning his original defence itself is sufficient to show that there are mala fides on his part. In this connection, it has also to be remembered that a Receiver was appointed at the instance of the plaintiff for collection of the rents, and the defendant appealed against that order, and that in the appellate Court the defendant agreed to deposit in Court rent at the rate of Rs.125/- per month pending disposal of the suit, which order admittedly the defendant has not carried out. This is again inconsistent with the amendment sought for, for introducing a new plea that he has not been in possession of the suit property. As can be gathered from the order of the lower Court, the amendment has been applied for mala fide with intent to harass the plaintiff and protract the proceedings. No doubt, there are cases where an amendment which is inconsistent with the case as originally put forth has been allowed, and will be allowed, but each case has to be judged on its own merits, and generally such an amendment would be refused where the application is not made bona fide. In the present case, circumstances do not exist as to warrant allowing of such an amendment.

7. The learned Counsel for the plaintiff contended that no revision lies from an order allowing or refusing to allow an amendment of a pleading under O.6, R.17, C.P.C. In support of this contention, he cited the decisions reported in - Mt. Suraj Pali v. Arya Pretinidhi Sabha, AIR 1936 All 686 (FB) (A), and - Purshotam Lalji v. Hara Narayan Dass, AIR 1941 Oudh 87 (B). No doubt, it is held in both the cases that no revision lies from an order allowing or refusing to allow an amendment of a pleading under O.6, R.17, C.P.C. The High Court of Nagpur has, in the case reported in - Mangilal Nandram v. Zamsingh Ghagu, AIR 1941 Nag 289 (C), taken a contrary view. There does not appear to be any decision of this Court directly on the point. But the practice in this Court has all along been to entertain revision petitions arising out of an order under O.6, R.17, C.P.C. If instances are wanted, the cases reported in 30 MysC.C. R.37 (D); 33 Mys C.C.R. 350 (E),; 37 Mys H.C.R. 519 (F), and 39 MysH.C.R. 332 (G), may be perused. These are cases where revision petitions against such orders have been admitted. I therefore hold that a revision lies from an order allowing or refusing to allow an amendment of a pleading.

8. In the result, this revision petition fails and the same stands dismissed with costs, Advocates fee Rs.25/-. Revision dismissed. AIR 1955 MYSORE 143 (V. 42, C. 60 Dec.) "Aswathe v. Shamiah" MYSORE HIGH COURT Coram : 1 HOMBE GOWDA, J. ( Single Bench ) Aswathe, minor by next friend Parvathamma, Plaintiff, Petitioner v. S. Shamiah and another, Defendants-Respondents. Civil Revn. Petn. No.312 of 1954, D/- 2 -8 -1955, against order of Dist. J., Bangalore, D/- 11 -6 -1954. Court-fees Act (7 of 1870), S.7(iv)(b) and Sch.II, Art.17(vi) - Mysore Court-fees Act (3 of 1900), Sch.II, Art.11B - COURT-FEE - PARTITION - Suit for partition of joint family properties by a minor co-parcener - Court-fee. It is the allegation made in the plaint that should be the criterion to decide as to whether a person is entitled to pay a fixed Court-fee under Art.11-B, Sch.II, Mysore Court-fees Act (which is the same as Art.17 of the Central Act) or is liable to pay ad valorem Court-fee on the value of his share. (Para 3) A suit for partition of his share in joint family properties by a minor plaintiff on the allegation that he had become a member of the joint family by his adoption 2 or 3 months prior to the suit and that he was in constructive possession of the suit properties is chargeable with a fixed court-fee of Rs.100 under Sch.II Art.11-B, Mysore Court-fees Act and not with ad valorem Court-fees on the value of his share. Merely because the plaintiff is quite young or he was adopted a few months prior to the date of the suit it is not reasonable to argue that he is not a member of the joint family or that he is not in possession of the properties constructively along with other members of the joint family. The kartha or the manager of a joint Hindu family is presumed to be in possession of the joint family properties for and on behalf of all the members of the joint family. 44 Mys HCR 203, Rel. on; AIR 1953 Mys 108, Ref. (Para 3) Anno: AIR Com., Court-fees Act, S.7(iv)(b) N. 1 and 2. Cases Referred : Chronological Paras (A) (12) 16 Ind Cas 773 : 6 Sind LR 72 3 (B) (Y21) AIR 1934 Lah 563 : 15 Lah 531 (FB) 3 (C) (V19) AIR 1932 Cal 227 : 35 Cal WN 942 3 (D) (39) 44 Mys HCR 203 3 (E) (V40) AIR 1953 Mys 108 : ILR (1953) Mys 325 3 (F) (V37) AIR 1950 Cal 397 : 54 Cal WN 454 3 H.V. Narayan Rao, for Petitioner; B.S. Puttasiddiah, for Respondents. Judgement ORDER:- This revision, petition is directed against an order passed by the District Judge, Civil Station, Bangalore in O.S. No.37/54 on his file holding that the petitioner was liable to pay ad valorem court-fee on the value of his share in the suit schedule properties.

2. The present petitioner represented by his guardian Parvathamma filed a suit against the respondents for partition and possession of his 1/3 share in the suit schedule properties valued at Rs.75,000/- in all. The petitioner alleged in his plaint that he was adopted by Parvathamma to her husband Chandrasekhariah about 2 or 3 months prior to the date of the suit and as such was a member of the joint family with the defendants and was entitled to claim and get his 1/3 share in all the suit schedule properties which were the joint family properties. The petitioner alleged that he was in constructive possession of the suit schedule properties along with the respondents and as such was entitled to pay a fixed court-fee under Art.11-B, Sch.II, Court-fees Act and paid Rs.100/- as court-fee. The learned District Judge was of the opinion that since the petitioner had been, according to the plaint allegations, adopted about 2 or 3 months prior to the date of the suit he could not be presumed to be in constructive possession of the joint family properties described in the schedule and as such directed the petitioner to pay ad valorem court-fee calculated on the value of his share. The learned District Judge gave this ruling even before summonses were issued to the respondents. It is against this order that the present revision, petition has been filed by the petitioner.

3. It is now well settled law that it is the allegation mada in the plaint that should be the criterion to decide as to whether a person is entitled to pay a fixed court-fee under Art.11-B, Sch.II, Mysore Court-fees Act (which is the same as Art.17 of the Central Act) or is liable to pay ad valorem court-fee on the value of his share. (Vide - Maghanmal v. Tolaram, 16 Ind Cas 773 (Sind) (A), - Asa Ram v. Jagan Nath, AIR 1934 Lah 563 (FB) (B), and - in the matter of Nand Lal Mukherjee, AIR 1932 Cal 227 (C). Reference in this connection may be made to a decision of this Court reported in - Krishnappa v. Bhashyam Iyengar, 44 Mys HCR 203 (D). It was laid down in that decision that where a co-owner, co-sharer, or co-tenant alleges that he is in joint possession of the property in suit and wants his share to be separated and put into his possession, a fixed court-fee under Art.11-B is sufficient and that he is not bound to pay ad valorem court-fee on the value of his share in the suit schedule properties. The several decisions of the Indian High Courts have been reviewed in this decision. The contention that because a member of a joint family is not in actual physical possession of any portion of the suit schedule properties, he is liable or bound to pay court-fee calculated on the value of his share has been repelled in the above decision. Reference may also be made to a recent decision of this Court reported in - Nagendraiah v. Ramachandriah, AIR 1953 Mys 108 (E), wherein it has laid down that even if the trial Court had found that the plaintiff was not in possession of some of the items of the suit schedule properties, he is entitled to pay a fixed court-fee of Rs.100/- under Art.11-B of Sch.II, Court-fees Act (Art.17 of the Central Act) on his memorandum of appeal. Vasudevamurthy, J., observed in the course of his judgment that the plaintiffs suit continued to be on the whole a partition suit even after a decision of the trial Court and for purposes of an appeal it will be still an appeal from a partition suit notwithstanding the nature of the findings recorded by the trial Court. In - Premananda v. Dhirendra Nath, AIR 1950 Cal 397 (F), it was observed as follows: "The question as to what court-fees are payable on a plaint has to be decided on the allegation in the plaint and the nature of the relief claimed. Whatever may transpire in the evidence, the plaint remains the same until and unless it is amended." It was further observed in the same case that "Where in a suit for partition, a fixed court-fee of Rs.13/- was paid on the plaint on the allegation of joint possession with other co-sharers, that court-fee must be held to be sufficient so long as the plaint is not amended and ad valorem court-fee will not be payable on the value of the property on the ground that it transpired in the evidence that the plaintiff was not in possession." It is, therefore, clear from the review of the several decisions cited above that the learned District Judge was not justified in holding that merely because the petitioner was adopted 2 or 3 months prior to the date of the suit he was not in constructive possession of any of the suit schedule properties and as such liable to pay ad valorem court-fee on the value of his share as claimed in the plaint. Merely because a coparcener is a minor or is quite young and is not in actual physical possession of the properties or is incapable of being in physical possession of the properties, it cannot be said that he is not in constructive possession of the properties of the joint family The kartha or the manager of a joint Hindu family is presumed to be in possession of the joint family properties for and on behalf of all the members of the joint family. If the petitioners adoption is true, he has become a member of the joint family after his adoption and as such he had a right to contend that he was in constructive possession of the properties of the joint family. As already stated, merely because the, petitioner is quite young or he was adopted by Parvathamma a few months prior to the date of the suit it is not reasonable to argue that he is not a member of the joint family or that he is not in possession of the properties constructively along with other members of the joint family. The order passed by the learned District Judge directing the petitioner to pay ad valorem court-fee on the value of his share, i.e., Rs.25,000/- is not sustainable and is liable to be set aside.

4. In the result, therefore, this revision petition is allowed and the order passed by the learned District Judge, Civil Station, Bangalore directing the petitioner to pay court-fee calculated on the value of his share is set aside. The fixed court-fee that has already been paid by the petitioner is sufficient. The Teamed District Judge, is therefore, directed to proceed with the trial of the case. There will be no order as to costs. Revision allowed. AIR 1955 MYSORE 144 (V. 42, C. 61 Dec.) "Venkataramiah v. Channiah" MYSORE HIGH COURT Coram : 1 H. HOMBE GOWDA, J. ( Single Bench ) A. Venkataramiah, Complainant-Petitioner v. Channiah and others, Accused-Respondents. Criminal Revn. Petn. No.366 of 1954, D/- 25 -7 -1955, against Order of First Class Munsiff Magistrate, Doddballapur, D/- 26 -10 -1954. (A) Criminal P.C. (5 of 1898), S.250 - WARRANT CASE - Order to pay compensation without observing provisions of S.250 is illegal. The Magistrate should afford an opportunity to the complainant to show cause and raise any objection which he may touch before he is directed to pay compensation to the accused persons. If the complainant is absent, summons to show cause should be issued to him. Any order passed without observing the mandatory provisions of S.250 is illegal and liable to be set aside. (Para 3) Anno: AIR Com., Cr.P.C., S.250, N.10, Pt.2. (B) Criminal P.C. (5 of 1898), S.250 - WARRANT CASE - WITNESS - All the witnesses cited by complainant not examined - Order directing payment of compensation is illegal. Where all the witnesses cited by the complainant had not been examined before the accused were acquitted, the order passed by the Magistrate directing payment of compensation to the accused persons is illegal: AIR 1928 Mad 169 (1) and AIR 1953 Mys 91, Rel. on. (Para 4) Anno: AIR Com., Cr.P.C., S.250, N.10, Pt.4. Cases Referred : Chronological Paras (A) (V29) AIR 1942 Mad 241 : 43 Cri LJ 336 3 (B) (V25) AIR 1938 Rang 161 : 39 Cri LJ 642 3 (C) (V25) AIR 1938 Rang 247 : 39 Cri LJ 743 3 (D) (V15) AIR 1928 Mad 169 (1) : 29 Cri LJ 114 4 (E) (V40) AIR 1953 Mys 91 : ILR (1953) Mys 197 : 1953 Cri LJ 1149 4 Y. Adinarayana Rao, for Petitioner. Judgement ORDER:- This is a revision petition filed against an order passed by the Munsiff-Magistrate of Dodballapur in C.C. No.233/54 on his file directing the petitioner to pay compensation of Rs.5/- to each of the three respondents after acquitting them in the case.

2. The petitioner filed a private complaint against the respondents for offences punishable under Ss.323 and 352 of the Penal Code into the Court of the Munsiff-Magistrate, Dodballapur and the same was registered as C.C. No.233/54. The respondents who were served with summons appeared before the Court and pleaded not guilty to the charge that was read over and explained to them. The complainant and two witnesses were examined and the case for the petitioner was closed. The respondents examined two witnesses on their behalf and closed their case. The learned Munsiff-Magistrate came to the conclusion that no case was made out against the respondents for any of the offences alleged against them and acquitted them. He was further of the opinion that the complaint was false, frivolous and vexatious and as such directed the petitioner to pay a sum of Rs.5/- to each of the respondents as compensation, under S.250 of the Criminal P C, It is against this order directing payment of compensation that the present revision petition has been filed by the petitioner.

3. Sri Y. Adinarayana Rao, the learned counsel for the petitioner, challenged the correctness of the order of the learned Munsiff-Magistrate directing the petitioner to pay compensation to the respondents on two grounds. He contended that the order of the learned Munsiff-Magistrate directing payment of compensation to the respondents without examining all the witnesses cited by the petitioner was illegal and was quite contrary to the provisions of S.250 of the Criminal P.C. He also contended that the order was illegal on account of the fact that the learned Munsiff-Magistrate had not issued any notice to the petitioner to show cause as to why he should not be directed to pay compensation to the respondents since his complaint was false, frivolous and vexatious and thus afforded an opportunity to the petitioner to prove that his complaint was not false or vexatious or frivolous, before passing an order. Section 250 of the Criminal P.C., reads thus: "(1) If in any case instituted upon complaint or upon information given to a police officer or to a Magistrate one or more persons is or are accused before a Magistrate of any offence triable by a Magistrate, and the Magistrate by whom the case is heard discharges or acquits all or any of the accused, and is of opinion that the accusation against them or any of them was false and either frivolous or vexatious, the Magistrate may, by his order of discharge or acquittal, if the person upon whose complaint or information the accusation was made is present, call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one, or, if such person is not present direct the issue of a summons to him to appear and show cause as aforesaid. (2) The Magistrate shall record and consider any cause which such complainant or informant may show and if he is satisfied that the accusation was false and either frivolous or vexatious may, for reasons to be recorded, direct that compensation to such amount not exceeding one hundred rupees or if the Magistrate is a Magistrate of the third class, not exceeding fifty rupees, as he may determine be paid by such complainant or informant to the accused or to each or any of them." It is clear from a reading of the above Section that the Magistrate should afford an opportunity to the complainant to show cause and raise any objection which he may touch before he is directed to pay compensation to the accused persons. It is further dear that if the complainant is absent, summons to show cause should be issued to him. Any order passed without observing the mandatory provisions of S.250 of the Criminal P.C. is illegal and is liable to be set aside. The very object of S.250(1) and (2) of the Criminal P.C., is to afford an opportunity to the complainant to show cause that his complaint was not frivolous, false or vexatious before an order against him under S.250 of the Criminal P.C. If the complainant is present the Magistrate can direct him forthwith to show cause as to why he should not be made to pay compensation to the accused since his complaint was found to be false, frivolous or vexatious and if the complainant is absent the Court is bound to issue a notice to him to appear and show cause why he should not be compelled to pay compensation. Reference in this connection may be made to a decision reported in - Namberumal Naidu v., Muthu Kalathi Mudali, AIR 1942 Mad 241 (A). His Lordship Horwill, J., has observed while setting aside an order passed by a Magistrate without affording an opportunity to the complainant to show cause as follows: "I do not think it necessary to go as far as Baguley, J., did in, - King v. Maung Thoung Shwe, AIR 1938 Rang 161 (B), and in - Ma E Myaing v. The King, AIR 1938 Rang 247 (C), and say that the actual words used by the complainant should be recorded separately as in the case of an accused under S.342 of the Criminal P.C. It is however necessary that the Magistrate should at least indicate in his judgment that he asked the requisite questions and he should set out the explanation the complainant gave and say whether he thought the explanation satisfactory, and if so, why. In most cases, the complainant says nothing more than that the evidence let in is true. Even in such a simple case as that, the Magistrate should note in his judgment that the complainant had no explanation to offer. For the above reasons it is necessary to set aside the order of compensation." The Magistrate is not only bound to afford an opportunity to the complainant to show cause as to why he should not be directed to pay compensation but is also bound to consider the objections raised by the complainant and to record the judgment with reasons. In this case it is clear from a perusal of the records that the learned Munsiff-Magistrate has not called upon the petitioner to show cause as to why he should not be directed to pay compensation to the respondents before passing such an order. The Judges note of 26-10-1954 indicates that the petitioner was present on the date, when the judgment acquitting the respondents and directing the petitioner to pay compensation to them was passed. Neither in the judgment nor in the order-sheet there is any indication that an opportunity was afforded to the petitioner to show cause as to why he should not be directed to pay compensation to the respondents. The order passed by the learned Munsiff-Magistrate is, therefore, not sustainable and is illegal and is liable to be set aside.

4. The next ground urged against the order is that inasmuch as all the witnesses cited by the petitioner had not been examined before the accused were acquitted by him the order passed by the learned Munsiff-Magistrate directing payment of compensation to the accused persons is illegal. There is considerable force in this contention also. It has been held in - Parthasarathi Naicker v. Krishnaswami Ayyar, AIR 1928 Mad 169 (1) (D), that the awarding of compensation under S.250 of the Criminal P.C. without having all the evidence that the complainant wants to adduce is illegal and is liable to be set aside. To the same effect is the decision of this Court reported in - Halappa Gowda v. State of Mysore, AIR 1953 Mys 91 (E). His Lordship Justice Vasudevamurthy has observed as follows: "There is also another point on which the order cannot be sustained. It has to be observed that though ten witnesses were cited for the prosecution only six witnesses were examined and the other four were not examined. I think the petitioner can reasonably complain that he should not be made to pay compensation in a case where all the witnesses for the prosecution have not been examined and over the trial of which he had really no control. It has been held in AIR 1928 Mad 169 (1) (D) that the awarding of compensation under S.250, Cr.P.C., without having all the evidence that the complainant wants to adduce is illegal." No doubt the Magistrate is entitled at any stage to discharge the accused but that cannot be a ground for awarding compensation to the accused in all cases. It is clear from the records that the petitioner had cited three witnesses on his behalf in the memo filed before the learned Magistrate. The Judges note of 5-10-1954 indicates that the learned Magistrate examined the petitioner and two witnesses on his behalf and closed the case. No reasons are assigned by the learned Magistrate as to why he did not issue process to the other witness and examine him. There is no indication, in the order-sheet that the complainant did not wish to examine the other witness. The petitioner has therefore, reasonable grounds to urge that because all the witnesses that were cited by him were not examined, the order passed by the learned Munsiff-Magistrate directing him to pay compensation is illegal and is liable to be set aside. The respondents who were served with notices are absent. In my opinion the order passed by the learned Munsiff-Magistrate, Dodballapur directing the petitioner to pay compensation of Rs.5/- to each of the respondents is illegal and is not sustainable and is liable to be set aside.

5. In the result, therefore, the order passed by the learned Munsiff-Magistrate, Dodballapur directing the petitioner to pay compensation to the respondents is set aside. The amount of compensation, if any, deposited by the petitioner is directed to be repaid to him. Order set aside. AIR 1955 MYSORE 146 (V. 42, C. 62 Dec.) "Venkatarayappa v. Venkatashamiah" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA, C.J. AND HOMBE GOWDA, J. ( Division Bench ) Kagathi Venkatarayappa, Appellant v. K. V. Venkatashamiah Setty and another, Respondents. Misc. Appeal No.80 of 1954, D/- 26 -9 -1955, against order of Principal Dist. J., Bangalore, D/- 1 -3 -1954. (A) Guardians and Wards Act (8 of 1890), S.7 - GUARDIANS AND WARDS - Guardian for property of minor. Under the Act a guardian can be appointed with respect to properties of minors, capable of being managed. When the minors are members of an undivided family possessed of property, the person seeking appointment as guardian cannot claim any portion thereof as belonging to them for the purpose of management although the minors are entitled to shares under the Hindu Law. Till the shares are defined and separated, the family as a whole and not any one to the exclusion of others, has the right to be in possession of such property. 25 All 407 (PC) and 19 Bom 309 (FB), Rel. on. (Para 2) Anno: AIR Man., G. and W. Act S.7 N.5. (B) Guardians and Wards Act (8 of 1890), S.7, S.17 - GUARDIANS AND WARDS - Guardian for person of minor. Where the father of the minor is of unsound mind, but the mother is not alleged to be unfit or unable to take care of her minor children, there is no need to appoint the brother of minor as guardian of the person of the minors. (Para 3) Anno: AIR Man., G. and W. Act, S.7 N.4 S.17 N.6. Cases Referred : Chronological Paras (A) (03) 25 All 407 : 30 Ind App 165 (PC) 3 (B) (95) 19 Bom 309 (FB) 3 K.S. Puttaswamy, for Appellant. Judgement

2. Admittedly the father and his sons constitute a joint Hindu family, the properties, belonging to which are not disclosed in the schedule to the petition filed in the lower Court. Only the cash deposits some of which happen to be in names of the minors are specified. It is not clear whether these are the only properties admitted by the applicant to be of the minors and as to how these proceedings can be resorted to if the amounts are the property of the joint family. Under the Act a guardian can be appointed with respect to properties of minors, capable of being managed. When the minors are members of an undivided family possessed of property, the person seeking appointment as guardian cannot claim any portion thereof as belonging to them for the purpose of management although the minors are entitled to shares under the Hindu Law. Till the shares are defined and separated, the family as a whole and not any one to the exclusion of others, has the right to be in possession of such property.

3. The father is himself entitled to a share and guardian acting on his behalf raises the objection, not without force, that the order has the effect of affecting rights of other members of the family and giving petitioner an unwarranted advantage. So long back as 1903, in - Gharib Ullah v. Khalak Singh, 25 All 407 (A) it was laid down by the Privy Council that "a guardian of the property of an infant cannot properly be appointed in respect of the infants interest in the property of an undivided Mitakshara family..........such interest not being individual property and therefore not property with which a guardian if appointed would have anything to do". Even prior to this, a Full Bench of the Bombay High Court held in - Virupakshappa v. Nilgangava, 19 Bom 309 (FB) (B), that when a minor is not possessed of separate property, there can be no appointment of a guardian under the Act for management of his undivided share in family property. The appointment of a guardian of the person of the minor was, however, considered to be possible. Since the mother in the present case is not alleged to be unfit or unable to take care of her minor children, there is no need to appoint the respondent as guardian of the person of the minors.

4. Having regard to these and the fact that the only possible effect of the order of the lower Court is to enable the petitioner to draw moneys belonging to the minor brothers in deposit and not to promote their interests in other ways, the order of the lower Court cannot be upheld. It is therefore set aside. Parties will bear their own costs in this appeal. Appeal allowed. AIR 1955 MYSORE 147 (V. 42, C. 63 Dec.) "Bangalore Municipality v. Messrs. N. Sirur and Co." MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA, C.J. AND SREENIVASA RAU, J. ( Division Bench ) Bangalore City Municipality, Plaintiff-Appellant v. Managing Agents, Messrs. N. Sirur and Co. Ltd. Minerva Mills Ltd., Bangalore, and another, Defendants, respondents. Appeals Nos.262, 263 and 264 of 1950-51, D/- 30 -9 -1955, against decree of Third Addl. Dist. J., Bangalore, in Original Suits Nos.111, 112 and 113 of 1948-49, respectively. INTERPRETATION OF STATUTES - MUNICIPALITIES - WORDS AND PHRASES - PREAMBLE - Interpretation of Statutes - Municipal bye-laws - bye-Law providing for what was beyond limits laid down by rule trained by Government - Validity - "Installation" - Meaning. Words and Phrases - Installation. Municipalities. City of Bangalore Municipal Corporation Act (69 of 1949) Bye-laws under. Civil P.C. (5 of 1908), Pre.. A bye-law of the Bangalore City Municipality passed in 1940 read: "NO person shall use any place for..............installation of machinery driven by power or otherwise for any purpose except under and in accordance with the conditions of license to be obtained in this behalf from the Municipal Council issued by the Municipal Commissioner". The question was whether certain textile mills situated within the limits of the Bangalore Municipality, and using machinery driven by electric power, were subject to the operation of the bye-law. Long prior to 1940, the owners had started the mills and had electric installation provided for working the mills. The words "or otherwise for any purpose" in the bye-law were an addition to the rule framed by the Government and included more than what was warranted by the rule. Held (i) that the municipality has no doubt the power to make bye-laws but the power is not absolute and unlimited. Bye-laws are treated as autonomic law binding and enforceable as laws enacted by the Legislature subject to the authority vested in any bodies making the same and also to the condition of reasonableness. (1899) 2 QB 34, Rel. on. (Para 2) The settled rule of construction is that the rule should not be repugnant to the law and the bye-law should not be repugnant to the rule or the law. The bye- law provided for what was beyond the limits laid down by the rule by requiring persons other than those mentioned in the rule to obtain the license. This was not legally permissible and to that extent the bye-law was invalid. (Para 2)

(ii) Even otherwise what was forbidden to be done without a license is the "installation" of machinery and not the employment of machinery, it would be a travesty of language to say that machinery in existence for years prior to the bye-law was installed after. AIR 1927 Mad 961 (SB) and 1931 Mad WN 495, Ref. The obligation under the bye-law was penal and fiscal. A provision of this kind had to be strictly construed and the ambiguity if any had to be regarded as helpful to the person sought to be made liable. The bye-law was not clear and definite enough to justify the claims of the Municipality. (Para 3) Anno: AIR Com., Civil P.C., Pre. N.7. Cases Referred : Chronological Paras (A) (1899) 2 QB 34 : 68 LJQB 702 2 (B) (V14) AIR 1927 Mad 961 : 1927 MWN 835 : 28 Cri LJ 974 (SB) 3 (C) (31) 1931 Mad WN 495 3 A.R. Somanath Iyer, for Appellants; V.L. Narasimhamoorthy and Smt. Ratnabai Chittur (in A. Nos.262 and 263) and B. Sitarmiah, (in A. No.264), for Respondents. Judgement VENKATARAMAIYA, C. J.:- These three appeals arise from three suits filed by the Bangalore City Municipality and disposed of by one judgment as point involved for decision is common. The respondents-defendants are mills manufacturing textiles within the limits of the Municipality by the use of machinery driven by electric power. According to the Municipality license had to be obtained by the Mills for carrying on the business with the aid of electric power and fee had to be paid in proportion to the extent of the power utilised for the purpose. It is admitted that the license was not obtained by any of the defendants in the three suits and no fee was paid to the Municipality by them. The defendants were prosecuted in the criminal Court for failure of these but were acquitted. Thereupon the three suits were filed for recovery of the amounts separately due from each of the defendants. The liability for obtaining license and for payment of the fee were denied by the defendants and upholding these pleas the learned District Judge dismissed all the suits. The Municipality has appealed.

2. The decision in the cases turns upon the validity of a bye-law in part and construction of the rest. The bye-law material for consideration is marked as Ex.A and reads thus: "No person shall use any place, for boiling gold or silver or for installation of machinery driven by power or otherwise for any purpose except under and in accordance with the conditions of license to be obtained in this behalf from the Municipal Council issued by the Municipal Commissioner". Objection was raised to the adoption of this by some of the mills in Bangalore but as shown by Ex.H, it was overruled on 8-3-1941 by the Bye-law Committee on the ground that the Government had sanctioned it. The order of the Government referred to therein is Ex.K, dated, 27-8-1935 by which a rule in the following terms was framed: "No person shall use any place not belonging to the Municipal Council, as a place for gold and silver boiling or for installation of power driven machinery, except under and in accordance with the conditions of a license to be obtained in this behalf from the Municipal Council". A comparison of the rule and the bye-law shows that the words in both are mostly the same except that the expression "or otherwise for any purpose" in the bye-law after the word "power" is not found in the Rule. It was notified in Ex.A dated 15-1-1940 that the bye-laws would come into force from 15-2-1940. Long prior to this date, the defendants started the mills and had electric installation provided for working the mills. The question therefore is whether in view of this they are not subject to the operation of the bye-law. It is contended that the bye-law is comprehensive enough to apply to places where electric power is used for any purpose whether the installation was prior to or after the bye-law. As pointed out already the words or otherwise for any purpose in the bye-law are an addition to the rule framed by the Government and include more than what is warranted by the rule. The Municipality has no doubt the power to make bye-laws but the power is not absolute and unlimited. Bye-laws are treated as autonomic law binding and enforceable as laws enacted by the legislature subject to the authority vested in any bodies making the same and also to the condition of reasonableness. Pollock in his Book of Jurisprudence it page 245 quotes from a decision the passage: "Every bye-law is a law, and is obligatory to all persons bound by it, that is within its jurisdiction as any Act of Parliament, only with this difference, that a bye-law is liable to have its validity brought in question. In - White v. Morley, (1899) 2 QB 34 (A) at p.39 Channel, J., observes:- By-laws must not only be reasonable but must not be repugnant to the general law. A by-law is a local law, and may be supplementary to the general law; it is not bad because it deals with something that is not dealt with by the general law. But it must not alter the general law by making that lawful which the general law makes unlawful; or that unlawful which the general law makes lawful." The settled rule of construction is that the rule should not be repugnant to the law and the bye-law should not be repugnant to the rule or the law. The rule cannot be attacked as being repugnant to the Act or as being in excess of the power of the Government to make it but the bye-law provides for what is beyond the limits laid down by the rule by requiring persons other than those mentioned in the rule to obtain the license. This, in my opinion, is not legally permissible and to that extent the bye-law is invalid.

3. Even otherwise what is forbidden to be done without a license is the "installation" of machinery and not the employment of machinery. It would be a travesty of language to say that machinery in existence for years prior to the bye-law was installed after. To "install" anything means establishing it and has reference to the stage or times when it comes into existence, to the initial act and not continuance of what is done previously. The same word in a similar provision of the Madras Municipalities Act has been interpreted to relate to what is done at the inception. See - Muthu Balu Chettiar v. Chairman Madura Municipality, AIR 1927 Mad 961 (SB) (B) and Arunachala Chetty v. Emperor, 1931 Mad WN 495 (C). It has to be remembered that the obligation under the bye-law is penal and fiscal. A provision of this kind has to be strictly construed and the ambiguity if any has to be regarded as helpful to the person sought to be made liable. The bye-law is not clear and definite enough to justify the claims of the Municipality and as such the dismissal of the suits was correct. There is no ground for disturbing the decision of the lower Court. The appeals are dismissed but without costs. Appeals dismissed. AIR 1955 MYSORE 148 (V. 42, C. 64 Dec.) "In the matter of, Minerva Mills Ltd." MYSORE HIGH COURT Coram : 2 PADMANABHIAH AND HOMBE GOWDA, JJ. ( Division Bench ) Minerva Mills Ltd., In the matter of; Mysore Spinning and Mfg. Co. Ltd., Petitioner v. State of Mysore and another, Respondents. Civil Petn. No.111 and Writ Petn. No.39 of 1954, D/- 29 -9 -1955. Mysore Sales Tax Act (46 of 1948), S.11(1) - SALES TAX - Sales Tax - Tax means tax lawfully leviable as tax under the Act. What a registered dealer is empowered to collect from purchasers under S.11(1) is only what is lawfully leviable as tax under the Act. It is only such amounts that fall within the meaning of S.11(1) and are payable to Government. That section does not require a registered dealer to pay over to the Government collections made by him from the purchasers which are not lawful. A registered dealer who collects tax from the purchasers under a mistaken conception of the liability of the sales to sales tax is not under an obligation to pay the same to the Government. 1954 (5) S.T.C.382 (Mad), Foll. (Para 5) Cases Referred : Chronological Paras (A) (54) 5 STC 382 (Mad) 5 In C.P. No.111 of 1954, Advocate General for Commr. of Sales Tax; V.L. Narasimha Murthy, for the Mills. In W.P. No.39 of 1954 V.L. Narasimhamurthy, for Petitioner; Advocate General, for Respondents. Judgement ORDER:- Civil Petition No.111/54 and W.P. No.39/54 are two connected cases in which the same point of law is involved and will, therefore, be covered by a single order. The petitioner in the former is the Minerva Mills Ltd. Bangalore, and in the latter, the Mysore Spinning and Manufacturing Company Ltd.

2. Civil Petition No.111/54 relates to a sum of Rs.130-15-5 collected by the petitioner-company as contingency deposit for sale of cotton dust and refuse for the quarter ending December 1951. It was contended by the petitioner that the cotton dust and refuse were exempt from taxation under S.5, Mysore Sales Tax Act. The sales Tax authorities, disagreeing with that contention, insisted on collection of tax on these items also. As the point was not free from doubt, the petitioner Mills, by way of abundant caution, collected tax on these items from their constituents and paid the same to the Sales Tax Department. Later the sales Tax Department held that the goods referred to above were exempt from tax and thereafter the petitioner Mills applied for refund of the amount paid to the Sales Tax Department. The Department contended that once the amount was collected by the Mills, they had to pay the same to the Department under S.11(2), Sales Tax Act and that therefore, the Department was not liable to refund the amount. At the request of the petitioner-mills the point has been referred to this Court under S.16, Mysore Sales Tax Act.

3. In Writ Petition No.39/54 the petitioner-Company collected certain amounts as inter-State sales tax for some period, and as tax contingency deposit for some other period. It has subsequently been held that tax on these items is exempt under the provisions of Art.286(1)(a) of the Constitution of India: but what the Department contends is that since the petitioner-Company have collected the taxes, they were bound to pay the same to the Department under S.11(2), Mysore Sales Tax Act. We are of opinion that the petitioners in both these cases have to succeed.

4. It is conceded that the petitioners in these two cases are registered dealers. Their contention is that what is mads payable to the Sales Tax Deportment under S.11(2), Mysore Sales Tax Act is the tax which is lawfully leviable and collected as such: in other words their contention amounts to this, that if any amount is levied and collected contrary to the provisions of the Sales Tax Act such amount is not payable to Government and that the Government has no right to collect the same under S.11(2) of the Act. The contention urged on behalf of the State Government is that whatever may be the circumstances under which the amount is collected by the assessee the amount once collected should be paid to the Government under S.11(2) of the Act. It appears to us that we have to uphold the contention urged on the side of the petitioner-Mills as being sound.

5. Section 11(2) Mysore Sales Tax Act runs as follows: Every person who collects any amount by way of tax under this Act shall pay over to the Government within such time and in such manner as may be prescribed such collections as are in excess of the tax paid by him for the period during which the collection was made or in case he has not paid any amount for the period in question, he shall pay over to the Government all the amounts so collected by him and in default of such payment, the amounts may be recovered as if they were arrears of land revenue." The learned counsel for the petitioners has relied on a decision of the Madras High Court reported in 1954 - 5 S.T.C. 382 (A), in support of his contention that the State Government cannot insist under the provisions of S.11(2), Mysore Sales Tax Act upon payment of taxes not lawfully collected. In that case, their Lordships were dealing with the scope and operation of S.8(b)(2) Madras General Sales Tax Act. That section is in pari materia with S.11(2), Mysore Sales Tax Act. The words to be construed are identical in both these sections. purchasers under S.8(b)(1), Madras General Sales Tax Act (corresponding to S.11(1), Mysore Sales Tax Act) is only what is lawfully leviable as tax under the Act, and it is only such amounts that fall within the meaning of S.8(D)(2) and are payable to Government. Their Lordships have further held that S.8(b)(2) does not require a registered dealer to pay over to the Government collections made by him from the purchasers which are not lawful and that a registered dealer who collects tax from the purchasers under a mistaken conception of the liability of the sales to sale tax is not under an obligation to pay the same to the Government. The principle enunciated by their Lordships in the above case, we should like to say with great respect, appears to be quite sound and consistent with the spirit underlying S.8(b)(2) and the intention of the Legislature. The Legislature could not have intended, in enacting S.11(2), Mysore Sales Tax Act, to make such illegal collections made by an assessee as a source of income to the State. It need hardly be stated that an assessee who makes such unlawful collections will be responsible to his constituents and liable to refund the same to them. Under these circumstances, we are inclined to answer the question formulated to us in C.P. 111/54 as follows: Their Lordships have held in that case that what a registered dealer is empowered to collect from Question:- Whether the sum of Rs.130-15-5 collected by the Petitioner Company in the quarter ended December 1951 in its bills under the head Deposit at 3 pies per rupee on the above to cover Sales-tax subject to refund, if any as stated in the Revision Petition in the circumstances set out therein attract the Provision of S.11 of the Mysore Sales-tax Act and therefore the Petitioner Company was liable to pay the said amount to the Government. If not, whether the Petitioner Company is entitled to refund of the said amount of Rs.130-15-5 already paid by it under protest. Answer:- The Petitioner-Mills were not liable to pay the sum of Rs.130-15-5 to the Government, that the Government were not entitled to collect it under the provisions of S.11(2), Mysore Sales-tax Act and that they are liable to refund the same to the Petitioner-Mills." So far as Writ Petition No.39/54 is concerned, we hold that the Petitioner-Company are entitled to the writ applied for.

6. In the result, these petitions (C.P.111/54 and W.P.39/54) are allowed. We direct that in C.P.111 of, 1954 the amount collected by the respondent-Government from the Petitioner-Mills be refunded to them. In Writ Petition No.39/54, a Writ Certiorari will issue as prayed for. As the decision in these two petitions depended upon the interpretation of certain sections of the Sales Tax Act, we direct the parties to bear their own costs. Petitions allowed. AIR 1955 MYSORE 149 (V. 42, C. 65 Dec.) "Uthayya v. Somayya" MYSORE HIGH COURT Coram : 1 PADMANABHIAH, J. ( Single Bench ) Pattada Uthayya, Defendant-Petitioner v. Pattada Somayya and others, Plaintiffs-Respondents. Civil Revn. Petn. No.176 of 1954, D/- 8 -9 -1955, against order of Munsiff of Virajpet, D/- 24 -11 -1953. (A) Companies Act (7 of 1913), S.271 - COMPANY - Unregistered company - Suit for dissolution, accounts and declaration of shares - Maintainability. There is nothing in S.271 or in the words "any unregistered company may be wound up" appearing in that section to indicate that matters such as dissolution of the funds, accounts and declaration of shares in the funds of an unregistered company can also be agitated in a civil court. (Para 4) Anno: AIR Man. Comp. Act S.271 N.1. (B) Companies Act (7 of 1913), S.4(2) - COMPANY - Ingredients. To attaract the provisions of S.4(2) of the Act, three ingredients are to be present. They are, (1) an association of more than twenty persons (2) which carry on business and (3) that business should be for the acquisition of gain. Any association or company formed in contravention of any of these must be held to be illegal, and no court should entertain a suit brought in relation to such company or association. (Paras 6, 7) Anno: AIR Man. Comp. Act S.4 N.1, 5. (C) Companies Act (7 of 1913), S.4(2) - COMPANY - WORDS AND PHRASES - Gain - Meaning of. Words and Phrases - Gain. The word gain in S.4(2) means acquisition and is not limited to mere pecuniary gain. The word is to be taken as referring to a company which is formed to acquire something or in which the individual members are to acquire something. (Para 7) Anno: AIR Man. Comp. Act S.4 N.4. Cases Referred : Chronological Paras (A) (V13) AIR 1926 All 591 : 48 All 735 8 (B) (V26) AIR 1939 Cal 187 : ILR (1938) 2 Cal 368 8 (C) (17) 22 Mys CCR 17 8 E.V. Mathew, for Petitioner; P.M. Manaya, for Respondents. Judgement ORDER:- This is a revision petition preferred by the petitioner-defendant against the finding of the learned Munsiff of Virajpet, Coorg, on Issue No.1 in Original Suit No.140 of 1952, holding that the matters involved in the suit could be agitated by way of a suit.

2. The facts that have given rise to this petition are briefly as follows: The plaintiffs and defendant are members of the same family known as Pattada family at Betoli village in Coorg. A few years prior to the institution of the suit, the members of this family, 73 in number, started for the benefit of the family some funds known as Grain Fund, Death Fund, Palettimakki Fund, Education Fund and Miscellaneous Fund and these were being managed by the members of this family. For some reason or other, the plaintiffs did not desire to continue as members of the said funds as at present constituted and managed. Thereupon they notified their said intention to the defendant and asked him to go through the accounts and cause payment of their share in the said funds. The defendant did not comply with their request and consequently the plaintiffs filed the present suit in the Court below for the dissolution of the funds and for accounts and also for a declaration of their shares in the said funds and payment thereof. They estimated the total value of the funds at Rs.4500/- and their share at Rs.700/-.

3. The defendant inter alia contended that the constitution and working of the various funds alleged in the plaint were not correct, that the suit as not maintainable and that the Court had no jurisdiction to decide matters involved in the suit. In the memo of particulars filed by the defendant on 16-2-1953 in answer to the information sought by the plaintiffs the defendant has pleaded that the association of plaintiffs and defendant falls within the definition of an unregistered company under the Indian Companies Act, that all the relative provisions of the said Act were attracted and that the plaintiffs remedy was only by means of an application to the concerned Court for its being wound up. On these pleadings, two preliminary issues were framed by the learned Munsiff. The first issue is whether the matters in issue in this suit could be agitated by way of a suit or only by way of an application for winding up before the District Court or the High Court. The second issue is whether the suit is within the pecuniary jurisdiction of that Court. The learned Munsiff held on the first issue that the suit was maintainable in that Court and that no application for winding up was necessary and on the second issue he held that the suit was within the pecuniary jurisdiction of that Court. The present revision petition is filed against the finding of the learned Munsiff on the former part of the first issue holding that the matters involved in the suit could be agitated in that Court. It is unnecessary for the purpose of disposing of this petition to go into the question whether the finding of the learned Munsiff that the plaintiffs could also file an application for winding up at their option is correct or not.

4. The main point that arises for consideration is whether the Court below was competent to deal with the matters involved in the suit or, in other words, whether the suit was maintainable. It appears to me that the finding of the learned Munsiff cannot be sustained. The learned Munsiff has observed in para. 1 of his judgment, relying on the words "any unregistered company may be wound up", appearing in S.271(1) of the Indian Companies Act, that it is left to the option of the aggrieved party to seek his remedy either by way of a suit or a petition for winding up. The interpretation placed by the learned Munsiff on the words referred to above does not appear to be correct. Section 271 deals with winding up of unregistered companies. There is nothing in that section or in the words "any unregistered company may be wound up", relied on by the learned Munsiff, to indicate that such matters could also be agitated in a civil Court. Therefore I am of opinion that the words "any unregistered company may be wound up", appearing in S.271, Indian Companies Act, do not give rise to any inference that the aggrieved party can also institute a suit.

5. The contention urged on the side of the petitioner-defendant is that the association of the plaintiffs and defendant consists of more than twenty members, that it is not registered, that the matter in issue cannot be agitated in a civil Court and that the suit is therefore not maintainable. There appears to be considerable force in this contention. It was urged on the side of the respondents-plaintiffs that the point referred to above is a new point raised in this Court, that they have been taken by surprise and that the defendant should not be allowed to question the jurisdiction of the Court below to deal with the matters involved in this suit. I am of opinion that this contention is ill-founded. In para.6 of the statement filed on 28-1-1953 the defendant has taken a stand that the suit is not maintainable. This is further clarified in para.2 of the memo of particulars furnished by the defendant on 16-2-1953. Therein he has given reasons why the suit is not maintainable, they being that the association of the plaintiffs and defendant falls within the definition of an unregistered company as defined in the Companies Act and that all the relevant provisions of the said Act are attracted. I think that the averments made in the written statement and the memo of particulars furnished were sufficient to indicate as to what the stand of the defendant was. The former part of the first issue as framed by the Court, whether the matters in issue could be agitated by way of a suit, also goes to indicate that the plea urged by the defendant was understood in the way as urged on his side. Therefore it cannot be argued that the plaintiffs have been taken by surprise.

6. Section 4(2) of the Indian Companies Act runs thus: "No company, association or partnership consisting of more than twenty persons shall be formed for the purpose of carrying on any other business that has for its object the acquisition of gain by the company, association or partnership, or by the individual members thereof, unless it is registered as a company under this Act, or is formed in pursuance of an Act of Parliament of the United Kingdom or some other Indian law or of Royal Charter or Letters Patent." Section 4(3) of the Act runs as follows: "This section (Section 4) does not apply to joint family carrying on joint family trade or business and where two or more such joint families form a partnership in computing the number of persons for the purposes of this section, minor members of such families shall be excluded." We are not concerned with sub-s. (3) of S.4 inasmuch as it is not the case for the plaintiffs that they and the defendant form members of an undivided family or that they are carrying on a joint family trade or business. Admittedly the plaintiffs and defendant are members of a divided Hindu family. To attract the provisions of S.4(2) of the Act, three ingredients are to be present, and they are (1) an association of more than twenty persons, (2) which carry on business and (3) that business should be for the acquisition of gain. It appears to me that all these ingredients exist in the case on hand

7. It is admitted that this is an association formed by voluntary act of parties consisting of 73 members and that it is unregistered. It was contended by the learned counsel for the plaintiffs that the association is not carrying on any business and that it has not for its object the acquisition of gain. I do not see any force or substance in this contention. The association deals with five funds. From a reading of the allegations contained in the plaint, it is seen that every member constituting this association contributes money, grains and lauds, makes profit by lending the same to the members of the family or association and others in some cases and utilises it for the benefit of the members. The transactions carried on by this Association do not consist of a single act but a series of acts giving rise to mutual rights and liabilities. The word gain means acquisition and is not limited to mere pecuniary gain. The word is to be taken as referring to a company which is formed to acquire something or in which the individual members are to acquire something. In the present case, the contributions made by each member are utilised for the acquisition of further gains which are meant to be distributed among the members of the association. Therefore the transactions carried on by the association of plaintiffs and the defendant is, in my opinion, a business having for its object the acquisition of gain as contemplated under S.4(2), Indian Companies Act. All the conditions required to be fulfilled under that sub-section have been complied with in the present case. Any association or company formed in contravention of S.4(2), Companies Act, must be held to be illegal, and no court should entertain a suit brought in relation to such company or association. The consensus of opinion of the several High Courts in the Indian Union is in support of the -reposition laid down above.

8. The first case I should like to refer is the one reported in - Mewa Ram v. Ramgopal, AIR 1926 All 591 (A). Therein it is held that under no circumstance can a member of an illegal association sue for partition of assets or ask for accounts. Again in the decision reported in AIR 1926 All 591 (A), it is held by a majority that S.4 is a bar to the maintainability of such a suit. The Calcutta High Court has held in the case reported in - Nibaran Chandra v. Lalit Mohan, AIR 1939 Cal 187 (B) that an association, the members of which exceed twenty, is an illegal one by reason of non-registration and that a suit at the instance of one of the members of such association is not maintainable. Coining to our own High Court, there is a decision reported in - Abdul Waheli Saheli v. Badrudin Khan Sahib, 22 Mys C.C.R 17 (C) in which it is laid down that a suit to recover sums of money advanced by a member of an unregistered company against another member is not maintainable inasmuch as the company was not registered. I am of opinion that the finding of the learned Munsiff that the suit was maintainable in that Court cannot be supported.

9. In the result, the finding of the learned Munsiff of the former part of the first issue is set aside and this revision petition is allowed. Revision allowed. AIR 1955 MYSORE 151 (V. 42, C. 66 Dec.) "Public Prosecutor v. Mullangi" MYSORE HIGH COURT Coram : 2 SREENIVASA RAU AND HOMBE GOWDA, JJ. ( Division Bench ) Public Prosecutor, Appellant v. Mullangi Soolappa, Accused, Respondent. Criminal Appeal No.36 of 1954, D/- 22 -7 -1955, against decision of S.J., Bellary, in Cri. Appeal No.31 of 1953. (A) Madras General Sales Tax Act (9 of 1939), S.15(b) - Madras General Sales Tax Rules (9 of 1939), R.28(a) - SALES TAX - Sales Tax - Notice under R.28 is basis of prosecution u/S.15(b) of the Act. Proper service of the notice under R.28 is the foundation for any penal action under S.15 (b) of the Act. And as the tendering of the notices to the assessees clerk cannot be regarded is proper service under R.28(a), in the absence of proof that he is either the manager or agent of his employer, the prosecution must fail. (Paras 6, 8) (B) Madras General Sales Tax Act (9 of 1939), R.28 - SALES TAX - Sales Tax - Inference of acceptance of notice. When there is no material on record to show that there was an acceptance by the assessee of notice under R.28, the acceptance of notice cannot be inferred from his preferring an appeal from the assessment order. (Para 7) (C) Madras General Sales Tax Rules (9 of 1939), R.28(b) - SALES TAX - APPLICABILITY OF AN ACT - Sales Tax - Applicability. Rule 28 (b) does not apply when there is no proof that the persons mentioned in the rule were not found at the assessees shop. (Para 6) Advocate-General, for Appellant; V. Krishnamurthi, for Respondent. Judgement In pursuance of S.41(2) of the Andhra State Act, 1953, the Chief Justice of Madras transferred the appeal to the High Court of Mysore.

2. In the trial Court, the accused contended that he had not been duly served with copies of the notices in respect of the final and provisional assessments in question in accordance with the provisions of R.28, Madras General Sales Tax Rules, and that the accused having been provisionally assessed to sales tax for the year 1951-52 as late as 12-2-1954 when the year was virtually nearing its end and called upon to pay the tax on or before 21 days from the date of service of the demand notice which was served on him on 3-3-1952, he was deprived of the benefit provided under the Act for payment of the provisional tax in instalments and that the prosecution was therefore vitiated by the said two vital defects. Neither of these contentions found favour with the learned trial Magistrate who convicted the accused as mentioned above and sentenced him to pay a consolidated fine of Rs.350/- and in default to undergo simple imprisonment for two months and two weeks apart from the payment of the final tax and the provisional tax which were to be recovered as fine.

3. The accused preferred an appeal to the Court of Sessions, Bellary Division. Before that Court he also urged that the assessment was ultra vires of the Act. The appellate Court rejected the second contention on the ground that it had not been raised before the trial Court, refusing to accede to the argument that the said contention was covered by a memo dated 14-11-1952 filed on behalf of the accused. As regards the first contention, the learned Judge held that the service of the notices in question was not in conformity with R.28, Madras General Sales Tax Rules, and this defect exonerated the accused from the operation of S.15(b) of the Act since, in the absence of a valid service of the notices, no question of failure to pay within the time allowed could arise. He, therefore, set aside the conviction and acquitted the accused. The State of Madras appealed against this decision challenging the correctness of the appellate Courts view in regard to the validity of the service of the notices in question.

4. Rule 23, Madras General Sales Tax Rules, is as follows: The service on a dealer or licensee of any notice, summons or order under the Act or the Rules made thereunder may be effected in any of the following ways, namely: (a) by giving or tendering it to such dealer or licensee or his manager or agent; or (b) if such dealer or licensee or his manager or agent is not found, by leaving it at his last known place of business or residence or by giving or tendering it to some adult member of his family; or (c) if the address of such dealer or licensee is known to the assessing authority, by sending it to him by registered post; or (d) if none of the modes aforesaid is practicable, by affixing it in some conspicuous place at his last known place of business or residence."

5. In the present case the notices purport to have been served on the assessee by tendering them to one Maranna, the clerk of the accused. The prosecution has sought to prove this fact by examining P.W.4, a peon under the Assistant Commercial Tax Officer. He says in the course of his evidence that he served the assessment orders and notices on the two occasions on Maranna, a clerk of the accused. In the course of the cross-examination he says that he did not see the accused and that the clerk said that he had authority to receive the notices. P.W.4 admits that he did not ask the clerk whether such authority was in writing. Exhibits P-3 and P-4 have been produced by the prosecution as acknowledgments in respect of the two notices. Ex.P-3 contains writing which purports to be the signature of Maranna, the clerk of the accused. There is no specific indication as to what the signature is intended for. This acknowledgment is stated to be in relation to the final assessment for 1950-51. Ex. P-5 also contains writing purporting to be the signature of Maranna, clerk of the accused. This signature, however, is below the printed statement reading "received the above A-2 notice from the Deputy Commercial Tax Officer, Bellary-1." This acknowledgment is stated to be in respect of provisional assessment for 1951-52. As the evidence of P.W.4 is uncontroverted, it may be taken as proved that the notices intimating to the accused the two assessments as also the time for payment were served on Maranna, a clerk of the accused.

6. The point for consideration is whether such service fulfils the requirements of R.28 quoted above. R.23(a) enables service of the notice on the assessee or his manager or agent. R.28(b) enables service of the notice by leaving it at the assessees place of business or residence or by tendering it to an adult member of the assessees family only after the assessee or his manager or agent is not found. Sub-clauses (c) and (d) of R.28 do not arise for consideration in this case. There is no evidence that the assessee was not found. All that P.W.4 says is that he did not see the accused. He does not say that he asked for the accused or that he tried to find him and being unable to do so, left it at the accuseds shop. Hence R.28(b) also does not apply to the case. Rule 28 (a) would apply if the clerk Maranna could be regarded as the assessees manager or agent. It is quite possible that a clerk may also function as the manager or agent of his employer, but this has to be established by evidence. P.W.4 has no doubt stated that Maranna said that he had authority to receive the notices. Maranna has not been examined and what he told P.W.4 is not admissible evidence. There is no other evidence bearing on the point. In the absence of any such evidence, the clerks functions must necessarily be regarded as being confined to the purpose of his employment, i.e., to do clerical work, namely, to keep records or accounts or to have charge of correspondence. The position of manager or agent necessarily implies much greater responsibility and it is on this account that the rule advisedly invests such a functionary with a representative character for the purpose of tendering notice. It is hardly necessary to say that to treat every employee as the manager or agent of the employer irrespective of the scope of employment would lead to untoward consequences, particularly in a matter involving taxation and the penal enforcement of its levy. It must, therefore, be held that the tendering of the notices to the assessees clerk cannot be regarded as proper service under R.28. It is urged by the appellant that this plea was not raised by the accused in answer to the question put to him. But it will be seen from what is mentioned above that the evidence adduced by the prosecution itself does not establish proper service and it was quite in order for the accused to put forward the contention in question on the basis of the prosecution case put forward by them.

7. It is also urged that the assessee had accepted the service as sufficient and had preferred an appeal from the order of assessment. There is no material to show that there was any such acceptance by the assessee, nor can it be inferred from his preferring an appeal from the assessment order. In preferring an appeal he was only availing himself of a remedy which was open to him and that step could not imply his acceptance of the service of notice.

8. Proper service of the notices under R.28 not having been effected in this case and such service being the foundation for any penal action under S.15(b) of the Act, it follows that the prosecution has to fall.

9. The decision of the learned Sessions Judge must, therefore, be upheld. This appeal is accordingly dismissed. Appeal dismissed. 1954 AIR 1954 MYSORE 1 (Vol. 41, C.N. 1) "Sundara Rao v. Appiah Naidu" MYSORE HIGH COURT (FULL BENCH) Coram : 3 MEDAPA, C.J. VENKATA RAMAIYA AND MALLAPPA, JJ. ( Full Bench ) S. Sundara Rao, Appellant v. B. Appiah Naidu and another, Respondents. Second Appeal No. 171/1949-50, D/- 7 -7 -1953, from order of Addl. Dist. Judge, Mysore, D/- 10 -6 -1949. (A) Limitation Act (9 of 1908), Art.182 - LIMITATION - EXECUTION - Proper Court - Application to take some step-in-aid of execution. A transfer of the decree is a necessary preliminary to the execution of the same in another Court. As such it is a "step-in-aid" of execution. And if each application is filed within three years from the date of disposal of the prior application, these must all be held to be within time. 25 Mys. CCR 298 (FB), Foll. (Para 3) Per Mallappa, J. : A decree-holders application made to the Court which passed the decree for transferring the decree to another Court long after his first application for transfer, presuming bona fide that the latter Court must have sent back to the former Court the report under S. 41, Civil P.C., along with the decree copy should be held to be a step-in-aid. Case law Ref. (Para 16) Anno : Lim. Act, Art. 182 N. 89 and 99. (B) Civil P.C. (5 of 1908), S.38, O.21, R.6, R.7 - EXECUTION - DECREE - Jurisdiction of transferee Court - 28 Mys. CCR 191, Overruled. In the proceeding for the transfer of a decree for execution in another Court, the sending of a decree copy is not an essential condition for the transferee Court having jurisdiction to execute decree. And, hence, the date on which copy of the decree was produced in the proceedings for transfer does not affect the question of limitation. The law does not make it obligatory for a copy of the decree being filed by the decree-holder. 52 Mys HCR 400; AIR 1953 SC 65, Rel. on; 54 Mys HCR 58, Disting.; 28 Mys CCR 191, Overruled. (Paras 4, 10) (C) Civil P.C. (5 of 1908), S.38 - Limitation Act (9 of 1908), Art.182 - EXECUTION - DECREE - LIMITATION - Decree transferred - Application for execution to transferor Court - Proper Court. The Court that transfers a decree to another Court does not lose its control over the decree transferred by it and has in fact power to withdraw the decree. Hence, an application made to the Court which passed the decree to execute it or transfer it for execution even after the decree has already been transferred to another Court for execution is an application made to the proper Court and in accordance with law. AIR 1935 Lah 465 (FB) and AIR 1942 Nag 63, Foll. (Paras 5, 12) Anno : C.P.C., S. 38 N. 10; Lim. Act, Art. 182 N. 89. (D) Civil P.C. (5 of 1908), O.21, R.28 and S.42 - EXECUTION - DECREE - Executability of decree. Questions relating to executability of decree such as limitation can be raised and decided in the Court which passed the decree when transfer is applied for. The words in O. 21, R. 28 lend support to this view. (Para 7) Anno : C.P.C., O. 21 R. 28 N. 1; S. 42 N. 3. Cases Referred : Courtwise Chorological Paras (A) 25 Mys CCR 298 (FB) 3 (B) (39) AIR 1939 Cal 651 : 187 Ind Cas 67 3, 7 (C) (47) 52 Mys HCR 400 4 (D) 28 Mys CCR 191 4, 9, 10 (E) (49) 54 Mys HCR 58 5, 11 (F) (35) AIR 1935 Lah 465 : 157 Ind Cas 488 (FB) 5 (G) (53) AIR 1953 SC 65 : 1953 SCR 377 (SC) 6, 10 (H) (31) AIR 1931 Cal 312 : 58 Cal 832 7

(I) (33) AIR 1933 Mad 627 : 56 Mad 692 10 (J) (16) AIR 1916 PC 16 : 43 Ind App 238 (PC) 12 (K) (23) AIR 1923 Pat 384 : 2 Pat 247 12

(L) (25) AIR 1925 All 276(2) : 47 All 57 12 (M) (42) AIR 1942 Ngp 63 : ILR (1942) Nag 539 13 (N) (37) AIR 1937 Ngp 305 : ILR (1937) Nag 440 13 (O) (40) AIR 1940 Pat 677 : 191 Ind Cas 695 14 (P) (39) AIR 1939 Mad 378 : 186 Ind Cas 449 15 (Q) (34) AIR 1934 PC 14 : 55 All 993 (PC) 15 (R) (49) 54 Mys HCR 275 15 (S) (34) AIR 1934 Bom 266 : 151 Ind Cas 767 15 (T) (97) 1897 All WN 75 : 19 All 337 15 (U) (09) 1 Ind Cas 57 : 9 Cal LJ 443 15 Nittoor Srinivasa Rao, for Appellant; S. K. Venkataranga Iyengar, for Respondents. Judgement VENKATA RAMAIYA, J. :- The appellant is a judgments-debtor who has failed in both Courts in his contention that the decree, execution of which is sought by respondent 1, is inexecutable. The decree is for payment of money by the appellant and another. It was passed in the Court of the First Munsiff, Bangalore, on 26-8-1932 and transferred on the application of the decree-holder, more than once to the Court at Mysore Where the appellant resides. The first order for transfer was made on 7-6-1935 in Execution Case No. 1048 of 34-35, the second was on 22-7-1938 in Execution Case No. 1092 of 37-33, the next one was in Execution Case No. 949 of 40-41 on 14-10-1941. After this, Execution Case No. 643/41-42 was filed in the First Munsiffs Court. Mysore, for executing the decree but dismissed on 29-5-1942 on account of non-payment of process. Transfer of the decree was again applied for in Execution Case No. 547/42-43 on the file of the First Munsif, Bangalore, and obtaining order for the same on 23-2-1942, respondent 1 instituted Execution Case No. 850/42-43 in the Court of the First Munsif, Mysore, for recovery of the amount by arrest of the appellant and attachment of his moveable properties.

2. The objections to the execution raised in the Courts below and repeated here are, that mere filing of successive applications for transfer of the decree does not extend the time for purpose of execution, that the first application for execution, Execution Case No. 643/41-42 being filed more than 6 years from the date of decree, there is bar of limitation. As an additional reason for the same it was pointed out that more than three years from the date of disposal of the previous application had elapsed when copy of the decree was filed in Execution Case No. 1092/37-38 and that the later applications for transfer were filed without report of non-satisfaction from the transferee Court.

3. The points for consideration chiefly are whether application for transfer is a step-in-aid of execution which would enlarge the period of limitation, whether production of copy of the decree is necessary for an application for transfer and whether a second or subsequent application for transfer is of no effect if at the time it was filed there was no report of non-satisfaction of the decree from the transferee Court to the Court which passed the decree. It cannot be denied that transfer of the decree is a necessary preliminary to the execution of the same in another Court and as such is a "step-in-aid" of execution. The opinion of the Full Bench in - 25 Mys. C. C. R. 298 (A) is sufficient authority for this. As expressed in - Manmatha Pal v. Sarada Prasad, AIR 1939 Cal. 651 at p. 655 (B). "An application for transfer of a decree is a step-in-aid of execution. By that application the decree-holder asks the Court which passed the decree to assist him for the purpose of carrying further proceedings to realise his decree." Since the appellant is admittedly a resident in Mysore, want of bona fides in seeking the transfer of the decree cannot be imputed to the decree-holder. As each application was filed within three years from the date of disposal of the prior application, these must all be held to be within time.

4. The date on which copy of the decree was produced in the proceedings for transfer cannot I affect the question of limitation unless it is possible to hold that this application is not valid till the copy is filed. It has been clearly stated in -Rama Rao v. Saraswathi Bai 52 Mys H. C. R., 400 (C) that there is no obligation on the part of the decree-holder to file a copy of the decree along with the application for transfer. The view expressed in - 28 Mys CCR 191 (D), that an application for transfer is defective till copy of the decree is filed and not in accordance with law till then is dissented from and is said to be not warranted by the facts of the case. Reference is also made in - 52 Mys HCR 400 (C) to the observation in an unreported case that "A close examination of the facts of that case - 28 Mys CCR 191 (D) clearly shows that the learned Judges did not intend to lay down, such a broad proposition."

28 Mys CCR 191 (D) cannot, therefore, be regarded as laying down that in all cases the validity of an application for transfer depends on the production of copy of the decree and state-meats to that effect must be taken to be incorrect.

5. Narayana Setty v. Padmanabhiah, 54 Mys HCR 58 (E) has no bearing on the point as it deals with only the question of the transferee Court having jurisdiction to execute the decree if it has not returned copy of the decree. There is no need to discuss the soundness of this view as the question for decision in the present case is altogether different. Learned counsel cited some cases in which the question as to which is the proper Court in which the application for execution is to be filed and jurisdiction of the Court which passed the decree to entertain an application for transfer when report of non-satisfaction is not received from the transferee Court, is dealt with. Referring to the important decisions touching the point Jai Lal, J. in the course of the judgment of the Full Bench in - Kanti Narain v. Madan Gopal, AIR 1935 Lah 465 (F) expresses "According to these tests an application made to the Court which passed the decree to execute it or transfer it for execution even, after the decree has already been transferred to another Court for execution must be held to be an application made to the proper court and to be in accordance with law as the Court is competent to grant the application in any case after obtaining a report under S. 41 from the other Court and a fortiori is competent to receive or to entertain the application. The application does not cease to be in accordance with law merely because before acting upon it the Court ought to take some preliminary action i.e. obtain a report under S. 41, C.P.C. and it is not necessary that the decree-holder should expressly ask in the application that this should be done." Proceeding, the learned Judge remarked : "The only objection to transfer the decree to the same Court for the second time before the result of the previous application is certified by it could be on the score of futility of such an application, but this has no bearing on the question of jurisdiction."

6. In a recent case reported in - Mohan Lal v. Benoy Kishna, AIR 1953 SC 65 (G) Das, J. has held that omission to send a copy of the decree or an omission to transmit to the Court executing the decree the certificate referred to in O. 21, R. 6, C.P.C., does not prevent the decree-holder from applying for execution to the Court to which the decree has been transmitted. In that case the validity of a sale held in the Court at Asansol in execution of a decree of Calcutta High Court was questioned on the ground that it has no jurisdiction to execute the decree after a certificate under S. 41 was sent to the Calcutta Court which passed the decree. The learned Judge also held that no particular form for transmission of a decree is prescribed by the Code and that the Court can even suo motu send the decree for execution to another Court. Ghulam Hasan, J. applying the rule of constructive res judicata to execution proceedings held that failure of the judgment-debtor to object to the execution at earlier stages operated as a bar to raise any plea of want of jurisdiction.

7. The present appellant cannot be said to have acted without delay as he failed to appear and put forward any objection either in Execution Case No. 1092/37-38 or Execution Case No. 849/40-41 in spite of his being served with notice. If, as contended, the decree is inexecutable for any reason it was up to the appellant to show that transfer of the decree sought for in these cases is unnecessary and a useless formality for an infructuous proceeding. He stayed away as if there was nothing to be said against the transfer. A decree is transferred not as a matter on course but as a means of obtaining satisfaction and if the assistance of the Court cannot be had to this end, there is no meaning in mechanically passing an order of transfer or allowing it to be passed. As stated in - AIR 1939 Cal 651 at p. 654 (B) : "The Court to which the application for transfer is made does not merely function as a post office but it has judicial duties to perform. It is required by statute to exercise judicial discretion. An objection raised by a judgment-debtor opposing the transfer will be an objection relating to execution of the decree. The words "relating to execution of the decree" in S. 47 are wide enough to cover the case." Questions relating to executability of decree such as limitation can be raised and decided in the Court which passed the decree when transfer is applied for. (See - Sreenath Chakravarti v. Priyanath, AIR 1931 Cal 312 (H)). The words in O. 21, R. 28, C.P.C. lend support to this view. The objection of the appellant on the score of limitation, report of non-satisfaction etc., are thus belated and untenable. The appeal is dismissed with costs.

8. MEDAPA, C. J. :- I agree.

9. MALLAPPA, J. :- I agree. It has been laid down in - 28 Mys CCR 191 (D) that the limitation for an application for transfer depends upon the production of the copy of the decree. It was observed in that case : "The decree-holder could not have obtained a transfer without the decree copy filed; the application was till then a defective one, and only became an application in accordance with law when the copy was filed." It is contended in this case that though the application for transfer of the decree was filed in time, it was not a valid application as the copy of the decree was filed after the period of limitation. It is next urged that the transferring Court had no jurisdiction to receive any application for transfer as the decree copy sent along with the previous transfer proceedings had not been returned to that Court from the transferee Court. It is, therefore, of some importance to examine whether it is obligatory, for the decree-holder to file a copy of the decree for being sent to the transferee Court and whether the jurisdiction of any of the Courts is affected by the copy of the decree being not sent to the transferee Court or by the later Court not returning it.

10. Section 39, C.P.C. merely authorises the Court which passes the decree to send it for execution to another Court in certain cases. It does not say that the application for transfer should be accompanied by a copy of the decree. Order 21, R. 6, C.P.C. states that the Court sending a decree for execution shall send a copy of the decree. But the omission to send a copy of the decree to the transferee Court does not prevent the decree-holder from applying to that Court for execution as is clear by the decision in - Modali Ademma v. Venkata Subbayya, AIR 1933 Mad 627 (I). The reason, however, for sending a copy of the decree is stated in O. 21, R. 7, C.P.C. According to it, a Court to which a decree is sent shall cause the copy to be filed without any further proof of the decree. It will thus be seen that sending of a decree copy is not an essential condition for the transferee Court having jurisdiction to execute the decree, and that is why it has been laid down by Das, J. in - AIR 1953 SC 65 (G) : "That an omission to send a copy of the decree or an omission to transmit to the Court executing the decree the certificate referred to in Cl. (b) of O. 21, R. 6 does not prevent the decree-holder from applying for execution to the Court to which the decree has been transmitted." Assuming, however, that it is essential for the transferring Court to send a copy of the decree to the transferee Court, nothing comes in the way of it getting a copy of the decree prepared and sending it to the transferee Court. As there is provision in S. 39, C.P.C. for a Court on its own motion sending a decree for execution to any subordinate Court of competent jurisdiction, it is clear that the law does not make it obligatory for a copy of the decree being filed by the decree-holder. The decision in - 28 Mys CCR 191 (D) that an application for transfer is only valid when a copy of the decree is filed is not followed in later decisions of our High Court and it is to set at rest the conflict, if any, in the decisions of our Court that this case was referred for a decision by a Full Bench. The decision in - 28 Mys CCR 191 (D) that an application for transfer is defective when it is not accompanied by a decree copy is incorrect.

11. As regards the contention that the transferor Courts jurisdiction depends upon the decree copy being returned from the transferee Court, it is mainly based on an observation made in the case reported in - 54 Mys CCR 58 (E), that the jurisdiction of the transferee Court ceases when the copy of the decree is returned by that Court to the Court that transferred the decree, with a certificate of non-satisfaction. This observation is based on S. 41 which provides that the Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution or where the former Court fails to execute the same the circumstances attending such failure. It is, however, clear that S. 41, Civil P.C. does not refer to the transferee Court returning the copy of the decree, if any, sent to it. Moreover the decision of the Supreme Court referred to above lays down that it is possible for the transferee Court to execute the decree which is transferred though no copy of the decree has been sent to it. In such a case it cannot be conceived how the transferee Court could be expected to return the copy of the decree. But it has been observed in - 54 Mys CCR 58 at p. 68 (E) that : "What really puts an end to the jurisdiction of the transferee Court is the return of the decree copy to the Court that passed the decree as thereby the transfer proceedings come to an end. So long as the decree copy remains on the file of the transferee Court, the mere transmission of a certificate under S. 41, C.P.C. does not, in our opinion, put an end to the jurisdiction of the transferee Court." These observations, however, it has to be stated with great respect, were unnecessary for the decision of the case as in that case it could not be said that the decree copy remained on the file of the transferee Court and there was merely a transmission of a certificate under S. 41, C.P.C. It was a case in which the certificate under S. 41 had not also been sent. So the decision cannot be taken as an authority, at any rate, for the position that the transferring Court gets jurisdiction only after it gets back a copy of the decree sent by it.

12. There are a number of decisions as regards the question whether the Court that transfers a decree loses its jurisdiction in respect of it. It would be sufficient, however, to refer to the commentary in Mullas Civil Procedure Code on the point (page 173) : "After transferring a decree to another Court for execution, the Court which passed the decree cannot itself execute the decree; and an application for execution made to it after the transfer and before a certificate of non-satisfaction under S. 41 has been returned, is not even a step-in-aid of execution so as to save limitation. This is one view. The other view is that there is no justification for holding that the transferor Court cannot execute a decree after it is transferred to another Court; and that when the transferor Court transfers a decree, it does not invest itself of its power but only vests the transferee Court with powers it would not otherwise have. The difference of opinion mainly turns on the construction placed on the judgment in - Maharaja of Bobili v. Narasaraju, AIR 1916 PC 16 (J). But the Court which passed the decree does not altogether surrender control of the execution proceeding. It has power under O. 21, R. 26, to make an order for stay of execution. It may withdraw execution by calling back the decree; or it may make an order for simultaneous execution by another Court; or it may make an order for rateable distribution. It has, moreover, jurisdiction to decide an objection as to limitation if referred to it by the transferee Court. If the decree is assigned after transfer, the assignee must apply for execution to the original Court. If after a decree has been transferred for execution the judgment-debtor dies, the Court which passed the decree is by S. 50 the proper Court to order that execution should proceed against the legal representative. This is, however, merely a question of procedure and if the transferee Court makes the order, that would be only an irregularity which might be waived." As however rightly observed in the commentary on the Code of Civil Procedure by Chitaley and Annaji Rao on S. 38 while dealing with the decision of the Privy Council referred to above; "The decision does not touch the question of the maintainability of simultaneous execution applications. On the strength of the said decision, it was, however, held in the undermentioned cases - Jnanendra Nath v. Gogendra Narain Sinha, AIR 1923 Pat 384 (K); - Muhammad Habibullah v. Tikamchand, AIR 1925 All 276 (2) (L) etc. that simultaneous executions are not permissible in two Courts. It is submitted that the latter view is not correct. Their Lordships observations in the Privy Council case, during the course of the argument, that the tendency of the Code is against concurrent executions, appear to have influenced the decisions of the High Court. But the observations must be taken to refer to concurrent executions against the same property." Considering that the Court that transfers a decree to another Court does not lose its control over the decree transferred by it and has in fact power to withdraw the decree, the contention that the transferring Court is not a proper Court for filing an application in respect of the decree is without substance.

13. The decision in - Maruti Bansi v. Nanjappa Chetty, AIR 1942 Nag 63 (M) was relied on by the learned advocate for the judgment-debtors. It has been held in that case that : "The Court which passes a decree does not lose its power to execute the decree after it transfers the decree to another Court for execution. Consequently, an application to the Court which passed the decree to recall it from the Court to which it was transferred by it for execution and to send it back there again would be an application made to the "proper Court" within the meaning of Art. 182(5) but such an application would in no way assist the execution and would therefore not be a step-in-aid of execution and hence would not save limitation under Art. 182 (5)." This decision follows the observations in - Vishwanath Singh v. Mahabir Prasad, AIR 1937 Nag 305 (N), though in that decision the point was left undecided. It was observed in that case : "It is, however, desirable to warn litigants against wasting the time of Courts by useless applications (that is applications which if granted do nothing) merely to mark time and save limitation." In this case an application to transfer the decree was filed to the Court that passed the decree for transferring it to a Court in Mysore more than six months after the decree had previously been transferred to the latter Court. The rule of Practice contained in para. 246 of the Civil Rules of Practice and Circular Orders, Vol. I runs as follows : "If after a decree has been sent to another Court for execution, the decree-holder does not, within six months from the date of transfer, apply for the execution thereof, the Court to which the decree has been sent shall certify the fact that no application for execution has been made to the Court which passed the decree and shall return the decree to that Court."

14. It is contended in this case that in spite of this Rule of Practice no certificate was sent to the transferring Court though the decree-holder had not applied for the execution of the decree. Assuming that it is so, it is clear that the decree-holder could only have presumed that the transferring Court must have followed the Rule of Practice and sent a report under S. 41, C.P.C. along with the decree copy within six months time after the decree was sent for execution as the decree-holder had not taken any steps within that time to execute the decree. If, therefore, under a bona fide belief that the decree had been sent back to the transferring Court he applies to that Court for transferring the execution case again, it cannot be said that the decree-holder is making a nominal application and he is attempting to gain time. It is not a case in which he wanted to recall the decree from the transferee Court and to send it again. If it were so it could have been said that he was aware of the transferee Court not having followed the Rules of Practice referred to above. Dealing with a case in which an application was made for a transfer of a decree to a Court which at that time had not the necessary jurisdiction, but shortly before that, had such jurisdiction, it was held in the case reported in - Bishundeo Narain v. Raghunath Prasad, AIR 1940 Pat 677 (O) that the application was in accordance with law, and in that case Meredith, J. observed as follows : "What the rulings state is that the phrase made in accordance with law does not include an application to the Court to do something which either from the decree-holders direct knowledge in fact or from his presumed knowledge of law he must have known the Court was incompetent to do."

15. In a similar case it was observed in - Santhappa v. Siddalingayya Eswarappa, AIR 1939 Mad 378 (P) : "The mere fact that a decree-holder applies for transmission of his decree to a Court, which does not exist, but which he wrongly believes to exist does not prevent his application as being one in accordance with law, inasmuch as it is a mistake of fact and not one of law." There has been a conflict of decisions as to whether an application of this kind should be bona fide before it could be said to be a step-in-aid. But the conflict must be taken to have been set at rest by the decision of their Lordships of the Privy Council in - Khalil-ur-Rahman Khan v. Collector of Etah, AIR 1934 PC 14 (Q) that it was not necessary to be in accordance with law that it should have been made bona fide. The question arose for consideration in this Court in the case reported in - Lingiah v. Naranappa, 54 Mys HCR 275 (R) as to whether an execution application filed against a deceased judgment-debtor under a bona fide belief that he is alive is a step-in-aid for purposes of limitation within the meaning of Art. 182, Cl. 5, Limitation Act. The observations in - Gopal v. Raising, AIR 1934 Bom 266 (S) that : "It is not easy to see why an application which fulfilled all the requirements of the law according to the information available to the judgment-creditor at the time it was made, should not be held to come within the article" was followed as against the view in - Madho Prasad v. Kesho Prasad, 19 All 337 (T). A large number of other decisions have been referred to in it including the decision reported in - Manorath Das v. Ambika Kant, 9 Cal L J 443 (U) where it has been observed : "If an application for execution of a decree be made under the inference of a bona fide mistake against a dead person, though that application cannot be acted upon, still it is an application in aid of execution within the meaning of Art. 179, Cl. 4, Limitation Act, which saves the execution of the decree from being time-barred."

16. In this case the decree-holders application made to the Court which passed the decree for transferring the decree to the Munsiffs Court at Mysore long after his first application for transfer, presuming bona fide that the latter Court must have sent back to the former Court the report under S. 41, Civil P.C. along with the decree copy, must therefore be held to be a step-in-aid. The contentions of the appellant cannot be upheld. I agree therefore that the appeal be dismissed with costs. Appeal dismissed. AIR 1954 MYSORE 5 (Vol. 41, C.N. 2) "Sakamnia v. Chikkannagowda" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Sakamnia, Plaintiff-Appellant v. Chikkannagowda, Defendant-Respondent. Second Appeal No. 412 of 1949-50, D/- 16 -9 -1952, against decree of Addl. Sub-Judge, Tumkur, in R. A. No. 261 of 1946-47. (A) Mysore Village Offices Act (4 of 1908), S.5 - VILLAGE COUNCIL - OBJECT OF AN ACT - Scope. Section 5 makes a distinction between emoluments assigned to the holder of a village office and other emoluments attached to the village office. The term emoluments of village offices, clearly includes not only emoluments assigned to the holder of a village office but also other emoluments which are entitled to be enjoyed by other members of a hakdars family. Where the land in dispute is merely a service inam land which has not been assigned as an emolument to the holder of the village office, it can be enjoyed, transferred or partitioned between the different members of the hakdars family. It is the members of, the holders family that are entitled to be in possession of the emoluments which are not assigned to the holder and not merely members of the holders family. Members of the different branches of the family of the original holder of the village office from amongst whom village officers are chosen are members of the hakdars family. (Para 2) (B) Civil P.C. (5 of 1908), S.9 - CIVIL COURT - VILLAGE COUNCIL - Suits expressly barred. Mysore Village Offices Act (4 of 1908), S.16. A suit by the plaintiff who is in possession of service inam land by virtue of a gift from her father who was the last holder of the pateli office against the present holder of the office for permanent injunction restraining him from interfering with her peaceful possession does not involve the determination of any claim to succeed to or of the possession of any village office or the emoluments thereof and, therefore, is not barred from the cognizance of a civil Court under S. 16. (Paras 3, 4) Anno : C.P.C., S. 9 N. 21, 35, 50, 51. D. Cases Referred : Courtwise Chorological Paras (A) 29 Mys CCR 316 (B) (90) 16 Ind App 186 : 12 All 51 (PC) (C) (27) AIR 1927 Cal 931 (2) : 100 Ind Cas 278 (D) 5 Mys CCR 19 (E) (93) 20 Ind App 99 : 20 Cal 834 (PC) (F) (32) 11 Mys LJ 333 Venkatesaiah, for Appellant; R. Anantharaman and S. Nabhirajaiah, for Respondents. Judgement The facts of the case under consideration in this appeal are not disputed. The correctness of the findings of the Courts below on questions of fact is not challenged. Both the Courts have held that the plaintiff was the daughter of the deceased uncle of the defendant-respondent, who is the present holder of the Pateli Office of Chilaganahalli, a village in Koratagere Taluk. The property in dispute was in possession of defendants uncle Kallurappa and after his death it has been in the possession of his daughter the plaintiff and her son for over 15 years by virtue of a gift made by her father under a registered deed, dated 22-1-1935. The plaintiff filed the suit under appeal for a permanent injunction, restraining defendant 1 the Patel and defendant 2 his son, from interfering with her peaceful possession. Her son who is her legal representative is the appellant. It was contended by the defendants that the property is a pateli-inam land, that it belongs to defendant 1 and that the suit is not cognizable by a civil Court.

2. The point for consideration is whether the plaintiff and her son the appellant after her death have been in lawful possession of the property and are entitled to the injunction prayed for, or whether defendant 1 is entitled to be in possession of that property as the holder of the village office, and the suit in a civil Court is barred. Section 5, Mysore Village Offices Act, 1908, is as follows : "The emoluments of village offices, whether such offices be or be not hereditary, shall not be liable to be transferred, partitioned, or encumbered in any manner whatsoever, and it shall not be lawful for any Court to attach or sell such emoluments or any portion thereof. Provided that in the case of lands which are not assigned as emoluments to the holder of a village office under rules framed under S. 22, nothing contained in this section shall be deemed to affect transfers, partitions or encumbrances, as between different members of a hakdars family." A careful reading of the section makes it clear that the section makes a distinction between emoluments assigned to the holder of a village office and other emoluments attached to the village office. The first portion of S. 5 states that emoluments of a village office are inalienable, impartible and are not liable to attachment. The term emoluments of village offices clearly includes not only emoluments assigned to the holder of a village office but also other emoluments which are, entitled to be enjoyed by other members of a hakdars family. In this case, it has not been shown that the suit land forms part of the emoluments assigned to the holder of the pateli office. It is urged that it is stated in the Revenue Manual in para. 68 (1), "Potgi allowance is a full and sufficient remuneration for services rendered by village officers; the enjoyment of other perquisites of whatever kind ceases" and that it is thus clear that the land now in dispute is merely a service inam land which has not been assigned as an emolument to the holder of the village office. Anyway, there is clear evidence that it was not even formerly assigned to the holder of the office as the father of plaintiff who was the uncle of the holder was in possession of the property. It would not have been in the possession of plaintiffs father who was not a patel if it was intended to be an emolument assigned to the holder of the pateli office. It being thus not concluded in the emoluments assigned to the holder of a village office, there is nothing in S. 5 which comes in the way of this property being enjoyed, transferred or partitioned between the different members of the hakdars family. What is, however, contended is that the persons entitled to enjoy the emoluments of a pateli office not assigned to the holder of the office are only persons of his family such as his sons or brothers. This is wrong as the section itself makes a distinction between the holder of the village office and the other hakdars. It is the members of the hakdars family that are entitled to be in possession of the emoluments which are not assigned to the holder and not merely members of the holders family. Section 8(2) which ideals with succession to village offices states :"The succession in the case of a permanent vacancy (a) shall be regulated by the ordinary provisions of the personal law applicable to the last holder, provided that it shall devolve on a single heir and that where there are more persons than one who would, under the ordinary provisions of the said law, be entitled to succeed to the last holder of the office, preference shall be given to the eldest member of the eldest branch among those persons, and (b) failing these shall devolve on one of the duly recognised hakdars in the order of their importance." Section 8(2) makes it clear that failing heirs of the last male holder, other hakdars in the order of their importance are entitled to succeed to village office. Members of a hakdars family are, therefore, not merely members of the family of the holder and the word hakdar has a wider meaning than the word holder. Members of the different branches of the family of the original holder of the village office from amongst whom village Officers are chosen are members of the hakdars family.

3. It is, however, S. 16, Village Offices Act that takes away the jurisdiction of civil Courts to some extent, and it runs as follows : "No Civil Court shall exercise jurisdiction in respect of any claim to succeed to or to the possession of, any village office, or the emoluments thereof, or any question as to the rate or amount of such emoluments; but, when the claim is as between different members of a hakdars family of patel or shanbhog in respect of land entered in the Government records or otherwise shown as service inam land connected with the office of patel or shanbhog, such claim may be entertained and adjudicated upon by a Civil Court." It is clear the section bars civil Courts from taking cognizance of suits in which any claim to succeed to or to the possession of any village office or the emoluments thereof is laid. What is, however, more significant is the fact that even a claim as in this case, as between different members of a hakdars family of patel or shanbhog in respect of service inam land is entertainable by a civil Court. The nature of the suit also conies under consideration when it was to be held that a suit is barred. It must be a suit in respect of a claim to succeed to or to the possession of any village office or the emoluments thereof. To understand clearly what suits are taken away from the cognizance of civil Courts it would be useful to examine what provision is made for the trial of those claims. When S. 16 takes away the jurisdiction in respect of certain claims, it confers jurisdiction on revenue authorities to decide these claims, and this is laid down in Ss. 9, 10 and 11 of the Act. Section 11(1) runs thus : "Any person may sue before the Deputy Commissioner or Assistant Commissioner for any village office in an unalienated or alienated village or for recovery of the emoluments of any such office, on the ground that he is entitled under Ss. 8, 9 or 10 of this Regulation, as the case may be to hold such office and enjoy such emoluments; or being a minor, may sue before the Deputy Commissioner or Assistant Commissioner to be registered as successor of the last holder of any such office." It is suits of this nature that are barred from being tried in civil Courts. I may here refer 5 to the decision in - 29 Mys CCR 316 (A) which says : "Section 16 of the Village Offices Regulation 4 of 1908 only bars the jurisdiction of the civil Courts where the claim is to the possession of the emolument of a village office as such, that is to say where the claim is based on a right to be the office bearer. Where the claim to the office of patel has already been decided by the revenue authorities, as also the fact that the land in dispute is part of the emoluments of the pateli office, and the land has been transferred to plaintiffs possession by the revenue authorities from the possession of the defendant, a suit subsequently instituted to recover possession of the land on the ground that defendants possession is unlawful does not involve any question as to the title to a village office or as to the possession of emoluments as such; and is therefore within the cognizance of the civil Courts." This suit does not involve the determination of any claim to succeed to or to the possession of any village office or the emoluments thereof. There is nothing in S. 16 which takes away the right of the civil Courts to try such suits.

4. Moreover no question of title arises in cases in suits of this kind where permanent injunction is sought for on the ground of plaintiff having been in lawful possession. As regards the right of a person in a case of this kind for a permanent injunction on the basis of the person having been in lawful possession of the property, though it may be found that that person has not got perfect title, I may refer to the decision in - Sundar v. Parbati, 12 All 51 (E), which is a decision of their Lordships of the Privy Council, wherein the observation of the Chief Justice, against whose judgment the appeal had been filed, viz. that possession is good title against all the world except the person who can show better title, has been cited with approval. Dealing with the rights of the persons to whom the property originally belonged it was observed by their Lordships as under : "Their possession was lawfully attained, in this sense, that it was not procured by force or fraud, but peaceably, no one interested opposing. In these circumstances, it does not admit of doubt that they are entitled to maintain their possession against all comers except the heirs of Premsukh or of Baldeo Sahai one or other of whom (it is unnecessary to say which) is the only person who can plead a preferable title." This decision has been followed in - Gouribala Devi v. Probhas Chandra, AIR 1927 Cal 931 (2) (C). It is also useful to refer to the following passage reported in - 5 Mys CCR 19 at p. 22 (D) : "As observed, however, by Pollock and Wright in their essay on possession in the Common Law, page 22, as against a mere wrong doer possession is conclusive proof of right to possess. Not only is existing possession protected against interference at the hands of a mere intruder, but in an action for wrong to the possession the intruder cannot be heard to say that any third person, to whose title he is himself a stranger, has a better title than the actual possessor : and again at page 19 - possession in law is a substantive right or interest which exists and has legal incidents and advantages apart from the true owners title. Hence it is itself a kind of title." Vide also - Ismail Ariff v. Mahomed Ghous, 20 Cal 834 (PC) (E). The above dictum is followed with approval in - Doada Venkatappa v. Nagari, 11 Mys LJ 333 (P).

5. It has not been shown in this case that the defendant-respondent has any right to be in possession or enjoyment of the land in dispute. He has not shown that he is the heir of his divided uncle Kaliurappa. If, for any reason, his married daughter the plaintiff cannot be said to be a member of that family, it has to be stated that she was entitled to an injunction as prayed for by her. It may be stated at this stage that she is now dead, and her son is brought on record as her legal representative and he, even apart from the gift to his mother, is entitled to the suit property as the heir of his maternal grandfather Kaliurappa.

6. In the result, the judgments and decrees of both the Courts below are set aside, and there will be a decree as prayed for in the plaint. The defendants will pay the costs of the plaintiff throughout. Decree set aside. AIR 1954 MYSORE 7 (Vol. 41, C.N. 3) "Lakshminaranappa v. Mysore Provincial Co-operative Apex Bank" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) Lakshminaranappa and another, Appellants v. Mysore Provincial Co-operative Apex Bank, Ltd., and another, Respondents. Second Appeal No. 465 of 1947-48, D/- 30 -3 -1951, against decree of Dist. Judge, Mysore, in R. A. No. 42 of 1945-46. (A) Mysore Land Revenue Code (4 of 1888), S.54 - LAND REVENUE - AUCTION SALE - TENANCY - EVICTION - Auction sale of entire jodi village for arrears of revenue - Name of only two principal jodidlars entered in record - Sale is not irregular - Failure to establish Kadim tenancy will justify ejectment by purchaser. (Paras 3 and 7) (B) Mysore Land Revenue Code (4 of 1888), S.54 (as amended in 1928) - LAND REVENUE - TENANCY - AUCTION SALE - (Quaere) Whether rights of jodidar as kadim tenant are forfeited and sold in auction sale for arrears of revenue. (Para 4) Cases Referred : Courtwise Chorological Paras (A) 24 Mys LJ 39 : (S. A. No. 354 of 1939-40) (B) (48) R. A. No. 25 of 1947-48 (Mys) M. Lakshminarayana Rao, for Appellants. Judgement BALAKRISHNAIYA, J. :- The dispute in this appeal relates to Jodi Kittane village which is said to contain 28 vrittis owned by 51 sharers. Defendant 1 is the holder of 1 vrittis in the said village. The plaintiff in the suit, from which this appeal arises, claims to have purchased the entire jodi village in an auction sale held by Government for arrears of revenue due on the holding for the year 1933-34. The suit was filed for possession of items 1 to 9 of the suit schedule properties which are alleged to be in the possession and enjoyment of defendant 1. Defendant 1 had, prior to the revenue sale, granted items 2 to 9 to defendant 2 on a permanent lease. The plaintiff has alternatively claimed a decree for all the rights of defendant 1 in items 2 to 9 in addition to actual possession of item 1. An additional claim for mesne profits is also laid in the suit. The plea of defendant 1 is, in main, that the suit properties belonged to her permanent kadim tenancy rights and the plaintiff who has only purchased the jodidars rights is not entitled to possession of the suit items. The trial court held that the plaintiff is only entitled to recover kandayam due to the jodidars from items 1 to 9 and disallowed the rest of the claim. On appeal, the learned District Judge decreed the plaintiffs suit granting the alternative claim for possession of item 1 and for the rights of defendant 1 against defendant 2. The legal representatives of defendant 1 since deceased, have preferred this appeal against that decision.

2. Sri Lakshminarayana Rao, the learned Counsel on behalf of the appellant, raised two contentions namely, that the revenue sale did not have the effect of transferring the rights of defendant 1 in the jodi village and even if admitting, but not conceding, that the entire jodi village was sold, the sale did not affect the right to possession of items 1 to 9 which belonged to defendant 1 as the permanent or kadim tenant thereof. The argument in respect of the first contention is based on exhibit C the order of forfeiture, wherein a mention is made of two persons as the defaulters and in consequence, the sale in pursuance of forfeiture must be deemed to be the right, title and interest of only the defaulters named therein. It is difficult to accede to this argument, in the written statement, defendant 1 has admitted that what is sold is the right to collect the jodi of the entire village, nor could exhibit C be interpreted as the sale confined only to the shares of the defaulters named therein. It is not shown that all the 51 sharers in the village have been registered as occupants.

3. Section 54, Land Revenue Code, provided that arrears of land revenue is a paramount charge on the holding and every part thereof and empowers the Deputy Commissioner to forfeit the occupancy or holding and sell the same free from all tenures, rights and encumbrances created by the occupant or his predecessor-in-title. The section also stated that all the rights created by any occupant or his predecessor-in-title shall become liable unless the Deputy Commissioner otherwise directs. Whether the sale and forfeiture is confined to the shares of the persons named in exhibit C, has to be determined by the examination of the history of the sale proceedings. Exhibit A is the notice of demand issued to Seshadri Iyengar and Lingappa. Exhibits I and II are similar notices, to the Apex Bank at Hassan and Bangalore respectively. Exhibit B is the attachment list dated 11-3-1934 giving the estimated value of the village to be Rs. 30,000/-. In Exhibit C, the entire village has been forfeited. In col. 7 of exhibit D the properties forfeited are described as the entire village and the extent and assessment stated therein accord with the actual figures of the full holding; so also in exhibit E, the proclamation of sale published in the Gazette. In exhibits C and D the names of defaulters are mentioned as Seshadri Keshava Iyengar and Lingappa. Exhibits E and F name the defaulters as Jodidar Seshadri Keshava Iyengar and others. In exhibit B, the attachment list, the kriatedars name is stated to be Sri Rameswara Deity, Lingappa, Seshadri Keshava Iyengar and others : In Exhibit F, the document relating to the confirmation of sale, the name of khatedar is stated to be Lingappa and others. Exhibit H is the confirmation of sale which puts down the khatedars as Lingappa and others; exhibit J the sale certificate, and exhibit L, the delivery receipt, also indicate that the entire village was dealt with. It is not denied that defendant 1 was one of the defaulters in payment of the land revenue. Admittedly, the arrears for which the sale was held represented the entire revenue due to Government for the year 1933-34. The entire Jodi payable re-Government by all the sharers amounts to about Rs. 300/- and it cannot, therefore, be said that the two persons are the defaulters in respect of Rs. 1300/-. Hence, the arrears did not relate to the shares of persons named in the documents. Clause (17) of Section 3, Land Revenue Code, describes the registered occupant as a sole occupant or the eldest or principal of several joint occupants whose name is authorisedly entered in the Government records; and an occupant is described as a holder of land or, when there are more holders than one, the holder having the highest right in respect of any such land. Note 3 to Rule 9 under the inam Rights published in the Revenue Manual prescribes that subsequent alienees who derive their titles from the gifts made by the original holders of inams should not be entered in col. 15 of the said register. It is not shown that defendant 1 is the registered occupant, nor is she the holder of a recognised share assessed separately. Seshadri Iyengar and Lingappa are represented to be the Patel and Shanbhogue respectively and they are thus the principal persons representing the jodi rights. The forfeiture and sale records entered in the name of the principal jodidars representing the entire village cannot be characterised as irregular. In the circumstances, we are of opinion that what is sold is the entire village represented by the principal jodidars.

4. On behalf of the appellant an important point was raised touching the effect of forfeiture and sale of a jodi village on the rights of kadim tenants. It was contended by the appellant that the rights of the kadim tenants are not affected. The contention is undoubtedly in consonance with the amendment to Section 54, Land Revenue Code, after 1928; but the moot point is about the rights of the jodidar, if he happens to be a kadim tenant also. Reliance is placed upon the decision of this Court reported in - 24 Mys LJ 39 (S. A. No. 354 of 1939-40) (A). Our attention is drawn to an observation by Nageswara Iyer, J. - at pages 47-18 that - "In respect of lands in which the tenants hold" kadim or permanent tenancies, the only right the inamdars have, is to collect the assessment thereon. They have no right to possession of lands and if according to the order of forfeiture, it was only the jodidars rights that were forfeited, it would be going too far to contend that the permanent or kadim tenancy rights were also lost on account of the order of forfeiture". This observation is in relation to interpretation of Section 54 which governed the subject matter of the appeal which arose before the amendment of 1928. But the respondents on the other hand cited a more recent decision in - R. A. No. 25 of 1947-48 (Mys) (B) which is yet unreported wherein it is observed that - "Even if a jodidar can be said to have permanent tenancy rights in the lands, of his jodi village, if he is the owner of the jodi village or in his vritti or share in the jodi village, in case he is only, the owner of a vritti, the amendment does not state that any such rights of the jodidar remain unaffected by the sale". There appears to be apparent conflict between the opinions expressed in the cases cited above. It is needless to say that a jodi village consists of jodidars and permanent tenants and it is not uncommon that a jodidar could be a permanent tenant as well. The forfeiture and sale after the amendment of 1928 could not be "so as not to affect the rights of kadim tenants or permanent tenants in alienated holdings". As the legal position is rendered doubtful, the point needs clarification in an appropriate case when the question may again arise for decision. In the view we have taken about the facts in this case, it is unnecessary for us to express an opinion whether the rights of the jodidar as a kadim tenant also are forfeited and sold.

5. The next contention is that defendant 1 held the suit lands as a permanent tenant. On a perusal of the oral and documentary evidence adduced in the case, we are of opinion that the contention remains unsubstantiated. The learned Counsel for the appellant rested his contention solely on exhibit IV, which is denominated as account No. 15 required to be maintained by jodidars. Khata, No. 15 in exhibit IV refers to defendant 1. Exhibit IV contains the details of the lands owned by the vrittidars and others. Khatas 1 to 35 relate to the vrittidars of several lands; kathas 35 to 66 to the lands of kadim tenants and 66 to 198 are in the joint names of tenants and vrittidars. D.W. 1 who was the shanubhogue of the neighbouring village states that the suit lands were vritti lands of Lakshmidevamma. This witness who prepared exhibit B maintains that under the column Khatedar he mentioned Sri Rameswara Devaru Lingappiah and Seshadri Iyengar and others; the expression others was added as there were many other jodidars for Kittane village. D.W. 2 one of the jodidars of Kittane village possessing 13/16ths share, explaining the entries in exhibit IV, states that the lands described in exhibit IV(a) belong to his vritti for which no kandayam is levied. The kandayam due and payable refer only to such lands which, are not specifically described as rent free. He is paying a jodi of Rs. 11-7-0 and cesses to Government on the lands belonging to his vritti; but states that Rs. 11-7-0 does not represent kandayam of all the lands. On a proper calculation he had to pay about Rs. 36/- and the difference was being recovered from the ryots.

6. Exhibit VVV is a sale deed by one other jodidar whose khata is 24 in exhibit IV possessing 1?th vritti in the said Kittane village. In the sale deed of 1909 under reference, it is described as lands sold belonging to that vritti. Besides there are admissions by defendant 1 alone which are conclusive. Exhibit EE is a registered sale deed executed by defendant 1 relating to item No. 4 in exhibit IV wherein she described the land sold as one attached to her vritti. Exhibit BBB is a hypothecation bond of 1901 of items 1 to 6 where the lands hypothecated are described as belonging to 1 vrittis possessed by her. Ex. JJJ is a notice relating to item No.5 in khata No. 15 in exhibit IV. Exhibit FFF is the copy of the plaint filed by defendant 1 in which the land in dispute is described as belonging to her vritti of Jodi Kittane village. Exhibit PP is a document or mortgage by defendant 1 in which she describes the mortgaged property being connected with her 1 vrittis as entered in the Suit Rent Register of Kittane village. Similar references are not wanting in various other documents, but it is not necessary to pursue further to conclude that the schedule lands are comprised in the vritti of defendant 1.

7. Yet another circumstance which supports the conclusion is that according to the revenue accounts, the total assessment of the village is Rs. 2297-12-0 and the jodi payable to Government is about Rs. 1300/-. The lands which are in the possession of tenants are assessed at about Rs. 1100/- and the remainder of about Rs. 300/- is proportionately distributed as the residuary liability of the sharers payable to Government. It is significant to note that in each of the kathas 1 to 35, an endorsement that the Jodidar had to pay the balance after deducting the amounts recovered from the ryots is made in respect of the amount for which the Jodidar is made responsible. The cumulative effect of these facts leads to the conclusion that the shares of lands of the Jodidars are registered in the name of either the jodidar or the jodidar and the tenant and the liability of the jodidar to the proportionate jodi payable to Government as entered in exhibit IV does not indicate that the lands are assessed as if it were permanent holdings. It is argued for defendant 1 that exhibit IV is an account indicating the persons in possession of the respective lands which conclusively establishes that the jodidars were in. the possession of the lands as occupancy tenants. It is further maintained that exhibit VIII, a sale deed of 1877, shows that defendant 1 purchased the occupancy rights of item 2 of the schedule. There is no indication in the said document that the occupancy right was purchased; but, on the other hand, it is apparent that the land belonging to one vrittidar is transferred to another vrittidar which, merely goes to augment the share of the purchaser. Exhibit XXII is a delivery receipt of 1900 relating to some items in the schedule. From the arguments it is understood that in the dispute between defendant 1 and her mother-in-law, defendant 1 got delivery of some properties. What could be gathered from exhibit XII is that probably in a family dispute, in relation to the property belonging to the same vritti, defendant 1, got delivery of the properties. The receipts produced for the payment of a sum of Rs. 13-10-10 by defendant 1 towards the jodi does not carry any further to support the theory that the lands belong to kadim tenancy. Further, in order to establish kadim or permanent tenancy the right in question ought to have been granted by one or other of the jodidars. It is not shown from whom defendant 1 derived her right as kadim tenant and the jodi according to her is paid direct to Government as evidenced by exhibit XXIX and not any of the jodidars. On a consideration of the oral and documentary evidence, we are of opinion that defendant 1 has failed to establish that the suit) schedule lands belong to her permanent occupancy or kadim tenancy and it followed therefore that defendant 1 cannot resist the title of the plaintiff, who has purchased all the rights of the jodidars free from all tenures except those of the permanent tenants. Since defendant 1 has created the permanent lease in favour of defendant 2 before the sale in favour of the plaintiff, the plaintiff is not entitled to actual possession of items 2 to 9. The decision arrived at by the learned District Judge is correct and should be upheld.

8. The appeal therefore fails. But, in the circumstances of the case, we direct that each party will bear his or her own costs throughout. Appeal dismissed. AIR 1954 MYSORE 9 (Vol. 41, C.N. 4) "Seetharama Rao v. Govt. of Mysore" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench )

V. Seetharama Rao, (Accused) Petitioner v. Govt. of Mysore. Criminal Revn. Petn. No. 22 of 1952-53, D/- 30 -1 -1953, against decision of Addl. Sessions, J. Shimoga, in Cri. A No. 4 of 1951-52. (A) Criminal P.C. (5 of 1898), S.257 - WARRANT CASE - EVIDENCE - WITNESS - Failure to secure attendance of defence witnesses. The use of the word shall in the section indicates that the language in it is imperative. The Magistrate has no option in the matter of issuing process to compel the attendance of defence witnesses unless he considers that the application of the accused should be refused on the grounds specified in the section. Where, therefore, an accused applies for issue of process for compelling the attendance of his witnesses and the application is not refused, the conviction and sentence of the accused, who is thus given no opportunity to prove his case, has to be set aside even if the prosecution evidence has made out a case for conviction. (Para 4) Anno : Cri P.C., S. 257 N. 3. (B) Penal Code (45 of 1860), S.415 - CHEATING - Deception of A tout loss caused to B - No offence of cheating. The act or omission under S. 415, I.P.C. must he such as to cause or is likely to cause damage or harm to the person deceived. No offence of cheating can be said to have been committed if one person is induced by deception to do or omit to do something and the act or omission causes or is likely to cause damage or harm to another person. AIR 1941 Lah 460; AIR 1924 Cal 495 and AIR 1934 Lah 833, Rel. on. (Para 5) Anno : I.P.C., S. 415 N. 8. Cases Referred : Courtwise Chorological Paras (A) (41) AIR 1941 Lah 460 : ILR (1941) 22 Lah 718 : 43 Cri LJ 254 7 (B) (24) AIR 1924 Cal 495 : 51 Cal 250 : 26 Cri LJ 330 8 (C) (05) 2 Cal LJ 524 : 3 Cri LJ 160 3 (D) (19) AIR 1919 Cal 1088 : 22 Cal WN 1001, 19 Cri LJ 781 8 (E) (05) 32 Cal 775 : 2 Cri LJ 388 8 (F) (90) 17 Cal 606 8 (G) (05) 9 Cal WN 764 : 2 Cri LJ 422 8 (H) (08) 12 Cal WN 750 : 7 Cri LJ 342 8

(I) (34) AIR 1934 Lah 833 : 36 Cri LJ 274 9 B.S. Puttasiddiah, for Petitioner; Advocate-General, for the State. Judgement This is a revision petition against the conviction and sentence passed by the Additional Sessions Judge, Shimoga, in Chikmagalur Criminal Appeal No. 4 of 51-52, confirming the conviction of the accused of an offence under Section 417, I.P.C. but modifying the sentence passed on the petitioner by the Munsiff-Magistrate of Narasimharajapur in C. C. No. 98 of 50-51.

2. The case against the petitioner is that he induced the Government to pass an order that certain G. I. Pipes belonging to Kallatipura village panchayat might be sold to him at the rate of 0-6-0 per foot and induced them to believe that they were needed by him for being used for agricultural purposes for his lands. That such an order was passed by the Government and that in his applications before different authorities he referred to lands as my land or our lands is not disputed. It is in evidence that the G. I. pipes had been laid for purposes of affording water facilities to the village and that they had become old and that when they were sold in auction the highest bidder was prepared to pay only Rs. 800/- for them. That sale was set aside as the Iron and Steel Controller, Bhadravathi, objected to the sale without his permission. Mysore Iron and Steel Works, Bhadravathi were prepared to purchase the G. I. Pipes at 0-4-9 per foot and this would have fetched a sum of Rs. 1,300/-. The petitioner however gave an offer to purchase the pipes at a rate of 0-6-0 per foot. But it is contended for the prosecution that the Government passed an order that these pipes might be sold to the petitioner in view of his stating that they were to be used for agricultural purposes and that the petitioner instead of using them for agricultural purposes has sold them away. It has to be remembered that the Government when it sanctioned the sale must have thought, like the petitioner, that those pipes could be used for agricultural purposes. It was evidently found later that they were not useful for agricultural purposes as is clear from the evidence of the expert P.W. 8. What is seriously contended is that the accused owns no lands and lie deceived the Government by saying that he owns some lands and that he would use the pipes for agricultural purposes. It is unfortunate that the learned Magistrate did not give sufficient opportunity to the petitioner to prove his case.

3. Six witnesses had been cited by the accused before the learned Magistrate. It is only in respect of two of them, the petitioner did not want any warrant to be issued. But the learned Magistrate was bound to secure the attendance of the other witnesses at any rate, if necessary by coercive steps. As succinctly brought to the notice of the learned Magistrate by the petitioner in his application, the prosecution had taken one and a quarter year to close its case and the petitioner was not even given breathing time to produce his witnesses. The learned Magistrate ought to have taken appropriate steps to secure the attendance of the defence witnesses. On this ground alone the judgment of the Courts below convicting the petitioner cannot stand.

4. It is laid down in Section 257, Criminal P.C. as follows : "If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Such ground shall be recorded by him in writing". The use of the word shall in the section indicates that the language in it is imperative. The Magistrate has no option in the matter of issuing process to compel the attendance of witnesses unless it be that he considers that the application of the accused should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and he records such ground in writing. The application of the accused for issue of process for compelling the attendance of his witnesses has not been refused on any such ground. The conviction and sentence of the accused who was given no opportunity to prove his case has therefore to be set aside even if the prosecution evidence has made out a case for conviction.

5. The prosecution evidence even as it stands without any evidence to rebut it, is not sufficient to support the conviction of the accused of the offence of cheating under Section 417, I.P.C. The offence of cheating is defined in Section 415, I.P.C. It is as follows : "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property is said to cheat ". The first ingredient of the offence is that a parson must be deceived. This by itself is not sufficient for convicting the person deceiving of the offence of cheating. The second ingredient of the offence is that the person deceived must have been induced to deliver any property or induced to consent that .any person shall retain any property or he must have been intentionally induced to do or omit to do anything which he would not do or omit, if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, it is important to notice that a person who by deception induces another person to do or omit to do anything which he would not do or omit if lie were not so deceived, does not commit the offence of cheating unless the act or omission causes or is likely to cause damage or harm to that person in. body, mind, reputation or property. The act or omission must be such as to cause or is likely to cause damage or harm to the person deceived. No offence of cheating can be said to have been committed if one person is induced by deception to do or omit to do something and this act or omission causes or is likely to cause damage or harm to another person.

6. In this case the prosecution version is that the petitioner-accused induced the Government of Mysore to pass an order that he may be allowed to buy some old pipes at the rate of six annas per foot and that he deceived the Government by stating that he wanted to make use of those pipes for agricultural purposes but that he ultimately sold them. It is in evidence that these pipes are too small for being used for agricultural purposes as has been spoken to by the Expert P.W. 8. If at the time the Government was approached by the petitioner for permission to purchase these pipes it was represented that these pipes would be used for agricultural purposes and the Government have the permission, it is clear that both the petitioner and the Government at that time thought that the pipes were fit for agricultural purposes. Evidently the pipes could not be used for agricultural purposes, in accuseds lands or the lands of others as the pipes were later found to be not lit for being used for such purposes. It cannot therefore be said that the Government were deceived into passing an order in favour of the petitioner. Assuming however that there is some reason to think that the Government were deceived into passing an order in favour of the accused and they would not have passed such an order if the accused had not deceived them, the question that arises is whether this act of Government causes or is likely to cause damage to Government. If any loss has incurred it is incurred by the Village Panchayathi. It is not shown that any loss was incurred at all even by the Village Panchayathi as the Mysore Iron and Steel Works, Bhadravathi were prepared to purchase the pipes only at the rate of 0-4-9 per foot while the petitioner offered to purchase and purchased them at the rate of 0-6-0 per foot. When the pipes had been auctioned in public auction the highest bidder was prepared to pay very much lower than what even the Mysore Iron and Steel Works, Bhadravathi were prepared to pay, it cannot tie said that the act of Government in passing an order in favour of the accused caused or was likely to cause damage or harm to any one, still less to Government. Even if the evidence adduced by the prosecution is believed it is clear therefore that the accused is not guilty of the offence of cheating.

7. I agree with Abdul Rashid, J. in his observations in - Mohamed Baksh v. Emperor, AIR 1941 Lah 460 at p. 464 (A), that : "It appears to me that the definition of Cheating in S. 415, Indian Penal Code requires modification in order to cover cases where one person is deceived and another person suffers, or is likely to suffer, damage or harm in body, mind, reputation or property. It has been revealed in a number of cases that serious deception has been practised on Government Officials as a result of which certain other persons have suffered a great deal of harm in reputation or property. As the definition of cheating at present stands, such cases are not covered by S. 415, Indian Penal Code and the punishment prescribed in Ss. 419 and 420 cannot be awarded to persons who practice deception on Government servants which results in damage and harm to third parties."

8. I may here refer to the observations in - Superintendent and Remembrancer of Legal Affairs v. Manmatha Bhushan, AIR 1924 Cal 495 (B) : "There remains the charge of cheating in the second form. In that form the offence does not necessarily involve fraud or dishonesty. The words of the definition are undoubtedly wide and if pushed to the full limit of their meaning might embrace acts which the man in the street would hardly regard as criminal offences. That observation, however, raises a question of the appropriate punishment in the particular case rather than of construction. Clause 392 of Lord Macaulays draft corresponds to the first part of S. 415. The second part would appeal to have been added at some later date after the Code had left his hands and the hands of the Indian Law Commissioners. The illustrations throw no light on what is meant by dam age or harm in body, mind or reputation and so far as such damage is concerned the offence is not very appropriately placed in the Chapter of the Code relating to offences against property. An essential ingredient of the offence is the damage or harm caused or likely to be caused in the said respects or in property...... It does not appear to be necessary that the resulting damage or likelihood of damage should have been within the actual contemplation of the accused when the deceit was practised. But authorities in this Court lay down

(i) that the person deceived must have acted under the influence of the deceit : - Ramanath v. King Emperor, 2 Cal LJ 524 (C) - Milton v. Sherman, AIR 1819 Cal 1088 (D) :

(ii) that the facts must establish damage or likelihood of damage :- Baburam Rai v. Emperor, 32 Cal 775 (E)

(iii) that the damage must not be too remote : - Mojey v. Queen-Empress, 17 Cal 606 (F), - Kishori Lal v. Emperor, 9 Cal WN 734 (G), - Mahadev v. Dhonraj, 12 Cal WN 750 (H)."

9. The observations of Tek Chand, J. in - Rattan Singh v. Emperor, AIR 1934 Lah 833 (I), are as follows : "In order to bring a case within the second part of S. 415, damage or harm caused, or likely to be caused, must be the necessary consequence of the acts done by reason of the deceit practised or must be likely to follow therefrom, and the law does not take into account remote possibilities that may flow from the act. The damage or harm must be proximate and the natural result of the act or omission and does not include vague and contingent injury".

10. On the whole the learned Magistrate erred in not issuing process for compelling the attendance of the witnesses of the accused. He was also wrong in thinking that a case is made out by the prosecution for conviction of the accused for an offence under S. 417, I.P.C.

11. This revision petition is allowed. The conviction and sentence are set aside. The accused-petitioner stands acquitted of the offence under S. 417, I.P.C. Fine if levied shall be refunded. The bail bonds stand cancelled. Revision allowed. AIR 1954 MYSORE 12 (Vol. 41, C.N. 5) "Linganna v. State of Mysore" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) B.K. Linganna and others, Accused-Petitioners v. State of Mysore. Criminal Revn. Petn. No. 33 of 1953, D/- 13 -3 -1953, against order of Second City Magistrate, Mysore, in C. C. No. 2435 of 1952-53. (A) Mysore Police Act (4 of 1964), S.56(o) - POLICE OFFICERS - Place of public resort. Police Act (5 of 1861), S.34, Seventh. The fact that loud Speaker arrangements had been made for the public outside to hear what was going on inside a hall would surely not make the meeting public meeting or those premises places of public resort. (Para 2) Anno : Police. Act, S. 34 N. 1. (B) Mysore Police Act (4 of 1964), S.56(o) - POLICE OFFICERS - Place of public resort. Police Act (5 of 1861), S.34, Seventh. Held that a hall like the Crawford Hall in Mysore which presumably belonged to the Government or to the University cannot be described as a place of public resort or a public place and any meeting held within the confines of such a building cannot be described as a public meeting, without proof. Case law ref. (Para 4) Anno : Police Act, S. 34 N. 1. (C) Criminal P.C. (5 of 1898), S.239(a) - CHARGE - Same transaction. The accused were present at a meeting held to inaugurate the work of the Committee on Educational Reforms in Mysore in the Crawford Hall, Mysore City, and there they behaved riotously and in a disorderly manner by shouting some slogans and throwing pamphlets : Held that the proximity of time, place and events was so apparent that what all the accused did was in the course of the same transaction. (Para 8) Anno : Cr. P.C., S. 239 N. 6. (D) Constitution of India, Art.19(1)(a)(b) - FREEDOM OF SPEECH AND EXPRESSION - FREEDOM TO ASSEMBLE PEACEABLY AND WITHOUT ARMS - Freedom of speech and expression and freedom to assemble peacefully. It would be no answer to a proper charge that the accused behaved riotously at a private or even a public meeting violently or in an indecorous manner or disorderly way by insisting on the same being held in a particular language or in a particular way. (Para 9) (E) Criminal P.C. (5 of 1898), S.540 - SUMMONS - WITNESS - Limits of discretionary power. It is not either necessary or incumbent on the Court to examine witnesses as Court witnesses merely to fill up any lacuna for either party. (Para 11) Anno : Cr. P.C., S. 540 N. 4. (F) Criminal P.C. (5 of 1898), S.244 - SUMMONS CASE - May issue summons. An application for summoning witnesses made by an accused person can only be refused if the Court is satisfied that such application is made vexatiously or in order to delay the proceedings. Case law referred. (Para 12) Anno : Cr. P.C., S. 244 N. 8. (G) Criminal P.C. (5 of 1898), S.244 - SUMMONS CASE - May issue summons. Though it may be that the Court ought to be more careful in refusing requests for summoning witnesses for defence in warrant cases it cannot be held that the Court can treat the case of the accused in summons cases so very lightly. Held that the Magistrate could have and ought to have issued summons at least to some of the witnesses mentioned in their list even if he felt that all of them need not be summoned on the ground that it would be vexatious or entail delay to do so. AIR 1940 Lah 58, Rel. on. (Para 15) Anno : Cr. P.C., S. 244 N. 8. Cases Referred : Courtwise Chorological Paras (A) 33 Mys CCR 176 4 (B) 25 Mys CCR 105 4 (C) (17) AIR 1917 Mad 124 : 40 Mad 556 : 18 Cri LJ 7 4 (D) (16) AIR 1916 Mad 474 : 39 Mad 886 : 16 Cri LJ 704 4 (E) 7 Mys LJ 144 7 (F) (40) AIR 1940 Sind 113 : 41 Cri LJ 724 10 (G) (30) AIR 1930 Bom 163 : 31 Cri LJ 925 10 (H) (42) AIR 1942 Sind 122 : 44 Cri LJ 367 12

(I) (40) AIR 1940 Lah 58 : 41 Cri LJ 340 12, 15 (J) (24) AIR 1924 Pat 142 : 24 Cri LJ 831 12 (K) (29) AIR 1929 All 914 (2) : 30 Cri LJ 1155 12

(L) 8 Mys LJ 49 13 (M) (01) 28 Cal 594 15 (N) (25) AIR 1925 All 285 : 47 All 147 : 26 Cri LJ 575 15 (O) (08) 31 Mad 131 : 7 Cri LJ 425 15 (P) (02) 26 Bom 418 : 4 Bom LR 38 15 (Q) (25) AIR 1925 Cal 411(1) : 51 Cal 1044 : 26 Cri LJ 384 15 (R) (29) AIR 1929 Lah 23(2) : 30 Cri LJ 814 15 K.S. Setlur and A. Shamanna, for Petitioners; A.R. Somanatha Iyer, Advocate-General, for the State. Judgement The petitioners 13 in number who were accused in the Court of the Second City Magistrate, Mysore, and who are all described as students, have been tried and convicted for an offence under S. 56(o), Mysore Police Act and sentenced to pay a fine of Rs. 10/- each and in default to undergo S. I. for six days. The charge against them was that on 26-9-1952 at about 10-30 A.M. they were present at a meeting held to inaugurate the work of the Committee on Educational Reforms in Mysore in the Crawford Hall, Mysore City, and that there they behaved riotously and in a disorderly manner by shouting some slogans and throwing pamphlets and thereby caused a breach of the peace. The charge also mentioned that the accuseds conduct amounted to offences by cls. (o), (q) and (r) of S. 58. Though the learned Magistrate has not chosen to make any reference to the offences under cls. (q) and (r) of S. 56 and does not say in his judgment whether he acquitted the accused of the offences under those clauses, there is no doubt at all that no case falling under those clauses has been made out against any of the accused. Section 56(q) refers to wilfully pushing, pressing, hustling or obstructing any passenger in a street or disturbing the public peace or order by violent movements etc.; (r) refers to misbehaviour by using in any street any threatening, abusive or insulting words or behaviour; and it is not clear why a charge under these clauses was at all put in the charge sheet, we are, therefore, only concerned to see whether an offence has been committed under cl. (o) which reads as follows : "(Whoever) wilfully and indecently exposes his person, uses indecent language or behaves indecently or riotously or in a disorderly manner in a street or place of public resort, or in any public office." and the only question of that clause which would apply to the present case would be that relating to behaving riotously or in a disorderly manner in a place of public resort.

2. It is contended by Mr. A. Shamanna, learned Counsel for the petitioners, that it has not been shown by the prosecution that Crawford Hall was a place of public resort and the meeting convened there was a public meeting. To decide this point as welt as other points, which I will refer to later, it would have been of great advantage if the conveners of the meeting at least had been examined it is represented that persons were invited to attend the meeting and that even passes were issued. P.W. 1 says that he does not know whether any such invitations were issued. But in this Court Mr. Shamanna sought to produce a printed invitation card said to have been given to the invitees by Mr. J.B. Mallaradhya Director of Public Instruction. This cannot of course be treated as evidence at this stage as it has not been formally proved to have been issued by him. No notice by which the meeting was called is produced by the prosecution; nor is it shown that Crawford Hall is a place of public resort and that anybody can walk in and attend any meetings conducted there and that all meetings held there are public meetings. The learned Magistrate appears to think that that meeting was a public meeting because loud speaker arrangements had been made for the public outside to hear what was going on inside the hall. It is now quite common to have such loud speaker arrangements even for musical and other performances and in purely private meetings conducted in enclosed premises, and that would surely not make those meetings public meetings or those premises places of public resort.

3. It is not disputed that if the meeting was a private meeting and the Crawford Hall was not a place of public resort the Police could not have attended that meeting and sought to keep order in it without a special invitation by the conveners. Here again P.W. 1, the Police Inspector, says that lie does not remember who asked him and the Sub-Inspectors, P.Ws. 2 and 3, to be present inside the hall and to preserve peace there. It has been suggested in the course of cross-examination that several members and scouts were in charge of seating arrangements in the hall and were expected to maintain quiet and orderliness and that the Police had no place in the meeting. Here too unfortunately the prosecution, by not summoning the conveners and the learned Magistrate by refusing to summon them as witnesses for the defence, has deprived both the prosecution and the accused from placing that important piece of evidence on record.

4. The learned Advocate-General has referred to a case reported in - 33 Mys CCR 176 (A), where in a case of an affray it has been held by Plumer, C.J. distinguishing - 25 Mys CCR 105 (B), that a small piece of unfenced and open margin land by the side of the road which was freely accessible to the public and was being readily moved on by them though it belonged to a private owner, was a public place and to similar cases in - In re Musa, AIR 1917 Mad 124 (C) and - Emperor v. Govindarajulu, AIR 1916 Mad 474 (D), where what is a "public place" and what is a "place of public resort" have been considered. In - 25 Mys CCR 105 (B), Plumer, J. who later decided - 33 Mys CCR 176 (A), held that the tennis court of a Tennis Club however great its publicity is not a public place, and that mere accessibility of the place or its being open to public view did not constitute it a public place. It is primarily a question of fact to be decided in each case whether a particular place is a place of public resort, i.e., one to which the public have free access or on which they have a right to enter. Obviously a hall like the Crowford Hall which presumably belonged to the Government or to the University cannot be described as a place of public resort or a public place and any meeting held within the confines of such a building cannot be described as a public meeting, without better proof which was easily available.

5. Mr. Shamanna next contends that the prosecution has not made out by unimpeachable and clear evidence that the accused are guilty. He represents that the prosecution cited only four witnesses, viz., the Inspector of Police, P.W. 1, the Sub-Inspectors P.Ws. 2 and 3 and a Police Daffedar who was not examined. They did not cite a single other official or non-official witness though it is said that about 2 or 3 thousand people were present at the meeting. Even several volunteers or scouts were not cited or examined for the prosecution. He further urges that it is clear from the evidence of P.W. 1 that he may not have been present when the trouble started and must have come into the hall only much later and that the evidence of P.Ws. 2 and 3 shows clearly that they arrested the accused in the corridor, which was apparently after the disturbances. He has also referred to several discrepancies in the evidence. It must be admitted that P.W. 1 has exhibited rather a remarkable ignorance of what was going on in the hall. He has stated that he does not even know who was presiding at that meeting and who, if any, gave the music, in which parts of the hall the ladies were sitting and whether a picture of Mahatma Gandhi had been hung up and whether the Saraswathi picture, which was apparently hung up on the dais in the hall as appropriate to an Educational function on that Saraswathi Puja day was garlanded or not, that he did not notice the presence of the Chief Justice and some other persons on the dais and cannot state if there was an invocation or prayer before the meeting started.

6. The learned Advocate-General has, however, urged that sitting in revision I should not ordinarily weigh the evidence. But, here again the learned Magistrate by shutting out the defence from letting in evidence of persons who would, be expected to speak to the incidents of that morning has made it impossible for himself to compare the prosecution evidence with the evidence let in by the accused; in such a case there can really be no proper appreciation of the evidence which appraisal has to be accepted.

7. Mr. Shamanna has next urged that the mandatory provisions of S. 242, Criminal P.C. have not been complied with and has relied on a case in - 7 Mys LJ 144 (E). But I think there is no force in that contention because on 26-9-52 when the charge-sheet was presented; the learned Magistrate has made a note in the order sheet that the charge was read over and explained to the accused in Kannada and they pleaded not guilty, though in Col. 11 of the form in which the proceedings were to be entered, if the case had been tried in a summary way, there is no such record.

8. It is next urged by Mr. Shamanna that the joint trial of all the accused was illegal. He urges that it is not shown that the accused persons had a common object or were acting with any common intention : P.W. 1 has admitted that he does not know the relationship between the various accused, i.e., whether they belonged to any particular group or association. They belong to different communities and apparently they have nothing in common with each other except their professed love of the Kannada language. He, therefore, contends that each of the accused should have been tried separately. But as pointed out by the learned Advocate-General I think this case is clearly covered by S. 239, Criminal P.C. The accused are persons charged with the same offence committed in the course of the same transaction and were rightly charged and tried together. The proximity of time, place and events is so apparent in this case that there is no doubt in my mind that what all the accused did was in the course of the same transaction.

9. Mr. Shamanna has urged that the accused, were entitled under Art. 19(1) relating to freedom of speech and expression in the Constitution, to insist that the proceedings at that meeting should take place in Kannada. I think there is no substance in that claim. The same freedom of speech and expression and the freedom to assemble peaceably under Cl. 19(2) (sic) should avail the conveners of the meeting to enable them to hold the proceedings in whatever language they liked and it would be no answer to a proper charge that the accused behaved riotously at a private or even a public meeting violently or in an indecorous manner or disorderly way by insisting on the same being held in a particular language or in a particular way. They were there by invitation or sufferance and could not take the conduct of the meeting into their own hands.

10. It was also contended for the petitioners that the judgment of the learned Magistrate is not in accordance with law, i.e., the requirements of S. 367, Criminal P.C. as it does not discuss the action of each of the accused and how it is an offence; and reliance has been placed on cases reported in - Abdul Karim v. Emperor, AIR 1940 Sind 113 (F) and - Shanmukh Bosapa v. Emperor, AIR, 1930 Bom 163 (G). It must be admitted that the judgment of the learned Magistrate does not at all discuss the evidence in detail and does not say what each of the accused is proved to have done. But it is, however, unnecessary to pursue this aspect of the matter further in the view I have taken that there are other and more serious objections against the conviction.

11. It is next contended very strenuously for the accused by Mr. Setlur, their learned Counsel who argued this part of the case, that the trial is vitiated by the refusal of the Magistrate to summon the witnesses whom the accused had cited. Here I think the petitioners are on very firm ground. The case was sought to be tried in the first instance summarily and later on an application made by the accused it was tried in the regular way. After the witnesses for the prosecution had been examined and before they were examined under S. 342, Cr. P. Code the accused made an application under S. 540, Criminal P.C. to examine some persons as Court witnesses. In that application they pointed out that the evidence on record clearly showed "that many important personages were present in Crawford Hall at the time of the incident, that the prosecution had not "strangely" cited them for fear that if they were summoned their evidence would not be favourable to the prosecution" and that in the interests of justice it was necessary to summon the eleven witnesses whose names and addresses were given in that application in order to supply to the Court materials which would throw light on the reality of the affair. This application was opposed by the Prosecuting Inspector on the ground that that application was premature as the accused had not yet been examined and that the persons noted therein were "too big to be examined in a trivial case of the kind". On 12-12-52 the learned Magistrate passed an order and I think rightly rejecting the application. He thought that it was not either necessary or incumbent on the Court to examine witnesses as Court witnesses merely to fill up any lacuna for either party. It was "not even a case where a person had been cited as a witness for the prosecution and had unreasonably been given up. Later, on 8-1-53 after their statements were recorded and they had entered upon their defence, the accused again applied under S. 244, Criminal P.C. praying that 10 out of the 11 persons whose names and addresses had been mentioned in the earlier application may be summoned as witnesses for the defence. That application was apparently also opposed by the Prosecuting Inspector. No written objections appear to have been filed and there is no note as to on what grounds that application was opposed. On 12-1-53 the learned Magistrate passed an order refusing to issue summons to any of those witnesses except only one Veerappa, a scout. The learned Magistrate observed : that the witnesses mentioned in the list as SI. Nos. 1 to 4, viz., the Chief Minister, the Education Minister, the Director of Public Instruction and the Vice Chancellor could not have been on the balcony but must necessarily have been seated on the dais. None of them could have been in charge of the maintenance of law and order during the session. SI. Nos. 5 and 7, the Chief Justice and Mrs. Dhillon, could have been there only as invitees just as others : Merely because the accused may have seen those persons on the dais or heard that they were present, it could not be a sufficient basis for them to "pitch only upon those particular persons" as witnesses, and any one on the balcony could have been more properly cited as witness to speak to the fact as to whether there was disturbance or not : Furthermore the full addresses of all these witnesses were not furnished and the object of the accused could only be considered to cause unnecessary delay. Many of the witnesses-were holding important positions in Government or Judiciary of the Stats and it would be nothing short of a sheer waste of public time to secure their presence for the purpose of this petty case. In the learned Magistrates opinion the application was to be refused on the ground that it was made for the "purpose of vexation."

12. Mr. Setlur has urged that the witnesses cited were all eye-witnesses : that their full addresses had been given in the application and nobody could say that with those addresses they could not be served; that the accused were taking a very responsible and serious step of summoning persons about whose position in life and whose credibility there could be no question and who would have been in tile best position to say how the disturbances originated, what was the nature and extent or quantum of the disturbance, and whether there was provocation or insult from any of those witnesses, by which the situation was worsened as alleged or suggested by the accused and whether there was riotous conduct on the part of the accused. He has relied on some reported cases - Emperor v. Rasul Buse, AIR 1942 Sind 122 (H), - Vidya Parkash v. Emperor, AIR 1940 Lah 58 (I), - Debi Singh v. Emperor, AIR 1924 Pat 142 (J) and - Parohu v. Emperor, AIR 1929 All 914 (2) (K), for the well recognised position that an application for summoning witnesses made by an accused person can only be refused if the Court is satisfied that such application is made vexatiously or in order to delay the proceedings; and he urges that it is not prima facie shown that the evidence is not relevant for the purpose of the defence. There is a good deal of force in these contentions.

13. The learned Advocate-General has strongly relied on a case reported in - 3 Mys LJ 49 (L), to contend that the Court has the discretion to refuse to issue summons in such cases. - 8 Mys LJ 49 (L), was a case of a prosecution under S. 124A, I.P.C. in respect of an article published in a newspaper. The Court properly refused to issue summons to the Dewan of Mysore and the Members of Council and other high officers of Government as it rightly thought that their evidence would neither be relevant nor useful to determine whether a case of sedition had been made out or not in respect of the article in question. That case is entirely different from the present where eye-witnesses were sought to be summoned. Moreover the learned Magistrate has not considered the case of each of the witnesses separately; e.g. Mr. S. Chenniah, President of the City Congress Committee in Mysore, Mrs. Dhillon. who is a non-official, Mr. Shivananjappa, the City Magistrate, Mysore, Mr. Mahomed Ahmed, Deputy Commissioner, Mysore, cannot be said to be witnesses summoning of whom was likely to cause any great waste of public time. They are obviously respectable persons who would be expected to speak the truth and it cannot be said that their evidence would have been irrelevant. Similarly Mr. P. Medapa, the Chief Justice in Mysore, and Mr. B.L. Manjunath, the Vice Chancellor, and Mr. K. Hanumanthaiya, the Chief Minister, and Mr. A.C. Ramachandra Rao, the Education Minister, who were present at the meeting and who had seen and heard what took place there would have been able to give relevant evidence as to what happened and if the accused were prepared to pay their travelling expenses and the cost of summoning them I do not see why their presence could not have been secured.

14. Mr. Shamanna has urged that the learned Magistrates view that it was a petty case was not correct, that so far as his clients are concerned they are all students and a conviction in this case would brand them as rioters who had no respect for law and order and that the consequences of such a conviction would be much more serious than what the learned Magistrate seems to think. He represents that they were all arrested by P.W. 1, not allowed on bail immediately on their own self-bonds as usual in such cases, taken under armed escort to the Police Station and produced in Court under such armed escort and in Police custody. P.W. 1 says he did so because he thought there might be trouble from the accused though he admits that they were unarmed. This, Mr. Shamanna, argues, shows that the prosecution did not think that it was a trivial matter. He points out that it has been suggested to P.W. 1 that he might have been more enthusiastic than necessary and that he has stated that he did not consult either the Chief Minister who presided on the occasion or Mr. Mallaradhya, who was apparently responsible for convening the meeting, as to whether annoyance of sufficient gravity had been caused to them for launching these proceedings and that the conduct of the accused persons deserved the rather severe and drastic action that seems to have been taken against them.

15. The learned Advocate-General has urged that in summons cases the requirements of law are not so imperative as is the case of warrant cases, in the matter of summoning witnesses for the accused. AIR 1940 Lah 58 (I) is an authority against that position and though it may be that the Court ought to be more careful in refusing such requests in warrant cases I do not think the Court can treat the case of the accused in summons cases so very lightly. I think in this case the learned Magistrate could have and ought to have issued summons at least to some of the witnesses mentioned in their list even if he felt that all of them need not be summoned on the ground that it would be vexatious or entail delay to do so. It might be remembered, that it is very important that Courts of justice should function in a way which will induce and foster respect and confidence towards them in the public mind. Nothing should be done, especially in cases where persons of influence and position may be said to be affected, which would give an impression that the trial will not be- thoroughly fair. Justice must not only be done but must be shown as being done. When the law vests in a Court certain discretion that discretion should be exercised so as not to give rise to any reasonable complaint of prejudice or bias; vide - Sheoprakash Singh v. Emperor, 28 Cal 594 at p. 595 (M) approved in - Pita v. Emperor, AIR 1925 All 285 at p. 286 (N). The Magistrate is bound to record the reason why he refuses to issue summons to each individual witness and the failure to record reasons is an illegality and cannot be cured by Section 537; vide - Narayana Mudaly v. Emperor, 31 Mad 131 (O), - Emperor v. Purushottam, 26 Bom 418 (P) and - Manomohan Dastidar v. Bankin Behari, AIR 1925 Cal 411 (1) (Q). While the Court is fully justified in declining to accede to the request which would amount to an abuse of the process of the Court it should at the same time be careful not to do any act which would hamper the accused in his defence; - Sayad Habib v. Emperor, AIR 1929 Lah 23 (2) (R).

16. In the result I allow this petition, set aside the conviction and sentence passed on the accused and acquit them. The fine, if already recovered, will be refunded to the accused. Revision allowed. AIR 1954 MYSORE 16 (Vol. 41, C.N. 6) "Bore Gowda v. Ramegowda" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Bore Gowda and others, Appellants v. Ramegowda and another, Respondents. Second Appeal No. 418 of 1950-51, D/- 11 -11 -1952, against decree of Sub-J., Hassan, in R. A. No. 65 of 1949-50. Transfer of Property Act (4 of 1882), S.46 - MORTGAGE - HINDU LAW - Mortgage by persons having distinct interests. Hindu Law - Joint family - Mortgage by father. Property belonging to joint family of father and four sons - Property hypothecated - Hypothecatee bringing suit against sons after death of father - Suit withdrawn against three sons but decreed against one who remained ex parte - Decree-holder gets one-fifth share of judgment-debtor in addition to one-fourth of one-fifth share of father, that is, in all one-fourth share in the property - He does not get one-fifth share of judgment-debtor and one-fifth share of the father that is in all two-fifth share in the property. 19 Mys LJ 310, Rel. (Para 3) Anno : T. P. Act, S. 46 N. 2. Cases Referred : Courtwise Chorological Paras (A) 19 Mys LJ 310 2

V. Krishnamurthy, for Appellants; R.V. Srinivasiah, for Respondent 1. Judgement The property in dispute belonged to the joint family of one Kalegowda alias Donasetty and his sons, defendants 1 to 4. Kalegowda hypothecated the suit property to the plaintiff. The plaintiff filed a suit in Original Suit No. 195 of 1944-45 on the file of the Munsiff of Hassan against defendants 1 to 4, after the death of Donasetty, their father. In that suit, defendant 3 was ex parte while defendants 1, 2 and 4 contended that the hypothecation was not for legal necessity and that it was not binding on them. Thereon, respondent 1 who was the plaintiff in that suit cleverly withdrew the suit against defendants 1, 2 and 4. The result was that a decree was passed against Ningegowda who was ex parte, in respect of the 2/5th share of the hypothecated property. This 2/5th share was purchased by the plaintiff-decree-holder in execution of that decree against the judgment-debtor, defendant 3 Ningegowda. Thereon he has filed the present suit for partition and possession of his 2/5th share.

2. Both the Courts below have granted a decree for 2/5th share. This is clearly incorrect. Defendants 1, 2 and 4 are not bound by the decree passed against the 2/5th share as against defendant 3 Ningegowda. The impression of the learned Judge who passed the decree in the previous suit and the impression of the Courts below in this case appears to be that the plaintiff is entitled to a decree not only against the 1/5th share of defendant 3, but also against the 1/5th share of the father of defendants. The reasoning of the Courts below looks plausible at first sight. It is no doubt true that as held in - 19 Mys L J 310 (A), relied on by Courts below, an alienation of an item of joint family property by a father when himself and his eldest son were the only members of the family binds the fathers half share in the property and no later addition to the coparcenary can alter that position. In that sense it is true that the hypothecation is binding on the fathers 1/5th share. A decree for 2/5th share could however have been passed only if father of defendants and defendant 3 were both parties to the suit but the fact that the father was dead and was not a party to the suit makes the position different. The Courts below should have not confused themselves between what plaintiff could have got if all the sons after their fathers death were parties to the suit and what he should have got when he withdrew the suit against 3 out of 4 of them.

3. It must be remembered that after the death of Kalegowda alias Donasetty, each of his 4 sons got 1/5th share free from hypothecation and 1/4th share in the 1/5th share of the father burdened with hypothecation. There is no decree against defendants 1, 2 and 4 who are the appellants in this case, not only as against their 3/5th share which was free from hypothecation but also in respect of their 3/4th share of the 1/5th share of their father burdened with hypothecation. The decree-holder got only such right, title and interest which the judgment-debtor defendant 3 had at the time the suit was filed. That share was his own 1/5th share which he had prior to the hypothecation and the 1/4th of the 1/5th share which his father had and which had been hypothecated by him in favour of the plaintiff. As regards 1/5th share of each of the defendants 1, 2 and 4, not bound by the hypothecation, the plaintiff could never have obtained a decree even if the suit had not been withdrawn against them nor has he obtained any such decree. As regards 1/4th share of each of these defendants in the 1/5th share of their father that was liable to be proceeded against for recovery of the hypothecation debt the plaintiff had the right to obtain a decree against these defendants in case he had allowed them to be parties to the suit, but by withdrawing the suit against defendants 1, 2 and 4, filed on the foot of the hypothecation deed executed by their deceased father, he disabled himself from getting a decree in respect of their three-fourths share in the 1/5th share of their father. Plaintiff should have obtained a decree against 3rd defendants 1/5th share and his 1/4th share of his fathers 1/5th share. In other words, in execution of the decree he obtained against defendant 3 the plaintiff gets 1/4th share in the entire property. He wrongly obtained a decree in the previous suit for 2/5th share and defendants 1, 2 and 4 who are not parties to the suit after the withdrawal of it against them can question his right to get 2/5th share in this suit.

4. The result is that in modification of the decree of the Courts below there will be a decree for partition of the plaint schedule property into 4 shares and for plaintiff being put in possession of his 1/4th share. There will be a similar modification with reference to the property in respect of which he is entitled to mesne profits. Parties will bear their own costs in this appeal. Decree modified. AIR 1954 MYSORE 17 (Vol. 41, C.N. 7) "Narayana Setty v. State of Mysore" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) K. Narayana Setty, Accused-Petitioner v. State of Mysore. Criminal Revn. Petns. Nos. 8 and 9 of 1953, D/- 17 -6 -1953, against order of City Magistrate, Bangalore, in C. C. Nos. 2576 and 2575 of 1952-53. Mysore Sales Tax Act (46 of 1948), S.22 - SALES TAX - INCOME-TAX - Sales Tax - Objection to enforceability of assessment. Income-tax Act (11 of 1922), S.67. AIR 1953 Mys 12; AIR 1953 Mys 19, Dissented from. Where the grievance of the assessees merely is that the assessees are taxed under a provision resulting in a heavier burden than what ought to have been laid under the proper provision applicable to the commodity which the assessees are dealing in, such an objection against the enforceability of tax assessment cannot be raised before a criminal Court. The assessees should seek their remedy either before the appellate tribunal or the revision authority viz. the Government. Case law discussed. (Paras 6, 7, 8) Anno : Income-tax Act, S. 67 N. 1. P. Cases Referred : Courtwise Chorological Paras (A) (53) AIR 1953 Mys 12 : 1953 Cri LJ 125 2, 3 (B) (53) AIR 1953 Mys 18 : 1953 Cri LJ 529 2 (C) (53) AIR 1953 Mys 19 : 1953 Cri LJ 562 2, 3 (D) (47) AIR 1947 PC 78 : 74 Ind App 50 (PC) 2, 4, 5 (E) 52 Mys CCR 455 3 (F) (51) AIR 1951 Mys 37 : 52 Cri LJ 440 4 (G) (51) AIR 1951 Mys 70 : 52 Cri LJ 825 4, 6 Krishnappa, for Petitioner; A.R. Somanatha Iyer, Advocate General, for the State. Judgement The petitioners in both these cases were prosecuted under S. 20(b), Mysore Sales Tax Act for failure to pay the tax assessed and demanded; the trial Court found them guilty and sentenced to pay a line of Rs. 100/- each, with a further direction for the recovery of the tax assessed respectively against each of them.

2. Mr. P. Krishnappa, on behalf of the petitioners contended that the tax demanded is illegal end otherwise ultra vires the Sales Tax Act. Both the petitioners are merchants dealing in cocoanuts and their defence is common. It is argued that the petitioners are taxed illegally en the turn-over basis of sales as if they were dealers in general commodities; whereas being dealers in cocoanuts, they should have been classed under the category of fruit merchants and dealt with on basis specially applicable to fruit merchants and taxed according to the rates fixed in the Government Notification issued in that behalf. In support of his contention Mr. Krishnappa relied upon the cases of this Court reported in - Kariappa v. Govt. of Mysore, AIR 1953 Mys 12 (A); - Venkatachala Chetty v. Govt. of Mysore. AIR 1953 Myd 18 (B); and - Subban Beigh v. Govt. of Mysore, AIR 1953 Mys 19 (C). The first of these cases relates to the question whether a merchant selling fried-gram could be brought under the purview of the Sales Tax Act; the next deals with the qualifications necessary for a "dealer" under the Sales Tax Act and the last case contains a discussion whether a commission agent is or is not a "dealer" within the definition of that term in the Act. The interpretation depends upon the particular circumstances of each case, and it does net appear to be relevant to deal with the merits of those cases for the purpose of the cases under consideration. It is however contended that the principle laid down in these cases must be adopted, as a guide to the disposal of the present petitions. In the case reported in - AIR 1953 Mys 12 (A), it is laid down that "it is only the assessment made under the provisions of the Sales Tax Act that is not liable to be questioned under S. 22; however, if an assessment made or an order passed, is ultra vires and is entirely outside the scope of the Sales Tax Act, the assessment or an order made can be challenged in the ordinary Courts, civil or criminal as it is an order made beyond the scope of the Sales Tax Act and not an order made under the Act which alone is contemplated under S. 22". Almost similar is the interpretation laid down in - AIR 1953 Mys 19 (C), by the same learned Judge. The main point for consideration in those two cases was whether a particular assessment was one made under the Act or not and involved the interpretation of the expression "assessment made under the Act". This expression also occurs in S. 67, Income-tax Act. The learned Judge has discussed this point at length, quoting with approval a passage from the commentary under S. 67, Income-tax Act by Mr. A.C. Sampath Iyengar (III Edition) embodying the then prevailing judicial opinion that an assessment based on some provision of the Act which was being impugned as ultra vires was not within the bar of the section since no assessment which was ultra vires or in excess of jurisdiction, could be said to be one "made under the Act" and thus an assessment made by an Income-tax Officer contrary to the rules made under the Act, or without holding an enquiry whether as assessee was resident or not, or an assessment, which on the facts as found would be patently unjustified, were all held to be in excess of jurisdiction and could therefore be impugned in a civil Court. The learned author, Mr. Sampath Iyengar has revised his opinion in the light of the decision in - Raleigh Investment Co. Ltd. v. Governor-General-in-Council, AIR 1947 PC 78 (D) and expressed in his book (Income-tax Act IV Edition) thus "The result now is that all objections to assessment, however fundamentally erroneous or based upon an ultra vires provision of the Act ...... shall have to be raised before the appropriate authorities prescribed by the Act and be decided by them." The decision of the Privy Council is therefore the guiding principle to be followed in the interpretation of this aspect of law. Lord Uthwatt who delivered the opinion of the Judicial Committee, after citing the provisions of the Income-tax Act relating to the remedies available to the assessee, observes at p. 81 that "effective and appropriate machinery is therefore provided by the Act itself, for the review, on grounds of law, of any assessment. It is in that setting that S. 67 has to be construed. In their Lordships view, the construction of the section is clear. Under the Act, the Income-tax Officer is charged with the duty of assessing the total income of the assessee. The obvious meaning, and in their Lordships opinion, the correct meaning of the phrase "assessment made under the Act" is an assessment finding its origin in the activity of the assessing officer acting as such. The circumstances that the assessing officer has taken into account, an ultra vires provision of the Act, is in this view immaterial in determining whether the assessment is "made under the Act". The phrase describes the provenance of the assessment; it does not relate to its accuracy in point of law. The use of the machinery provided by the Act, not the result of that use, is the test."

3. In - 52 Mys CCR 455 (E), Venkataramana Rao, C.J., while citing the above Privy Council decision in connection with the consideration of the limits of jurisdiction of the Controller under the Mysore House Rent Control Act, observes thus : "His Lordship does not in any way throw any doubt upon the principle because he found in that case that it was within the competence of the income-tax authorities to go into the question of assessment and there was no law of inherent jurisdiction to deal with the matter, and in exercising that jurisdiction, if they committed an error of law by acting upon a provision which is ultra vires their decision does not render it one outside the Act" (p. 465). In view of the Privy Council decision, referred to above and also the decision in - 52 Mys CCR 455 (E), the view expressed in - AIR 1953 Mys 12 (A) and - AIR 1953 Mys 19 (C), may require reconsideration.

4. Ordinarily, where a Statute creating a liability gives a special and particular remedy, and also expressly bars the jurisdiction of Courts in regard to the enforcement of that liability the remedies that are provided in the Special Statute must be followed and the party aggrieved is not entitled to agitate the same in any of the Courts. In an earlier case decided by me, it was held that the validity of assessment by the assessing officer cannot be questioned in a criminal Court vide - Kotrappa v. Asst. Sales Tax officer, AIR 1951 Mys 37 (F). The opinion thus expressed was reiterated in a later decision reported in - Rama Iyer v. Govt. of Mysore, AIR 1951 Mys 70 (G). Following the decision in - AIR 1947 PC 78 (D), I have held in the latter case that the criminal Courts have no jurisdiction to enter into an elaborate enquiry or question the validity of the assessment which must be done only through the appropriate machinery created by the Sales Tax Act itself. The principle laid down in these decisions conforms itself to the principle laid down by the Privy Council decision discussed above, and I find no reason to change that view.

5. Section 22, Mysore Sales Tax Act is thus an express bar against calling the assessment into question in any Court. It runs thus : "Save as provided in S. 16, no assessment made and no order passed under this Act or the rules made thereunder by any assessing authority shall be called into question in any Court and save as is provided in Ss. 14 and 15 no appeal or application for revision shall lie against any such assessment or order". Section 14 referred to in the above section relates to appeals against the assessing authority and S. 15 provides for revision by Government of the order in appeal and S. 16 enables the assessee to require a reference to the High Court for decision on a question of law stated and hence in the language of the decision in - AIR 1947 PC 78 CD) : "The Act contains machinery which enables an assessee to effectively raise the question whether or not a particular provision of the Act bearing on the assessment made upon him is ultra vires" ............and "jurisdiction to question assessment otherwise than by use of machinery expressly provided by the Act would appear to be inconsistent with the statutory obligation under S. 45 (Income-tax Act) to pay the tax arising by virtue of the assessment."

6. I have therefore to re-affirm my earlier view in - AIR 1951 Mys 70 (G), that S. 22, Sales Tax Act is a bar to call in question, in a criminal Court, the validity of an order made by the assessing authority so long as it is one made under the Act in the sense discussed above.

7. In the present cases, the grievance merely is that the assessees are taxed under a provision resulting in a heavier burden than what ought to have been laid, under the proper provision applicable to the commodity which the petitioners are dealing in, and in the light of the foregoing discussion, such an objection against the enforceability of tax assessment cannot be raised, before a criminal Court.

8. Mr. Krishnappa next contended that, on the application of some of the cocoanut merchants, the Notification relating to the concessional rate of tax in regard to the sellers of fruits, was modified by Government by the addition of an explanation as a result of which cocoanuts are removed from the category of fruits. The learned counsel argued that this subsequent amendment to the Government Notification implied that the Notification, as it stood before amendment, has led to much confusion, resulting in protests by the petitioners that they are not liable to be taxed as dealers in commodities other than fruits. There appears to be some force in the contention inasmuch as the petitioners had reason to contend in the criminal Court that they are not liable for assessment as determined, by the Sales Tax Officer; but in the view I have taken, the criminal Court cannot give any relief and the petitioners should seek their remedy either before the appellate tribunal or the revision authority viz., the Government. In my opinion, as the petitioners were led to believe at the relevant time that they are not liable for the tax imposed and in consequence raised a contention before the criminal Court; the offence in default of payment of tax levied deserves to be viewed with sympathy, especially as the tax is represented to have been already deposited. The sentence of fine of Rs. 100/- each appears to be rather too heavy in the circumstances of the cases. While therefore confirming the conviction, I reduce the fine to Rs. 10/- each; the default sentence will stand. With this modification, the petitions are dismissed. Order accordingly. AIR 1954 MYSORE 18 (Vol. 41, C.N. 8) "M.S. Avadhani v. State of Mysore" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) M.S. Avadhani, Petitioner v. State of Mysore and others, Respondents. Civil Petn. No. 22 of 1953, D/- 23 -7 -1953. (A) Mysore Town Municipalities Act (22 of 1951), S.14(1)(A) - MUNICIPALITIES - OBJECT OF AN ACT - WRITS - Municipalities - Scope - Person duly elected Councilor and President - Objection on grounds of under-age not taken at any stage, provided for in Rules - He cannot be unseated by Government by order u/S.14(1)(A) - Order quashed. Constitution of India, Art.226. The proviso to Cl. (1), S. 14(1)(A) means that if a person, who is not qualified for being chosen as or being a councillor, is elected his seat shall be deemed to be vacant but that, however, under the proviso his election is not invalidated if the disqualification is such as could have been brought to the notice of the Returning Officer at the time or before the scrutiny of the nomination papers and is not so brought to his notice. Clause (2) can only apply to cases of any disqualification attaching to a councillor during the term for which he has been elected or appointed or to vacancies arising out of such disqualification which could not have been brought to the notice of the Returning Officer at the time or before the scrutiny of the nomination papers. There was an election for choosing a President of the Council and the petitioner who was duly elected as councillor stood as a candidate and was declared duly elected. Subsequently three other Municipal Councillors made an application to the Government purporting to be under S. 14, Mysore Town Municipalities Act praying that the Government should declare that a vacancy had arisen in regard to a Municipal Councillorship of the 11th Division of the town out of which the petitioner had been elected and seeking his removal from the office of the President. On that application the Minister for Public Health and Local Self-Government passed an order on 19-1-1953 holding that the petitioner stands disqualified being less than 25 years of age. That order purported to have been passed under S. 14(1)(A)(c). It was undisputed that the petitioners age was shown as 27 years in the preliminary as well as in the final electoral roll and that nobody then ever thought of disputing it. After he was declared duly elected no application was made contesting his election on the ground of under-age or any other ground. Later when he Stood for Presidentship and was duly elected as such also no one took up the matter in appeal to the Deputy Commissioner as provided by R. 10 of the Rules framed for the election of a President and Vice-President of a Town Municipal Council, within 7 days of the election. The petitioner in an application under Art. 226 to the High Court complained that without resorting to any of the above remedies provided by the statute the Councillors made an application before Government months after all the abovementioned remedies were barred and that the order of the Government passed on such an application was entirely without jurisdiction and was wholly void : Held after considering the relevant rules and the proviso to Cl. (1) of S. 14(1)(A) that the Government had nowhere in the Act been given such large and unfettered powers to interfere with the result of elections duly held and confirmed and that the order of the Government was without jurisdiction. (Order and the proceedings were quashed). (Paras 11, 14, 15) (B) Constitution of India, Art.226 - WRITS - MUNICIPALITIES - Quashing of executive order - Order under Proviso to Cl.(1) of S.14(1)(A), Mysore Town Municipalities Act, nature of. Municipalities. Mysore Town Municipalities Act (22 of 1951), S.14(1)(A). The High Court has power to interfere in the cases of even so-called administrative orders which are made in defiance of the articles of Constitution or the mandatory provisions of law and without any jurisdiction. (Para 12) Where orders are passed or action is taken under a statute or an Act of the Legislature by a Court or tribunal which is vested with the power to take and enforce decisions regarding the rights between rival parties who appear before the tribunal or between them and the State, then proceedings, orders and action cannot be said to be executive. (Para 12) Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well-recognised principles of approach are required to be followed. Therefore, wherever any body of persons having legal authority to determine questions affecting rights of subjects and having the duty to act judicially act in excess of their legal authority writ of certiorari may issue. (Para 12) The order under Proviso to Cl. (1), S. 14(1)(A) of the Government or the Minister who has got to decide a question of so vital and valuable interest to the Councillor and the electorate, in pursuance of a statutory power or duty cast on the Government to do so under Mysore Town Municipalities Act is not one which is merely executive or administrative and incapable of correction under Art. 226 of the Constitution in appropriate cases. AIR 1953 SC 210, Relied on. (Para 12) Cases Referred : Courtwise Chorological Paras (A) (53) AIR 1953 Mys 156 : (Civil Petns. Nos. 98 of 1950-51; 155 and 163 of 1951-52, D/-30-03-1953) (FB) 12 (B) (52) AIR 1952 All 63 : 1952 All LJ 342 12 (C) (50) AIR 1950 SC 222 : 1950 SCR 621 12 (D) (53) AIR 1953 SC 210 : 1953 SCJ 293 13 Nittoor Srinivasa Rao, for Petitioner; Advocate-General (for No. 1) and V.K. Gobindarajalu, (for Nos. 3, 4 and 5), for Respondents. Judgement VASUDEVAMURTHY, J. :- The petitioner offered himself as a candidate for election to the Town Municipal Council, Hiriyur, and was declared duly elected at the elections on 12-3-1952. On 5-5-1952 there was an election for choosing a President of the Council and the petitioner stood as a candidate and was declared duly elected then also. Thereupon he appears to have entered upon his duties as President. Subsequently on 20-8-52 respondents 3 to 5 who are described as three other Municipal Councillors made an application to the Government purporting to be under Section 14, Mysore Town Municipalities Act, 22 of 1951, praying that the Government should declare that a vacancy had arisen in regard to a Municipal Councillorship of the 11th Division of the town out of which the petitioner had been elected and seeking his removal from the office of the President. On that application the Minister for Public Health and local Self-Government passed an order on 19-1-53 holding that Sri M.S. Avadhani, the petitioner, stands disqualified being less than 25 years of age. That order purports to have been passed under Section 14(1)(A)(e), Mysore Town Municipalities Act. This disqualification continued to exist and therefore his seat was to be declared vacant by the Government. The petitioner has therefore filed this petition under Article 226 of the Constitution of India praying for the issue of a Writ of certiorari quashing the Government Order dated 19-1-53 or such other proper writ as the Court may deem fit.

2. The petitioner has in his affidavit accompanying the petition described the procedure adopted in accordance with the relevant election rules and those facts are1 not disputed. The electoral roll of the Hiriyur Town Municipal "Council was published on 25-1-1952. The final list of voters was published on 18-9-52. Rule 2 of the Election Rules issued by the Government on 25-9-1951 and published in the Mysore Gazette dated 27-9-1951 provides that two months prior to the date of the expiry of the term of office of the municipal councillors, the Returning Officer, who is the Amildar of the Taluk in which the Municipal Council is situate, shall prepare for every division an electoral roll in which shall be included the names of all persons appearing to be entitled to be registered therein. It should be published in the Division together with a notice specifying the mode in which and the time within which claims for inclusion in the roll or objections to any names or particulars entered in the roll are to be preferred. Under Rule 4 the electoral roll for each constituency should be prepared in Kannada in Form I, and under Rule 5 it shall contain the number and name of division, the name of each elector, the name of the father of each elector, or if the elector is a woman the husbands name, or other identifying particulars, and the sex, the age of each elector and the number of the house at which he resides. The electoral roll is to be given wide publicity under Rule 6 by publication at the Municipal Office, Taluk Office and in such other conspicuous place in each division as the Returning Officer may deem fit, and any person whose name is not entered in the roll or is entered incorrectly, or any person who objects to the inclusion of his own name or the name of any other persons in the roll, has to prefer a claim or objection to the Returning Officer. All such claims and objections are to be made in writing and within 14 days from the date of the publication accompanied by any documents on which the claimant or objector relies. Under R. 8 the Returning Officer is bound to hold a summary enquiry into the claims or objections preferred and has to record his decision in writing; and that rule provides expressly that for the purpose of the Returning Officers enquiry, the roll as published, shall be presumed to be correct and complete until the contrary is proved. The Returning Officer will then decide on all claims and objections and the orders passed by him are declared to be final under R. 10. The Returning Officer has then to publish the final electoral roll with the said amendments in the same manner as is set out above and with the same publicity within 10 days from the last date of the receipt of objections, and a copy of the final electoral roll duly certified by the Returning Officer should be forwarded by him to the Deputy Commissioner for deposit in his office. Section 14(1)(A)(e), Town Municipalities Act provides that no person shall be qualified for being chosen and for being a councillor who is less than 25 years of age.

3. It is undisputed that the petitioners age was shown as 27 years in the preliminary as well as in the final electoral roll and that nobody then ever thought of disputing it. After he was declared duly elected no application was made contesting his election on the ground of under-age or any other ground. Later when he stood for Presidentship and was duly elected as such also neither the respondents nor anybody else took up the matter in appeal to the Deputy Commissioner as provided by R. 10 of the Rules framed for the election of a President and Vice-President of a Town Municipal Council within 7 days of the election. The petitioner complains that without resorting to any of the above remedies provided by the statute respondents 3 to 5 made an application before Government months after all the abovementioned remedies were barred and that the order of the Government passed on such an application was entirely without jurisdiction and was wholly void.

4. This petition is opposed by respondents 3 to 5 as well as by the learned Advocate-General on of behalf of the State though the latter has not filed any formal objections to the petition as others have done. In the main the question is to be decided by a reference to S. 14, Mysore Town Municipalities Act. Section 14(1)(A) sets out certain general disqualifications for being chosen as and for being a councillor; and cl. (1) concludes that if any person is elected as a councillor in contravention of those provisions his seat shall be deemed to be vacant, and to that a proviso is added that nothing in that section shall invalidate the election if the disqualification is such as could have been brought to the notice of the Returning Officer at the time of or before the scrutiny of the nomination papers and has not been so brought to his notice. Clause (2) provides that in the event of any councillor during the term for which he has been elected or appointed becoming subject to any of those or other disqualifications he is disabled from continuing to be a councillor and his office shall become vacant. Clause (3) provides that if any question or dispute arises whether a vacancy has occurred under that section, the orders of the Government shall be final for the purpose of deciding such question or dispute; and it is on the Interpretation and effect to be given to the proviso and to Cl. (3) that most of the arguments on behalf of both the petitioner and the respondents have been addressed.

5. In our opinion the proviso means that if a person, who is not qualified for being chosen as or being a councillor, his seat shall be deemed to be vacant but that, however, under the proviso his election is not invalidated if the disqualification is such as could have been brought, to the notice of the Returning Officer at the time or before the scrutiny of the nomination papers and is not so brought to his notice. Clause (2), in our opinion, could only apply to cases of any disqualification attaching to a councillor during the term for which he has been elected or appointed or to vacancies arising out of such disqualification which could not have been brought to the notice of the Returning Officer at the time or before the scrutiny of the nomination papers.

6. It has been strenuously contended for respondents 3 to 5 that if they had no knowledge of the disqualification before at the time of scrutiny of the nomination papers and could not therefore bring it to the notice of the Returning Officer, they could later on raise it before the Government at any time during which the councillor would be in office either as councillor or as President.

7. Section 20 of the Act provides that within a very short time after the date of declaration of the result of an election, any candidate who stood for the election or any ten persons qualified to vote at that election may apply, together with a deposit of fifty rupees as security for costs to the Election Commissioner appointed by the Government in this behalf for the determination of the validity of the election. The Election Commissioner has large powers of summoning and enforcing the attendance of witnesses and to compel them to give evidence as if he were a civil Court and for confirming or amending the declared re-suit of the election, or setting the election aside. An appeal lies to this Court from the order of the Election Commissioner provided it is only on a point of law and is preferred within one month from the date of such order. To accept the respondents arguments would lead to a most uncertain state of affairs which could certainly have not been the scheme of the Act, much less of any notions of fairness and finality of elections. Unless one is compelled to accept such a construction one would be loath to do so. The proviso would then have no meaning at all.

8. The learned Advocate-General could not say what in those circumstances would be the use of the proviso. But he suggested that if the disqualification was one which was known to the persons who challenged the election at or before the scrutiny of nomination papers and if they did not bring it to the notice of the Returning Officer they may be barred from raising it.

9. Some disqualification may arise or come into being or be discovered between the date of the scrutiny of the nomination paper and the elections or the declaration of the result. Such disqualifications, it may be, could not be put forward as grounds of objection before the Returning Officer or the Election Commissioner. The disqualifications referred to in the proviso are not defined as such as were not within the knowledge of the objectors but subjectively such as could have been brought to the notice of the Returning Officer. Those words refer to the nature of the disqualification and not the capacity of the objectors. If the question of knowledge of the objectors was to be the criterion or intention of the legislature the proviso would have been differently worded and we would have expected some stringent provisions such as periods of limitation, proof of the want of knowledge earlier, the nature and extent of the interest of the objector who is bringing the objection to the notice of the Government etc. Moreover neither in their application to Government nor in their objections in this Court have the respondents stated that they came to know of this petitioners disqualification only after the election and just before making their application to Government.

10. There would really be no hardship or injustice if an interpretation is placed on that proviso and on Cl. (3) in the way canvassed for it for the petitioner. The objectors would have a chance of putting forward their objections before the Returning Officer at the time of or before the scrutiny of the nomination papers. They or any ten persons of the town could take up the matter in appeal to the Election Commissioner and from his decision appeal to this Court. To hold otherwise would give a handle to any person irrespective of any interest he may have in the election to move the Government by an application without any safe- guard of deposit or further appeal to the High Court at any time he chooses to nullify a duly held election which he could and ought to have challenged before duly constituted authorities like the Returning Officer and the Election Commissioner and the High Court. This, in our opinion, would lead .to injustice and absurd consequences. As pointed out in Maxwells Interpretation of Statutes no interpretation should be put on a statute which would lead to such consequences if it could be avoided. See Maxwells Interpretation of Statutes 1946 Edn., pp. 207-208 and 212-213.

11. Mr. Govindarajulu, learned counsel for respondents 3 to 5, admitted that it may be so, but contended that if S. 14(3) vested in Government the sole and absolute power to declare finally that a vacancy had arisen it was not within the province o any Court to deny them that power. As against this it must be pointed out that the whole scheme of the Act has been designed with a view to afford a very large measure of internal autonomy to the Municipal Councils and for non-officials to manage their own affairs and to foster and encourage local Self-Government. Stringent provisions like those embodied in S. 14, Cl. (1) A (3), i.e., holding an office of profit under the Government of India or the Government of State and Cl. B(a) being a subordinate officer or servant of Government, have been provided in the Act obviously with a view to avoid the Government or its officers or supporters having any hand in its day to day management though of course Government has been entrusted with certain powers of superintendence and control over the Municipal Councils to prevent the abuse of the powers vested in them or to provide for a break down of the administration of the Council. The Government has nowhere in the Act been given such large and unfettered powers as is now sought for it by the respondents to interfere with the result of elections duly held and confirmed. Such a power, as urged for the petitioner, may tend to make the elections a meaningless farce and place the members of the Council who have been duly elected by their constituencies in ever present and constant danger of being unseated under the provisions of S. 14, Cl. (3) at the intervention of any person who may not have either cared or ventured to question it before the Returning Officer or the Election Commissioner.

12. It is contended for the respondents that this is not a case in which a writ ought to or can be issued. It is urged that a writ like the one now sought cannot be issued against the Government. It has been recently held by a Pull Bench of this Court in - Sampu Gowda v. State of Mysore, AIR 1953 Mys 156 (FB) (A), that a writ can be issued against Government in proper or appropriate cases under Art. 226 of the Constitution to cancel an order passed by them without jurisdiction. It is next urged that while passing orders like the present one the Government or its Minister is not acting in a judicial or quasi-judicial capacity but is only making an executive or administrative order. It has been pointed out by the same Pull Bench case of this Court that this Court has power to interfere in the cases of even so-called administrative orders which are made in defiance of the articles of Constitution or the mandatory provisions of law and without any jurisdiction. Where orders are passed or action is taken under a statute or an Act of the Legislature by a Court or tribunal which is vested with the power to take and enforce decisions regarding the rights between rival parties who appear before the tribunal or between them and the State, then proceedings, orders and action cannot be said to be executive. In - Avadesh Pratap Singh v. State of Uttar Pradesh, AIR 1952 All 63 at p. 67 (B), it has been observed : "It follows therefore that by the phrase acting judicially what is meant is not merely strictly judicial acting but also quasi-judicial acting or in other words an acting analogous to judicial acting." In that case the Government were acting under the Court of Wards Act. In - Province of Bombay v. Khushaldas S. Advani, AIR 1950 SC 222 (C), it has been pointed out that when the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character and are not amenable to the writ of certiorari. When the law under which the authority is making a decision itself requires a judicial approach, decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well recognised principles of approach are required to be followed. Therefore, wherever any body of persons having legal authority to determine questions affecting rights of subjects and having the duty to act judicially, act in excess of their legal authority a writ of certiorari may issue.

13. It is very difficult to accept the argument that the order of the Government or the Minister who has got to decide a question of so vital and valuable interest to the petitioner, and the electorate, in pursuance of a statutory power or duty cast on the Government to do so under the Town Municipalities Act is one which is merely executive or administrative and incapable of correction under Art. 226 of the Constitution in appropriate cases. In - Election Commission, India v. Saka kata Rao, AIR 1953 SC 210 (D), one Saka Venkata Rao had been convicted by the Sessions Judge of East Godavari and sentenced to a term of seven years rigorous imprisonment in 1942. He offered himself as a candidate at a by election to a reserved seat in the Kakinda constituency of the Madras Legislative Assembly in June 1952. But realizing that he was disqualified under S. 7(b), Representation of the People Act, 1951 as five years had not expired from the date of his release on the Independence Day, 15-8-1947, he applied to the Election Commissioner for exemption. No reply to his application having been received till 5-5-1952, the last date for filing nominations, he filed his nomination on that day. No objection was taken to it either by the Returning Officer or any other candidate at the scrutiny of the nomination papers. The election was held on 14-6-1952 and Venkata Rao who secured the largest number of votes was declared elected on 16-6-1952. The result of the election was published in the Fort St. George Gazette (Extraordinary) on 19-6-1952 and he took his seat in the Assembly on 27-6-1952. Meanwhile, the Commission had rejected his application for exemption and communicated such rejection to him by a letter dated 13-5-1952, which, however, was net received by him. On 3-7-1952 the Speaker of the Assembly read out to the House a communication received from the Commission bringing to his notice for such action as he may think fit to take the fact that Venkata Raos application for exemption had been rejected. A question was then raised as to his disqualification and the matter was referred to the Governor of Madras who forwarded the case to the Commission for its opinion as required under Article 192 of the Constitution. Venkata Rao thereupon challenged the competency of the reference and the action taken by the Governor. Nevertheless, the Commission notified Venkata Rao that his case would be heard on 21-2-1952. Accordingly the Chief Election Commissioner went down to Madras and partly heard the matter and adjourned it to 28-8-1952. On the same day (21-8-1952) Venkata Rao applied to the High Court under Art. 223 of the Constitution contending that Art. 192 of the Constitution applied only where a member became subject to a disqualification after he was elected but not where, as in his case, the disqualification arose long before the election, in which case the only remedy was to challenge the validity of the election before the Election Tribunal. The Madras High Court issued a writ as prayed for. But on appeal the Supreme Court while setting aside the writ on the ground that the Madras High Court had no territorial jurisdiction to issue such a writ to the Election Commissioner at Delhi observed that Art. 191 of the Constitution which lays down the same set of disqualifications for election as well as for continuing as a member, and Art. 193 which prescribes the penalty for sitting and voting when disqualified, are naturally phrased in terms wide enough to cover both pre-existing and supervening disqualifications. It did not, however, necessarily follow that Arts. 190(3) and 192(1) must also be taken to cover both. In their opinion those two articles went together and provided a remedy when a member incurred disqualification after he was elected as a member. "Not only do the words becomes subject in Art. 190(3) and has become subject in Art. 192(1)", they said, "indicate a change in the position of the member after he was elected, but the provision that his seat is to become thereupon vacant, that is to say the seat which the member was filling theretofore becomes vacant on his becoming disqualified, further reinforces the view that the Article contemplates only a sitting member incurring the disability while so sitting. The suggestion that the language used in Art. 190(3) can equally be applied to a pre-existing disqualification as a member can be supposed to vacate his seat the moment he is elected is a strained and far-fetched construction and cannot be accepted". In Art. 190(3)(a) the words are "becomes subject to any of the disqualifications mentioned in cl. (1) of Art. 191" In Art. 192(1) also the words are "has become subject to ............" The words in S. 14(1)(A), Mysore Town Municipalities Act, 1951 "No person shall be qualified for being chosen as, and for being, a councillor .......... (e) who is less than twenty-five years of age" and in S. 14(2) "If any councillor during the term for which he has been elected or appointed .... (a) becomes subject to any disqualification specified in sub-s. (1)......... .(d) A councillor whose office has become vacant under this sub-section shall, if his disability has ceased, be eligible for re-election or re-appointment" are very similar to the words found in Arts. 190(3)(a) and 192(1) of the Constitution. We therefore think that that decision fully supports the petitioner.

14. It was urged for the respondents that according to the order of the Government which was passed on a report of the Deputy Commissioner, the age of the petitioner was less than 25 years on the date when the Government passed their order and this circumstance should disentitle the petitioner to the relief of a writ. If the Government had no jurisdiction at all to embark about this particular disqualification any materials which might have been tendered by the respondents or even by the petitioner, may be under protest, cannot be looked into or taken into account for the purpose of determining the right of the petitioner to have those proceedings themselves quashed as being without jurisdiction. It is also urged that neither the report, nor the order of the Government, have taken into consideration some evidence which the petitioner placed before the Deputy Commissioner in obedience to a notice issued to him and the finding of the Deputy Commissioner is therefore wrong. The Government themselves have recorded no evidence and there is no provision in Section 20 of the Act or elsewhere for any report of the kind to be made to them by the Deputy Commissioner or the same to be acted upon by the Government in such a matter. The point at issue is whether the Government had jurisdiction to consider the present disqualification with which we are concerned in this case and if they had no such power the proceedings would have to be quashed.

15. In the result we direct that the order of Government No. L. 17867-71/ML. 65-52-2 dated 19-1-1953 declaring that the petitioner was disqualified from being chosen or acting as a Councillor and that, therefore, there is a vacancy under clause (3) of section 14 be quashed. Respondents 3 to 5 will pay the costs of the petitioner (Advocates fee Rs. 100/-). Respondent 1 will bear his own costs. Order quashed. AIR 1954 MYSORE 23 (Vol. 41, C.N. 9) "Naranappa v. Gurappa" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Bathalur Naranappa, Plaintiff-Appellant v. Uppacharla Gurappa and others, Defendants-Respondents. Second Appeal No. 427 of 1949-50, D/- 13 -10 -1952, against decree of Addl. Sub-J., Kolar, in R. A. No. 222 of 1948-49. LIMITATION - Accounts - Accounts stated - What is. Limitation Act (9 of 1908), Art.64. There can be an account stated although the balance of indebtedness is throughout as it must be at the end in favour of one side. The essence of an account stated is the fact that there are cross items of accounts and that the parties mutually agree to the several amounts of each and, by treating the items so agreed on the one side as discharging the items on the other side pro tanto, go on to agree that the balance only is payable. Such a transaction is in truth bilateral and creates a new debt and a new cause of action; and involved mutual promises, the one side agreeing to accept the amount of the debts as true and to pay it, the other side agreeing the entire debt as at a certain figure and then agreeing that it has been discharged to such and such an extent so that there will be complete satisfaction on payment of the agreed balance. An account stated may only take the form of a mere acknowledgment of a debt and in those circumstances, though it amounts to a promise and the existence of a debt may be inferred, the same can be rebutted; and it may very well turn out that there is no real debt at all and in that case there would be no consideration and no binding promise. AIR 1934 PC 144 and AIR 1934 PC 147, Rel. on. AIR 1938 Cal 861; AIR 1921 Pat 29 and AIR 1929 Cal 444, Distinguished. (Para 3) Anno : Lim. Act, Art. 64 N. 2. Cases Referred : Courtwise Chorological Paras (A) (38) AIR 1938 Cal 861 : 182 Ind Cas 368 2 (B) (34) AIR 1934 PC 144 : 151 Ind Cas 90 (PC) 2, 3 (C) (34) AIR 1934 PC 147 : 56 All 376 (PC) 2, 3 (D) (21) AIR 1921 Pat 29 : 60 Ind Cas 514 3 (E) (29) AIR 1929 Cal 444 : 57 Cal 394 3 K.P. Muddappa, for Appellant; V. Krishna Murthy, for Respondents. Judgement The plaintiff brought a suit for the recovery of Rs. 272-8-0 principal, Rs. 11/- interest and Rs. 2-8-0 notice charges, in all Rs. 286/- due on accounts in respect of certain transactions carried on by defendants 1 and 2 with the plaintiff from 29-10-1938 to 16-8-1947. Defendant 3 is also sought to be made liable on the ground that he was a member of the joint family with the other defendants and it was expressly pleaded that defendants 1 and 2 were the managers of the family. Defendant 1 was ex parte. Defendants 2 and 3 totally denied that they had any transactions with the plaintiff and defendant 2 pleaded that he was an agriculturist which plea was upheld by the learned Munsiff. They also pleaded that the plaintiffs suit was barred by limitation. The learned Munsiff who heard the suit believed plaintiff 1 and his witness P.W. 2 and held that the transactions had been proved and that all the defendants were liable. He also found that the suit was in time. But on appeal by the defendants the learned Subordinate Judge reversed the judgment of the learned Munsiff and dismissed the plaintiffs suit. The plaintiff has come up in second appeal.

2. I think the learned Subordinate Judges judgment is not correct and cannot be supported. The learned counsel for the respondents has strongly relied on a case in - Satis Chandra v. Rampada Chattapadhya, AIR 1938 Cal 861 (A), which has also been relied upon by the learned Subordinate Judge. But it is found in that case that the defendant was working under the plaintiff as a tahsildar during the concerned period and that at the end of that period he signed a document admitting his liability for a certain sum. Siqueira v. Noronha, AIR 1934 PC 144 (B) and - Bishun Chand v. Girdhari Lal, AIR 1934 PC 147 (C) were expressly distinguished in that case and it was observed that in the latter of the Privy Council cases, the account was drawn up by the creditors in their own account book and below the entry there was a writing by the debtor containing a statement that the sum as found was due after adjustment of accounts. There were cross items of accounts between the parties and the parties had agreed to set off those items against each other and to have the balance paid. On the other hand in the case in - AIR 1938 Cal 861 (A), it was found that though the plaintiff had made some attempt to show that certain cross demands of the defendant were also considered in settling the figure due by the defendant he had failed to prove that allegation. AIR 1938 Cal 861 (A), therefore, cannot help the respondent as the facts there are quite different.

3. In - Ram Bahadur Singh v. Damodar Prasad Singh, AIR 1921 Pat 29 (D), the question which arose was whether the words of a certain acknowledgment amounted to a promise to pay within the meaning of S. 25, Contract Act. In that case also it was sought to be argued that there was "an account stated" but on the facts their Lordships who decided it were of the view that there were no cross demands between the parties and that therefore there was nothing by way of settlement of account. Sasi Kanta v. Sonaulla, AIR 1929 Cal 444 (E) which has been of a promise to pay will not bring an acknowledgment of debt under S. 25, Contract Act. In that case also the defendant was a gumastha under the plaintiff and some time after the agency terminated he signed below an entry saying that he was liable to his employer in a certain sum. That case therefore was not one relating to a suit en account stated. AIR 1934 PC 144 (B) and - AIR 1934 PC 147 (C) clearly apply to the facts and circumstances of this case. As pointed out In - AIR 1934 PC 144 (B), an account stated may only take the form of a mere acknowledgment of a debt, and in those circumstances, though it amounts to a promise and the existence of a debt may be inferred the same can be rebutted; and it may very well turn out that there is no real debt at all and in that case there would be no consideration and no binding promise. But in a case of transaction evidenced by entries on both sides in the plaintiffs account and in which the parties who have "stated the account between them" have agreed that the items on one side should be set off against the items on the other and only the balance should be paid, their Lordships held that "From such an account there arises a promise made for good consideration to pay the balance shown on the account." In - AIR 1934 PC 147 at p. 151 (C), their Lordships pointed out that there can be an account stated although the balance of indebtedness is throughout as it must be at the end in favour of one side; that the essence of an account stated is the fact that there are cross items of accounts and that the parties mutually agree to the several amounts of each and, by treating the items so agreed on the one side as discharging the items on the other side pro tanto, go on to agree that the balance only is payable. Such a transaction is in truth bilateral and creates a new debt and a new cause of action; it was not material whether the only payments made by one party were simply payments in reduction of an indebtedness or were payments made in respect of other dealings. In any event items must be ascertained and agreed on each side before the balance can be struck and settled. Such a transaction involves "mutual promises, the one side agreeing to accept the amount of the debts as true and to pay it, the other side agreeing the entire debt as at a certain figure and then agreeing that it has been discharged to such and such an extent so that there will be complete satisfaction on payment of the agreed balance." In - AIR 1934 PC 144 at p. 145 (B), their Lordships found fault with the Courts below observing that they had dealt with the matter before them upon the footing that the transaction between the parties which was alleged to be an account stated, amounted to an implied promise to pay without consideration, and. having got that in mind, they then began to consider (in that light) questions that arose under the Indian Contract Act and the Indian Limitation Act. I think that is just what the learned Subordinate Judge has done in this case.

4. If we examine the accounts in this case we find that there are items of debt as well as some items of credit i.e., cross items. Defendant 1 has signed Ex. A-1 on 12-7-1943. Defendants 1 and 2 have signed B-1 on 12-9-48 and B-2 on 12-2-47 clearly showing and acknowledging that as a result of examining the accounts between them and the plaintiff certain stated balances were due by them on those dates. They have signed and affixed their thumb impressions on one anna stamp. It is rather difficult to understand what the learned Subordinate Judge means by suggesting that because they were "practically illiterate" different-considerations should govern the application of the law of limitation. This is particularly so as they have not pleaded any fraud or to have signed by mistake in ignorance of the contents and in fact they have not even chosen to step into the box.

5. I do not think defendant 3 is liable as he has not signed any of the entries and it has not been shown how he can be bound by them. The plaintiffs suit is therefore dismissed as against him but without costs.

6. The judgment of the learned Subordinate Judge is set aside; the appeal is allowed and the judgment and decree of the learned Munsiff are restored but there will be a decree only against defendants 1 and 2 with costs throughout. Appeal allowed. AIR 1954 MYSORE 24 (Vol. 41, C.N. 10) "Hussain v. Rahim Khan" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Hussain and another, Defendants-Appellants v. Rahim Khan, Plaintiff-Respondent. Second Appeal No. 432 of 1949-50, D/- 13 -10 -1952, against decree of Sub-J., Mysore, in R. A. No. 76 of 1948-49. MUSLIM LAW - Muhammadan Law - Dower - Transfer of property charged with. A widow of a Mahomedan who is lawfully in possession of her husbands estate can retain such possession until her dower debt is paid or Satisfied. That right is heritable, and may be transferred along with her share provided the same is done by a proper and valid deed of conveyance. The transfer must include the right to remain in possession also and the transferee must also be put in possession. If the widow or her transferee is out of possession they cannot sue for possession on the basis of the right to retain possession. Case law discussed. (Para 12) Held that the transferee was entitled to remain in possession until the dower debt was discharged. (Para 13) Cases Referred : Courtwise Chorological Paras (A1) 31 Mys CCR 56 5 (A) (85) 7 All 353 5 (B) (10) 32 All 551 : 6 Ind Cas 376 5 (C) (15) AIR 1915 Bom 214 : 40 Bom 34 5 (D) (43) AIR 1943 Bom 372 : 210 Ind Cas 502 5, 9 (E) (27) AIR 1927 All 534 : 50 All 86 5, 12 (F) (20) AIR 1920 Mad 666 : 43 Mad 214 (FB) 6, 7 (G) (16) AIR 1916 PC 46 : 38 All 581 (PC) 6, 9 (G1) (95) 17 All 77 : 1895 All WN 67 (H) (43) AIR 1943 Mad 550 : ILR (1944) Mad 37 7 (H1) (25) AIR 1925 PC 63 : 47 All 250 (PC) 7

(I) (52) AIR 1953 Pat 123 8 (J) (23) AIR 1923 Pat 72 : 2 Pat 75 8 (K) (42) AIR 1942 Pat 210 : 20 Pat 798 10

(L) (49) AIR 1949 Pat 427 : 27 Pat 218 11 Hussain and another, Defendants-Appellants v. Rahim Khan Judgement The plaintiff is the brother and defendant 1 is the widow of one Dilawar Khan to whom the plaint schedule house belonged. The plaintiff sued defendant 1, and defendant 2 who has purchased it from her, for partition and possession of his -th share in it. Defendant 1 pleaded that her husband had settled 39 tolas of gold on her as her mahar or dower; she had borrowed and spent some monies for meeting the medical charges and funeral expenses of the deceased. She had also paid some arrears of Municipal assessment due on the property. In order to pay off those debts and for her maintenance she had sold and conveyed all her rights in the suit property including her right to retain possession till she was paid off, to defendant 2 for Rs. 1000/- and delivered over possession of the same to him. She, and therefore, her alienee defendant 2 were entitled to retain possession till the plaintiff was paid off his proportionate share of the dower debt. Defendant 2 also raised the same defence.

2. The plaintiff denied the amount of the mahar as well as the other items claimed by defendant 1.

3. Both the Courts below have however found that the mahar fixed was 39 tolas of gold and that it has remained unpaid. That finding is binding on me in second appeal. The learned Munsiff fixed the amounts due to defendant 2 for medical charges and funeral expenses at Rs. 150/- and Rs. 250/- respectively. The Subordinate Judge has fixed them at Rs. 50/- each and has made the same a first charge on the suit property. The amounts fixed by the learned Subordinate Judge appear to be more probable considering the status of the parties and the paucity of the evidence and I see no reason to differ from his finding in this matter.

4. The learned Munsif made a decree for partition and possession of the -th share in favour of the plaintiff conditional on his paying his share of the mahar debt to defendant 2. The learned Subordinate Judge has vacated, that direction and held that defendant 2 had no right to remain in possession till he was paid the -th share of the mahar debt.

5. The defendants have come up in second appeal, it is contended by Mr. V. Krishnamurthy, learned Counsel for the Appellants, that the learned Subordinate Judge ought to have held that the sale deed Ex. 4 dated 6-10-1947 executed by defendant 1 in favour of defendant 2 operated by its terms to convey the right of retention of possession of the suit property until the plaintiff had paid his proportionate share of the dower debt. He argues that there is no doubt that the widow of a deceased Mahomedan who is actually in possession of her husbands property has a right to retain possession of the same. He relies for that position on a case decided by this Court in 31 Mys. CCR 56 (A1) where it has been laid down that a Mahomedan widow who was in lawful possession of her husbands house was entitled as against the other heirs of her husband to retain that possession until her dower was paid. He was also referred to passages in Mullas Mahomedan Law 12th Edn., page 237 para 224 and Ameer Alis Mahomedan Law, VIII Edn. page 490. He urges that the right to retain possession has been held to be heritable also and that there is nothing in Mahomedan or other law which would prevent her from transferring that right along with the property in favour of another by a valid conveyance nor would such transfer be opposed to any other principle of law. That such a right of a Mahomedan widow to retain possession of her husbands estate in lieu of her mahar debt is a heritable right has been recognized in - Azia Ullah Khan v. Ahmad All Khan, 7 All 353 (A); - Ali Bakhsh v. Allahabad Bank, 32 All 551 (B); and - Majid Mian Baxu Mian v. Bibi Saheb Jan, AIR 1915 Bom 214 (C). The same principle has been recognized even in - Coovarbai Nasarwanji v. Hayathi Budhanbhai, AIR 1943 Bom 372 (D) on which respondent relies. See also - Mashal Singh v. Ahmad Husain, AIR 1927 All 534 (E) and Mullas Mahomedan Law, 12th Edn. page 242, para 225 (a).

6. In - Beeju Bee v. Moorthuja Saheb, AIR 1920 Mad 666 (FB) (F) it has been held, after an exhaustive discussion of the case law on the point, that a Mahomedan widow whose dower remains unpaid is entitled to retain possession of the properties of her husband which she obtained lawfully, without force or fraud, but without the consent of or any agreement with the husband or his heirs as to the payment of her dower; nor can such properties be divided among the heirs until the dower debt is satisfied. Though the sale by such widow to satisfy the dower debt is not binding on the other heirs of her husband, the vendee is entitled to retain possession of the property sold to him against the other heirs until the dower debt is satisfied. That reference to the Full Bench was necessitated by the conflict of decisions as to whether the widows right to hold possession is transferable as well as heritable. Abdur Rahim, C.J. after a detailed examination of the law on the point observed that there is no express text of Mahomedan Law so far as one could see dealing with the question whether the right of the widow in possession of her husbands property in lieu of her dower to retain such possession until the same is satisfied, is transferable at all or whether it is purely a personal right. But it was a well settled law that a person in peaceable possession of land as against every one but the true owner has interest capable of being inherited, devised or conveyed. The sale by the widow would not bind her husbands heirs but she could transfer her right to possession along with the dower debt and the alienation must be held binding on the heirs to that extent. He was of the opinion that in - Hamira Bibi v. Zubaida Bibi, AIR 1918 PC 46 (G) the Privy Council had not been invited to consider the question relating to the circumstances under which the widows right to remain in possession for satisfaction of the dower debt arose; and that neither that decision nor - Amanat-un-rnissa v. Bashir-un-nissa, 17 All 77 (G1), had settled the controversy with respect to the question before him.

7. In - Bhavadasan Nambudripad v. Narayana Nayar, AIR 1943 Mad 550 (H) Leach, C.J. and Lakshmana Rao, J. were of the opinion that, the judgment of the Privy Council in - Mt. Maina Bibi v. Ch. Vakil Ahmed, 47 All 250 (H1), had not the effect of overruling the decision of the Full Bench in - AIR 1920 Mad 666 (F). They observed that there was considerable divergence of opinion between the various High. Courts on the question whether a widow is entitled to transfer her right to dower and if she does so transfer whether the transferee is entitled to remain in possession until that debt is satisfied. They naturally followed the Full Bench decision of their own Court and held that each co-sharer in such circumstances is entitled to his or her share on payment of his or her share of the mahar.

8. In - Yusuf Mian v. Gafoor Mian, AIR 1952 Pat 123 (I) following - Abdur Bahman v. Wall Mahomed, AIR 1923 Pat 72 (J) a transfer of property of a widow who has been holding the property in lieu of her dower debt has been held to be -valid during her lifetime.

9. For the Respondent strong reliance has been placed on a case reported in - AIR 1943 Bom. 372 (D). In that case relying on - AIR 1916 PC 46 (G) it has been observed that the right of a widow is no greater than that of any unsecured creditor. But if she is lawfully in possession she is entitled to retain such possession until her claim is satisfied. That right to retain possession in lieu of her dower is a heritable right but, they held, though that right is a heritable right neither the widow nor her heirs can bring a suit for possession on the basis of the lien which gives no title to the property and the only maintainable suit is one based on possession and dispossession. They pointed out that the widows right is essentially a right to retain possession which she has obtained and not to obtain possession in the exercise of that right. In the case before them the widows were, it was found, not in possession of the property belonging to their husband and could not therefore sue for possession based on that right.

10 Mahomed Zobair v. Mt. Bibi Sahidan, AIR 1942 Pat 210 (K), is the next case relied on for the respondent. In that case also, the widow made a gift of her husbands property of which she was in possession purporting to convey it as an absolute estate by a registered deed of gift. The donee was not put in possession. In a suit by the heirs to recover possession of their shares it was held that the donee could not resist their claim by relying on the widows right to recover her mahar and to be put in possession of the property. That case has keen decided on the basis that the donee was not put in possession of the property by the widow, and the question whether he could put forward the widows right to retain possession did not arise. The sale or gilt deed in that case, which was also impeached as invalid for want of registration, did not also purport to convey the widows right to retain possession till her dower debt was paid.

11. In - Aminuddin v. Ram Khelawan, AIR 1949 Pat 427 (L), it was observed that the right to hold possession does not give a widow any title to the property. The widow had therefore no right to alienate the property except to the extent of her own share and if the widow gives up possession she loses her right to remain in possession. A contention was raised before that Court that the widow had been in possession before she transferred the property and that the transferee had become entitled to her rights. On an examination, however, of the deeds of gift, it was held that the widow had described herself as absolute owner of the property of her deceased husband and purported to convey that absolute ownership to the donee. Those deeds failed to effect a transfer of the absolute interest and there was no mention in the document of any transfer of the widows rights to retain possession till the dower debt was paid.

12. There are a very large number of cases dealing with this point but I think the general principle of law which may be deduced from them would amount to this : A widow of a Mahomedan who is lawfully in possession of her husbands estate can retain such possession until her dower debt is paid or satisfied. That right is heritable, and may be transferred along with her share provided the same is done by a proper and valid deed of conveyance. The transfer must include the right to remain in possession also and the transferee must also be put, in possession. If the widow or her transferee is out of possession they cannot sue for possession on the basis of the right to retain possession. See - AIR 1927 All 534 (E). The terms of the sale deed Ex. IV in this case become therefore important for consideration.

13. Exhibit IV clearly purports to convey the entire defendant 1s rights in the property including her right to retain possession in lieu of her dower. The relevant words are. (The original clause in Kannada is omitted - Ed.) The widow was admittedly in possession on the date of the sale and defendant 2 is now in possession. In those circumstances I think defendant 2 is entitled to remain in possession until the dower debt is discharged. In this view the decision of the learned Munsiff appears to be correct.

14. In the result this appeal is allowed, the judgment and decree of the learned Subordinate Judge are set aside and those of the learned Munsiff restored parties bearing their own costs throughout with the modification that instead of Rs. 400/- awarded in respect of the funeral charges and medical expenses only Rs. 100/- will be payable to defendant 1, the same being a first charge on the plaint schedule property. Appeal allowed. AIR 1954 MYSORE 26 (Vol. 41, C.N. 11) "Earamma v. Nathegowda" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Earamma, Appellant v. Nathegowda and another, Respondents. Second Appeal No. 343 of 1949-50, D/- 5 -9 -1952, against decree of Addl. Sub-J., Mysore, in A. No. 60 of 1948-49. Transfer of Property Act (4 of 1882), S.52 - IMMOVABLE PROPERTY - MAINTENANCE - Suit for maintenance. Where during the pendency of a collusive maintenance suit by a wife against her husband a person bona fide purchases property of the husband, the charge subsequently created in favour of the wife on such property cannot be allowed to prevail over the purchasers superior rights. (Para 10) Anno : T. P. Act, S. 52 N. 20. Cases Referred : Courtwise Chorological Paras (A) (42) AIR 1942 Mad 67 : 201 Ind Cas 307 5 (B) (41) 19 Mys LJ 266 6 (C) (51) 1951 Mad WN 78 6 (D) (27) AIR 1927 Mad 502 : 101 Ind Cas 806 6 (E) 34 Mys CCR 62 7, 8 (F) (39) AIR 1939 Bom 403 : 185 Ind Cas 81 8 (G) (40) AIR 1940 Bom 395 : ILR (1941) Bom 1, (H) 50 Mys HCR 39 8, 10

(I) (44) AIR 1944 Bom 50 : 212 Ind Cas 291 9 (J) (39) AIR 1939 Cal 655 : 184 Ind Cas 518 10 (K) (51) AIR 1951 Pat 613 12 M. Sadanandaswamy, for Appellant; E. Kanakasabapathy, for Respondents. Judgement Defendant 2, who is the appellant in this second appeal, is the wife of defendant 1, and defendants 3, 4 and 5 are her brothers. The plaintiff brought a suit against all the defendants for recovery of possession of three items of the plaint schedule property and for mesne profits claiming that he had purchased those items under two registered sale deeds dated 6-3-45 and 13-7-45 from defendant 1 and that by those purchases he could claim priority over a charge for maintenance which had been created in a maintenance suit which defendant 2 had filed against her husband. The suit was dismissed by the Munsiff and on appeal has been decreed as prayed for except for mesne profits.

2. So far as item 1 of the plaint schedule property is concerned, its sale in favour of the plaintiff was on 6-3-45 and that was before defendant 2 filed her in forma pauperis suit in Misc. 159 of 44-45 on 18-5-45, as well as the attachment which was also before these miscellaneous proceedings i.e. on 7-7-45 as per Ext. V. The ground on which the learned Munsiff found against the plaintiff even as regards that sale deed was that defendant 1 had purported to sell the same in favour of one Nanjappa by an earlier sale deed. It is not now seriously disputed that the item sold to Nanjappa was not item 1 but some other property as found by the learned Subordinate Judge and moreover defendant 2 did not plead that Nanjappa was the owner of the suit properties. Nanjappa was not examined and defendant 2 has let in no evidence that he had any substantial right, title and interest in item 1.

3. As regards items 2 and 3 the matter is not so simple. Those items were conveyed by defendant 1 in favour of the plaintiff under Ext. F on 13-7-45 for Rs. 1,000/-. The sale was in pursuance of a prior agreement of Sale Ext. D dated 15-5-45 entered into by defendant 1 in favour of the plaintiff. Under that agreement defendant 1 agreed to sell those two items to plaintiff for Rs. 1,000/- in order to pay off one Junjappa alias Puttaswamiah, the, holder of an earlier mortgage decree against defendant 1 in O. S. No. 108/37-38. After receiving that amount, the decree-holder in that suit filed a memo on 15-5-1945 reporting receipt of the full decree amount with solatium; and full satisfaction was accordingly entered against that decree and the court sale was cancelled. Earlier defendant 1 had paid in court Rs. 200/- towards the same decree on 6-3-45 and secured postponement of the sale which was to be held in execution of that decree. This Sum of Rs. 200/- was obviously the amount raised by the sale of item 1 under Ext. B. It cannot, therefore, be urged that the sale under Ext. F. was in any way not bona fide or supported by consideration. It was clearly made with a view to save not merely items 1 to 3 but several other properties which had been mortgaged by defendant 1 in favour of Junjappa and in respect of which he had filed a suit O. S. 108/37/38. He had taken out execution earlier in Exn. 564 of 41-42 and had subsequently filed Exn. 496 of 43-44, on 19-6-44 and applied for sale of the mortgaged properties. On 6-3-45 defendant 1 had paid Rs. 200/- as already noticed and got the sale adjourned to 27-3-45; on 27-3-45, he offered a sum of Rs. 80/- towards the decree and prayed for further time. The Court rejected his application and directed the sale to proceed on 31-3-45. On 31-3-45, the sale was held and the decree-holder purchased all the items of mortgaged properties for the decree amount with the permission of the Court. By the deposit of the decree amount and solatium, and the cancellation of the sale, items other than items 1 to 3 also were saved for defendant 1 and the plaintiff has been able to secure a charge on those items.

4. But nevertheless, it is contended for the appellant that as the sale in favour of the plaintiff was after the filing of the suit in forma pauperis in Mis. 159 of 48-49 and after the attachment was effected on 7-7-45 the sale cannot take precedence over the charge in favour of the plaintiff. The question of attachment cannot be seriously pressed for two reasons. First it is doubtful it an attachment before judgment could have been ordered in the forma pauperis proceedings; secondly the attachment would be subject to the legal rights created in favour of the plaintiff under the prior agreement of Sale Ex. D. If defendant 1 had received Rs. 1,000/- and had agreed to sell the property to the plaintiff, the attachment which took place subsequently could not avail either defendant 1 or defendant 2 so as to defeat the rights of the plaintiff to ask for the enforcement of that agreement. It is not even alleged that the sale was for any low consideration, nor is it contended before me that the sale was unnecessary or collusive. Without such sale of the two items of properties, all the rest of family properties including their dwelling house would have been irretrievably lost and the defendant 2 would have been thoroughly unable to enforce her rights to maintenance against them.

5. It has also been contended for the plaintiff that he was a bona fide purchaser for value without notice of the attachment and even of the suit. Apart from the legal results which may or may not follow on account of that circumstance, there is no doubt that the plaintiff has apparently acted in a perfectly bona fide way and it is very doubtful if he had any notice of the impending suit or attachment at the time of Ext. D. It is also doubtful if he had any such notice of those proceedings even at the time of the sale under Ext. F though if he had entered into an agreement and had parted with Rs. 1,000/- to defendant 1 under Ext. D it is difficult to see how or why he should have refrained from taking a sale deed Ext. F. The learned Subordinate Judge has in this connection relied on a case reported in - Athinarayana Konar v. Subramania Ayyar, AIR 1942 Mad 67 (A), where it has been held under similar circumstances that an attaching creditor can proceed against the attached property only subject to a prior obligation incurred by his debtor.

6. Mr. Sadanandaswamy, learned Counsel for the appellant, has strenuously contended that the sale under Ext. F is subject to the rule of lis pendens. For the position that in such a case the rule of lis pendens will apply when there is a transfer of property over which a charge has been sought in a suit for that purpose initiated in forma pauperis, he has relied on a case of this Court reported in - Andanappa v. Kenchavva, 19 Mys LJ 266 (B). He has also relied on a recent case of the Madras High Court reported in - Subbayya v. Rama Laxmi, 1951 MWN 78 (C), where it was held by a single Judge of that Court that whether the suit for maintenance is by a widow or by a wife if a charge is asked for in respect of a specified property and a decree is made creating a charge, S. 52, T. P. Act would apply so as to protect the plaintiff against transfers effected pendente lite. In that case he has refused to follow an earlier case of the same Court in - Pattamma v. Seshachalam, AIR 1927 Mad 502 (D), on the ground that it has been subsequently dissented from by other later Bench decisions. The question whether under S. 39, T. P. Act, the right of a Hindu wife may be enforced against a transferee from a husband or whether her right to claim maintenance from her husband is only a personal right for which there is no lien or a charge against his property has been the subject of some conflicting decisions. It is, however, unnecessary on this occasion to decide that question though the view in - 1951 Mad WN 78 (C), appears to be, if I may say so with respect, a reasonable one. Though a wife may have a personal claim against her husband for maintenance there appears to be no reasons based on any principle, why if she does ask in a proper and bona fide and not a collusive suit and is found entitled to obtain a charge on certain specified immovable properties that charge should not be treated as being on a par with a charge created under similar circumstances in favour of a widow of the family. But nevertheless, in my opinion, the plaintiff in this case is bound to succeed on another ground.

7. There is no doubt that the debts contracted by a Hindu take precedence over the maintenance of his wife or widow; see Maynes Hindu Law, 11th Edn., page 335. In - 34 Mys CCR 62 (E), at page 65 Doreswamy Iyer, J. observed that debts binding on the family estate take precedence over a right to maintenance and consequently where there is both obligation to pay a binding debt and to pay maintenance, until either of them assumes the shape of a definite charge on the property the obligation to pay the debt must take precedence over the other. In that case, the right to maintenance was made a specific charge on the property only subsequent to the impugned transfers made by the husband and which transfers had been found to be for consideration and with no intention to defeat the right of the wife for maintenance. In that case the transfers were upheld as against the charge for maintenance.

8. In this connection, Mr. Sadanandaswamy has relied on a case in - Gangubai v. Pagubai, AIR 1939 Bom 403 (F), which was confirmed in appeal in - Gangabai v. Pagubai, AIR 1940 Bom 395 (G). In that case, the plaintiff to whom the properties had been mortgaged was impleaded as a defendant in the maintenance suit and during the pendency of that suit the plaintiff purchased the property, the consideration for the sale being the amount due on the mortgage deed plus a small amount paid in cash. Subsequently, a decree for maintenance was passed and a charge was created on the properties in suit. But before the decree was actually passed the plaintiffs name was struck off from the file. Lokur, J. observed that there was no doubt that when the plaintiff purchased the property the maintenance suit was pending and that the doctrine of lis pendens itself applied to a suit for maintenance by a Hindu widow in which she claims to have her right to maintenance made a charge on specific immoveable property and a decree is passed creating a charge on such property and he observed that though it may be stated as a general proposition that binding debts would take precedence over mere claims for maintenance, a charge bona fide created for maintenance could not be defeated by a creditor who has lent money for family purposes. The sale in favour of the plaintiff in that case was therefore held subject to the result of the maintenance suit. That was not a case of a Hindu wife suing her husband; though according to the Bench which decided AIR 1940 Bom 395 (G) that circumstances need not make any difference, I think in 34 Mys CCR 62 (E) and 50 Mys HCR 39 (H) our Court has taken a somewhat different view. The transferee in that case was a party to the widows suit when the transfer was effected. The collusive charge obtained on these three suit items in favour of defendant 2 without contest behind the back of the present plaintiff and of Junjappa, the previous mortgagee decree-holder auction purchaser, cannot be said to be a bona fide charge. These considerations distinguish that case from the present.

9. In - Radhabai Gopal v. Gopal Dhondo, AIR 1944 Bom 50 (I), Divatia and Lokur, JJ. recognized that under Hindu Law the debts contracted by a Hindu takes precedence over the right to maintenance by his wife and the? purchaser of property sold to discharge the debts of a husband acquires a good title against a wife who seeks to charge it with her maintenance unless it has been already done.

10. In 50 Mys HCR 39 (H) also, a Full Bench of this Court has held that under the Hindu Law the debts of the husband take precedence over the right of maintenance of his widow and the creditor is entitled to seize and sell his share in the joint family property. According to the facts of the present case, the mortgagee had purchased the properties himself in Court auction. By such sale the rights both of the mortgagor and the mortgagee had vested in him; see - Ramkabala Dasi v. Nagendra Das. AIR 1939 Cal 655 (J). Only by depositing the decree amount and solatium into Court the sale was cancelled and the properties became available for creating a charge in favour of the plaintiffs. The amount required for doing so was got by the sale in favour of the plaintiff. If the present plaintiff had at least been impleaded in that suit he might have easily been able to represent these facts and got defendant 2s charge restricted to the other items. The Court directing such a charge was not bound to create one on all the items of defendant 1s properties. Defendant 1 though he was made a party in that in forma pauperis suit appears to have consented to defendant 2 being allowed to sue as a pauper and then merely filed some defence and subsequently absented himself; he took no steps to contest her suit, became ex parte and allowed an ex parte decree to be passed. The plaintiff has alleged that he fraudulently got the maintenance suit filed by his wife. It is difficult to resist the conclusion that he was colluding with her in the later stages of that suit, and had ceased to contest his wifes claim and allowed all the items of properties to be charged after he had himself secured full benefit under Exts. D and F. In these circumstances, the charge which was created subsequently in favour of defendant 2 cannot be allowed to prevail over the plaintiffs superior rights.

11. The plaintiff as a person who had sufficient interest to claim redemption under S. 91, T. P. Act could, it may well be argued, by reason of the payment made by him, claim a right by way of subrogation under S. 92 and defendant 2s charge could only be subordinated to those rights. Defendant 2 has not offered to pay even the amount due under the mortgage decree which was one clearly binding on the properties subject only to which her charge to maintenance could have been made and she did not implead even Junjappa the mortgagee decree-holder auction purchaser in her suit for maintenance which clearly shows a lack of bona fides.

12. The learned Counsel for the respondent contends that his client is entitled to succeed on another ground also. He urges that though the sale under Ext. F was subsequent to the maintenance suit, the agreement Ext. D under which defendant 1 received the full amount of consideration for the proposed sale and agreed to convey the properties - items 1 and 2 - was prior to that suit. He argues that the operation of the lis could only be subject to the prior rights - it may be in personam, created by that agreement in favour of the plaintiff; defendant 2 could not have attacked that agreement in any way and its genuineness and bona fides is beyond question as the consideration was directly to Junjappa the decree-holder in O. S. 108 of 37-38. In this connection, he has referred to a Patna case - Narayana Prasad v. Raj Kishore, AIR 1951 Pat 613 (K). In that case under an unregistered agreement A agreed to grant a lease to B of certain premises and B entered into possession and effected the necessary repairs to make it fit for a cinema theatre which, it had been agreed upon, B should make. During the pendency of a suit which was subsequently filed by one C who had notice of this contract for specific performance of a rival agreement which he claimed A had entered into to lease the same premises to himself, A executed a registered lease deed in favour of B. On a contention that that lease in favour of B was subject to the rule of lis pendens it was held that under S. 52, Transfer of Property Act protection is given only to the rights of the parties as they existed when the suit was commenced and find embodiment in the decree in the suit; while nothing done by a party during the pendency of a suit could affect the rights of the other party, still if a right existed in a stranger from before in relation to the property it could not he affected merely because the title to the property in pursuance of that right was perfected during the pendency of the suit. It was held further that if B had been impleaded in Cs suit for specific performance B could have been able to rely on s. 53a, t. p. act, and the fact that while standing in this position B took a lease from A could not worsen his position; and that he could therefore resist the execution of the decree obtained by C. I think that case has been decided mainly on its facts and is based on a clear finding that B was in possession, that C had notice of his rights and that B could in any case rely on S. 53A of the Transfer of Property Act; and it cannot be applied to the present case. In my opinion, however, too wide a recognition of a mere contract to sell which the Transfer of Property Act has specifically declared does net of itself create any interest in or charge on such property might be engrafting a rather too extensive an exception and making a rather dangerous inroad into the beneficial and vitally necessary operation of the rule of lis pendens as defined in S. 52, T. P. Act, and may not be justified by the wording of that section. That section lays down that no property concerned directly in a suit can he transferred or otherwise dealt with by any party to the suit so as to affect the rights of any other party thereto except under the authority of the Court on such terms as it may impose.

13. In the result this appeal fails and is dismissed with costs. Appeal dismissed. AIR 1954 MYSORE 29 (Vol. 41, C.N. 12) "Hutchegowda v. H.M. Basaviah" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Hutchegowda, Plaintiff-Appellant v. H.M. Basaviah, Defendant-Respondent. Second Appeal No. 263 of 1949-50, D/- 9 -10 -1952, against decree of Sub. J., Hassan, in R. A. No. 27 of 1948-49. (A) Limitation Act (9 of 1908), Art.113 - LIMITATION - Date fixed for performance. Article 113 contemplates two kinds of cases. In one kind, the time of performance is fixed in the contract itself and in the other it is not so fixed. Though the word date is used in the Article, it should not be taken that a particular date should specifically be stated in the agreement. In fact, even if the time of performance cannot he ascertained at the time of the agreement itself, but can be ascertained at the time of performance, it may be said to be a case where the date is fixed for the performance of the contract. AIR 1950 Mad 320, Rel on. Held that an agreement to execute a sale deed after Saguvali chit was given was a contract in which date was fixed. (Para 2) Anno : Lim. Act, Art. 113, N. 7 (B) Contract Act (9 of 1872), S.23 - CONTRACT - AGREEMENT - Agreement not to bid against each other. Where two persons enter into an agreement not to raise the bids in revenue sales but to divide the property purchased between themselves, the effect of which is to prevent the land from being sold for its real value, such agreement is void as its object is fraudulent and unlawful. AIR 1933 Oudh 124, Rel. on. (Para 3) Anno : Contract Act, S. 23 N. 27. Cases Referred : Courtwise Chorological Paras (A) (50) AIR 1950 Mad 820 : 1950-2 Mad 163 2 (B) (1875) 10 QB 371 : 44 LJ QB 216 2 (C) (33) AIR 1933 Oudh 124 : 8 Luck 233 3 R.V. Sreenivasaiya, for Appellant; K.P. Muddappa, for Respondent. Judgement The case of the plaintiff-appellant is that the defendant-respondent agreed to sell an acre out of the land purchased by the latter in a revenue sale and executed the agreement produced along with the plaint. That agreement is dated 1-8-1942. It is also alleged in the plaint that in June 1945 there was a panchayathi in which the defendant received Rs. 82/- being the consideration amount for the land which had to be sold, and agreed again to sell the property to him. The defendant admitted that he executed the first agreement but denied the second agreement and also pleaded that the suit is barred by time. It will be noticed that neither the learned Munsif nor the learned Subordinate Judge has found that the second agreement set up by the plaintiff is true. It will also be noticed that while according to the plaint the sum of Rs. 82/- was paid to the defendant, the notice issued by the plaintiff before the suit was filed, makes it clear that no such money was paid to the defendant. This oral agreement is said to have taken place on the land itself and as pointed out by the learned Subordinate Judge this is highly improbable. Moreover by the time the agreement came into existence, the defendant had converted the land into a garden land and had already planted cocoanut trees, and under such circumstances it will be difficult to accept that the defendant would have agreed to take the money and execute a sale deed. If there was really any such agreement and the plaintiff paid the money, as he and his witnesses have stated, he would not have failed to take a written agreement then and in fact there is no reason why a sale deed itself was not executed if both parties realty agreed that the said land should be conveyed to the plaintiff.

2. The suit, however, is based mainly on the written agreement itself, and this agreement, as already stated, is not denied. The date of the agreement is 1-8-1942 and the suit has been filed on 14-6-1947, about five years after that date. According to the agreement the sale deed had to be executed after the Saguvali chit was given to the defendant. It is not disputed that the defendant got the Saguvali chit and got possession of the property more than three years prior to the date on which the suit was filed. It is in fact to avoid the plea of limitation that an attempt has been made in the plaint to show that there was a later agreement. It was, however, seriously contended in the lower appellate Court as is now done in this Court, that the suit Is in time as what is applicable is the second part of Art. 113 of the Limitation Act. According to that Article, for specific performance of a contract, the period of limitation is fixed as three years and the time from which the period begins to run is the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. It is contended by the plaintiff that no date was fixed for the performance of the contract and it is no doubt true that no specific date is mentioned in the agreement itself. But the date is clearly ascertainable though it may not have been possible to ascertain it on the date of the agreement. The Article contemplates two kinds of cases. In one kind the time of performance is fixed in the contract itself and in the other it is not so fixed. Though the word date is used in the article, it should not be taken that a particular date should specifically be stated in the agreement. For instance, if it is stated in an agreement that performance of the agreement should take place on the next Gowri feast day, it would be a clear case where the date of performance is fixed, though no actual date is specifically mentioned in the agreement itself. That is because the date can in such cases be ascertained with certainty. In fact, even if the time of performance cannot be ascertained at the time of the agreement itself, but can be ascertained at the time of performance, it may be said to be a case where the date is fixed for the performance of the contract. As observed in - Muniswami Goundar v. Shamanna Gouda, AIR 1950 Mad 820 (A) : "The question is, what is the meaning to be attached to the words "date fixed" in the first part of Col. 3. Do they mean the date by calendar or are they comprehensive enough to include a date which can be ascertained with reference to an event certain to happen ? The principle applicable is the doctrine of Id certum est quod certum reddi potest. This doctrine is stated in Brooms Legal Maxim, p. 423 (10th edn). That certainly need not be ascertained at the time, for if, in the fluxion of time, a day will arrive which will make it certain, that is sufficient. As, if a lease be granted for 21 years, after three lives in being, though it is uncertain at first, when that term will commence, because those lives are in being, yet when they die it is reduced to a certainty." The language used in the aforesaid passage is at the time when the contract was made was not known but could be ascertained by an event which subsequently was certain of happening. In - Buncombe v. Brighten Club and Norfolk Hotel Co., (1875) 10 QB 371 (B), the learned Judges had to construe the words "if such debt be payable by virtue of some written instrument at a certain time." Under S. 28 of 3 and 4 Wm. 4, Chap. 42, a creditor would be entitled to interest only if the written instrument fixed a certain time for payment. Mellor, J. says at p. 377 : "it does not seem to be material whether, that is done with reference to a named event on which payment is to be made, or by naming the day." The following maxim found in Brooms Legal Maxims (5th edn. p. 623) is approved : Although every estate for years must have a certain beginning and a certain end, albeit there appears no certainty of years in the lease, yet, if by reference to a certainty it may be made certain, it sufficeth". In this case, the agreement clearly says that the sale deed has to be executed after the Saguvali chit is granted. The date on which the Saguvali chit was given is more than three years prior to the date on which the suit was filed, and this is clearly a case in which the suit is barred by time under the first part of Art. 113 of the Limitation Act.

3. Even on merits, I do not think the plaintiff has a good case. It will be noticed according to the allegations in the plaint itself that the plaintiff and the defendant came into an agreement not to raise the bids in the revenue sale, but to divide the property purchased between themselves. In - Ramlal v. Rajendra Nath, AIR 1933 Oudh 124 (C), it is observed that "An agreement between two persons not to bid against each other at an auction sale is perfectly lawful and cannot be considered to be opposed to public policy. But where such agreement is not merely a case of an honest combination between two bidders to purchase the property at an advantageous price but goes further by resorting to a secret artifice for the purpose of defrauding a third person..............it is void as its object is fraudulent and unlawful." It is not unusual for persons like the plaintiff to combine in the revenue sales and prevent the land being sold for its real value.

4. Then again, it will be noticed that the plaintiff had no idea of enforcing his rights till the defendant raised a cocoanut garden on the land purchased by him and it is only after the defendant improved the land at considerable expense and labour and more than three years after the date fixed for performance of the contract that the plaintiff thought of filing this suit. The suit of the plaintiff was therefore rightly dismissed.

5. The appeal stands dismissed with costs. Appeal dismissed. AIR 1954 MYSORE 31 (Vol. 41, C.N. 13) "Rajeswariamma v. K.M. Viswanath" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) B. Rajeswariamma, Petitioner v. K.M. Viswanath, Respondent. Criminal Revn. Petn. No. 87/1952-53, D/- 19 -2 -1953, against order of City Magistrate, Bangalore, D/- 23 -6 -1952. (A) Criminal P.C. (5 of 1898), S.488(3) - MAINTENANCE - Second marriage by husband. Mysore Hindu Law Womens Rights Act (10 of 1933), S.23. An order awarding separate maintenance to the first wife is correct and proper where the husband has married again and his offer to take the first wife back and treat her well cannot be said to be sincere : AIR 1950 Mad 357, Rel. on. (Para 6) Anno : Cr. P.C., S. 488 N. 2, 17, 21. (B) Criminal P.C. (5 of 1898), S.488 - MAINTENANCE - Rate of maintenance. If a man has the luxury of more wives than one his liability to maintain them is not lessened thereby. Under S. 488, Criminal P.C. the husband is under a personal obligation to maintain his wife and the rate to be fixed depends on the needs and requirements of the person who is to receive the maintenance as well as on the present means and the earning capacity of the person who is bound to pay the same. AIR 1926 Mad 59, Rel. on. (Husband getting Rs. 100 p. m. with allowances and having mother, two younger brothers, a sister and second wife to support - First wife still very young - Maintenance allowed at Rs. 30 per month.) (Para 7) Anno : Cr. P.C., S. 488 N. 7, 83 13. Cases Referred : Courtwise Chorological Paras (A) (50) AIR 1950 Mad 357 : 51 Cri LJ 775 6 (B) (26) AIR 1926 Mad 59 : 49 Mad 891 : 26 Cri LJ 1597 7 H.V. Narayana Rao, for Petitioner. Judgement This is a revision petition which has been filed against the order of the City Magistrate, Bangalore, dismissing the petitioners application for maintenance against her husband under Section 488, Criminal P.C. The respondent though served is absent and unrepresented.

2. I think this is a clear case in which the respondent is bound to give maintenance to the petitioner. Admittedly the respondent has been writing letters to the petitioners brother asking for money. The learned Magistrate has tried to make some distinction between requests for money and demands for the same which is really of no substance where the person asking is a son-in-law of the family who is postponing taking his wife to live with him. In Ex. p-6 the respondent has "cautioned" the petitioners brothers not to be "beggarly" and "ridiculous" when arranging for nuptials and that if they do not spend "a few hundreds" "the consequences will be very undesirable". In Ex. p. 8 he has written a registered letter to his wife that if within 15 days after its receipt her parents and guardians do not come to settlement after satisfying all the conditions of premarriage promises he will be at liberty to marry again after treating the marriage of the petitioner as completely cancelled and he has referred her to some earlier letter in which fie had set out what the terms of the premarriage were. He has not even stated in Court what those promises were and he has admitted in his evidence that "no financial promises were made before marriage".

3. Apparently the respondent has not taken the petitioner to live with him as he feels that some pre-nuptial promises between himself and the girls mother were not fulfilled. If the petitioners mother had made such promises before the marriage it was for him to have claimed them from her and not made it a pretext for neglecting or refusing to take the petitioner to live with him and to maintain her as his wife. The learned Magistrate appears to have viewed this conduct of the petitioner rather lightly which I am not prepared to do. The respondent has married a second wife thereby ruining the life and prospects of the petitioner, a young girl who has no father. She appears to be a girl of some education and the respondent has made her an innocent victim of some mercenary differences between her mother and himself. He has not even suggested anything against the petitioner or her behaviour and had no complaint at all to make about her. The offer of the respondent to take back the petitioner and live with her appears to me in the circumstances of this case to be thoroughly wanting in bona fides.

4. Moreover under S. 488 Cl. (3), Criminal P.C. as amended in 1949 and now in force, in Mysore, if a husband contracted a marriage with another wife it shall be considered to be a just ground for the first wifes refusal to live with him. Even in Mysore S. 23 of the Hindu Law Womens1 Rights Act provides that if a man marries a second wife he is bound to maintain his first wife separately and pay her maintenance. I think in these circumstances the respondent is clearly liable to pay separate maintenance.

5. A reference has been made in these proceedings to a suit pending between the parties and probably some of these matters will have to be gone into again in that suit. I do not therefore wish to go in greater detail into the facts and the circumstances of the case.

6. In a case reported in - Senapathi Mudaliar v. Deivandi Ammal, AIR 1950 Mad 357 (A), Panchapakesha Ayyar, J. has held that an order awarding separate maintenance to the first wife is correct and proper where the husband has married again and his offer to take the first wife back and treat her well cannot be said to be sincere. He has observed : "Even if he takes her back, he will only make her an unpaid cook and maid for all work of himself and his second wife, an intolerable position and one to which no Court should drive a married woman."

7. As regards the rate of maintenance the petitioner has claimed Rs. 75/- a month which is clearly excessive. The respondent appears to be getting a basic salary of Rs. 80/- and is according to himself getting Rs. 100/- including allowances. The petitioner who is still very young must have a sufficient amount warded to her monthly to maintain herself without at the same time too heavily burdening the respondent. In his evidence he has stated that he has a mother and two younger brothers and a sister and the second wife to maintain. The existence of the second wife cannot be a good reason to cut down the first wifes maintenance. As pointed out in - E.C. Kent v. E.E L. Kent, AIR 1926 Mad 59 (B) if a man has the luxury of more wives than one his liability to maintain them is not lessened thereby and under S. 488, Criminal P.C. the husband -is under a personal obligation to maintain his wife and the rate to be fixed depends on the needs and requirements of the person who is to receive the maintenance as well as on the present means and the earning capacity of the person who is bound to pay the same. I would fix Rs. 30/- a month which I think is reasonable in this case taking into account all the circumstances. The same shall be payable from the date of the application for maintenance.

8. In the result this petition is allowed and the order of the lower Court is set aside and there will be an order directing the respondent to pay the petitioner maintenance at Rs. 30/- per month from the date of her application before the City Magistrate. Application allowed. AIR 1954 MYSORE 32 (Vol. 41, C.N. 14) "Singri v. Doddiah" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Singri minor by guardian mother Rangamma, Petitioner v. Doddiah and another, Respondents. Civil Revn. Petn. No. 74 of 1952-53, D/- 4 -12 -1952, against order of Sm. C.C.J., Bangalore, D/- 10 -1 -1952. Civil P.C. (5 of 1908), S.146, O.9, R.13 - LEGAL REPRESENTATIVES - DECREE - Application by legal representative to set aside ex parte decree. An application under O. 9, R. 13 is not exempted from the general provision, relating to procedure contained in S. 146. A legal representative can therefore file an application to set aside an ex parte decree passed by a Small Cause Court before he is actually brought on the record AIR 1925 Oudh 370, Rel. on. (Para 1) Anno : C.P.C., S. 146 N. 7, 3; O. 9, R. 13 N. 16. Cases Referred : Courtwise Chorological Paras (A) (25) AIR 1925 Oudh 370 : 85 Ind Cas 529 1 B.V. Rama Rao, for Petitioner; D. Srinivasaiya, for Respondent 1. Judgement This is a revision petition against the order passed by the Judge, Court of Small Causes, Bangalore, in Mis. No. 231/49-50. An ex parte decree was obtained against the deceased father of the petitioner in S. C. 1335 of 1948-49, and after the death of father the petitioner has Sled an application under O. 9, R. 13, C.P.C. for setting aside the ex parte decree. Petitioner is a minor and his mother is her next friend. The petitioners contention is that the petitioners mother came to know of the decree only when a notice was served on her in the Execution Case on 22-2-1950. The learned Subordinate Judge (Court of Small Causes) has rightly come to the conclusion that the service on the petitioners father was not sufficient and that the petitioners guardian came to know of the petition within thirty days from the date on which the application to set aside the ex parte decree was filed. But he has dismissed the petition on the ground that an application by a legal representative of a deceased defendant against whom an ex parte decree has been passed cannot be filed under O. 9, R. 13. C.P.C. It is not clear why it is so. Section 145, Civil P.C. is as follows : "Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken on application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him." It is clear that, as stated in the section, it is a case where an application could have been made by the deceased father of the defendant and as such, the Section authorises the petitioner who is claiming under him to make the application which could have been filed6 by his deceased father. If any authority is needed, I may refer to the decision in - Mst. Deobi v. Jugal Kishore, AIR 1925 Oudh 370 (A), in which it is held that : "An application under O. 9, R. 13 is not exempted from the general provision relating to procedure contained in S. 146. A legal representative can therefore file an application to set aside an ex parte decree before he is actually brought on the record."

2. This revision petition is, therefore, allowed. The ex parte decree passed against the deceased father of the petitioner is set aside and the small cause case will be taken on file and proceeded with bringing the petitioner as the legal representative of the deceased defendant. Revision allowed. AIR 1954 MYSORE 33 (Vol. 41, C.N. 15) "Abdul Badsha v. Century Wood Industries (A. S. C. U.)" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) K.T. Abdul Badsha Saheb and another, Plaintiffs-Appellants v. Century Wood Industries (A. S. C. U.), Defendant-Respondent. Second Appeal No. 290 of 1949-50, D/- 14 -11 -1952, against decree of Addl. Sub-J., Bangalore, in R. A. No. 32 of 1948-49. (A) Partnership Act (9 of 1932), S.4 - PARTNERSHIP - Essentials of partnership. In order to constitute a partnership (1) there should be a relationship between two or more persons; (2) those persons must run a business; (3) the business must be run with the intention of realising profits; (4) every one of the partners should share the profits and (5) the business should be run by all or any one of them acting for all. (Para 3) Anno : Partnership Act, S. 4, N. 1. (B) Partnership Act (9 of 1932), S.4 - PARTNERSHIP - AGREEMENT - Agreement to share profits. What the section requires is not actual division of profits; but parties agreeing to share the profits. (Para 3) Anno : Partnership Act, S. 4 N. 3. (C) Partnership Act (9 of 1932), S.4 - PARTNERSHIP - Co-owners and partners - Distinction. The distinction between co-owners and partners is that in the case of co-ownership the co-owners do not intend to carry on a business, still less do they intend to share the profits realised. On the other hand, in case of partnership concern the partners intend to carry on business with money or property which belongs to both of them. They intend to realise profits and share the same. (Para 4) Anno : Partnership Act, S. 4 N. 1. (D) Partnership Act (9 of 1932), S.4 - PARTNERSHIP - SALE - Property belonging to two Mahommedan brothers sold by them - Sale proceeds invested for running business with idea of realising profits to be shared by both - Both to carry on business - Association held to be partnership. (Para 4) Anno : Partnership Act, S. 4 N. 8. (E) Partnership Act (9 of 1932), S.4 - PARTNERSHIP - AGREEMENT - Agreement between persons. An agreement of a partnership need not be express. It can arise out of a mutual understanding evidenced by a consistent course of conduct, and indeed, by the express admission of the parties concerned. AIR 1938 Nag 324, Rel. on. (Para 5) Anno : Partnership Act, S. 4 N. 2. Cases Referred : Courtwise Chorological Paras (A) (1883) 26 Ch D 107 : 53 LJ Ch 1025 4 (B) (31) AIR 1931 Mad 553 : 54 Mad 543 5 (C) (38) AIR 1938 Nag 324 : 177 Ind Cas 831 5 A. Viswanatha Iyer, for Appellants; D. Srinivasiah, for Respondent. Judgement The plaintiffs styling themselves as K.T.A. Rasheed and Coy. by partners K.T. Abdul Badsha Saheb and K.T. Abdul Rasheed filed a suit against the defendant-respondent for recovery of some money due in connection with their having supplied some poles. Among other grounds the defendant contended that the firm of the plaintiffs was not registered in the books of the Registrar of Firms as required under the Partnership Act and that the suit is, therefore, not maintainable under S. 69(2), Partnership Act. The plaintiffs on the other hand contend that they are the sole-proprietors of the business which is not a firm in the strictest sense of the word and that though their company is not registered the suit filed by them is tenable. Both the Courts below have dismissed the suit on the ground that the plaintiffs company is a firm and that it ought to have been got registered and as the same is not registered the suit is not maintainable.

2. The main point for consideration is whether the concern run by K.T. Abdul Badsha Saheb and his brother K.T. Abdul Rasheed under the name and style K.T. A. Rasheed and Coy., is a firm of partners or not. According to the evidence of K. T.A. Rasheed, the two brothers are living together and have not divided the properties which jointly belong to them. The two brothers sold a garden of theirs for Rs. 5,000/- and invested this sum in business. He states that there is no partnership agreement between them, but he admits that it he and his brother have to divide the profits, each of them will get half the profits. They have been acquiring properties jointly for the benefit of both of them. In cross-examination it has been elicited that either one or the other brother might take a loan and that payment may be made by either of them.

3. What has to be considered in this case is whether under the circumstances referred to above, it could be said that the concern run by K.T. Abdul Badsha Saheb and K.T. Abdul Rasheed is a partnership concern. According to S.4, Partnership Act, " Partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all." The first point to be noticed in this definition is that before we think of partnership there should be a relationship between two or more persons. The second point that will be noticed is that these persons must run a business. Thirdly, the business must be run by them with the intention of realising profits. Fourthly, it is not sufficient if the profits are intended to be taken exclusively by one of the partners. The agreement must be that every one of the partners should share the profits. The last but not the least of the points that have to be borne in mind is whether there was an agreement between the parties that the business should be run by all or any one of them acting for all. In this case it will be noticed that the concern is run by more than one person. Admittedly the plaintiff-company is running a business. It is not disputed that their intention is to realise profits. What is contended is that they have at no time divided the profits and that it is possible they may never divide in their lifetime. But it is admitted that in case they divide, each will get half a share in the profits. As regards the last point, the evidence referred to above shows that one of the two is acting for both either in borrowing money for the concern or in discharging the loan. In fact it will be noticed that the suit transaction was entered into by one of the partners and the other brother K.T. Abdulla examined as third witness for the plaintiffs clearly admits that he does not know anything about the suit transaction. It is thus clear that all the conditions referred to above are fulfilled and if at all the only point in respect of which there is some difference of opinion between the parties is that there was at no time division of profits. It may happen that they never divide profits; but it has to be remembered that what the section requires is not actual division of profits; taut parties agreeing to share the profits. It is not contended that the profits of the business have to be taken exclusively lay one of the brothers; and it is clear that the profits have to be shared by both and that at such a time as the parties might think of dividing, however remote that time might be, the two brothers are entitled to divide the profits.

4. Sri Viswanatha Iyer, the learned counsel for the appellant could only say that the relationship between the two brothers is that of joint proprietors and it does not amount to one of partners. The distinction between co-owners and partners is that in the case of co-ownership the co-owners do not intend to carry on a business, still less do they intend to share the profits realised. On the other hand, in case of partnership concern they intend to carry on business with money or property which belongs to both of them. They intend to realise profits and Share the same. If two or more persons buy a land on joint account with the intention of having an interest according to the amounts invested lay them they are merely co-owners. They do not become partners merely because they are entitled to share the income they get according to their shares. On the other hand if two or more persons put together certain amounts of money in certain shares for the purpose of purchasing properties and selling them for profits for common benefit, it has to be said that such a business amounts to a partnership concern. That is if two or more persons expressly acquire property for the purpose of joint business they bring the property into partnership stock and they become partners. If, however, lay the agreement the parties merely intend to acquire the properties in shares leaving each of them to do whatever he liked with his share, that will not amount to partnership. In this connection it is useful to notice the following observations made in the decision reported in - London Financial Association v. Kelk, (1883) 26 Ch. D. 107 at p. 143 (A) : "One of the charges pressed by the plaintiffs was that the directors, by entering into the agreement of August 1865 had committed the Association to a partnership with Mr. R. and Messrs. Kelk and Lucas, and that they had, in this respect violated and exceeded the terms of the memorandum, and had exposed the assets of the Association to the risks attendant upon a partnership. It does not appear to me that either in law or in fact any kind of partnership was created. Each of the three parties was entitled under the contract to an undivided share in the subject. Each paid for that share with individual separate money. The three had, no doubt, in a sense, a common interest in the subject, but no one of the essential elements of a partnership was found to exist in the case, for no one of them could interfere with either of the others in whatever disposition the other might make of their separate shares, nor could the death or bankruptcy or transfer or devolution of the shares of any one of the parties affect the rights of the others; neither of them could object to the introduction of any other person, or be liable in respect of any debt or engagement of the others. Nor can it be truly said that any analogy exists between this case and the well-knowns cases in bankruptcy where, one partner, a trustee, having employed trust moneys with, the knowledge and consent of his co-partners in the partnership business, joint debt is contracted by all the partners. Here the only money furnished by the directors was for the purchase of the separate share acquired by them, while each of the parties dealt only with their own moneys and each of them acquired rights and interests wholly distinct from those of the others." In this case a property which belonged to the two brothers was sold for Rs. 5,000/-. This sum was invested for running a business with the idea of realising profits to be shared by both. They were co-owners of the property sold and in the amount realised, but when the amount which belonged to both of them was invested in a business with the intention of realising and sharing the profits and when they agreed that both of them should carry on the business and that each of them should carry it on behalf of the other, as is clear by the evidence of the two brothers, their association or concern is one off partnership.

5. A contention was raised that the brothers are carrying on business as in the case of a joint Hindu family and that it is not unusual in these parts that Muslim brothers behave like Hindu brothers. But there is no evidence to show that by custom, Hindu Law is applicable to the plaintiffs. As observed in - Mahomed Abdul Rahim v. Mahomed Abdul Hakim, AIR 1931 Mad 553 (B), relied on in the course of arguments : "It is not an uncommon thing in the Madras. Presidency where members of a Mohamedan community live surrounded by Hindus that they absorb and adopt Hindu social ideas and tend to look on their own social customs from a Hindu point of view. It is very common in the Madras Presidency for descendants of Mahomedans to live and trade together and the property of the ancestor is then held by the several members of the family in the shares to which they are entitled under the Mahomedan law............ Where the descendants of a deceased Mahomedan live and trade together and the property is held by the several members according to their shares under Mahomedan law, the Court in a suit for profits by the other members of the family will not obviously apply Hindu Law, but that is not the proper way to decide cases of such, kind though it may be the way of least resistance. Such cases are not problems of law nor does their decision depend upon the ideas of law which the parties have put in their pleadings but are concerned with questions of fact and have to be decided on the facts." In this case no question of any family property arises and no question of the property of minors or persons who have not actually come to are agreement to run the business for purposes of trade is involved. This is a case of two brothers agreeing to use their joint funds for purposes of running a business for profit for the benefit of both. It may or may not be true that there was no express agreement between the brothers but there is hardly any doubt that there was implied agreement between them to run a business for profit to be shared by both, each acting for the other in running the business. As observed in - Haji Isa Haji Noor Firm v. Saru Bai, AIR 1938 Nag 324 (C) by Vivian Bose, J. which was a case in which two members of a Mohamedan family were found to be running a business as in this case; "An agreement of partnership need not be express. It can arise out of a mutual understanding evidenced by a consistent course of conduct, and indeed, by the express admission of the parties concerned." It is also observed in that case as follows : "When more than one businessman associate together for the purpose of carrying on a business, it is legitimate to infer that they are not doing it for philanthropic purposes but intend to make a profit out of it; also that they all intend to share in the benefit of the proceeds. The person who actually conducts the business acts on behalf of all his associates, that is to say, on behalf of all who are joint proprietors with him. He does not act for his own separate and exclusive benefit. His intention is obviously to further the business as a whole for the benefit of all who own the concern." These observations are clearly applicable to the facts of the present case and it is clear that the concern of the plaintiffs is one of partnership. The lower Courts were therefore right in dismissing the suit on the ground that the suit is not maintainable as the plaintiffs firm was not registered in the books of the Registrar of Firms, as required under the Partnership Act.

6. During the course of the suit the plaintiffs who filed the suit as partners applied for amendment and this was allowed and with the amendment the name of the plaintiffs concern was changed as K.T.A. Rasheed and Coy., by its proprietors K.T. Abdul Badsha Saheb and K.T. Abdul Rasheed. It is clear even here that the suit continued to be by K.T.A. Rasheed and Coy., by its proprietors. It need hardly be said that partners of a firm are also its proprietors. However when this appeal had to be filed it was realised that the suit should have been filed in the name of the two brothers, if necessary, by describing them as proprietors of the company, and in fact the appeal was filed by "K.T.A. Abdul Badsha Saheb and K.T. Abdul Rasheed, proprietors of K.A. Rasheed and Coy.". If it was intended that the suit should be filed by the two brothers and not by the company, this is no doubt the correct form in which they should have described themselves in the plaint. It is rather strange that an amendment was not sought for in the form in which the appeal is now filed. However, though the suit has been filed in the name of the firm the appeal has been filed by the two brothers in their individual capacity and a question was raised that the appeal is not maintainable as it was not filed by the company who was the party to the suit and the regular appeal filed in the first appellate Court. To rectify this defect an application has been filed to restore the name of the company by its proprietors as the plaintiff-appellant. The proper thing for the appellants to do was to file the appeal in the name of the company as it stood after amendment in the trial Court and then to seek for the amendment to substitute the names of the brothers as plaintiffs. No purpose is gained by allowing the amendment now sought for and after all irrespective of the amendment the main question is whether the two brothers are partners of a firm, and it has been held that they are. Therefore no useful purpose is served by any amendment as even if the amendment is allowed it would be of no help to the plaintiffs.

7. In the circumstances, the appeal stands dismissed with costs. The application for amendment is also dismissed. Appeal and application dismissed. AIR 1954 MYSORE 35 (Vol. 41, C.N. 16) "Periera v. H.K. Siddalingappa" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Periera, Plaintiff-Appellant v. H.K. Siddalingappa and others, Defendants-Respondents. Second Appeal No. 362 of 1949-50, D/- 22 -10 -1952, against decree of Addl. Sub. J., Mysore, in R. A. No. 44 of 1948-49. Limitation Act (9 of 1908), S.15 and Art.109 - LIMITATION - INJUNCTION - POSSESSION - Injunction restraining purchaser in revenue safe from taking delivery of possession - Suit for mesne profits by purchaser. Plaintiff purchasing property in revenue sale - Defendants filing suit for declaration of their rights and obtaining temporary injunction restraining plaintiff from taking delivery of possession - Suit of defendants ultimately failing - Plaintiff obtaining delivery of possession and suing defendants for mesne profits - S. 15 does not apply - Plaintiff is entitled to mesne profits only for a period within three years prior to suit : AIR 1933 Lah 615; AIR 1949 Mad 279 and 48 Mys HCR 1, Foll. (Paras 7 and 10) Anno : Lim. Act, S. 15 N. 6. Cases Referred : Courtwise Chorological Paras (A) (33) AIR 1933 Lah 615 : 146 Ind Cas 939 7 (B) (27) AIR 1927 All 446 : 49 All 565 7 (C) (49) AIR 1949 Mad 279 : ILR (1948) 2 Mad LJ 314 8 (D) (42) 48 Mys HCR 10

V. Krishnamurthy, for Appellant; D. Puttaswamy, for Respondents (Nos. 2 and 3). Judgement The plaintiffs suit for damages by way of loss of rent occasioned to him by the defendants who were in unlawful possession of the plaint schedule property which he had purchased at a Revenue sale was decreed partially by the Second Munsiff, Mysore. On appeal the Additional Subordinate Judge, Mysore, dismissed the suit and the plaintiff has come up in second appeal.

2. The suit was originally brought against two defendants who were brothers of one H.K. Sivanna who is now dead. The suit property was sold by the Revenue authorities for recovery of the balance of the House Building Advance which had been borrowed to put up the suit house by the deceased Sivanna who was an employee in the Mysore Government Electrical Department. After purchasing the property the plaintiff applied for delivery of possession but he was prevented from taking possession on account of obstruction caused by the defendants, who had also filed a suit for declaration of their rights and for permanent injunction and had also obtained orders of temporary injunction in the course of those proceedings. Defendant 2 died subsequent to the suit and defendants 2(a) and 2(b) and defendant 1 were brought on record as his legal representatives. In this appeal only defendants 2(a) and 2(b) are represented by Counsel on behalf of a guardian appointed by Court. Defendant 1 though served has not appeared.

3. The learned Munsiff found that the defendants did obstruct the plaintiff and prevented him from taking possession of the suit property or recovering any rents from the tenant Srinivasa Iyer. He was of the opinion that there was no substance in the contention that as the plaintiff had failed to prove that the defendants were actuated by any malice in filing their suit and obtaining orders of temporary injunction he was not entitled to recover rents by way of damages. He also found that the plaintiff was entitled to such damages by way of rent from 19-5-41 to 3-10-45 at Rs. 15/- per month as against a somewhat larger claim which had been made by the plaintiff. The learned Subordinate Judge was, however, of the view that the plaintiff had not made out either malice or want of reasonable and probable cause on the part of the defendants and that he had also failed to make out that the defendants obstructed him in obtaining possession. I think it is quite clear from the evidence in this case, documentary and oral, that the defendants did obstruct the plaintiff and prevent him from recovering possession. The plaintiff as P.W. 1 had deposed that after obtaining Ex. B, the sale certificate, he applied for possession through Revenue authorities and they directed him to approach the Civil Court. He then filed a petition for delivery of possession in the Court of the First Munsiff, Mysore, and that Court ordered such delivery. The defendants then filed O. S. No. 9-42-43 in the Subordinate Judges Court, Mysore, and applied for and obtained an ad interim order of temporary injunction on 1-8-42 restraining the plaintiff from taking delivery of possession of the property in suit, pending disposal of the application. Later on, on that order being vacated by the learned Munsiff they filed Misc. Appeal No. 25 of 42-43 before the District Judge and secured an order in their favour by which the ad interim order was restored. O. S. No. 9/42-43 was later on dismissed after trial and the defendants filed an appeal against that judgment in R. A. 90 / 43-44. Along with their appeal they applied for and again obtained an order of temporary injunction from the District Judge which was in force till the appeal was ultimately disposed of against them. In support of their application for temporary injunction before the District Judge they filed an affidavit Ex. H wherein it was expressly stated that the properties belonged to a joint family of themselves and deceased Sivanna and that though the appellants were residing in the premises of the suit property, if the present plaintiff was not restrained from taking possession of the property, substantial and incalculable injury would result to them and they would be wrongfully deprived of possession of the property by virtue of proceedings which were not binding on them. The learned Munsiff has properly given considerable weight to Ex. H but the learned Subordinate Judge was of the view that even assuming that the facts stated in it were true they were insufficient to hold, in the absence of proof of malice and want of reasonable and probable cause, to entitle the plaintiff to recover damages for use and occupation and that, in spite of the statement in Ex. H, the plaintiff had to make out affirmatively that the defendants did obstruct the plaintiff. I think that this is not at all the proper way in which this matter has to be viewed. The defendants had, on oath, admitted in Ex. H that they were in possession of the property and in the absence of very clear evidence to the contrary they could not ask the Court to treat Ex. H so lightly. The plaintiff has sworn that when he went to take possession defendant 1 obstructed him, that the other defendant was also present and that the Taluk authorities drew up a mahazar and made a report. Mr. Puttaswamy, learned Counsel who appears for the defendants, says that the plaintiff should have summoned the mahazar. But I fail to see why it was necessary for him to do so in view of their repeated statements in the course of the proceedings in O. S. No. 9 of 42-43 and R. A. No. 90/43-44 and Mis. A. No. 25/42-43 that they were in possession.

4. Mr. Puttaswamy next contends that the plaintiff has admitted that defendant 2 was not residing in the suit house at any time and that the property might have been in the possession of one Srinivasa Iyer who has been examined on commission as a lessee under Puttabasamma, widow of Sivanna. Srinivasa Iyer no doubt says that defendant 1 was not residing in the house during the period when he was occupying it and that he was a tenant of one Puttabasamma in the house. He obstructed the delivery of possession being made to the plaintiff as per Ex. I(a) on 12-9-45 but he was ejected. It is difficult to believe his evidence. He says there was a lease deed executed by him in favour of Puttabasamma written on an ordinary plain paper. The defendants have not summoned even that paper. The witnesses has no references to show that he ever paid rent to Puttabasamma. He says he sent some of the rents by M. O. but he has not preserved any of the M. O. coupons. He says Puttabasamma had written a letter as per Ex. IV(a) on 9-7-42 in which she asked him not to pay rents to anybody else except to herself and also to pay the taxes due on the house directly to the Municipality. That letter is said to have been delivered muddam to him and there is no other proof that it was written by Puttabasamma. No taxes appear to have been paid by the witness as required by Ex. IV-a. The witness has not produced any receipts for having paid any rents or taxes nor does he even say that he acted according to the terms of Ex. IV-a and accounted for the balance of rents to Puttabasamma. Puttabasamma who is a close relation of the defendants has not been examined and though defendant 1 says that she is not well disposed towards him it is not likely that she would not have supported the defendants as against a stranger like the plaintiff.

5. A person must be held liable for the natural and probable consequences of his conduct and action and if the defendants persisted in making claims which have now turned out to be false about their ownership of the property and have kept away the plaintiff from securing the benefits of the Revenue sale in his favour they are bound to compensate him by way of damages. He would be entitled to recover from them by way of mesne profits or damages the loss he has sustained by their conduct. In my opinion it is immaterial if defendant 2 was not living in the house or if only defendant 1 was living in it. If they successfully kept the plaintiff out of possession they cannot complain that the tenant did not pay them any rents or paid someone else the rents when the Court has accepted, their statement and issued temporary injunctions in their favour. Defendant 2 has made common cause with defendant 1 in all those proceedings and is a joint tort feasor with him.

6. The learned Subordinate Judge erred in considering that this was a suit for damages for obtaining injunction orders wrongfully. He thought that it was necessary in a suit like the present for the plaintiff to make out want of bona fides on the part of persons obtaining those orders. But the present suit is for damages by way of mesne profits by an owner who has been kept out of possession by the defendants. The injunctions were obtained in the course of legal proceedings merely with the object of keeping the plaintiff out of such possession and the defendants must compensate the plaintiff if it is found that they were responsible for keeping the plaintiff wrongfully out of possession.

7. Mr. Puttaswamy has next urged that the learned Munsiff erred in making a decree for mesne profits for a period earlier than three years before suit. He urges that the plaintiffs suit if one for recovering mesne profits by way of damages fails under Art. 109, Limitation Act which prescribes a period of three years for such suit time begins to run when the profits are received; and that S. 15, Limitation Act on which reliance has been placed by the Munsiff to award a decree for a longer period has no application. That position appears to be correct. Section 15, Limitation Act in terms does not apply to the facts and circumstances of this case as the injunction was not against the institution of any suit or any execution application for recovery of rents or mesne profits but only against taking possession of the property. Mr. Puttaswamy has in this connection referred to a case in - Basheshar Das v. Diwan Chand, AIR 1933 Lah 615 (A), which fully supports him. In that case the plaintiff purchased certain property at an auction sale. Objections were raised by the defendant on the execution side that the plaintiff was entitled to get only a 1/3rd share in the house. Both, parties then filed declaratory suits to establish their rights and ultimately the plaintiff was declared the sole owner of the house by virtue of the auction sale and the suit of the defendant failed, in the course of the litigation the defendant had obtained stay of delivery of possession twice. After the plaintiff obtained possession of the property he brought a suit to recover mesne profits and contended that the running of limitation for the recovery of mesne profits was suspended when execution was stayed. It was held by the Lahore High Court that the stay order merely related to delivery of possession and was no bar for the institution of a suit for mesne profits. The cause of action for recovery of those profits was accruing every time those profits were received by the defendants and the only way by which the plaintiff could keep the claim within limitation was apparently by instituting suits for recovery of the profits within three years of the receipt of the same by the defendants. It was observed that those suits would probably have been stayed pending the decision of the question of title but that course though inconvenient was under the circumstances necessary to save limitation. It was pointed out that the plaintiff cannot be allowed any extension of time to save limitation merely on equitable considerations unless the extension is provided by statute. In - Ram Charan Sahu v. Goga, AIR 1927 All 446 (B), which is referred to in the Lahore case it was held that even before a claim to mesne profits is in dispute the starting point of limitation for a suit for mesne profits would be the date when the profits are received, and the limitation cannot start instead, from the date of adjudication of the rights between the parties. In such cases the proper practice is for the plaintiff to institute a suit for mesne profits before the time expires and allow it to be stayed pending disposal of the former litigation.

8. In - Ramaiya v. Suryanarayana, AIR 1949 Mad 279 (C); the plaintiff purchased certain property in execution of a mortgaged, decree. Some of the defendants then filed a suit impugning the mortgage, which, was dismissed both in the trial Court and ultimately on appeal in the High Court. Pending disposal of the appeal the defendants had obtained an order of temporary injunction restraining the plaintiff from interfering with their possession. After the plaintiff obtained possession he sued for and was granted a decree for mesne profits for four years and for doing so reliance was placed on S. 15, Limitation Act. On appeal Horwill, J. held negativing that contention that that section did not apply as the institution of the suit for mesne profits was not stayed by any order of injunction and that the institution of a suit can never be said to be futile if it would thereby prevent the running of limitation.

9. In - 43 Mys H. C. R. 1 (D), it was observed that the stay of execution of a decree for delivery of possession in a suit between two rival claimants to a jodi village did not serve to extend time under S. 15, Limitation Act in respect of a suit for rent against the kadim tenant as the order of stay of execution made by the .appellate Court in that case did not stand in the way of the successful claimant filing a suit earlier against the latter for such recovery.

10. In the light of these decisions the mesne profits due and payable to the plaintiff can only be for a period within three years prior to the suit. The plaintiff obtained delivery of possession on 3-10-1945 and as his suit was filed on 28-11-45, the plaintiff can recover mesne profits only for 34 months less 5 days.

11. Mr. Krishnamurthi has urged that his client is entitled to recover interest on these mesne profits from the dates when the claims to them accrued. The learned Munsiff, however, did not grant him that relief and the plaintiff did not take up the matter in appeal. I think in the circumstances of this case the plaintiff may be awarded interest only from the date of suit till date of payment on the aggregate amount of mesne profits found due to him.

12. In the result this appeal is allowed, the judgment and decree of the lower appellate Court are set aside and there will be a decree in favour of the plaintiff for mesne profits for a period within three years before suit at Rs. 15/- per mensem, i.e., for Rs. 510/- with interest thereon at 6 per cent per annum from date of suit till payment with proportionate costs against defendant 1 and against the assets of defendant 2 in the hands of his legal representatives. The plaintiff will get his costs from the defendants in this Court as well as in the lower appellate Court. Appeal allowed. AIR 1954 MYSORE 38 (Vol. 41, C.N. 17) "Rajammal v. Mariyammal" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) Rajammal, Appellant v. Mariyammal and another, Respondents. Misc. Appeal No. 20 of 1952-53, D/- 15 -1 -1953, against order of Commr. for Workmens Compensation (Oorgam), D/- 10 -6 -1952. (A) Workmens Compensation Act (8 of 1923), S.8 - WORKMENS COMPENSATION - Compensation to co-widows - Marriage of one not disputed by relations but treated as valid by parties and the caste - Commissioner cannot declare it invalid but must apportion compensation. (Para 3) Anno : Workmens Comp. Act, S. 8 N. 1. (B) HINDU LAW - MARRIAGE - Hindu Law - Marriage - Proof - Factum valet. Marriage treated as valid by relations and others for long time - Court cannot declare it null and void when it was accepted by caste and relatives as valid. (Para 3) (C) HINDU LAW - MARRIAGE - INJUNCTION - Hindu Law - Marriage - Parties not belonging to twice-born caste - Strict injunctions of law of marriage are not applicable. (D) HINDU LAW - MARRIAGE - Hindu Law - Marriage - Sudras - Hindu law does not forbid marriage between Sudra and non-Hindu. (Para 4) Cases Referred : Courtwise Chronological Paras (A) (10) 33 Mad 342 : 5 Ind Cas 42 4 (B) (51) AIR 1951 All 529 : 1950 All LJ 932 4 C.B. Motaiya, for Appellant; T.V. Nathamuni Iyer, for Respondents. Judgement The appellant and respondent 1 in a joint petition applied under the provisions of the Mysore Silicosis Rules for the award of compensation to them for the death of their husband B. Periathambi from the Mysore Gold Mining Company of India Ltd., Kolar Gold Fields. The petition which contained a clear and unambiguous averment that each of them was the married wife of the deceased was jointly signed by the appellant and respondent 1. The Commissioner for Workmens Compensation, K.G.P. recorded the evidence of the appellant and respondent 1 and the sister of the deceased and pronounced his order dated 10-6-1952 awarding the amount deposited by the Mysore Gold Mining Company as compensation for the death of Periathambi to respondent 1 and her son, respondent 2. He disallowed the claim of the appellant for apportionment of the compensation on the ground that being a Christian, her marriage with the deceased Periathambi who at the time of the marriage was a Hindu, was invalid and could not be recognized according to law.

2. The learned Counsel for the appellant contends : (1) that the Commissioner was wrong in going into the validity of the marriage inasmuch as no one disputed the validity of the marriage, and (2) that in any event, the conclusion of the Commissioner that the marriage was invalid according to law is opposed to law and therefore incorrect. The learned counsel for the respondents, however, supported the decision of the Commissioner on the ground that under Hindu Law, no marriage between a Hindu and a Christian can be valid or recognized.

3. The order of the Commissioner does not make it clear how or why or under what circumstances he came to consider the validity of the marriage when neither respondent 1 nor anyone else raised that question before him and when, as already stated, both the appellant and respondent 1 admitted in the joint petition they filed their respective status as married wives of the deceased Periathambi. Respondent 1 reiterated and affirmed this status of the appellant in her evidence before the Commissioner. The sister of the deceased also in her evidence specifically stated that the appellant is the married wife of the deceased. The materials on record thus make it clear that apart from the averments and admissions in the petition and the oral evidence in the case that the appellant is the wife of the deceased Periathambi, the conduct of the relatives of the deceased and their treatment of the appellant point to the conclusion that she is the wife of the deceased. The presumptions of law are also in favour of legitimacy and the validity of marriages. It is conceded that Periathambi does not belong to the twice born classes and it therefore follows that the strict injunction of Hindu Law that marriages must be within caste is not applicable to him. The doctrine of factum valet via. the proposition that which ought not to be done, if done, is valid will be applicable to the facts of this case and one of the effects of that doctrine is that when the factum of marriage is admitted every presumption should be made in favour of the validity of the marriage. It would be unjustifiable interference for the Courts to declare a marriage null and void when it is accepted by the members of the caste as valid.

4. It must be noted in this connection that the evidence of the appellant is to the effect that she was married to the deceased according to Hindu rites. The observation of Sankaran Nair, J. in - Muthusami Mudaliar v. Masilamani, 33 Mad 342 (A) that : "A marriage contracted according to Hindu rites by a Hindu with a Christian woman who, before marriage, is converted to Hinduism, is valid when such marriages are common among and recognized as valid by the custom of the caste to which the man belongs, although such marriage may not be in strict accordance with the orthodox Hindu religion" is therefore apposite. It may also be mentioned that succession and inheritance in Hindu Law do not exclude illegitimate children and their mothers, more particularly among the Sudras. There is, besides, no rule of Hindu Law which forbids the. subsistence of a marriage one of the parties to which is a non-Hindu, that is to say, Hindu Law does not refuse to recognize a conjugal union, merely by reason of a difference of religion see - Mrs. Chandramani v. Ramashankar, AIR 1951 All 529 (B). This position received statutory recognition in India Act 21 of 1949, though that Statute is limited in its scope to Hindus, Jains and Sikhs, and is in consonance with the prevalent trend of public opinion in a secular State.

5. We therefore set aside the order of the Commissioner for Workmens Compensation and direct the Commissioner to apportion the compensation between the appellant and the respondents according to law. The costs of this appeal will be paid by the respondents. Appeal allowed. AIR 1954 MYSORE 39 (Vol. 41, C.N. 18) "Nagappa Gowda v. Gurupadappa" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) Nagappa Gowda and others, Defendants-Appellants v. Doddamane Gurupadappa and another, Plaintiffs-Respondents. Appeal No. 184 of 1949-50, D/- 6 -11 -1952, against decree of Dist. J., Shimoga, in O. S. No. 11 of 1948-49. Order 21, R. 63 also applies to orders passed on claims preferred to property attached before judgment. 4 Mys CCR 146; 51 Mys HCR 448; AIR 1931 Rang 183; AIR 1918 Mad 26 (FB) and AIR 1945 Cal 449, Foll. (Para 6) Anno : Civil P.C., O. 21, R. 63 N. 6; O. 38, R. 8 N. 1. (B) Civil P.C. (5 of 1908), O.21, R.63 - ATTACHMENT - Subject to the result of the suit the order is conclusive. The words "subject to the result of such suit the order shall be conclusive" in Rule 63 mean that unless the suit is brought as provided in that rule the party against whom the order is made cannot assert either as plaintiff or as defendant in any other proceedings the right denied to him by the order. (Para 6) Anno : Civil P.C., O. 21, R. 63 N. 16. (C) Limitation Act (9 of 1908), Art.120, Art.11 - LIMITATION - ATTACHMENT - Order on claim in respect of attachment before judgment. Civil P.C. (5 of 1908), O.21, R.63. Article 120 and not Art. 11 applies to a suit to set aside an order made on a claim in respect of an attachment before judgment though such claim or objection was preferred after decree in the course of execution proceedings. 51 Mys HCR 448 and AIR 1945 Cal 449, Foll. (Para 8) Anno : Limitation Act, Art. 11 N. 19; Civil P.C., O. 21, R. 63 N. 6. (D) Mysore Land Revenue Code (4 of 1888), S.54 - LAND REVENUE - Effect of restoration of forfeited land to defaulter. A mere forfeiture of land followed by the restoration to the defaulting "holder" does not wipe out all the earlier rights and equities that may be subsisting as between private parties. 18 Mys CCR 76 and 30 Bom 466, Rel. on. (Para 9) Cases Referred : Courtwise Chronological Paras (A) (47) S. A. No. 356 of 1946-47 (Mys) 3 (B) 4 Mys CCR 146 6 (C) 51 Mys HCR 448 6, 8 (D) (31) AIR 1931 Rang 183 : 131 Ind Cas 727 6 (E) (18) AIR 1918 Mad 26 : 41 Mad 849 (FB) 6 (F) (45) AIR 1945 Cal 449 : 49 Cal WN 111 6, 8 (G) 44 Mys HCR 589 : 18 Mys LJ 166 6 (H) (24) AIR 1924 Sind 97 : 17 Sind LR 63 6

(I) (93) 22 Bom 640 6 (J) (35) AIR 1935 Rang 161 : 156 Ind Cas 586 6 (K) (32) 4 Mad 302 6

(L) (1900) 27 Cal 714 6 (M) (06) 29 Mad 225 : 16 Mad LJ 136 6 (N) (18) AIR 1918 Mad 693 (1) : 41 Ind Cas 684 6 (O) (43) AIR 1943 Mad 36 : ILR (1943) Mad 40 6 (P) (45) AIR 1945 Pat 485 : 24 Pat 408 6 (Q) 18 Mys CCR 76 9 (R) (06) 30 Bom 466 : 8 Bom LR 360 9

V. Krishnamurthy, for Appellants; M. Sadanandaswamy, for Respondent No. 1. Judgement VASUDEVAMURTHY, J. :- The plaintiffs suit for declaration of title, possession and mesne profits of a garden land has been partly decreed by the District Judge, Shimoga and defendants 1 to 4 and 6 have appealed. Defendant 5 has been formally impleaded as respondent 2 and the plaintiff is respondent 1. The plaintiff has also filed cross-objections regarding the share of the garden which has not been decreed in his favour.

2. According to the plaintiff, the suit property belonged to a joint Hindu family of one Benavanna Gowda and his three undivided brothers. For failure to pay land revenue it was forfeited to Government in or about the year 1937, but it could not be disposed of in revenue auction for want of bidders and it was resumed or taken under Government "phada"; subsequently as Benavanna Gowda paid up all the dues it was granted to him. For some monies due by him and his brothers the plaintiff filed a suit O. S. No. 27 of 35-36 in the court of the Subordinate Judge at Shimoga, and in execution of that decree purchased the suit property along with some other items in Court sale on 1-10-42. After the sale was confirmed he was put in possession in Mis. No. 11 of 43-44 . At that stage the father of defendant G, one Chennabasappa now dead and who was the then Manager of the family of the defendants filed a suit O. S. No. 160/43-44 in the Shimoga Munsiffs Court for a declaration of his title and for permanent injunction against the plaintiff alleging that he was in possession, and obtained an order of temporary injunction restraining the plaintiff from entering the suit garden. Under colour of that order he then removed the areca and paddy crop for the year 1943-44. Chennabasappas suit was decreed in his favour by the Munsiff but, on appeal, was dismissed by the Subordinate Judge of Shimoga and the dismissal was confirmed in the High Court. In spite of that decision the deceased Chennabasappa and after him defendants 1 to 6 his legal representatives have been continuing in unlawful possession of the land and were liable to deliver up possession and mesne profits.

3. The defendants pleaded that the suit property belonged solely to Benevannagowda and was his self-acquisition. One Krishnappa filed a suit against him for some monies due by him in O. S. No. 336/26-27 in the Shimoga Munsiffs Court and brought it to sale in Ex. Case No. 191 of 31-33 when it was purchased in Court auction by one Sundarasastry. After the sale was confirmed in his favour on 24-12-1934, Sundarasastry was put in possession through Court on 1-1-35 in Mis. No. 121/34-35. He subsequently sold the garden to Chennabasappa, father of defendant 6, on 30-6-43. Sundarasastry and after the sale by him Chennabasappa and the defendants were all along in possession and enjoyment of the suit property. The plaintiff had got the suit property attached before judgment in O. S. 27/35-36 which he had brought against Benavannagowda and his brothers. Sundarasastry had then put in a claim objecting to the attachment in Mis. Case No. 207 of 35-36. That claim had been allowed in favour of Sundarasastry as far back as on 14-8-1937. The plaintiff had not got that order set aside and the same had become conclusively binding on him. Nevertheless he had played a fraud on the Court by getting the suit property sold subsequently in execution in the Subordinate Judges Court at Shimoga without disclosing to that Court the fact that Sundarasastrys claim against the attachment had been allowed as aforesaid and he could not acquire any right under such a fraudulent sale. The Suit O. S. No. 160/43-44 filed by Chennabasappa in the Munsiffs Court at Shimoga for a declaration of title and permanent injunction was decreed in his favour by the Munsiff, Shimoga, as admitted in the plaint. But on appeal in R. A. No. 16/45-46 the Subordinate Judge rejected the plaint only on a technical ground that an extract from the Record of Rights had not been filed along with the plaint, and in - S. A. No. 358 of 1946-47 (Mys) (A) that order was confirmed. There had been therefore no decision on the merits against the defendants in those appeals and three criminal complaints filed by the plaintiff against the defendants complaining of trespass and theft in respect of the produce of this suit garden had ended in orders of discharge. The defendants had considerably improved the garden and in the event of the plaintiff succeeding they were entitled to be reimbursed the value of the same. The plaintiff had brought this suit on account of ill-will as a counter blast to some other litigation between the parties.

4. The District Judge, Shimoga, found that the suit property was the joint family property of Benavannagowda and his brothers and that it did not belong to Benavannagowda alone. He held that the order in the claim case could only affect Benavannagowdas share as Sundarasastry had bought only his right, title and interest. He did not think that the plaintiff was entitled to claim any enlargement of his rights on account of the forfeiture and other revenue proceedings. He did not also believe that the defendants had improved the suit garden. He, therefore, made a decree in favour of the plaintiff for a -th share of the garden and mesne profits.

5. Mr. Krishnamurthi, learned counsel for the appellants, has contended before us that the order of the Subordinate Judge in the claim case was that the plaintiff could not validly attach before judgment the suit property as belonging to his judgment-debtors Benavannagowda and his brothers; that as that order had not been set aside Within the time allowed by law, as required under O. 21, R. 63, Civil P.C., it had become conclusive. The plaintiff could not in this suit put forward or claim the identical right which had been negatived in the miscellaneous case. Mr. Sadanandaswamy, learned counsel for respondent 1, has urged that the attachment effected by his client was one before judgment and not in execution of a decree, and that consequently neither O. 21, R. 63 which requires a suit to be filed to have an order made in a claim case set aside nor Art. 11, Limitation Act which prescribes a period of one year within which such a suit must be filed applied in terms to bar the plaintiffs present suit. Moreover this suit was one for declaration of title and possession and not for setting aside the order is the claim case and it was really governed by Art. 138 which gives his client 12 years from the date of confirmation of sale to bring such a suit.

6. It has been held so far back as in - 4 Mys CCR 146 (B) that an order passed under S. 487 of the old Code of Civil Procedure corresponding to O. 38, R. 8 of the present Code allowing a claim to property attached before judgment in a suit is subject to the provisions of S. 283 (O. 21, R. 63 of the present Code) and that the plaintiffs remedy to have it set aside is a suit under that section. This decision has been followed with approval in - 51 Mys HCR 448 (C), where reference has also been made to - Pyaw Gyi Ma v. Latchmanan Chettiyar, AIR 1931 Rang 183 (D) and - Malikharjuna v. Virayya, AIR 1918 Mad 26 (PB) (E). See also - Dhan Bibi v. Mrinalini Ghosh, AIR 1945 Cal 449 (F). Order 21, R. 63, Civil P.C. declares that where a claim or an objection is preferred to an attachment the party against whom the order is made may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order shall be conclusive. It has been held in - 44 Mys HCR 589 (G), While dealing with a similar provision under O. 22, R. 103 that the effect of the failure to file a suit within one year of an order made under O. 21, R. 97 to set aside that order and to establish his right to present possession of the property in dispute, the claim to such possession is concluded and even as a defendant he cannot resist the recovery of possession by the opposite party. It was observed in that case that as between the parties to that order there was a bar provided under O. 21, R. 103 and as between themselves the unsuccessful party lost his right to possession. He could not also resist the claim of the plaintiff for recovery of possession as a defendant in the suit for the same reasons as would preclude him from suing as plaintiff to recover possession. It was further pointed out in that case that any other way of construing those provisions would be to allow the unsuccessful party to circumvent the law. See also - Azizullah Khan v. Ghulam Hussein, AIR 1924 Sind 97 at p. 99 (H); - Nema Gauda v. Paresha, 22 Bom 640 (I); - Ma Sein-Htay v. Maung Mya, AIR 1935 Rang 161 (J), and Mullas Code of Civil Procedure, 11th Edn; page 848 where it is observed that "subject to the result of such suit the order shall be conclusive" in R. 63 of O. 21 means that unless the suit is brought as provided in that rule the party against whom the order in made cannot assert either as plaintiff or as defendant in any other proceedings the right denied to him by the order; vide - Bailur Krishna v. Lakshmana, 4 Mad 302 (E); 22 Bom 640 (I); - Surnamoya Dasi v. Ashutosh Goswami, 27 Cal 714 (L); - Kayyana Chittemma v. Dossy Gavaramma, 29 Mad 225 (M); - Yarakayya v. Venkata Krishnamaraju, AIR 1918 Mad 693 (1) (N); - Akkammal v. Komarsami Chettiar, AIR 1943 Mad 36 (O); - Premsukh Das v. Satyanarain Singh, AIR 1945 Pat 485 (P).

7. We have therefore to see what in this case is the nature and effect of the order passed in the claim preferred by Sundarasastry against the plaintiff who had attached the suit property as belonging to his debtors Benavannagowda and his three brothers. That order has been marked as Ex. I in this case. In his application under O. 38, R. 8 Sundarasastry had claimed the property attached in the plaintiffs suit O. S. No. 27 of 35-36 as his own and as being in his possession and enjoyment. The plaintiff contested the claim and after recording evidence, during the course of which Sundarasastry examined himself and his tenant Nagabhatta and produced copies of the sale certificate issued in his favour, after the Court confirmed the sale in his favour a receipt evidencing delivery of possession by Court on 1-1-1935 (sic). The plaintiff examined himself,, and he and a witness whom he examined gave evidence that the property belonged to the joint family of Benavannagowda and his brothers. The Subordinate Judge held that the evidence disclosed that possession of the property was with Sundarasastry and that the copy of the sale certificate showed that the same had been sold subject to a hypothecation in favour of the plaintiff. The latter and Benavannagegowda had unsuccessfully tried to have the Court sale set aside and both in the Subordinate Judges Court and on appeal it was held that the attachment which was challenged was apparently got effected merely to harass the petitioner and could not be sustained. That order clearly recognized Sundarasastrys prior purchase under the Court sale in Ex. 191/31-32 in O. S. No. 336/26-27 to attach the property as still belonging to Benavannagowda and his brothers. After this order Has become conclusive under O. 21, R. 63, it would be idle for the plaintiff to contend that he can again put forward the same contention, viz., that the property belonged to the joint family of Benavannagowda and his brothers in this suit between himself and the defendants who claim under Sundarasastry merely because he has chosen to frame it as a suit for declaration of title and possession.

8. Mr. Sadanandaswamy has urged that Art. 11 does not in terms apply to the present suit as it refers to a suit to set aside or avoid the effect of an order passed in respect of an attachment in execution of a decree and not an attachment before judgment. That question has been, however, set at rest so far as our Court is concerned, and it has been held by a Bench of this Court in - 51 Mys HCR 448 (C), that Art. 120 and not Art. 11, Limitation Act applies to a suit to set aside an order made on a claim in respect of an attachment before judgment though such claim or objection was preferred after decree in the course of execution proceedings. The same view has been taken in a recent decision of the Calcutta High Court in - AIR 1945 Cal 449 (F). The plaintiffs suit which was filed on 11-12-48 is long after even the six years prescribed by Art. 120 from the date of the order in the claim case, viz., 14-8-37 even if it can be construed as one to set aside that order.

9. Mr. Sadanandaswamy has nest urged that as the suit land had been forfeited to Government under the provisions of the Mysore Land Revenue Code and transferred to "Government Phada" in the year 1937 for non-payment of land Revenue, whatever rights Sundarasastry acquired under his purchase in Court sale were lost. He represents that the Khata of the land stood in the name of a deceased man Krishnabhatta when the land was forfeited; that it was restored to Benavannagowda and that the latter must be deemed to have become its absolute owner again after Sundarasastry lest his rights by the forfeiture. Section 54, Land Revenue Code is, however, clear and a mere forfeiture followed by the restoration to the defaulting "holder" Benavannagowda does not wipe out all the earlier rights. It has also been held by this Court in - 13 Mys CCR 76 (Q), that neither the Mysore Land Revenue Code nor the rules thereunder contemplate the purchase on behalf of Government land which has been "forfeited" by reason of non-payment of the land revenue; and a mere forfeiture, while it no doubt operates, so far as Government is concerned, as a resumption of the holding, does not, unless it is followed by a sale, necessarily extinguish rights and equities that may be subsisting as between private parties. There an exactly similar contention that the restoration of the khata to the defaulter was equivalent to a new and absolute grant of the land freed from all previously existing rights and equities was negatived. There is therefore no substance in this contention which has been rightly held against Respondent 1 by the District Judge. See also - Amolak v. Dhondi, 30 Bom 466 (R).

10. Mr. Krishnamurthi has urged that the plaintiff had deliberately suppressed the order against the appellants in the claim case while obtaining an order for sale of the property as belonging to all the brothers and had got even Benavannagowdas right, title and interest sold up and that he cannot be permitted to come to Court to enforce such a tainted claim under a sale based on a fraud practised on the Court. It is not necessary for us to go into that question or to consider whether the suit property belonged to Benavannagowda alone or his brothers also in the view we have taken that the plaintiff is concluded by the order in the claim case and is-precluded from bringing the present suit.

11. In the result this appeal is allowed and the plaintiffs suit is dismissed with costs throughout. The cross-objections are also dismissed but without costs. Appeal allowed; cross objections dismissed. AIR 1954 MYSORE 41 (Vol. 41, C.N. 19) "K.H. Kapiniah v. Fatimabij" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) K.H. Kapiniah, Appellant v. Fatimabij, Respondent. Second Appeal No. 399 of 1950-51, D/- 30 -10 -1952, from decision of Sub-J., Mandya, D/- 30 -8 -1950. (A) Civil P.C. (5 of 1908), S.11 - RES JUDICATA - EXECUTION - Constructive res judicata - Execution proceedings. Sale of non-hypothecated property in execution of mortgage decree - Judgment-debtor served with notice in execution, not raising objection on the ground of absence of personal decree - Application by widow, claiming under sale-deed, from judgment-debtor executed after sale of property in execution, to set aside the execution sale on the ground of absence of personal decree is barred by res judicata. (Para 2) Anno : Civil P.C., S. 11 N. 23, 35, 43. (B) Civil P.C. (5 of 1908), O.34, R.6 - MORTGAGE - DECREE - EXECUTION - SALE - Absence of personal decree - Effect on execution sale. Mortgage decree - Sale of other property in execution - Case one where decree-holder is entitled to personal decree - Absence of such decree does not render sale void and no prejudice is caused to judgment-debtor by sale. 18 Mys LJ 333, Foll. (Para 3) Anno : Civil P.C., O. 34, R. 6 N. 3. Cases Referred : Courtwise Chronological Paras (A) (51) AIR 1951 Mys 118 : ILR (1952) Mys. 24 2 (B) 42 Mys HCR 190 2 (C) (40) 18 Mys LJ 333 3 G.R. Ethirajulu Naidu, for Appellant; K.R. Gopivallabha Iyengar, for Respondent. Judgement The appellant obtained a final decree against one Peer Sab on the foot of a hypothecation deed and thereafter filed an execution application for attachment and sale of the property now in dispute. He sought to proceed against it, though it was not one of the hypothecated properties, as the hypothecated properties had all been sold in execution of a decree obtained by a previous hypothecatee. The judgment-debtor was served with a notice, and it is clearly noted in the order-sheet that he had no objection to the attachment. Property was thereafter sold and the sale was confirmed on 9-1-1948. The respondent, who claims to be the widow of the judgment-debtor, states that a sale deed has been executed by him in her favour on 6-5-1948, which is long after the property was sold in execution of the decree against him. Her contention is that as no personal decree was obtained, the sale is invalid.

2. Her application to set aside the sale has been filed on 7-7-1948. It is difficult to see how such a belated application is maintainable, though the judgment-debtor himself did not file any such application while he was alive within time allowed by law. Moreover, it has to be noticed that the application is barred by principles of res judicata. The judgment-debtor was served with a notice in the execution case when the property was sought to be attached and sold. It-was up to the judgment-debtor to have raised any objection he had at the time of attachment and sale, but he has failed to do so. It is, therefore, not open to him or to any other person claiming under him to raise the point over again. Even in respect of a failure to take notice under O. 21, R. 22, which goes to the root of the jurisdiction of the executing Court, a judgment-debtor may be barred from taking the objection by principles of res judicata. As observed in - Chenne Gowda v. Venkatachala Setty, AIR 1951 Mys 118 (A) : "There are a large number of decisions which support the view that a person who was not served with a notice under O. 21, R. 22, Civil P.C. but was served subsequently in the execution case and failed to take the objection of his not having been served with notice under O. 21, R. 22, cannot be allowed to take that objection at a later stage." I may also refer to the decision in - 42 Mys HCR 190 (B) relied on in the above case as an authority for holding that a judgment-debtor who could have taken an objection at an earlier stage in execution proceedings, but had failed to do so is prevented by principles of res judicata from raising the point over again.

3. Further, the mere fact that a personal decree has not been obtained does not necessarily make the sale void. No prejudice is caused to judgment-debtor in such cases when the decree-holder was entitled to personal decree if he had applied for it as in this case. As observed in - Venkatasamy v. Subba Rao, 18 Mys LJ 333 (C) it may be here stated : "the failure to obtain a formal personal decree under O. 34, R. 6, Civil P.C., did not render the subsequent execution proceedings void and that the sale could not be set aside on that account. The Court which was competent, to grant a personal decree had allowed execution to proceed and had jurisdiction to execute it. An irregularity in procedure in the exercise of its jurisdiction did not vitiate the sale." It is therefore clear that both the Courts below were wrong in allowing the application filed by the widow of the judgment-debtor.

4. In the result, this appeal is allowed with costs, and the application filed by the respondent to set aside the sale stands dismissed with costs. Appeal dismissed. AIR 1954 MYSORE 42 (Vol. 41, C.N. 20) "Subba Rao v. Nama Ramaswami Setty" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) P.R. Chikka Subba Rao and others, Appellants v. Nama Ramaswami Setty and others, Respondents. Appeals Nos. 151 to 156 of 1949-50, connected with Second Appeals Nos. 239 and 240 of 1949-50, D/- 27 -11 -1952, against decrees of Addl. Sub-Judge, Kolar, in Appeals Nos. 88 and 89 of 1947-48. (A) WILL - SUCCESSION - Will - Construction. Succession Act (10 of 1925), S.82. Provision in will that each of testators sons should make proper supervision of Anna Chatram, each for a period of 3 years in the order of seniority - Held the plaintiff in whose favour the other brothers had executed lease deeds had no right to question the plaintiffs right to management after expiry of the 3 years which was a matter of internal arrangement as between the brothers inter se. (Paras 2, 8) Anno : Succession Act, S. 82 N. 1. (B) Civil P.C. (5 of 1908), O.20, R.12 - DECREE - OBJECT OF AN ACT - Scope. A final decree without a preliminary decree can be made fixing the enhanced future rates of rents or mesne profits after suit. 7 Mys LJ 262, Distinguished; AIR 1938 Mad 727; AIR 1937 All 36, Rel. on. (Para 10) Anno : Civil P.C., O. 20, R. 12 N. 2. (C) Transfer of Property Act (4 of 1882), S.105 - LEASE - Power to fix rent by way of damages. While fair rent may have been fixed by raising rents by a maximum limit of 150 per cent, if the tenants had approached the House Rent Controller in a bona fide and proper way the same standards may not be applied when the Court is granting a decree for eviction and is fixing rent by way of damages or compensation. (Para 12) Anno : T. P. Act S. 105 N. 40, 70. Cases Referred : Courtwise Chronological Paras (A) (41) 20 Mys LJ 194 (200) 5, 8 (B) (47) 52 Mys HCR 405 (414, 415) 8 (C) 7 Mys LJ 262 10 (D) (V 25) AIR 1938 Mad 727 (729) : ILR (1938) Mad 1050 10 (E) (V 24) AIR 1937 All 36 (39) : 166 Ind Cas 897 10

V. Krishna Murthy, for Appellant (in Nos. 151 to 156 of 1949-50) and for Respondents (in Nos. 239 and 240 of 1949-50); Mirle N. Lakshminaranappa, for Respondent (in Nos. 151-156 of 1949-50), for Appellants (in Nos. 239 and 240 of 1949-50). Judgement VASUDEVAMURTHY, J. :- These six Regular Appeals and two Second Appeals relate to as many suits filed by one Nama Ramaswamy Setty in the Court of the Munsiff of Kolar for ejectment and enhanced rents by way of damages for use and occupation till possession of the premises concerned in each of them is delivered by their respective tenants who are defendants in those suits. All those suits were decreed by two different Munsiffs who heard them, Messrs. Hanumanthegowda and Thimmapparal Urs. On appeals in Regular Appeals Nos. 88 and 89 of 47-48 two of the earlier of those judgments in Original Suite Nos. 135 and 136 of 46-47 were reversed by the Subordinate Judge of Kolar. The two Second Appeals by the plaintiff arise out of a common judgment in those two appeals Six regular appeals which were filed against the Judgments in the other six suits were got transferred to this Court and have been heard as Regular Appeals in this Court. They can all be disposed of by a common judgment.

2. The plaintiff is the second of three brothers who are sons of one Bangiah Setty who is now dead. The premises concerned in these suits are shops which are attached to a choultry or Dharma Chatram. The deceased who admittedly was the owner of the choultry and the shops, left a registered will dated 1-7-1922 under which he has directed that out of the rents realized, from these shops, the maintenance expenses of the choultry such as kandayam, lighting, cleaning and other charges should be met and the surplus utilized for feeding people free. There is a further provision in the will which runs as follows : "I have three sons 1st Chinnappa, 2nd Ramaswami Setty, 3rd Naraniah. As long as they remain in a single family hamioniously they should jointly undertake proper supervision of the Anna Chatram...... In case they fail to be on good terms with one another and get themselves separated, each one of them, should make proper supervision of this Anna Chatram, each for a period of 3 years in the order of seniority." It is this portion of the will that has been mainly relied upon by the defendant to defeat the plaintiffs suits.

3. It is admitted that each of the defendants who were already in occupation as tenants executed in favour of the plaintiff lease deed dated 7th, 8th and 9th July 1943 agreeing to pay rents at Rs. 8-5-4 per month and to vacate and deliver possession of the premises after 11 months. That the plaintiff was then in sole management of the choultry is not disputed and the lease deeds themselves recite that the shops are appurtenant to the choultry. The defendants appear to have paid some rents and then fallen into arrears. The plaintiff issued notices to them terminating the leases and calling them to vacate and deliver over possession of the premises and to pay damages at the rate of Re. 1/- per day. The defendants pleaded more or less uniformly. They alleged that the lease deeds were nominal and that they were not meant to be acted upon; they had come into possession as tenants earlier, before the plaintiff took up the management and were not liable to vacate and deliver over possession of the premises to him as this term of 3 years for which he was authorized or was entitled to manage the choultry had expired; on account of quarrels between the plaintiff and his younger brother Naranappa and his elder brothers son Ramadevasetty regarding the management of the choultry, proceedings had been initiated and were going on before the Sub-Division Officer, Kolar, and the defendants had received notice from that officer not to pay rents to the plaintiff; the plaintiffs suit was not maintainable as his other two brothers had not joined with him in bringing this suit and as his period of management had expired; the notices issued for eviction also, it was pleaded, were not in accordance with law.

4. The learned Munsiffs who tried the suits held on an appreciation of the evidence and probabilities that the notices terminating the tenancy were valid; that the plea of the defendants that the lease deeds were nominal, and that the condition in them about delivering back possession of the premises to the plaintiff, was not meant to be acted upon was neither true nor tenable. The defendants had not shown that the Sub-Division Officer had issued notices to them not to pay rents to the plaintiff and the plaintiff who was managing the choultry both when he took the lease deeds from the defendants and when he brought the suits was fully entitled to sue the defendants and ask for their eviction and rents. They therefore decreed the plaintiffs suits as prayed for.

5. The learned Subordinate Judge who decided R. As. 88 and 89 of 47-18 and whose decision is sought to be upheld before us for the tenants took the view that the plaintiffs suits were not maintainable. He observed that though the question of the plaintiffs right to sue or maintainability of the suits as brought had not been expressly raised in their pleadings by the defendants, it was a question of law relating to the locus stand of the plaintiff and relying on - K.M.A. Venkiah v. T.V.R. Gupta, 20 Mys LJ 194 (A), thought that that plea could be raised at any time. He also thought that those pleas had been impliedly raised in the pleadings. He, however, did not believe or accept the plea of the defendants that the Sub-Division Officer could in law, or did in fact, demand the tenants to pay the rents, not to their lessor but into the Treasury. He did not record any findings on the other points raised for the defendants, viz., the validity of the notices to quit, the nominal nature of the lease deeds and the condition in it regarding vacating the premises.

6. In this Court no attempt has been made to challenge the findings of the Munsiffs on those points. They moreover appear to be quite correct and the learned Munsiff who decided the later batch of suits has observed that the defendants are all literate persons and experienced businessmen but none of them appear to have much regard for truth. They had given evasive answers but ultimately had admitted execution of the lease deeds and were clearly liable to act according to their terms. There is considerable force in these observations, which are well founded, and we accept as correct the findings of the Munsiffs on all those questions.

7. Of the only questions which were strongly pressed before us for the tenants by their learned Counsel Mr. V. Krishnamurthi, the first is regarding the maintainability of the plaintiffs suits. It is really difficult to see how the learned Subordinate Judge could have come to the conclusion that the plaintiffs suits were not maintainable. The lease deeds purported to be in favour of the plaintiff and contained a reference to the choultry. Admittedly the plaintiff was in management when he got them executed. D.W. 1 his younger brother Naranappa has not deposed that either he or his eldest brother Chinnappa had taken over the management subsequently, nor has he stated that the plaintiff cannot bring these suits as he is not the present manager and that he or his brother alone could do so. He does not appear even to object to the plaintiff getting a decree though he says that there have been differences of opinion between the plaintiff and his two brothers regarding the management. The clause in the will prescribing that each of the 3 brothers should manage for 3 years in order of seniority is not apparently pressed even by him. He admits that after the plaintiff took up the management he enhanced the rents consulting all the tenants including himself as he had also taken one of the shops for rent; and that with a view to increase the income of the chatram they all agreed. He says that the rents are being collected and utilized for the benefit of the poor students hostel and for feeding of the travellers. Naranappa D.W. 1 also makes in-other significant statement in his evidence : "We 3 brothers are managing the Dharma Chatram...... I managed it for 7 years successively. After my 3 years time, my brother Chinnappa raised takrar to take charge. So I had to manage for his 3 years. I managed one more year on account of this takrar." This shows that the provision in the will about the rotational management could only have been merely a directive given for the due, proper and peaceful administration and management of the affairs of the choultry and to avoid, misunderstandings between the sons and was treated as such and that they are not such "vested rights" or irrevocable substantive rights in the nature of title to hold immovable property or to possess and enjoy it. It was quite within the competence of the brothers to allow one of them to manage if he himself did not choose, or find it inconvenient to do so. It is very difficult to accept or even follow the arguments of the learned Counsel for the tenants that the brothers had each a vested right to manage which would automatically come to an end after the expiry of the three years allotted to him. This is not even a case of owning and enjoying for personal benefit the income of any property. An arrangement laid down by the father in his will for the guidance of his sons could not be utilized by the tenants to defeat the very object of the donor that there should be an harmonious understanding and arrangement between the brothers in the matter of the continuous and unbroken management of this choultry. In his generosity their father had brought into being this charity and it is to be expected all his sons and descendants are interested in maintaining it efficiently for the sake of the reputation of their family and the respect due to their fathers charitable intention. It could be no concern of the defendant which of the brothers is actually managing the charities. Mr. Krishnamurthis clients who are only tenants cannot by reason of that fact have any right to question the management of the choultry by the plaintiff or his brothers. If the latter did not choose to take over the management from him after his period was over either with his consent, or by means of some legal proceedings, his management and his powers as manager cannot come to an end or much less be questioned by strangers like the tenants. The learned Subordinate Judge is, in our opinion, entirely wrong in construing the matter as if it is one involving some vested rights or title and treating the plaintiff as a person who had automatically become functus officio and who had ceased to have any sort of jurisdiction to manage immediately his three years period was over whether or not there was any one able or willing to take charge from him or even before he actually handed over such charge to anyone else.

8. Mr. Krishnamurthi has cited some oases and relied specially on - 20 Mys LJ 194 (A) and - parsee Zorastrain Anjuman v. Chief Secy., Govt. of Mysore, 52 Mys HCR 405 (B), referred to by the Subordinate Judge and has urged that in a suit like the present unless all the brothers who are trustees are joined as plaintiffs or as defendants one or more of them cannot by themselves bring a suit to recover possession of property. He has also urged that even as joint executors or administrators under the will one of the brothers could not bring these suits and he has relied on sec. 90, probate and administration act in support of that latter argument, and on - 20 Mys LJ 194 (A), that this objection could be taken at any stage of the proceedings. There is no need to consider in detail any of these cases in the view we have taken that the plaintiff is merely suing as a manager. He must be deemed merely to be acting for and on behalf of his brothers also, in pursuance of authority impliedly left or given or conceded to him by them. The plaintiff in whose favour the defendants (sic) have executed lease deeds have no right to question the plaintiffs right to management which is a matter of internal arrangement as between the brothers inter se. The brothers are not described in the will either as trustees or as executors whatever may be their legal position with reference to their legal rights under the will. This matter of periodical management cannot, in our opinion, in the terms in. which it is put and the context in which it appears, amount to anything more than a mere arrangement or direction given by the testator for the purpose of efficient and peaceful management and does not clothe the brothers with any special title or vested rights which are automatically to come into being immediately after the previous three periods are over and so as to put an end to the rights of management of a present manager even if the successor does not in fact choose or is unable or unwilling to take over charge himself. Such a construction would, far from giving effect to the testators intentions, lead to an impossible deadlock and vacancy and encourage people like the defendants to take advantage of the impasse to benefit themselves and for their own ends. We must therefore hold that there is neither substance nor merit in that contention and that the finding of the learned Subordinate-Judge that the plaintiffs suits are not maintainable is wrong.

9. The next contention on behalf of the tenants, is that the plaintiffs suit for ejectment must fail as the Mysore House Rent Control Order, 1948, was extended to Chintamani in respect of non-residential premises also sometime in 1949. This was long after the present suits were filed. We think from a reading of Rules 9 and 16, Mysore House Rent Control Order there is no substance in this contention either. Rule 19 declares that "Nothing in this Order shall prevent a landlord from filing a suit for eviction of a tenant before a competent Civil Court, provided that no decree or eviction of a tenant, passed by a Civil Court shall be executed unless a certificate-to that effect is obtained from the Controller", and Rule 9 Cl. (1) says that a tenant in possession of a house shall not be evicted therefrom whether in execution of a decree or otherwise except in accordance with the provisions of this clause. The conjoint effect of the two rules would merely mean that while there is nothing to prevent a suit being filed for ejectment against a tenant and the Court granting a decree therefor, the same cannot be executed and the defendant evicted except on the production of a certificate from the House Rent Controller that he is so liable to be evicted which must be for one or more of the reasons given under Rule 9(1).

10. The nest contention put forward on their behalf is that a decree could not have been made fixing the enhanced future rates of rents or mesne profits after suit. Reliance is placed for this argument on a case in - 7 Mys LJ 262 (C), where it has been held that in a suit for possession or rent or mesne profits the Court should, under O. 20, R. 12, Civil P.C., pass a preliminary decree with regard to mesne profits subsequent to the institution of the suit, directing an enquiry to be made as to the amount thereof; and thereafter a final decree has to be passed in accordance with the result of such enquiry and that a decree fixing the mesne profits subsequent to the institution of the suit at a certain amount is not in accordance with law. There is no discussion in that judgment and it seems to have been "practically admitted" that the decrees of the lower Courts awarding mesne profits at a fixed rate from date of suit till date of delivery of possession was not correct and could not be supported. So that the order is more like one based on consent of parties. It is not clear whether in that case there was also an issue as in this case which required determination by the court in the suit itself, viz. "Is the claim for future rent unconscionable and excessive?" There is apparently nothing in O. 20, R. 12 which requires that the determination of such an issue must be left to proceedings after a preliminary decree for possession and past mesne profits are passed or bars a finding being made in the suit itself, the word, used being may in that rule. In - Vellaveeran Chetty v. V. Veeran Chetty, AIR 1938 Mad 727 at p. 729 (D), it has been held that it is perfectly competent to a court without directing an enquiry to pass a decree finally determining the amount of profits payable subsequent to the institution of the suit, if it is made out that it is not necessary to make such an enquiry and that it cannot be said that such a decree is not final or is incapable of execution nor would it be in contravention of the provisions of O. 20 R. 12, Civil P.C. A preliminary decree becomes necessary where the exact amount is to be ascertained after the examination of fresh evidence; see - Bagchi, A.P. v. Mrs. F. Morgan, AIR 1937 All 35 (E).

11. Another contention raised for the tenants is that the rate of Rs. 30/- per month awarded by the Munsiffs is excessive. There is no clear evidence let in on either side as to the rate of rent or mesne profits for which the premises could have been let. It is not however denied that the premises are situated in an important business locality in Chintamani Town.

12. It is urged for the tenants that if the standards prescribed by the Mysore House Rent Control Order relating to fair rents are applied to this case the rents may be raised by a maximum limit of 150 per cent in which case about Rs. 21/- would be the maximum which could be allowed While fair rent may have been fixed in that way if the tenants had approached the House Rent Controller in a bona fide and proper way it is difficult to see why the same standards should be applied when the Court is granting a decree for eviction and is fixing rent by way of damages or compensation. It is also represented before us that some other tenants have entered into agreements to pay rent at Rs. 30/- per month. There is no evidence for it and we are not inclined to allow some lease deeds said to have been subsequently executed by some other tenants in favour of the plaintiff and now sought to be put in for the plaintiff by way of additional evidence in support of that statement. Taking into account all the facts and circumstances of this case we think that Rs. 25/- a month would be a reasonable rate and we order accordingly.

13. In the result Second Appeals Nos. 239 and 240 of 1949-50 are allowed, the judgment and decrees of the Subordinate Judge in Regular Appeals 88 and 89 of 1947-48 are set aside. Regular Appeals Numbers 151 to 156 of 1949-50 are dismissed. The judgments and decrees of the Munsiffs are restored but with the modification that the plaintiff will be entitled to recover rents by way of damages from date of suit till date of delivery of possession at Rs. 25/- per month from the defendants in each of the cases.

14. The Plaintiff will have his costs from the Defendants in all the Courts. Order accordingly. AIR 1954 MYSORE 45 (Vol. 41, C.N. 21) "Nandipuram Sreerangachar v. R. Chakravarthi" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Nandipuram Sreerangachar and others, Appellants v. R. Chakravarthi, and others, Respondents. Second Appeal No. 506 of 1948-49, D/- 23 -6 -1952, against decree of Addl. Sub. J., Mandya, in R. A. No. 6 of 1947-48. Civil P.C. (5 of 1908), S.11 - RES JUDICATA - ESTOPPEL - Identity of subject matter and cause of action. Evidence Act (1 of 1872), S.115. A owning two properties X and Y mortgaging Y to B - B obtaining mortgage decree and purchasing property Y in execution - B then bringing a suit against C under a mistaken belief that C had purchased property Y in execution of his own money decree, in order to give him opportunity to redeem the property as he was not impleaded in prior suit - Real fact however was that C had purchased property X - Decree passed against C without any contest - D who had purchased property X from C bringing suit against B for declaration of his title to X and for possession - Decree in prior suit between B and C does not operate as res judicata as subject matter in dispute was different - Cs failure to plead in previous suit that what he had purchased was not property Y but X cannot also operate as estoppel against him or D from contending that he was owner of property X. (Paras 2, 3) Anno : C.P.C., S. 11 N. 72; Evi. Act, S. 115 N. 1.

V. Krishnamurthy, for Appellants; Nittoor Sreenivasa Rao and K.R. Gopiballabha Iyengar, for Respondent (No. 1). Judgement The property in dispute in this case is the eastern half of Survey No. 2 in Hullam-balli a village in Malavalli Taluk. Both the eastern half and the western half of this survey number have got the same boundaries and in fact each of them is two acres in extent. They belonged to one Venkatanarasimhachar. It is in evidence that he got the eastern half of it under the release deed Ex. G in 1897. No title deed has been produced to show how he acquired the western half. But it is in evidence that he executed the hypothecation deed Ex. P hypothecating the western half of Survey No. 2 measuring two acres and one other land and it has been stated in that document that he acquired them in a revenue sale. It is therefore clear that while he got the eastern half of Survey No. 2 under the release deed Ex. G, he got the western half in a revenue sale. On 22-2-1927 half of Survey No. 2 was hypothecated to the appellant and though it is not clearly stated whether it is the eastern or western half that has been hypothecated to him it is clear that what was hypothecated is the western half, as it is stated in the hypothecation deed that that hypothecated portion had been purchased by the hypothecator in a revenue sale. The appellant filed a suit on the foot of the hypothecation deed in O. S. No. 28 of 36-37 on the file of the Second Munsiff, Mysore, and obtained a decree. In execution Of that decree he purchased the property and obtained delivery. It is clear from the plaint as well as the delivery receipt that the property purchased and put in possession is that portion of Survey No. 2 which had been purchased under a revenue sale. He, however, came to know that one Sreenivasa Tatachar had purchased the same property in execution of a decree obtained against Venkatanarasimhachar though the property purchased by him was not that property. In order to give an opportunity to this person to pay the hypothecation amount, as he had not been impleaded in the previous suit, he filed the suit in O. S. 274 of 39-10 on the file of the Second Munsiffs Court, Mysore. Sreenivasa Tatechar, however, did not contest the suit, though it is not clear whether he was under the impression that the suit was in respect of the land purchased by him in execution of the decree obtained against Venkatanarasimhachar or a different land. Anyway, it is found that the suit filed in O. S. No. 274 of 39-40 ended in a decree with the consent of Srinivasa Tatechar but it has to be said that the suit was in respect of the western half of Survey No. 2 which is the property purchased under the revenue sale, as the plaint in O. S. No. 274 of 39-40 itself says that the land in respect of which the suit was filed had been purchased by Venkatanarasimhachar in a revenue sale. The plaintiff who has purchased the eastern half of Survey No. 2 from Srinivasa Tatachar claimed possession of the property on the ground that the appellant is in wrongful possession of it. Since no suit has been filed by the defendant in respect of the property now in dispute, i.e. the eastern half of Survey No. 2, it cannot be said that anything comes in the way of the plaintiff getting a declaration of his right in respect of the plaint schedule property.

2. What is seriously contended is that the decision in O. S. No. 274 of 39-40 operates as res judicata against the plaintiff. In that suit filed by the defendant, against Sreenivasa Tatachar the predecessor in title of plaintiff, it was alleged in the plaint that the latter had purchased the two acres of land hypothecated to the former. Sreenivasa Tatachar did not deny those allegations and allowed a decree to be passed against the interest if any he had in that land. In fact he had no interest in those two acres of land and it is the other two acres of land that is now in dispute, that he had purchased. The previous suit was not in respect of the two acres of land now in dispute. So the title of plaintiff or Sreenivasa Tatachar his predecessor in title to the lands now in dispute, was not the subject matter of dispute in the previous suit. The decision in the previous suit may operate as res judicata against Sreenivasa Tatachar or his successor in interest claiming any interest in the property which was in dispute in that suit, but not in any other property such as the two acres now in dispute.

3. It is contended that it is only two acres of land that had been purchased by Sreenivasa Tatachar and that, as he did not contend in the previous suit that what he had purchased was not the two acres which was the subject matter of the previous suit, he is estopped from now contending that what has been purchased by him are the two acres now in dispute and not the two acres which were in dispute in the previous suit. It may be that he is estopped from saying that the two acres of land which was the subject matter of the previous suit had not been purchased by him; but he at no time said that the two acres of land now in dispute was not purchased by him and neither he nor plaintiff who claims under him is estopped from saying that he is the owner of two acres of land, now in dispute.

4. The property now in dispute is the eastern half of Survey No. 2 and it belongs to plaintiff. It was not in dispute in O. S. 274 of 39-40 and nothing said or done in that suit comes in the way of Sreenivasa Tatachar, or plaintiff who claims under him, establishing his title to the suit land. Both the Courts below are right in decreeing the plaintiffs suit as prayed for. This appeal, therefore, stands dismissed with costs. Appeal dismissed. AIR 1954 MYSORE 46 (Vol. 41, C.N. 22) "Commander, Bangalore Area v. Armugam Nagarthnam" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND MALLAPPA, J. ( Division Bench ) Commander, Bangalore Area and another, Appellants v. Armugam Nagarthnam and Co., Respondent. R. A. Nos. 4 to 6 of 1949-50, D/- 28 -11 -1952; against order of Dist. J., Civil Station, Bangalore, D/- 4 -2 -1949. (A) Arbitration Act (10 of 1940), S.33 - ARBITRATION - Dispute found to be within scope of arbitration clause - Court cannot enter into merits of dispute. AIR 1951 SC 9, Foll. (Para 4) Anno. Arbitration Act, S. 33 N. 1. (B) Arbitration Act (10 of 1940), S.30(c) - ARBITRATION - CONTRACT - AGREEMENT - Contract with Military Department- Agreement to refer differences to arbitration of military officer - Arbitrator cannot be said to have secret interest in subject matter of submission or in any party. (Para 6) Anno. Arbitration Act, S. 30 N. 5. (C) Arbitration Act (10 of 1940), S.2(a) - ARBITRATION - Dispute. An arbitrator acts without Jurisdiction if the parties have not agreed that the matters in dispute should be decided by arbitrator. (Para 6) Anno. Arbitration Act S. 2 (a) N. 2. (D) Arbitration Act (10 of 1940), S.2(a) - ARBITRATION - CONTRACT - Cl.35 in contract providing that any dispute not provided for under any other clause shall be referred to arbitration - Dispute regarding payments to be made in pursuance of contract - Cl.18 providing for rectification in bills - Cl.18 held did not exclude Cl.35. (Para 6) Anno. Arbitration Act, S. 2 (a) N. 2. (E) Arbitration Act (10 of 1940), S.30(a) - ARBITRATION - MISCONDUCT - Misconduct. Award can be set aside on ground that arbitrator improperly rejected to receive evidence. The evidence must be tendered to the arbitrator and it is not his duty suo motu to fix a date for evidence. (Para 7) Cases Referred : Courtwise Chronological Paras (A) (V 38) AIR 1951 SC 9 (Pr 9) : 1950 SCR 792 (SC) 4 (B) (1916) 1916-2 Ch 86 (101, 102) : 84 LJ CH 865 6 (C) (V 39) AIR 1952 SC 119 (Pr 4) : 1952 SCJ 156 6 (D) (V 13) AIR 1926 Lah 584 (585) : 96 Ind Cas 108 7 (K) (12) 13 Ind Cas 161 (165) (Cal) 7 Anno. Arbitration Act, S. 30 N. 10. A. R. Somanatha Iyer, for Appellants; B. Shankara Rao, for Respondent. Judgement MALLAPPA, J. :- In these three appeals the respondents are Contractors who entered into contracts with the Military Department for the construction of what are known as "Hutted Ancillaries" on a lump sum basis. Letters dated 27-4-43 were addressed to them enclosing the tender documents and they were instructed to submit their tenders within 11 A.M. on 1-8-43. In para. 2(b) of the letter marked Ext. A the attention of the contractors was drawn to the fact that "the Plinth areas inserted in Col. 15 of Sch. B, are rounded off to the nearest foot" and that it should be understood that the amounts mentioned in Col. 19 against each item (except in the case of provincial items) are fixed amounts and shall not be varied and that the percentage tendered will be deemed to be above or below these amounts. While there is hardly any doubt that the contracts were therefore on a lump sum basis it will be noticed that in Sch. D in which the rates for pricing variations and additions are mentioned, it was stated that it was a list of items rates of the same standard of values as the Plinth area rates, entered in Sch. B and shall be used for pricing variations and additions.

2. The contention of the contractors is that the above statement in Sch. D led them to think that the lump sums mentioned in Ext. B had been worked out on that basis and that they are therefore entitled to claim money for the work done on that basis and not on the basis of their lump sum tender. It was also contended that there was an arithmetical error of Rs. 10,000/- in Schedule B and that they were entitled to get this corrected. The contention of the Government was that if there were any mistakes in Sch. B they were immaterial as the contract was clearly oil lump sum basis. Moreover, the contractors had signed the final bills as well as no-claim certificates and they cannot reopen the question over again.

3. When differences arose, the Government proposed to refer the matter to an Arbitrator as had been agreed to under Clause 35 of the contract. Apart from the two points referred to above, the Government contended that lorries had been supplied to the contractors at a low rate of Rs. 7-8-0 per lorry per day as per the instructions of the Commander Royal Engineers, but that the rate of hire per lorry per day should have been Rs. 45/- and the rate of Rs. 7-8-0 was wrong, unauthorised, and not binding on the Government. The contractors however felt that these differences were not matters that came under the arbitration clause, but both parties submitted the points of difference to an arbitrator, the contractors, raising before him the question of jurisdiction also. The award was : "That schedule B prices and the total amount shall not be altered and that the contractor shall not be compensated; and that the rate fixed by C.R.E. for hire of Military Transport is binding and that the Government have no claim against the contractor in this respect". Petitions were therefore filed against the respondents under Section 14(2), Arbitration Act. On the other hand the contractors filed petitions for setting aside the award, stating the facts of their case and contending that Clause 35 of the contract under which the matter was referred to arbitration did not apply to the case; that the arbitrator should have taken evidence before giving the award, that the award is liable to be set aside for judicial misconduct since the Arbitrator has deliberately and intentionally misinterpreted the law and that the award is not based on any evidence. On the other hand it was contended by the Government that if the contractors wanted to adduce evidence they should have tendered the evidence and that no request was made for examining any witness. The allegations made by the contractors in para 13 of their affidavits about the arbitrator having ascertained what exact relief they wanted are denied and even, otherwise one can see nothing wrong in the arbitrator having ascertained this.

4. After stating the cases of the parties at some length, the learned Judge of the lower court has held : "The defence of the Government before the arbitrator to the effect that the rates given in Schedule D are intended mainly for the pricing of work done by the contractors under Clause 25 of the conditions of the contract and that the purpose of Schedule B is to give the contractors an idea of the approximate price the Government proposed to pay for the work for which tenders were invited, cannot be sustained in the light of para 2(b) of Ext. A, Cl. 3 of Ext. D and the statement in Schedule D to the effect that it is the list of the item rates of the same standard of values as the plinth area rates entered in Schedule B and shall be used for pricing variations and additions as per clause 3 of the special conditions of the contract". The learned Judge has examined the correctness of the findings of the arbitrator, as if he was sitting in appeal over his findings. This is rightly objected to by the appellants. As observed in - Mair A.M. and Co. v. Gordhan Das Sagarmull, AIR 1951 SC 9 (A) : "Once the dispute is found to be within the scope of the arbitration clause, it is no part of the province of the Court to enter into the merits of the dispute".

5. Even otherwise there is a good deal of substance in the contention on behalf of the Government that in para 2(b) and the letter Ext. A it was made clear that the amount mentioned in Col. 19 in Schedule B against each item - except in the case of provincial items are fixed amounts and shall not be varied and that the percentage tendered will be deemed to be above or below these amounts, and that it must be taken that so fax as these items are concerned the contract must be taken as being on a lump sum basis. Similarly it will be noticed that Sch. D makes it clear that the rates mentioned in it shall be used for pricing variations and additions. The contention that, if at all, there was any assurance that the rates mentioned in Schedule D are of the same standard of values as those mentioned in Schedule B, the assurance can be taken advantage of in pricing variations and additions in respect of which the contract was not on a lump sum base but not the contract on the basis of Schedule B on a lump sum basis, is not also without substance (sic). There is therefore much that could be said in favour of the view taken by the Arbitrator in preference to that of the learned Judge of the lower court. What, however, the learned Judge of the lower court in cases of this kind should have more profitably-examined was whether any case is made out under S. 30, Arbitration Act to set aside the awards.

6. Under S. 30, Arbitration Act : "An award shall not be set aside except on one or more of the following grounds namely :- (a) that an arbitrator or umpire has misconducted himself or the proceedings; (b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under S. 35; (c) that an award has been improperly procured or is otherwise invalid". The award for instance can be set aside on the ground of corruption of the arbitrator or where the Arbitrator has secret interest with the subject matter of the submission. It is no doubt true that the arbitrator in this case is a military officer and in that sense interested in the contract. But when it was agreed that the differences have to be settled by an arbitrator who is a military officer, it cannot be said that the arbitrator had any secret interest in the subject matter of the submission or in any of the parities. In cases of this kind, as observed by Lord Justice Phillimore in - Smith Coney and Barett v. Becker Gray and Co., 1916-2 Ch. 86 (B) : "In all probability the members of the Tribunal would be if not directly, indirectly, interested in the sense that it might affect other contracts in so far reaching a decision as there may be in this case, but it cannot be helped. The parties have agreed that it should be a condition precedent that there shall be such a tribunal and they must go before the arbitral tribunal, and it is not open to the plaintiffs to take advantage of the fact that third parties whose flat is necessary are interested". "We may add here that in this case no objection was taken for submitting the differences to the particular arbitrator who has given the award, and in fact during the course of arguments it was made clear that no objection is being taken to this person having acted as arbitrator. What has, however, been seriously contended is that the disputes between the parties are not such as coming within the scope of any of the clauses of the contract between the parties under which the reference was made. There can hardly be any doubt that the arbitrator would be acting without jurisdiction in cases in which parties had not agreed that the matters in dispute should be decided by an arbitrator. In this case, however, Clause 35 of the contract states. "All other disputes and differences the settlement of which is not provided for under any other clause of this contract and which shall arise either during the progress of the work or after completion thereof concerning the work or the execution or maintenance thereof or the construction or meaning of these conditions of contract or as to any other matter arising out of or relating to the contract or the work to be executed or payments to be made in pursuance thereof shall be referred to the arbitration. The disputes between the parties are clearly with reference to the payments to be made in pursuance of the contract, and it is equally clear that the matter has been agreed to be settled by arbitration. What is however contended is that Clause 18 of the Contract provides for rectification of errors, omissions or wrong estimates discovered in the Bills of Quantities, and as such the dispute between the parties is covered under this Clause of the contract. Therefore, the dispute between the parties is whether Clause 18 excludes Clause 35 of the Contract, and Clause 35 which refers to cases other than, those provided in other clauses is not applicable. This is a case in which the parties are at variance in respect of "the matter arising out of, or relating to the contract" referred to in Clause 35. "We may here refer to the decision reported in - Ruby General Insurance Co. Ltd. v. Pearey Lal Kumar, AIR 1952 SC 119 (C) that : "Where one party relying on the arbitration clause in a policy of insurance says that there has been a breach of its terms and the other party, also relying on that clause, says that there has been no breach but on the other hand the requirements of that clause have been fulfilled, the point in dispute between the parties is one for the decision of which the former is compelled to invoke to his aid one of the terms of the insurance agreement and so the difference between the parties is a difference arising out of the policy within the meaning of the arbitration clause and the arbitrator has jurisdiction to decide it". Moreover, even if it is assumed that Clause 18 of the contract is applicable to this case, all that could be said is that the party affected is entitled to certain rectification. It is not stated there how the party affected should obtain relief if differences arose between them. Clause 13 is not the clause which provides for the settlement of disputes and differences. Clause 35 is therefore clearly applicable and the parties were bound to refer to arbitration the claim of one of them for rectification under Clause 18. Since the parties have referred their disputes to arbitration without any objection, other than the untenable objection that the dispute is not one that comes under Clause 35, it cannot be said that the award is liable to be set aside on this ground either.

7. However, the award could also be set aside on the ground that the arbitrator improperly rejected to receive evidence, and it is contended in this case that evidence has not been allowed to be let in. It must however be stated that it is not made out, as has been contended by the Government, that the contractors offered to let in evidence and still less they tendered any evidence. As observed by Jai Lal, J. in the case reported in - Ganga Sahi v. Karim Bakhsh, AIR 1926 Lah 584 (D) that : "It is not the duty of the Court suo motu to fix a date for evidence in support of the objections to an award filed in Court. It is for the parties to move the Court if they want to produce evidence". This observation is no doubt with reference to the duty of the Court. But it is equally applicable to the case of an arbitrator. As observed in - Manindra Nath v. Mohanunda Roy, 13 Ind Cas 161 (Cal) (E), in order to make out a case entitling a party to impeach an award on the ground that the arbitrators improperly refused to take the evidence of an important witness, the witness must be distinctly tendered to the arbitrator.

8. One other contention that appears to have been raised before the lower court is that the award could also be set aside on the ground that it is based on materials not placed before him. But the findings of the arbitrator are supported, as already observed, by what is stated in Ext. A and Schedules B and D. There is no substance in this contention also. It has not been shown that there has been any judicial misconduct of the arbitrator and that he deliberately and intentionally misinterpreted the law. The learned District Judge was not therefore right in setting aside the award. The appeals are allowed with costs, the awards are ordered to be filed in court and there shall be decrees in accordance with the terms of the awards. Advocates fee Rs. 25/- in each case. Appeals allowed. AIR 1954 MYSORE 49 (Vol. 41, C.N. 23) "D. Siddaiah v. S. Rudrappa" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) D. Siddaiah and another, Appellants v. S. Rudrappa and another, Respondents. Misc. Appeals Nos. 33 and 34 of 1953, D/- 11 -8 -1953, against orders of Election Commr., Chitaldrug, D/- 27 -4 -1953 and 24 -4 -1953. (A) Mysore Town Municipalities Act (8 of 1933), S.20 - MUNICIPALITIES - LIMITATION - GENERAL CLAUSES - Municipalities - Period prescribed expiring on day when Courts are closed. Limitation Act (9 of 1908), S.4. General Clauses Act (10 of 1897), S.10. If a Subordinate Judge is appointed Election Commissioner he can be deemed to be a Court for the purpose of S. 4, Limitation Act and, therefore, if the time prescribed by S. 20 expires on a day when the Civil Courts are closed an election petition can be filed on the day the Courts re-open. At any rate, S. 10, General Clauses Act will operate to save petition from being barred by time. 3 Mys LJ 253; 8 Mys LJ 281 and 13 Mys LJ 116, Disting. (Para 3) Anno : Limitation Act, S. 4 N. 6b; General Clauses Act, S. 10, N. 3. (B) Mysore Town Municipalities Act (8 of 1933), S.13, S.208(2)(b) - MUNICIPALITIES - ELECTION - Municipalities - Rules under - R.5 - Contents of Electoral Roll cannot be questioned before Election Commissioner. The policy of the Legislature and the rule making authority in framing the Act and the Rules thereunder as well as the entire scheme of elections is clearly opposed to allowing questions being raised before the Election Commissioner with regard to the contents of the Electoral Roll. The Election Commissioner is, therefore, wrong in going into the question of the age of the voters and reversing the result of the election on the basis of his finding on that point. Case law discussed. (Paras 5 and 8) Cases Referred : Courtwise Chronological Paras (A) 3 Mys LJ 253 2 (B) 8 Mys LJ 281 2 (C) (34) 13 Mys LJ 116 (117, 118) 2 (D) (V 17) AIR 1930 PC 54 (55) : 54 Bom 216 (PC) 4 (E) (V 15) AIR 1928 Mad 1077 (1081) : 115 Ind Cas 59 4, 7 (F) (46-47) Misc. A No. 45 of 1946-47 (Mys) 5, 7 (G) (1901) 5 OM and H 135 6, 7 (H) (1874) 9 LR CP 734 (750) 6, 7

V. Krishnamurthy, for Appellants; Nittoor Srinivasa Rao, for Respondents. Judgement VASUDEVAMURTHY, J. :- These two appeals arise out of two orders passed by the Subordinate Judge, Chitaldrug who is the Election Commissioner for the area concerned. On applications filed before him, by the Respondents in these two appeals, he set aside the declaration of the Returning Officer whereby the Appellants had been declared duly elected to the Nayakanahatti Town Municipal Council from the first and eleventh division respectively. The difference between them and the Respondents was only one vote in the first case and four votes in the second. In the applications before the Election Commissioner the Respondents complained that this difference represented the votes of certain persons who were not qualified to vote under S. 12 of the Mysore Town Municipalities Act, which governs the elections. Under that section the voters must have attained the age of 21 years in the official 1954 year preceding that in which the election roll is published before they can have their names included in the voters list. The Election Commissioner found that 4 voters in one case and one voter in the other were less than 21 years of age at the relevant time and that in those votes were excluded from computation, the Appellant in Mis. A. No. 34/1953 would fail as the Respondent would be found to have one vote in excess. In Mis. A. No. 33/1953 he found that they would be polling an equal number of votes. He therefore drew lots and declared the Respondent in that appeal as having succeeded as a result of such drawing.

2. It is contended by Mr. Krishnamurthi, learned Counsel for the Appellants that the applications challenging the election were made in these cases after the expiry of 10 days provided in S. 20, Mysore Town Municipalities Act. The result of the election was declared on 23-3-1952 and the applications were filed on 12-5-1952 when the Civil Courts in the State were reopened after the summer vacation which commenced that year on 1-4-1952. The Election Commissioner has found that the applications were saved from the bar of limitation on account of S. 4, Limitation Act. It is urged by Mr. Krishnamurthi that the learned Election Commissioner was really a persona designata though it happens that he is a Subordinate Judge in a Civil Court and that as in the present case he happens also to be the First Class Magistrate of the station and was present in that area during the concerned period, the Respondents could not say that they could not have presented their applications to him within time. He has relied on - 3 Mys LJ 253 (A); - 8 Mys. LJ 281 (B); - Abdul Aaeez v. Basheer - Ahmed, 13 Mys LJ 116 (C), where no doubt it has been held that the Election Commissioner was a persona designata for the purpose of determining the elections concerned under Municipal Acts. Those cases were, however, concerned with the question whether appeals or revisions lay to this Court in accordance with the Code of Civil Procedure from his orders. Those cases cannot obviously have much bearing on the question before us.

3. Section 4, Limitation Act provides that where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed the same may be made on the day when the Court re-opens. Prima facie no doubt the reference is to a Court and whether the Election Commissioner is a Court is a matter for consideration. If the Subordinate Judge of the concerned area has been appointed Election Commissioner it is difficult to see why he should not be deemed a Court for that purpose. It is provided by the same section that the Code of Civil Procedure shall as far as possible be followed in the enquiries before him. It is not disputed that there was no office of the Election Commissioner as such open at the concerned time for such applications being lodged. The applications were to be accompanied by a deposit of Rs. 50/- and there was no arrangement made for the receipt of that money by him or in his office during the period of the summer vacation. Moreover under S. 10, General Clauses Act where any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the nest day afterwards on which the Court or office is open. We think that that section if not S. 4, Limitation Act clearly operates to save the present applications from being barred by time and we agree with the learned Subordinate Judge that they were in time.

4. Mr. Krishnamurthi next contends that the learned Election Commissioner was not justified in going behind the entry in the Electoral Roll and examining the eligibility of the person included therein to vote on the basis of the age mentioned therein. Under Rule 5 of the Mysore Town Municipal Election Rules framed under S. 13(1) and S. 208(2)(b), Mysore Town Municipalities Act the Electoral Roll shall contain the age of each elector in addition to other qualifications such as his name, the name of his or her father or husband as the case may be, the sex of the elector and the number of the house at which he resides. Elaborate provisions are contained in clauses 6 to 9 for the publication of the preliminary Electoral Roll, the lodging of claims and objections and to the enquiry into them by the Returning Officer and his amending the Electoral Roll in accordance with his decision. Under R. 10 the orders passed by the Returning Officer under Rr. 8 and 9 are declared to be final and the final Electoral Roll is to be published under R. 11. Under S. 13(2), Mysore Town Municipalities Act at every election of Councillors every person enrolled in the Municipal Electoral Roll as for the time being in operation under Sub-S. (1) shall be deemed to be entitled to vote and every person not so enrolled shall be deemed to be not entitled to vote. Mr. Krishnamurthi has referred to a case in - Commr. of Income Tax, Bombay v. Bombay Trust Corporation Ltd., AIR 1930 PC 54 (D), where interpreting the words "deemed to be" in the Indian Income-tax Act their Lordships of the Privy Council have observed that where a person is "deemed to be" something the only meaning possible is that whereas he is not in reality that something, an act of Parliament requires him to be treated as if he were. The Appellant is also supported in his contention by a case reported in - Vaidyanatha Thevar v. Murugiahan Chettiar, AIR 1928 Mad 1077 (E). In that case which related to an election under the Madras Local Boards Act it was pointed out by Devadoss, J. that the question whether a person was a member entitled to vote or not was to be determined by proper proceedings under S. 57. When that course was not adopted, it was not open to a Court which holds an election enquiry to go into the question which might and ought to have been determined before a different forum. Section 57 prescribed the forum for the determination of such question and in the absence of an enquiry under that section the Court which holds an election enquiry must accept the persons who act as members. He has further pointed out that the object of the election rules both under the District Municipalities Act as well as under the Local Boards Act was to avoid a defeated candidate from raising questions as to the qualifications of voters whose names were on the roll of voters and the Court was not permitted to embark upon an enquiry on questions which could have been and ought to have been decided before the final electoral roll was prepared. He thought that it was opposed to all principles to allow one of the candidates to raise an objection to the qualifications of the members when he could have done so before and it was nothing but putting a premium upon pettifogging to allow a defeated candidate to raise such an objection when he finds that the members whose qualification he could have questioned before but whom he expected to vote for him did not vote for him but for the other candidate. We are entirely in agreement with those observations.

5. We think the policy of the Legislature and the rule making authority in framing the Act and the Rules thereunder as well as the entire scheme of elections is clearly opposed to allowing questions being raised before the Election Commissioner with regard to such contents of the Electoral Roll. If it is permitted the Election Commissioner would have to hold an elaborate enquiry, by examining witnesses and adopting the procedure prescribed by the Code of Civil Procedure, about the name of the elector or his father or his sex or age or even the number of the house in which he resides. That could never have been the intention of the Legislature and there is nothing either in the Act or in the Rules which compels us to adopt such a course. In this Court a similar view has been taken in - Mis. A. No. 46 of 1946-47 (F). In that case the Court was dealing with elections to the Representative Assembly and one of the questions that arose for consideration was whether it was open to the Election Commissioner to go behind the electoral roll and ascertain whether the appellant had the necessary property qualification to be a voter in order to find out-whether the notice of candidature of the appellant had been properly accepted. It was held that it was not open to the Returning Officer or the Election Commissioner to do so. Their Lordships were considering in that case R. 9, Representative Assembly Rules which provided that there shall be an electoral roll for every constituency and that no person who is not, and, except as expressly provided by these rules, every person who is for the time being included in the electoral roll for any such constituency shall be entitled to vote in that constituency; and sub-r. (2) of R. 76 which made the decision of the Revising Authority final. They also considered in that connection a case reported in Hammonds Election Cases for India and Burma at page 165 (Bhagalpur North case) and quoted with approval an observation in that case that "if in the opinion of the Commissioner the result of the election has been materially affected by any non-compliance with the provisions of the Act or the rules and regulations made thereunder, the election of the returned candidate shall be void. But the jurisdiction thereby granted is necessarily limited by the definite provisions of R. 9(3) regarding the finality of the order of the revising officer, and we are satisfied that under this rule we are precluded from enquiring into the question of the respondents possession of the necessary qualifications as a voter. We are confirmed in this view by the conviction that the Legislature cannot have contemplated the provision of the cumbrous and elaborate procedure of an election commission to determine simple questions of fact concerning the possession of such qualifications." In the light of the interpretation of the words "deemed to be" by the Privy Council and the wording of S. 13(2), Mysore Town Municipalities Act, the case for the Appellant is, in our opinion, even much stronger than in that case.

6. Mr. Nittoor Sreenivasa Rao has referred to a passage at page 33 in Nanak Chand Pandits Law of Elections and Election Petitions in India, 1951 Edn., where reference is made to - Nawab Sir K.G.M. Faroqui v. M. Habibulla Bahar Chaudhury and others, a case connected with the Bengal Legislative Assembly Constituency. In that case it seems to have been held, distinguishing an earlier case, that the Election Tribunal can go behind the Electoral Roll to ascertain the possession of the actual qualifications by a candidate for entry on the Roll, but the Returning Officer cannot go behind the Electoral Roll. Further on, it is stated that in the Hooghly North-East General Rural Constituency, 1946, - Mohan Lal Mandai v. Radhanath Das and others, the Tribunal tried to distinguish the Bengal Legislative Assembly 1944 case referred to above and held that the Election Tribunal has no jurisdiction to go behind the Electoral Roll where the disqualification of the voter is not of a personal nature. The members of that Tribunal relied on two English Cases, viz. - Pembroke Borough case, (1901) 5 OM and K 135 (G) and - Stowe v. Jolliffe, (1874) 9 L R C P 734 (H). The author has then stated as his conclusion that the correct view is as stated above that the Election Court is entitled to find out whether the statutory disqualifications which bar a person from standing as a candidate from any of the Legislatures exist in a particular case or not.

7. In - Stowe v. Jolliffe (H), it has been held that the electoral roll is conclusive not only on the Returning Officer but also on every tribunal which has to enquire into elections, except only in the case of persons prohibited from voting by any statute or by the common law of parliament, i.e., persons who from some inherent or for the time, irremovable quality in themselves have not. either by prohibition of statutes or at common law, the status of parliamentary electors, such as peers, women, persons holding certain offices or employment under the Crown, persons convicted of crimes which disqualify or the like. This case has been followed in - Pembroke Boroughs Case (G), where Darling, J. has observed at pages 137 and 138 : "And when you say that the Register is conclusive...... what you mean is this, that it is conclusive that the people who are on it have the qualification which entitles them to be there." The views of this Court in - Mis. A. No. 46 of 1946-47 (F) and of Devadoss, J. in - AIR 1923 Mad 1077 (E) are to the same effect.

8. In the light of this discussion the learned Election Commissioner was, in our opinion, wrong in going into the question of the age of the voters and reversing the result of the election on the basis of his finding on that point. We, therefore, allow these appeals, set aside the orders of the Election Commissioner and declare that the Appellants were duly elected. The Appellants will have their costs from the respondents both here and in the Court below (Advocates fee in this Court Rs. 25/- in each case). Appeals allowed. AIR 1954 MYSORE 51 (Vol. 41, C.N. 24) "Deputy Commr. of Sales Tax v. Sreenivasa Setty" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) Deputy Commr. of Sales Tax, Bangalore, Petitioner v. Dharmaprakasha S.V. Sreenivasa Setty and others, Respondents. Civil Petns. Nos. 64 and 73 of 1952-53 and 28 of 1953, D/- 10 -9 -1953. Mysore Sales Tax Act (46 of 1948), S.6, S.3 - SALES TAX - WORDS AND PHRASES - Sales Tax - Exemption of silk from tax by notification - Artificial silk held not exempted. Words and Phrases - "Artificial silk.". Prima facie, artificial denotes what is not genuine or not real and the ordinary rule of construction is to give the word the meaning generally attached to it. To hold that artificial silk is silk would therefore be tantamount to treating the unreal as real. Silk when qualified by the word artificial indicates something which has its appearance and sheen, just as what is called German silver or chemical diamond in popular parlance signify the colour and lustre of these and not the contents thereof. The fact that it passes off as pure silk sometimes in the market and has sometimes escaped assessment is not a good reason to ignore the difference between the two. (Para 3) The notification under S. 6 was as follows. "In exercise of powers conferred by S. 6, Mysore Sales Tax Act, 1948 the Government of His Highness the Maharaja is pleased to direct that (1) the sale of Filature Silk, Foreign Silk and Charka Silk twisted by hand, shall be exempt from taxation under Sub-S. (1) of S. 3 of the said Act." The question was whether the artificial silk manufactured in foreign countries and imported into India, was exempt under the notification : Held that Silk, be it Filature, Foreign or Charka as termed in the notification must be taken to have reference to the thread produced by the silk-worm and not to what is silk-like. The notification therefore was not applicable to artificial silk. (Para 3) Cases Referred : Courtwise Chronological Paras (A) (1884) 12 QBD 224 (229) : 53 LJ QB 165 3 A.R. Somnath Iyer, Advocate-General, for Petitioner (in Nos. 64, 73 and 28); V. Krishna Murthy (in Nos. 64 and 28) and S. Srikantaiya (in No. 73), for Respondents. Judgement VENKATA RAMAIYA, J. :- The Deputy Commissioner of Sales Tax, Bangalore, has under S. 16, Mysore Sales Tax Act referred the following question in C. P. 64 of 52-53 : "Whether in respect of sale of artificial silk manufactured in foreign countries and imported to India, the petitioner is liable to pay Sales tax thereon after 19-11-1948 in view of Government notification No. F1. 4851-S. T. 1-48-26"

2. Substantially the same question has been referred by him in C. P. No. 73 and by the Commissioner of Sales Tax in C. P. 28/53. Arguments were addressed in common on the footing that the answer to be given in each case has to be identical. The claim for exemption from liability in all the cases is based on the interpretation of the terms of Cl. (1) of the notification mentioned in the question. Clause (1) is as follows : "In exercise of the powers conferred by Section 6 of the Mysore Sales-tax Act, 1948 the Government of His Highness the Maharaja is pleased to direct that (1) the sale of Filature silk, Foreign silk and Charka silk twisted by hand, shall be exempt from taxation under Sub-S. (1) of S. 3 of the said Act. Section 3 of the Act provides for levy of the tax and S. 6 for exemption or reduction in rate in respect of the tax by a notification of Government." Of the three kinds of silk referred to therein, Charka silk and Filature silk may be left out as artificial silk is not alleged to be either of these but is said to be Foreign Silk.

3. In support of this it was argued that if the word silk is meant to denote only the fine, soft substance produced by silk worm to form their cocoons the expression Filature Silk itself is wide enough to include local as well as foreign silk and therefore the terms Foreign. Silk would be superfluous unless it is deemed to have reference to artificial silk. The argument implies that all silk is either Filature Silk or Charka Silk and these are exhaustive descriptions of whatever is silk. Assuming this to be true it does not follow that what is not silk must be regarded as silk. In - Hough v. Windus, (1884) 12 QBD 224 at p. 229 (A), Lord Selborne expressed the view of the great masters of law to be "that nothing can be more mischievous than the attempt to wrest words from their proper and legal meaning, only because they are superfluous." Prima facie, artificial denotes what is not genuine or not real and the ordinary rule of construction is to give the word the meaning generally attached to it. To hold that artificial silk is silk would therefore be tantamount to treating the unreal as real. Silk when qualified by the word artificial indicates something which has its appearance and sheen, just as what is called German silver or chemical diamond in popular parlance signify the colour and lustre of these and not the contents thereof. It may be that artificial silk is treated as good as silk on grounds of economy by those to whom the softness by touch and glistening on sight are enough irrespective of the contents of the fabric. The fact that it passes off as pure silk sometimes in the market and has sometimes escaped assessment is not a good reason to ignore the difference between, the two. Silk, be it Filature, Foreign or Charka as termed in the notification must be taken to have reference to the thread produced by the silk-worm and not to what is silk-like. If anything which is not silk was intended to be exempted from taxation the notification should have made it clear as has been done in some other provisions of the Sales Tax Act. In the absence of any such provision and having regard to the sense in which the expression "Artificial silk" is understood, it is difficult to accept the petitioners contention. No other point is raised and since the petitioners conceded that if the notification is held to be inapplicable to artificial silk the answer to the questions formulated has to be in the affirmative against the petitioner in each, case to the effect that they are liable to pay the tax notwithstanding the notification. Advocates fee payable to Government in each reference is fixed at Rs. 50/- as arguments were common to all. Answer in affirmative. AIR 1954 MYSORE 52 (Vol. 41, C.N. 25) "Muniappa v. Subrahmanyaswaraswami Bank" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND MALLAPPA, JJ. ( Division Bench ) Muniappa and others, Petitioners v. Subrahmanyaswaraswami Bank by its Liquidator Venkatachaliah and others, Respondents. Civil Revn. Petn. No. 433 of 1951-52, D/- 27 -2 -1953, against decision of Dist. J., Bangalore in R. A. No. 351 of 1946-47. (A) Provincial Insolvency Act (5 of 1920), S.43, S.37 - INSOLVENT - Annulment - Effect on vesting. If no vesting order is made at the time of annulling an adjudication under S. 43, any property of the insolvent which may have vested in the Receiver reverts to the debtor automatically and the Court cannot thereafter divest the debtor of the property and revest it in another person. 47 Mys 242 (FB), Rel. on. (Para 2) Anno : Provincial Insolvency Act, S. 43 N. 6; S. 37 N. 5. (B) Provincial Insolvency Act (5 of 1920), S.17, S.37 - INSOLVENT - Death of insolvent - Court not passing any order for realization of property - Properties revert to debtor. (Para 3) Anno : Prov. Ins., Act, S. 17 N. 1; S. 37 N. 5. Cases Referred : Courtwise Chronological Paras (A) 47 Mys 242 (FB) 2 C.K. Narayana Rao, for Petitioners; M.P. Somasekhara Rao, for Respondents. Judgement VENKATA RAMAIYA, J. :- This is an application for revision of an order under the Insolvency Act passed by the learned District Judge setting aside the dismissal of two petitions I. A. Nos. IV and V in I. O. 9/36-37 of Chickballapur Munsiffs Court. That case arose on a petition by two creditors for their debtor Settappa and his two sons being adjudged insolvents. The petition was dismissed as against the sons but Settappa was adjudged insolvent on 3-9-40 fixing a period of 6 months for discharge. The creditors had to prove the debts due to them by 25-10-40 but only on 14-12-45 affidavits were filed by petitioners as regards the amounts due to them. An order for the Receiver taking possession of the insolvents properties was passed on 7-3-41 but this was recalled on 9-11-45 by stating that "the vesting order is returned". Later this adjudication itself was annulled on 21-12-45 and subsequently the two applications I. As. IV and V were filed for the administration of the properties. The learned Munsiff dismissed these but on appeal the learned District Judge has set aside the dismissal. The correctness of the appellate order is now in question.

2. As it is conceded that I. A. Nos. IV and V were both filed sometime after the order of annulment was passed, and no order for vesting the properties in any one was passed at the time of annulment, the properties must be deemed to be not subject to the directions of the Court. According to the decision of the Pull Bench in - 47 Mys. 242 (A) "If no vesting order is made at the time of annulling an adjudication under S. 43 any property of the insolvent which may have vested in the Receiver reverts to the debtor automatically and the Court cannot thereafter divest the debtor of the property and revest it in another person." Considering the dates I. As. IV and V are untenable as the properties had by that time reverted to the debtor. To get over this result it is alleged that the insolvent Settappa was dead prior to the annulment and therefore the order of annulment is void. The learned Judge has set aside the order of annulment on this ground. The petitioners in these applications did not ask for the annulment being cancelled and did not allege that owing to the death of the insolvent at the time of annulment this order was defective. Though there is reference to the death in these and some other records, the date of death is not clear. Fact of death, if it be a fact cannot be now put forward to treat the annulment as a nullity and the properties as being still in the hands of the Court.

3. Further S. 17 relied on by petitioners themselves states "If a debtor by or against whom an insolvency petition has been presented dies, the proceedings in the matter shall, unless the Court otherwise orders be continued so far as may be necessary for the realisation or distribution of the property of the debtor." Death of the insolvent is not therefore a bar to the Court making orders if it deems fit for realisation of the property. When the Court does not pass any orders in this behalf the properties revert to the debtor under S. 37.

4. In this view the order of the learned District Judge is set aside and I. As. IV and V are both dismissed. Parties will bear their own costs. Order set aside. AIR 1954 MYSORE 53 (Vol. 41, C.N. 26) "In re Thipperudrappa" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND MALLAPPA, JJ. ( Division Bench ) In re Thipperudrappa and another, Accused, Appellants. Criminal Appeal No. 30 of 1952-53, D/- 30 -7 -1953. Penal Code (45 of 1860), S.34, S.323, S.325, S.326 - COMMON INTENTION - GRIEVOUS HURT - APPLICABILITY OF AN ACT - Applicability. If a person received more than one injury inflicted by two persons, but there is only one injury which amounts to grievous hurt and it is not possible to say which of the two accused committed the injury which amounts to grievous hurt, none of the accused can be convicted for any offence other than simple hurt, unless there is material to show that the grievous hurt was caused in furtherance of a common intention to inflict an injury of that kind. Case law Rel. on. (Para 5) Anno : Penal Code, S. 34 N. 1, 3; S. 323 N. 5; S. 325, N. 3; S. 326, N. 1. Cases Referred : Courtwise Chronological Paras (A) (07) 29 All 282 : 5 Cri LJ 130 2 (B) (V 14) AIR 1927 Lah 831 : 28 Cri LJ 58 2 (C) (V 29) AIR 1942 All 400 : 41 Cri LJ 110 2 (D) (V 28) AIR 1941 Mad 746 : 42 Cri LJ 638 2 (E) (V 29) AIR 1942 Cal 426 (2) : 43 Cri LJ 455 2 (F) (87) 1887 All WN 236 3 (G) (66) Beng LR Sup Vol 443 3

V. Krishnamurthy, (for No. 1) and M. Sadanandaswamy, (for No. 2), for Appellants; Advocate-General, for the Govt. Judgement VENKATA RAMAIYA, J. :- The two appellants have been convicted under section 326 and sentenced to undergo R. I. for 8 years and 6 years respectively. The facts which may be taken to be established by the evidence are that one Kotrappa was beaten in a field near the village Chickamadapura, Challakere Taluk, on the morning of 13-1-1952, moved to the village in a cart within a short time and expired about an hour or two later. In Exhibit P-9 the earliest report of the occurrence the accused are mentioned to be the assailants and this is supported by the evidence of P.W. 14. The direct evidence to show that it is the accused who assaulted Kotrappa is only that of P.W. 14. P.Ws. have said that Kotrappa himself when questioned about the injuries shortly before his death attributed these to beating by accused. One of the witnesses says that the accused were running on the road near the place where Kotrappa was lying injured. From the medical certificate Exhibit P-6 it is seen that accused 1 sustained small injuries on the same day and not improbably while hitting Kotrappa. The learned trial Judge has believed the evidence of P.W. 14 and in the light of other facts referred to we do not see any ground to disagree with the finding that the accused assaulted Kotrappa.

2. The determination of the offences of which the accused can be properly convicted is a point of some difficulty. The charge framed by the Magistrate mentioned it as one under Section 302, I.P.C. This was made subject to S. 34, I. P.C., by the amendment in the Court of Session. The learned Judge did not consider the materials to be sufficient to justify a conviction for murder but adequate for conviction under S. 326, I.P.C. which relates to causing grievous hurt with a deadly weapon. Existence of common intention to assault Kotrappa which is necessary for application of S. 34, I.P.C. may be inferred from the acts of the accused in jointly attacking him. This is not by itself enough to render them guilty of the offences under S. 326 and the fact that Kotrappa subsequently died cannot necessarily imply a common intention to cause death. There is absolutely no proof of any motive for the assault, of what led to it and of the part played by each in the incident. Of the injuries caused to Kotrappa only the first which is a fracture of the skull is serious and such as is likely to cause death in the opinion of the doctor. But for this injury the person may not have died. The evidence does not show who as between the two accused caused this injury. It may be that the common intention was only to give an ordinary beating as indicated by the other injuries and one of the accused suddenly in rage or excitement struck the man on the head. There are cases in which under such circumstances, the accused are convicted under S. 325, I.P.C. - See Emperor v. Bhola Singh, 29 All. 282 (A), - Lal v. Emperor, AIR 1927 Lah 831 (B) and - Nathu v. Emperor, AIR 1942 All. 400 (C). The important factor to be noticed is that the weapons used were cutting instruments or daggers in these cases. In - In re Nachal, AIR 1941 Mad 746 (D), and -Emperor v. Keamatali Sheikh, AIR 1942 Cal 426 (2) (E), notwithstanding the occurrence of death due to the beating, the assailants were convicted under S. 323 on the view that intention to cause death or grievous hurt is not made out. The present case is of this kind as only sticks are said to have been used for the purpose of beating. The sticks may have been thick or thin, hard or soft as the eye-witness does not give any information about these and the sticks are not produced in the case. In view of all this, the offence of which the accused can be properly convicted is that of voluntarily causing hurt punishable under S. 323, I.P.C. The accused are said to have been in detention during the trial and undergone imprisonment for a few days before they were released on bail. The convictions of the appellants under S. 326, I.P.C. are altered to those under S. 323, I.P.C. and the sentence of imprisonment is reduced to the period already undergone.

3. MALLAPPA, J. :- I entirely agree. It has to be observed that the lower Courts often commit, in interpreting S.34 I.P.C., the mistake committed in this case. If, apart from the person who actually causes an injury, other persons are present at the time the injury is caused, it does not necessarily follow that they are also guilty of the offence. Before they could be convicted under S. 34, I.P.C. of an offence committed toy another, it must be proved in the first place that they and he had the common intention, of causing the injury and in the second place the act was committed in furtherance of the common intention. As observed by Mahmood, J. in - Empress v. Dharam Rai, 1887 All W N 236 (F) : "This section was the subject of consideration impliedly in the case of - Queen v. Gorachand Gope, Beng LR Sup Vol p. 443 (G). At p. 456 Sir Barnes Peacock clearly laid down the rule of law that mere presence of persons at the scene of an offence is not, ipso facto, sufficient to render them liable to any rule such as S. 34, enunciates, and that the furtherance of a common design was an essential condition before such a rule applied to the case of an individual person. It was probably In consequence of this expression of view from such a high authority that the Legislature by S. 1 of Act 27 of 1870, repealed the original S. 34; and in substituting another section therefor, inserted the important words in furtherance of the common intention of all as representing the condition precedent to each of such persons being held liable for the crime in the same manner as if it were committed by him alone. This change in the law is very significant, and it indicated to my mind that the original section having been found to be somewhat imperfectly worded, these additional words were introduced to draw a clear distinction that unpremeditated acts done by a particular individual, and which go beyond the object and intention of the original offence, should not implicate persons who take no part in that particular act. We have the opinion of an American Jurist on the point, whom Mr. Mayne, in his Commentary on the Indian Penal Code, quotes (Bishop, S. 439), where that learned author, laying down the rule, goes on to say : But if the wrong done was a fresh and independent wrong springing wholly from the mind of the doer, the other is not criminal therein, merely because when it was done he was intending to be a partaker with the doer in a different wrong. This seems to me to be the right interpretation of the words in furtherance of the common intention of all as they occur in S. 34, Indian Penal Code."

4. The common intention may be proved by showing1 that there was a pre-arranged plan. It may not always be possible to get direct evidence of such a plan. The common intention may have to be gathered from the act or conduct of the person or persons present and other circumstances. But it must be possible from the evidence on record to infer that all the accused had the common intention of committing an act and that it was committed in furtherance of that common object.

5. Five kinds of cases may arise when persons are tried in respect of an act committed by one of them. First there may be single injury inflicted by one of the persons present, but there may be no evidence to show which of them inflicted the injury though it is clear that one of them did so. In a case of that kind unless there are materials for the Court to come to the conclusion that the persons present had the common intention to commit that act and that act was committed in furtherance of that common intention all of them have to be acquitted. Secondly there may be evidence to show that one of the accused committed the act and another person or persons were present when the act was committed. In such a case the person who committed the act can no doubt be convicted. But other person or persons can only be convicted if the evidence justifies the conclusion that they had the common intention of committing the act and it was committed in furtherance of that intention. The third kind of case is where more than one person commit different offences. One might tie guilty of causing a simple hurt, while another might be guilty of causing grievous hurt. In such a case also, while each of the accused can be convicted of the offence he actually committed, none of the accused can be convicted of the offence committed by another, unless it is shown that they had a common intention of committing the act and it was committed in furtherance of same. Fourthly, there may be cases in which a person receives numerous injuries inflicted by all the accused and as a cumulative effect of all the injuries caused by a number of persons the person dies, and not on account of any single injury. In such a case it may have to be inferred that the beating took place in furtherance of the common intention of causing the death of the person and the accused may be convicted of the offence of murder under S. 34, I.P.C. Lastly, there may be cases in which more than one person take part in committing offences but it is not clear what particular offence was actually committed by each of them. For instance, if, as in this case, a person received more than one injury inflicted by two persons, but there is only one injury which amounts to grievous hurt and it is not possible to say which of the two accused committed the injury which amounts to grievous hurt, none of the accused can be convicted for any offence other than simple hurt, unless there is material to show that the grievous hurt was caused in furtherance of a common intention to inflict an injury of that kind.

6. As pointed out by my learned brother in this case there is only one injury which caused the death of the unfortunate injured person, and it is not in evidence which of the accused caused that injury though it is in evidence that both the accused dealt blows with a stick. They can therefore be convicted only of an offence under S. 323, I.P.C. Order accordingly. AIR 1954 MYSORE 54 (Vol. 41, C.N. 27) "N. Sreenivasa v. S. V. Co-op. Bank" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) N. Sreenivasa Murthy, Judgment-debtor-Petitioner v. Sri Vyasarajendra Co-operative Bank Ltd., Decree-holder-Respondent. Civil Revn. Petn. No. 318 of 1953-53, D/- 21 -8 -1953, against order of Judge, Sm. C. C., Bangalore, D/- 24 -7 -1952. Mysore Co-operative Societies Act (52 of 1948), S.65, S.60, S.72 - CO-OPERATIVE SOCIETIES - EXECUTION - LIMITATION - DECREE - Retrospective operation - Execution of award - Starting time of limitation - Applicability of S.48, Civil P.C.. Limitation Act (9 of 1908), Art.182. Civil P.C. (5 of 1908), S.48, S.3(2). Section 65 is retrospective so as to make Art. 182, Limitation Act applicable to application for execution of awards of the Registrar made under the prior repealed Act 7 of 1918. Section 48, Civil P.C. is no doubt mentioned in Art. 182, Limitation Act but the restriction imposed by it affects only execution of decrees of a particular kind in Civil Court. The definition of "decree" does not include an award under the Co-operative Societies Act. The award acquires and is invested with the status of a decree only when a certificate is granted by the Registrar and execution proceedings in the Civil Court are not possible without the certificate. The award remains merely an award till the certificate is issued and proceedings other than those in the Civil Court are provided for to enforce it. Except to the extent allowed in the Act itself, the Civil Procedure Code or the Limitation Act cannot govern those proceedings. The certificate being the basis for the jurisdiction of the Civil Court, S. 48, Civil P.C. can be attracted only after it is granted and by virtue of the grant, it becomes a decree and not before. Where the first application for execution of the award is filed within three years from the grant of certificate and the later applications were all filed within the same time from one another and the last application is not beyond 12 years from the date of the certificate, the execution of the award is not barred by limitation. Case law Ref. (Para 2) Anno : Lim. Act, Art. 182 N. 20, 25; C.P.C., S. 48 N. 10; S. 2(2) N. 5. Cases Referred : Courtwise Chronological Paras (A) 44 Mys HCR 528 2 (B) 47 Mys HCR 230 2 (C) (V 26) AIR 1939 Mad 304 (304) : 185 Ind Cas 230 2 (D) (V 27) AIR 1940 Mad 635 (635) : ILR (1940) Mad 649 2 (E) (V 23) AIR 1936 Bom 396 (367) : 165 Ind Cas 512 2 (F) (V 34) AIR 1947 Bom 370 : (Prs 11, 13) : ILR (1947) Bom 44 2 (G) (V 34) AIR 1947 Bom 375 (Pr 4) : ILR (1947) Bom 143 2 (H) (V 34) AIR 1947 Lah 269 : (Prs 10, 12) : 48 Pun LR 538 2

(I) (V 14) AIR 1927 Cal 853 (854, 855) : 55 Cal 499 2 (J) (V 39) AIR 1952 Mys 127 (Prs 7, 8) : ILR (1952) Mys 221 2 Gulur Sreenivasa Rao, for Petitioner; C.K. Narayana Rao, for Respondent. Judgement VENKATA RAMAIYA, J. :- A question of limitation as regards the enforcement of an award passed under the Mysore Co-operative Societies Act, is raised in this case. As the point involved is considered to be of importance and the decision is likely to affect other proceedings the case has been referred to a Division Bench. The award enforcement of which is objected to as being barred by time was passed on 17-12-1934. On a certificate issued by the Registrar under S. 43, Co-operative Societies Act on 24-11-1942 for execution of the Award in the Civil Court, Execution Case No. 1544 of 42-43 was filed in Hassan Munsiffs Court on 24-5-1943 against the petitioner. No money was realised and the case was dismissed en 4-2-1944. Subsequently on a second certificate dated 25-5-1946 by the Registrar, Execution No. 1470/45-46 was filed in the Court of Small Causes, Bangalore. The petitioner objected to the execution but the objections were over- ruled in an order of 1C-1-1947. Against this order he filed C. R. P. 341 of 1946-47 in this Court. During the pendency of the Revision Petition, there was a compromise as per rajinama filed on 4-12-1947 and the revision petition, was dismissed on 5-1-1948. The amount payable according to the rajinama not having been paid by the petitioner, the respondent Society filed Execution No. 1092 of 48-49 and Execution No. 443/49-50. These were dismissed for default on 24-3-1949 and 2-3-1950 respectively. Thereafter Execution No. 1301-50-51 was filed on 5-1-1951 and the correctness of the order holding this to be in time is now challenged.

2. Section 43(c), Co-operative Societies Act 7 of 1918 provides : "Every order passed........by the Registrar or his nominee or arbitrators on disputes referred to him or them under S. 43(A) shall, if not carried out, (a) be executed on a certificate signed by the Registrar...... by any Civil Court in the same manner as a decree of such Court........" According to the decisions in - 44 Mys H.C. R. 528 (A) and - 47 Mys H.C.R. 230 (B), the period of time within which execution may be applied for is three years under Art. 181, Sch. I of the Limitation Act and time begins to run not from the date of the Award but from the date on which the certificate is granted. There is reference in - 47 Mys H.C.R. 230 (B), to the view in - Subba Rao v. Calicut Co-operative Urban Bank Ltd., AIR 1939 Mad 304 (C), that Art. 182 and not Art. 181 is applicable to such a case and to - Subba Rao v. Calicut Co-operative Urban Bank Ltd., AIR 1940 Mad 83a (D), wherein that view was upheld in appeal. The view of the Bombay High. Court in - Raghavendra Hanmant Rao v. Industrial Bank, Guledgud, AIR 1936 Bom 396 (E), to which importance seems to have been attached on account of the similarity between the Acts in Mysore and Bombay has been explained in other cases as not a clear authority to show that Art. 181 is applicable to the enforcement of awards. In two cases - Bhimsen Hanmant v. Urban Bank, Muddebihai, AIR 1947 Bom 370 (P) and - Muppanna Malkappa v. Shree Gajanan Urban Co-operative Bank Ltd., AIR 1947 Bom 375 (G), it has been definitely held, after a review of the cases bearing on the point that Art. 182 is applicable. To the same effect is the decision in - Anjuman Imdad Bahmi Qarza v. Imam Din, AIR 1947 Lah 269 (H), where an award of 1937 was sought to be executed in 1943. after a number of applications in the interval, Mahajan, J. in the course of the judgment referred to the words "Enforce it as if it were a judgment" as being synonymous with "Enforced in the same manner as a judgment" and to S. 190, Indian Companies Act containing the same words and observed "............the Courts below and the learned single Judge were in error when to the enforcement of the award in question Art. 181, Limitation Act was applied. The article applicable is Art. 182 read with S. 48, Civil P.C." Reference is made in these cases to the construction in-Belvedere Jute Mills Ltd. v. Hardwarimull and Co, AIR 1927 Cal 853 (I), of similar words providing for execution of awards under the Arbitration Act. The application in the present case will be barred by time if Art. 181 applies as laid down in the earlier cases of this Court and be saved from the bar if Art. 182 applies as held by the other High Courts. It is unnecessary to seek a reconsideration of the question as to which is the correct view to be adopted since the Act on the provisions of which the two decisions of this Court were based has since been repealed and replaced by a new Act No. 3 of 1948. Section 65 of this Act which was not found in the previous Act states : "The Registrar or any person empowered by him in this behalf, shall be deemed ..........when passing any orders ........ on any application made to him for such recovery or to take some step-in-aid of such recovery, to be a Civil Court for the purposes of Art. 132 of the first schedule to the Mysore Limitation Act, 1911". Section 72(2) declares "All ........ suits and proceedings instituted under the said Act (the Act of 1918) shall, so far as may be, be deemed to have been ........ instituted under this Act". In - Hassan Co-operative Society v. H.S. Suryanarayanappa, AIR 1952 Mys 127 (J), S. 65 of the new Act is held to have retrospective operation so as to make Art. 182 applicable to application for execution of awards made under the prior Act. Sri Gulur Srinivasa Kao did not contest this but strenuously urged that S. 48, Civil P.C., would operate as a bar as the interval between the date of the award and the present application is more than 12 years. Emphasis was laid on the words in S. 65 : "The Registrar ........ shall be deemed when exercising any powers under this Act ........ to be a civil Court". and on Sub-S. (3) of S. 60 which states : "In computing the period of limitation for execution by a Civil Court of an order passed under S. 52, the time during which proceedings in execution were taken before a Deputy Commissioner on an application m3de under cl. (b) of Sub-S. (1) of S. 54 shall be excluded", in order to show that the period of 12 years has to be computed from the date of the award and that the award must be deemed to be a decree from the date it was passed. No case either of this Court or any other in which the award is held to be a decree either from the inception or before the issue of a certificate for enforcement in the Civil Court has been cited before us. On the other hand, it has been stated in - 44 Mys H.C.R. 528 at p. 535 (A) : "The award by itself without the sanction of the Registrar will not be capable of enforcement and it is only the certificate given by the Registrar that enables a party to apply for realising the fruits of the award. In those circumstances it seems to us to be very unreasonable to hold that though the Registrar may grant the certificate at a later date it must be taken to date back to the date of the award itself". Section 48, Civil P.C. is no doubt mentioned in Art. 182, Limitation Act but the restriction imposed by it affects only execution of decrees of a particular kind in Civil Court. The definition of "decree" does not include an award under the Co-operative Societies Act. The award acquires and is invested with the status of a decree only when a certificate is granted by the Registrar and execution proceedings in the Civil Court are not possible without the certificate. The award remains merely an award till the certificate is issued and proceedings other than those in the Civil Court are provided for to enforce it. Except to the extent allowed in the Act itself, the Civil Procedure Code or the Limitation Act cannot govern those proceedings. The certificate being the basis for the jurisdiction of the Civil Court, S. 48, Civil P.C. can be attracted only after it is granted and by virtue of the grant, it becomes a decree and not before. As the application for execution of the award was filed within three years from the grant of certificate the later applications are all filed within the same time from one another and the present application is not beyond 12 years from the date of the certificate. The objections of the judgment-debtor to the enforcement of the award on the ground of limitation are untenable.

3. The petition is dismissed with costs. Revision dismissed. AIR 1954 MYSORE 56 (Vol. 41, C.N. 28) "Rama Setty v. Ibbanna Setty" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Rama Setty, Appellant v. Ibbanna Setty, Respondent. Second Appeals Nos. 452 of 1949-50 and 59 of 1950-51, D/- 1 -12 -1952, against decrees of Addl. Dist. J., Mysore, in Appeals Nos. 122 and 124 of 1948-49. HINDU LAW - Hindu Law - Minor - Power of guardian to gift minors property. The guardian (in this case, mother) of a minor, the only surviving member of a joint Hindu family, cannot make a gift of the minors property to his sister in connection with her marriage. AIR 1944 Mad 91; AIR 1953 Mad 230, Rel. on. (Para 2) M.P. Somasekhara Rao, for Appellant (in No. 452 of 1949-50) and for Respondent (in No. 59 of 1950-51); V. Krishnamurthy, for Respondent (in No. 452 of 1949-50) and for Appellant (in No. 59 of 1950-51). Cases Referred : Courtwise Chronological Paras (A) (98) 22 Mad 113 (115) 2 (B) (36) 14 Mys LJ 456 (461) 2 (C) (V 31) AIR 1944 Mad 91 (92) : ILR (1944) Mad 418 2 (D) (V 40) AIR 1953 Mad 230 (Pr 15) : 1952-2 Mad LJ 506 2 Rama Setty, Appellant v. Ibbanna Setty Judgement The property in dispute in this case belonged to the joint family of which the deceased father of plaintiff was the manager. After the death of the father, the property belonged exclusively to his son, the surviving coparcener. During his minority his mother made a gift of property now in dispute to her step daughter for what is referred to as "Arisina Kunkama" in accordance with the wishes of her husband as stated in the document Exhibit 18. The appellant in S. A. 452 of 49-50 is a purchaser of the interest of the daughter Veeramma under Exhibit 21. The plaintiff filed a suit for declaration of his title and possession of the plaint schedule properties together with mesne profits.

2. The short point for consideration is whether the guardan of a minor can make a gift of the minors property to his sister in connection with her marriage and this point of law has been answered by the Courts below in favour of the plaintiff and I am inclined to think they are right. It is unnecessary to consider what powers a limited owner has in cases of this kind as that point has not come up for consideration in this case and in fact that point has not come up for consideration in any reported decision of this Court. Though the decision in - Ramasami Ayyar v. Vengudisami Ayyar, 22 Mad 113 (A) dealing with that point has been referred to in - Chenna v. Kempanna, 14 Mys LJ 456 (B), that case has been referred to in order to support the decision in that case that a father has ample powers to make a gift of a small portion of the joint family property about which there is now no difference of opinion. The decisions in - Palaniammal v. Kothandarama Goundah, AIR 1944 Mad 91 (C), which refers to the earlier Madras case makes it clear that : "Although a marriage gift can be made by the manager of a joint family or by a widow succeeding to the property, it cannot be made by the guardian of the only person constituting the family. Such a gift can be validated only if it is made for purposes binding upon the minor". This decision has been followed with approval in - Rangaswami Goundar v. Marappa Gounder, AIR 1953 Mad 230 (D). It may not be safe to extend the power the father or brother has to make a gift of a small portion of the joint family to a daughter or a sister, to the guardian of a minor when the property belongs to the minor as the obligation of the lather or brother to make a gift of the property at the time of the marriage of a daughter or a sister is a moral obligation and not an obligation which could be enforced under the law.

3. Agreeing with respect therefore with the decision of the Madras High Court, I dismiss the appeal in S. A. 452 of 49-50.

4. The connected appeal S. A. 59/50-51 is by the plaintiff for getting mesne profits which the Courts below have refused to grant. As the plaintiffs right to the plaint schedule property has been declared, the Courts had no option to refuse mesne profits. This appeal is therefore allowed. No enquiry however has been held with reference to the quantum of mesne profits prior to suit. But both parties agree that there may be a decree for a sum of Rs. 150/- in respect of mesne profits prior to suit. In the result the judgment dismissing the claim for mesne profits is set aside and there will be a decree for a sum of Rs. 150/- towards mesne profits prior to suit and there will be an enquiry with respect to mesne profits subsequent to suit on an application under Order 20, Rule 12. No order as to costs in this Court. Ordered accordingly. AIR 1954 MYSORE 57 (Vol. 41, C.N. 29) "Abdul Basheer v. Mysore Govt." MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Abdul Basheer Saheb, Plaintiff-Appellant v. Govt. of Mysore by the Chief Secretary to Government, Public Offices, Bangalore, and another, Respondents. Second Appeal No. 218 of 1950-51, D/- 2 -12 -1952, against decree of Dist. J., Shimoga in R. A. No. 32 of 1948-49. Railways Act (9 of 1890), S.77 - RAILWAY - Claim for non-delivery of goods received and not lost, destroyed or deteriorated - Notice is not necessary. (Para 2) Anno : Railways Act, S. 77 N. 3. Cases Referred : Courtwise Chronological Para (A) (36) AIR 1936 Nag 21 (22, 23) : 31 Nag LR Sup 79 3 M.K. Sreenivasa Iyengar, for Appellant; K. Nanjundiah, for Respondent No. 2. Judgement The suit in respect of which this appeal arises was filed for recovery of Rs. 1241-10-6 as the value of 107 bags of salt not delivered, along with other claims such as freight paid, notice charges and interest. It is not disputed that 180 bags of salt were consigned at Bombay Harbour for delivery to plaintiff, on 25-4-44. Of these, 73 bags were delivered to plaintiff on 21-5-44. The remaining 107 bags of sail were not delivered. But on 30-8-1944, as per Ex. D, the Station Master, Shimoga, wrote to the plaintiff that 104 bags of salt would be delivered to him in case he was prepared to receive reasonable compensation for the loss of salt. Plaintiff agreed to receive them and claimed a compensation of Rs. 712/- (vide Ex. E). Evidently no further offer was made to the plaintiff by the Railway authorities as they thought that the compensation claimed was excessive. On 23-4-1945 a notice was issued to the Chief Secretary to the Government of Mysore and the suit was filed on 18-7-1945, i.e., after two months from the date of issue of the notice. The Courts below have dismissed the suit mainly on the ground that no notice was issued to the Railway authorities under S. 61, Mysore Railways Act corresponding to S. 77, Indian Railways Act. They also relied on the fact that it was not shown that the loss occurred on the Mysore Railways.

2. it will be noticed that the fact that the Mysore Railways offered 104 bags of salt in a damaged condition to the plaintiff agreeing to pay reasonable compensation, is more than sufficient evidence to prove that out of 107 bags of salt that had yet to be delivered to the plaintiff, 104 were received in a damaged condition by the Mysore Railways. It is in evidence that these 104 bags of salt were sold by the Mysore Railways and that a sum of Rs. 715/- was realised by their sale. To this extent, it cannot be said that the plaintiffs suit is a suit that required notice under S. 61. Section 61, Mysore Railways Act (equivalent to S. 77) is as follows : "A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railways or to compensation for the loss, destruction or deterioration of animals or goods delivered to be so carried, unless his claim to the refund or compensation has been preferred in writing by him or on his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway." The section is applicable only to a case in which a refund of an overcharge is claimed or to a case in which compensation for the loss or destruction or deterioration of animals or goods delivered to be carried is claimed. This is not a case of the first kind. In this case it could be said that there is loss, destruction or deterioration of salt to the extent of what has not been actually received by the Mysore Railways. But 104 bags of salt were actually received and though received, they were not delivered to plaintiff. To this extent the claim is one for non-delivery of goods received and not lost, destroyed or deteriorated and no notice under the section is necessary.

3. As observed in - Ramlal v. B.N. Rly. Co., Ltd., Calcutta, AIR 1936 Nag 21 (A) : "A notice under S. 77 prior to institution of a suit against a Railway Company, is necessary only in the case of loss, damage or deterioration. A claim of non-delivery may entail the necessity of a notice where such non-delivery may be due to loss of the goods concerned; but where there has been no loss, damage or deterioration, such a notice is not necessary. Where the goods have actually arrived at the destination although there is non-delivery, a notice prior to the institution of the suit for non-delivery is not necessary because the company is not in such a case required to make enquiries as to where the goods were or what had become of them." In this case, to the extent the claim is in respect of the value of the salt actually received, it cannot be said that any notice is necessary. But the same cannot be said in respect of the balance of the suit claim relating to salt not actually shown, or admitted to have been received by the defendant-company.

4. The appeal is, therefore, partly allowed and in modification of the decree of the Courts below there will be a decree for recovery of Rs. 715/- notice charges of Rs. 5-5-6, with interest at 6 per cent, from the date of suit till date of payment. Parties will bear their own costs throughout. Appeal partly allowed. AIR 1954 MYSORE 58 (Vol. 41, C.N. 30) "Kempe Gowda v. Mysore State" MYSORE HIGH COURT Coram : 1 VENKATA RAMAIYA, J. ( Single Bench ) Kempe Gowda and others, Petitioners v. The State of Mysore. Criminal Revn. Petn. No. 116 of 1953, D/- 22 -9 -1953, against order of Special 1st Class Magistrate, Ramanagaram in C. C. No. 49 of 1953. Penal Code (45 of 1860), S.151 - PUBLIC TRANQUILITY - "Lawfully commanded to disperse." The word "lawfully" in S. 151 cannot be construed as having reference only to the authority or competency of the person issuing the command but is to be understood as signifying authority as well as likelihood of disturbance of public peace and if either of these is found lacking, the command cannot be said to be lawful. The command under the section is not to be sought or issued for placing a party whose right to or possession of a land is seriously and bona fide disputed by others in a position of advantage. If the accused persons tried to cut the crops on a land claimed as their own on the strength of registered sale deed, they were entitled to do so and their acts would not properly justify the command as it would be the other party interfering with them who had to be directed to leave the place. AIR 1922 Lah 135, Rel. on. (Para 3) Anno : Penal Code, S. 151 N. 1. A. Cases Referred : Courtwise Chronological Para (A) (V 9) AIR 1922 Lah 135 (137) : 23 Cri LJ 5 3 Shamanna, for Petitioners; Advocate General, for the State. Judgement The petitioners who are six in number have been convicted under S. 151, I.P.C. for having refused to go away when asked to do so by the Police Inspector on 31-12-52 and each sentenced to pay a fine of Rs. 5. The case was tried summarily and this is one of the grounds of objection to the conviction. From, what can be gathered by a perusal of the judgment and the exhibits there is a dispute between the accused on the one hand and one Eregowda on the other about the ownership, possession or both of a land. Eregowda anticipating trouble by the accused being caused to his cutting the crops applied for police help and as apprehended accused went in a body to prevent Eregowda from removing the crop and refused to quit the place as ordered by the Inspector. It is argued that S. 151, I.P.C. has been resorted to with a view to deprive the accused benefit of a trial in the ordinary manner by giving up the complaint alleging serious offences, that the order of the Inspector was not lawful and that the conviction is unjust inasmuch as it implies a punishment for accused staying on a land which is theirs. The judgment in the case does not set forth the points raised or necessary for determination as it should, though the case is tried summarily and proceeds on the view that disobedience to the Inspectors order will suffice to render the accused guilty under S. 151, I.P.C., which reads thus : "Whoever knowingly joins or continues in any assembly of five or more persons likely to cause disturbance of the public peace after such assembly has been lawfully commanded to disperse shall be punished with imprisonment etc. Explanation. If the assembly is an unlawful assembly within the meaning of S. 141 the offender will be punishable under S. 145."

2. The person competent to command and disobedience to whose command constitutes the offence is not mentioned in the section. But S. 127, Criminal P.C. provides : "Any Magistrate or Officer in charge of a Police Station may command any unlawful assembly or any assembly of five or more persons likely to cause a disturbance of the public peace to disperse; and it shall thereupon be the duty of the members of such assembly to disperse accordingly, etc."

3. The condition for making the command is that there should be an assembly of five or more persons and likelihood of a disturbance of public peace. In - Girdhara Singh v. Emperor, AIR 1922 Lah 135 (A), it was held that it is not sufficient that the Magistrate who ordered the assembly to disperse considered it necessary and that for a charge under S. 151, I.P.C. evidence to the satisfaction of the Court must be placed to show that the assembly was in fact likely to cause disturbance of the public peace. The word "lawfully" in. S. 151 cannot be construed as having reference only to the authority or competency of the person issuing the command but is to be understood as signifying authority as well as likelihood of disturbance of public peace and if either of these is found lacking the command cannot be said to be lawful. The learned Magistrate does not seem to have applied his mind to see whether Eregowda or Kempegowda was in his opinion in possession of the land and as to who was entitled to take the standing crop. The command under the section is not to be sought or issued for placing a party whose right to or possession of a land is seriously and bona fide disputed by others, in a position of advantage. If, as is urged for the accused, they tried to cut the crops on a land claimed as their own on the strength of registered sale deed, they were entitled to do so and their acts cannot properly justify the! command as it would be the other party interfering with them who has to be directed to leave the place. There are other provisions in the Criminal Procedure Code which are to be availed of for preventing breach of peace when disputes relating to land are likely to cause it. The circumstances of the present case, in my opinion, did not warrant the Inspector to command the petitioners to leave the place and in that view the accused cannot be said to have been "lawfully commanded" as required in the section. The convictions and sentences are therefore set aside and the accused are acquitted. The fines, if paid, will be refunded. Conviction set aside. AIR 1954 MYSORE 59 (Vol. 41, C.N. 31) "B. Krishnappa v. Bangalore City Co-operative Bank" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) B. Krishnappa, Petitioner v. Bangalore City Co-operative Bank Ltd., and another, Respondents. Civil Petn. No. 15 of 1953, D/- 30 -7 -1953. (A) Civil P.C. (5 of 1908), S.11 - RES JUDICATA - Matter must be directly and substantially in issue. Order by Government negativing resolution of Co-operative Bank remitting portion of debt due from a certain member, mentioning only as a fact findings in another case relating to removal of another member from membership - Case relating to removal treated separately and the question of removal not in issue in the case relating to remission - Held that the order cannot operate as res judicata on the question of removal. (Para 2) Anno : C.P.C., S. 11, N. 7. (B) Mysore Co-operative Societies Act (52 of 1948), S.59, S.62 - CO-OPERATIVE SOCIETIES - OBJECT OF AN ACT - Scope. Under S. 62 an appeal lies only when there is a point of law. Section 59 of the Act is wider in scope than S. 62 and enables Government to call for and examine either of its own accord or at the instance of the aggrieved party, the correctness, legality or otherwise of any order under the Act. The Government has jurisdiction under both sections to make an order approving the resolution, passed by the Bank removing a member, which has been held by the Registrar to be untenable and resort to either of these sections in any case is a matter for its determination. (Para 2) (C) Mysore Co-operative Societies Act (52 of 1948), S.52 - CO-OPERATIVE SOCIETIES - "Dispute." A member is not a salaried employee of the society and is not liable to be dismissed from membership without regard to the provisions of the Act and bye-law, as well as the principles of natural justice. He is entitled to claim intercession of the Registrar when he felt that his membership was sought to be taken away unjustly and a petition filed by him before the Assistant Registrar questioning the validity or propriety of convening the General Body meeting to consider the resolution for expelling him is a dispute under S. 52 of the Act. AIR 1954 Mad 103 (FB), Rel. on. (Para 2) (D) Mysore Co-operative Societies Act (52 of 1948) - CO-OPERATIVE SOCIETIES - Representation in proceedings by elected or appointed representatives. A Co-operative Society like any corporate body can function through its elected or appointed agents and the representations made by a Secretary in a formal proceeding before the authorities cannot be explained away as his own not affecting the society, as he has locus standi in such a proceeding, as a representative of the society and not as an ordinary person, to state anything which may be the basis of a decision. (Para 3) (E) Constitution of India, Art.226 - WRITS - CO-OPERATIVE SOCIETIES - Nature of proceedings. Mysore Co-operative Societies Act (52 of 1948). Order by Government upholding the resolution of Co-operative Bank removing member - Proceedings on an application under Art. 226 against the order is not a proceeding in which the reasonableness of the order can be canvassed. The question is one of jurisdiction and not as to how it is exercised. (Para 4) Anno : C.P.C., Apn. III, Const. of India, Art. 223 N. 1. (F) Mysore Co-operative Societies Act (52 of 1948), S.62, S.59 - CO-OPERATIVE SOCIETIES - APPEAL - Removal of members - Duty of Government hearing appeal. The operation of the bye-laws is subject to the provisions of the Act by virtue of which the resolution of the majority for removal of any one as a member is not final or absolute but is liable to be set aside by the Assistant Registrar. Where he sets aside the resolution on the ground that it had been passed contrary to what was agreed to by the Secretary of the Co-operative Bank before him the Government dealing with the question when it is brought before it cannot ignore the statements made by the Secretary before the Assistant Registrar. (Para 5) (G) Mysore Co-operative Societies Act (52 of 1948) - CO-OPERATIVE SOCIETIES - Removal of members. For the removal of a member it is necessary there should be imputation of something definite to indicate that he is unfit to be a member or that his membership is detrimental to the society and the member concerned should be afforded opportunity to refute the charge before he is sent out. When the resolution for removal does not allege any specific acts or particular grounds against the member service of a notice on him intimating that a meeting would be held to consider the resolution cannot be regarded as sufficient compliance with necessary formalities or even to the requirements of bye-law of the society which vests power in the general body of members to remove a member for acts prejudicial to its interests, credit or reputation. Case law Relied on. (Paras 5, 7) (H) Constitution of India, Art.226 - WRITS - OBJECT OF AN ACT - CO-OPERATIVE SOCIETIES - Scope. Mysore Co-operative Societies Act (52 of 1948), S.59. Orders of Government, however extensive the power of the Government may be under S. 59 of the Co-operative Societies Act, are liable to be questioned on the ground of want of jurisdiction or failure to apply the principles of natural justice. The question of expulsion of a member is a "Dispute touching the business of a Society" and the decisions which would be protected from review by the Courts are constitutional decisions, i.e., decisions pronounced in conformity with the Act the rules and the bye-laws and the principles of natural justice. (Para 8) Anno : C.P.C., App. III, Constn. of Ind., Art. 226 N. 1. Cases Referred : Courtwise Chronological Para (A) (V 41) AIR 1954 Mad 103 : 44 Mad Journal of Co-operation 647 (FB) 2 (B) (1879) 13 Ch D 346 : 41 LT 638 5 (C) (1905) 1905 AC 78 : 74 LJ KB 333 5 (D) (V 39) AIR 1952 SC 192 : 1952 SCR 583 (SC) 8 K.R. Parthasarathy, for Petitioner; C.H. Venkataswami Naidu and Advocate-General, for Respondents. Judgement VENKATA RAMAIYA, J. :- The order which the petitioner wants to be quashed by this Court, in exercise of its jurisdiction under Art. 228 of the Constitution of India, relates to his removal from the membership of the Bangalore City Co-operative Bank, Ltd., Bangalore. The petitioner became a member of the said Bank about 15 years back and in his zeal to promote the interests of the Bank questioned from time to time the propriety of the acts of the Directors in managing the affairs of the Bank and subjected them to proceedings under the Cooperative Societies Act before the Registrar and his Assistants. The remission by the Directors of portions of the debts due by one Sri Kodandaramaiah and some others was an instance of this kind. His objection to the remission was upheld by the Assistant to the Registrar as well as the Registrar and finally by the Government. Thereafter the petitioner was served with a notice stating that a special General Body Meeting would be convened at the request of certain members of the Bank to consider firstly the question of the remission and secondly removal of the petitioner from the membership of the Bank. The petitioner again filed a petition before the Assistant Registrar objecting to these. In the course of those proceedings the then Secretary, Mr. B. Rangaswamy, stated on behalf of the Bank : "that he would acquaint the General Body that the said proposition need not be moved since Sri B. Krishnappa is working in the interest oil the Bank. The petitioner said that excepting Sri Kodandaramaiahs case in proposition No. 1, he will not press the other items." The aforesaid statements bear the signatures of the petitioner and Mr. B. Rangaswamy on 20-9-1949. The Personal Assistant to the Registrar on the same day made an order to the following effect : "In the circumstances the petition is dismissed. Separate orders will issue as regards the discussion of the subject relating to the write off of the amount due by Sri Kodandaramaiah." In spite of this, however, the meeting did go on and by a majority of the members present at the meeting a resolution for removal of the petitioner from the membership of the Bank was passed on 25th September 1949. The Personal Assistant to the Registrar and the Registrar held that the resolution was not proper but on an application lied by the Bank for revision of these orders, the Government approved of the removal in its order dated 18-6-1952 and this is impugned before us.

2. The petitioner who argued the case himself with the facility and force of one accustomed to it, attacked the order firstly on the ground that it offends the rule of res judicata; secondly that the application which led to it was not maintainable, thirdly that it was obtained on malicious ex parte representations and lastly that it is vitiated by errors apparent on the face of the record. The plea of res judicata rests on construction placed on the order passed by the Government negativing the resolution of the Bank for remission of any portion of Kodandaramaiahs debt as also a decision in favour of the petitioner concerning his removal. The proceedings in which the question of remission was considered were treated as separate from those about the petitioners removal and the finding arrived at in the latter was mentioned only as a fact in the other case. As the question of removal was not in issue in the other case and referred to as being dealt with separately the rule of res judicata can have no application to the order in question. The order cannot be held to be defective on the ground that no appeal was filed under S. 62, Cooperative Societies Act, as appeal lies only when there is a point of law, as S. 59 of the Act, which is wider in scope than S. 62 enables Government to call for and examine either of its own accord or at the instance of the aggrieved party, the correctness, legality or otherwise of any order under the Act. The Government, therefore, has jurisdiction under both sections to make the order and resort to either of these in any case is a matter for its determination. As regards errors in the order, it is conceded that the number of the original suit in the civil court referred to as pending is a mistake and that as a matter of fact, there was no order of injunction in a pending case from any Court which could justify the participation of Kodandaramaiah in the meeting. The view that the matter-involved is not a dispute under S. 52 of the Act is, in our opinion, incorrect. The petitioner has by his diligence found a recent decision of a Full Bench of the Madras High Court printed in - Madhava Rao v. Surya Rao, AIR 1954 Mad 103 at p. III (FB) (A), in which the word "Dispute" touching the business of a registered society, has been discussed. Reference is made with approval in the course of the decision to the following observations of the learned Chief Justice in another case : "We fail to see how a dispute raised by one of the members of the society against an action of the society taken at a meeting at the general body of the society in the exercise of a power conferred by one of the societys bye-laws, cannot be said to be a dispute touching the business of the society. On the day when the resolution was passed expelling the petitioner from membership admittedly this matter of expulsion was one of the items of business on the agenda of the meeting. We do not think it extravagant to hold that the expulsion of an undesirable member is also a part of the business of the society. If so, any dispute relating to such an expulsion would be a dispute touching the business of the society." It is significant that there is a parenthesis in S. 52 to denote what is intended to be not a "dispute" by express mention of disciplinary action against paid employees as such. The petitioner is not a salaried employee of the society and is not liable to be dismissed from membership without regard to the provisions of the Act and bye-law, as well as the principles of natural justice. He was entitled to claim intercession of the Registrar when he felt that his membership 7 as sought to be taken away unjustly. We think that the petition filed by him before the Assistant Registrar questioning the validity or propriety of convening the General Body meeting to consider the resolution for expelling him was rightly treated as a dispute under S. 52 of the Act.

3. As regards the resolution passed by the meetings which is relied on in the order for expulsion of the petitioner, it was contended that there was breach of undertaking on the part of the Bank in allowing the resolution to be passed and that it was contrary to the assurance of Mr. Rangaswamy as Secretary before the Personal Assistant. The meeting itself was alleged to have been a packed body of persons set up only to vote for expulsion without giving any consideration to the reasonableness of it. The Directors are said to have exercised overpowering or undue influence over the members so packed, to stifle opposition and with the authorities to have the resolution approved. The statement of parties on the strength of which the application of the petitioner in Dispute Case No. 1 of 52-53 was dismissed do suggest that the question of removal would not be pressed and by reason of this the petitioner is prejudiced as he had neither the benefit of a decision of the matter nor of adherence to it. On behalf of the Bank Sri Venkataswamy represented that the Directors personally voted against expulsion and that it was not within their power to avoid the meeting being held or the resolution being passed. The society like any corporate body can function through its elected or appointed agents and the representations made by a Secretary in a formal proceeding cannot be explained away as his own not affecting the society, as he has locus standi in such a proceeding as a representative of the Bank and not as an ordinary person to state anything which may be the basis of a decision.

4. It is true that as urged on behalf of the respondents this is not a proceeding in which the reasonableness of the order can be canvassed, the question is one of jurisdiction and not as to how it is exercised.

5. The Co-operative Societies Act has made special provisions for the smooth and efficient working of societies and has provided a machinery and procedure for settlement of differences. Relying on bye-laws framed under the Act and particularly on No. 77 which makes it obligatory on the Directors to convene a meeting of the General Body when there is a requisition for it by 200 members, No. 75 vesting supreme authority in all matters affecting the administration in the Bank, which, for the purpose of the bye-laws shall mean the general body of the members of the bank assembled at a meeting : No. 23 under which the Bank shall have power to remove any member for any act which in its opinion is likely to be injurious to the credit, reputation or interest of the Bank, it was contended that whatever may be the grievance against the Secretary or the Directors, petitioner cannot question the right of the members to remove him and power of Government to hold that the removal is necessary or justified. The operation of the bye-laws is subject to the provisions of the Act. By virtue of these very provisions, the resolution of the majority for removal of any one as a member is not final or absolute but is liable to be set aside as was done in this case by the Assistant Registrar on the ground that it was contrary to what was agreed to by the Secretary before him. The notice of the meeting sent to the petitioner appears to be an intimation due to him as an ordinary member like any other and not such as is required when his membership is proposed to be taken away. The resolution in the notice only states "that Sri B. Krishnappa (Petitioner) of .............. be removed from membership under bye-law No. 23 4" without assigning reason for the same. Apart from the difficulty to know the wrongs attributed to him the petitioner says that he did not expect that this resolution was open to discussion after the undertaking of the Secretary in the proceedings before the Personal Assistant. The Registrar therefore in his order dismissing the appeal of the Bank against the order of the Assistant Registrar remarked that the principles of natural justice have not been observed. As to how the import of the Secretarys statement in the previous proceeding was conveyed at the meetings he said that from a perusal of the previous proceedings of the meeting "It is gathered that it was made to appear as personal to the person who expressed the said opinion. Sometimes it has also been stated to be the opinion of the Board of Directors. In the copious discussion that went on regarding the proposition the person who expressed the opinion or gave an undertaking before the lower court is not seen to have pleaded on behalf of respondent. On the other hand some of them have made statements against the respondent." The Government order fails to notice, that while the members as a whole have a right to seek removal of any one, statements made by the Secretary concerning it cannot be ignored and the person sought to be removed has also a right to claim intimation of charges, opportunity for explanation and consideration at a meeting properly held. Robson in his book on Justice and Administrative Law states at page 227 : "The principle of natural justice is that a man shall not be removed from office or membership or otherwise dealt with to his material disadvantage, without fair, adequate and sufficient notice being given to him of what is alleged to his detriment and of having an opportunity of meeting the accusations which are brought against him........ The Courts are extremely zealous in the enforcement of the maxim audi alteram partem and there are innumerable cases in the reports where decisions have been quashed on this ground." Since the resolution for removal does not allege any specific acts or particular grounds against the petitioner, service of a notice on the petitioner intimating that the meeting would be held to consider the resolution cannot be regarded as sufficient compliance with necessary formalities or even to the requirements of bye-law 23. In - Labouchere v. Earl of Wharncliffe, (1879) 13 Ch. D. 348 (B), the expulsion of a member from a club was set aside on the ground amongst others of want of notice of a definite charge. Jessel, M. R. at page 350 posed the question "What ought the Committee of a club to do when the conduct of one of its members is impugned?" and answered "They ought to see what the conduct has been and what excuse or reason can be given by the member for it; and they ought to give notice to that member that his conduct is about to be inquired into and afford him an opportunity of stating his case to them." In - Andrews v. Mitchell, (1905) AC 78 (C) dealing with the expulsion of a member from a Society without a charge and a trial Lord Halsbury observed "....... .You must summon a man and you must give him time to consider what he has got to do and you must give him the charge against him in writing. These are all matters of substance and not mere matters of form." 6. What may be gathered from the materials placed here is that the petitioner has been a critic, rather a severe and sometimes unreasonable critic of the management and often put the Directors to necessity of having to justify their acts. There is no accusation of his being a defaulter or having sought for pecuniary advantage to himself or benefit to others at the cost of the Bank. On the other hand such are the grounds of complaints by him against others which were found in some cases to be justified. The criticism, though distasteful to a class of members, does not appear to be wanton or frivolous as can be seen from some of the orders made by the authorities and appointment of a special officer for the management of the Bank.

7. The Bangalore City Co-operative Bank is a fairly long standing, important institution with a large number of members interested in promoting its reputation and usefulness. The members have a right and duty to see that these are not impaired by any acts of persons entrusted with the management. This is hardly possible unless the members are free to express their views and point out defects before the authorities having control over the administration and working of the Society. If continuance of any one as a member is to depend on the mere pleasure and sufferance of others, any one found inconvenient may be arbitrarily got rid of and this it may lead to elimination of even bona fide protest or healthy opposition against the wishes of the majority. In the interests of the Society and in fairness to the member it is necessary there should be imputation of something definite to indicate that he is unfit to be a member or that his membership is detrimental to the society and the member concerned should be afforded opportunity to refute the charge before he is sent out. These are lacking in the case.

8. However extensive the power of the Government may be considered to be under S. 59 of the Co-operative Societies Act its orders are liable to be questioned on the ground of want of jurisdiction or failure to apply the principles of natural justice. As observed in the Full Bench decision of the Madras High Court, in which as already mentioned, the question of expulsion of a member is held to be a "Dispute touching the business of a Society", the decisions which are protected from review by the Courts are constitutional decisions, decisions pronounced in conformity with the Act the rules and the bye-laws and the principles of natural justice". According to - Veerappa Pillai v. Raman and Raman Ltd.. AIR 1952 SC 192 (D), Art. 226 enables the High Court to issue the writs or declarations referred to therein in grave cases where the subordinate tribunals, bodies or officers act wholly without jurisdiction or in excess of it or in violation of the principles of natural justice.......... or there is an error apparent on the face of the record and such act, omission or error or excess has resulted in manifest injustice. More than one of the several conditions mentioned as necessary are found to exist in this case. In spite of bye-law 23, jurisdiction of the general body to deal with the resolution for removal of the petitioner was not absolute but was subject to the statements of the Secretary with reference to it on behalf of the Bank in the prior proceeding. Even otherwise, the resolution cannot have the sanction of the bye-law as the power of removal can be exercised only when there is allegation of an act about which an opinion of its being likely to be injurious to the Bank can be formed or a serious breach of a bye-law is found. There is no reference to the commission of any act or breach in the resolution for consideration. The meeting at which the resolution was passed is open to the objection of Sri Kodandaramaiah having participated in it, his being allowed to vote and speak in favour of the resolution. Admittedly the restoration of the membership of this person was held to be invalid in the order of Government dated 26-2-49 and there was no order, resolution or decision subsequently by which he could claim to be a member. His presence and participation in the meeting cannot be ignored as there is no certainty of the decision, not being influenced by these. In this context there is an error or excess of jurisdiction affecting the resolution. The order of Government overlooks this and the disregard of the rules of natural justice, manifests errors in assuming facts which are not correct and in holding that the question of expulsion cannot be treated as a "Dispute". It is not just or proper that the petitioner should be deprived of his membership by such an order. The Order of Government G. O. No. A. P. 2469/C.S.4-52-4 dated 13-6-1952 declaring that petitioner cannot continue as a member of 1st respondent Bank upholding the resolution of the General Body is, therefore, quashed. Parties will bear their own costs. Petition allowed. AIR 1954 MYSORE 62 (Vol. 41, C.N. 32) "Abdul Razack v. Syed Abdul Jaleel" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) Abdul Razack Saheb and others, Appellants v. Syed Abdul Jaleel Saheb and others, Respondents. Appeal No. 135 of 1953, D/- 1 -9 -1953, from decree of 2nd Addl. Dist. J., Bangalore, in Original Suit No. 69 of 1948-49. Court-fees Act (7 of 1870), S.7(iv)(f) - COURT-FEE - DECREE - APPEAL - Final decree in a suit for dissolution of partnership and accounts - Appeal by plaintiff - Court-fee. Mysore Court-fees Act (3 of 1900), S.4(iv)(f). In a suit for dissolution of partnership and for accounts the plaintiffs valued their claim in their plaint at Rs. 10,500/- under S. 4(iv)(f), Mysore Court-fees Act (corresponding to S. 7(iv)(f). Indian Court-fees Act) and paid court-fees thereon. A preliminary decree was passed declaring that the firm should stand dissolved and directing accounts to be taken. No appeal was filed against that preliminary decree. Subsequently, after taking accounts through a Commissioner, a final decree was made. By this decree the plaintiffs were directed to pay Rs. 17,591/- and odd to the defendants. In an appeal against the final decree, the plaintiff-appellants valued the appeal at the same value as had been put by them in the plaint in the trial Court and paid court-fee on that sum : Held that there was a money decree now against the plaintiff-appellants for a definite sum of money and that they wanted to get rid of the same and that they should pay court-fee on the amount of the decree; viz.. Rs. 17,591/- and odd. AIR 1941 Bom 242, Relied on; AIR 1943 Mad 685, Not foll.; AIR 1938 Mad 435 (FB) and AIR 1929 PC 147, Expl. (Paras 2, 8) Anno : Court-fees Act, S. 7(iv)(f) N. 2, 7. Cases Referred : Courtwise Chronological Para (A) (V 30) AIR 1943 Mad 685 (685, 686) : 211 Ind Cas 10 3, 3A (B) (V 25) AIR 1938 Mad 435 (438) : ILR (1938) Mad 598 (FB) 3, 3A, 7 (C) (V 28) AIR 1941 Bom 242 (242) : ILR (1941) Bom 477 3, 5, 7 (D) (V 16) AIR 1929 PC 147 (148) : 10 Lah 737 (PC) 3, 5 (E) (V 4) AIR 1917 Mad 668 (669) : 39 Mad 725 (FB) 3A, 4 (F) (V 20) AIR 1933 Mad 330 (331) : 56 Mad 705 3A, 5 (G) (V 18) AIR 1931 Rang 146 (147) : 9 Rang 165 (FB) 4 (H) (1900) 23 Mad 490 (492) : 10 Mad LJ 240 4

(I) 35 Mys CCR 164 : 8 Mys LJ 273 4 (J) (V 16) AIR 1929 Cal 815 (817) : 57 Cal 463 5, 7 Mir Iqbal Hussein and T.V. Govinda Raja Iyengar, for Appellants. Judgement VASUDEVAMURTHY, J. :- The Suit O. S. No. 69/48-49 on the file of the Additional District Judge, Bangalore, out of which this appeal arises, was brought for dissolution of a partnership and for taking of accounts of the same. The plaintiffs valued their claim in their plaint at Rs. 10,500/- under S. 4(iv)(f), Mysore Court-fees Act and paid Court-fee thereon. The defendants admitted the partnership but denied their liability to pay anything to the plaintiffs. They also pleaded that the latter it was who had failed to render proper accounts of the firm. A preliminary decree was passed on 19-8-1950 declaring that the firm should stand dissolved as from 19-3-48 and directing accounts to be taken. No appeal was filed against that preliminary decree. Subsequently, after taking accounts through a Commissioner, a final decree was made on 16-1-53 and the present regular appeal is filed against the final decree. By this decree the plaintiffs are directed to pay Rs. 17,591-5-4 to the defendants respondents. The plaintiffs 2, 3 and 4, who have now appealed, have valued this appeal at Rs. 10,500/- the same value as had been put by them in the plaint in the trial Court and paid court-fee on that sum.

2. The appellants have been asked to pay Court-fee on the amount mentioned in the decree ? viz., Rs. 17,591-5-4. It is contended by them that as they are plaintiffs they can value the appeal in the same way as they did in the suit under S. 4(iv)(f), Court-fees Act. It is of course clear that there is a money decree now outstanding against them for a definite sum of money which they want to get rid of by this appeal and which would otherwise become conclusive without any further accounting or investigation.

3. In support of his position the learned Counsel for the appellants has relied strongly on - Ramadass v. Aripala Narasayya, AIR 1943 Mad 685 (A). That case no doubt supports the appellants and the circumstances of that case were exactly similar to those of the present case and was an appeal from a final decree. In that case Shahabuddin, J. sitting alone purported to follow an earlier case of the Madras High Court in - In re, Dhamukodi Nayakkar. AIR 1938 Mad 435 (FB) (B), in preference to - Kashiram Senu v. Ranglal Motilal, AIR 1941 Bom 242 (C), and he also relied on certain observations of the Privy Council in - Faizullah Khan v. Mouladad Khan, AIR 1929 P.C. 147 (D). He held that in the matter of valuation of an appeal under S. 7(iv)(f). Court-fees Act of 1870, (which corresponds to S. 4(iv)(f) of our Act), the plaintiff-appellant, against whom a final decree for a much larger sum than that for which he had valued his claim in the plaint against the defendant had been made had greater freedom than the defendant-appellant and. could value his reliefs in the appeal also in the same manner in which he could value it in the plaint. 3A. In AIR 1938 Mad 435 (FB) (B), on which he relies Leach, C.J., with whom the two other members forming the Full Bench agreed, held that S. 7 gives greater freedom to plaintiff-appellants than it does to defendant-appellants in the matter of valuing an appeal memo. He observed that when a defendant-appellant appeals against a final decree he knows exactly the value of his relief and must pay a court-fee on the amount of the decree passed against him except in cases, where he appealed only against a portion of the decree. Similarly a defendant appealing from a, preliminary decree for an account has ordinarily to stamp his memorandum according to the plaintiffs valuation. He thought that by compelling, a defendant to follow a plaintiffs valuation hardship was not likely to result as the plaintiff would never be anxious to pay any more court-fee than was necessary. Their Lordships approved of some earlier cases, decided by the Madras High Court including - Srinivasa Charm v. Perindevamma, AIR 1917 Mad 668 (PB) (E) and overruled - In re Venkatanandam, AIR 1933 Mad 330 (F) which had taken a different view. At page 438 the learned Chief Justice has remarked that in the case before them, according to the heading of the memorandum of appeal, the appeal related only to the preliminary decree for an account though at the end of the memorandum there was a note which suggested that the appeal was from a combined preliminary and final decree passed by the appellate Court in a suit for taking of accounts; and it was impossible to state accurately what the net liability of the appellants would be on a proper taking of the accounts, accepting the contention raised in the memorandum of grounds. His Lordship has also referred to the longstanding practice in that Court and the natural reluctance to depart from it when it was not shown that the same was against law. In the course of the arguments it was intimated for the appellants that the intention was to limit the appeal to the preliminary decree, because if that was set aside the final decree would also fail. Therefore the learned Judges held that they saw no objection to the appellants treating their appeal as an appeal against the preliminary decree, if they so desired, but they would have to value their relief in accordance with the valuation in the plaint. This decision cannot be said to lend much support to the conclusion arrived, at in AIR 1943 Mad 685 (A).

4. In C.K. Umar v. C.K. Ali Umar, AIR 1931 Rang 146 (FB) (G) which was another case relied on for the appellants, the respondent had sued the appellant in the District Court for dissolution of an alleged partnership and for accounts. She valued her share at Rs. 15,000/-. But while giving evidence she valued it at Rs. 30,000/- and on the trial Courts order she paid an additional Court-fee. The trial Court found that there was a partnership and passed a preliminary decree for dissolution, accounts and appointment of a receiver. The defendant appealed against the whole decree on the ground that the suit was barred by limitation and that there was no partnership. He stamped his appeal memorandum on a valuation of Rs. 3,000/- only. The Full Bench of the Rangoon High Court held that in a suit for accounts under Cl. (iv) (f) of S. 7, Court-fees Act the plaintiff in the trial Court and the appellant in the Court of Appeal is the person to make an estimate of the value of the relief that is claimed. Page, C.J. thought that neither in - Samiya Mavali v. Minammal, 23 Mad 490 (H) or in AIR 1917 Mad 668 (FB) (E) which follows it and which was a case of an appeal by the defendant against a preliminary decree, the Madras High Court had given any reasons for holding that the value of the relief sought both in the suit and in the appeal from a decree passed therein was to be determined by the valuation which the plaintiff had put upon the relief sought in the plaint. The intention of the Legislature in enacting S. 7(iv) was, according to him, that in cases where it is impossible a priori to ascertain with accuracy the value of the relief that is sought, the plaintiff in the trial Court and the appellant in the Court of Appeal should be the persona designata to make an estimate of the value of the relief that is claimed. He thought the decision of the Privy Council was conclusive on the question. The Rangoon case has no application to the present one as it was an appeal against a preliminary decree; and moreover it is opposed to a decision of our Court. In Mysore in 35 Mys CCR 164 (I) which was an appeal against a preliminary decree in a suit for dissolution of the partnership and accounts, it has been held, following AIR 1917 Mad 668 (E) that in a suit for dissolution of partnership and accounts the plaintiffs valuation in the plaint will be the valuation also for purposes of appeal whether at the instance of the plaintiff or of the defendant unless of course if the appeal is in respect only of a portion of the suit claim.

5. In AIR 1941 Bom 242 (C) the plaintiff brought a suit for an account and paid Rs. 5/- stamp on a notional valuation. Ultimately the suit resulted in a decree against him for a sum of Rs. 6,464-7-0. He appealed against that decree and sought to pay a court-fee of Rs. 5/- on his appeal memo. Beaumont, C.J. and Sen, J. held that as the suit had resulted in a decree for a certain amount against the plaintiff, the appeal was not merely for an account but was an appeal against a money decree and the plaintiff must at any rate stamp his memorandum of appeal with ad valorem stamp in respect of the amount of the decree. He may add a nominal amount in respect of any further relief claimed which may accrue by reason of the account being taken on a different basis from that adopted by the lower Court; but the stamp on the memorandum of appeal must cover the amount of the decree which is standing against the appellant and which he seeks to have set aside. The appeal with which they were concerned was from a final decree. They also referred to the observations of the Privy Council in AIR 1929 PC 147 (D) and considered that those observations did not stand in the way of their coming to the conclusion they arrived at. They differed from the interpretation put on the Privy Council decision by *the Full Bench of the Madras High Court in AIR 1933 Mad 330 (P). They quoted with approval the case in - Kantichandra v. Radharaman, AIR 1929 Cal 815 (J) though it was one of a final decree against the defendants and the defendants had appealed. *The decision in AIR 1933 Mad 330 is not a decision of a Full Bench but a decision of a Division Bench. AIR 1933 Mad 330 war, overruled by a Full Bench in AIR 1938 Mad 435. - Ed.

6. The Privy Council case AIR 1929 PC 147 (D) was a suit for a partnership account in which the plaintiffs had claimed Rs. 3,000/- and had valued the suit accordingly. The trial Court found that Rs. 19,000/- were due to the defendants by the plaintiffs and that no sum was due to the plaintiffs in respect of their claim for Rs. 3,000/-; the plaintiffs appealed valuing their appeal for purposes of Court-fee at Rs. 19,000/-. The question was raised whether the plaintiffs should not value their appeal at Rs. 19,000/- plus Rs. 3,000/- i.e. Rs. 22,000/-. Their Lordships of the Privy Council held that the Court-fee already paid was sufficient. They observed that "the amount of Rs. 19,000/- may be not only in full but largely in excess of the true sum of relief at which a sound valuation could, in the present circumstances, be said to reach and it covered the appeal as a whole including that sum on the one hand and a much smaller figure of Rs. 3,000/- on the other." It is this observation that has led to the difference of opinion between the Madras and Bombay High Courts. We do not think that that decision can be interpreted as laying down that the plaintiff can value his relief at the original notional or approximate figure which he mentioned in his plaint even when the claims of the parties have been settled and declared by a final decree which the party affected must get rid of by means of the appeal.

7. The matter may also be viewed in another aspect. If the appellants secure relief in this Court by its being declared that they are not due in the sum of Rs. 17,591-5-4 to the defendants and are not entitled to recover anything from them and the appeal is dismissed, there is no provision in the Mysore Court-fees Act by which they can be compelled to pay later on any Court-fee on the substantial relief which they would have secured. The position is different in the case of a preliminary decree as S. 8, Court-fees Act provides for Court-fee being recovered on any excess over and above the figure put in the plaint for purpose of valuation. As observed in AIR 1938 Mad 435 at p. 438 (B) it has never been questioned in the High Courts of India that a defendant appealing against a final decree should pay Court-fee on the amount decreed against him except in cases where he appeals only against a portion of the decree; see AIR 1941 Bom 242 at p. 243 (C) and AIR 1929 Cal 815 (J). And it is difficult to see anything in S. 4(iv)(f) which would justify a difference in treatment between the case of the plaintiff and that of the defendant who is appealing against a final decree. The decision in AIR 1941 Bom 242 (C) is also in accord with the usual practice of this Court and we are inclined to follow that decision.

8. The appellants are, therefore, directed to pay ad valorem Court-fee on Rs. 17,591-5-4. They are given one months time to make up the deficient Court-fee. Order accordingly. AIR 1954 MYSORE 65 (Vol. 41, C.N. 33) "Abdul Wahab v. Ramakrishniah" MYSORE HIGH COURT (FULL BENCH) Coram : 3 VENKATA RAMAIYA, BALAKRISHNAIYA AND MALLAPPA, JJ. ( Full Bench ) Abdul Wahab and others, Defendants Nos. 1 to 4, Petitioners v. Ramakrishniah, Plaintiff-Respondent. Civil Revn. Petn. No. 237 of 1948-49, D/- 31 -3 -1950, against order of 1st Addl. Sub-J., Bangalore, D/- 30 -9 -1948. Civil P.C. (5 of 1908), O.22, R.3 and S.151, S.152, S.153 - LEGAL REPRESENTATIVES - INHERENT POWERS - AMENDMENT - Failure to cause legal representative to be brought on record - Effect and remedy. On the death of the appellant, an application to be brought on record was filed by his legal representative; notices were issued and objection to the application was filed by the respondents but the Appellate Court, without passing any order on that application, heard the appeal on merits and remanded the cause for fresh disposal. The trial Court finding that there was no living plaintiff on record to prosecute the suit, dismissed it. Revision against this dismissal was also dismissed. Subsequently, the legal representative filed application to the lower appellate Court under Ss. 151 and 152, Civil P.C. with the prayer that order be made to bring him on record and the suit be proceeded further. The lower appellate Court allowing the application, directed the trial Court to take suit on file and dispose of as directed by previous remand. On revision held. (Per Venkata Ramaiya and Malappa, JJ., N. Balakrishnaiya, J., contra) : Under O. 22, R. 3, all that the person desirous of proceeding with the case has to do is that he should make an application. The further acts are left to the Court. Where no order is passed by the Court and the applicant also did not press the need for a formal order the omission on the part of the applicant will not take away his right to proceed with the case as there is no duty cast on him by the rule to remind the Court of observance of the rules. In this view, the proceedings in the appeal after the death of the original appellant were not regular and valid. Since the omission on the part of the lower appellate Court placed both parties in a disadvantageous position, Ss. 152 and 153 provided the cheap and speedy remedy and the Court had inherent jurisdiction to correct the mistake. But the question here was who the real legal representative was and the order under S. 151 was passed without giving an opportunity to the defendants respondents to show that the applicant was not the legal representative of the deceased appellant. The High Court, therefore, directed the lower appellate Court to dispose of the case after hearing both parties and to decide the appeal treating the subsequent proceedings as of no effect. (Paras 25, 26, 27) Per N. Balakrishnaiya, J. : S. 151, Civil P.C. cannot be employed to assume jurisdiction to set aside a decree passed in subsequent proceedings when there is no appeal against those proceedings. Besides, the applicant legal representative having been represented by the counsel in the appeal and also in further proceedings, he could not approach the appellate Court which had ceased to have any jurisdiction and get the subsequent decree set aside by a mere application under S. 151. The proceedings were not a nullity, and the proper course was to take proceedings against the final disposal of the suit by the trial Court. (Paras 28-30, 32, 33, 34) Anno : C.P.C.; O. 22, R. 3 N. 9; S. 151 N. 4; S. 152 N. 6, 7, 8; S. 153 N. 2. Cases Referred : Courtwise Chronological Paras (A) (93) 1893 All WN 181 4, 11, 25, 31, 36 (B) 10 Mys LJ 269 5 (C) (11) 9 Ind Cas 977 (All) 5 (D) (V 22) AIR 1935 Pat 4 : 158 Ind Cas 56 5 (E) (V 3) AIR 1916 Cal 690 : 29 Ind Cas 470 5 (F) (V 16) AIR 1929 Mad 802 : 52 Mad 933 17, 18, 26 (G) (V 24) AIR 1937 Bom 401 : ILR (1937) Bom 602 17, 18, 19, 20 (H) (V 14) AIR 1927 Cal 76 : 53 Cal 844 19, 20

(I) (V 13) AIR 1926 All 212 : 48 All 356 20 (J) (V 31) AIR 1944 Lah 165 : 216 Ind Cas 97 20 (K) (V 22) AIR 1935 Lah 176 : 158 Ind Cas 102 20

(L) (V 11) AIR 1924 All 818 (2) : 46 All 864 20 (M) (1892) 1892 AC 547 : 62 LJ PC 24, 26 (N) (1903) 72 LJ PC 44 : 1903 P 88 26 (O) (V 19) AIR 1932 Oudh 291 : 8 Luck 93 26 (P) (47) 52 Mys HCR 33 35 B.V. Balaji, for Petitioners; B. Neelakanta, for Respondent. Judgement ORDER OF REFERENCE The petitioners before this Court are the respondents in R. A. No. 147 of 44-45 on the file of the First Additional Subordinate Judge, Bangalore. The first respondent herein is one Ramakrishnaiah who died on 9-1-1945 when the appeal was pending before the lower Court. The said Ramakrishnaiah filed a suit on 6-11-43 for declaration and possession of the suit schedule properties in the Court of the Munsilf of Dodballapur. The suit was dismissed on 7-11-1944. The said Ramakrishnaiah filed an appeal on 3-1-1945 before the District Judge, Bangalore and on 19-1-1945 it was reported to the Court that the appellant was dead. The case was adjourned to 29-1-1945 to bring the legal representative on record. I. A. No. 1 was filed on 29-1-1945 to bring one Ramachandriah as the legal representative of the deceased Ramakrishnaiah. Notices were ordered on 29-1-1945 to be served by 26-2-1945. In the meanwhile, on 30-1-1945 the appeal was transferred by the District Judge to the Subordinate Judge who issued notices to the respondents and after service the appeal was disposed of by arguments on 30-3-1946 with the result, that the dismissal order of the trial Court was set aside and the suit was remanded by allowing the amendment application of the defendant for fresh disposal according to law. After remand, objections were taken in the trial Court that there was no living plaintiff represented in the suit and that the suit was dismissed as there was no party to prosecute the suit. Against that order, C. R. P. No. 115 of 47-48 was filed.

2. It may be observed here that no notices were served on the respondents to give intimation of the L. R. application filed by Ramachandriah with the result that the application was lost sight of by the appellant and the Court. No final orders were passed nor any legal representative brought on record before the appeal was disposed of on merits. In the revision petition above adverted to, the High Court observed that since no orders were passed on the L. R. application which was necessary for the progress of the case, the suit ended in dismissal in the Munsiffs Court and that the mere filing of the petition will not entitle the petitioner to proceed with the suit. That being so, the High Court declined to interfere with the order in re vision with an observation that the petitioner may seek his own remedy in other proceedings according to law. The petitioner then filed an application before the First Additional Subordinate Judge (Court of Small Causes), Bangalore under Ss. 151 and 152, Civil P.C. Objections were called for and filed by the defendants on 11-6-1948. The main points urged are that the petitioner has no locus standi to maintain the application as lie was not a party to the proceedings and the application was belated. It is also stated in the objection statement that the deceased Ramakrishnaiah has left behind him his wife and children and the status of the petitioner also is disputed. The learned Subordinate Judge states that the default in not having brought the legal representative on record constituted an error or omission on the part of the Court and on that ground he allowed the application and made, what he calls, a formal order directing Ramachandriah to be brought on record as the legal representative of the deceased appellant. He further directed the lower Court to take the suit on file and dispose it of as directed in the remand order of that Court dated 30-3-1946. In effect, the order on this application constitutes a reversal of the judgment and decree of the Court below which cannot be clone under the guise of correction of an error or omission, under Ss. 151 and 152, Civil P.C.

3. Sri B.V. Balaji, learned counsel for the petitioners contends that at the time of arguments his party never knew the death of the appellant and the case went on as if the appellant was alive. If, as a matter of fact, the appellant was dead on that date, the judgment and the further proceedings are a nullity. The omission to bring the legal representative on record within 90 days from the date of the death of the appellant should automatically operate as abatement of the suit. It cannot be that the legal representative of the appellant could be brought on record more than two years after the death of the appellant and as such, the interference of the lower appellate Court below works prejudice so as to take away the right which is vested in his clients.

4. Sri B. Neelakanta contends that the legal representatives application was pending in the Subordinate Judges Court and it was not finally disposed of. As it is an omission without disposal, the trial Court has still jurisdiction to rectify the omission; otherwise, the plaintiff will have no remedy and suffers loss and damage. Sri Neelakanta relies upon some cases to substantiate his position. One such is reported in - Namdar Chand v. Bansidhar, 1893 All WN 181 (A), wherein similar circumstances arose, the Court held that on the death of one of the defendants, no application to bring the legal representatives was filed, but vakalats were filed on behalf of the legal representatives, with the result that both the parties took part in the further proceedings as if the legal representatives were brought on record though an order to bring the legal representatives was not expressly passed. So, the objection that the legal representative was not brought on record was considered to be a technical one and overruled.

5. Sri Balaji on the other side, relies upon - 10 Mys L J 269 (B); - Badal Khan v. Murtaz, 9 Ind Cas 977 (All) (C); - Phekhu Tewari v. Bhagwat Lal, AIR 1935 Pat 4 (D) and - Romesh Chandra v. Anthony Penheiro, AIR 1916 Cal 690 (E). The effect of these decisions is that the suit abates if the legal representative is not brought on record within time.

6. The important point for decision is whether the Subordinate Judge who dealt with the appeal was competent under Ss. 151 and 152, Civil P.C., to direct the legal representative to be brought on record after the disposal of the appeal and after the suit was dismissed in the trial Court when he was not actuary seized with jurisdiction und whether in view of the fact that the judgment was passed with a dead person on record and it the further proceedings are to be ignored altogether the appellate Judge could have jurisdiction to amend the decree by bringing the legal representative on record. This point does not appear to be free from difficulty and I feel that since no other precedent except the All. Weekly Notes above referred to, was quoted before me during arguments and since there is no other case also of our own High Court bearing specifically on the points raised, it appears desirable to refer the matter to a Bench for a considered ruling on the point.

7. The petition is, therefore, directed to be placed before a Bench for disposal. ORDER OF THE DIVISION BENCH. 8-10. N. BALAKRISHNAIYA, J. :- (After stating the facts of the case his Lordship proceeded :) Sri Balaji, the learned counsel for the petitioners, urges that the application I. A. No. III which is filed under S. 151, Civil P.C. is not maintainable as the learned Subordinate Judge was not seized with the jurisdiction of the appeal at that stage and that the order of the learned Subordinate Judge has the effect of not only setting aside the judgment of his own Court but has also the effect of setting at naught the decree of the trial Court which was passed subsequently in consequence of the original order of remand. The contention of Sri Balaji is not without force. It is no doubt true that the Courts, have inherent powers to review their own orders or correct their own mistakes, but that when the suit is otherwise finally disposed of by the trial Court, the appellate Court cannot without an appeal against the disposal of the trial Court interfere under S. 151, Civil P.C. and make an order in the manner in which it is done in this case. In I. A. No. III no prayer is made for setting aside the judgment remanding the suit nor is there any prayer to set aside the judgment of the trial Court. In fact, the appellate Court has made no order setting aside the decree of the trial Court but that it gives a direction that the suit may be taken to the file and disposed of as directed in the original decree of remand.

11. It is to be noticed from the records of the appellate Court that after filing I. A. No. I a counsel has filed vakalat on behalf of the legal representative and the application I. A. No. II is filed by the said legal representative represented by the counsel and the defendants have also filed objections for I. A. No. II. The parties thus have taken for granted that the legal representative was on record and the Court also proceeded on that basis, and allowed the appeal by remanding the suit. The conduct of the legal representative subsequent to that is that he takes part in the proceedings before the trial Court and ultimately lie files a revision petition, i.e., C. R. P. No. 115 of 46-47 in this Court complaining against the order of dismissal of the suit made by the trial Court. The case reported in - 1893 All WN 181 (A) is cited where the appellant in the suit having cued during the pendency of the appeal, an application was made by his son to have his name placed on the record as representative of the deceased appellant. On that application the Court made no order whatsoever, but nevertheless when the appeal came on for Hearing the Court allowed the applicant to be represented and ultimately decreed the suit. On appeal by the respondent, the High Court declined to allow the defendants plea that the person in whose favour the appeal in the Court below had been allowed had not properly been made a party to the appeal.

12. The facts in this case are almost similar to the case cited, before us and I am of opinion that the respondent, legal representative of the original plaintiff, was represented, did take part in the original appeal by filing applications and got the case argued and even by taking part in subsequent proceedings before the trial Court. In this view, he cannot be heard to say now that he can fall back upon S. 151, Civil P.C. and approach the appellate Court which is ceased to have any jurisdiction and get the decree set aside by a mere application under S. 151. The proper course ought to be to take proceedings against the final disposal of the suit by the trial Court.

13. Sri Neelakanta, the learned counsel for the respondent, urges before us in this Court that the application I. A. No. 115 was left pending without orders on the file of the appellate Court though the appeal itself is disposed of, and that it was competent for the appellate Court to intervene at any stage of the proceedings and even after the High Court disposed of the matter, which in this case also has been done in C. R. P. No. 115 of 1946-47 to get his suit remanded. He urges further that all the proceedings that have taken place without bringing the legal representative on record are null and void. If it is viewed that he was not properly represented in the appellate Court, it was open for him to have the final disposal declared as a nullity by taking proper proceedings. But in the view I have taken that the plaintiff was represented in the appellate Court, the judgment of the appellate Court is not a nullity.

14. Considering from any point of view, I am of opinion that the learned Subordinate Judge had no jurisdiction to entertain the application under S. 151, Civil P.C. and set aside the decree of the lower Court. The order on I. A. No. III under revision, is set aside and the revision petition allowed with costs. Advocates fee Rs. 15/-.

15. PUTTARAJ URS, J. :- (7-11-1949) The point involved is one of great importance for the administration of justice and I think it is necessary to set out the facts in detail.

16. The petitioners were the respondents in R. A. No. 147 of 44-45 before the first Additional Subordinate Judge, Bangalore. This appeal was against the judgment and decree of the Munsiff of Doddaballapur in O. S. No. 162 of 42-43 on his file. The plaintiff in that suit was one Ramakrishniah. The suit was for a declaration aid permanent injunction against the defendants who are the present petitioners. That suit was dismissed and the appeal was filed in the District Court, Bangalore. When that appeal was pending on the file of the District Judge, the appellant Ramakrishniah died. Then the present respondent Ramachandriah filed an application for being brought on record as the legal representative. Notices also were issued to the present petitioners who are the respondents in that appeal. At that stage, the appeal was transferred to the file of the Principal Subordinate Judge, Bangalore, and it was registered as R. A. 130/44-45 on his file. In that Court also, notices were issued to the present petitioners in respect of the L. R. application fixed by Ramachandrian, which was I. A. No. I. The notices also seem to have been served and the respondents then filed objections stating that Ramachandriah was not tae legal representative and that there were other legal representatives. At this stage, again the appeal was transferred to the file of the First Additional Subordinate Judge, and it was registered there as R. A. No. 147 of 44-45. In that Court no action on this I. A. No. I, i.e., the L. R. application, was taken. Arguments were heard and the learned Subordinate Judge remanded the suit to the Munsiff of Doddaballapur for fresh disposal. The Munsiff, Doddaballapur, after receiving the records, found that no legal representative had been brought on record and that there was no plaintiff to prosecute the suit and as such, dismissed the suit. Then the present respondent filed C. R. P. No. 115/43-47 on the file ol1 this Court praying for a revision of the order of the Munsiff of Doddaballapur. That C. R. P. was dismissed mainly on the ground that the petitioner i.e., the present respondent had got other remedies. After this, the petitioner in I. A. No. I filed an application under Ss. 151 and 152, Civil P.C. before the Additional Subordinate Judge, who had remanded the suit, bringing to his notice that no orders had been passed on I. A. No. I, that without bringing him on record as a legal representative the arguments had been heard and the suit had been remanded, that that was not correct and that orders may be passed on his petition bringing him as the legal representative of the plaintiff and arguments be heard again. The learned Additional Subordinate Judge allowed this application and ordered that the petitioner i.e., the present respondent might be brought on record as the legal representative in the appeal, and he also ordered that the order of dismissal passed by the learned Munsiff should be set aside and directed that the Munsiff should re-hear the case and dispose it of on merits. It is this order that is sought to be revised in this petition.

17. The first ground that has been taken in this petition is that the Additional Subordinate Judge had no jurisdiction to entertain the application even, as a final order had been passed by him already remanding the suit for fresh disposal. I am not inclined to accept this argument, because the order of the learned Subordinate Judge was in effect no order at all and could not be considered as a final order, in view of the fact that no legal representative of the appellant had been brought on record. It was an order without an appellant on record and as such, it was a nullity as held in - Balaramier v. Vasudevan. AIR 1929 Mad 802 (F) and - Alabhal Vaisurbai v. Bhura Bhaya, AIR 1937 Bom 401 (G). This is not also denied by the learned advocate for the petitioners but what his contention is that the appeal had abated.

18. This brings us to the second contention. The question whether the appeal abated because the Court had not passed any order on the legal representatives application does not seem to admit of any doubt in this case. It is true, as contended by the learned Advocate, that no separate order of the Court is necessary for the abatement of the suit. If the application for bringing any legal representative is not filed in time, the suit abates automatically vide - AIR 1937 Bom 401 (G). As observed in - AIR 1929 Mad 802 (F) a legal action on the death of a party to it passes into a state of suspense, and this state of suspense, if the legal representative is not brought on record within time, passes into a state of abatement. But in this case L. R. application, was filed in time and no order was passed by the Court though objections had been filed. It cannot be said by any stretch of imagination that the appeal had abated, as the application had been filed in time and as no orders had been passed on it. Even if we consider that the appeal had abated, there are authorities which go to the length of saying that such an abatement order under such, circumstances can be set aside by the Court suo motu or on the application of the party. A distinction has to be drawn between cases in which applications of parties are necessary and those in which the Court can do these things of its own accord, and the present one is a case of the latter category.

19. The next objection that has been taken by the learned Advocate for the petitioners is that the proper course for the respondent to take after the abatement of the suit was not to file an application under Ss. 151 and 152, Civil P.C. It has already been observed that even an abatement order under such circumstances can be set aside by the Court. It has to be observed that there is a plethora of authorities in support of this view. In - Kissen Gopal v. Suklal, AIR 1927 Cal 76 (H), it was held that where pending the hearing of the case the plaintiff is adjudicated an insolvent and consequently he is not present at the hearing, and the Court is informed that the plaintiff had become an insolvent, the Court should call upon the Official Assignee to stats whether he intends to continue the suit and if the Official Assignee decides that he would continue the suit, it would then be necessary for the Court to make an order that he should give security for costs. It was also observed that the provisions of O. 9, R. 8, Civil P.C. did not apply to such a case and the dismissal of the suit for default was bad and the dismissal could be set aside in appeal whether it was under S. 151, Civil P.C. or whether it was under the inherent jurisdiction of the Court. In - AIR 1937 Bom 401 (G) referred to above, it was also observed that it was no part of the appellants duty to take necessary steps to carry out the Courts order for the substitution of the names of the heirs of the deceased respondents who are properly served with notice in order to correct the record of the Court in terms of its order and that this was a ministerial function which the Courts establishment had to perform and if it was not performed or if it was neglected, the fault did not lie with the appellant. In this case also it was none of the business of the party to ask the Court to pass orders on his application. He had filed the application, notices were taken to the respondents, he had filed objections and it was for the Court to decide whether the objections were to be overruled or enquiry was to be held and orders passed. If the Court did not do it, the party could not be held responsible for it. It was also held by this decision, that the appeal which had abated under such circumstances could be set aside even beyond the period of limitation under Ss. 151 and 152 C.P.C.

20. The next question that arises for consideration is whether the Court can under such circumstances interfere and set right things. Even in this respect there does not seem to be any doubt at all. The powers of the Court under S. 151 are very wide. It has been seen above that in - AIR 1927 Cal 76 (H), it was held that the Court could interfere and set aside the dismissal of the suit for default in appeal, whether under Sec. 151, Civil P.C. or whether it be under the inherent jurisdiction of the Court. It looks as though there is, apart from S. 151, an inherent power in every Court to do any act to render justice, it was held in -Harnand Lal v. Chaturbhuj, AIR 1928 All 212 (I), that the enactment of Sec. 151 declares the existence of an inherent jurisdiction in all Courts to go beyond the law of procedure in the ends of justice. In - Alfred Zalair v. Sirajuddin, AIR 1941 Lah 165 (J), it was held that in the absence of any specific words to that effect in the section, i.e. S. 151, Civil P.C. itself, the jurisdiction of the Court to act ex debito justatiae cannot be ousted simply because another and perhaps an inconvenient remedy was also available. It was also held that a Court could undo an act under S. 151 which it had been made to do at the instance of a person who had been discovered, although subsequently not to have been entitled to the relief which he had obtained from the Court under false colours. In this case it was as much the duty of the present petitioners to bring to the notice of the Subordinate Judge that no legal representative had been brought on record and that no arguments could be heard and no valid orders could be passed. It will not be wrong if we construe their quiescence as a fraud played on the Court and on the opposite party. It was held in - AIR 1937 Bom 401 (G), that where an appeal was presented against a dead person or persons and the appeal had abated, the Court had power under Ss. 151 and 153 in order to prevent injustice being done to permit the amendment and allow the appellant to add the legal representatives of the deceased. In - Nawab v. Sardar Singh, AIR 1935 Lah 176 (K). it was held that where a suit was dismissed under O. 9, R. 8, Civil P.C. in ignorance of the death of the plaintiff, there was no need for a formal application by the deceased plaintiffs legal representatives under O. 9, R. 9 to set aside the order of dismissal, and when such an application was made it could be held to fall under O. 22, R. 3 and the Court could exercise its powers under Sec. 151 in setting aside that order and restoring the case to file. It was held in - Pandit Balgobind v. Sheo Kumar, AIR 1924 All 818 (L), that S. 151, Civil P.C. could not be invoked more appropriately than for the purpose of correcting a miscarriage of justice appearing on the face of the proceedings and for making such orders in the nature of consequential orders as may be necessary for the ends of justice and to prevent an abuse of the process of the Court. It was held that the High Court had power not merely to set aside abortive proceedings in lower Courts but to pass such orders as the Court ought to have passed itself and could if the matter be referred back still pass. It was further held that there could be no estoppel against a litigant arising out of the wrongful act of the Court permitted or performed by its own officials.

21. It is clear from the above decisions that the powers of the Courts under Ss. 151 and 152 are vast and they could pass any order in the ends of justice. In this case, it has again to be repeated that the order passed by the Subordinate Judge was a nullity, an order without jurisdiction, and it was on account of this mistake of the Court that the whole proceedings have been held up. It was urged by the learned Advocate for the petitioners that it was the duty of the respondent to have brought the fact that he was not brought on record to the notice of the Court, and as already said, this was as much the duty of the petitioners as that of the respondent. However, I think the order of the learned Subordinate Judge directing the legal representative to be brought on record without inquiry does not seem to be tenable.

22. In the result, I am of opinion that all the proceedings commencing from the order of remand in the lower Courts have to be set aside and I order accordingly, and this case will be remitted back to the Additional Subordinate Judge with a direction that he should take the case on file and hold an enquiry as regards the L. R. application I. A. No. I and pass orders and then proceed to dispose of the appeal according to law. (This Revision Petition coming on for hearing on 15th March 1950, in pursuance of an order of reference to a Full Bench on 1-11-1949, the Court made the following order :) 23-24. R. VENKATA RAMAIYA, J. :- (His Lordship stated the facts of the case and then proceeded :) The main contentions of the petitioners are that an order setting aside the dismissal of the suit could not be properly passed on an application filed under S. 151, Civil P.C., that the petition is belated and lastly the-present respondent is not the legal representative of the deceased appellant-plaintiff.

25. Order 22, R. 3, Civil P.C. states : "(1) "Where ...... sole plaintiff .... dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub-r. (1), the suit shall abate so far as the deceased plaintiff is concerned. ....." Rule 5, O. 22 states : "Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court." By Rule 11 these provisions are made applicable to appeals. Sub-rule (2) does not come into play as the applications I. A. No. 1 was filed within a. month after the death of the original plaintiff. What is required by R. 3 is that on the death of the plaintiff or the appellant if the right to sue survives, an application could be made by the legal representative of the deceased plaintiff or appellant to be made a party. On this being done it is obligatory on the Court to make him a party and proceed with the appeal. If, however, there is a dispute about the applicant being a legal representative the Court has to determine the question under R. 5. All that the person desirous of proceeding with the case has to do is that he should make an application. The further acts necessary for enabling him to do so are left to the Court. Apparently by oversight or otherwise no order either granting or rejecting the application was passed. The respondent also who was the applicant in I. A. No. I does not seem to have pressed on the attention of the Court the need for a formal order and amendment of the cause title. This omission on his part cannot take away the right to proceed with the case if he is the legal representative, as there is no duty cast on the litigant by the rules to remind the Court of observance of the rules, A possible reason for the omission is that the respondents Counsel took part in the appeal without any objection and the appeal was disposed of after hearing him. If the ease stood at this, there would have been no difficulty and the absence of strict compliance with the formalities may have been viewed as an inconsequential technicality as in - 13 All WN 181 (A). But the petitioners do not admit that the respondent is the legal representative of the plaintiff. And they did not allow the suit to proceed in pursuance of the order of remand passed in the appeal on the score of there being no competent person present to prosecute the suit after the death of the plaintiff. The attitude displayed, by the defendants in the proceeding is thus inconsistent and is nothing short of blowing hot and cold in the same breath, which cannot be countenanced. There can be no doubt that there has been a regrettable omission which has landed the respondent in undeserved predicament. As regards the remedy, the contention of appellants that it is by means of an appeal cannot be accepted since the Code provides for an appeal only against orders passed and not failure to pass orders.

26. The proceedings in the appeal after the death of the original plaintiff cannot be considered to be regular as the Court has omitted to do what is required by Rules 3 and 5 of Order 22 and there is no one on record as plaintiff or his legal representative. The responsibility for this cannot be ascribed to the respondent. As a result of the omission, both parties are placed in a disadvantageous position, the petitioners by being denied an opportunity to contest that the respondent is the legal representative of the deceased plaintiff and the respondent by the absence of an order to treat him as a legal representative which entailed the dismissal of the suit. The consequences which have now ensued are to be traced to this omission. In - AIR 1929 Mad 802 (F), when a revision petition was disposed of without the legal representative of a party who was dead, on record it was ordered that the case should be heard afresh observing that a legal action on the death of a party to it passes into a state of suspense ...... and while the action is in a state of suspense no valid act which is not purely formal or provisional but which involves a decision on the merits of any part of the action can be done by the Court. Under S. 152, Civil P.C. errors arising from, any accidental slip or omission in judgments, decrees or orders may at any time be corrected by the Court either of its own motion or on the application of the parties. This section corresponds to Rule 2 of Order 28 of the Rules of the Supreme Court in England except for the absence of the words "without an appeal" found in the rule. But this does not imply that the section cannot be availed of to rectify mistakes which can be set right by means of an appeal. In - Hatton v. Harris, (1892) AC 547 (M), Lord Watson said "the correction ought to be made upon motion to that effect and is not a matter either for appeal or for rehearing". In - E v. E, (1903) 72 LJP 44 (N), the correction was allowed even where the order was under appeal and notice of the appeal against the order sought to be altered was given by the party who applied. Section 152 provides a cheap and speedy remedy and there is no reason for driving the parties to secure it by means of an appeal which necessarily involves expense and delay. In - Parsotam Dass v. Mahammad Hamid, AIR 1932 Oudh 291 (O), an application for execution was dismissed as barred by time relying on the office note. The dismissal was later set aside on the ground of mistake. This was held to be justified under S. 152 Civil P.C. though, the erroneous order of dismissal was appealable. Section 153 too gives power to the Court to amend defects or errors in any proceeding in a suit. The section states that all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. The question in tills case is who the real or proper legal representative is and an order necessary for determination of this has to be made.

27. In my opinion the order to be made for the purpose of shortening the litigation and avoiding confusion is to relegate the parties to the position they occupied at the time I. A. No. 1 was filed in the Appellate Court, direct the appellate Court to dispose it of aster hearing both parties and decide the appeal treating what has been done in that Court and trial Court so far subsequent to I. A. No. I as of no effect. The parties will bear their own costs. There will be an order accordingly. 28-30. N. BALAKRISHNAIYA, J. :- (His Lordship stated the facts of the case and then proceeded :) Sri Balaji, the learned counsel for the petitioners, urges that the application, I. A. No. III, which is filed under S. 151, Civil P.C. is not maintainable as the learned Subordinate Judge was not seized with jurisdiction of the appeal at that stage and that the order of the learned Subordinate Judge has the effect of not only setting aside the judgment of his own Court but also the judgment and decree of the trial Court which was passed subsequently. The contention of Sri Balaji is not without force. It is undoubted that the Courts have inherent powers to review their own orders or correct mistakes, but S. 151 cannot be employed to assume jurisdiction to set aside a decree passed in subsequent proceedings when there is no appeal against these proceedings.

31. It is to be noticed from the records of the lower appellate Court that, after filing I. A. No. I, a counsel has filed vakalat on behalf of the legal representative and the application I. A. No. II is filed by the said legal representative represented by the counsel and the defendants have also filed objections for I. A. No. II. The parties thus have taken for granted that the legal representative was on record and the Court also proceeded on that basis, and allowed the appeal by remanding the suit. The conduct of the legal representative subsequent to that is that he takes part in the proceedings before the trial Court and ultimately he files a revision petition i.e. C. R. P. N3. 115 of 1948-47 in this Court complaining against the order of dismissal of the suit made by the trial Court. In - 1893 All WN 181 (A), where the appellant in the suit having died during the pendency of the appeal, an application was made by his son to have his name placed en the record as representative of the deceased appellant. On that application, the Court made no order whatsoever, but nevertheless when the appeal came on for hearing, the Court allowed the applicant to be represented and ultimately decreed the suit. On appeal by the respondent, the High Court declined to allow the defendants plea that the person in whose favour the appeal in the Court below had been allowed had not properly been made a party to the appeal.

32. The facts in this case are almost similar to the case referred to and I am of opinion that the respondent, legal representative of the original plaintiff, was represented and did take part in the original appeal which was allowed in his favour. In this view, he cannot be heard to say now that he can fall back upon S. 151, Civil P.C. and approach the appellate Court which has ceased to have any jurisdiction and get the subsequent decree set aside by a mere application under S. 151. The proper course appears to be to take proceedings against the final disposal of the suit by the trial Court.

33. Sri Neclakanta, the learned counsel for the respondent, urges before us in this court that the application I. A. No. Ill was left pending without orders on the file of the lower appellate Court though the appeal itself is disposed of, and that it was competent for that Court to intervene at any stage of the proceedings, and even after the High Court disposed of the matter, which in this case also has been done in C. R. P. No. 115 of 1946-47 to get his suit remanded. He urges further that all the proceedings that have taken place without bringing the legal representative on record were null and void. In the view that he represented in the lower appellate Court and took part and obtained a decree in in favour, it cannot be said that the proceedings are a nullity.

34. Considering from any point of view, I am of opinion that the learned Subordinate Judge had no jurisdiction to interfere under S. 151, Civil P.C. to set aside the subsequent decree of the trial Court. The order on I. A. No. III under revision, is set aside, and the revision petition allowed with costs. Advocates fee Rs. 15/-.

35. MALLAPPA, J. :- I agree entirely with the opinion of Venkataramiah, J. I would like to merely add that the decision in - Munivenkatappa v. Gopalakrishna Setty and Brothers, 52 Mys KCH 33 (P), in a way supports the conclusion arrived at. In that case it was decided that a sale in an execution case, held after the death of the judgment-debtor without bringing his legal representatives on record is a nullity. No question of abatement arises as an L. R. application had been filed but no valid order can be passed after the death of a party without, bringing his legal representatives on record.

36. It is clear that the proceedings taken are not binding on persons who are not parties to the case. The appellant-plaintiff died and an application was filed in the District Court by one Ramachandriah to be brought on record as the legal representative of the deceased. He was however, not brought on record by oversight in the subordinate Judges Court, as the case was at that stage transferred to that Court from the District Court. Arguments were no doubt heard, as if a legal representative was brought on record, though in fact he had not been brought on record. The case was, however, remanded as if he had been brought on record. If the defendants who had failed in that case had come up to this Court complaining against the order remanding the suit without formally bringing the legal representative of the Appellant-Plaintiff on record, the decision in - 1393 All WN 181 (A), would have been applicable. It was possible to say that having argued the case as if the legal representative of the plaintiff-appellant was on record, the defendants are estopped from contending that it is not so. They did not do so. On the other hand, the defendants took an objection in the Munsiffs Court that the plaintiff had died and without bringing his legal representative on record the suit cannot proceed and on that ground got the suit dismissed. They cannot now urge that the legal representative must be deemed to have been brought on record, after getting the suit dismissed on the ground that the legal representative had not been brought on record.

37. The first order of the learned Subordinate Judge remanding the suit to the lower Court was not valid and in fact without the legal representative of the deceased plaintiff on record no such order could have been passed. The respondent cannot be allowed to suffer by the Courts failure to pass an order which it was bound to pass and the defendants who are petitioners in this case cannot be allowed to take advantage of their inconsistent attitude. When these things were brought to the notice of the learned Subordinate Judge, he has ordered that the legal representatives should be brought on record and the suit remanded. It will be noticed that this has been done without giving an opportunity to the defendants to show that Ramachandra Rao is not the legal representative of the deceased plaintiff. The only order in these circumstances that could be passed is to set aside all the orders passed subsequent to the application filed for bringing the legal representative of the deceased plaintiff on record and to direct the learned Subordinate Judge to proceed with the appeal from that point. The parties have to bear their own costs. I, therefore, agree with the opinion of Venkataramaiya, J. There will be an order accordingly. Order accordingly. AIR 1954 MYSORE 71 (Vol. 41, C.N. 34) "Adinarayana v. S. L. A. Officer" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHI, J. ( Division Bench ) T. Adinarayana Setty, Appellant v. Special Land Acquisition Officer, Bangalore, Respondent. Regular Appeal No. 255 of 1950-51, D/- 5 -10 -1953, against order of 2nd Addl. Dist. J., Bangalore, D/- 18 -9 -1950. Land Acquisition Act (1 of 1894), S.23 - ACQUISITION OF LAND - Assessment of compensation - General principles - Land at Bangalore. The value of lands in Bangalore in or about 1935 was at about the lowest and that after the commencement of World War II, particularly after the threat of the Japanese invasion was removed, the value of lands shot up enormously, as much as 5 to 10 times its value in 1935 and in some cases even more. An award of Rs. 1,41,169/- in 1947 for the compulsory acquisition of the land purchased in 1935 which cost the claimant in all Rs. 1,30,000/- cannot, therefore, be held to be adequate as it ignores entirely the sharp rise in the prices of lands. (Para 7) In assessing compensation for the acquisition of land, the layout of which is sanctioned, 25 per cent, of the area may be excluded as an area earmarked for roads and drains. (Para 9) If there is a hollow area in the layout which can be filled up and brought on level with other area, the amount of compensation for it would be the amount calculated on the basis of the rate applicable to rest of the area less the estimated cost of filling the hollow. (Para 10) Anno : L. A. Act, S. 23 N. 2, 8. B. Somaiya, for Appellant; Asst. Advocate-General, for the Govt. Judgement MEDAPA, C. J. :- The facts of the case leading up to and relevant for the disposal of this appeal, briefly stated, are as follows. The Appellant purchased Survey No. 19 of Jakkasandra village. Bangalore North Taluk, in the year 1935 and after paying the requisite fine for converting the same into building sites secured the necessary sanction of the Government on 20-10-39. The Appellant next applied to the Bangalore Municipality for the sanction of a private lay out on 24-2-1940 and obtained the sanction on 31-3-1944. Portions of this land before its conversion as building sites were acquired by the Government for the purpose of putting up a maternity home and a school in 1937 and 1939 respectively. The Appellant after the conversion of the land into building sites, applied to the Municipality for a licence for putting up a building and constructed a house on a portion of the land and leased out the same on a rent of Rs. 50/- per month. Later he sold several sites at rates varying from Rs. 6-8-0 to Rs. 15/- per sq. yd. in the year 1945. Preliminary notification for the acquisition of this land was published in the Mysore Gazette on 11-10-1945 and final notification on 30-5-1946. The Appellant objected to the acquisition on various grounds detailed in Ex. 11, the most important of them being, (1) that the land was unsuited for the purpose of a maternity hospital as the same was adjacent to the Mysore Maharaja Weaving Mills and the Labour Colony and (2) that the acquisition would be uneconomical inasmuch as the land proposed to be acquired was not agricultural land but a building site and compensation for its compulsory acquisition will have to be paid for at a high rate. The objections of the Appellant were overruled and possession of the land was taken on 7-5-1947 by the Municipal Engineer after the order for its acquisition on 1-5-1947.

2. The Appellant claimed compensation at the rate of Rs. 15/- per Sq. yd. but the Special Land Acquisition Officer awarded compensation at the rate of Rs. 10/- per sq. yd. The Land Acquisition Officer set off a sum of Rs. 98,807/- against the amount of compensation to be paid to the Appellant on the ground that the said sum was required for laying out roads and drains and for the installation of electric power. He disavowed the claim of the Appellant for compensation for the building put up by him on the ground that the same must have been constructed after the date of the preliminary notification and without the requisite licence from the Municipality. The Land Acquisition Officer also excluded an area of 26248 sq. yds. from the award of compensation (the total area of the land acquired being 48404173 sq. yds.) on the ground that the said area was required for laying out roads and drains. He left out of account an area if about 3000 sq. yds. on the ground that the same formed a hollow or halla unfit for building or for any other purpose. The Appellant prayed for a reference to the District Judge. Bangalore. He claimed compensation at the rate of Rs. 15/- per sq. yd,, disputed the validity and correctness of the Land Acquisition Officers decision disallowing compensation for an area of 26248 sq. yds. of land and for the house as also for the halla etc.

3. The District Judge upheld the rate of compensation at Rs. 10/- per sq. yd. awarded by the Land Acquisition Officer as also his decision disallowing compensation for 26248 sq. yds. He also upheld the decision of the Land Acquisition Officer disallowing compensation for the building put up by the Appellant. He however allowed compensation at the rate of Rs. 3/- per Sq. yd. for an area of about 3000 sq. yds. which had been left out of account by the Land Acquisition Officer. He also upheld the claim of the Appellant for Rs. 10,000/- which had been earmarked by the Land Acquisition Officer towards expenses for installing electric power and directed the said sum to be deducted from out of Rs. 98,807/- the sum directed to be set off against the compensation payable to the Appellant. Hence this present appeal.

4. The Appellant in his appeal memo has urged many grounds but his learned Counsel confined his arguments to the following, viz. : (1) that compensation at the rate of Rs. 10/- per sq. yd. was quite inadequate and should have been at the rate of Rs. 15/- per sq. yd.; (2) that the Land Acquisition Officer and the District Judge were wrong in disallowing compensation for the entire area of 26248 sq. yds.; (3) that a reservation of more than a sixth of the total area acquired for the purpose of making roads and drains was excessive and untenable; (4) that both the Land Acquisition Officer and the District Judge were wrong in charging 20 per cent, of the total cost of the amount required for laying out roads and drains as necessary for fluctuations in labour charges; (5) that the learned District Judge who disallowed the claim of the Land Acquisition Officer for charges towards installing electric power amounting to Rs. 10,000/- should have allowed to the Appellant a further sum of 17 per cent, of the said Rs. 10,000/- included by the Land Acquisition Officer for supervision charges; and (6) that the award of compensation at the rate of Rs. 3/- per sq. yd. for what was known as halla was quite inadequate.

5. The Land Acquisition Officer has stated that he fixed the rate of compensation to be awarded at Rs. 10/- per sq. yd. on account of two grounds, viz. (i) an alleged agreement by the Appellant to receive compensation at that rate said to be implicit in Ex. II and (ii) that the rate of Rs. 10/- per sq. yd. is the average rate actually secured by the Appellant for sales effected by him prior to the preliminary notification. The District Judge relied on the same two grounds and also on the opinion of the two engineers examined for the respondent who say that the award of compensation at the rate of Rs. 10/- per sq. yd. was a very fair rate for the land acquired. The two Assistant Engineers have not given or placed any material in support of their opinion. The Respondent has also not produced any other evidence regarding the rate at which lands were sold in or about the locality at or about the time of the acquisition; even entries from the Sub-Registrars Office regarding sales of lands in the locality at the relevant time have not been made available to the Court. The argument that the Appellant agreed to receive compensation at the rate of Rs. 10/- per sq. yd. is sought to be supported by his statement in Ex. II. A perusal of the said exhibit however does not warrant this contention. The Appellant has no doubt stated : "This rate ranges from Rs. 10/- to 12/- on the average of Rs. 10/- a square yard as could be verified from entries in the local Sub-Registrars Office and Bangalore City Municipal Office. At any rate, I myself have sold in the course of this year some 6 sites cut of the land proposed to be acquired for rates ranging from, Rs. 7/- to 15/- or on an average of Rs. 10/- per square yard. At this rate the compensation amount will be Rs. 5,12,430/- adding the statutory allowance of Rs. 77,860/- at 15 per cent on the compensation amount; on account of the compulsory nature of the acquisition the total cost of the land will be Rs. 5,89,290/- or nearly six lakhs of rupees only for the land required for the maternity hospital is a very heavy amount." It is not clear how the Land Acquisition Officer and the District Judge spelled from this statement an agreement on the part of the Appellant to receive compensation at the rate of Rs. 10/- per sq. yd. it is obvious from the contest that the appellant agreed to receive compensation at the rate of Rs. 10/- per sq. yd. provided he was given compensation at that rate for the entire land without any deduction whatsoever. This is made manifest by his statement "At this rate the compensation amount will be Rs. 512,430/-." It must be remembered here that the Appellant when he sold portions of his land did not exclude or leave out of account the space required for construction of roads and drains but expected and secured payment at the rate of Rs. 10/- per sq. yd. for every bit of land sold by him. The Land Acquisition Officer when he struck the average rate of Rs. 10/- per sq. yd. knew or must have known that every bit of the land included in the several sales was paid for and that no portion of the land sold, was excluded by the Land Acquisition Officer in calculating the average price per sq. yd.

6. Under these circumstances we fail to see how the statement extracted above can be pressed into service to ferret out an agreement by the Appellant to receive compensation at the rate of Rs. 10/- per sq. yd. for a portion only of the acquired land as satisfactory compensation for the whole area acquired. The agreement to receive Rs. 10 per sq. yd. for every inch of the land acquired cannot in fairness be pressed into service to pin the Appellant to receive compensation, at the rate of Rs. 10/- per sq. yd. for only a portion of the land acquired. The learned Counsel for the Appellant pointed out that rates of Rs. 14/- and 15/- per sq. yd. for lands near or immediately abutting the halla have been received by the Appellant as per his sale deeds, one or two months before the preliminary notification. He contended that in order to attract persons to purchase his sites, his client first put up a house at a cost of Rs. 7000/- and then leased out the same on a rental of Rs. 50/- per mensem; that as soon as the house was tenanted some persons came forward to purchase sites and put up buildings and that the rates at which they acquired sites rose steadily from about Rs. 6-8-0 per sq. yd. in the beginning to about Rs. 15/- per sq. yd. at or about the time of acquisition. He also stressed that if the preliminary notification for acquisition had not been published, the Appellant would have secured very much more and that the statement of his client that he could have obtained a rate of Rs. 25/- per sq. yd. cannot be brushed aside on the ground that it was either unreasonable or improbable. It. cannot be said that this contention is without force. There have been four sales of sites in or touching the halla and they have fetched a rate of Rs. 12/-, 15/-, 14/- and Rs. 7-8-0 per sq. yd. respectively and if the sites in or near the halla for which the Land Acquisition Officer refused to award any compensation could fetch as much as Rs. 14-15/- per sq. yd. it must be conceded that the lands touching the Tumkur Road and the road on the side of the Maharaja Mills would have fetched very much more, possibly a rate approximating to or touching the rate mentioned by the Appellant.

7. The Appellant states that he purchased the survey number in question in the year 1935 and that he paid for the same in all Rs. 1,10,000/-. He has in addition paid to the Government a conversion fine of Rs. 11, 000/- and put up a building at a cost of Rs. 7000/-. Thus the total amount spent by the Appellant for the land acquired will be in the neighbourhood of Rs. 1,30,000/-. It cannot be disputed that the value of lands in Bangalore in or about 1935 was at about the lowest and that after the commencement of World War II, particularly after the threat of the Japanese invasion was removed, the value of lands shot up enormously, as much as 5 to 10 : times its value in 1935 and in some cases even : more. An award of Rs. 1,41,169/- in 1947 for the compulsory acquisition of the land purchased in 11935 which cost the Appellant in all Rs. 1,30,000/- cannot at all be held to be adequate. It ignores entirely the sharp rise in the prices of lands in Bangalore referred to above which has more or less come to stay as is discernible from the fact that the price of land still shows no signs of any appreciable sagging in spite of the tightness of the money market. Under these circumstances, we are of the opinion that the compensation at the rate of Rs. 10/- per sq. yd. and that for a portion only of the acquired land is inadequate and merits modification. The learned Counsel for the Appellant urged that the highest rate secured by his client for the sale effected by him prior to the preliminary notification should be taken as a proper index more particularly so because of the finding of the Land Acquisition Officer that the sales effected by the Appellant are genuine transactions a finding which has been accepted by the District Judge and to which no objection has been taken by the Respondent in this appeal. It was pointed out that the Appellant as a prudent man in order to attract purchasers and develop the area offered lands for sale in the initial stages at lower rates with the reasonable hope that when the locality developed and got publicised, the sites will necessarily fetch much higher rates. It will be seen that it was only after the appellant had put up a house that purchasers stepped in to buy the suit lands and that generally speaking the later sales fetched a much higher price than the initial sales even though the last sales were of lands situated close to and abutting the hollow for which the Land Acquisition Officer save no compensation on the ground that the same was unfit for any purpose. It must be admitted that lands situate at higher levels and abutting the two roads must normally fetch, a higher price than the lands touching the halla which as seen in the sale deed, Ex. 8 dated 2-8-45 secured a price of Rs. 15/- per sq. yd. just two months before the preliminary notification. The land in question is situated close to the Maharaja Mills and a school and a maternity home have already been put up on a portion of it. The learned Assistant Advocate-General submitted that the lands in thievery survey number were acquired by the Government on an average at Rs. 1/- per sq. yd. but this fact can have little or no bearing for the disposal of this appeal as the said acquisitions were in 1937 and 1939, that is to say, long before the acquisition in question and the rise in prices of lands referred to earlier. Besides, the acquisitions in 1937 and 1939 were of agricultural land, long prior to its conversion as building sites and without the sanction, of the Municipality for a private lay-out, whereas the present acquisition is of building sites with the requisite sanction for a private lay-out.

8. The next contention of the learned Assistant Advocate-General that the area acquired is considerable and that the Appellant could not have been sure of securing purchasers easily for all his sites at or about Rs. 15/- per sq. yd. has a good deal of force and must be borne in mind. It has been pointed out that the expectations of the Appellant to secure a rate of more than Rs. 15/- per sq. yd. could not be said to be unsupported by data and on that ground discarded or considered unreasonable. The Appellant had pointedly drawn the attention of the acquisition officers to this important circumstance and it is a bit surprising to note that the acquisition proceedings were continued in spite of the caution and that too after a committee of medical men had given it as their opinion that the land was unsuited and unsuitable for the construction of a hospital. The learned Counsel for the Appellant stressed on the opinion of medical men referred to above and on the delay in the proceedings regarding conversion, sanction of the private lay-out, and acquisition as also on the timing of the preliminary notification and submitted that his client had been deliberately deprived of the benefit of the rise in prices, for his land. The necessity for and the bona fides of the acquisition of a large area of very nearly 10 acres and 23 guntas of land in the heart of Malleswaram for the development of a comparatively small maternity home already possessing a compound of nearly 1 acres, against the opinion of a committee of medical men, the failure so far to put the land for the use for which it was acquired, the locking up of a considerable amount of public money without, any benefit, incidental to the acquisition and the synchronisation of the preliminary notification with the success of the appellant in securing, sales for his sites at good prices give point to and support the submission of the Appellant. These circumstances seem to indicate that there must be something more in these proceedings than meets the eye. The plaintive wail of the Appellant regarding the delay in the acquisition proceedings seen in Ex. J dated 31-3-47 is under the circumstances not only understandable but revealing. The evidence discloses that the Appellant has effected 4 sales about a couple of months prior to the date of preliminary notification and the rates secured by him. are Rs. 12/-, 15/-, 14/- and 7-8-0 which on calculation give an average of Rs. 12-2-0 per sq. yd. The Appellants Counsel prayed for the award of compensation on the basis of the highest price secured by his client. We have already come to the conclusion that the submission of the learned Assistant Advocate-General that it would not have been easy for the Appellant to obtain the sale of all the lands at that rate is not without force. The learned Assistant Advocate-General stressed the necessity of bearing in mind this circumstance while fixing the rate at which compensation was to be awarded. On a consideration of all the evidence and submissions made by the parties and keeping in mind the sharp rise in prices ox lands, we feel that a rate higher than the average rate will be a proper rate at which compensation should be awarded. The average as already seen works out to Rs. 12-2-0 per sq. yd. while the maximum price secured by the Appellant is Rs. 15/- per sq. yd. We feel that a rate approximating to the mean between these two rates viz., Rs. 13-8-0 will be the appropriate rate at which compensation has to be awarded and we order accordingly. We consider that a reduction, of Rs. 1-8-0 per sq. yd. will be sufficient to cover the difficulty pointed out by the learned Assistant Advocate-General.

9. The next contention of the Appellant is that the refusal to award compensation for 26248 sq. yds. is unwarranted. The two engineer witnesses for the Appellant state that a reservation of not more than 20-25 per cent of the total area for roads and drains is reasonable and adequate in all modern lay-outs and one of the witnesses was responsible for completing the Tata Silk Farm Lay-out near the locality. The witnesses for the Respondent state that an area of 25-30 per cent. of the total area will be required but they have not produced any material to support their opinion. The Appellants contention is that reservation of more than a sixth of the total area is unreasonable while the Respondent has set apart more than 50 per cent, of the total area for the construction of drains and roads. The learned Assistant Advocate-General contended that the Appellant must be deemed to have consented to the exclusion of this area in computing the compensation as the sanction for the lay-out was accorded according to the plan. Ex. I, and the said sanction has been accepted by the-Appellant without any protest. His argument is that in the plan Ex. I roads and drains have been marked out and that for the area so par-marked no compensation is or can be awarded. The contention that the Appellant accepted without murmur the area set apart for roads and drains as marked out in the plan is opposed to the notice he issued through his advocate, Ex. VII dated 11-4-1943 wherein he has specifically stated his objection. Further the area earmarked in the plan for roads and drains falls much short of 26248 sq. yds. This fact was stated to us by the Corporation Engineer at the time of arguments after taking cut the measurement of the area earmarked for roads and drains in the plan. Ex. I. There is besides no conclusive proof on the part of the Respondent that the sanction for the layout was accorded as per the plan, Ex. I, while the appellant is positive that the layout sanctioned was not in accordance with the said plan. We consider it safe and proper on this state of evidence to reserve for roads and drains the maximum percentage spoken to by the engineer witnesses for the first Claimant-Appellant and the minimum percentage of the area stated by the engineer witnesses for the Respondent, viz., 25 per cent. We accordingly hold that 12101-1/12 sq. yds. should be earmarked for roads and drains and be excluded from calculation in the award of compensation.

10. The next point urged is that the rate of Rs. 3/- per sq. yd., awarded for the hollow or halla comprising 3000 Sq. yds. is quite inadequate. The Respondent in the estimate for construction, of roads and drains etc., has specified in Ex. XII an item of Rs. 15000/- towards the cost of filling up the halla so as to bring it up to level of the road. It cannot be denied that the halla when filled up as proposed, can be utilised for putting up buildings and the Appellant, as also one of his engineer witnesses, say that buildings can be put up in this area even without its being filled up. In any case it seems to us inequitable that the Appellant should be charged Rs. 15,000/- towards the cost of filling up the halla in order to award him a compensation at Rs. 3/-per sq. yd. amounting in all to only Rs. 9000/-. The learned Assistant Advocate-General submitted that the sum of Rs. 15,000/- was needed not only for filling up the one halla which is about 3000 sq. yds. in extent but also several others and in support of his contention relied on the existence of the ravines and valleys spoken to by the witnesses for the Respondent in their evidence before Court. The information furnished by the Assistant Engineer of the Municipality, R.W. 2, to the Land Acquisition Officer in Ex. 12 is however specific and sets out that this sum of Rs. 15,000/- was required to fill up the halla. The use of the definite article and singular number in the phrase "Cost of filling up the halla on the area" negatives this contention. The evidence of the witnesses for the Respondent that there are "valleys and ravines" in the land only goes to expose the bias and anxiety of the witnesses to support their actions and the case of the Respondent. This area after it is filled up can in no way be deemed to be inferior to the other portions and should also be awarded compensation on the same basis. This procedure will in effect mean the award of compensation for this area at Rs. 5/- less than the rate allowed for the other area.

11. The next contention of the Appellant is that a charge of 20 per cent, on the amount required for constructing roads and drains and for filling up the halla is unwarranted. His argument is that when the cost of work has been estimated there is no reason why another sum amounting to Rs. 20 per cent, of the estimated cost should be added to it. This contention does not appear to us to be sound. The estimated cost is according to the evidence in the case, calculated on the basis of the schedule rates and schedule rates cannot be taken as the criterion for arriving at or determining the actual costs because of the fluctuations in labour charges which in all engineering contracts are fixed at 20 per cent, higher than the schedule rates. In this view this claim of the Appellant must fail and is accordingly rejected.

12. It is urged for the Appellant that the learned District Judge who disallowed the item of Rs. 10,000/- for the installation of electric power should also have taken away 17 per cent, and another 20 per cent of the amount so disallowed, included in the estimate on the ground of supervision and fluctuation in labour charges. His argument is that when the cost of installation of electric power is not to be borne by the Appellant, supervision and fluctuation in labour charges of 17 per cent, and 20 per cent. of the installation cost should not also be charged to him. This contention was not opposed by the learned Assistant Advocate-General and appeals reasonable. It is accordingly allowed.

13. The last contention of the Appellant is that the learned District Judge erred in disallowing compensation for the house put up by him. The learned District Judge has adopted the reasoning of the Land Acquisition Officer for disallowing compensation claimed by the Appellant for his house. Those reasons are : (a) that the house must have been put up after the date of the preliminary notification for acquisition of the land, and (b) that the house must have been constructed without the requisite licence from the Municipality. A scrutiny of the evidence en record discloses that both these reasons are incorrect and therefore untenable. The evidence for the Appellant is to the effect that he commenced construction of the building after he had made an application to the Municipality for the requisite licence and after waiting for more than a month for an endorsement from the Municipality. His case is that according to S. 115(4) of the Municipalities Act an applicant who does not get an endorsement for a period of one month after the date of his application for a licence to put up a building can proceed to construct his building as per his plan. The Land Acquisition Officer and the District Judge have apparently come to the conclusion that the evidence on behalf of the Appellant on this aspect of the case is not true. It will however be seen that the evidence of the Appellant on this point receives corroboration from an entry in the registers of the Municipality copy of which is produced in this Court. This entry shows that the appellant made an application to the Municipality on 19-2-45, that is to say, more than 7 months prior to the date of preliminary notification, for a licence to put up a house. His evidence is that he did not get an endorsement for the same for more than a month. The Respondent has not shown that he sent an endorsement to the Appellant. The Appellant was therefore quite within his rights to put up a building for which he now claims compensation. The other reason is that the Appellant must have put up this construction after the preliminary notification. This is also opposed to the evidence in the case for as already pointed out the application for a licence was made on 19-2-1945 and the preliminary notification is on 4-10-45 and the evidence on behalf of the Appellant Is that the building was put up prior to the date of preliminary notification. The learned District Judge has relied on a sentence said to occur in Ex. J dated 31-3-1947 in support of his argument for the disallowance of the claim for compensation for the building. The extract appearing in the judgment of the learned District Judge is as follows : "As far back as December 1946 (i.e. subsequent to the notification) the foundation, stone for the building stipulated on my land was also laid." He has also relied on the date appearing in Ext. D which is a bill, detailing cost of the building constructed near the Maternity Hospital at Malleswaram by Mr. V. Venugopal. viz. 25-12-1946. The date in Ext. D cannot be of much assistance in determining the question whether the building was put up prior to the preliminary notification. The bill must obviously have been prepared sometime after the construction was put up and cannot as such be a good or reliable guide for determining the exact date of the completion of the construction, A comparison of the sentence extracted above from the judgment of the learned District Judge with the sentence seen in Ext. J shows that the said extract is not correctly made. The correct extract from Ex. J, which is dated 31-3-1947 is as follows : "As far back as December 1946, (i.e. subsequent to the notification) the foundation stone for the buildings to be erected on my land was also laid." This sentence can have no reference to the budding put up by the Appellant for it clearly refers not to the building to be put up by him but to the laying of the foundation stone for the buildings to be erected on his lands. This position is made clear from the next Exhibit, Ex. J-1 which is dated 22-3-1947, that is to say, 9 days earlier to the date of Ex. J in which he states : "It is not correct to say that the building was erected subsequent to the publication of the preliminary notification. An application for a licence was sent to the Municipal Commissioner by registered post on 19-2-1945 and was duly acknowledged by him on the 22-2-1945. No reply has so far been received from him. Under Cl. 4 of S. 115 of the City Municipal Regulation, a month after the acknowledgment by the Municipality of my application for a licence, the right to proceed with the construction of the building accrued to me. Accordingly on 25 3-1945 I started construction and proceeded with the work till the publication of the Government notification for the acquisition and immediately thereafter I stropped further construction." The fact that in Ex. K-3 dated 22-5-1947 the Appellant has asked the Municipal Engineer to take possession of the house from his tenant is yet another circumstance which goes to strengthen the evidence of the Appellant that he hart nut up the building prior to the preliminary notification. The evidence of the Appellant and his witnesses to the effect, that the Appellant has spent Rs. 7000/- for the construction of the building has not been challenged much less disproved by the Respondent. The Appellant offered the house to the Medical Department as a free gift though the same was refused by the Medical Authorities. Having regard to all these circumstances we fix the value of the building at Rs. 7000/- as spoken to by the Appellant and his witnesses. He is therefore entitled to get this amount along with the usual statutory allowance of 15 per cent thereon as compensation.

14. In the result, the appeal is allowed in the manner and to the extent indicated above. The Appellant will get the statutory allowance of 15 per cent on the value of the lands calculated in the manner stated above. He will also get interest at 6 per cent on the total amount of compensation from the date of taking possession The parties will receive and pay costs in proportion to their success and failure both here and in the Court below. The decree passed by the learned District Judge will be modified accordingly. Appeal allowed. AIR 1954 MYSORE 75 (Vol. 41, C.N. 35) "In re Ranga" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND MALLAPPA, JJ. ( Division Bench ) In re Ranga and others, Accused-Appellants. Criminal Appeal No. 48 of 1952-53, D/- 6 -10 -1953, against conviction and sentence passed by Addl. Sess. J., Mysore, in Sessions Case No. 20 of 1951-52. Criminal trial - Evidence. The adequacy of evidence to prove the case against anyone has to be determined on the peculiar circumstances of the situation in which the crime was committed and in the absence of any rule requiring a particular number of witnesses to testify to the acts imputed to the accused, the conviction cannot be assailed only because it is based on the evidence of a single witness. What is necessary in such a case is that the evidence should be subject to strict scrutiny. (Para 4) Held that considering the place and time of the assault, the manner in which the accused like hunters in quest of a prey, lay in wait outside the village to pounce upon any Pariwar the single eye-witnesss evidence did not suffer from absence of another eyewitness. (Para 4) Anno : Criminal P.C., S. 367 N. 7. 1949 Mitra : S. 367 P. 1128 N. "Reasons for decision" (4 Pts. extra in N. 7 to S. 367 in AIR Com.-2 Pts. extra in Mitra). (B) Penal Code (45 of 1860), S.149, S.34 - UNLAWFUL ASSEMBLY - COMMON OBJECT - Distinction - Common object alleged to be assaulting - Conviction for murder - Validity. It is more on the applicability of S. 149 than of S. 34 that the correctness of the conviction of persons who are not the assailants depends. Section 34 cannot be invoked as it has been held to refer to cases in which several persons intend to do an act and some do that act and not to cases where several persons intend to do an act and some one or more of them do an entirely different act. (Para 6) Section 149 may be applicable to cases to which S. 34 does not apply. The essential condition for the operation of either section is that the intention in one case and object in the other should be common and if the act is in excess of or beyond the intention or object of the members, they cannot be constructively liable for it. AIR 1925 Cal 913, Ref. (Para 8) Where the common object specified in the charges is "assaulting the Pariwars" the words cannot be understood as denoting murder though assault may sometimes prove fatal and if the latter part of S. 149 imputing knowledge of the offence likely to be committed is not referred to in the charge, there is no jurisdiction for the conviction of all the members of the unlawful assembly for murder, when it is not alleged in the charges that murder was the common object and the evidence did not establish it. AIR 1942 Mad 446, Rel. on. (Para 7) Anno : I.P.C., S. 149 N. 5; S. 34 N. 3. (C) Penal Code (45 of 1860), S.146, S.147 - RIOTS - COMMON OBJECT - Common object - Proof of - Mere presence not sufficient. Mere presence of a person along with members of an unlawful assembly is not sufficient to support a finding that he had the common object of the unlawful assembly, even for the purpose of conviction under S. 147. There must be other evidence direct or circumstantial to justify a finding that he had the common object. (Para 8) Anno : I.P.C., S. 146, N. 3, 10. Cases Referred : Courtwise Chronological Paras (A) (V 29) AIR 1942 Mad 446 : 43 Cri LJ 813 5, 7 (B) (V 12) AIR 1925 Cal 913 : 26 Cri LJ 827 6

V. Krishnamurthy, for Appellants; Advocate-General, for the Govt. Judgement VENKATA RAMAIYA, J. :- The appellants who are 9 in number are involved in a case of rioting and murder. All of them have been convicted under S. 302 read with S. 34 or 149, I.P.C. for the murder of one Puttaranga Naika and sentenced to transportation for life and also of an offence under S. 147, I.P.C. and sentenced to rigorous imprisonment for a period of two years with a direction that the sentences should run concurrently. Appellants 1, 2 and 3 have been in addition convicted under 3. 148 and sentenced to undergo rigorous imprisonment) for three years the said sentence being directed to run concurrently with the other sentences imposed upon them. All these offences are found to have been committed on 27-2-1951 in a village called Honganur in Chamarajanagar Taluk, when what was apparently a boyish prank or innocent mischief of two boys, sons of accused 4 and 9, in causing water used for washing a buffalo in a pond to fall on the members of the pariwara community, who had gone there to bring water for household use, led to an outburst of animosity on the part of the appellants and others of their community against the Pariwars of the village. The immediate reaction to the prank was a rebuke by the person who had come to fetch water. The boys went home and brought their fathers and their companions who chastised the Pariwars for having rebuked the boys and were about to punish them severely. Thereupon some of the leading members of the Pariwar community arrived and remonstrated with the appellants and others who had accompanied them not to mind the affair seriously. The appellants and others with them seemed to be pacified but shortly after the Pariwars returned home, stones were pelted pell-mell, one Puttaranga Naika a Pariwar while returning home in a cart carrying fuel, was waylaid and : done to death and another Pariwar by name Kadagara Naika was also later on killed.

2. Of the persons against whom a charge-sheet was placed for the commission of several offences connected with this incident three were discharged and the rest have been acquitted of the offence relating to death of Kadagara Naika by the learned Sessions Judge, but convicted of other offences as mentioned above. The incident relating to the exchange of words between the boys washing the buffaloes and the Pariwars taking water for use at home happened at what is called Kuppe Halla and the pelting of the stones was in the village. P.Ws. 16 and 17 are the persons who took objection to the water being thrown by the sons of A-4 and A-9 and there is no reason to distrust their testimony. This is referred to in the F.I.R., Exhibit P-19, sent by the Patel on the same day. The Fate! is a Mahammadan and Exhibit p-23 the mahazar shows that a number of stones were found lying scattered near the school. The evidence of P. Ws. 16 and 17 further shows that after the two boys reported the incident to their kinsmen some of those who. arrived were armed with cutting instruments and uttered threats of injury to P.Ws. 16 and 17 and others connected with them in retaliation for the wrongs done by Pariwars. Such display of hostility on the part of appellants is not surprising as their disposition towards Pariwars of the village was by no means friendly and they with others of their group were smarting with bitterness and sense of frustration on account of a decree for conduct of processions through Pariwar locality not being effective and the case for murder of a member of their community having ended in acquittal. The appellants, members of a community larger in number than the Pariwars desirous of emphasising their strength and spirit seized it as an opportunity to fall on Pariwars.

3. The first victim to this frenzy was one Puttaranga Naika a Pariwar who left his house on the morning of 27-2-1951 to bring fuel but did not return at all. His brother and his father besides a neighbour have testified to the bullocks being yoked to the cart in the morning and his having started in a cart driven by a servant. P.W. 31. Exhibit P-29 is the mahazar prepared at the spot where the wood was cut. While the cart was approaching the village it was stopped; Puttaranga Naika was dragged and mercilessly killed on the spot by some of the appellants. The attack by the appellants on Puttaranga Naika is spoken to by P.W. 31 and his is the only evidence about it.

4. Sri Krishnamurthy the learned counsel for the appellants contended that the witness cannot be relied upon and at all events his evidence is insufficient for a conviction of murder. The adequacy of evidence to prove the case against anyone has to be determined on the peculiar circumstances of the situation in which the crime was committed and in the absence of any rule requiring a particular number of witnesses to testify to the acts imputed to the accused, the conviction cannot be assailed only because it is based on the evidence of a single witness. What is necessary in such a case is that the evidence should be subject to strict scrutiny. Considering the place and time of the assault, the manner in which appellants, like hunters in quest of and prey, lay in wait outside the village to pounce upon any Pariwar, P.W. 31s evidence cannot suffer from absence of another eye-witness. The spot of assault was not within the village but a furlong or two away from it and the attack may not have taken place or may have been prevented if there were persons nearby to intervene. P.W. 31 states that while the cart was proceeding towards the village he saw the appellants standing under a tamarind tree, that A-1, 2 and 3 had deadly weapons such as chopper, dagger or spear in their hands, that suddenly accused 8 came forward, dragged Puttaranga Naika down, A-1 and A-3 thereupon hit him with the axe and spear on the face and abdomen causing instantaneous death and that A-4, 8 and 9 incited others to cut him down, P.W. 30 says that the occurrence was reported by P.W. 31 to him within a few minutes after this and there is mention of this in Ex. P-19 the F.I.R. The learned Judge has accepted the evidence as true and I see no reason to take a different view. Accused 2 is said to have chased the witness for some distance and there is other evidence to show that all the accused ran after other Pariwars. As a matter of fact, another Pariwar Kadagara Naika was later on found lying dead. The accused have been acquitted of the charge of murder of this Kadagara Naika but this does not affect the conviction for being members of an unlawful assembly and for accused 1, 2 and 3 being armed as such members with lethal weapons and for A-1 and A-3 causing death of Puttaranga Naika. There is no reason to interfere with the conviction of the accused for the offence under S. 147 or with the conviction of accused 1 to 3 of the offence under S. 148 or the sentences passed with respect to these.

5. The conviction of the accused under S. 302 read with S. 34 or 149 raises some difficulty. It is argued that having regard to the fact that the common object mentioned in the charge is only assault and that according to the evidence only A-1 and A-3 hit Puttaranga Naika, the other accused cannot be held to be guilty of murder. In support of this - In re Manakkal Kumaran, AIR 1942 Mad 446 (A), has been cited. That was a similar case of rioting in which there were two murders and convictions were also similar. The learned Judges taking into account that S. 149 consists of two parts one relating to the commission of the offence in prosecution of the common object of an unlawful assembly and another to the knowledge that it is likely to be committed in prosecution of that object held that the later provision in the section cannot be resorted to for convicting all the members of the unlawful assembly of murder unless such was the common object.

6. Section 149 states : If an offence is committed by any member of an unlawful assembly in prosecution of the common object of the assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence is a member of the same assembly is guilty of that offence." It is more on the applicability of this section than of S. 34 that the correctness of the conviction of persons who are not the assailants depends. Section 34 cannot be invoked as it has been held to refer to cases in which several persons intend to do an act and some do that act and not to cases where several persons intend to do an act and some one or more of them do an entirely different act. Section 149 may be applicable to cases to which S. 34 does not apply. See - Aniruddha Mana v. Emperor, AIR 1925 Cal 913 (B). The essential condition for the operation of either section is that the intention in one case and object in the other should be common and if the act is in excess of or beyond the intention or object of the members, they cannot be constructively liable for it. The common object specified in the charges is "assaulting the Pariwars" and the words cannot be understood as denoting murder though assault may sometimes prove fatal. The latter part of S. 149 imputing knowledge of the offence likely to be committed is not referred to in the charge and what is alleged is that in prosecution of the common object the accused did commit murder by intentionally causing the death of Puttaranga Naika, a Pariwar.

7. In - AIR 1942 Mad 446 (A), the conviction of members of the unlawful assembly who did not themselves cause death was set aside although common object was mentioned in the charge to be murder as it was found from the evidence that the common object was to cause hurt. There is less justification in this case for the conviction of all the members of the unlawful assembly for murder as it is not alleged in the charges that murder was the common object and the evidence does not establish this. Accused 5, 6 and 7 by joining others and by reason of their being found to be near them cannot be deemed to have intended to kill Puttaranga Naika when they carried no weapons with them.

8. Even for a conviction under S. 147, I.P.C., it must be remembered that mere presence of a person along with members of an unlawful assembly is not sufficient to support a finding that he had the common object of the unlawful assembly. There must be other evidence direct or circumstantial to justify a finding that he had the common object. In this case the appellants were found in more than one place showing a hostile attitude to Pariwars and in fact there is evidence to show that all the appellants chased Kadigara Naika another Pariwar woo was later on found murdered. The object which may be imputed to them in the circumstances of the case can be nothing more than causing hurt. The act of accused 8 in pulling him out of the cart cannot necessarily be anything more, than, that of accused 5, 6 and 7. Accused 4 and 9 are said to have only uttered abusive words and incited others to attack. The convictions of accused 1 and 3 and sentences passed on them according to the judgment of the lower Court are confirmed and the appeal is dismissed as regards these. The conviction of the other accused under S, 147, I.P.C. is confirmed. The conviction of these under S. 302 read with S. 149 or 34, I.P.C. is modified by convicting them of offences under S. 324 read with S. 149, I.P.C. The sentences for these are limited to the period of imprisonment already undergone. Except for this modification the appeal is dismissed. Accused 4 to 9 will be released forthwith. Order accordingly. AIR 1954 MYSORE 78 (Vol. 41, C.N. 36) "Gavishappa v. Krishniah" MYSORE HIGH COURT Coram : 1 VENKATA RAMAIYA, J. ( Single Bench ) T.B. Gavishappa, Plaintiff-Appellant v. Devatha Krishniah Setty and another, Defendants-Respondents. Second Appeals Nos. 505, 506, 510 and 511 of 1950-51, D/- 23 -9 -1953, against decree of Addl. Sub. J., Bangalore, in R. As. Nos. 39 and 40 of 1950-51. (A) Easements Act (5 of 1882), S.35 - EASEMENT - Right to party wall. Held that whether the wall was common property of plaintiff and defendant or whether each was entitled to a half longitudinally was not material since in either case, the stability or preservation of the wall was necessary for both and neither could use the wall either as joint owner of the whole or full owner of the moiety in such a way as to injure the rest of the wall or the structure supported by it. The agreements entered into entitled the defendant to have use of the wall and placing R.C.C. beams or girders to the extent of 8 inches on the wall. But the scratches or scoopings caused in the process might, if not suitably covered up, weaken the wall and thereby the lateral support due to the plaintiffs building might be impaired. It was in the interests of both necessary that the wall on both sides should be in a safe and stable condition and the direction that defendant should plaster the wall to cause the scoopings to disappear was justified. (Para 2) Anno : Easements Act, S. 35 N. 7. (B) Easements Act (5 of 1882), S.28(e) - EASEMENT - OBJECT OF AN ACT - Scope. Section 28(e) may be resorted to in the absence of evidence about probable intention of parties as regards mode of enjoyment the purpose for which the right was imposed or acquired. To the east or plaintiffs building and close to the common wall there was a lane through which a drain was laid to serve as an outlet for all the refuse water of his house. The construction of the defendants if allowed to proceed was to lead to the disappearance of the existing drain and its being substituted by a new one. There was evidence of arrangement entered into by the parties twice to avoid disputes. The position of the drain was not prescribed in the documents but extension and improvement of the same might be effected by defendants with a condition that plaintiff had to contribute half the expenses, for the same. The laws and rules of sanitation had rendered adherence to what was in vogue formerly impossible as the drain was not now open but underground and the waste water from plaintiffs building was thrown into the drain not exactly at points prescribed in the documents but at the end of the wall : Held that the right which the plaintiff in view of this could be deemed to have, was an outlet on defendants land for the waste water of his house being conveyed to the municipal gutter and if that was safeguarded and sufficiently ensured the plaintiff could have no cause for complaint. The defendants without seeking any payment from plaintiff undertook to facilitate the flow of water from the plaintiffs building to the public drain through the new one to be set up, as freely and uninterruptedly as in the existing one. This should be enough for protection of plaintiffs rights. (Para 3) Anno : Easements Act, S. 28 N. 1. (C) Easements Act (5 of 1882), S.28, S.35 - EASEMENT - Impairing of enjoyment. Enjoyment of the easement cannot be regarded as impaired by acts which are negligible and such as changes as a person of ordinary sense and temper will not mind. (Para 6) Anno : Easements Act, S. 28 N. 1. Cases Referred : Courtwise Chronological Paras (A) (V 9) AIR 1922 Bom 407 : 46 Bom 910 4 (B) (96) 20 Bom 788 5

V. Krishnamurthy, for Appellant; Nittoor Srinivasa Rao, for Respondents in Nos. 505 and 506-of 1950-51; Nittoor Srinivasa Rao, for Appellants; V. Krishnamurthy, for Respondents in 510 and 511/1950-51. Judgement These four Second Appeals arise from a suit for injunction mandatory and permanent with respect to a wall, passage and flow of water through a drain. Plaintiff is the owner of the building Municipal No. 2/25 and defendants who are two brothers own the property No. 2/24 to the east of the building in Chickpet Bangalore City. To the east of plaintiffs building and close to the wall there is a lane through which a drain is laid to serve as an outlet for all the refuse water of his house. For construction of two opposite rows of shops leaving some space between the two, after demolition of the existing shops at the southern end of No. 2/24 defendants obtained license from the City Corporation and for the purpose of the said construction girders are placed on the eastern wall of No. 2/25 causing some damage to it. The construction, if allowed to proceed, will lead to the disappearance of the existing drain and its being substituted by a new one in the passage provided for between the two rows of shops. The plaintiff, therefore, sought for permanent injunction to restrain defendants from interfering with his right of access to the common wall and of passage as heretofore, for mandatory injunction to pull down the construction, which obstructs plaintiffs right of access to the wall, flush and passage. The trial Court held that the wall is common property, the western half belonging to the plaintiff and the eastern half to the defendants entitling them to rest the beams thereon but mandatory injunction was granted for plastering the wall and setting right the scratches or cracks caused by fixing the girders or otherwise. The lane in which the drain exists was held to be the exclusive property of the defendants but the plaintiffs right to let out the water-including that from the bath room and latrines of the building through two definite apertures into the drain, was upheld. Shifting the drain from its present position was allowed since it would not affect the right of sewage or sullage from plaintiffs building. The claim of passage was limited to enable plaintiff to see that the wall was intact. Both parties being dissatisfied appealed and in a judgment by which both appeals were disposed of, the learned Subordinate Judge confirmed the direction that defendants should plaster the wall except at three points where the R.C.C. beams are resting, allowed the claim to the flow of water from plaintiffs building to and in the drain as heretofore without restrictions for it of the particular apertures fixed by the trial Court and the claim that the drain should continue not merely as it is but also where it is. The finding as regards the wall was that half of it longitudinally exclusively belonged to the plaintiff and the other half to the defendants with a right of passage to the plaintiff to inspect the wall and the drain. Against this decision in the two appeals, there are second appeals by the plaintiff and two by the defendants, which may all be disposed of by a common judgment.

2. The question whether as held by the trial Court the wall is common property of plaintiff and defendants or whether as found by the Appellate Court, each is entitled to a half longitudinally is not material since in either case, the stability or preservation of the wall is necessary for both and neither can use the wall either as joint owner of the whole or full owner of the moiety in such a way as to injure the rest of the wall or the structure supported by it. Sri Krishnamurthy on behalf of the plaintiff argued that the wall as a whole which is 64x1x3" as well as the drain must be treated as subject to joint ownership of the parties and the defendants cannot unilaterally interfere with either the wall or drain in any manner. Reliance is placed for this on the document Exhibit C dated 11-10-1924 between the plaintiffs father and the predecessors in title of the defendants. There seem to have been disputes between the neighbouring owners even earlier about the wall and drain as seen from Ex. D a registered document of 6-1-1897. Though Ex. C is of later date, it cannot be deemed to be a new agreement in supersession of Ex. D, as urged for the plaintiff. Being unstamped and unregistered its utility to serve as a basis of the rights of parties is open to doubt and Ex. C cannot be read as being repugnant to Ex. D. Exhibit C does not refer to Ex. D at all and the mention of the wall as common, or belonging to both in Exhibit C is not inconsistent with the recital in Ex. D that half of the wall longitudinally belongs to each as it implies that in relation to the whole both have equal rights. According to Ex. D cost of the creation, of the wall was to be borne by plaintiffs father and the drain was provided by the defendants predecessors in title. Exhibit C requires that the cost for setting right the wall and improving the drain should be shared by the parties. Reading the two what may be gathered is that both could have the use of the wall and the drain without disadvantage to either with joint liability for the proper upkeep of these. The wall is what is called a party-wall of the kind mentioned at page 428 in Gale on Easements denoting "wall divided longitudinally into two portions each portion being subject to a cross easement in favour of the other". The agreements entered into previously entitle the parties to have use of the wall and placing R. C. C. beams or girders to the extent of 8" on the wall as is found to be done by defendants cannot be said to be unauthorised. But the scratches or scoopings caused in the process may, if not suitably covered up, weaken the wall and thereby the lateral support due to the plaintiffs building may be impaired. The wall seems to have been raised originally by the owners of plaintiffs building and even if Exs. D and C are construed as conferring on defendants full rights to a moiety of the wall they cannot deal with it in a manner which will endanger the plaintiffs structure. At page 396 of Gales book on Easements it is stated : "Where a man grants a divided moiety of an outside wall of his own house with the intention, of making such wall a party-wall between his, own house and an adjoining one to be built by the grantee the law implies the grant and reservation in favour of the grantor and grantee respectively of such easements as may be necessary to carry out what was the common intention of the parties with regard to the user of the wall varying with the particular circumstances of each case. Thus if for example it is within the contemplation of the parties, that the grantee shall support the roof of the house he intends to build upon that moiety of the wall which is comprised in the grant the other moiety of the wall will be subject to an easement of lateral support for the benefit of the roof when erected, and similarly the grantees moiety of the wall will pass to him subject to the easement of lateral support for the benefit of the grantors roof if supported by his half of the wall." Exhibit D contemplates the wall being made use of for a first floor and it is already so made use of in plaintiffs building. The defendants too may have similar use but it is in the interests of both necessary that the wall on both sides should be in a safe and stable condition. There is no need, therefore, to interfere with the direction that defendants should plaster the wall to cause the scoopings be disappear is justified.

3. The main grievance of defendants against the decision of the learned Subordinate Judge is stated to be the prohibition imposed upon them to shift the drain by altering its situation. It is urged by Sri Nittoor Srinivasa Rao on their behalf that the proposed change does not in the least prejudice the plaintiff but without it defendants will suffer substantial loss and disadvantage inasmuch as a long strip of land has to be left vacant and they will be handicapped as compared with plaintiff in exercise of their rights over the party wall. Considered in the light of convenience and results of permitting or forbidding the diversion of the drain, the view of the learned Judge that the drain should continue as it exists does not seem to be reasonable. The property is situated in a busy commercial locality of the City where every inch of ground is of high value and if the drain has to remain where it is, the row of shops facing east as shown in the plan Ex. M approved by the Corporation cannot be constructed. When asked to explain as to how the plaintiff would be inconvenienced if the drain is shifted, Sri Krishnamurthy and the plaintiff did not allege anything in particular but it was contended to be opposed to law so as to make it obligatory on the defendants without regard to the considerations of convenience or hardship not to meddle with the existing condition. Reliance for this was placed on S. 28(e) of the Easements Act according to which the mode of enjoyment of a prescriptive right such as the one in dispute must be determined by the accustomed user of the right. This provision may be resorted to, as stated in the section itself, in the absence of evidence about probable intention of parties as regards mode of enjoyment and the purpose for which the right was imposed or acquired. This is not a case in which the mode of enjoyment needs to be determined only with reference to accustomed user as there is evidence of arrangement entered into by the parties twice in Exs. D and C to avoid disputes. The position of the drain is not prescribed in the documents but extension and improvement of tae same may be effected by defendants with a condition that plaintiff has to contribute half the expenses for the same. As pointed out for the defendants, the laws and rules of sanitation have rendered adherence to what was in vogue formerly impossible as the drain is not now open but underground and the waste water from plaintiffs building is thrown into the drain not exactly at points prescribed in Ex. D but at the end of the wall. The right which the plaintiff in view of this can be deemed to have is an outlet on defendants land for the waste water of his house being conveyed to the municipal gutter and if that is safeguarded and sufficiently ensured the plaintiff can have no cause for complaint. The defendants without seeking, as they are entitled to, under Ex. D any payment from plaintiff undertake to facilitate the flow of water from the plaintiffs building to the public drain through the new one to be set up, as freely and uninterruptedly as in the existing one. This should be enough for protection of plaintiffs rights.

4. Even so Sri Krishnamurthy urged that the right of passage would be affected and these considerations cannot apply to it. In support of this he cited - Dhundiraj Balkrishna v. Ramchandra Gangadhar, AIR 1922 Bom 407 (A) in which it was held when a line of way was definitely set out neither the dominant nor the servient owner can compel the other to give or accept a different or substituted way. The present case is distinguishable as there is no denned right of way to be considered, Exs. C and D make no reference to it and approach to any particular spot or place as in that case is not involved. Further the right is essentially one of observation and inspection of the drain and there will be no impediment to this as plaintiff has for exercise of the right, only to turn his attention towards a slightly different direction. The principle enunciated in the said decision cannot be of any help to the plaintiff.

5. A case more in point is the one in - Bala v. Moharu, 20 Bom 788 (B) where it was held that a right to have water carried away over the adjoining land doss not give its owner any power to prevent the erection of buildings on the adjoining ground as long as the arrangements necessary to the preservation of his right are made. Section 27, Easements Act enables the servient owner to "use the servient heritage in any way consistent with the enjoyment of the easement not tending to restrict the easement or render its exercise less convenient."

6. Enjoyment of the easement cannot be regarded as impaired by acts which are negligible and such as changes as a person of ordinary sense and temper will not mind. The considerations governing it are stated by Gale in his book of Easements at page 514 thus : "It is not every interference with the full enjoyment of an easement that amounts in law to a disturbance; there must be some sensible abridgment of the enjoyment of the tenement to which it is attached, although it is not necessary that there should be a total obstruction of the easement. The injury complained of must be of a substantial nature in the ordinary apprehension of mankind and not arising from the caprice or peculiar physical constitution of the party aggrieved." I do not think there is any justification for the plaintiff to feel aggrieved by the deviation of the drain. The direction in the decree of the learned Sub-Judge forbidding it is therefore set aside. With a view to prevent further dispute between the parties in modification of the decrees of the Courts below there will be a decree in the following terms : (a) That defendants will at their own cost plaster the wall marked B C in the plan Ex. A; (b) defendants will not prevent the flow of water from plaintiffs building through the existing drain till they construct a drain as shown in Ex. M and after such construction defendants may build on the existing drain; (c) The Wall B. C. is common property in the sense that western half longitudinally belongs to the plaintiff and eastern half to defendants with rights to both to inspect each others portion when necessary and obligation not to do anything which may prejudice right of lateral support each is entitled to; (d) plaintiff has a right of passage to inspect the drain when there is need for it. As in the Courts below, parties will bear their own costs in this Court. Order accordingly. AIR 1954 MYSORE 81 (Vol. 41, C.N. 37) "Muniswamy v. State" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) Bayysppanavara Muniswamy and others, Accused v. State. Criminal Appeals Nos. 38, 42, 53 and 54 of 1953 and Cri. Referred Case No. 4 of 1953, D/- 24 -9 -1953. (A) Criminal P.C. (5 of 1898), S.222, S.223 - CHARGE - ABETMENT - Abetment. Penal Code (45 of 1860), S.109. The date of the abetment was stated in the charge to be that of offence or about that time, while evidence was let in to make out that the instigation was 10 days earlier. Held that there would be no room for the objection that divergence concerning the time is a vital defect sufficient to entitle the accused to an acquittal irrespective of the evidence if it was stated in the charge that the accused abetted the commission of the offence between any two dates within which the one referred to by witnesses falls. AIR 1915 Lah 16 Rel. on. (Para 5) Anno : Cr. P.C. S. 222 N. 3. 1953 Mitra : S. 222 P. 931 N. 725 "Particulars .... etc.). Cr. P.C. S. 223 N. 17; Penal Code S. 109 N. 7. (B) Criminal P.C. (5 of 1898), S.222 - CHARGE - Time of offence. Where the charge framed against accused alleged that on or about 8-11-1952 at Thirumalahally they abetted the commission of the offence of murder of one Appaiah. Held that the words "on or about 8th Nov. at Thirumalahally" in the charge could not be construed as being comprehensive enough to apply to acts outside the village about 20 days earlier and sufficient to give notice of it to accused. AIR 1934 Lah. 535, Rel. on. (Para 6) Anno : Cr. P.C. S. 222 N. 3. 1953 Mitra : S. 222, p. 931, N. 725, "Particulars ...... ...... ............ etc". Criminal P.C. (5 of 1898), S.367. Privacy and secrecy are more characteristic of a conspiracy than a loud discussion in an elevated place open to public view in the garden of a stranger. (Para 9) Anno : Penal Code S. 120A N. 1, Cr. P.C. S. 367 N. 6. 1949 Mitra : S. 367 P. 1158, N. "Decision thereon" (Topic discussed in N. 6 to S. 367 in AIR Com. on "Appreciation of evidence" extra). (D) Evidence Act (1 of 1872), S.27 - CONFESSION - Extent of information provable. Where the instrument was an instrument of the kind possessed ordinarily by persons in the village, situation and condition of the hut were such as to afford easy access and entry to any one and the accused persons were living together and both were accused of the murder; Held that the production of the instrument by one of the accused was not by itself sufficient to incriminate him though it might raise suspicion. It only implied that he was aware of the instrument being kept or left in the hut. As means of connecting the accused with the offence its value depended on the other evidence. AIR 1947 P.C. 67 Foll. (Para 14) Anno. Evidence Act S. 27 N. 7. (E) Criminal P.C. (5 of 1898), S.208, S.252, S.286 - WARRANT CASE - EVIDENCE - COURT OF SESSIONS - Duty of prosecution to call as witnesses all persons. Evidence Act (1 of 1872), S.114. The prosecution cannot be expected much less enjoined to produce evidence which tends to demolish its own case but has to present it in fairness in its true colour without twisting or straining it for securing a conviction but put it for consideration by the Court. If all available evidence helpful to the prosecution as well as destructive of the case put-forward, is placed before the Court, needless confusion will be caused and unnecessary labour will be imposed on the Court. AIR, 1936 P.C. 289 Explained. (Para 15) Anno : Criminal P.C., S. 208 N. 7. 1953 Mitra : S. 208 P. 882 N. 697 "Taking...... produced" (3 Pts. extra in N. 7 to S. 203 in AIR Com. - 2 Pts. extra in Mitra - See also S. 253 N. 5 and S. 286 N. 6 in AIR Com. and 1953 Mitra S. 252 P. 1081 N. 823 "Taking.............. prosecution", P. 1082 N. "Order... .witnesses", 1949 Mitra, S. 286 P. 897, N. 893 "Examination........ witness" and P. 286 N. "Older... .examination"). Criminal P.C., S. 252 N. 5. 1953 Mitra : S. 252 P. 1081 N. 823 "Taking....prosecution" and P. 1082 N. "Order... .witnesses" (4 Pts. extra in N. 5 to S. 252 in AIR Com. - 4 Pts. extra in Mitra - 51 Cri L. J. 115 - AIR 1949 Cal 586 not noticed under Pt. 7 in N. 5 to S. 252 in AIR Com. - See also S. 208 N. 7 and S. 286 N. 6 in AIR Com. and 1953 Mitra : S. 203 P. 832 N. 697 "Taking..... .produced", 1949 Mitra : S. 286 P. 897 N. 893 "Examination... .witnesses" and P. 286 N. "Order..... .examination"). Criminal P.C., S. 286 N. 6. 1949 Mitra : S. 286 P. 897 N. 893 "Examination ........witnesses" and P. 286 N. "Order.......... examination" (Pts. 10, 11, 15, 16, 18, 22, 24 and 25 extra in N. 6 to S. 288 in AIR Com. - See also S. 208 N. 7 and S. 252 N. 5 in AIR Com. and 1953 Mitra : S. 208 P. 882 N. 697 "Taking....produced", S. 252 P. 1081 N. 823 "Taking........prosecution" and P. 1082 N. "Order... .witnesses"). Evidence Act, S. 114 N. 11. (F) Evidence Act (1 of 1872), S.134 - WITNESS - EVIDENCE - Conviction based on evidence of solitary witness. Although it is permissible to base a conviction on the testimony of a solitary witness and there are instances of such convictions even for capital offences, such instances are rare and found to be of exceptional circumstances. A case cannot be considered to be one of that type when the spot of murder is surrounded by houses in the village and close to the Bhajanemane where people congregate and the time is evening when people usually return home. It is difficult to assume that none but a single person could have witnessed the commission of the crime or that better material could not have been placed before the Court. (Para 15) Anno : Evidence Act, S. 134 N. 1. (G) Criminal P.C. (5 of 1898), S.161(3) - WITNESS - INVESTIGATION - Record of statements. The Investigation Officer need not record verbatim what the various witnesses tell him and Sub-S. (3) hits at the practice of writing against the names of certain witnesses after the first that they corroborated the statements of the earlier witness. The section leaves it, to the option of the police officer to record or not, statements of those he examines, and when he does record statements of a number of persons, each statement must be capable of being read by itself without necessarily looking into the other. To facilitate the statements being used for purpose of contradiction, it is advisable to note as far as possible, the exact words in which the statements are made and also to err, if at all, on the side of superfluity rather than brevity as that will avoid controversies about omissions. (Para 15) Anno : Criminal P.C., S. 161 N. 6. 1953 Mitra : S. 161 P. 553 N. 498 "Recording of statement" (2 Pts. extra in N. 6 to S. 161 in AIR Com. - 3 Pts. extra in Mitra). Cases Referred : Courtwise Chronological Paras (A) (V 2) AIR 1915 Lah 16 : 16 Cri LJ 354 5 (B) (V 21) AIR 1934 Lah 535 : 149 Ind Cas 127 6 (C) (V 34) AIR 1947 PC 67 : 48 Cri LJ 533 (PC) 14 (D) (V 23) AIR 1936 PC 289 : 37 Cri LJ 963 (PC) 15 (E) (V 37) AIR 1950 Cal 363 : 51 Cri LJ 1307 15 (F) (V 35) AIR 1948 Mad 23 : 48 Cri LJ 973 15 C.B. Motaiya, V. Krishnamurthy, M. Ranga Rao and Guloor Sreenivasa Rao, for Accused (Nos. 1, 6, 7 and 8 in Cr. A. Nos. 38, 42, 53 and 54 respectively); Advocate-General, for the Government. Judgement VENKATA RAMAIYA, J. :- On the evening of 8-11-1952 one Venkataramanappa alias Appaiah aged about 45 years was murdered in front of His own house in Tirumalahally, a village situated at a distance of about 6 miles from Mulbagal and about 60 miles from Bangalore. Information of the murder reached the police Out Post at Tayalur shortly after and conveyed to the Sub Inspector at Mulbagal the same night. Investigation started on the following day and a charge sheet was placed on 25-11-1952 in the Magistrates Court at Kolar against 9 men alleging commission of the offence of murder by some with the abetment of others amongst them. Of the 9 persons thus accused, the last has been absconding, the 3rd was dig-charged and the rest were committed for trial. The learned Sessions Judge acquitted Accused 2, 4 and 5, found Accused 1 guilty of committing the murder and sentenced him to death. Accused 6, 7 and 8 are convicted under S. 302 read with S. 109 I.P.C. and sentenced to transportation for life. Against these convictions and sentences these four appeals are filed by Accused 1, 6, 7 and 8 respectively and for confirmation of the sentence of death there is a reference under S. 374 Criminal P.C. The appeals and the reference will be disposed of by this judgment.

2. It is undisputed that Appaiah returned at about 6 P.M. on 8-11-1952 to his house after a visit to a neighbouring village, went out to bring coffee powder as his wife said that there was no powder to prepare the coffee he asked for and within a short while after this, severe injuries on his chest and abdomen were inflicted causing instantaneous death. The only person who has given evidence as regards the persons who caused those injuries is P.W. 30, a son of the deceased Appaiah. Accused 6, 7 and 8 are not alleged to be the assailants but are said to have instigated or induced Accused 1 to murder Appaiah. For this, the evidence of two witnesses P.Ws. 27 and 28 is chiefly relied upon.

3. The motive imputed to A-6, A-7 and A-8 for plotting the death of Appaiah is that he and Accused 8 headed rival factions in the village, that owing to hostility of feeling between the parties Accused 8 was highly incensed where Appaiah who failed to secure even a single vote at the election of members to the Village Pan-chayati became the Chairman and therefore, in collaboration with Accused 6 and 7 who are both of his party, engaged Accused 1 for getting rid of him. Though the accused have denied the existence of parties in the village, the statement of P.W. 8 the Amildar that there were two parties, one led by Appaiah, the other by Accused 7 and 8 and that the two were at loggerheads at the time of the Panchayat Elections may be accepted as unbiassed and true. The records relating to the Elections were called for and exhibited to show that A-6 and A-7 did not stand as candidates at all for Election, that while A-8 got the highest votes, Appaiah got none and that he was not even nominated as a member of the panchayat. The names of the elected and nominated members are mentioned in Ex. D-22 but no one is named as Chairman in the column provided for it. In view of the absence of Appaiahs name in Ex. D-22 and of any order or resolution about the Chairmanship, it is difficult to believe that Appaiah was or could be the Chairman as stated by some witnesses though he was miserably defeated in the election and not even nominated as a member. The Amildar does not speak to it and no rule under which this is possible has been pointed out.

4. The interval between the election and the murder is so long as two years during which Accused 8 would not have failed to disclose his resentment by protest or otherwise if Appaiah, acted as Chairman and if A-8 took it seriously. There is nothing to suggest that Accused 7 or Accused 8 was enraged against Appaiah on this account or that his being the Chairman prompted or aggravated hatred towards him. It is not likely to have been dormant for nearly two years, and suddenly without any further provocation flared up so as to goad Accused 6, 7 and 8 to employ hirelings for killing him. Considering the evidence as a whole the motive alleged for the abetment of the offence appears to be weak and farfetched.

5. As regards the evidence relating to the charge Sri Jayaram Iyer learned counsel for Accused 7 and 8 argued that apart from its being untrustworthy, it has no bearing on the charge framed against Accused 6, 7 and 8 since the date of the abetment is stated in the charge to be that of offence or about that time, while evidence is let in to make out that the instigation was 10 days earlier. This divergence concerning the time is commented upon as a vital defect sufficient to entitle the Accused to an acquittal irrespective of the evidence. There would not have been room for the objection if it was stated in the charge that the Accused abetted the commission of the offence between any two dates within which the one referred to by the witnesses falls. The charge in - Balmokand v. Emperor, AIR 1915 Lah 16 (A), was of that kind. The abetment in the present case is sought to be proved not by inference from acts or circumstances spread over days but by the conversation of Accused 1 with Accused 7 and 8 on a particular day at a particular place and this conversation implies that the instigation was indefinitely earlier but not within a fortnight as it is said to have started with reminding Accused 1 of the payment of consideration for the murder of Appaiah about a fortnight back and pointing out the dilatoriness on the part of Accused 1 to fulfil the task. Excepting the conversation itself there is nothing on record to suggest that Accused 6, 7 or 8 contacted Accused 1 or arranged with him either before or after it, for the murder. If, as indicated in the conversation the scheme for murder originated previously the abetment must be deemed to have been about 20 days prior to the commission of the offence.

6. Section 222, Criminal P.C. states : "The charge shall contain such particulars as to the time and place of the alleged offence and the person (if any) against whom and the thing (if any in respect of which) it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged." The charge framed against Accused 6, 7 and 8 alleges that on or about 8-11-1952 at Thirumalahally they abetted the commission of the offence of murder of Appaiah, by A-1, A-2, A-4, A-5, etc. There is no evidence of abetment either on 8th November or at Thirumalahally. The words "on or about the 8th November at Thirumalahally" in the charge cannot be construed as being comprehensive enough to apply to acts outside the village about 20 days earlier and sufficient to give notice of it to Accused. In view of this there is force in the contention that if the time of abetment had been specified in the charge in keeping with the evidence the Accused may well have established a plea of alibi and they are prejudiced by the evidence which is clearly at variance with the charge so far as the date is concerned, being acted upon. In - Panchu Gazi v. Ejahar Ali Sarkar, AIR 1934 Lah 535 (B), a conviction for assault was quashed by Tekchand, J. on the ground amongst others that the error in the charge as regards the date of assault was a material irregularity.

7. The learned Sessions Judge has apparently overlooked the discrepancy and the effect of this. He has also failed to notice that the evidence, such as it is, is thin in varying degrees to prove abetment by Accused 6, 7 and 8.

8. Accused 6 and the other two are of different castes and there is evidence of a protracted litigation between him and Accused 8 still ponding in this Court. It is also admitted that his brother was murdered by a brother of Accused 1. The improbability of Accused 6 being in intimate association with Accused 8 or Accused 1 on account of these is strengthened by his having acted as an interested friend of Appaiah in persuading his wife to join him. P.W. 19 has testified to the compromise he brought about. P.Ws. 27 and 28 who profess to have overheard the talk do not say that Accused 6 participated in the talk and from the conversation as rendered by them even the presence of Accused 6 when the murder by Accused 1 was hit upon and fixed previously cannot be inferred.

9. P.Ws. 27 and 28 are, what may be called "chance witnesses", who as passersby out of curiosity or otherwise, casually listened to the exchange of talk going on between Accused 1 on the one hand and Accused 7 and 8 on the other, while these were seated on a mound in a garden known as Aziz garden. They could not have heard the talk but for a conjunction or series of accidents such as selection of the particular route which lay near the Aziz garden in preference to shorter or other routes for returning to their village, arrival at the place at the crucial moment when the conversation relating to murder commenced, availability of a convenient position for them to hear without being seen, their remembering the exact words employed for the question and answers, but nothing else spoken at the time. Privacy and secrecy are more characteristic of a conspiracy than a loud discussion in an elevated place open to public view in the garden of a stranger. These are considerations for assessing the evidence of these witnesses with special care and caution. P.W. 27 admits that in his deposition as recorded by the Magistrate, there is no reference to Accused pointed out to the Inspector and that he is indebted. It is suggested in the cross-examination that his evidence regarding genuineness of a receipt produced by a judgment-debtor in Chittoor Court was disbelieved, that petitions are sent by him to Government about the present case and that Accused 7 had preferred a complaint against him for cutting sandal tree. P.W. 28 denies that he was fined by the Amildar on a complaint by A-7. But Ex. D-1 shows that for the wrongful disposal of trees belonging to Government as his own, he was fined Rs. 50/- and ordered to pay Rs, 120/- as value of the trees. When there is no express reference to Appaiah by Accused 7 in the conversation as reproduced by this witness, no reference to Accused 8 in the deposition of P.W. 27 in the committal Court and accused 6 according to both was a mere listener and a spectator, the conversation which is mainly relied upon as of proof of conspiracy can be of little value, apart from the charge being defective. The fact that these Accused travelled in the same bus sometimes as stated by P.Ws. 12 and 17 or that they drank coffee together in a hotel as stated by P.Ws. 10 and 11 can only signify at best companionship and not conspiracy. P.Ws. 9 and 19 say that Accused 1 and 5 have got lands and houses, and apparently A-1 was in want or need to be tempted to serve as hireling.

10. Another factor to be noticed in regard to the theory of abetment is that according to the evidence of P.Ws. 19 and 25, Accused 1 and his brother are said to have often manifested their hostility to Appaiah by threatening to strike him with chopper and dagger in their hands. P.W. 8 the Amildar says Appaiah complained to him about Accused 5 for this. P.Ws. 29 and 33 also say that Accused 1 and 5 were inimical to Appaiah. If Accused I was a sworn enemy of Appaiah and made no secret of his determination to kill him, he did not need instigation of any one to perpetrate the crime. Payment of money to him was unnecessary and an avoidable payment is not likely to have been made by Accused 7 and 8 as inducement for the commission of the offence. In any case there is uncertainty of the murder being due to Accused 1s own determination or instigation of others. A-2, A-4, and A-5 who along with Accused 1 were charged with commission of the offence have been acquitted. Though the charge imputed abetment of the commission of the offence by all these no evidence whatever is adduced with respect to Accused other than A-1. On the whole, I think the materials on record are inadequate to justify the conviction of A-6, A-7 and A-8 for an offence under S. 302 read with S. 109, I.P.C.

11. The conclusion arrived at about A-6, A-7 and A-8 affects to a certain extent the case against A-1 who is held to be the principal offender as it takes away the alleged cause for the attributed acts. Though enmity against Appaiah is said to be common to A-1 and A-5, though P.W. 30 the eye witness has stated that A-2, A-4 and A-5 struck Appaiah and P.W. 31 says that he saw both A-1 and A-2 run away soon after the fatal assault, the learned Judge has felt it unsafe to rely upon these for convicting Accused 2, 4 and 5. The main reason for a difference being made in the case of Accused 1 appears to be his being mentioned in Ex. P-7 as the only assailant and production of M. O. 7 the bloodstained dagger by him from a hut. Beyond stating that Accused 1 was expressing and displaying his murderous intent none of the Witnesses has ascribed any motive for A-1 being wroth against Appaiah. The threats, if true, must have been slighted, treated as empty, as no complaint is shown to have been made against A-1 and the only complaint was to the Amildar and that against A-5 and not A-1. The contest in the election was between the deceased and A-8 amongst the Accused. A-1 did not figure in it nor does it seem that he espoused the cause of any of the rivals. Lack of even a plausible ground on which he may be deemed to have been driven to indulge in a cruel attack, unmindful of consequences is an important factor to be borne in mind while dealing with the case against Accused 1 as motiveless murders are rare.

12. It is no doubt stated in Exhibit P-7 that A-1 was the assasin and this would have been a strong factor against him if it was free from suspicion. The Patel P.W. 29 by whom Ex. P-7 was signed and sent, says that he does not know its contents. It was written by his brother P.W. 34 who is a dismissed patel and is succeeded by Accused 8. The learned Judge has characterised him as a very unreliable person and the is borne out by his having mentioned only the name of Accused 1 in Ex. P-7 though "P.W. 30 told P.W. 29 in (his) presence that A-1 and others had killed his father"; while he says that signature of P.W. 30 was not taken to the report P.W. 30s statement in the committing court was "after hearing me (him) P.W. 29 (Patel) told Apps Gowda (P.W. 34) who wrote the report and they took my (his) signature to it". The evidence of P.W. 26 the constable at Tayalur Out-Post who received Exhibit P-7 makes it worse as he says that on receipt of Ex. P-7 he noted in his day book that "some one" had murdered Appaiah of the public road and his statement before the Magistrate is that P.W. 34 wrote Ex. P-7 before the Police Station, P.W. 29 signed it in the presence of P.Ws. 31 and 33. The latter statement is contrary to that of the Patel and the said witnesses and the entry is inconsistent with the recitals in Ex. P-7. There is thus a grave doubt whether Ex. P-7 is really the first report of the occurrence, whether it was written at the village chavadi on the basis of the information given by P.W. 30 or prepared later near the police station in consultation with the witnesses. The discrepancy between the entry In the book that some one and the statement to Ex. P-7 that A-1 was the murderer was left unexplained in re-examination of P.W. 26 and the book has not been produced. It is now represented that there is no such book and no entry whatever but this was not elicited from the witness or the Inspector who was examined later. In view of this and R. 123 of the Police Manual, Volume I, which states : "Every literate constable .... .... .... ..shall maintain a note book in Form No. 22 wherein he shall record the work done by him, the facts observed, information obtained etc.", the statement of the witness cannot he false or ignored. Added to this there is admission of P.W. 35 the Police Inspector that P.W. 29 the Patel had given a petition saying that the original complaint given by him was torn by the Inspector and another got written. The complaint referred to is Ex. D-13 dated 13-11-1952 addressed to the Deputy Commissioner wherein P.W. 29 mentioned two persons as eyewitnesses to the murder and alleged that the Inspector and his subordinates came to the spot, hurled abuses on him, tore away the report sent by him, got some report written by compulsion and coerced him to sign it, which is contrary to facts. Exhibit P-34 dated 5-11-52 is another report by P.W. 29 addressed to the Daffedar, Tayalur circle : wherein information given by two persons about the names of murderers are set forth. P.W. 25 the Inspector denies having received any report such as Ex. P. 34. The impression left by all these is that there was shuffling and manipulation in the representation of the incident. Exhibit P-7 cannot therefore claim the importance and weight due to a First Information Report.

13. As regards witnesses to the occurrence, two were cited in the charge sheet but only one is examined and he is a son of the deceased, 10 or 12 years of age. His version of the incident is that A-4 and A-5 each held one arm of his father, A-1 pierced his chest with a dagger, A-2 hit his head with a chopper, that on a cry being raised A-2, A-4 and A-5 ran away, A-1 then felled the father and pierced the stomach with a dagger and ran away, he told his mother P.W. 32, then P.W. 33 and P.W. 29 the Patel that A-1. A-2, A-4 and A-5 killed the father. The statement with respect to A-2, A-4 and A-5 is contradicted by P.W. 29 who says that only A-1 was mentioned as murderer. The boy pleads confusion for making inconsistent statements about signing the report. The attack is said to have taken place subsequent to the father saying that he would go to shop of P.W. 19 for coffee powder and after his return but there is no proof of his having gone there. The Bhajane Mane is situated near the house of the deceased and out of the 10 or 12 persons present there, only P.W. 19 cams out hearing the cry and he too does not say that A-1 was seen. The evidence of P.W. 31 who is of a different village is that he saw Appaiah being surrounded by 4 or 5 persons including A-1 and A-2 with dagger and chopper, that A-1 and A-2 ran after-Appaiah was struck down and that he did not mention what he saw to any one but the police. His evidence can only be taken as being suggestive and not positive as regards actual assailants. His running away without calling for aid and omission to mention the incident to any one is however strange. P.W. 33 who speaks to A-1 and A-2 running away with M. O. 7 and M. O. 9 respectively in their hands; is not a disinterested person as he admits that A-1, A-2 and A-5 were witnesses for the prosecution in a case in which he was accused of murder. He seems to have taken active interest in this case. That A-1 was seated and A-2 was standing by his side near the house of Appaiah, as spoken to by P.W. 19, before the occurrence, is not a material circumstance against A-1 as his own house is close by. Unless it is possible to rely on the testimony of P.W. 30 the evidence of all those will not be sufficient for the conviction of A-1.

14. The learned Assistant Advocate-General contended that production of M. O. 7 by A-1 supports the evidence of P.W. 30. M. O. 7 is of course a deadly weapon stained with mammalian, blood, secured in a hut outside the village surrounded by fields at a distance of - mile (Vide P.W. 17). According to P-29 the Mahazar it is roofed with cocoanut leaves and date leaves and dimension is such 35 to admit only one person inside. P.W. 18 an attestor of Ex. P-28 which embodies the information given by A-1 says that the hut has no door, shutter and no walls around. P.W. 19 the attestor of Ex. P-29 says that A-1 and A-5 live jointly in a house in the village. Since M. O. 7 is an instrument of the kind possessed ordinarily by persons in the village, situation and condition of the hut were such as to afford easy access and entry, to any one. A-1 and his brother A-5, were living together and both were accused of the murder, the production of M. O. 7 by A-1 is not by itself sufficient to incriminate him though it may raise suspicion. It only implies that he was aware of M. O. 7 being kept or left in hut. As observed in - P. Kottaya v. Emperor, AIR 1947 P.C. 67 at p. 71 (C). "Except in cases in which the possession or concealment of an object, constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof and the other links must be forged in the manner allowed by law." As means of connecting A-1 with the offence its value depends on the other evidence and chiefly Ex. P-7 and that of P.W. 30. In the course of the investigation itself Ex. P-7 was denounced by the very person who sent it as a substitute for a report made earlier, of which nothing is known.

15. Besides, elements of inconsistency in what P.W. 30 has stated on different occasions about the persons responsible for the death and the report of it, omission to examine the person numbered 10 in the charge sheet was urged as an infirmity in the prosecution case to discount P.W. 30s evidence. The charge sheet credits him with being an eye-witness present at the occurrence. If his evidence was made available to corroborate P.W. 30, it would certainly have T been of help for the decision. Unfortunately the examination of that person was given up during the committal proceedings on the ground that he - had turned hostile. It is contended that the examination was nevertheless necessary and the observation of the Judicial Committee in - Stephen Seneviratne v. The king, AIR 1936 P.C. 289 at p 300 (D), that "witnesses essential to the unfolding of the narrative on which the prosecution is based, must of course be called by the prosecution whether, in the result, the effect of their testimony is for or against the case for the prosecution" was relied upon. The observation cannot be read as laying down an inflexible rule to be invariably followed in every case, whatever the consequence of letting in the evidence and the reason for not adducing it may be. The prosecution cannot be expected much less enjoined to produce evidence which tends to demolish its own case but has to present it in fairness in its true colour without twisting or straining it for securing a conviction but put it for consideration by the court. If all available evidence helpful to the prosecution as well as destructive of the case put forward, is placed before the court, needless confusion will be caused and unnecessary labour will be imposed on the Court. That such a course was not intended to be adopted is clear from what is stated earlier in the same case thus : "Their Lordships do not desire to lay down any rules to fetter discretions on a matter such as this which is so dependent on the particular circumstances of each case........ they cannot, speaking generally approve of an idea that a prosecution must call witnesses irrespective of number and reliability or that a prosecution ought to discharge the functions both of prosecution and defence." On the assumption that the omission on the part of the prosecution to examine witness No. 10 in the charge sheet is justified it has the effect of leaving the evidence of P.W. 30 alone as that of an eye-witness, without the strength of corroboration by another and showing that a person expected to have knowledge of the incident is unwilling to support the case against A-1 as no reason whatever is given for his having turned hostile. Although it is permissible to base a conviction on the testimony of a solitary witness and there are instances of such convictions even for capital offences, such instances are rare and found to be of exceptional circumstances. This case cannot be considered to be one of that type as the spot of murder is surrounded by houses; in the village and close to the Bhajanemane where people congregate and the time was evening when people usually return home. It is difficult to assume that none but P.W. 30 could have witnessed the commission of the ermine or that better material could not have been placed before the Court. Though the murder was brumal and dastardly and committed in an outrageous manner in the open street which should attract persons to quickly come for aid and catch the culprit, they escaped untouched leaving the man dead. What followed the gruesome event, has instead of unravelling the forces which led to it and the persons responsible directly or indirectly for the commission, has clouded the affair with suspicion and speculation beginning with the F.I.R. The investigation was impugned soon after it began, as not proper. The Inspector P.W. 35 did not apply for the records relating to panchayat Election being sent, for verifying whether Appaiah, was Chairman at all. Nor did he find out and examine the Revenue Inspector who conducted the elections. The explanation that he could not make out where the Revenue Inspector is, is puerile as there is no proof of his asking for the information and not getting it from the office of the Revenue department. Although P.W. 27 apprised him of the conversation in the Aziz garden two days after the crime, he did not visit the spot and ascertain from P.Ws. 27 and 28 the place of conspiracy and of the hearing. Although information relating to the conspiracy appears to have been gathered before the 15th November, no reference to the conspiracy is made in the application for remand of that date, and there is mention of it for the first time in the application of 18-12-52. The statement in the course of the Inspectors deposition "I learnt that A-5s brother had married A-6s sister" cannot be true as A-5 and A-6 are of different castes. The manner in which statements of the witnesses were recorded by noting the substance instead of verbatim was criticised but I do not think recording the substance of the statements can be said to be a non-compliance with the new subsection to S. 161, Criminal P.C., which spates : "The Police Officer may reduce into writing any statement made to him in the course of an examination under this section and if he does so he shall make a separate record of the statement of each of such person whose statement he records." - Bejoy Chand v. The State, AIR 1950 Cal 363 (E), cited on behalf of the Accused does not support the contention that the statement, should be recorded in full. Harries, C.J., no doubt states at p, 364 : "In other words if a police officer examines a number of witnesses he cannot record condensed version of the examination of all of them or a precise of what the witnesses are supposed to have said. He must record what each witness says. He cannot for example record that witnesses A, B and C said so and so". The case was one in which statements before the police were sought to be made use of, for the purpose of contradiction during the trial and therefore the exact words before the police and not the statements in a boiled form were deemed necessary. This is made clear by stating later "Before concluding I should like to point out that if it is possible to deduce from the gist recorded what witnesses said then, what each witness said must be put to the witness, if it is intended to contradict the witness by use of such statement." In re, Subba Reddi, AIR 1948 Mad 23 (F), cited by the learned Assistant Advocate General directly deals with the contention now raised and says down that the Investigation Officer need not record verbatim what the various witnesses tell him and that the new sub-section hits at the practice of writing against the names of certain witnesses after the first that they corroborated the statements of the earlier witness. The section leaves it to the option of the police officer to record or not, statements of those he examines, and when he does record statements of a number of persons, each statement must be capable of being read by itself without necessarily looking into the other. To facilitate the statements being used for purpose of contradiction, it is advisable to note as far as possible, the exact words in which the statements are made and also to err, if at all, on the side of superfluity rather than brevity as that will avoid controversies about omissions.

16. Apart from this the investigation does not seem to have inspired confidence amongst the villagers and the course as well as the result of the proceedings lend support to it. This is a matter for enquiry and appropriate action by the authorities.

17. Having regard to the factions in the village and personal jealousies against opponents, the possibility of manipulation and developments in the case cannot be excluded. There is much which is not natural and not normal to be glossed over to justify the conviction. It is highly unfortunate that the evidence in such a serious case as this should be riddled with flaws and inconsistencies. Whatever may be the reasons for these, the Accused are entitled to have the advantage of the proof not being clear and convincing to bring home the guilt.

18. On this consideration, I am of opinion that the case is not established beyond doubt against the Appellants including Accused 1. The convictions and sentences are therefore set aside and A-1, A-6, A-7 and A-8 are all acquitted. The Accused are directed to be set at liberty forthwith. Convictions set aside. AIR 1954 MYSORE 86 (Vol. 41, C.N. 38) "Lucy, Mrs. v. Francis" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Mrs. Lucy, Defendant-Appellant v. Francis Furtado, and another, Respondents. Second Appeals Nos. 541 and 542 of 1950-51, D/- 11 -11 -1952, against decrees of Sub-J., Shimoga, in R. As. Nos. 55 and 56 of 1950-51. (A) Limitation Act (9 of 1908), S.5 - LIMITATION - Illness of party. Where an appellant is prevented from filing an appeal on account of her having had an abortion and consequent haemorrhage the delay of only nine days deserves to be condoned. (Para 2) Anno : Lim. Act, S. 5 N. 15 Pt. 2. (B) Limitation Act (9 of 1908), S.5 - LIMITATION - APPEAL - Appeal. Where an appeal is filed and is given a number and it is later on dismissed on the ground of limitation along with the application to condone the delay, an appeal lies against the order of dismissal. AIR 1942 Mad 604, Distinguished. (Para 3) Anno : Lim. Act, S. 5 N. 45 Pts. 4, 5. Cases Referred : Courtwise Chorological Para (A) (42) AIR 1942 Mad 604 : ILR (1942) Mad 868 3

V. Krishnamurthy, for Appellant; R.V. Srinivasaiya, for Respondent No. 1. Judgement These two appeals have been filed against the order of the learned Subordinate Judge dismissing R. A. 55 and 56 of 50-51 on the file of his Court and refusing to condone the delay of a few days in filing these appeals.

2. The case of the appellant is that she had an abortion and severe haemorrhage on 9-5-50 and was not able to move about till a day prior to 24-5-50 on which day these appeals were filed. The appeals ought to have been filed on 15-5-50 and the application was for condonation of delay of nine days under the circumstances referred to above. That the appellant had an abortion on 9-5-50 and that consequently she suffered from severe haemorrhage and was not able to move about for a fort-night is supported by the evidence of a respectable witness Mrs. Bhaghyamnia Samuel Lady Assistant Surgeon at Jog. There is absolutely no reason suggested in her cross-examination to show that she is interested in swearing to what is not true. The learned Subordinate Judge has given a flimsy reason that the out-patient Register has not been summoned. According to him the lady Doctor admits that she usually enters in the out-patients register the names of the out-patients. Considering that the appellant had an abortion, it would not be strange if her name does not find a place in the register of the out-patients though the doctor might have attended on her in her house as in that state of her health, the appellant must necessarily have been confined to bed. If at all, she could have been an in-patient in the hospital, but that is nobodys case. Even if she was an in-patient, her name could not have found a place in the outpatient register. On the other hand if the abortion took place in her house as sworn to by the lady doctor who attended on her, it cannot be said that the patient could have attended the hospital as an outpatient and it is unlikely that her name could have found a place in the out-patient register. In fact it is elicited in the cross-examination of the witness that the appellant was not able to go to the Hospital. In these circumstances, it is difficult to understand why the delay was not condoned. It is no doubt true that it is in the discretion of the Courts below to refuse to condone the delay and that discretion should not be lightly interfered, with by appellate Courts. I am, however, inclined to think that no better case for condoning the delay can be found than in a case like this where the appellant was prevented from filing the appeals on account of her having had an abortion and consequent haemorrhage and the delay is only one of nine days. I am inclined to think that the order of the learned Subordinate Judge is, to say the least, perverse. His order dismissing the two appeals is, therefore, set aside and the delay in filing the two appeals condoned. They will be taken on file and proceeded with according to law. No order as to costs.

3. It was also contended during the course of arguments that no appeal lies in cases of this kind and a decision reported in - Kamaraja Kantulu v. Balla Saramma, AIR 1942 Mad 604 (A) was relied on. King, J. in that case observed that the appeal he was dealing with was not really an appeal against the orders of the District Judge dismissing the appeal, but an appeal against the orders of the District Judge refusing to excuse the delay against which no second appeal is provided. It is contended in this case also that no second appeal is maintainable. There is no reported case of our Court on this aspect of the matter, though it is conceded that numerous appeals have been filed against such orders and disposed of as appeals in this Court. However, an unreported case to the contrary was brought to my notice. But what is to be remembered in cases of this kind is that when an appeal is filed and is given a number and it is later on dismissed on the ground of limitation, along with the application to condone the delay, it cannot but be said that the appeal stands dismissed. In fact decrees have been drawn up in these appeals und if any amendment of the decree for any good reason is to be sought on the ground that it is not in accordance with the order of the lower Court, the question that arises would be whether the trial Court has any jurisdiction to allow it at all, as its decree has been confirmed by the decree of the appellate Court. When a suit is filed and it is dismissed after a number is given to it on the ground that it is barred by time, can it be said that no appeal lies against the judgment and decree of the trial Court ? In fact a plaint could be rejected under Order 7, Rule 11, Civil P.C. But even against such an order of rejection, which amounts to a decree, an appeal can be filed. It must, however, be stated that the cases now under consideration have to be distinguished from the case which King, J. had to deal with, as in that case no number to the appeal had evidently been given, as has been done in the regular appeals now under consideration, and the order passed in that case was one of rejecting the appeal as barred by time and refusing to condone the delay. I do not, therefore, find any substance in the contention that the second appeals do not lie in cases of this kind. Appeals allowed. AIR 1954 MYSORE 87 (Vol. 41, C.N. 39) "Nateshmurthy v. Govt. of Mysore" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA AND MALLAPPA, JJ. ( Division Bench ) T.S. Nateshmurthy and others, Plaintiffs-Appellants v. Govt. of Mysore. Regular Appeal No. 108 of 1949-50, D/- 22 -1 -1953 against decree of Addl. Sub-J. Mandya in O. S. No. 11 of 1947-48. HINDU LAW - RELIGIOUS AND CHARITABLE ENDOWMENTS - CIVIL PROCEDURE - Hindu Law - Religious Endowment - Mutt - Representation. Civil P.C. (5 of 1908), O.1, R.10. Persons who are deprived of management of Mutt by an order passed in accordance with law cannot represent the mutt in the proceedings for enforcement of the mortgage against the mutt. 11 Ind Cas 290 (All), Rel. on; 43 Mys 4558, distinguished. (Para 3) Anno : C.P.C., O. 1, R. 10, N. 27. Cases Referred : Courtwise Chorological Paras (A) 43 Mys 466 3 (B) (11) 11 Ind Cas 290 (All) 4 M. Lakshminarayana Rao, for Appellants; A.R. Somanatha Iyer Advocate General, for Government. Judgement VENKATARAMAIYA, J. :- This appeal arises from a suit for possession of the lands described in the plaint schedule and mesne profits. The plaintiffs are the sons of the purchaser of these properties at a Court sale held in execution of a mortgage decree obtained by him against two persons Mallikarjunaswamy and his father Mallappa. Defendant is the Government of Mysore whose servants are said to have wrongfully dispossessed the plaintiffs. That the properties were hypothecated to plaintiffs father under a registered deed, Ex. A, dated 20-6-1932 executed by Mallappa and his son, that the mortgage was sued upon in O. S. No. 77 of 43-44, that in Execution Case No. 108 of 43-44 the properties were purchased by plaintiffs father in satisfaction of the decree and that subsequent proceedings in Mis. 101 of 45-46 also indicate delivery may all be deemed to be proved. The suit is dismissed on the ground that the properties did not belong to the defendant-judgment-debtors but to the Channabasavaswamy Mutt of Poorigali, that the management of the properties was taken over by Government under an order dated 7-12-1938 and that the proceedings relied upon are not binding on the Mutt.

2. Although it was alleged in the pleadings that the lands in dispute were the property of defendant, it is not and cannot be now disputed that the Mutt is the real owner. There is overwhelming evidence to show this and unqualified admission of the judgment-debtors themselves in the petitions and statements previously made by them (See Ex. 12) to support it. The argument that 3rd item should at least be held to be the private property of the defendants cannot be accepted as the prior admission was absolute and unqualified with respect to all the items and the evidence shows that it was acquired with the aid of Mutt properties and treated as such. It is also clear that as a result of the complaints about mismanagement of the properties an order was passed by Government on 7-12-1938 after enquiry for vesting the management in Government and possession of the properties was actually taken by the officers of Government on 29-5-1941.

3. The contention of Sri Lakshminarayana Rao learned Counsel for appellants is that the mortgagors who were the defendants in the case were the managers of the Mutt, the amounts were utilised for the benefit of the Mutt and therefore the proceedings culminating in the Court sale are binding on the Mutt and Government. For one thing this is not the ground on which relief was claimed in the plaint and the prior litigation too proceeded on the footing that the lands were the private property of defendants. Secondly the defendants, having ceased to be the managers and being deprived of the properties could not represent the Mutt in the proceedings for enforcement of the mortgage. Whatever may be the effect of these against the defendants, the rights of the Mutt as owner of the lands remain undisturbed. The question at present is not whether the debt was contracted for a purpose binding on the Mutt but whether the suit and the subsequent proceedings are binding on it. The debtors may have been the managers at the time the mortgages were effected but had ceased to be so when the suit was filed. 43 Mys. 463 (A) cited for Appellants cannot be considered as supporting the view that persons who are deprived of management of Mutt by an order passed in accordance with law can act for or on behalf of the Mutt.

4. The decision of the Calcutta High Court in - Ganga Sahal v. Indarjit Singh, 11 Ind Cas 290 (All) (B), is that when a decree has been obtained, against a person on the allegation that he is the shebait of a temple and is bought to be executed against the successor of the judgment-debtor it is open to the person against whom the application for execution is made to show that the decree was obtained against a person, who was not a shebaitand that consequently it is not capable of execution against the properties of the endowment in his hands. The sale relied upon by plaintiffs cannot be regarded as conveying to the purchaser the rights of the Mutt in the plaint schedule properties. There is no reason to interfere with the dismissal of the suit. The appeal is consequently dismissed with costs. Appeal dismissed. AIR 1954 MYSORE 88 (Vol. 41, C.N. 40) "Manche Gowda v. Basamma" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Manche Gowda, Defendant-Appellant v. Basamma, Plaintiff-Respondent. Second Appeal No. 443 of 1951-52, D/- 21 -1 -1953, against decree of Sub-J., Mandya, in R. A. No. 133 of 1950-51. Mysore Hindu Law Womens Rights Act (10 of 1933), S.8(2)(a)(b) - HINDU LAW - Share of step-mother. A Step-mother claiming a partition against her stepson who has become the sole surviving coparcener is entitled to a 1/4 and not to a 1/3 share. 15 Mys LJ 85; 50 Mys HCR 171, Ref. (Paras 6, 7) Cases Referred : Courtwise Chronological Paras (A) (36) 15 Mys LJ 85 5 (B) 50 Mys HCR 171 6 D.M. Chandrasekhar, for Appellant; K.S. Puttaswamy, for Respondent. Judgement This second appeal arises out of a suit filed by the plaintiff for partition and possession of her share in the plaint schedule properties. The plaintiff is the step-mother of the defendant who has become the sole surviving coparcener of the family after his fathers death. The plaintiff claimed in the plaint as originally filed a th share in the properties and later by an amendment she claimed 1/3rd. Both the lower Courts have awarded a 1/3rd share to her and the defendant has appealed.

2. The only point that arises in this appeal is the share to which the plaintiff is entitled. The appellant contends that it is only th while the respondent urges that the lower Courts have rightly decreed a third share in her favour. The lower Courts have assumed that she is entitled to a 1/3rd share and there is no discussion in this matter at all. There are also no reported decisions of this Court directly bearing on this matter and there can of course be no precedents in Courts outside the State as the question arises under the Hindu Law Womens Rights Act which is peculiar to Mysore. Section 8 of that Act declares who are all the females entitled to claim a share at a partition and the mother-which, expression includes a step-mother is of course entitled to claim a share; and where joint family property passes to a single coparcener by survivorship, it shall so pass subject to the rights to shares of the classes of females enumerated earlier in that suction. Under Section 8(2) such share shall be fixed as follows : (a) in the case of the widow, one-half of what her husband, if he were alive, would receive as his share; (b) in the case of the mother, one-half of the share of a son if she has a son alive, and, in any other case, one-half of what her husband, if he were alive, would receive as, his share. We are not concerned in this case with sub-clause-(c). Clause (3) provides that the term widow includes a step-mother, and the term son includes a step-son as also a grandson and a great grandson. Clause (4) provides that fractional shares, of the females as fixed above shall relate to the share of the husband, son, father or brother as the case may be and their value shall be ascertained by treating one share as allotted to the male and assigning therefrom the proper fractional shares to the female relatives.

3. It is contended by Mr. K.S. Puttaswamy learned counsel for the respondent, that S. 8, Cl. (2)(b) applies to this case and that the plaintiff as the mother is entitled to one-half of the share of the son, the defendant, and consequently she would be entitled to a third of the properties while the defendant would be entitled to 2/3rds. For the appellant Mr. D.M. Chandrasekhar, his learned counsel, has contended that it is Cl. (2)(a) that applies as it is a case of a widow who is claiming a share and that she is entitled to get only one-half of what her husband, if he were alive, would receive as his share. It must be observed that nowhere in that section have any female relatives been awarded more than one-half or one-fourth of the shares of a husband or a son or a brother or a father and it is not clear why if a mother is claiming a share from her only son, as in this case, she should be given a larger share than what she would have been entitled to, had she been claiming, say from others like her daughter-in-law or a brother of her husband or his widow or her father-in-law. The son has obviously a better and stronger claim for consideration than those others as he would have to perform the ceremonies of his father and mother and other religious rites and perpetuate the family line and maintain the familys prestige.

4. It is argued for the respondent that the expression "in the case of the mother, one-half of the share of a son if she has a son alive" in S. 8, Cl. 2(b) must be read literally as meaning one-half of the share of the defendant; as he is a son within the meaning of Sub-Section (3), although he is a step-son, who is alive at the date of the partition and that Cl. (2)(a) does not apply. The word mother appears in S. 8, Cl. (1)(a) as well as in Cl. (1)(b). In section 8, cl. (1)(a) the case of a partition of joint family property between a person and his son or sons, his mother, his unmarried daughters and the widows and unmarried daughters of the predeceased or divided sons and brothers who have left no male issue has been provided for. In Section 8, Cl. (1)(b) a case of partition of joint family property among brothers, their mother, their unmarried daughters and the widows and unmarried daughters of their pre-deceased undivided brothers who have left no male issue has been similarly provided for. Clauses (2)(b) and (c) of that section, I think, were meant to apply to the case of a partition between persons or classes of persons envisaged in Cl. (1)(a) and (b) while Cl. (2)(a) is more appropriate to apply where, as in this case, the widow is claiming a share as against a sole surviving coparcener like her son who is entitled to the rest.

5. If the words "if she has a son alive" in S. 8(2)(b) are meant to include the case of a living son like the defendant, the defendants existence would operate to cut down his own share and that could not be the intention of the legislature or a proper construction to put. Sir DArcy Reilly, C.J. found a similar difficulty in interpreting Cl. (g) of Sub-S. (2) of S. 10 in - Govinda Rao v. Chandra Bai, 15 Mys L J 85 (A). He observed that that clause was not easy to interpret. That sub-clause reads : S. 10(2) Stridhana includes - X X X X (2)(g) "Property taken by inheritance by a female........except when there is a daughter or daughters son of the pro-positus alive at the time the property is inherited." It was urged before him that the daughter who was claiming an absolute estate based upon that section could not validly do so as there had been another daughter of the propositus alive when he died and who had since passed away. Sir DArcy Reilly pointed out how a literal interpretation of that sub-section would lead to an absurdity as a daughter would be prevented from taking her share of her fathers property as stridhana because of her own existence, and if the legislature really meant such a result to follow he expected they would have made their intention clear by more appropriate language. A construction which is sought to be put upon S. 8, Cl. 2 would lead to a somewhat similar result. One would have expected if a son was to be specifically chosen for being treated less generously vis-a-vis his mother as compared with the other more distant agnate or cognate relations, the legislature would have trade it clear. I do not think the legislature would not have taken into consideration the usual and universally accepted notion among Hindus that the son occupies a very important position in the family and has onerous duties and responsibilities both religious and secular according to Hindu Law. Manu has emphasised the Vedic injunction regarding the necessity of a son thus : "Through a son, he conquers the worlds; through a sons son, he obtains immortality but through his sons grand-son, he gains the world of the Sun. Because a son delivers his father from the hell put, he was therefore called putra (a deliverer from Put)." See Mayne on Hindu Law and Usage, 11th edition, para 66, p. 105.

6. In my opinion, therefore what that sub-section means is that in the case of the mother she gets one-half of the share which a son would have got if, a son of hers was alive on the date of the partition, if she is claiming the share as a mother as against several sons and grand-sons; while in any other case or where she is claiming as a widow of her deceased husband, she would be entitled to one-half of what her husband, if he were alive, would receive as his share. In the illustration given to that section the shares at a partition of a father, his son, his mother and two daughters are given as 1, 1, and respectively, and that I think is more in favour of the construction which would justify awarding half a share to the mother. In - 50 Mys HCR 171 (B), sub-clauses (a) and (c) of Cl. 2 of S. 8 were applied in order to determine the shares at a partition between a mother and her two sons, i.e. two brothers, and the sons and daughters of another predeceased brother. While interpreting the expression shall relate to the share of the deceased and treating one share as allotted and assigning therefrom the share due to a female which are found in S. 8, Cl. 4 has been specifically noticed and relied upon.

7. In the result, this appeal is allowed, the decisions of the Courts below are modified and the plaintiff is held entitled to a fourth share instead of one-third. The parties will bear their own costs in this second appeal. Appeal allowed. AIR 1954 MYSORE 89 (Vol. 41, C.N. 41) "Thimmarayappa v. Narayanappa" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Thimmarayappa, Plaintiff-Appellant v. Narayanappa and others, Defendants-Respondents. Second Appeal No. 602 of 1950-51, D/- 13 -1 -1953, from decree of Addl. Sub-J., Bangalore, in R. A. No. 156 of 1950-51. (A) Transfer of Property Act (4 of 1882), S.105 - LEASE - EASEMENT - Lease or licence. Easements Act (5 of 1882), S.52. The term lease imports that exclusive possession is given to the transferee of the premises conveyed, while licence on the other hand, is permission to do some act which without permission it would be unlawful to do. The entire area of the large piece of Municipal land with numerous constructions on it was not delivered over to the possession of the plaintiff. The Municipality and the Public generally and other persons who had interest in the restaurant were free to move about in the area and the Municipality apparently retained full control over the land and its use and enjoyment in spite of the arrangement. Held that it was not a lease. 51 Mys HCR 47, Relied on. (Para 5) Anno : T. P. Act, S. 105 Ns. 13, 14; Easements Act, S. 52 N. 4. (B) Easements Act (5 of 1882), S.52 - EASEMENT - LEASE - DEED - Lease or licence. Deed - Construction - Lease or licence. Transfer of Property Act (4 of 1882), S.105. Plaintiff applying to Municipality for grant of a lease-right for vending fruits on monthly rental - Recommendation of Market Superintendent forwarded by Managing Committee - Municipal Council at a meeting passing resolution and accepting Managing Committees suggestion - Deed reciting that by resolution Municipality had agreed to lease the land to plaintiff - Recital in deed held was incorrect - Resolution held permitting applicant to vend fruits on the specified land and not granting land on lease - Deed held was merely a licence and not a lease. (Para 5) Anno : Easements Act, S. 52 N. 4; T. P. Act, S. 105 N. 14. (C) Easements Act (5 of 1882), S.60, S.61, S.63, S.64 - EASEMENT - OBJECT OF AN ACT - LEASE - Scope. Transfer of Property Act (4 of 1882), S.105, S.106. There is no provision either in S. 60, 61, 63 or 64 for the issue of any notice, much less, for giving any specified time as in the case of leases, before a licence can be revoked. There is no doubt that a Municipality is not outside the provisions of the t. p. act and that if it has granted a lease, notice must be given before the same can be terminated. But it is a question of fact in each case whether a particular arrangement amounts to a lease or licence and other cases can merely be a guide in such interpretation. In the circumstances of the case the arrangement held was a licencs and notice under T. P. Act was not necessary. AIR 1938 Mad 746; AIR 1947 Cal 236; AIR 1926 Nag 174, Dist. (Para 6) Anno : Easements Act, S. 60 N. 1; T. P. Act, S. 105 N. 14; S. 106 N. 19. (D) Mysore City Municipalities Act (7 of 1933), S.251, S.252, S.41(7) - MUNICIPALITIES - Municipalities Non-compliance with the statutory formalities of the Municipal Act while entering into a contract would prevent either party from enforcing performance against the other of such contract. 23 Mys CCR 119, Ref.; 34 Mys CCR 26, Distinguished and Explained. (Para 7) (E) Civil P.C. (5 of 1908), O.41, R.33 - APPEAL - OBJECT OF AN ACT - Scope, object and applicability. Though powers under O. 41, R. 33, C.P.C. should be cautiously applied, e.g. in cases where but for the recourse to it the ends of justice would be defeated the rule should not be allowed to be invoked in favour of a litigant so as to enable him to affect the provisions of other statutes such as Limitation Act, Court-fees Act and other provisions of the Code of Civil Procedure, recourse to which may have given him requisite relief, still such powers could properly be invoked to do justice between the parties. AIR 1916 PC 14; AIR 1932 Bom 78, Distinguished. 31 Mys CCR 218; 45 Mys HCR 450, Foll. (Para 9) Anno : Civil P.C., O. 41 R. 33 N. 1. (F) Easements Act (5 of 1882), S.60 - EASEMENT - Revocation on compensation. Where an agreement was merely in the nature of a mere right to vend fruits, i.e. a bare licence, it was not accompanied by any transfer of immovable property or grant of any rights therein, the plaintiff had not effected any improvements of constructions on the property or stored any goods; Held that the licencee was entitled to recover compensation from the grantor and could obtain an injunction enabling him to continue to enjoy the rights for which lie had contracted. AIR 1945 Cal 413, Ref. (Para 10) Anno : Easements Act, S. 60 N. 5. (G) Specific Relief Act (1 of 1877), S.21 - CONTRACT - Contracts which are not enforceable. A contract which is in its nature revocable cannot be specifically enforced by the Court by the issue of a permanent injunction. (Para 11) Anno : Specific Relief Act, S. 21 N. 1. Cases Referred : Courtwise Chorological Paras (A) 51 Mys HCR 47 5 (B) (V 37) AIR 1950 EP 40 6 (C) (V 15) AIR 1928 All 95 : 29 Cri LJ 274 6 (D) (V 25) AIR 1938 Mad 746 : 182 Ind Cas 299 6 (E) (V 34) AIR 1947 Cal 236 : 227 Ind Cas 38 6 (F) (V 13) AIR 1926 Nag 174 : 92 Ind Cas 683 6 (G) 28 Mys CCR 119 7 (H) 8 Mys LJ 412 : 34 Mys CCR 26 7

(I) (V 3) AIR 1916 PC 14 : 38 All 440 (PC) 9 (J) (V 19) AIR 1932 Bom 78 : 56 Bom 16 9 (K) 31 Mys CCR 218 9

(L) (40) 45 Mys HCR 450 : 19 Mys LJ 24 9 (M) (V 32) AIR 1945 Cal 413 : ILR (1945) 2 Cal 361 10 E. Kanakasabapathy, for Appellant; N.S. Narayana Rao (for Nos. 1 to 6) and R. Rangiah (for No. 7), for Respondents. Judgement The appellant was the plaintiff in the Court of the First Munsif of Bangalore. He brought a suit for a permanent injunction restraining the Bangalore City Municipality, either by itself or through its servants from issuing permits or making leases in favour of anybody else to vend fruits in the Kalasipalyam Bus stand, Bangalore City, so long as the lease in his favour subsisted and was not otherwise legally terminated. The Municipality had, it was alleged, granted a lease in his favour by an agreement dated 9-12-1948 conferring upon him the sole and exclusive right to vend fruits in the entire area known as Kalasipalyam Bus Stand on a monthly rental of Rs. 32/-; notwithstanding that grant the Municipality is said to have given licences to other people to similarly vend fruits in that area before the arrangement in his own favour was properly terminated. That suit was filed on 26-9-1949 but subsequently on 6-3-1950 the plaintiff filed with the permission of the Court an amended plaint. As a result of that amendment defendants two to seven, who had been issued permits by the Municipality, were impleaded on the ground that from and after 20-9-1949 the Market Superintendent, Bangalore City, had under instructions from the Bangalore City Municipality, issued permits in favour of defendants two to seven. The Municipality (Defendant one) filed a written statement which cannot be said to be either very clear or put in proper legal language. But in the main the plea was that the Municipality had put an end to the arrangement with the Plaintiff with effect from 1-6-49 and he had been duly notified about it and could have no grievance. Defendant one further denied the rights of the Plaintiff to the permanent injunction. The other defendants also contested the suit. They pleaded that there was no monopoly given to the plaintiff by Defendant one. There was no valid lease at all in favour of the Plaintiff as the Municipal Council had not sanctioned any such lease in favour of the plaintiff and the agreement purporting to grant such a lease could not bind defendant one. Defendant one was there-fore competent to permit anyone else to vend articles in the said stand. The arrangement was merely in the nature of a permission or licence and was not a lease and was terminable at will and had been properly terminated. The suit as brought was not maintainable and an injunction could not be issued in favour of the plaintiff.

2. The learned Munsiff, who tried the suit, held that the arrangement entered into between the plaintiff and defendant one under Ex. III was not beyond what was decided to be granted by the Municipal Council and that it was in the nature of a lease and not merely a licence. That arrangement had not been validly terminated and the action of defendant one in issuing permits to others during the currency of that arrangement infringed the lease-hold rights of the plaintiff. He accordingly made a decree in favour of the plaintiff as prayed for. Strangely the Municipality did not appeal against this judgment; and it is explained by the present counsel for the Municipality that there was some delay in getting copies and that the Municipality later on felt that as the other defendants had appealed, the Municipality also could take advantage of the same. Defendants two to seven however, preferred an appeal in the Court of the District Judge, Bangalore, and the Municipality which by then came to be the Corporation of the City of Bangalore was impleaded as Respondent 2. The appeal came to be heard by the Additional Subordinate Judge, Bangalore, who reversed the Munsiffs decision and dismissed the plaintiffs suit. The plaintiff has come up in Second Appeal.

3. The appeal has been argued fully and at considerable length by Counsel who appeared for the appellant as well as for the Corporation and for detendants 2 to 7. I do not see any reason, however, to interfere with the Judgment of the lower Appellate Court.

4. Mr. Kanakasabapathy, learned Counsel for the appellant, contends that the rights in favour of the Plaintiff under Ex. III is really in the nature of a lease and not a mere licence. He represents that though it is termed an agreement in the opening paragraph it has referred to the agreement to lease the schedule land in accordance with the resolution of the Municipality dated 2-12-1948. A monthly rent payable by the 5th of each month has been provided and there is a provision that a schedule has been given in which the land known as Kalasipalyam Bus Stand has been described, and it has been further provided that the plaintiff will not sub-let it to others or use it for any purpose other than vending fruits. The agreement is also on a stamp paper of the value of Rs. 3-12-0 which is the proper stamp for a lease deed and not a mere agreement, and there is a specific provision in para, three of it that the Municipality reserves the right to resume it if the plaintiff committed any act in violation of the agreement. He urges that the last provision shows that the Municipality could have resumed the land or taken possession only for any default on the part of the plaintiff. As against this, it is contended for the respondents that there is no conveyance of the land in question and that what is granted under Ex. 3 is merely the right to vend fruits in accordance with Ex. 8, the resolution dated 2-12-1948, of the Municipal Council which in turn accepted the recommendation of the Chairman of the Managing Committee that the plaintiff may be permitted to do so on a monthly rent of Rs. 32/-. I am inclined to agree with the respondents contentions in this matter.

5. A lease of immoveable property has been defined as a transfer of a right to enjoy such property made for a certain time express or implied or in perpetuity. In - 51 Mys H.C.R. 47 (A), it has been held that the term lease imports that exclusive possession is given to the transferee of the premises conveyed, while licence on the other hand, is permission to do some act which without permission it would be unlawful to do. In that case an arrangement between the parties to raise casuarina trees by one of them on a piece of land belonging to one of them with a view to dividing the proceeds between them, was held not to amount to a lease. The distinction between a lease and a licence it was observed depended upon whether sole and exclusive possession is given to the transferee and if no such exclusive possession was given, and if the transferor still retained control over the land, it would amount to a licence and not a lease. The entire area of the large piece of Municipal land included in the boundaries given in the schedule known as Kalasipalyam Bus Stand with numerous constructions on it including a restaurant was certainly not delivered over to the possession of the Plaintiff. The Municipality and the public generally and other persons who had interest in the restaurant were free to move about in the area and the Municipality apparently retained full control over the land and its use and enjoyment in spite of the arrangement. The Plaintiff applied as per Ex. X requesting the grant of "a lease right for vending fruits" in the Bus Stand and offered to pay a rent of Rs. 32/- per month. That application was considered by the Market Superintendent who made a report as per Ex. 9 to the Managing Committee recommending that the Plaintiff may be permitted to vend fruits in the Bus Stand on that rent. His recommendation was accepted by the Managing Committee and they forwarded their opinion to the Municipal Council who at a meeting held on 2-12-1948 passed a resolution accepting the Managing Committees suggestion. Thereafter, Ex. 3 came to be executed. In Ex. 3, a specific reference has been made to the resolution of the Municipal Council of 2-12-1948; it has been recited in Ex. 3 that by that resolution the Municipality had agreed to lease the schedule land to the plaintiff. This was clearly incorrect. The resolution was that the plaintiff should be permitted to vend fruits and not that the land should be granted to him on lease. It is rather unfortunate that this mistake should have occurred and that has given rise to all this litigation. But there is no doubt that the Plaintiff must have been fully aware of the exact implications of the Municipal Council granting his application to vend fruits on a monthly rental in the Bus Stand. It must therefore be held that Ex. 3 merely evidences a licence and not a lease.

6. There is no stipulation in Ex. 3 that the Plaintiff should have the monopoly of vending fruits in the Bus Stand or that the Municipality had no right to issue similar licences to others. The Plaintiff has come to Court with a specific plea that he was granted such monopoly rights and has let in no evidence apart from Ex. 3 in favour of such a claim. If the arrangement is not a lease but a licence, under Ss. 60 and 61, Easements Act, the same may be revoked at any time by the grantor either expressly or by implication unless it is coupled with a transfer of property and such transfer is in force or the licencee acting upon the licence has executed a work of a permanent character and incurred expenses in the execution. Where such a licence is revoked, the licencee is entitled to a reasonable time to leave the property affected thereby and to remove any goods which he has been allowed to place on such property and even where a licence has been granted for a consideration and the licencee without any fault of his own, is evicted by the grantor before he has fully enjoyed under the licence the right for which he contracted he is entitled to recover compensation from the grantor; see - Dominion of India v. R.B. Sohan Lal, AIR 1950 EP 40 (B). There is no provision either in Ss. 60, 61, 63, or 64 for the issue of any notice, much less for giving any specified time as in the case of lesses before al licence can be revoked. Mr. Kanakasabapathy has cited - Amimullah v. Emperor, AIR 1928 All 95 (C), for the position that a Municipality is not outside the provisions of the Transfer of Property Act and that if it has granted a lease, notice must be given before the same can be terminated. There is no doubt it is so. In - Mohamed Rowther v. Tinneyelly Municipal Council, AIR 1938 Mad 746 (D), also cited by him the right to collect the fees of slaughter houses and fish bazaars was held to amount to a profit arising out of land and therefore fell within the definition of immoveable property as given in S. 3, Cl. (25) of the General Clauses Act. There the rents or profits were clearly attributable to the shops or bazaars and it was not a mere right to vend things within an open area. He has referred to - O. G. Ganguly v. Kamalpat Singh, AIR 1947 Cal 236 (D) where it has been observed that the border line between a licence and a lease is often exceedingly thin and that even the use of expressions such as "temporary accommodation" and "compensation" instead of tenancy and rent is inconclusive of the circumstance whether the arrangement amounts to a lease. In - Indal v. Debi, AIR 1926 Nag 174 (F), there was an agreement to pay some grain periodically to the owner of a piece of land on account of damage to be caused to his land by the defendants using it to take their carts and cattle over it and that was construed as a lease mainly on the ground that the right was heritable and irrevocable, and it can have no application to the present case. It is a question of fact in each case whether a particular arrangement I amounts to a lease or licence and other cases can merely be a guide in such interpretation. As already pointed out the proper interpretation to be put on Ex. 3 is that it is a licence and not a lease.

7. In this connection, it has been urged for the respondents that Ex. 3 cannot be enforced if it is to be deemed as a lease of immoveable property; such a lease can only tie granted by the Municipal Council under S. 41, Mysore City Municipalities Act; that in this case, the resolution Ex. 3 was only to the effect that the plaintiff should be permitted to vend fruits in the Bus Stand and any agreement that could be entered into with him thereafter by the Commissioner could only be in terms of that resolution and the Commissioner had no power to enter into an arrangement of lease with the plaintiff. Exhibit III is also, it is urged, not in accordance with the requirements of Ss. 251 and 252 of that Act. Under S. 251(c) no contract for the purchase, sale, lease, mortgage, or other transfer of immovable property shall be entered into by the Municipal Commissioner except with the approval or sanction of the Municipal Council; and under S. 252(2) read with S. 41(7) such a contract should be in writing and signed by the President and attested by two other Councillors and sealed by the Municipality. These formalities not having been observed in this case, it is urged that the agreement Ex. 3 is void; and for that position reliance is placed on - 28 Mys O. C. R. 119 (G), which supports it. It is, however, urged for the appellant that the later case in - 8 Mys LJ 412 (H) would govern this case. But it is seen that in the latter case the defendant had enjoyed the benefit of the contract and collected tolls which the Municipality would have collected but for the contract with the defendant, and it was held that he was liable under S. 65, Contract Act to pay the balance of the rent due to the Municipality. The question of directly enforcing the terms of the contract did not therefore really arise in that case, and in fact it is observed at p. 418 of the report, that they were not concerned with a case where the contract was still executory and there was no need to consider the question whether non-compliance with the statutory formalities of the Municipal Act would (prevent either party from enforcing performance against the other of such contract.

8. The next contention of Mr. Kanakasabapathy is that an injunction had been granted against the Municipality by the Munsiff and as the Municipality had not appealed that decree had become final; and the present Respondents one to six who claim under the Municipality respondent seven could not by filing an appeal of their own before the District Judge, get over or nullify the effect of the decree against the Municipal Council. This contention no doubt at first sight appears to be somewhat formidable against the Municipality and defendants two to seven. But it has to be observed that the lower Appellate Court had powers even in such a case under O. 41, R. 33, C.P.C. to pass any decree or make any order which ought to have been passed or made by the trial Court and the power could be exercised by the lower appellate Court in favour of or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection. Moreover, defendants two to seven were impleaded in the case by reason of the grant of permits in their favour before the plaintiff filed his amended plaint; and if the Municipality had so granted permits before the date when the suit must be deemed to have been filed against those defendants any decision which may be passed in the suit against the Municipality would not be binding on these defendants also as by that time the Municipality had already parted with certain, rights in their favour. In fact on behalf of defendants 2 to 7, it was rather strongly argued that if the Municipality for instance had colluded with, the plaintiff and not chosen even to defend the suit nevertheless defendants two to seven, who are grantees of certain rights, could on their own rights seek to defend the same. The respondents have also pointed out that in the appeal memo before this Court the appellant has taken no such ground and this, it is urged, shows that he himself thought that there was not much force in this contention.

9. In this connection reliance has been placed for the appellant on - Chandrika Bakhsh v. Indar Bikram Singh, AIR 1916 P.C. 14 (I), and - Motilal Kanji and Co. v. Natvarlal M. Jhaveri, AIR 1932 Bom 78 (J). In the first case it was admitted by the defendant concerned, and found by the Sub-Judge, that the contesting defendant had no title of his own to protect and was a mere impertinent intervener in another persons affair. It was therefore held by their Lordships of the Privy Council that he could not have maintained an appeal before the Judicial Commissioner to whom he had appealed. In the latter case which was one arising under the Companies Act the appellants interests were in no way affected by the order of the lower Court and therefore it was rightly held that he had no right to appeal against the decision. That can certainly not be said of defendants two to seven who have rights of their own to defend and a real stake in the litigation. In this court it has been held that, though powers I under O. 41, R. 33, C.P.C. should be cautiously applied, e.g. in cases where but for the recourse to it the ends of justice would be defeated and the rule should not be allowed to be invoked in favour of a litigant so as to enable him to effect the provisions of other statutes such as Limitation Act, Court-fees Act and other provisions of the Code of Civil Procedure, recourse to which may have given him requisite relief, still such powers could properly be invoked to do justice between the parties; See 31 Mys. C.C.R. 218 (K) and - Rangachar v. Srinivasa Rangachar, 45 Mys. H.C.R. 450 (L). If in the circumstances of this case it is found that an injunction, not to grant licences, could not have been made in favour of the plaintiff against the Municipality much less against defendants two to seven it is difficult to accept the argument for the appellant that the injunction could be retained as against the Municipality while cancelling the same so far as it affects defendants two to seven. Defendants two to seven who were clearly affected by the decree of the Munsiff appealed in time and the Municipality was also impleaded in the appeal. I think it is not an unreasonable contention on their part that since already an appeal had been filed by defendants two to seven they felt that the appellate Court could grant suitable relief to all parties concerned in that appeal alone under the provisions of O. 41, R. 33.

10. It is next contended for the appellant that Ex. 3 is not a bare licence but one coupled with a grant of rights in land; and reliance is placed on - Arpan Ali v. Jnanendra Kumar, AIR 1945 Cal 413 (M). It is urged that the appellants rights subsisted until even me alleged licence was revolted in a proper way and that in the present case it has been terminated arbitrarily. Clause (3) of Ex. 3 specially provides that the arrangement was to subsist so long as the plaintiff was paying rents regularly, and it is urged there is not even a suggestion that he failed to perform this or any other terms binding on him. Exhibit 3, in my opinion, is merely in the nature of a mere right to vend fruits, i.e. a bare licence. It is not accompanied by any transfer of immoveable property or grant of any rights therein. The plaintiff has not effected any improvements or constructions on the property or stored any goods. It is urged that the licence has been granted for a consideration, viz., payment of rent. But even then the licencee is entitled to recover compensation from the grantor and cannot obtain an injunction enabling him to continue to enjoy the rights for which he has contracted.

11. For the respondents it has also been contended that this is not a proper case in which an injunction could be issued. Reference has been made to Section 21(d) and (g), Specific Relief Act. It is urged that the present is a contract the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date. If the appellants contention is to be accepted it is argued Ex. 3 is to be in the nature of a permanent arrangement and a kind of grant in perpetuity of a right to vend fruits in this area. By way of answer, it is represented for the appellant that what the plaintiff is seeking in this case is that he should be allowed to continue to enjoy the rights granted in his favour by defendant one till it is properly terminated in accordance with law and that it is not a right in perpetuity that he is claiming. It is not necessary to consider this point in the view I have taken that Ex. 3 does not represent an enforceable contract of lease but a licence. There is, however, considerable force in the argument for the Respondents that the present document being a contract which is in its nature revocable it cannot be specifically enforced by the Court by the issue of a permanent injunction.

12. In the result, the judgment and decree of the lower Appellate Court are confirmed and this appeal is dismissed with, costs. (Advocates Fee Rs. 25/-) Appeal dismissed. AIR 1954 MYSORE 93 (Vol. 41, C.N. 42) "Thimmegowda v. Dyavamma" MYSORE HIGH COURT FULL BENCH Coram : 3 MEDAPA, C.J., VENKATA RAMAIYA AND VASUDEVAMURTHY, JJ. ( Full Bench ) Hutcha Thimmegowda and another, Appellants v. Dyavamma and others, Respondents. Appeal No. 36/1949-50, D/- 15 -1 -1954, against decree of Addl. Sub-J., Hassan, D/- 31 -1 -1949. (A) HINDU LAW - Hindu Law - Debts - Father - firms obligation of sons. Extent of 16 Mys LR 116 (FB) and 15 Mys CCR 233 (FB), Overruled. It is now fairly well settled that the pious liability of the son to pay the debts of his father exists whether the father is alive or dead. Thus it is open to the fattier during his life time to effect a transfer of any joint family property including the Interest of his sons in the case to pay off an antecedent does not incurred for family necessity or benefit, provided it is not tainted with immorality. AIR 1852 SC 170 and AIR 1953 SC 487, Foll.; 16 Mys LR 116 (FB) and 15 Mys CCR 233 (FB), Overruled. Case law referred. (Paras 8, 17, 27) The rules governing liability of sons for debts of the father and alienations of joint family properties by the father may be stated as follows :

1. The sons have a pious duty to discharge the fathers debt whether the father is dead or alive :

2. An alienation of family property by way of mortgage or sale by the father is valid if it be for legal necessity or for discharge of an antecedent debt :

3. If the debt due under a mortgage by the father is not realised by sale of the mortgaged property, the amount left due may be recovered from the shares of the sons in the family properties :

4. The liability of the sons is however subject to the law of limitation and the debt not being shown to be illegal or immoral. Whenever discharge of a debt is relied upon to justify the alienation, without proof of necessity or benefit for the family, it is necessary to examine whether the debt is really "antecedent" or only set up as a cover to defraud the family. (Paras 17, 18) (B) HINDU LAW - Hindu Law - Debts - Father - Antecedent debt - Essentials. To constitute an antecedent debt the debt must be truly independent and not a part of the transaction impeached and there must be real dissociation in fact. Brij Narayans case and Sadhurams case, Rel. on. (Para 18) (C) Constitution of India, Art.141 - PRECEDENT - SUPREME COURT - HIGH COURT - PREAMBLE - Supreme Court decisions - Effect on decisions of Mysore High Court. Precedents. Civil P.C. (5 of 1908), Pre.. Under Art. 141 of the Constitution, the law declared by the Supreme Court is binding en all the Courts within the territory of India and must now be followed in preference ho any other view which might have been taken by Mysore High Court. AIR 1951 Mys 123, Rel. (Para 24) Anno : C. P.C., Pre. N. 15. Cases Referred : Courtwise Chorological Paras (A) (V 39) AIR 1952 SC 170 : 1952 SCR 544 1, 8, 13, 24 (B) (V 4) AIR 1917 PC 61 : 44 Ind App 126 (PC) 2, 15, 18 (C) (V 11) AIR 1924 PC 50 : 51 Ind App 129 (PC) 2, 3, 14, 15, 17, 18, 24, 30 (D) 16 Mys LR 116 (FB) 5, 27 (E) 15 Mys CCR 233 (FB) 5, 11, 16, 23, 26, 29 (F) (V 40) AIR 1958 SC 487 : 1953 SCJ 700 8, 16, 25 (G) 36 Mys HCR 416 11 (H) 41 Mys HCR 382 11, 14, 16

(I) 45 Mys HCR 26 11 (J) 45 Mys HCR 83 11 (K) (V 24) AIR 1937 Mad 140 : 169 Ind Cas 26 15

(L) 27 Mys CCR 155 23 (M) 42 Mys HCR 163 23 (N) 49 Mys HCR 530 23 (O) 51 Mys HCR 112 23 (P) (37) 15 Mys LJ 230 23, 26 (P1) (V 38) AIR 1951 Mys 126 : ILR (1951) Mys 414 24 (Q) (V 13) AIR 1926 PC 105 : 53 Ind App 204 (PC) 24 (R) (73-74) 1 Ind App 321 : 14 Beng LR 187 (PC) 24, 26, 29 (S) (78-79) 6 Ind App 88 : 5 Cal 148 (PC) 24 (T) (04) 27 Mad 243 : 14 Mad LJ 84 (FB) 26 (U) (82) 4 Mad 1 (FB) 26

(V) 4 Mys CCR 26 26 (W) 5 Mys CCR 69 26

(X) 7 Mys CCR 15 26 (Y) 10 Mys CCR 71 26 (Z) 21 Mys CCR 145 27 (Z1) (V 38) AIR 1951 Mys 38 : ILR (1951) Mys 259 (FB) 27 (Z2) (V 38) S. A. No. 499 of 1951-52 (Mys) 30 (Z3) (V 36) AIR 1949 All 685 : ILR (1951) 1 All 62 (FB) 30 (Z4) (V 6) AIR 1919 Mad 75 : 42 Mad 711 (FB) 30 (Z5) (V 6) AIR 1919 Mad 1175 : 41 Mad 136 30 (Z6) (V 8) AIR 1921 Pat 447 : 62 Ind Cas 132 (FB) 30 (Z7) (V 9) AIR 1922 Pat 450 : 1 Pat 506 30 (Z8) (35) 14 Mys LJ 510 30 (Z9) (39) 18 Mys LJ 113 30 (Z10) (39) 18 Mys LJ 133 30

V. Krishna Murthy, for Appellants; R.V. Sreenivasaiya, for Respondents Nos. 1 to 5. Judgement MEDAPA, C. J. :- The facts of the case which led up to this appeal have been set out in full in the judgment of the trial court as also in the judgment of my learned brother Justice Sri B. Vasudevamurthy which I have had the advantage of perusing; they need not therefore be reiterated. This appeal was directed to be placed before a Full Bench as its disposal involved a consideration, rather a reconsideration of the views of this High Court on a very important point of Hindu Law, regarding which a definite view had been taken from a long time. The necessity for the reconsideration arose on account of the decision of the Supreme Court reported in - Pannalal v. Mt. Naraini, AIR 1952 SC 170 (A). The important point of Hindu Law referred to above is whether the pious obligation of a son to discharge his fathers debt arises during the lifetime of his father. The point, as already stated, was well settled in Mysore. The views of the High Courts outside the State were also equally definite and well settled and the importance which this matter has now assumed, in due to the fact that the view of our High Court is diametrically opposed to the view held in the other High Courts.

2. A marked and distinctive feature of Hindu Law is that a son acquires by birth a right in the joint family property. That right is not affected by any transfer effected by any other member of the joint family including the manager, even though the manager happens to be a father unless the transfer is for family benefit or necessity when the son is a minor and, if a major, unless he consents to the said transfer. Another distinctive feature of Hindu Law is that a son is under a pious obligation to discharge the debts of his father, not incurred for illegal or immoral purposes. This obligation on the son to discharge the debt of his father arose, according to orthodox Hindu Law, only after the death of the father or where the father was as good as dead on account of the circumstances which will be referred to later. This was also the view taken in the early decisions of the High Courts, in what was prior to the Constitution known as British India, and also of the Privy Council, till the latter changed its view and the High Courts in British India had to follow and did follow the lead so given. It will be sufficient to give the following extract from the commentary in Mullas Hindu Law, 10th Edition, at P. 349 to show the trend of the view of these Courts : "There arose recently a conflict of opinion whether there was any pious obligation on the part of the sons to pay the fathers debts in the lifetime of the father, or whether the obligation, arose for the first time after the fathers death, The conflict arose out of some observations of the Judicial Committee in - Sahu Ram Chandra v. Bhup Singh, AIR 1917 PC 61 (B), Following those observations, the Allahabad High Court held that the obligation did not arise until after the fathers death. On the other hand the Madras and Bombay High Courts held that the liability arose even in the fathers lifetime, and that the observations in - Sahu Rams case, (B), were mere obiter dicta and they did not affect the law as laid down by the Judicial Committee itself in a long line of decisions. In a later case, that of - Brij Narain v. Mangal Prasad, AIR 1924 PC 50 (C), their Lordships of the Privy Council held that the observations in - Sahu Rams case, referred to above were not necessary for the decision of the case, and that the sons were liable for the fathers debts whether the father was alive or dead when the liability attached."

3. As pointed out in Maynes Hindu Law Usage, Eleventh Edition, p. 417 : "On account of conflicting decisions, a Full Board of the Judicial Committee examined the whole subject in - Brij Narain v. Mangala Prasad, (C), and Lord Dunedin laid down the following five propositions : (1) The managing member of a joint undivided estate cannot alienate or burden the estate qua manager except for purposes of necessity; but (2) if he is the father and the other members are the sons, he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt; (3) if he purports to burden the estate by mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind the estate; (4) Antecedent debt means antecedent in fact as well as in time, that is to say that the debt must be fully independent and not part of the transaction impeached; and (5) There is no rule that this result is affected by the question whether the father, who contracted the debt or burdens the estate, is alive or dead."

4. The result is that according to the view of the High Courts outside Mysore, the interest of a son cannot be proceeded against, when the father without any legal necessity or unless in discharge of an antecedent debt sells a joint family property or borrows money under a mortgage deed while the entire interest of the father as well as that of his son can be proceeded against in execution of a decree obtained against the father for the recovery of an unsecured debt unless the debt was contracted for illegal or immoral purposes. This position of the law gives an unsecured creditor greater advantage than that given to a secured creditor. Conversely it follows that while the father cannot borrow money straightway on the security of the interest of his son except for legal necessity, he can nevertheless borrow money without security and later on effectively mortgage or sell the interest of his son, on the ground that, he is doing so for discharging an antecedent debt.

5. The High Court of Mysore has on the other hand consistently held from 1393, that is to say for over half a century, that there is no obligation on the part of the son to discharge the debts of his father during the letters lifetime unless the debt had been incurred for family benefit or with the sons consent. This was the view of the majority of the Judges in the case reported in - 18 Mysore LR 116 (FB) (D). This view was confirmed by an unanimous decision of a later Full Bench reported in - 15 Mys CCR 233 (E). It was there held that : "It was open to the son to plead that in the absence of proof that the debt was incurred for the sake of the family, his interests were not affected by the sale." There is hardly any doubt that the ancient texts of Hindu Law support the view taken by our High Court. A fuller but needlessly lengthy discussion may conveniently be avoided by inviting a reference to the judgment of Setlur, J. in the above Full Bench case. The following extract from West and Buhlers criticism on the Privy Council decisions is apposite : "None of the texts........ nor any of the commentators on them say that a sons liability for his fathers debts arises during the fathers life ...... There are many texts which imply the contrary. Vishnu says the sons and grandsons must pay when the debtor is dead or has been absent twenty years, that is, when he may be presumed to be dead, not before. Manu says simply when the father is dead. Brihaspati says the sons must pay even in the fathers life but only in cases in which he is incapable of acquiring property or retaining it. The exception here is conclusive as to the rule, at least as it was understood by the school that produced this Smriti, which is sacred everywhere. The same observation occurs as to Katyayanas text ...... so as to Naradas text on the subject. The whole series quoted by Jagannatha imply a liability only after the fathers natural or civil death or its equivalent, and so they have invariably understood by native lawyers reading them with the context. The case may be stated even more strongly. There is no text imposing on sons a liability during their fathers life for debts incurred even for the benefit of the family except in cases in which the father is not capable of managing the estate and affairs of the family and the sons are. It is impossible that of the numerous texts treating of debts contracted for the family and of the sons liability as survivors of their father all should have omitted to mention their liability during the fathers life, had the liability been recognized. But the father is regarded as alone responsible, and alone having administrative control as the head of an undivided family ...... The Vyavahara Mayukha, the chief local authority of Bombay dwells elaborately on the debtors obligations, but says nothing about any obligation of the sons except on their fathers death or prolonged absence. The Mitakshara itself in commenting on the texts of Yajnavalkya. ... .construes them as imposing a duty only on the fathers death, his absence for twenty years or on his imbecility."

6. Mullas commentary on the point at p. 349 (10th edition) is succinct and deserves reference : "It may here be observed that under the old Hindu Law the liability of the son to pay the fathers debt did not arise until after the fathers death. Under Hindu Law as interpreted by the British Courts the liability exists even in the lifetime of the father. To this extent the British Courts have extended the liability of the son."

7. It will thus be noticed that the view of our High Court prevailing for over 60 years fortified, as it has been by two Full Bench decisions, is in consonance with the texts of Hindu Law and that the view of their Lordships of the Privy Council, has brought about a change in this branch of the law in the rest of India. The change however cannot be said to be advantageous as it brings about a distinction between a secured creditor and an unsecured creditor, the latter being placed in a more advantageous position than the former. The father is allowed to alienate the property of his son by merely borrowing money before alienating the property of the joint family. It enables, in a way not contemplated by Hindu Law, a father to defeat the rights that a son gets by birth by intentionally borrowing money and by that device to ultimately alienate his sons interest without, the sons consent even though there was no legal necessity for the loan.

8. It has been observed in - AIR 1952 SC 170 (A), that : "It can now be taken to be fairly well settled that the pious liability of the son to pay the debts of his father exists whether the father is alive or dead." The law as laid down in this decision and in - Sidheshwar v. Bhubneshwar, AIR 1953 SC 487 (F), by their Lordships of the Supreme Court is binding on us. Article 141 of the Constitution makes this position doubly clear. It is besides desirable that the law applicable to all parts of India is made uniform as far as possible for more reasons than one and in Mysore this need for uniformity has now become more imperative than even before, as some parts of what was known as British India, have as a result of integration of the States and the creation of new Provinces, come under the jurisdiction of this High Court. It follows that unless and until the Supreme Court thinks it necessary to reconsider the position in view of the strong and pertinent criticisms such as those of West and Buhler, the long existing view in this State enunciated in the two Full Bench decisions of this Court referred to above has to yield ground to the view expressed by the Supreme Court based on what must be taken as well established law in all the Courts outside Mysore and which was also the view of their Lordships of the Privy Council.

9. The decree of the lower Court is accordingly modified in the manner indicated by my learned brothers in their judgments.

10. VENKATA RAMAIYA, J. :- The facts relating to the appeal are fully stated in the judgment of my learned brother Vasudevamurthy, J. The controversy is of the familiar type between purchasers of joint Hindu family property and the members of the family about the validity of the sales as regards those who were not parties to the sales with the additional feature of the mother and unmarried daughters of the vendor having joined his sons in attacking the sales and claiming shares in the properties. The claim of the mothers and daughters rests on the provisions of Hindu Law Womens Rights Act (No. 10 of 1933) and that of the-sons of the Law of Mitakshara. Adopting the considerations applied hitherto in such cases the learned Sub-Judge held that the Appellants have acquired only the interests of the vendor in the properties conveyed to them and granted a decree for partition of the properties and possession of the shares due to the mother, daughters and sons according to law. It is contended for the appellants who are two of the purchasers that the decision is erroneous as the principles laid down in former decisions of this Court on which it is based need reconsideration and revision. The contention raises questions of importance and I shall briefly state my views about it.

11. The powers of a Hindu father under the law of Mitakshara to alienate family property and contract debts binding on the sons and other members of the family are discussed in a number of cases with special reference to the ancient texts. While it is agreed that discharge of debt is enjoined as a sacred duty and that the obligation is cast not merely on the father but also on the sons there is divergence of opinion about the duty of the son concerning this when the father is alive. The view which has prevailed in Mysore so far is that : "the liability of the Hindu son for the debts of his father does not arise as long as the debtor himself is alive and is not so disabled by disease or other physical disability as not to be able to discharge it himself or has been absent so long as to raise a presumption of death." This was laid down so far back as 1909 by a Full Bench in - 15 Mys CCR 233 (E), where the question was whether a son who was not a party to the suit for enforcement of a mortgage effected by the father with respect to ancestral property can resist the claim of the purchaser in execution of the decree, for possession of the property, on the ground that his interest in the property is not affected by the sale in the absence of proof that the debt was incurred for the sake of the family. That was a case in which the father was alive when the liability of the sons share in the property for recovery of the mortgage debt was disputed. For payment of unsecured debts of the father the accepted rule is that the pious duty of the sons does not arise when the father is alive but does arise when he is dead, unless the debts are proved to be illegal or immoral and that family properties in the possession of the sons may be proceeded against for recovery thereof. The obligation extends to the grandsons for the payment of such debts of the grand-father and family properties are similarly liable. See - 36 Mys HCR 416 (Q). There is a qualification of the rule for payment of debts contracted by the father mortgaging family property as it is considered that the liability of the sons for mortgage debts does not arise by reason of the death of the father and that their interests in the property mortgaged would be liable under the mortgage whether the father is alive or dead, only if the debt was incurred for the necessity or benefit of the family that in the absence of such necessity or benefit, the sons liability arises if the father is dead and the creditor obtains a personal decree. It is enough to refer to three cases concerning this - each of a separate Division Bench - 41 Mys HCR 382 (H) and - 45 Mys HCR 26 CD and - 45 Mys HCR 33 (J). In each of these the mortgagee sought payment of the money due under a mortgage by the father of the family properties, and the sons who were not parties to the mortgage denied liability of their shares in the family property for the debt. In the last case the father was dead when the suit was filed and in the first two cases he died after the institution of the suit. As legal necessity or family benefit for the mortgage or for the prior debts which it purported to discharge was found to be wanting, it was held in all the cases that the shares of the sons in the properties were exempt from liability under the mortgage. As regards pious liability of the sons to discharge the debt after the fathers death Chari J. in - 41 Mys HCR 382 (H), at p. 389, expressed : "....a mortgage is an alienation of interest possessed in the mortgaged property and as such the doctrine of pious obligation is not applicable to it; in other words even if the father is dead it would still be the duty of the creditor to prove that the debt was borrowed for legal necessity or for the benefit of the family." This view was affirmed in the two later cases, at pp. 26 (I) and 83 (J), of 45 Mys HCR. But in - 45 Mys HCR 83 at p. 87 (J), Beilly, C.J. added; "....If there were a balance left to be recovered from the fathers estate as a personal debt after his death then no doubt the pious obligation of his son would apply to that balance and it could be recovered from the sons interest in what had been the joint family property of himself and his father if the remedy against him is not time barred." Another point to be noticed in these and other cases where family property was alienated by the father for discharging debts previously incurred by him is the emphasis placed on the ascertainment of the need for such debts.

12. The effect of the decisions of this Court is :

1. The pious duty of the sons for payment of the fathers debts does not arise during the lifetime of the father;

2. After death of the father the pious obligation of the sons arises with respect to simple money debts (not avyavaharika) and not mortgage debts.

3. Interests of the sons in family property mortgaged by the father for a debt contracted by him are not liable for payment of the debt in enforcement of the mortgage unless the mortgage is shown to be for legal necessity and for this it makes no difference whether the father is dead or alive. But family properties in the possession of the sons may be proceeded against, if the father is dead, in execution of a personal decree obtained by the mortgagee.

4. Discharge of an antecedent debt by means of an alienation of family property effected by the father is not sufficient by itself to render the alienation valid. It must be proved that the prior debts were incurred for the necessity or benefit of the family or that the creditor made reasonable inquiry to be satisfied about the need for the debts.

13. In this case as in others where the validity of alienations by a Hindu father of family properties for discharging debts contracted by him is to be determined, the decision of the Supreme Court in - AIR 1952 SC 170 (A), is referred to as laying down principles at variance with those summarised above. As Art. 141, Constitution of India states that the law declared by the Supreme Court shall be binding on all Courts within the territory of India, it is necessary to see it the law applicable to the matters in issue here is enunciated in the case mentioned. The decision of the Supreme Court relates to a case in which the suit was filed for enforcement of a mortgage but the claim to a mortgage decree was given up and a decree was passed by consent for payment of money by the defendant. Later on, the defendant died and his sons who were impleaded as legal representatives objected to the execution of the decree against the properties in their possession on the ground that these belonged to them absolutely as a result of the partition between them and their father. It was held that the amount payable under the decree was a pre-partition debt which the sons were liable to pay provided it was not illegal or immoral and no arrangement was made at the partition for payment of the debt. In the course of the judgment it is observed : "It can now be taken to be fairly well settled that the pious liability of the son to pay the debts of his father exists whether the father is alive or dead. Thus it is open to the father during his lifetime to effect a transfer of any joint family property including the interest of his sons in the same to pay off an antecedent debt not incurred for family necessity or benefit provided it is not tainted with immorality.... According to the strict Hindu theory the obligation of the sons to pay the fathers debts normally arises when the father is dead, disabled or unheard of or a long time. No question of alienation of the family property by the father arises in these events although it is precisely under these circumstances that the son is obliged to discharge the debts of his father."

14. In - AIR 1924 PC 50 (C), referred to as supporting some of the above statements and which is also relied upon in - 11 Mys HCR 382 (H), the sons impeached a decree obtained by a creditor of the father on the foot of a mortgage. A Full Board of the Privy Council after reviewing the cases bearing on the question declared that the mortgage was binding on the sons as it was effected in order to pay antecedent debts due under two older mortgages.

15. There is provision in the texts for alienations only in case of distress, benefit or good of the family, (Apathkale, Kutumbarthe, Dharmarthe) and the theory that discharge of antecedent debts is a justification for the alienation of family property by the father seems to have developed as a corollary to the doctrine of pious obligation of the sons. As stated in - AIR 1924 PC 50 at p. 54 (C) : "On the one hand there is the general rule of the Mitakshara Law that the manager cannot burden the estate for his own purposes........on the other hand there is the obligation of the son to discharge his fathers debts, based on the doctrine of pious duty...... It is enough to say that both principles are firmly established by long trains of decisions and it certainly occurs to the view that the term "antecedent" debt represents a more or less desperate attempt to reconcile the conflicting principles." It is mentioned as an exception to the general rule, in - AIR 1017 PC 61 (B) thus : "Although the correct and general principle is that if the debt was not for the benefit of an estate then the manager should have no power either of mortgage or sale of that estate in order to meet such a debt, yet an exception has been made to cover the case of mortgage or sale by the father in consideration of an antecedent debt"; and that it is intended to protect alienees for onerous consideration and in good faith." It is unnecessary to pursue the inquiry as the point is concluded by the explicit statement in the judgment of the Supreme Court that "There is no question that so long as the family remains undivided the father is entitled to alienate for satisfying his own personal debts not tainted with immorality the whole of the ancestral estate." In - Shanmukam v. Nachu Ammal, AIR 1937 Mad 140 (K) a mortgage of family property by a junior member of the family whose father was alive was challenged by the sons. Varadachariar, J. who delivered the judgment of the Bench held that the mortgage was binding on the sons share in the hypothecated properties to the extent to which the debts referred to in the mortgage deed were antecedent debts although the father was not the manager and in respect of the balance of the mortgage amount the plaintiff was entitled to relief as on a money claim. The judgment directed that if after the sale of the fathers share in the hypothecated properties for the full amount and of the sons share in the properties for the amount held binding, the decree amount is not fully realised the plaintiff was entitled to proceed against the sons interest in the joint family properties for the recovery of the balance.

16. Whether the mortgage is treated as a transaction of debt as in - 15 Mys CCR 233 (FB) (E) or as an alienation as in - 41 Mys HCR 382 (H) or of both, it is evident that legal necessity or family benefit cannot be the sole criterion for the interests of the sons in the mortgaged properties being affected by a transaction of the father according to these decisions. Although there was no question regarding sale in the case before the Supreme Court the decision postulates principles vital for ascertaining the extent and scope of the authority under the Mitakshara Law of a Hindu father to deal with family property and declares that there are no such limits as are prescribed in the cases of this Court. In spite of the strict Hindu theory that the pious duty to discharge the fathers debts springs up after his death existence of the duty in the fathers lifetime is stated to be well settled. Cases in which there are statements to the contrary cannot be of assistance or be cited as precedents now whatever may have been their value in the past and principles of stare decisis can have no application to these. The change wrought by the Constitution in regard to the finality of the decisions of this Court, the expansion of jurisdiction of this Court over areas in which people are accustomed to the application of Mitakshara Law as interpreted differently and need for avoiding confusion and conflict make it impossible now for this Court to steer a lonely course and adhere to opinions expressed in its former decisions. The liability of the shares of the sons in family properties for recovery of the debt due by the father has been considered also in a case recently reported in - AIR 1953 SC 487 (F). The debt in that case was incurred by the father under a pronote executed by him and the creditor in execution of a decree obtained against the father alone got the family property including the interests of the sons sold. The question was whether the sale was effective in conveying the shares of the sons to the purchaser when the sons were not parties to the proceedings. On the view that the father was a junior member of the family and as such had no right of disposition over the interests of the sons and could not represent them in the proceedings the High Court held that the purchaser in the execution sale was entitled only to the share of the father. The Supreme Court declared that this was not correct and that the purchaser acquired the interests in family property of not merely the father but also of his sons as it was found from the execution proceedings that the creditor intended to attach and sell the interest of the sons as well and the debt was not shown to be such as the sons were not liable to pay under Hindu law. It is stated in the course of the judgment, as regards the liability of the sons share in the property to be proceeded against for recovery of the decree debt "The obligation exists whether the sons are major or minor or whether the father is alive or dead. If the debts have been contracted by the father and they are not immoral or irreligious the interest of the sons in the coparcenary property can always be made liable for such debt." It is a special liability created on purely religious grounds and can only be enforced against the sons of the father and no other coparcener. The liability has therefore its basis entirely on the relationship between the father and the son So far as the legal liability of the sons is concerned as the debts incurred by the father are not shown to be illegal or irreligious it must be held under the rule of Hindu law there is a legal liability on the part of the sons to discharge their debts and the creditor can enforce this liability by attachment and sale of the sons interest in the same manner as it was a personal debt due by them. The fact that the father was not the karta or manager of the joint family or that the family did consist of other coparceners besides the father and sons does not affect the liability of the sons in any way...... Without being a karta he could as a father completely represent his branch of the coparcenary consisting of himself and his sons...."

17. Having regard to the views expressed by the Supreme Court and the approving reference therein to - AIR 1924 PC 50 (C) and other cases, the rules governing liability of sons for debts of the father and alienations of joint family properties by the father may be stated as follows :

1. The sons have a pious duty to discharge the fathers debt whether the father is dead or alive.

2. An alienation of family property by way of mortgage or sale by the father is valid if it be for legal necessity or for discharge of an antecedent debt :

3. If the debt due under a mortgage by the father is not realised by sale of the mortgaged property, the amount left due may be recovered from the shares of the sons in the family properties :

4. The liability of the sons is however subject to the law of limitation and the debt not being shown to be illegal or immoral.

18. In applying these rules, it is necessary to bear in mind the importance of examining whenever discharge of a debt is relied upon to justify the alienation, without proof of necessity or benefit for the family, whether the debt is really "antecedent" or only set up as a cover to defraud the family. To constitute antecedent debt according to - Brij Narains case (C) "the debt must be truly independent and not part of the transaction impeached" and as required in - Sahurams case (B) "there must, to give true effect to the doctrine of antecedency in time, be also real dissociation in fact". It may be that in some cases the family properties are subject to the risk of being alienated by the father for discharging debts imprudently contracted by him earlier. Such instances must, if at all, be as rare in the case of a father "his natural relation to his children entitles him to more than ordinary confidence his transactions, may be strongly presumed to be intended for the good of the family." (See pp. 595 and 596 of West and Buhlers Hindu Law).

19. The result of applying these principles to the two sales under Exhibits III and V in favour of the Appellants may now be considered. The executant of both documents is defendant 6, the son of the 1st plaintiff and father of the other plaintiffs, and the purpose mentioned in each is discharge of prior debts. Admittedly the properties are ancestral and there is no proof of necessity or benefit for either sale. The interests of the sons can be affected, if at all, to the extent the purpose mentioned in the deeds is made out. This is lacking in the case of Ex. Ill as there is nothing more than a bare reference in the deed to a previous debt. The bulk of the consideration for Ex. V is however shown to have been applied for discharge of prior debts of defendant 6 thought there is no proof of the balance of the amount having been required or utilised for any purpose-binding on the family. I agree that the decree of the lower Court is to be modified as stated by my learned brother. VASUDEVAMURTHY, J. :

20. The five plaintiffs who are the mother, two minor daughters and two minor sons respectively of defendant 6 brought a suit for a declaration that certain sales effected by defendant 6 in favour of the other defendants are not binding on their shares in the joint family properties described in the plaint schedule and for their shares being divided off and delivered to them and for mesne profits. They pleaded that defendant 6 had been extravagant and had incurred debts and effected alienations which were neither for legal necessity nor benefit to the family. Defendant 5 is the mother of plaintiffs 2 to 5 and defendants 1 and 4 are also closely related to the family. They were ex parte and though the alienations in their favour have been set aside by the Court below they have not appealed and their cases do not arise for consideration. Defendants 2 and 3 contested the plaintiffs suit. They pleaded that they were purchasers from defendant 6 of item 4 and item 2 respectively and that those alienations were binding on the plaintiffs as they were made for discharging earlier debts which had been incurred by defendant 6 for family necessity and benefit and for other similar beneficial purposes. They also pleaded that neither plaintiff 1, the mother, nor plaintiffs 2 and 3, the daughters, were entitled to claim shares and that as neither of the plaintiffs 4 and 5 were born on the date of the alienations, they could not question them. The Subordinate Judge who tried the suit has held that the sales in favour of defendant 2 and 3 are not binding on the plaintiffs and has granted a decree in favour of the plaintiffs; and defendants 2 and 3 have appealed.

21. The learned Subordinate Judge has held that plaintiffs 2 and 3 who are daughters of defendant 6 cannot question the alienations and that plaintiffs 4 and 5 had been born on 2-11-43 and 28-11-45 and could therefore question the sales in favour of defendants 2 and 3. These findings are not seriously questioned before us. So that we are only concerned with whether these two sales are binding on the plaintiffs. The sale in favour of defendant 2 is under Ex. III a sale deed dated 6-12-1944 for Rs. 275/- and is in respect of item 4. The reason for the sale, as recited in the sale-deed, was in order to discharge a prior hypothecation debt of Rs. 300/- due to one Koppal Boregowda under the original of Ex. XI. The original of Ex. XI has not been produced with an endorsement of discharge and Koppal Boregowda has not been examined. In fact defendant 2 examined as D. W. 7 admits that that debt has not been discharged and that defendant 6 received the purchase money himself saying he would discharge the earlier debt. In these circumstances the lower Court has rightly held that that sale has not been shown as having been made for any benefit or necessity. It was urged for the appellants that the purchaser was not bound to see to the application to the purchase money but seeing that the sale was expressly for discharging an earlier debt and that debt has admittedly not been discharged it is difficult to accept that contention which seems rather extreme on the facts and in the circumstances of this case. If such an argument is accepted in this case, the minors and their other properties may run the risk of being still subject to the debt, while the item of property alienated would have passed out of the possession of the family. The finding of the Subordinate Judge regarding the sale in favour of defendant 2 under Ex. 3 must be affirmed; and the appeal so far as it concerns him is dismissed.

22. Defendant 6 has sold item 2, a garden, to defendant 3 by the sale-deed Ex. 5, dated 9-3-1345. The sale is for Rs. 2500/- and the purpose of the sale as recited in the sale-deed, is in order to discharge three prior debts due by him, via., of Rs. 900/- due to defendant 3 himself under Ex. 4, a hypothecation deed dated 20-11-44, Rs. 300/- due to defendant 3 on an on demand pronote Ex. XII, dated 22-11-44 and Rs. 650/- due on an on demand pronote Ex. 6, executed by defendant 6 in favour of one Channegowda, and for the balance to be utilised for buying bullocks and carts for agricultural purposes, to repair the family dwelling, which is described as being in a dilapidated condition, and to meet the expenses of planting cocoanut trees. Rs. 900/- and Rs. 200/- were to be adjusted out of the purchase money. Rs. 650/- was left with the purchaser for payment to Channegowda and Rs. 750/- was received by defendant 6 before the Sub-Registrar.

23. It is not disputed before us, and it cannot be disputed, that defendant 6 owed the two amounts of Rs. 900/- and Rs. 200/- respectively to defendant 3 and Rs. 650/- to Channegowda. They are evidenced by Exs. 4, 12 and 6. Channegowda has been examined as D. W. 3 and he has deposed that the debt due to him under Ex. 6 was paid off as per Ex. 6 (b) his endorsement of discharge dated 10-3-45. The learned Subordinate Judge has held that these 3 prior or antecedent debts have not been shown to have been incurred by defendant 6 for purposes of legal necessity or benefit and that there is no evidence that" the balance of Rs. 750/- was utilised for any of the purposes mentioned In Ex. 5 and that according to the rulings of this Court, beginning with - 15 Mys CCR 233 (FB) (E) and which has been followed in numerous later decisions viz., - 27 Mys CCR 155 (L); - 42 Mys HCR 163 (M)- --49 Mys HCR 530 (N); - 51 Mys HCR 112 (O); - Urugejjegowda v. Central Co-operative Bank Ltd., 15 Mys LJ 230 (P), the sale under Ex. 5 cannot bind the shares of the minor sons of defendant 6. These findings are not challenged before us. Defendant 3 has let in no evidence worth the name to show that the prior debts or the sum of Rs. 750/- received by defendant 6 were incurred or utilised for any purposes of necessity or benefit.

24. As against this, it is contended by Mr. V. Krishnamurthi learned Counsel for the appellants, that the law as laid down in those cases with regard to the liability of Hindu sons for the debts of their father and during the latters life time has to be reconsidered by this Court in view of a decision of the Supreme Court in - AIR 1952 SC 170 (A). He urges that under Art. 141, Constitution of India the law declared by the Supreme Court is binding on all the Courts within the territory of India and must now be followed in preference to any other view which might have been taken by this Court. There is no doubt about the soundness of this contention, and we have had occasion to make a reference to it in - Narayana Rao v. Karibasappa, AIR 1951 Mys 126 (P1), while dealing with a case of the application of s. 53a, t. p. act relating to the doctrine of part performance. In - AIR 1952 SC 170 (A) their Lordships Sayid Fazl Ali, Mukherjea and Vivian Bose, JJ. held that a son is liable even after partition for the pre-partition debts of his father, which are not immoral or illegal and for the payment of which no arrangement was made at the time of the partition. The judgment of the Court was delivered by Mukherjea, J. and in the course of his judgment at p. 174 of the reports he observes as follows : "We now come to the other two points raised by Mr. Kunzru and as they are inter-connected they can conveniently be taken up together. These points involve consideration of the somewhat vexed question relating to the liability of a son under the Hindu Law other than that of the Dayabhag School to pay the debts of his father, provided they are not tainted with immorality. In the opinion of the Hindu smriti writers, debt is not merely a legal obligation, but non-payment of debt is a sin, the consequences of which follow the debtor even after his death. A text, which is attributed to Brihaspathi, lays down : He who having received a sum lent or the like does not repay it to the owner, will be born hereafter in the creditors house a slave, a servant, a woman or a quadruped. There are other texts which say that a person in debt goes to hell. Hindu Law-givers therefore imposed a pious duty on the descendants of a man including his son, grandson and great grandson to pay off the debts of their ancestor and relieve him of the afterdeath torments consequent on non-payment. In the original texts a difference has been made in regard to the obligation resting upon sons, grandsons and great grandsons in this respect. The son is bound to discharge the ancestral debt as if it was his own, together with interest and irrespective of any assets that he might have received. The liability of the grandson is much the same except that he has not to pay any interest; but in regard to the great grandson the liability arises only if he received assets from his ancestor. It is now settled by judicial decisions that there is no difference as between son, grandson and great grandson so far as the obligation to pay the debt of the ancestor is concerned; but none of them has any personal liability in the matter irrespective of receiving any assets. The position, therefore, is that the son is not personally liable for the debt of his father even if the debt was not incurred for an immoral purpose and the obligation is limited to the assets received by him in his share of the joint family property or to his interest in such property and it does not attach to his self-acquisitions. The duty being religious or moral, it ceases to exist if the debt is tainted with immorality or vice. According to the text writers, this obligation arises normally on the death of the father; but even during the fathers life-time the son is obliged to pay his fathers debts in certain exceptional circumstances, e.g., when the father is afflicted with disease or has become insane or too old or has been away from his country for a long time or has suffered civil death by becoming an anchorite. It can now be taken to be fairly well settled that the pious liability of the son to pay the debts of his father exists whether the father is alive or dead. Thus it is open to the father daring his lifetime, to effect a transfer of any joint family property including the interests of his son in the same to pay off an antecedent debt not incurred for family necessity or benefit, provided it is not tainted with immorality. It is equally open to the creditor to obtain a decree against the father and in execution of the same put up to sale not merely the fathers but also the sons interest in the joint estate. The creditor can make the sons parties to such suit and obtain an adjudication from the Court that debt was a proper debt payable by the sons. But even if the sons are not made parties, they cannot resist the sale unless they succeed in establishing that the debts were contracted for immoral purposes. These propositions can be said to be well recognized and reasonably beyond the region of controversy." In support of his observations, he has referred to Colebrookes Digest I, 228, - Masit Ullah v. Damudor Prasad, AIR 1926 PC 105 (Q), Maynes Hindu Law, 11th Edition, p. 408, where it is stated "The law is now well established that under the Hindu Law, the pious obligation of a son to pay his fathers debts exists whether the father is alive or dead," AIR 1924 PC 50 (C); - Girdharee Lall v. Kantoo Lall, 1 Ind App 321 at p. 333 (PC) (R) and - Suraj Bunsi Koer v. Sheo Persad Singh, 6 Ind App 88 (PC) (S). See also Mullas Hindu Law (10th Edn.), p. 348, para. 290 (4), where he refers to - AIR 1924 PC 50 (C) and other cases and says "The liability of the sons to pay the fathers debts exists whether the father is alive or dead" and his note at p. 349.

25. The question of the sons liability for the debts of their father came up for consideration again before the Supreme Court in - AIR 1953 SG 437 (F) and it was held by the Supreme Court that the question whether the sons of a judgment-debtor who was a junior member of a coparcenary are liable in law to discharge the decretal debt due by their father could be answered only with reference to the doctrine of Mitakshara Law which imposes a duty upon the descendants of a person to pay the debts of their ancestor provided they are not tainted with immorality. Mukherjea, J., with whom the other two Judges agreed, observes at p. 489 of the report : "This doctrine, as is well known, has its origin in the conception of Smriti writers who regard non-payment of debt as a positive sin, the evil consequences of which follow the undischarged debtor even in the after-world. It is for the purpose of rescuing the father from his torments in the next world that an obligation is imposed upon the sons to pay their fathers debts. The doctrine as formulated in the original texts, has indeed been modified in some respects by judicial decisions. Under the law, as it now stands, the obligation of the sons is not a personal obligation existing irrespective of the receipt of any assets; it is a liability confined to the assets received by him in his share of the joint family property or to his interest in the same. The obligation exists whether the sons are major or minor or whether the father is alive or dead. If the debts have been contracted by the father and they are not immoral or irreligious the interest of the sans in the coparcenary property can always be made liable for such debts."

26. In - 15 Mys CCR 233 (FB) (E) which has laid down the law now prevailing in Mysore that a Hindu son is not liable for the debts of his father so long as the father is alive unless it is shown that they were incurred for purposes of legal necessity or benefit to the family. Setlur, J., who wrote the leading judgment considered the original texts, including Vijnaneswaras commentary on Yajnavalkya and referred to the rule in Mitakshara which is to the effect that when a father without discharging a debt owed by him dies or has gone to a distant country or is stricken by an incurable disease or the like, then the debt incurred by him when notified shall, by reason of their being his son and grandson, be paid by the son and grandson, even when he has left no paternal estate. He referred to the case reported in - Periasami Mudaliar v. Seetharama chettiar, 27 Mad 243 (FB) (T) and to - 1 Ind App 321 (PC) (R) and the uniformity of the course of decisions of the High Courts in India thereafter. He however preferred to follow the views expressed in - 16 Mys LR 116 (FB) (D) and of Muthuswamy Iyer, J. expressed in - Ponnappa Pillai v. Pappuvayyangar, 4 Mad 1 (15, 40) (FB) (U) though that view was opposed to the decision of the Privy Council in - 1 Ind App 321 (R). The necessity to refer the matter to the Full Bench then arose as even in Mysore it had been held or assumed in some earlier cases, viz., - 4 Mys CCR 26 (V); - 5 Mys CCR 69 (W)1; - 7 Mys CCR 15 (X) and - 10 Mys CCR 71 (Y) that the sons were bound by an alienation which was effected to discharge an earlier debt irrespective of whether the earlier debt was incurred for family benefit or necessity. The law laid down in - 15 Mys CCR 233 (FB) (E) has been followed in Mysore in later cases and it is unnecessary to refer to all of them. I might, however, refer to a case decided more recently and reported in - 15 Mys LJ 230 (P). In that case the plaintiff, which was a co-operative bank, advanced certain sums of money to a defendant, the father of a joint Hindu family. A portion of the money advanced was used to pay off previous mortgages. Reilly, C.J. and Sreenivasa Rao, J. hold that the plaintiff though one stage removed from the debts under the original mortagages cannot be let off more lightly in the matter of showing necessity or benefit for the money advanced so as to make payments under the deed binding upon the junior members of the defendants family and that the plaintiff must show that those previous debts so paid off were binding on the junior members of the defendants family before he can make his own advances binding upon those junior members. The principle laid down in this decision has been applied quite strictly in later cases by some of the Judges who have called upon a creditor to prove that the earlier debts which might have been incurred long before the alienation were also for legal necessity or benefit. They have also often expressed in those cases that the recitals in the document regarding the purposes for which the loans were borrowed may not be of much use and cannot be strongly relied upon by the creditor though of course in other cases it has been laid down that such recitals, particularly in old documents, must be given due weight. The strict application of this rule has, it must be admitted, led to considerable collusive litigation by junior members either during their minority or just after their attaining majority and often times after quite a long time had elapsed after the alienations to bring suits to question them.

27. This hardship to the alienees was recognized and led to the view which has been taken in some cases, e.g., - 21 Mys CCR 145 (Z) and - Channabasavegowda v. Rangegowda, AIR 1951 Mys 33 (FB) (21) that if all the adult male members of a family join in making an alienation it may be presumed that it was for family benefit or necessity thereby attempting to somewhat lighten the burden on the alienee to prove that each one of the previous debts or the purposes mentioned in the documents were true. The father in such cases is usually ex parte and not examined as a witness for the plaintiffs and it has been found that the creditor or the alienee finds it extremely difficult to prove such legal necessity or benefit though the alienations have gone to discharge old, real, and bona fide debts which there was little reason to suspect were incurred by the father imprudently or otherwise than in the usual course of family management. The question now arises whether we should still consider ourselves bound by the decisions of this Court or are bound to apply the law which the Supreme Court have now declared as the law of the country. I am of opinion that the interpretation of the Hindu Law texts and law as laid down by the Supreme Court (I have extracted above) is fully binding on us according to the Constitution and must be followed in Mysore also.

28. There are also other circumstances which render such a course both necessary and desirable. The area now known as the Civil Station in Bangalore District and which was formerly known as C. and M. Station had been acceded to British India under a treaty by the Maharaja of Mysore. The Hindu Law which was being applied in that area was the law as laid down by the Privy Council and which was current in Madras which of course is the same as now stated by Mukherjea, J. After the British left, that area is now ceded to Mysore. The Mysore High Court has now jurisdiction over Coorg under the Mysore High Court Amendment Act and in Coorg which was a Chief Commissioners province before the Constitution, the law, as laid down by the Privy Council, was of course the prevailing law. Recently a large part of the Bellary District, which was a part of the Madras State has been ceded to Mysore and the law prevailing there also was the law laid down by the Privy Council. It would be very difficult and anomalous and lead to great confusion in mercantile transactions and in respect of titles to property if the interpretation of Mitakshara law relating to debts and alienations is to be applied differently in different parts of Mysore. It is necessary that as far as possible there should be uniform law in these vital matters in the whole of India. Debts may be incurred or alienations made of properties situate say in Madras and in Mysore, the consideration being the discharge either partially or wholly of an antecedent debt, and in a suit arising for recovery of monies charged oil such property or for declaration of rights in respect of such property it can easily be imagined what difficulties would arise if suits or other proceedings which may corns to be filed either in Madras or in Mysore, different interpretations of the same Hindu Law texts are to be applied.

29. Under Art, 261 (3) of the Constitution of India : "Final judgments or orders delivered or passed by civil Courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law." The rapid advancement of trade and commerce throughout the country requires a common rule in respect of such vital matters of every day interest. It may be argued that the rights of minor sons in a joint Hindu family might thereby be jeopardised; but if that is the law that is prevailing all over India and has been accepted from the date of 1 Ind App 321 (PC) (R) as proper and binding, it is difficult to see any reason why we should not also come into line with that law and why it should be thought or considered that only a Hindu father in Mysore cannot be trusted to be either prudent or capable of looking after his own interests and those of his sons during the course of the management of the family property. We felt that as the law as laid down in 15 Mys CCR 233 (FB) (E) had been in force for such a long time in Mysore, it was desirable that the question which has now arisen should be considered by a Full Bench and accordingly the matter has been heard by the Full Bench.

30. Another point which was raised before us for the respondents was that the debt due under Ex. 6 was a mortgage debt and not a simple debt and that it has been laid down in some cases of this court that a mortgage is an alienation and not a debt, and that the mortgagee must establish the legal necessity or benefit if the mortgage is to be upheld. Sitting as a single Judge I had occasion to consider this matter recently in S. A. No. 499 of 1951-52 (Mys) (Z2) then came to the conclusion that a debt must be held to include both simple and mortgage debts and have referred to a case reported in - Hiralal v. Puran Chand, AIR 1949 All 685 (FB) (Z3) where Misra, J. observes at p. 687 : "A debt secured by a mortgage, it seems almost axiomatic, is as much a debt of the father as an unsecured debt and considered in the light of the spiritual need which the doctrine of pious obligation was designed to meet, there would in principle, be scarcely any difference between the two transactions. The security would merely provide a means of recovery, and if the payment of a debt is obligatory on the debtor, and therefore on his sons, the payment of a mortgage debt is also morally and religiously obligatory." This view is also supported by - Arumugam Chetty v. Muthu Koundan, AIR 1919 Mad 75 (FB) (Z4); - Venkanna v. Sreenivasa, AIR 1919 Mad 1175 (Z5); - Mathura Misra v. Rajkumar Misra, AIR 1921 Pat 447 (FB) (Z6) : - Hari Prasad Singha v. Sourendra Mohan, AIR 1922 Pat 450 (Z7) and AIR 1924 P.O. 50 (C). The cases of this Court reported in - Nanjaiya v. Chowdegowda, 14 Mys LJ 510 (Z8); and - Bank of Mysore Ltd., Banglore City v. Mayakonda Veerappa, 18 Mys LJ 113 (Z9) and - Rudrappa Setty v. Rangojee Rao, 18 Mys LJ 133 (Z10), which have followed that decision are all cases where a Mortgagee sued and sought to obtain a mortgage decree against specific property mortgaged to him. But those cases do not lay down that a mortgage debt is not an antecedent debt which can support later alienations and have no bearing on the question now before us. In this view of the law it must be held that the alienation under Ex. 5 is binding on the shares of plaintiffs 4 and 5 in the joint family property to the extent of Rs. 1,750/- as it has gone to discharge the antecedent debts of the lather though he is still alive.

31. The next question that arises for consideration is what is the relief which should be granted to the plaintiffs. The sale was for Rs. 2,500/- and a major part of the consideration has been held to be for purposes binding on the minors. The property sold is a cocoanut garden. Defendant 3 claims to have improved the. property and though the learned Subordinate Judge has not accepted his evidence in this matter I think there might be some truth in that statement because defendant 6 was running into debts and could not have looked after the cocoanut garden efficiently and it is quite likely that he had allowed it to deteriorate for want of proper attention. The 1st plaintiff never appears to have claimed any interest in this property. It also appears from her conduct as if she had waived her rights to this item and allowed defendant 6 to deal with it as he pleased. From the evidence it is not also clear that defendant 6 was the sole surviving coparcener of the joint family when her husband died. The plaintiffs have nowhere suggested that the price of Rs. 2,500/- was not the proper market value at the time. In these circumstances I think the plaintiffs ought not to be given a share in item 2 and that defendant 3 should be directed to pay them a part of the purchase money which, it has been held, was not for purposes binding on minor plaintiffs 4 and 5. The counsel for defendant 3 has agreed before us that defendant 3 will pay Rs. 1,000/- instead of Rs. 750/- to plaintiffs 4 and 5 which may be taken to cover Rs. 750/- plus interest and costs of this litigation. Accordingly I direct that defendant 3 should pay this amount into Court within six months from this date. There will be a charge for this sum on item 2.

32. The parties will bear their own costs both here and in the Court below. The Court-fee payable to Government by the plaintiffs will be recoverable from them and will be a charge on the property which has been decreed in their favour. Order accordingly. AIR 1954 MYSORE 102 (Vol. 41, C.N. 43) "Nagappa v. T.C. Basappa" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND BALAKRISHNAIYA, J. ( Division Bench ) T. Nagappa, Petitioner v. T.C. Basappa and others, Respondents. Civil Petn. No. 29 of 1953, D/- 11 -1 -1954, to quash the proceedings of Election Tribunal, Shimoga, in Shimoga Election Petn. No. 1 of 1952-53. (A) Constitution of India, Art.329(b), Art.226 - ELECTION - WRITS - TRIBUNALS - Art.329(b) does not exclude petition under Art.226 - Writ can issue to quash proceedings of Election Tribunal. Representation of the People Act (43 of 1951), S.105. AIR 1953 Nag 357, Examined and dissented from. The phrase "notwithstanding anything in this Constitution" in Art. 329(b) does not exclude the applicability of the provisions of Art. 226 in any manner whatsoever. These words in Art. 329(b) make it quite clear that they can apply only to the limited purpose of calling in question the election to either House of Parliament or to the House of the State Legislature. It can have no application to or bearing on the proceedings after the completion of the elections and a perusal of the words used in S. 74, Representation of the People Act, makes it clear that elections are completed before the Election Tribunal is set up. (Para 6) Article 329(b) does not specifically or expressly refer to the proceedings of the Election Tribunal which comes into being only alter the completion of the elections. Prayer, for the issue of a writ for quashing the proceedings of the Election Tribunal and not for calling in question the election to the Legislature, which alone is dealt with under Art. 329(b) can be granted. The issue of a writ as prayed for may and will result in certain consequences just as an adjudication of a successful candidate in an election as an insolvent may and will produce the same or similar consequences. It does not however follow that because of the effect on the result of the elections, the petition for the issue of a writ or the adjudication of the successful candidate as an insolvent, can strictly be said to be petitions which call in question an election to a Legislature. Case law Ref. AIR 1S53 Nag 357, Examined and dissented from. (Para 6) It cannot be disputed that the provisions of the Constitution must prevail over the provisions of the Representation of the People Act. Consequently the words in S. 105 "every order of the Tribunal made under this Act shall be final and conclusive" do not oust the jurisdiction of the Courts to issue writs. (Para 10) (B) Constitution of India, Art.226 - WRITS - ELECTION COMMISSION - TRIBUNALS - Parties - Writ to quash proceedings of Election Tribunal - Election Commission is not a necessary party. AIR 1953 SC 210, Distinguished. AIR 1953 Mys 59, Foll. (Para 11) (C) Constitution of India, Art.226 - WRITS - ELECTION - TRIBUNALS - Parties - Quashing proceedings of Election Tribunal. Petition under Art. 226 to quash proceedings of Election Tribunal - Election Tribunal made party - The fact that Election Tribunal has become functus officio, held did not prevent issue of writ, since the record of the proceedings of the Election Tribunal were lodged before the District Judge of the Division in which the election had taken place and were at the time before the High Court. (Para 11) Moreover, there is no specific provision in the Representation of the People Act to support the view that the Election Tribunal becomes functus officio after the pronouncement of the order. (Para 11) (D) Constitution of India, Art.226 - WRITS - Certiorari, when can issue. Apart from questions of jurisdiction, a writ of certiorari can also be issued where a Tribunal has committed mistakes apparent on the face of the record or committed flagrant violation of law. AIR 1952 SC 192, Relied on. Indian and English case law Ref. (Para 12) (E) Representation of the People Act (43 of 1951), S.83 - TRIBUNALS - AMENDMENT - PLEADINGS - WRITS - Election Tribunals power to allow amendment of election petition sent to it by Election Commission. Civil P.C. (5 of 1908), O.6, R.17. Constitution of India, Art.226. AIR 1953 Bom 293, Commented on and not followed. A perusal of the provisions of the Representation of the People Act shows that several provisions of Civil P.C. have been specifically and expressly embodied in the same, cf. Ss. 83(1), 90, 92. The legislature has thus by implication made it clear that all provisions of Civil P.C. do not apply to the proceedings before the Election Tribunal. The failure to so embody Order 6 and the rules thereunder and in particular R. 17 seems to make it clear that the Legislature did not intend the Election Tribunal to make use of the said provision to amend the petition sent to it for disposal by the Election Commission. The amendment by the Election Tribunal of the election petition sent to it by the Election Commission must therefore be held to be an amendment made without jurisdiction. AIR 1953 Bom 293. Commented and not followed. AIR 1954 Mad 336, Explained. (Para 13) When the amendment related to prayer portion, in that the prayer portion in the original petition was substituted as per the amendment, the original petition sent by the Election Commission to the Election Tribunal can no longer be said to be before the Election Tribunal. The mere fact that the new prayer included the old prayer does not make the amended petition, which the Election Tribunal heard and disposed of, the original petition sent to it by the Election Commission. (Para 14) Anno : Civil P.C., O. 6 R. 17 N. 1. (F) Representation of the People Act (43 of 1951), Rules under, R.119 - ELECTION - GENERAL CLAUSES - Presentation of election petition not later than 14 days from the date of publication of notice - Computation of time - Applicability of S.9, S.10, General Clauses Act - General Clauses Act (10 of 1897), S.9, S.10. The relevant words in R. 119 of the Representation of the People Act relating to the time when an election petition has to be presented, are "not later than 14 days", while the relevant words in S. 9, General Clauses Act are "from" and "to" and in S. 10 the words are "within the prescribed time." The words in R. 119, Representation of the People Act being entirely different from the words found in Ss. 9 and 10, it follows that the provisions of Ss. 9 and 10 of the General Clauses Act can have no application to the computation of time for the presentation of an election petition. (Para 15) Anno : Gen. Clauses Act, S. 9 N. 1; S. 10 N. 3. (G) Representation of the People Act (43 of 1951) - ELECTION - TRIBUNALS - Rules under, R.119 - Election Tribunals power to extend limitation. Election Tribunal has no power to extend limitation for filing election petition - Amendment of petition long after limitation is without jurisdiction. (Para 15) Cases Referred : Courtwise Chronological Paras (A) (V 40) AIR 1953 MadhB 197 6 (B) (V 40) AIR 1953 VindPra 51 6 (C) (V 39) AIR 1952 Bom 277 : ILR (1952) Bom 785 6 (D) (V 40) AIR 1953 Pepsu 133 6 (E) (V 41) AIR 1954 Sau 1 : 6 Sau LR 258 6 (F) (V 40) AIR 1953 All 633 : 1953 All LJ 323 6 (G) (V 40) AIR 1953 Nag 357 : ILR (1953) Nag 772 6 (H) (V 39) AIR 1952 SC 64 : 1952 SCJ 100 (SC) 6

(I) (V 40) AIR 1953 SC 210 : 1953 SCR 1144 (SC) 6, 11 (J) (V 40) AIR 1953 Mys 59 : ILR (1953) Mys 287 11 (K) (V 37) AIR 1950 SC 222 : 1950 SCR 621 (SC) 12

(L) (V 38) AIR 1951 SC 115 : 1951 SCR 145 (SC) 12 (M) (V 39) AIR 1952 SC 192 : 1952 SCR 583 (SC) 12 (N) (V 40) AIR 1953 SC 58 : 1953 SCR 302 (SC) 12 (O) (V 40) AIR 1953 Mys 8 : ILR (1953) Mys 58 12 (P) (1910) 1910-2 KB 165 : 79 LJ KB 595 12 (Q) (1951) 1951-1 KB 711 12 (R) (1952) 1952-1 All ER 122 : 1252-1 KB 338 12 (S) (V 40) AIR 1953 Bom 293 : ILR (1953) Bom 865 13 (T) (V 41) AIR 1954 Mad 336 : 66 Mad LW 908 13 A.R. Somanatha Iyer and S. Gundappa, for Petitioner; S.K. Venkatarangiengar, for Respondent No. 1. Judgement MEDAPA, C. J. :- It will be necessary for a proper consideration of the arguments advanced in the case to set out in some detail the facts and circumstances which have led up to, and relevant for the disposal of this petition. The petitioner and the respondents were duly nominated candidates for election to the Mysore State Legislative Assembly from the Tarikere Constituency at the general elections held in this State on 4-1-1952. Respondents 5 to 9 withdrew their candidature within the prescribed time and as a result only the petitioner and respondents 1 to 4 contested the elections. In the elections the petitioner secured 8093 votes as against 8059, 6239, 1644 and 1152 votes obtained by respondents 1 to 4 respectively. The Returning Officer thereupon declared the petitioner as the successful candidate in the election and the said declaration was published in the Mysore Gazette on 11-2-1952 as per the provisions of S. 67, Representation of the People Act, 1951. The petitioner lodged his election expenses with the necessary declaration with the Returning Officer and the same was published in the Mysore Gazette on 31-3-1952. The petitioner was sworn in as a Member of the Legislative Assembly and thereafter began to discharge his duties as such member.

2. The 1st respondent preferred an election petition to the Election Commission for obtaining a declaration that the election of the petitioner was void and that he himself had been duly elected. It will be pertinent at this stage to mention that in this petition the 1st respondent did not seek for a declaration that the election was wholly void. The said petition was received by the Election Commission on 14-4-1952 and came up for hearing before the Election Tribunal on 25-10-1952. The 1st Respondent then filed an application under O. 6 R. 17 C. P.C. before the Election Tribunal for the amendment of the election petition presented by him to the Election Commission in the following manner : "1. That in the body of his petition, averments have been made (in particular, the averments made in paras 5 and 6 of the petition) to the effect that there has been a violation of the fundamental requirements of the Election Law such that the election itself has been vitiated. "2. In the prayer para of the petition the petitioner has prayed that the election of the 1st respondent be declared void and as a further relief the petitioner be declared to tie duly elected candidate at the election. "3. In view of the averments made in paras 5 and 6 alternative prayer that the election itself is rendered void is necessary and by inadvertence it is omitted in the prayer para of the petition. In order to clarify matters, the tribunal may be pleased to permit the petitioner to amend the prayer portion in the following manner the same being substituted for the present prayer : "He prays that the election itself be declared void and further prays that if the election itself cannot be declared void and set aside for the violation of the fundamental requirements of the election law, the election of the first respondent be declared void and set aside, the petitioner being declared only elected candidate at the said election". The application for amendment was opposed ay the petitioner on the ground that the Tribunal had no jurisdiction to entertain an application such as the one made before it but the Tribunal overruled the objections and directed the amendment to be made.

3. The Tribunal, on the averments in the pleadings, framed as many as 27 issues and, after recording the evidence adduced and hearing the arguments advanced for the parties, pronounced their order on 15-1-1953. The Tribunal in their order unanimously found Issues 2, 3, 4, 7, 8, 9, 10 and 13 in favour of the petitioner but on Issues 1, 5, 6, 11, 12 and 14 they were divided, the majority finding these issues against the petitioner. It will be useful and even necessary to note down the said issues. They are : (1) Has there been infringement of the rules relating to the time of commencement of poll by reason of the fact that polling at Booth No. 1 for Ajjampur fixed at Ajjampur to take place at 8 A. M. did not really commence until about half an hour later as alleged in para 4 of the petition ? (5) Did the 1st respondent (Petitioner before us) hire and procure a motor bus which was a service bus running between Tarikere and Hiriyur, belonging to one Ahmed Jan, as alleged in para 1 of the list of particulars and thereby commit the corrupt practice referred to in it ? (6) Did the 1st respondent (petitioner before us) take the assistance of a number of Government servants to further the prospects of his election as alleged in para 2 of the list of particulars ? (11) Is the return of election expenses lodged by the 1st respondent (petitioner before as) false in material particulars and has the 1st respondent (petitioner) omitted to include in the return of election expenses, expenses incurred by him in connection with the election which would easily exceed the sanctioned limit of Rs. 5,000/- as per particulars stated in para 7 of the list of particulars ? (12) Has the election of the 1st respondent (petitioner) been procured and induced by the said corrupt practices with the result that the election has been materially affected ? (14) Would the petitioner (1st respondent) have obtained a majority of votes had it not been for the aforesaid corrupt and illegal practices on the part of the first respondent ? The majority of the members of the Tribunal consisting of Sri. B. R. Ramalingaiah and Sri Mir Iqbal Hussain, on the strength of their findings on these issues, declared the election of the petitioner void and the 1st respondent duly elected while the learned District Judge Sri C. V. Channappa, who was the other Member of the Tribunal, came to a different conclusion and dismissed the petition of the 1st respondent. The present petition has been filed under Art. 226 of the Constitution for the issue of a writ of certiorari or such other writ or direction or order as this Court may deem fit in the circumstances of the case to quash the proceedings of the Election Tribunal. The petitioner in support of his prayer has urged the following grounds; (1) The Tribunal had no jurisdiction or at least exceeded its jurisdiction in permitting the 1st respondent to amend his election petition after it was forwarded to the Election Tribunal by the Election Commission. (2) The petition, both when presented to the Election Commission and when the 1st respondent applied for its amendment, was barred by the law of Limitation. The Election Tribunal therefore clearly exceeded its jurisdiction. (3) The Election Tribunal exceeded its jurisdiction in setting aside the election on the ground that the polling commenced in Municipal Booth No. 776/16, 25 minutes after the time prescribed therefor. (4) The Tribunal exceeded its jurisdiction and acted perversely in setting aside the election of the petitioner without a clear and definite finding that the 1st respondent had in fact received the majority of the valid votes cast in the election or that but for the votes obtained by the returned candidate by corrupt and illegal practices the 1st respondent would have obtained a majority of the valid votes. (5) The findings of the Tribunal that the petitioner committed corrupt practices had been without jurisdiction and even otherwise on mere speculations and conjectures relating to matters which were not put into issue and therefore perverse. Its findings on these matters therefore amount to errors of jurisdiction and errors apparent on the face of the record. (6) The finding of the Tribunal that the petitioner lodged a false return of election expenses before the Returning Officer is also without jurisdiction and based on averments which were not put into issue and therefore perverse.

4. The 1st respondent, who was the only respondent that contested this petition, filed no counter-affidavit traversing the contentions of the petitioner.

5. The learned Counsel for respondent 1 relied upon the provisions of Art. 329 (b) and contended that this petition for the issue of a writ under Art. 226 of the Constitution is not maintainable. Art. 329 (b) reads - "Notwithstanding anything in this Constitution .. . . . . (b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature".

6. The contention is that the phrase "notwithstanding anything in this Constitution" excludes the applicability of the provisions of Art. 226 in any manner whatsoever it" they in any way call in question any election and that therefore this petition should be dismissed in limine. I am unable to accept this contention for the words seen in Art. 329 (b) make it quite clear that they can apply only to the limited purpose of calling in question the election to either House of Parliament or to the House of the State Legislature. It can have no application to or bearing on the proceedings after the completion of the elections and a perusal of the words used in S. 74, Representation of the People Act, viz., - ...... there shall be notified by the appropriate authority in the Official Gazette, as soon as may be after the date or the last of the dates fixed for the completion of the said elections the names of the members elected for the various Assembly constituencies at the said elections .............." make it clear that elections are completed before the Election Tribunal is set up. Art. 329 (b) does not specifically or expressly refer to the proceedings of the Election Tribunal which, as already pointed out came into being only after the completion of the elections. The powers conferred on courts by Art. 226 are very extensive; there is no proviso to limit its jurisdiction such as the proviso to Art. 227 which excludes the superintendence of the High Courts over tribunals relating to Armed Forces. The prayer of the petitioner is for the issue of a writ for quashing the proceedings of the Election Tribunal and not for calling in question the election to the Legislature, the latter of which alone is dealt with under Art. 329 (b). The issue of a writ as prayed for by the petitioner may and will result in certain consequences just as an adjudication of a successful candidate in an election as an insolvent may and will produce the same or similar consequences. It does not however follow that because of the effect on the result of the elections, the petition for the issue of a writ or the adjudication of the successful candidate as an insolvent, can strictly be said to be petitions which call in question an election to a Legislature. The view that the provisions of Art. 329 should or should not be deemed to be a bar for the issue of a writ has been the subject matter of consideration in several reported decisions viz., - Jamnaprasad Mukhariya v. Lachhiram Ratan-Mal, AIR 1953 Madh. B. 197 (A), - Jagdish Chandra v. Prakash Narain, AIR 1953 Vind. P. 51 (B); - Shankar Nanasaheb v. Returning Officer, Kolaba District, AIR 1952 Bom 277 (C); - Hukam Singh v. Sardul Singh, AIH 1953 Pepsu 133 (D); and - Hamirkha Alarkha Hasan v. Returning Officer, Jamnagar, AIR 1954 Sau 1 (E). (Vide also - Sheo Kumar v. V.G. Oak, AIR 1953 All 633 (P). These decisions are clearly opposed to the view put forward on behalf of the respondent. The learned counsel for the respondent laid special stress on a decision reported in - Ramkrishna v. Daoosing, AIR 1953 Nag 357 (G), in which it is laid down that the High Court has no jurisdiction to issue writs in a proceeding, like the one before us because of the provisions-of Art. 329 Cl. (b). This decision fully supports the view advanced by the learned counsel for the 1st respondent and as such merits and demands a detailed consideration. Reference has been made in paragraph 12 of the judgment to cases which lay down the proposition that the process of election begins with the filing of nomination papers and ends with the declaration of the result. Among the many cases referred to in that paragraph, the judgment of the Supreme Court reported in - H. P. Ponnuswami v. The Returning Officer, Namakkal, AIR 1952 S. C. 64 (H), is one. The same decision has been referred to again in paragraph 14 of the judgment to support the view that the word "election" cannot be understood in a restricted sense as was done by Mudholkar, J., in an unreported decision of the same Court. This judgment of Fazl Ali, J., which is also reported in - AIR 1952 S. C. 64 (H), seems to me to make it clear that ah election is completed before it is attacked by means of an election petition. At page 68 the learned Judge observes as follows : "The question now arises whether the law of election in this country contemplates that there should be two attacks on matters connected with election proceedings, one, while they are going on by involving the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another, after they have been completed by means of an election petition". Again at page 69 the learned Judge observes as follows : "That being so, I think it will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being by the election petition to be presented after the election is over and there is no remedy provided at any intermediate stage." The view of the Supreme Court therefore is that an election becomes complete before it is assailed. This pronouncement of the Supreme Court which must be regarded as authoritative, precludes, in my opinion, a consideration of the question whether an election can or cannot be said to be over after the declaration of the result under S. 74, Representation of the People Act. Again in paragraph 20 of the judgment the view has been expressed that under S. 105, Representation of the People Act an Election Commission must be deemed to adopt the order of the Election Tribunal and in para 22 of the judgment which id the only part of it actually dealing with the meaning of the word "Election", the learned Judges expressed the view that an election becomes complete only when the Election Tribunal officially declared the result of the election and that an election continues until such declaration is made. The learned Judges in paras 23 and 24 of the judgment point out that the object underlying Art. 329 (b) of the Constitution was to forbid a rival procedure for the decision of an election dispute and in paragraph 25 of the judgment it is stated that an Election Tribunal is nothing more than an amanuensis of the Election Commission and therefore its order when adopted by the Election Commission becomes conclusive and incapable of being quashed by a writ of the High Court as pointed out by the Supreme -Court in - Election Commission, India v. Saka Venkata Rao, AIR 1953 SC 210 (I).

7. It is thus clear that while the High Court has addressed itself to consider the meaning 01 the word "election" which had been clearly Interpreted by Fazl Ali, J., the two principal reasons which influenced their decision that an election continues until the Election Tribunal announces its order under S. 98, Representation of the People Act were : (a) That in the view of the High Court an Election Commission adopts the order of the Election Tribunal which is only an amanuensis of the Election Commission; and (b) that the Election Tribunal when it makes an order under S. 98 of the Representation of the People Act finally declares the result of an election. X find it difficult to accept or agree with either of the two reasons. In the first place the Election Commission under S. 86(1), Representation of the People Act only appoints the Election Tribunal and under S. 106 of the Election Commission only forwards copies of the orders of the Election Tribunal to the authorities specified in that section and also causes the publication of the order in the Gazette. Nowhere does the Act state that an Election Commission adopts the order of the Election Tribunal or that the Election Tribunal is only an amanuensis of the Election Commission. On the contrary, the scheme of Chapter 3 of the Act indicates that the order of the Election Tribunal continues to be only its order at every stage and does not become transformed into an order of the Election Commission. This seems to follow from a perusal of the following sections of the Representation of the People Act : (a) Under Sec. 86, the Election Commission appoints the Election Tribunal; (b) Under Sec. 88 the place of the trial is selected by the Election Commission, but the Tribunal has the discretion to sit at any other place in the State; (c) Section 90 prescribes the procedure to be adopted by the Tribunal; (d) Section 91 provides for the appearance of a party by a pleader; (e) Section 92 enumerates the powers of the Tribunal; (f) Sections 93. 94 and 95 lay down special rules of evidence; (g) Section 97 provides for a recriminatory case at the instance of a returned candidate; (h) Sections 98 and 99 mention the orders which a Tribunal could make at the conclusion of the trial;

(i) Section 102 prescribed the procedure to be adopted in case of equality of votes; (j) Section 103 provides for the communication of the orders of the Tribunal to Election Commission and for the transmission of the records of the case to the District Judge; (k) Section 104 provides that in the event of a difference of opinion among the members of the Tribunal the opinion of the majority should prevail;

(l) Section 105 declares every order of the Tribunal to be final and conclusive; and (m) Finally S. 107 provides that an order of the Tribunal shall not take effect until it is published in the Gazette of India under Section 106. It is therefore clear that the Election Tribunal is the exclusive authority appointed for the decision of the dispute and for making an order on the election petition. The provisions of Ss. 105 and 107 of the Act, which do not appear to have received adequate consideration, show that the order which is final and conclusive and the order which takes effect after the publication in the Gazette of India is the order of the Tribunal and not the order of the Election Commission.

8. The second reason advanced for holding that an election continues until the Tribunal makes its final order also seems to me unacceptable for the following reasons : (a) The attention of the Judges does not appear to have been drawn to the words "after the date or the last of the dates fixed for the completion of the said election" appearing in Sec. 74 of the Representation o the People Act. It has also not been pointed to them that the word "elected" is used in the past tense when providing for the notification in the official Gazette of the results of the election. (b) Likewise the importance of the words "After the elections held in pursuance of the "notifications" occurring in Sec. 71, 72, 73, 74 and 75 of the Act does not seem to have been pointed out to them. (c) Similarly attention of the Court does not seem to have been drawn to the fact that Part 5 of the Act deals with the conduct of the elections and Part 6 deals only with disputes regarding elections. (d) Attention does not appear to have been drawn to the importance of the phraseology of Art. 324 of the Constitution, which shows that an election is something different from a dispute or doubt arising out of or in connection with an election. (e) No attention seems to have been invited to the fact that an Election Tribunal does not conduct an election and that when it makes an order under Sec. 98 its order does not declare the result of an election, but only decides a dispute arising out of it. This becomes clear when one examines the result that follows when the entire election is declared void; in such an event a re-election has to be ordered and no one can suggest that when the Tribunal declares an election void under S. 100(1), Representation of the People Act it finally declares the result of an election.

9. It therefore appears to me that the decision, with great respect to the Judges who decided the same, runs counter to the observations in the judgment of Fazl Ali, J. and also to the provisions of the Representation of the People Act and the Constitution.

10. The learned counsel for respondent 1 next relied upon the provisions of S. 105 of the Representation of the People Act in support of Ms proposition that this petition is not maintainable. That section reads : "Every order of the Tribunal made under this Act shall be final and conclusive." The argument of the learned counsel is that because of the words in the section - "Every order of the Tribunal made under this Act shall be final and conclusive" it follows that the jurisdiction of the Courts to issue writs is ousted. I am unable to accept this view. It cannot be disputed that the provisions of the Constitution must prevail over the provisions of the Representation of the People Act. Further, it was admitted by the counsel for the parties that in a similar matter special leave to Appeal under the provisions of Art. 135 of the Constitution has been granted by the Supreme Court. The grant of special leave to appear under Art. 136 of the Constitution seems to negative the contention of the learned counsel for the respondent that the provisions or Art. 329(b) of the Constitution and S. 1013 of the Representation of the People Act bar the application for relief under Art. 226 of the Constitution.

11. The learned counsel for the respondent urged that the Election Commission is a necessary party to the petition and the failure to implead the Commission is fatal to the case of the petitioner. His argument is that no purpose would be served by the issue of a writ when the Election Commission is not before the Court and have had no chance of putting forth their pleas for the consideration of this court. He next argued on the strength of the case reported in AIR 1953 SC 210 (I) that even if the Election Commission had been made a party no writ could be issued to the Election Commission. He submitted that the Election Tribunal has become functus officio and as such no writ could be issued to the Tribunal. I am unable to accept any of these contentions. The decision referred to by the learned counsel Saka Venkataraos case (I), does not appear to me to be apposite for that was a case where a writ was sought against the Election Commission to prevent the Governor from performing the duties enjoined on him under Art. 192(2) of the Constitution which reads as follows : "192(2)- Before giving any decision on any question whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of art. 191, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion." The duty is enjoined on the Governor to obtain the opinion of the Election Commission and the Election Commission in furnishing its opinion to the Governor cannot be deemed to be doing any act or performing any duty or functioning within the jurisdiction of the Madras High Court. The facts in that case are entirely different and have no bearing or similarity to the facts of the case before us. The Election Commission in the case before us has to perform certain duties within the jurisdiction of this Court, such as for instance the publication of the order of the Election Tribunal in the Mysore Gazette. This point has besides been covered by a decision of this Court in - Bangalore Woollen, Cotton and Silk Mills Co. Ltd. v. Labour Appellate Tribunal of India, AIR 1953 Mys 59 (J). The contention that the Election Tribunal has become functus officio and that as such it cannot be made a party, even if accepted, does not in my opinion in any way affect the effectiveness of a writ that may be issued to quash the proceedings of the Election Tribunal. The record of the proceedings of the Election Tribunal are lodged before the District Judge of the Division in which the election has taken place and are at present before this Court. There does not appear to be any specific provision in the Representation of the People Act to support the view that the Election Tribunal becomes functus officio after the pronouncement of the order. Apart from these considerations, it is noticed that the Election Commission, who had been intimated about the notice of the petition, has not chosen to appear before the Court. The attitude of the Election Commission is - which apparently appears to be correct - that it has no interest either to oppose or support the petition.

12. It will be appropriate at this stage to consider the law bearing on the issue of the writ of certiorari. The learned counsel for respondent 1 submitted that a writ of certiorari is an exceptionally rare writ and should not be invoked lightly. He submitted that a writ of certiorari should not be issued unless there is a total want of jurisdiction in a Tribunal and that want of jurisdiction must be apparent on the face of the record. He argued that an Election Tribunal is specially created for disposal of all disputes relating to elections and that the High Court should not in a case like the one before us interfere by means of a writ and quash the proceedings of the Tribunal. He urged that the Election Tribunal was set up for the sole purpose of determining the dispute that had arisen in the election and that as such it cannot by any means be contended that the Election Tribunal had no jurisdiction to determine the disputes that had admittedly arisen between the parties. In support of this view he referred to the decisions of the Supreme Court as also of some other Courts prior to those decisions. It was, on the other hand, contended by the learned counsel for the petitioner that the writ of certiorari is by no means so rare and so exceptional, as contended by the learned counsel for the 1st respondent and this court could and should interfere, to set aside the proceedings of the Election Tribunal if the said Tribunal has had no jurisdiction to decide any question or exceeded its jurisdiction in deciding any question and also to relieve grave injustice consequent on an error of law or fact apparent on the face of the record. The law relating to the issue of writ of certiorari can be culled out from the four decisions of the Supreme Court referred to below and it seems to me unnecessary to traverse beyond the decisions of the Supreme Court and to refer to decisions of courts which are subordinate to the said court or to the decisions of the English courts. The decisions of the Supreme Court, which are brought to my notice relating to the law on the subject are - (1) - Province of Bombay v. Khushaldas S. Advani, AIR 1950 SC 222 (K); (2) - Rai Brij Raj Krishna v. S.K. Shaw and Bros., AIR 1951 SC 115 (L); (3) - G. Veerappa Pillai v. Raman and Raman Ltd., AIR 1952 SC 192 (M); and (4) - D.N. Banerji v. P.R. Mukherjee, AIR 1953 SC 58 (N). It was held in the first decision referred to above that absence of jurisdiction or excess of jurisdiction would justify the issue of a writ. This decision was followed in a decision of our court reported in - J.T. Gopalakrishnan v. H.S. Raja Iyengar, AIR 1953 Mys 8 (O). Justice Fazl Ali in the second case referred to the observation of Sir James Colville in paragraph 6 of his judgment, viz., "Accordingly, the authorities .... establish that an adjudication by a Judge having jurisdiction over the subject-matter is, if no defects appear on the face of it, to be taken as conclusive of the facts stated therein; and that the Court of Queens Bench will not on certiorari quash such an adjudication on the ground that any such fact, however essential, has been erroneously found," and pointed out that a defect in the impugned order would also justify the issue of a writ. The Supreme Court in the third case went a step further and held that the writ could be issued not only when the Tribunal had acted without jurisdiction or in excess of jurisdiction but also when its decision was wrong and contained errors apparent on the face of the record and also when it violated rules of natural justice. It was indicated in the fourth case that a flagrant violation of law would justify the issue of a writ. It therefore follows that, apart from questions of jurisdiction, a writ of certiorari can also be issued where a Tribunal has committed mistakes apparent on the face of the record or committed flagrant violation of law. This view is also in consonance with the principles enunciated in English Courts in the following cases, viz. (1) - Rex v. Board of Education, 1910-2 KB 165 at p. 178 (P); (2) - Rex v. Northumberland Compensation Appeal Tribunal Ex parte Shaw, 1951-1 KB 711 (Q); and (3) - R. v. Northumberland Compensation Appeal Tribunal Ex parte Shaw, 1952-1 All ER 122 (R).

13. The petitioners contentions in support of his prayer for the issue of a writ may now be considered. The first contention of the learned counsel for the petitioner is that the Tribunal had no jurisdiction to amend the petition sent to it by the Election Commission. His argument, 13 that the provisions of the Code of Civil Procedure as such and in toto are not made applicable to the proceedings before Election Tribunals and that the Election Tribunal acted without jurisdiction in invoking the provisions of O. 6, R. 17, to amend the petition sent to it by the Election Commission. A perusal of the provisions of the Representation of the People Act shows that several provisions of the Code of Civil Procedure have been specifically and expressly embodied in the same. Section 83(1) relates to the contents of the election petition and lays down that the signing and the verification of election petitions should be done in the manner prescribed in the Civil P.C. of 1908 for the verification of pleadings. Section 90 relates to the procedure to be followed by the Tribunal in the trial of the election petition. It lays down that the Election Tribunal should try the petition as nearly as may be in accordance with the procedure laid down in the Civil P.C. of 1803 and proceeds to mention the way in which witnesses are to be summoned, etc. Section 92 relates to the powers of the Tribunal and lays down a limitation to the powers vested in a court under the Civil Procedure Code of 1908 when trying a suit in respect of the following viz.- (a) discovery and inspection; (b) enforcing the attendance of witnesses, and requiring the deposit of their expenses; (c) compelling the production of documents; (d) examining witnesses on oath; (e) granting adjournments; (f) reception of evidence taken on affidavits; and (g) issuing commission for the examination, of witnesses and may summon and examine suomotu any person whose evidence appears to it to be material; and shall be deemed to be a civil court within the meaning of Ss. 480 and 482, Criminal P.C., 1398. The Legislature has thus by implication reads it clear that all provisions of the Civil P.C. do not apply to the proceedings before the Election Tribunal. This position will become even more clear if S. 109 which provides for the withdrawal of election petitions and Ss. 112 to 116 which deal with the abatement of the election petitions and the substitution of legal representatives of the parties are perused. The Civil P.C. has also provisions relating to abatement, withdrawal and substitution of legal representatives of the parties; but those provisions of the Civil P.C. as such have not been specifically referred to or embodied in the Representation of the People Act. This appears to be very significant. The Legislature has also made it clear what provisions of the Civil P.C. will apply and those provisions have, as already pointed out, been specifically embodied in the Representation of the People Act. The failure to so embody O. 6 and the rules thereunder and in particular R. 17 seems to make it clear that the Legislature did not intend the Election Tribunal to make use of the said provision to amend the petition sent to it for disposal by the Election Commission. This view receives corroboration from S. 83(3) which specifically gives powers to the Election Tribunal "to allow the particulars included in the said list amended or order such further or better particulars in regard to any matter referred to therein" required to be furnished by the petitioner under S. 83(2). The Legislature which thought it fit to specifically empower the Election Tribunal to amend the list required to be furnished by S. 83(2) would not, and could not be deemed to, have forgotten to specifically empower the Election Tribunal to amend the election petition itself, if actually it intended to, so empower the Election Tribunal. It would, if that was the intention, have referred to and embodied O. 8, R. 17, Civil P.C. in the Representation of the People Act. The amendment by the Election Tribunal of the election petition sent to it by the Election Commission must therefore be held to be an amendment made without jurisdiction. The learned counsel for the 1st respondent cited two cases in support of the contention that the Election Tribunal had the power to permit the amendment to the election petition. The first of them is reported in - Sitaram Hirachand v. Yograj Singh, AIR 1953 Bom 293(S). In this case the Tribunal permitted the verification of the election petition and also the addition of a party. The Bombay High Court was obviously not invited to consider the effects of S. 83(3) under which the only amendment permitted is the amendment of the particulars including the list attached to the election petition. The second case reported in - A. S. Subbaraj v. M. Muthiah, AIR 1954 Mad 338 (T) does not help the respondent because Venkatarama Iyer, J., who decided that case, clearly says that the matter was not free from difficulty and that he would not decide it. It must be mentioned that even in this case the amendment related only to the verification of the petition.

14. It was urged that it the application for amendment had been rejected and is considered as rejected, the decision of the Tribunal would be, and must on that account be deemed to be, good inasmuch as the amendment related only to the reliefs claimed and not to the substance of the petition. I am unable to accept this view because when the prayer portion in the original petition was substituted as per the amendment, the original petition sent by the Election Commission to the Election Tribunal can no longer be said to be before the Election Tribunal. The mere fact that the new prayer includes the old prayer does not make the amended petition, which the Election Tribunal heard and disposed of, the original petition sent to it by the Election Commission.

15. It was next urged that the Election Tribunal had no jurisdiction to enlarge the time prescribed for the presentation of the Election Petition. Rule 119 of the Representation, of the People Act prescribes the period within which an election petition should be presented, viz. : "not later than 14 days from the date of publication of the notice in the official Gazette under rule 113 that the return of election expenses of such candidate and the declaration made in respect thereof have been lodged with the Returning Officer." It is not disputed that the return of election expenses were published in the Mysore Gazette on 31-3-1952 and that the Election Petition reached the Election Commission on 14-4-1952, that is to say, after the expiry of the time prescribed for the purpose. This petition was received by the Election Tribunal on 16-7-1952 and the amendment was made on 25-10-1952. There could therefore be no doubt that the amendment of this petition was made long after the time prescribed for the filing of the election petition. It was contended for the respondent that the presentation of the petition to the Election Commission was not timebarred and even if it was timebarred the delay must be deemed to have been condoned by the Election Commission when the petition was despatched to the Election Tribunal by the Election Commission. The records do not show any order of the Election Commission extending the period of limitation and condoning the delay in the presentation of the petition. The argument of the learned counsel for the respondent that the forwarding of the petition by itself amounts to condonation of the delay is at best only an inference which is open to very serious doubt and therefore cannot be accepted. It was argued that the words in S. 9, which relate to the commencement and termination of time, and in S. 10, which relate to the computation of time, of the General Clauses Act make it clear that the presentation of the petition was within time. The relevant words in the rules of the Representation of the People Act relating to the time when an election petition has to be presented have already been extracted above, viz. - "not later than 14 days", while the relevant f words in S. 9 of the General Clauses Act are - "from" and "to" and in S. 10 the words are "within the prescribed time". The words in R. 119 of the Representation of the People Act being entirely different from the words found in Ss. 9 and 10, it follows that the provisions of Ss. 9 and 10 of the General Clauses Act can have no application to the computation of time for the presentation of an election petition. This apart, the fact remains that the amendment of the petition was admittedly long after the period of limitation was over and is therefore clearly out of time. The Election Tribunal has not been shown to have the power to extend the period of limitation and must therefore be held to have acted without jurisdiction when, by amending the petition, it enlarged the period prescribed for the presentation of the Election Petition.

16. The learned counsel for the petitioner submitted that the Election Tribunal acted in excess of its jurisdiction in dealing with the allegations of corrupt practice said to have been indulged in by the petitioner. The three corrupt practices actually found to have been committed by the returned candidate are : (a) that the petitioner hired and procured a motor bus belonging to one Ahmed Jan as alleged in para 1 of the list of particulars : (b) that the petitioner took the assistance of a Patel to further the prospects of his election as alleged in part 2 of the annexure; and (c) that the return of election expenses lodged by the petitioner omitted to include many items of expenditure incurred by him.

17. In regard to corrupt practice (a), the actual allegation made by the 1st respondent is in Para 3(a) of his election petition and in part 1 of the annexure. The allegation is that the petitioner hired and procured a motor bus belonging to one Ahmed Jan for transporting voters to the booths. The allegation made in para 1 of the annexure is that the petitioner hired a bus belonging to one Ahmed Jan for conveying voters from Gowrapur to Sollapur. The issue framed was whether the 1st respondent hired and procured a bus belonging to Ahmed Jan. In dealing with these matters the Election Tribunal said on page 38 in para. 23 (g) as follows : "There is no direct evidence on the side of the petitioner to prove that the first respondent hired the said bus for the said purpose". Having said that, the Tribunal in clause (h) of that para said as follows at page 40. "For all these reasons we are led to the conviction that the said Ahmed Jan was acting oh the election day as the first respondents agent and hence the first respondent must be deemed to have procured the bus for the purpose through his agent, the said Ahmed Jan and hence he is liable for this corrupt practice."

18. In clause (i) of that para at page 40 the Tribunal said as follows : "Even if the said Ahmed Jan was not an agent ........ the 1st respondent has connived at these acts of the said Ahmed Jan."

19. On page 41 in clause (j) of that para the Tribunal said that sixty passengers were conveyed in the bus of Ahmed Jan and that "it is reasonable to presume that all these persons must have voted in favour of the first respondent in whom as shown above the said Ahmed Jan was virtually his canvassing agent was interested." In that clause of the order the Tribunal concludes as follows, at page 42 : "If the said Ahmed Jan had not conveyed them in his bus they would not have voted at all." and again on the same page (page 42)- "In the result on the 5th issue we hold that the 1st respondent did procure the said H. I. H. service bus through Ahmad Jan, his agent, for conveying his voters to and from the polling station at Sollapur as per para 1 of the list of particulars and thereby committed the major corrupt practice referred to in Sub-Section 6 of Section 125."

20. The actual corrupt practice alleged by the 1st respondent was the hiring or procuring of the bus by the candidate himself. The Tribunal held that the hiring was not established. It then went into the question of a connivance on the part of the petitioner and ultimately made a finding that the bus was procured through Ahmed Jan, his agent. It is undisputed that the petitioner had declared himself his agent. No one alleged that Ahmed Jan was the petitioners agent and no question of connivance was pleaded.

21. The next corrupt practice relates to issue (6) and to the assistance alleged to have been taken by the petitioner from a Patel for furthering the prospects of his election. This matter is discussed by the Tribunal in para. 24 of its order. The 1st respondent alleged that the petitioner took the assistance of two Government servants. The Tribunal found in clause (b) para 24 of its order that there is no evidence that the service of the officer of the Bhadravathi Iron and Steel Works was taken by the petitioner. But in clause (c) of para 24 it held that he did take assistance of the Patel for furthering the prospects of his election. The allegations relating to this matter are contained in para 8(b) of the Election Petition and in para 2 of the annexure. Para 8(b) states that the petitioner took the assistance of Patel Parameswarappa to further the prospects of his election, the particulars of which were stated to have been set out in para 2 of the Annexure.

22. It will be seen from the Annexure that all that has been said about Parameswarappa is that- (a) he accompanied the petitioner and actively canvassed for votes in several villages; (b) that he openly canvassed at one polling centre on the polling day; (c) that he went and sat in the car together with the 1st respondent in a procession held after the election; and (d) that he gave a dinner to the petitioner. Allegations (c) and (d) relate to matters which took place after the election, and allegations (a) and (b), even if believed, only establish that Parameswarappa actively canvassed for the petitioner. There is no allegation in para 2 of the Annexure that the petitioner took any assistance from Parameswarappa. The 6th Issue therefore relates to a matter which is not alleged in the annexure.

23. In paragraph 24 (e) (ii), page 44, the Tribunal states as follows : "We shall first refer to the evidence .... P. W. 30 has not even been cross-examined." This shows that Parameswarappa was a member of the K. M. P. Party and did some canvassing for it. This does not amount to the petitioner obtaining his assistance. In para 24 (c) (iii) the Tribunal refers to the evidence of P. W. 54 to the effect that after doing election propaganda on behalf of the petitioner Parameswarappa was moving about in the petitioners car and distributing hand bills. Tins allegation is not made either in the petition or in the annexure. The other evidence discussed by the Tribunal relates to matters not alleged in the petition. The finding on this matter is therefore an error apparent on the face of the record.

24. The next corrupt practice alleged against the petitioner is covered by the 11th issue. The allegations in the petition relating to it are contained in para 8(g) of the petition and para 7 of the annexure.

25. The actual corrupt practice alleged consists of (a) the omission to mention the petrol expenses for the canvassing tours; (b) the omission to include the hiring charges in respect of seven vans said to have been hired by the petitioner; and (c) the omission to show the dinner expenses and the expenses incurred in the hotel.

26. In para 30 of its order the Tribunal found that a sum of Rs. 7566-11-0 had been omitted from his return of expenses. This sum relates to G items set out in page 69. Items 3 to 6 are not alleged in the petition or in the annexure. Part of Item 3 relates to voters. In regard to the hiring of 7 vans the Tribunal has not recorded a finding that any such hiring has been proved. It only refers to seven cars lent to him by his friends and it is held that the money value of the use of such cars including the cost of new tyres said to have been purchased for some of them and the repairing charges in respect of another should have, been shown in the return of expenses. (Sea pages 53-62, para 29 clause (d) sub-clauses (1 to vii) ).

27. Then with regard to petrol expenses it is not denied he has shown a sum of Rs. 1033-3-0. The Tribunal has adopted a novel procedure for reaching the conclusion that some petrol expenses are omitted from the return. On page 63 in para 29 (8), the Tribunal points out that between 11-11-51 and 4-1-52 a sum of Rs. 3276-14-0 has been paid to the petrol bunk at Tarikare by the petitioner. The Tribunal makes an arbitrary calculation for making allocations of this sum of money and comes to the conclusion that a sum of Rs. 1250/- has been omitted from the return of expenses relating to the purchase of petrol. The finding is based on no evidence and rests only on mere speculations, more so because the petitioner, it is admitted, is a merchant who must perforce use cars for the conduct of his trade.

28. In regard to the hotel expenses as pointed out already the allegation is made in the following words : "The 1st respondent has also not shown the dinner expenses and the expenses incurred in the hotel." The discussion relating to this matter is contained at pages 64, 65 and 65 in clause (f) of para 29 of the order. In sub-clause of this clause the Tribunal refers to certain expenses incurred by one Harulappa in the Hotel of P. W. 19 and considers the payments made by and on behalf of Harulappa as the expenses incurred by the petitioner. This Harulappa was himself a candidate.

29. The next item of expenditure referred to by the Tribunal relates to the food supplied to the voters in the hotel of P. W. 33 (vide bottom of page 65), There is no allegation in the election petition that any voters had been entertained by the petitioner. In sub-clause (ii) of this para the Tribunal again refers to the hotel expenses of certain voters. This cannot come within the return.

30. It will be clear from the foregoing that the Election Tribunal acted without jurisdiction to -

1. (a) amending the election petition sent to it by the Election Commission, (b) hearing and disposing of the amended petition, (c) extending the period of limitation for the presentation of the election petition;

2. Acted in excess of its jurisdiction in - (a) going into and deciding questions not definitely pleaded and specifically put into issue, particularly allegations regarding corrupt practices, (b) setting aside the application of the petitioner without giving a definite finding that the 1st respondent has, as a matter of fact, obtained more valid votes than the petitioner or without the requisite materials for giving a finding that but for the corrupt practices indulged in by the petitioner, the 1st respondent would have secured more valid votes than the petitioner.

3. Committed errors apparent on the face of the record - (a) in holding that the commencement of polling at Booth No. 1, Ajjampur deprived the 1st respondent of the votes which he might have secured, (b) that the petitioner obtained the services of a Government servant to further the prospects of his election, and (c) that the petitioner lodged false return of expenses. There can be no doubt that these findings which led to the setting aside of the election of the petitioner have caused grave and manifest injustice to the petitioner.

31. We accordingly issue a Writ of Certiorari under Art. 226 of the Constitution and quash the proceedings and the order dated 15-1-1353 of the Election Tribunal. The costs of this petition will be paid by the 1st Respondent. Advocates fee Rs. 200/- only. Writ of Certiorari issued. AIR 1954 MYSORE 111 (Vol. 41, C.N. 44) "Lakkappa v. Narasimhegowda" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND BALAKRISHNAIYA, J. ( Division Bench ) K. Lakkappa, Petitioner v. N.G. Narasimhegowda and others, Respondents. Civil Petn. No. 78 of 1953, D/- 11 -1 -1954, to quash the proceedings of Election Tribunal, Bangalore, in Election Petn. No. 67 of 1952. (A) Constitution of India, Art.226, Art.329(b) - WRITS - ELECTION - TRIBUNALS - Application for issue of writ of certiorari for quashing proceedings of Election Tribunal - Maintainability. Representation of the People Act (43 of 1951), S.74, S.98, S.105. AIR 1953 Nag 357, Dissented. An application for the issue of a writ under Art. 226 for quashing the proceedings of an Election Tribunal which had declared the election to be void and set aside the election of the petitioner, is maintainable and is not barred either under Art. 329 (C) of the Constitution or S. 105, Representation of the People Act. (Paras 6 and 10) The words "notwithstanding anything in this constitution" in Art. 329(b) make it quite clear that they can apply only to the limited purpose of calling in question the election to either House of Parliament or to the House of the State Legislature. It can have no application to or bearing on the proceedings after the completion of the election. Section 74, Representation of the People Act makes it clear that an election is completed before the Election Tribunal is set up. It does not continue until an Election Tribunal pronounces its order under S. 98 of the Representation of the People Act. Article 329(b) does not specifically or expressly refer to the proceedings of the Election. Tribunal which, come into being only after the completion of the elections. The powers conferred on courts by Art. 226 are very extensive; there is no proviso to limit its jurisdiction such as the proviso to Art. 227. which excludes the superintendence of the High Courts over tribunals relating to Armed Forces. AIR 1952 SC 64, Rel. on. AIR 1953 Nag 357, Discussed and dissented from. (Paras 6, 7 and 8) The issue of a writ as prayed for by the petitioner may and will result in certain-consequences just as an adjudication of a successful candidate in an election as an insolvent may and will produce the same or similar consequences. It does not however follow that because of the effect on the result of the elections the petition for the issue of a writ or the adjudication of the successful candidate as an insolvent can strictly be said to be petitions which call in question an election to a Legislature. (Para 6) The contention that the Election Tribunal has become functus officio and that as such it cannot be made a party, even if accepted, does not in any way affect the effectiveness of a writ that may be issued to quash the proceedings of the Election Tribunal. The record of the proceedings of the Election Tribunal are lodged before the District Judge of the Division in which the election has taken place and are at present before the High Court. There does not appear to be any specific provision in the Representation of the People Act to support the view that the Election Tribunal becomes functus officio after the pronouncement of the order. AIR 1953 SC 210, Distinguished and AIR 1953 Mys 59, Rel. on. (Para 11) (B) Constitution of India, Art.226 - WRITS - Writ of certiorari when can issue. Apart from questions of jurisdiction a writ of certiorari can also be issued where a Tribunal has committed mistakes apparent on the face of the record or committed flagrant violation of law. AIR 1950 SC 222 : AIR 1951 SC 115; AIR 1952 SC 132; AIR 1953 SC 58 and AIR 1953 Mys 8, Rel. on. (Para 12) The Election Tribunal declared the election of the petitioner to be void on the ground that there was an implied contract for the supply of goods between the petitioner and the Government of Mysore at the time when he filed his nomination paper, which disqualified him for membership to the Mysore-Legislative Assembly under S. 7(d), Representation of the People Act. The petitioner applied under Art. 226 for the issue of a writ of certiorari for quashing the proceedings of the Election Tribunal. The admitted facts before the Tribunal were that there was no subsisting contract between the petitioner and the Government of Mysore at the time of filing his nomination paper and that the alleged contract had already come to an end. The Tribunal however considered the question of the existence of an implied contract not alleged in the pleadings and not specifically put into issue and then gave a finding which was dead against the admitted facts. The Tribunal inferred an implied contract from the mere fact that the firm of which the petitioner was a partner, had supplied certain goods to the Government of Mysore after the filing of the nomination paper. Held that the order of the Election Tribunal, based on the finding that there was an implied contract, was both an error apparent on the face of the record and a flagrant error of law. The consideration of allegations not definitely pleaded and not specifically put into issue and a finding thereon was besides an excessive exercise of jurisdiction. The order of the Election Tribunal had resulted in grave and manifest injustice to the petitioner and therefore the proceedings should be quashed. (Paras 16, 17) (C) Sale of Goods Act (3 of 1930), S.4 - SALE OF GOODS - CONTRACT - ELECTION - Contract for supply of goods. Representation of the People Act (43 of 1951), S.7(d). A contract for the supply of goods may and will result in the supply of goods but a supply of goods will not result in the creation of a contract for the supply of goods. (Para 15) Anno : Sale of Goods Act, S. 4 N. 1. Cases Referred : Courtwise Chronological Paras (A) (V 40) AIR 1953 MadhB 197 6 (B) (V 40) AIR 1953 VindPra 51 6 (C) (V 39) AIR 1952 Bom 277 : ILR (1952) Bom 785 6 (D) (V 40) AIR 1953 Pepsu 133 6 (E) (V 41) AIR 1954 Sau 1 : 6 Sau LR 258 6 (F) (V 40) AIR 1953 All 633 : 1953 All LJ 323 6 (G) (V 40) AIR 1953 Ngp 357 : ILR (1953) Nag 772 6 (H) (V 39) AIR 1952 SC 64 : 1952 SCJ 100 (SC) 6

(I) (V 40) AIR 1953 SC 210 : 1954 SCR 1144 (SC) 6, 11 (J) (V 40) AIR 1953 Mys 59 : ILR (1953) Mys 287 11 (K) (V 37) AIR 1950 SC 222 : 1950 SCR 621 (SC) 12

(L) (V 38) AIR 1951 SC 115 : 1951 SCR 145 (SC) 12 (M) (V 39) AIR 1952 SC 192 : 1952 SCR 583 (SC) 12 (N) (V 40) AIR 1953 SC 58 : 1953 SCR 302 (SC) 12 (0) (V 40) AIR 1953 Mys 8 : ILR (1953) Mys 58 12 (P) (1910) 1910-2 KB 165 : 79 LJ KB 595 12 (Q) (1951) 1951-1 KB 711 12 (R) (1952) 1952-1 All ER 122 : 1952-1 KB 338 12 C. Nagaraja Rao, for Petitioner; V. Krishnamurthy, (for No. 1) and Asst. Advocate-General (for No. 3), for Respondents. Judgement The facts of the case leading to this petition are simple. The petitioner was one of the candidates for election to the Mysore State Legislative Assembly from the Chennarayapatna Constituency. There were objections to the acceptance of his nomination paper on the ground that he had at the time a subsisting contract with the Government of Mysore. The Returning Officer overruled and rejected the objection and the petitioner was declared to have been duly nominated. The petitioner contested the elections held on 16-1-1952 and was thereafter declared duly elected and the fact was notified in the official Gazette.

2. The 1st respondent filed an election petition calling in question the election of the petitioner. He urged several grounds in support of the petition but it will be unnecessary to refer to all of them as all the members of the Tribunal were unanimous in overruling all the grounds excepting one. That ground related to the existence of a contract for the supply of goods between the Bharath Trading and Industrial Company of which the petitioner was a partner and the Government of Mysore at the time the petitioner filed his nomination paper. The majority of the Tribunal gave a finding that there was a subsisting contract between the petitioners firm and the Government of Mysore at the time the petitioner filed his nomination paper and on that ground declared. the whole election void and set aside the election of the petitioner. It will be necessary to state at this stage that the Chairman of the Tribunal differed from the majority of the Tribunal and gave a finding to the effect that there was no subsisting contract between the petitioner and the Government of Mysore at the time the petitioner filed his nomination paper.

3. The petitioner has therefore approached this court for the issue of a writ under Art. 226 of the Constitution for quashing the proceedings of the Tribunal.

4. In support of his petition the petitioner has urged the following two grounds : (1) The decision of the majority of the Tribunal rests upon a matter that is not put in issue thereby violating the fundamental principles of natural justice; (2) The majority of the Tribunal in holding that there was an implied contract acted contrary to law and in an unreasonable manner and in opposition to the case set up by the petitioner (1st respondent before us) himself. 5-10. *(See paras. 5 to 10 in AIR 1954 Mys 102). * These paras, are exactly same as paras. 5 to 10 in AIR 1954 Mys 102.

11. The learned counsel for the 3rd and 4th respondents next urged on the strength of the case reported in - AIR 1953 SC 210 (I), that no writ could be issued to the Election Commission, I am unable to accept this contention. The decision referred to by the learned counsel Saka Venkataraos case, (I), does not appear to me to be apposite for that was a case where a writ was sought against the Election Commission to prevent the Governor from performing the duties enjoined on him under Art. 192(2) of the Constitution which reads as follows : "192(2) - Before giving any decision on any question (whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of art. 191). the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion". The duty is enjoined on the Governor to obtain the opinion of the Election Commission and the Election Commission in furnishing its opinion to the Governor cannot be deemed to be doing any act or performing any duty or functioning within the jurisdiction of the Madras High Court. The facts in that case are entirely different and have no bearing or similarity to the facts of the case before us. The Election Commission in the case before us has to perform certain duties within the jurisdiction of this court, such as for instance the publication of the order of the Election Tribunal in the Mysore Gazette. This point has besides been covered by a decision of this court in - Bangalore Woollen, Cotton and Silk Mills Co., Ltd. v. Labour Appellate Tribunal of India, AIR 1953 Mys 59 (J). The contention that the Election Tribunal has become functus officio and that as such it cannot be made a party, even if accepted, does not in my opinion in any way affect the effectiveness of a writ that may be issued to quash the proceedings of the Election Tribunal. The records of the proceedings of the Election Tribunal are lodged before the District Judge of the Division in which the election has taken place and are at present before this court. There does not appear to be any specific provision in the Representation of the People Act to support the view that the Election Tribunal becomes functus officio after the pronouncement of the order. The objections are accordingly rejected.

12. *(See para. 12 in AIR 1954 Mys. 102). *This para, is exactly same as para. 12 in AIR 1954 Mys. 102.

13. The learned counsel for the petitioner submitted that the Election Tribunal, to support its order, went into and considered allegations not definitely set forth in the pleadings of the parties and not specifically put into issue. He further submitted that the Tribunal committed a flagrant violation of law in spelling the existence of an implied contract for the supply of goods between the petitioner and the Government of Mysore at the time the petitioner filed his nomination paper. It was also urged that there are manifest errors, relating to the existence of necessary and relevant facts, apparent on the face of the record on which the Election Tribunal has based its findings.

14. A perusal of the allegations in the Election Petition and the issues (as stated by the Election Tribunal) make it clear that the pleadings and the issues are not as satisfactory as they should have been. The averments in paragraph 3 of the petition are : "As far as the petitioner is aware, this tender as well as the acceptance is not limited for any particular period nor has the standing order been terminated in any way by either the Firm or by the Government of Mysore through the Deputy Commissioner, Hassan, who accepted the standing order as stated above. On the contrary on 8-9-51, the Deputy Commissioner, Hassan, issued directions to the Bharathi Trading and Industrial Company, Hassan, to supply 8000 flat tiles 200 ridge tiles required for the reconstruction of the house destroyed by accidental fire in Sulgalale village in Belur Taluk, Hassan District. The Amildar of Belur was requested to instruct the Special Revenue Inspector to take delivery of the tiles and issue them to the grantees and also to make arrangements to pay the bills in his office. It will be seen that there was no other correspondence for any fresh contracts springing up in this connection between the Firm and the Deputy Commissioner. Hassan, and the petitioner states that it is and must be deemed that the order for the supply of the above materials dated 8-9-51 must be in pursuance of the standing contract referred to above. " It is thus clear that the case which the petitioner (respondent 1 before us) specifically put forward was that there was no contract except the one admitted by him, viz., a contract for the supply of goods for the year 1950-51. This contract ended on 31-3-1951. The two contracting parties, viz., the petitioner and the Government have both stated that the contract had ended. The earnest money deposited by the petitioner for the performance of the contract was admittedly returned to the petitioner by the Government and the accounts relating to the contract between the petitioner and the Government were also admittedly settled long before the date on which the petitioner filed his nomination papers. There can therefore be no doubt that the said contract between the petitioner and the Government was not in force on the date the petitioner filed his nomination paper. The Bharath Trading Company, of which the petitioner was a partner, had not admittedly tendered for the supply of goods (tiles) to the Government for the year 1951-52 but that, on the other hand, one Krishnaiahsetty had tendered for the contract of supply of goods to the Government for the year 1951-52 and the same had been accepted by the Government. This contract between the Government and Krishniahsetty was formally embodied in an agreement (Ex. 29). The Election Tribunal inspite of all this and the petitioners own averments in para. 3 extracted above took upon itself the task of considering the question whether there was an implied contract for the supply of goods tiles) to the Government for the period 1951-52 and gave a finding that there was such an implied contract for the supply of goods notwithstanding the fact that the pleadings did not contain a specific averment that there was an implied contract for the supply of goods for the year 1951-52.

15. The finding of the Election Tribunal that there was an implied contract for 1951-52 is based on the admitted fact that when Krishniahsetty failed to supply the goods required by the Government according to the contract entered into by him with the Government, the Deputy Commissioner purchased the tiles from the Bharath Trading Company as per the letter of the Rural Development Commissioner (No. R. 635-39, dated 13-8-1951). This will be clear from the order of the Election Tribunal at page 25 : "....... general permission had been accorded to purchase tiles from the local factories on failure of the approved Firm to supply tiles of good quality within the time limit specified by him and has instructed him to adopt the same in the present case." The fact that on the failure of Krishniahsetty to supply goods the Deputy Commissioner, in pursuance of the letter referred to above, requested the Amildars to purchase goods from the Bharath Trading Company and that, in pursuance of that direction, the Amildars place orders with the Bharath Trading Company for the supply of tiles does not and cannot lead to the conclusion that there was an implied contract between the Government and the Bharath Trading Company for the supply of goods. The distinction between a contract for the supply of goods and supply of goods has obviously been lost sight of entirely by the Election Tribunal. A contract for the supply of goods may and will result in the supply of goods but a supply of goods will not result in the creation of a contract for the supply of goods. It is obvious and cannot be disputed that, if the Bharath Trading Company failed to supply the goods according to the order placed by the Amildars, the other party to the contract, viz., the Government, could not have enforced that supply through courts. This position makes it clear that the finding of the learned Election Tribunal that there was an implied contract for the supply of goods for the year 1951-52 is manifestly wrong.

16. The Tribunal has thus considered the question of the existence of an implied contract not alleged in the pleadings and not specifically put into issue and then given a finding which is dead against the admitted facts. The Election Tribunal has also, as shown above, committed flagrant error of law in inferring an implied contract on the mere fact that the Bharath Trading Company supplied goods according to the orders placed from time to time by the Amildars who had been requested by the Deputy Commissioner to make the purchase from Local firms. Section 7(d) of the Representation of the People Act reads - "7(d) if, whether by himself or by any person or body of persons 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 any works or the performance of any services undertaken by, the appropriate Government; (a person shall tie disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State)". There was as pointed out above no subsisting contract for the supply of goods at the time the petitioner filed his nomination paper. The order of the Election Tribunal, based on the finding that there was an implied contract, is both an error apparent on the face of the record and a flagrant error of law. The consideration of allegations not definitely pleaded and not specifically put into issue and a finding thereon is besides an excessive exercise of jurisdiction.

17. The very same objection to the nomination of the petitioner had been taken at the time of scrutiny and had been overruled and rejected by the Returning Officer. There can be no doubt that the order of the Election Tribunal has resulted in grave and manifest injustice to the petitioner.

18. We accordingly issue a writ of certiorari and quash the proceedings and the order dated 24-2-1953 of the Election Tribunal. The costs of the petitioner will be paid by the 1st respondent. Advocates fee Rs. 100/- only. Application allowed. AIR 1954 MYSORE 114 (Vol. 41, C.N. 45) "Tharumal v. Narasimhiah" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) Tharumal Bhajandas, Plaintiff-Petitioner v. K. Narasimhiah, Defendant-Respondent. Civil Revn. Petns. Nos. 233 and 234 of 1952-53, D/- 6 -2 -1953, against order of Principal Dist. J., Bangalore, in R. As. Nos. 105 and 106 of 1951-52. (A) Mysore Money-Lenders Act (13 of 1939), S.1, S.23 - RECOVERY OF DEBT - MONEY LENDERS - CIVIL COURT - Debt Laws - Power of Civil Courts to punish for defaults. The provisions of the Money-lenders Act do not confer jurisdiction on Courts deciding suits to punish persons who are in default under the Act. Their liability for violation of any of the provisions therein has to be determined in separate proceedings before the criminal Court. According to S. 23(3), the offence under the section is a cognizable offence for which a trial is necessary as prescribed under Criminal P.C. to justify a conviction. Held that the levy of fine for breach of the Money-lenders Act imposed by the Civil Court in a trial of suit on promissory note was without jurisdiction. (Para 2) (B) Civil P.C. (5 of 1908), O.21, R.46 - ATTACHMENT - Attachment when effective. The service of prohibitory notice as required under R. 46 of O. 21 is enough for the purpose of the attachment and it is not necessary that money should have been actually payable at the time to defendant. (Para 3) Anno : C.P.C., O. 21, R. 46, N. 1, 2. M.S. Krishna Iyengar, for Petitioner; Respondent in Person. Judgement VENKATA RAMAIYA, J. :- The petitioner in these two cases is the same. He sued the respondent for recovery of amounts due under two on demand promissory notes, and in the course of one of the suits, applied for attachment before judgment of money due to the defendant under a bill tendered to the Executive Engineer, Buildings Division, Bangalore. No money, however, was received in Court or even found to be actually payable. The suits ended in decrees against the defendant and the application filed by the defendant for payment of compensation en account of the attachment being wrongful was dismissed by the trial Court. On appeal by the defendant, the decrees of the trial Court as regards the amounts payable under the pronotes were confirmed, but compensation of Rs. 250/- was allowed to the defendant on the view that the attachment was obtained on insufficient grounds. The learned Judge also directed the plaintiff to pay a fine of Rs. 100/- on the ground that he, as a money-lender, has not conformed to the requirements of the Money-lenders Act. Against the order for payment of compensation and for payment of fine, these two petitions are filed.

2. Mr. M.S. Krishnaiyangar, the learned counsel for the petitioner-plaintiff, contended, and we think rightly, that the provisions of the moneylenders act do not confer jurisdiction on Courts deciding suits to punish persons who are in default under the Act, and that their liability for violation of any of the provisions therein has to be determined in separate proceedings before the criminal Court. A reading of Sections 20 to 23 shows that a limit of time is prescribed for prosecuting defaulters and the breach complained of should have occurred within one year. The learned Judge has given no finding that it was so. According to Sub-S. (2) of S. 23 the offence under this section shall be a cognizable offence for which and trial is necessary as prescribed under the Criminal Procedure Code to justify a conviction. It seems to us that, without following the statutory provisions, the levy of fine on the plaintiff by the learned District Judge is not warranted. The order for payment of fine is, therefore, set aside and the fine, if paid, will be refunded.

3. As regards payment of compensation, the materials available for consideration are very meagre. The main contention urged on plaintiffs behalf is that no attachment was effected at all, and in the absence of any attachment there can be no claim for compensation. Unfortunately, the point was not raised in the Court below and the records do not throw any light on this. What is required for the purpose of attachment under Civil P.C., (O. 21, R. 43) is that there should be a prohibitory order. It is not denied that a prohibitory order was issued, but the argument is that since no money was payable to defendant there was no attachment. No authority is cited to show that service of prohibitory notices as required under R. 46 of O. 21 is not enough for the purpose of the attachment and that money should have been actually payable at the time to defendant. Since the question was not raised at the proper stage or investigated, it is difficult for us to know the real state of affairs in this case. The contention, it correct, requires that in such cases the Court has to embark on an investigation of the differences between the creditor and debtor and adjudicate upon these. This is not a course contemplated by the rule and not within its scope. The question at present is not whether the service of the prohibitory notices resulted in any benefit to plaintiff but how it affected the defendant. On the footing that there has been an attachment, the only point remaining for consideration is whether there was justification for it and if not, whether the amount awarded is excessive. The defendant is said to be a contractor, having a reputation in doing business. The learned District Judge has observed that no attempt was made by the plaintiff to substantiate the allegation made in the affidavit. The plaintiff must therefore be deemed to have acted without exercising the care necessary in seeking the extraordinary remedy, not realising the inam which may befall a man of business. Anyway considering that the plaintiff has substantially succeeded in both the suits, the defendant set up false pleas and the defendant is not shown to have suffered tangible loss, I think it would be sufficient to award a sum of Rs. 150/-. To this extent, the amount allowed by the learned District Judge is reduced.

4. in the result, C. R. P. 234/52-53 is allowed and the order in C. R. P. 235/52-53 is modified by substituting the sum of Rs. 150/- for Rs. 250/-. Parties will bear their own costs in this Court. Order accordingly. AIR 1954 MYSORE 115 (Vol. 41, C.N. 46) "Narasimhaiah v. Chikkathimmaiah" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Narasimhaiah, Plaintiff-Appellant v. Chikkathimmaiah, Defendant-Respondent. Second Appeal No. 473 of 1949-50, D/- 6 -2 -1953, against decree of Addl. Sub. J., Tumkur, in R. A. No. 24 of 1948-49. (A) HINDU LAW - PARTITION - RES JUDICATA - Hindu Law - Joint family property - Alienation by one coparcener - Suit for partition by purchaser - Res judicata. Civil P.C. (5 of 1908), S.11. A decree obtained by a member of a joint Hindu family governed by Mitakshara against an alienee for his share of the property alienated on the ground that the alienation is not binding on him does not bar by res judicata a subsequent suit by the alienee for a general partition and asking therein for allotment of the alienated property to the share of the alienating coparcener; AIR 1926 Mad 774, Rel. on. (Para 2) Anno : C.P.C., S. 11 N. 36 Pt. 2. (B) HINDU LAW - Hindu Law - Joint family property - Alienation of his share by one coparcener - Remedy of purchaser. A purchaser of an undivided members share in a joint family property need not always bring a suit for general partition as he is neither interested nor quite in a favourable position to discover all the items of family property. The proposition of law that an alienee from one of the coparceners get only an equity against other members of the coparcenary to work out his rights by a suit for general partition and his remedy is in all cases to institute such a suit is not accepted in Mysore. 9 Mys CCR 43, Foll. (Para 4) (C) HINDU LAW - PARTITION - Hindu Law - Joint family property - Alienation by one coparcener - Suit by purchaser for partition - Equitable allotment. Where a suit for partition is brought by a purchaser of an undivided members share in a joint family property, at such a partition the purchaser can only obtain the rights of his transferor, and has got no right to strictly claim a share in a particular item, still as a matter of equity the Court should, unless there are insuperable objections to do so, adjust the different shares so as to give him what has been actually conveyed to him as being the share of the particular coparcener. The death of vendor-coparcener does not make any difference in the application of this equitable principle or stands in the way of allotting the suit land to the purchaser in lieu of the share attributable to the said coparcener at the time of the sale : 22 Mys CCR 293; 21 Mys LJ 206; 25 Mad 690 (FB), Rel. on. (Paras 4, 8) Cases Referred : Courtwise Chronological Paras (A) (V 13) AIR 1926 Mad 774 : 96 Ind Cas 993 2, 3 (B) (V 13) AIR 1926 Mad 241 : 91 Ind Cas 868 2 (C) 9 Mys CCR 43 4, 7 (D) (02) 25 Mad 690 (FB) 4, 6, 7 (E) 22 Mys CCR 293 4, 7 (F) (42) 21 Mys LJ 206 5, 7 (G) (80) 6 Ind App 88 : 5 Cal 148 (PC) 6 (H) (V 39) AIR 1952 Mad 419 : ILR (1952) Mad 835 (FB) 6

(I) (97) 21 Bom 797 7 Y. Siddappa, for V. Krishnamurthy, for Appellant; K.P. Muddappa, for Respondent. Judgement The facts of this case are not in dispute. The defendant is the son of one Dodda Thimmian who was a member of Hindu joint family with him and who is now dead. During his lifetime, he had sold to the plaintiff a small piece of land measuring about an acre described in the A schedule to the plaint (which will be referred to hereafter as the suit land) and had put him in possession. After his death the defendant and another younger brother of his, who is also now dead, tried to disturb the plaintiffs possession and he therefore brought a suit in O. S. No. 3 of 42-43 on the file of the Munsif, Tumkur, against them for a permanent injunction. It was held in that suit that the plaintiff was entitled to retain possession of the suit land and that Dodda Thimmiahs sons might get their shares divided and separated by a suit of their own for partition if the alienation by their father was found not binding on them. Accordingly they filed a suit O. S. No. 208/44-45 against the plaintiff for partition and possession of their 2/3rds share. At that time, an appeal by the sons of Dodda Thimmiah against the decision in O. S. No. 3/42-43 was pending before the Subordinate Judge. The present plaintiff had pleaded in that suit that the alienation in his favour was fully binding on the sons of Dodda Thimmiah and that their suit must be dismissed. But later on, after the disposal of that regular appeal and a second appeal therefrom, he made an application in O. S. No. 208/44-45 for permission to amend his written statement and to ask that there should be a general partition of the family properties which belonged to Dodda Thimmiah and his sons, that the suit land may toe allotted to the share of the deceased Dodda Thimmiah and that he the plaintiff may be confirmed in its possession. That application was not allowed oil the ground that the suit O. S. No. 208 of 44-45 was filed for partition of only the suit land, and not for a general partition, a suit which the sons of Dodda Thimmiah were then entitled to bring. A decree was ultimately passed in that suit declaring that Dodda Thimmiahs sons were entitled to 2/3rds share of the property and for its partition. The plaintiff has therefore brought the present suit for a general partition of all the family properties of the plaintiff and Dodda Thimmiah. He had described in the B schedule all those other family properties and has prayed that he might be confirmed in his possession, of the suit land after allotting it to the share of his vendor or that he may be granted an area equal in extent and value in all the family properties. The Munsiff granted a decree in his favour and allotted the suit land to the plaintiff. His decision was reversed on appeal by the Subordinate Judge of Tumkur and the plaintiff has come up in second appeal.

2. The learned Subordinate Judge was of the view that the plaintiffs present suit was barred by res judicata. For the appellant, it is contended that he was not bound, in O. S. No. 208/44-45, to have asked for a general partition, that he could not do so as an appeal was pending against the decision in O. S. No. 3/42-43 where he was claiming that the sale in his favour was binding on the entire suit land including the shares of Dodda Thimmiahs sons therein that that suit was by the present defendant and his brother for a limited relief, viz., for a partial partition, and that it was not incumbent on the plaintiff to seek for a general partition in that suit alone. Mr. Krishnamurthi, the learned Counsel for the Appellant, has relied on a case reported in - "Kanda swami Udayan v. Velayudha Udayan, AIR 1926 Mad 774 (A) where, dissenting from - Sowrimuthu v. Pachia Filial1, AIR, 1926 Mad 241 (B), it has been held that in a suit instituted by a coparcener of a joint Hindu family to set aside the sale of an ancestral immoveable property by his father or manager on the ground that the sale was not for family necessity and to recover possession of the property from the purchaser, the latter is not entitled to insist on the plaintiff submitting to a partition either of the item sold or of the entire family property. Though it is open to a Court where all the facts and all the persons interested are before it and where the suit is practically one for general partition, to allow a purchaser to retain the property sold to him. It was neither expedient nor reasonable that the purchaser should be able to insist that such a suit should be converted into one for general partition as it would involve the presence of other parties and an enquiry into debts and liabilities of the family. It was also held in that case that a decree obtained by a member of a joint Hindu family against an alienee for his share of the property on the ground that the alienation is not binding on him does not bar a subsequent suit by the alienee for a general partition and asking therein for allotment of the alienated property to the share of the alienating coparcener. Their Lordships further pointed out that the proper course in such cases, where one of the coparceners has brought a suit for partial partition, is for the alienee to bring a separate suit of his own for general partition so that the suit for partition may be tried along with the suit for setting aside the alienation. If the alienation was found not binding on the impeaching coparceners share but only on the alienors share, the Court would be in a position to consider in the suit for general partition whether the property alienated should be allotted to the alienors share or not. This Madras case does not appear to have been cited before the learned Subordinate Judge and he has proceeded merely on general principles as to what the plaintiff might or ought to have made the ground of defence or attack in the former suit.

3. I think, with great respect to the learned Judges who have decided - AIR 1926 Mad 774 (A), it lays down the correct principles which might be followed in such cases. As has been rightly pointed out by them, if a member of a joint Hindu family is allowed to bring a suit for partition against an alienee objecting to the alienation of a particular item and thereby his right to bring a suit for partition against the other members of the family is not affected and the principle of res judicata would not avail against the alienating coparcener, it is difficult to hold that a suit by an alienee, who stands only in the shoes of the alienating coparcener for partition, would be so barred. I think also that to thereby force a coparcener convert a suit for partial partition which he is entitled to bring under such circumstances into a suit for general partition is neither reasonable nor required by law. Moreover, it would be going counter to decisions of this Court and in the other High Courts in which it has been held that a coparcener or his alienee in such a case cannot be compelled to sue for general partition. See Mayneg Hindu Law, 11th Edn., para. 388, pp. 489-490. The learned Subordinate Judge thought it unnecessary to consider any other aspect of the case in the light of his conclusion that the plaintiffs suit was barred by res judicata though he also thought that no question of allotting a share to the alienor arose in this suit as the alienor was dead.

4. It has been contended for the appellant that the death of the alienor ought to make no difference in this matter, and that the effect of the sale by the deceased coparcener, either of an item of property or his snare therein, is to vest a right in the alienee to ask, either in a suit for his own or in the suit brought by other coparceners for the same reliefs which his alienor would have been entitled to ask as he has stepped into the shoes of the latter. I think the law in this matter has been fairly clearly laid down in Mysore. So far back as in 1004 it has been held by this Court In - 9 Mys C. C. R. 43 (C) that a purchaser of an Undivided members share in a family property need not always bring a suit for general partition as he was neither interested nor quite in a favourable position to discover all the items of family property. The proposition of law that an alienee from one of the coparceners gets only an equity against other members of the coparcenary to work out his rights by a suit for general partition and his remedy is in all cases to institute such a suit was not accepted. In this case reference has been made with approval to the judgment of Sri Bhashyam Iyengar, J. in - Aiyyagari Venkatramayya v. Ramayya, 25 Mad 690 (FB) (D) and the learned Judge have agreed with the principles enunciated therein to hold that at such a partition though the purchaser can only obtain the rights of his transferor, and has got no right to strictly claim a share in a particular item, still as a matter of equity the Court should, unless there are insuperable objections to do so, adjust, the different shares so as to give him what has been actually conveyed to him as being the share of the particular coparcener. In - 22 Mys O. C. B. 293 (E) in a suit by a coparcener to set aside an alienation of a specific item of family property it was found that the alienation was not binding on the plaintiffs share. The Subordinate Judge passed a decree for delivery to him of a half share in the property alienated to him. The plaintiff appealed on the ground that the Court ought to have ejected toe alienee from, the whole of the land and left him to obtain his rights by a suit for partition. Sir Leslie Miller, C.J. and Chandrasekhara Aiyar, J. while confirming the judgment of the Subordinate Judge held that in working out rights as between an alienee and members of the family who are not bound by the sale to him, the Court should endeavour to adjust the rights of the contending parties with the least possible inconvenience and without injustice to any of them.

5. The above two cases have been referred to and followed in - Ramiah v. Siddalingappa, 21 Mys LJ 206 (F). In that case, the plaintiffs had purchased from one of the members of the joint Hindu family two small plots out of a large piece of land owned by the family which was possessed of other extensive immoveable properties. They filed a suit for possession of those specific lands against the alienor and. other members of the family, it was contended for the latter that the suit, not having brought for a general partition by including all the properties which, the family possessed, was not maintainable. It was held by this Court that no hard and fast rule can be laid down as applicable to such a case, the question to be decided being how the rights of the contending parties could be settled with the least possible inconvenience and without injustice to any of them. In the case before them, taking into account the nature and area of the plots sold, and that all the persona interested in the properties were already before them their Lordships held there was no need to drive the plaintiffs to a separate suit for general partition; and the plaintiffs were granted a decree for possession of the specific pieces of land which they had purchased. It was found that their vendor owned a fairly large plot in that same survey number as the lands involved in the suit say, and that even if the plaintiffs were awarded the very plots to which they were found entitled, the defendants would still have more than their own shares in the same number and neither the nature nor the value of the property stood in the way of such an equitable arrangement.

6. Mr. Muddappa, learned Counsel for the Respondent, has urged that Dodda Thimmiahs death should make a difference in the application of this principle. He argues that the share of Dodda Thimmiah has devolved by survivorship on the other members of the family and that there is no longer any person in existence to whom the share of Dodda Thimmiah, even if it could be said to have existed as such, can now be allotted. It must be observed that the case in - 25 Mad 690 (PB)(D) arose out of a suit by a purchaser of an undivided half in two plots of land from a member of an undivided family consisting of himself and his two nephews. The suit was instituted after the death of the alienor against the nephews for a general partition of all the family properties and for the allotment to the alienors share a hall share in the two plots conveyed by him. The nephews raised an objection that as the alienor had died the plaintiffs right based on equity was at an end. It was held by Bhashyam Iyengar, J. that the vendees claim is no doubt an equitable right in the sense that he must be a transferee for value, in cases where the transfer relates to a specific portion of the family property he has no legal right, any more than his transferor himself, to insist on that specific portion being allotted to the share of the vendor. Being a purchaser for value he was in equity entitled to have such portion, or so much thereof as was practicable, so allotted, if that could be done without prejudice to the other sharers. Such suit may at the option of the other members of the family assume the character of a family partition, suit and a decree may be passed for partition among all the members of the entire family property. He also considered (following - Suraj Bunsi Koer v. Sheo Persad, 6 Ind App 88 (PC) (G) ) that there was nothing to support the contention that the interest conveyed by an undivided member will lapse to the family after the death of the alienor unless the purchaser instituted a suit before the alienors death. The effect of an alienation of an interest of a coparcener in a Mitakshara joint Hindu family and the rights of the alienee and the coparceners and how the equities are to be worked out in such, cases has been discussed fully in - Paramanapakam Pilial v. Sivaraman, AIR 1952 Mad 419 (FB)(H).

7. I think it unnecessary to further discuss the matter as in Mysore the law has been laid down clearly for all practical purposes in - 9 Mys C. C. B. 43 (C), - 22 Mys C. C. R. 293 (E) and - 21 Mys LJ 206 (F). In the last case also, the alienor one Jadiappa was dead when the suit was brought for partition and possession by his alienee and his death did not stand in the way of this Court granting a decree in favour of the plaintiffs and allotting to them the particular survey numbers which he had sold them as an equitable method by adopting which "no special harm" could be caused to the defendants. In Maynes Treatise on Hindu Law and Usage (1950) 11th Edn., it has been observed in para. 324 at page 495 that both in Madras and Bombay it is settled that an actual alienation for the value in enforceable to the same extent by a suit after the death of the alienor as it would have been by a suit during his life, reliance being placed on - 25 Mad 690 (FB) (D), - Gurulingappa v. Nandappa, 21 Bom 797 at p. 805 (I) and other cases. See also Mullas Hindu Law, 1946 Edn., page 311.

8. There is therefore no force in the objection for the respondent that the death of Dodda Thimmiah has made any difference in the application of this equitable principle or stands in the way of allotting the suit land to the plaintiff in lieu of the share attributable to Dodda Thimmiah at the time of the sale. It has not been shown that the learned Munsiff was wrong in doing so for any other reason such as its extent value or nature as compared with the other family lands.

9. In the result I allow this appeal, set aside the judgment and decree of the learned Subordinate Judge and restore those of the learned Munsiff with costs throughout. Appeal allowed. AIR 1954 MYSORE 117 (Vol. 41, C.N. 47) "State v. C.V. Gopala Rao" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) State of Mysore v. C.V. Gopala Rao, Accused-Respondent. Criminal Revn. Petn. No. 119 of 1953, D/- 3 -12 -1953, against Order of First Magistrate, Kolar, D/- 15 -12 -1952. Evidence Act (1 of 1872), S.73, S.45 - DOCUMENTS - Power of Court. It is open for the Court to direct the accused to give his writing in Court for the purpose of comparison by the hand-writing expert and make such use of it as the Court is entitled to. AIR 1950 Cal 66, Followed. (Para 2) Anno : Evi. Act, S. 73, N. 1; S. 45, N. 2. Case Referred : Courtwise Chronological Para (A) (V 37) AIR 1950 Cal 66 : 51 Cri LJ 376 2 Advocate General, for the State; N. Bheemacharya, for Respondent, Judgement In the course of the trial of the case against respondent for offences of cheating, forgery etc., the prosecution sought to prove the writing of accused by evidence of an expert based on comparison of the writing in question with that obtained during investigation, from the accused. This was objected to as being repugnant to Art. 20(3) of the Constitution of India and tantamount to compelling the accused to give incriminatory evidence. The objection was upheld. Later the prosecution requested the Court to call upon the accused to give his writing in Court and make it available for comparison by the expert. This was also rejected. Hence this petition.

2. Whatever may be said in regard to the writing given to the Police, there is preponderance of authority to justify the later application made to the Magistrate. The cases are collected in - Golam Rahman v. The King, AIR 1950 Cal 66 at pp. 71-72 (A). The effect of these as stated in the head note is : "Section 73, Evidence Act is quite general in its terms and applies to all cases and there is no exception in favour of an accused person. If there is nothing in the Criminal P.C. which precludes its application to criminal trials there is no reason why the plain language of the section should not be given its full effect. Section 342, Criminal P.C. does not make S. 73, Evidence Act inapplicable to criminal trials. The procedure followed in taking specimen thumb impressions of the accused under the direction of the Court is in strict compliance with S. 73 and S. 45, ill, (c), Evidence Act." With respect we agree that this is the proper view to be taken. The order of the lower Court is therefore set aside. It is open to the prosecution to renew the prayer and for the Court to direct the accused to give a writing for the purpose of comparison and make such use of it as it is entitled to. Order accordingly. AIR 1954 MYSORE 118 (Vol. 41, C.N. 48) "Rudrappa v. Puttalakshamma" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Rudrappa, Plaintiff-Appellant v. Puttalakshamma, Defendant-Respondent. Second Appeal No. 61 of 1950-51, D/- 5 -2 -1953, against Decree of Sub. J. Civil Station, Bangalore, in R. A. No. 57/1949-50. Civil P.C. (5 of 1908), O.34, R.7 - MORTGAGE - Default in making payment. A preliminary decree in a suit for redemption of a usufructuary mortgage may, under Cl. (c)(i) of R. 7(1) of O. 34, fix a time for payment of the amount declared due under the decree. But default in making the payment of the amount declared under the decree within the time fixed does not operate to debar the plaintiff-mortgagor from all right to redeem the mortgaged property. AIR 1946 Pat 99, Rel. on. (Para 4) Anno : C.P.C., O. 34, R. 7, N. 12. Case Referred : Courtwise Chronological Para (A) (V 33) AIR 1946 Pat 99 : 24 Pat 575 4 H.V. Narayana Rao, for Appellant; V.K. Govindarajulu, for Respondent. Judgement This is an appeal against the judgment and decree of the Subordinate Judge, Civil Station, Bangalore, in R. A. No. 57/49-50 confirming those of the First Munsiff, Bangalore, in O. S. No. 178 of 47-48.

2. The appellant was the plaintiff in the case. He filed a suit for redemption of the property mortgaged by his mother as his guardian for a sum of Rs. 2500/-. Out of this sum, it is not disputed, a sum of Rs. 700/- was paid for discharging the prior encumbrances created by the plaintiffs deceased father and a sum of Rs. 181/-was required for meeting funeral expenses of his deceased father. Plaintiff admits that there was legal necessity to this extent. Out of the balance of about Rs. 1619/- plaintiffs mother purchased a house for a sum of Rs. 1500/- and it is contended that even this house has been subsequently sold away for Rs. 3500/- and that the plaintiff is, not liable to pay anything more than what was required for the funeral expenses and to discharge the debts contracted by his father. It has, however, to be remembered that under the Will executed by the deceased father of the plaintiff the debts had to be discharged and moreover it was necessary to meet the funeral expenses of the deceased. It is contended that it was open to the mother to have executed a usufructuary mortgage for a sum of Rs. 1000/- only and it was not necessary for her to have mortgaged the property for Rs. 2500/-. A little reflection will show that what the mother did was much more beneficial to the minor, as otherwise, by paying only a sum of Rs. 1000/- the respondent would have been in possession of the house. Under this arrangement the mother purchased a house and her act was prudent as it later on fetched more than double the amount she had paid. On the whole the act of the plaintiffs mother is prudent and is for the benefit of the minor. The lower Courts were therefore right in coming to this conclusion.

3. The respondent claimed a sum of Rs. 159-8-6 on the ground that she spent that amount for repairing the house. There is no independent evidence to support this, and the appeal has to be allowed to the extent of disallowing this amount.

4. There is one other matter in respect of which the decrees of the lower Courts have to be modified. According to the decrees of the lower Courts, the mortgagor forfeits the right of redeeming the property in case he does not deposit the amount due by him for redemption within the time fixed by the Courts. Order 34, R. (7)(c)(ii) a and b Civil P.C. contemplates a forfeiture of the right to redeem in some cases other than the cases of usufructuary mortgage and the clauses read : "(a) in the case of a mortgage other than a usufructuary mortgage, a mortgage by conditional sale, or an anomalous mortgage the terms of which provide for foreclosure only and not for sale, that the mortgaged property be sold, or (b) in the case of a mortgage by conditional salt or such an anomalous mortgage as aforesaid that the plaintiff be debarred from all right to redeem the property." But, as has been laid down in - Mahomed Azin v. Md. Sultan, AIR 1946 Pat 99 (A), a preliminary decree in a suit for redemption of a usufructuar, mortgage may, under Cl. (c) (i) of Rule 7(1) O. 34, Civil P C., 1908, fix a time for payment of the amount declared due under the decree. But default in making the payment of the amount declared under the decree within the time fixed does not operate to debar the plaintiff-mortgagor from all right to redeem the mortgaged property. (5) In the result, the decrees of the lower Courts are modified by deleting the direction that the rights of the plaintiff are forfeited in case the amount is not deposited within three months time. The parties will bear their own costs in this appeal. Order accordingly. AIR 1954 MYSORE 119 (Vol. 41, C.N. 49) "Siddappa v. Lalithamma" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench )

L.K. Siddappa, Accused-Petitioner v. Lalithamma, Complainant-Respondent. Criminal Revn. Petn. No. 73 of 1953, D/- 30 -9 -1953, against decision of S. J., Mysore, in Criminal Appeal No. 5 of 1953. Penal Code (45 of 1860), S.463, S.464, S.465, S.29 - FORGERY - DOCUMENTS - Forgery - Essentials - Printing and distributing false marriage invitations. The two essential elements to constitute the offence of forgery under S. 463, Penal Code, are that there must be deceit or intention to deceive; secondly actual or possible injury caused to some person or persons. (Para 6) What constitutes making of a document, depends essentially upon the nature and the use it is intended for. Indeed the definition of a document does not necessarily require that it should be in every case to be in the writing or contain the signature or facsimile of any person but includes what is done by way of printing. (Para 5) The accused got printed false marriage invitations issued under the names of two persons announcing the celebration of marriage of the accused with the complainant who was a young woman of about 20 years inheriting property worth about thirty to forty thousands. Neither the complainant nor the persons under whose names they were issued had authorised the accused to print such invitations and in fact no marriage was fixed between the accused and the complainant. The accused distributed these invitations to friends and relatives and also caused them to be published in the news-papers with intent to deceive and cause injury to the complainant. Held that the marriage invitations were forged instruments and fell within the definition of false documents under S. 464, Penal Code and the accused was guilty of the offence of forgery under S. 463, Penal Code : 2 Mys CCR 252, dist. Case law Ref. (Paras 5, 6) Anno : Penal Code, S. 29, N. 1; S. 463, N. 3; S. 461, N. 1. Cases Referred : Courtwise Chronological Paras (A) 2 Mys CCR 252 4 (B) (81) 7 Cal 352 : 8 Cal LR 572 5 (C) (V 38) AIR 1951 Cal 581 : 52 Cri LJ 1480 5 (D) (V 12) AIR 1925 Bom 327 : 26 Cri LJ 1014 5 (E) (V 15) AIR 1928 Lah 681 : 29 Cri LJ 851 5 (P) (1896) 2 QB 310 : 65 LJ MC 187 5 (G) (37) 1937 Mad WN 1067 5 E. Kanakasabhapathy, for Petitioner; Mahesh Chandra Guru and M. Sadanandaswamy, for Respondent. Judgement One Lalithamma filed a complaint in the trial Court against the petitioner, Siddappa, alleging that false documents were got prepared notifying the celebration of marriage, between herself and the petitioner, who wilfully distributed the same to friends and relatives and also caused them to be published in the newspapers with intent to deceive and cause injury to her. The complaint was registered for offences under Ss. 465 and 500, I. P. C. The petitioner having pleaded not guilty the trial Court found on evidence that the accused had committed an offence under S. 465, I.P.C., and sentenced him to one year R. I. and a fine of Rs. 1,000/-. The conviction and sentence were confirmed in appeal.

2. The question for consideration is whether the documents in question amount to the commission of the offence, complained of. It is necessary for the discussion of the point raised to set out a few facts proved in the case. Exhibits P-1 and P-2 are printed marriage invitations issued under the name of Patel Chickkiah (D.W. 2) and Veerathappa (P.W. 2) respectively, announcing the marriage of the accused with the complainant to take place on the morning of 28-6-51 in the house of one Patel Basappa at Handanahalli. Veerathappa (P.W. 2) swears that there was never any proposal of marriage between the persons named in the documents nor did he authorise his name to be inserted in the invitation. He is the mothers sisters husband of Lalithamma, and is actively helping Basalingamma, her mother, in the management of the properties and he is also being consulted in important affairs as the father of Lalithamma was dead. Lalithamma is an young woman of about 20 years and lives with her mother as she is yet unmarried. She (P.W. 11) deposes that it is absolutely false that marriage between herself and the accused was fixed and denies that there was any authority either by her or by her mother to print and publish the marriage invitations. The proprietor of Ananda Press, Mysore (P.W. 1) where Exs. P-1 and P-2 were printed states that he is an astrologer and printer; that he fixed the date of marriage and printed the invitations on behalf of the petitioner. D.W. 2 Chikkiah avers that there was settlement of the marriage and that the original of Exhibits P-1 and P-2 indicate that the contract of marriage took place in his presence where the mother of Lalithamma as also her uncle Veerathappa were stated to have been present indicating thereby that they must have been responsible for having got printed the marriage invitations as per the original contract. This assertion remains unsubstantiated, and it is not even suggested to either the printer, or Lalithamma, or Veerathappa, D.W. 2 also does not affirm that he authorised the petitioner to use his name in the marriage invitation. It is thus clear that the accused has got Exs. P-1 and P-2 printed without authority from either Basalingamma or Veerathappa or Patel Chikkiah, much less with the permission or consent of Lalithamma. The defence evidence that the originals of Exs. P-1 and P-2 were genuine contracts has rightly been discounted and Exs. P-1 and P-2 held as false documents prepared and published without any authority or basis whatsoever.

3. Siddappa, the petitioner, did not content himself by merely getting up these documents but distributed them to friends and relatives and also arranged for publication of the same in newspapers. (After discussion of the evidence his Lordship proceeded :) In view of this evidence the Courts below have rightly concluded that Exs. P-1 and P-2 are false documents intentionally got up by the accused and published with a view to injure the complainant.

4. The short question that falls for consideration is whether the petitioner Siddappa has, by publishing the printed documents in question committed the offence under S. 485, I.P.C. Section 463 defines forgery (leaving out the details not necessary for this case) thus : "Whoever makes any false document with intent to cause damage or injury to any person, commits forgery." Making a false document is described in S. 464(1) as follows : "A person is said to make a false document who dishonestly or fraudulently makes a document with the intention of causing it to be believed that such document was made by the authority of a person by whom or by whose authority he knows that it was not made." The word document as defined by S. 29, I.P.C., denotes any matter expressed or described upon any substance by means of letters, figures or marks, intended to be used or which may be used, as evidence of that matter. The said definition-includes anything done by pen, by engraving, by printing or otherwise, whereby, it is made on paper, parchment, wood or other substance. Similar definitions of the word document are found in S. 3, Evidence Act, and also in S. 3(16), General Clauses Act. The word document occurs in S. 464, I.P.C. and there is no doubt that the documents Exs. P-1 and P-2 fall within the definition of S. 29, I.P.C. It is proved by the evidence of Veerathappa (P.W. 2) Lalithamma (P.W. 11), P.W. 1 and D. W. 2 that the documents were unauthorised and contain facts that are absolutely false. It is contended for the petitioner that the mere getting up a document printed under an unauthorised name does not make it a false document. Reliance is placed for that position on the decision of this Court in - 2 Mys OCR 252 (A), where it was held that "The dishonest making of a false document is forgery; but the mere fact of a document containing what is not true, is not sufficient to constitute the offence of forgery." In that case, the document was accepted to be genuine and no dishonest intention was found. Intention being the gist of the offence the case is distinguishable from the facts of the present case, where it is found that false documents are found to have been dishonestly got up.

5. It is next contended that mere printing of documents without autograph, or fascimile signature does not amount to the offence of forgery. In the matter of Petition of Riasat Ali, 7 Cal 352 (B) is cited as an authority for the proposition. In that case a prisoner who was charged with attempting to commit forgery of a valuable security, was found guilty by the jury of attempting to commit forgery. The jury explained their finding by saying that the prisoner had ordered certain receipt forms to be printed similar to those used by the Bengal Coal Company, and that one of these forms had been actually printed and the proof corrected by him; that the prisoner had had an intention of making such addition to the printed form as would make it a false document and that he did this dishonestly and with intent to commit fraud. Sir Richard Garth, C.J. commented thus in the course of his judgment "I consider that the making of a document or part of a document, does not mean writing or printing it, but signing or otherwise executing it; as in legal phrase we speak of making an indenture or making a promissory note by which is not meant the writing out of the form of the instrument but the sealing or signing it as a deed or note. The fact that the word "makes" is used in the section in conjunction with the words signs, seals, or executes or makes any mark denoting the execution etc. seems to me very clearly to denote that this is its true meaning. What constitutes a false document or part of document, is not the writing of any number of words which in themselves are innocent, but the affixing the seal or signature of some person to the document, or part of a document, knowing that the seal or signature is not his and that he gave no authority to affix it. In other words, the falsity consists in the document, or part of a document, being signed or sealed with the name or seal of a person who did not iii fact sign or seal it." Evidently, the printed receipt form in that case, was, without seal or signature, not complete so as to bring it under the definition of a document What constitutes making of a document, depends essentially upon the nature and the use it is intended for. Indeed the definition of a document does not necessarily require that it should be in every case to be in the writing or contain the signature or facsimile of any person but includes what is done by way of printing. Tested from this aspect, Exs. P-1 and P-2 contain subscription of the names in print and are sufficient to cause it to be believed that those documents were made by the authority of the person under whose name they appear. As marriage invitations they are documents complete in themselves. Besides, a person is said to make a false document under S. 484, I.P.C. if he makes, signs........ a document. The word makes is more comprehensive than signs and the use of the words makes and signs is not a mere tautology. With reference to the decision in - 7 Cal 352 (B), Dr. Whitley Stokes in his book "The Anglo-Indian Codes" (at page 269) has expressed his opinion in the notes under S. 464, I.P.C. thus : "Garth, C.J. in - 7 Cal 352 (B) thought that the making a document or part of a document means signing or otherwise executing it. Why then were makes and made used as well as signs, executes, signed, executed ?" The Calcutta High Court have in a later case, (vide - Pramatha Nath v. The State, AIR 1951 Cal 581 (C), while noticing the criticism of Dr. Stokes, nevertheless preferred to follow the earlier Bench decision in - 7 Cal 352 (B) as binding upon them. In the Bombay High Court - Emperor v. Krishtappa Khandappa, AIR 1925 Bom 327 (D), Macleod, C.J. has observed with reference to - 7 Cal 352 (B) that "the learned Chief Justice (Garth, C.J.) for the purposes of that particular decision did not consider the provisions of S. 29, I.P.C." and dissented from it. A Bench of the Lahore High Court - Chatru Malik v. Emperor, AIR 1928 Lah 681 (686) (E), also discarded the view of - 7 Cal 352 (B) and preferred to follow - AIR 1925 Bom 327 (D). Coldstream, J. remarked in the Lahore decision that the word makes in S. 464, I.P.C. does not mean anything "else than makes, that is to say, creates or brings into existence." It is undoubted that the word makes does not mean mechanical reproduction; that involves a conscious act of the maker as observed by Colin, J. in - Dickins v. Gill, (1896) 2 QB 310 (F). The petitioner is proved to be the author of Exs. P-1 and P-2. The printer had the petitioners authority to print but the mere process of mechanical production does not, by itself, fix the responsibility on him. It is the author or the creator of the documents that will be liable. The expression makes which also occurs in S. 18 of the Press (Emergency Powers) Act is interpreted by Newsam, J. thus, "prima facie a maker should refer to the creator and author and it would be straining the language of the section to hold that the printer is a maker" (Vide - Parakunni Kumaran v. Emperor, 1937 Madras WN 1067 (G)). In the light of the principles discussed above, I have no hesitation in holding that the petitioner who is proved to be the author and creator of the documents should be held liable.

6. It is next contended that no injury is caused to the person nor is there any dishonest intention made out and that in order to establish the intention to defraud, there must be some person not only deceived but injured. Injury is defined by Section 44, I.P.C. as denoting any harm whatever illegally caused to any person, in body, mind, reputation or property. The two essential elements to constitute the offence are that there must be deceit or intention to deceive; secondly actual or possible injury caused to some person or persons. In the present case the complainant is represented to be handsome young woman of 20 years, inheriting property worth about Rs. 30,000/- to Rs. 40,000/- and is eligible for a suitable marriage. The attitude of the petitioner indicates that he either wanted to coerce the complainant to consent to marry him, though he is already much married, or simply black-mail her for his own nefarious purposes. Not only was there any whisper about the settlement of the marriage, but the petitioner even after publication of the invitations, wanted persons to believe that marriage is an accomplished fact. He is reported to have told P.W. 7 that marriage had already taken place in Nanjangud without the knowledge of complainants mother. The fact of marriage is also got registered in the Congress Office by payment of a contribution. Such subsequent conduct can only point to the inference of his trying to show of as the married husband of the complainant, to assume control over her property. The damage and injury likely to be caused to an unmarried woman in such circumstances are indeed incalculable. Not only does she suffer in public estimation, but her position even in her own family circles would be one of shame, vexation and distress. It may not be improbable that she will be under a cloud with her near relatives and the impression that a proposed marriage with a close relative (for, the petitioner had married her elder sister once) has fallen through, may defeat the prospects of her securing a suitable partner in life and the damage that results thereby may be beyond repair. Such risk is undoubtedly rendered possible apart from mental anguish and harm to self-reputation. There is thus possible injury or risk of injury to the person, mind or reputation of the complainant by the publication of the false documents Exs. P-1 and P-2, which were intended to deceive others into a belief that they were genuine documents properly authorised. The intention to damage or injure the complainant may easily be gathered from the wilful use subsequently made by publication of the documents created. The evidence establishes beyond doubt that the petitioner has made a bold and deceitful experiment to trap a girl and force, without her consent, to marry him and also gain material profit for himself.In this view, there is no ground to disagree with the findings of the Courts below that the documents in question are forged instruments and fall within the definition of false documents under S. 464, I.P.C.

7. In the result, the petition stands dismissed and the petitioner will surrender to bail and undergo the unexpired sentence imposed. Petition dismissed. AIR 1954 MYSORE 121 (Vol. 41, C.N. 50) "Bommarasegowda v. Gundappa" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) Bommarasegowda, Plaintiff-Petitioner v. B.T. Gundappa, Defendant-Respondent. Civil Revn. Petn. No. 456 of 1953, D/- 8 -12 -1953, against order passed by Munsift, Seringapatam, D/- 23 -7 -1953. Mysore Court-fees Act (3 of 1900) (as amended by Act 18 of 1952), Sch.1, Art.1A - COURT-FEE - DEBT RELIEF - WORDS AND PHRASES - "Cognisable" suit of Small Cause nature filed as original suit - Court-fee payable. Debt Laws. Mysore Agriculturists Relief Act (18 of 1928), S.23. Words and Phrases - "Cognizable". Court-fees Act (7 of 1870), Sch.1, Art.2 (Mad.).

31 Mys LJ 147, Overruled. (Para 2) The word "cognisable" is not denned but cognizance is explained to mean jurisdiction or right to try and determine causes : "the right to take notice of and determine a cause." (Para 2) Where a suit of a small cause nature and of the value not exceeding Rs. 500 is filed" under the Mysore Agriculturists Relief Act, such suit is, under S. 23 of that Act, to be tried as an original suit and cannot be said to be cognizable in the Court of Small Causes as it has no jurisdiction to deal with it. In such a case, the Court-fee prescribed for original suit is to be paid and not the one prescribed for suits of Small Cause nature under Sch. I, Art. 1A. It is not the nature and quantum of claim but the court in which the suit is filed that is material : 31 Mys LJ 147, Overruled. (Para 3) Cases Referred : Courtwise Chronological Paras (A) 31 Mys LJ 147 3 (B) (V 20) AIR 1933 Mad 178 : 141 Ind Cas 533 3 S. Krishnappa, for Petitioner. Judgement This case has been referred to a Division Bench by my learned brother for decision of the court-fee payable in a suit triable by the Court of Small Causes, if the amount and nature of the claim are alone taken into account but which was sought to be and has been registered as an original suit. The suit is for recovery of Rs. 81-4-0 in respect of a loan and maintainable in the Small Cause Court, but for the defendant being alleged to be an agriculturist and the longer period of limitation provided for in the Mysore Agriculturists Relief Act for such a suit being availed of. Section 23 of the said Act states that every suit under the Act shall be tried as an original suit.

2. In view of act 18 of 1952 - The Mysore Court-fee Amendment Act - there is a difference in the court-fee payable in suits of Small Causes and Original Suits, the scale prescribed for the former being less under Article 1 (a). To have the benefit of this, the suit must be of the nature cognizable by Courts of Small Causes when the amount or value of the subject-matter does not exceed Rs. 500/-. The word "cognisable" is not defined but cognizance is explained in Law Lexicon of Ramanath Iyer to mean Jurisdiction or right to try and determine causes : "the right to take notice of and determine a cause". The suit toeing one filed under the Agriculturists Relief Act, and Section 23 being mandatory in requiring it to be tried as an original suit cannot be said to be cognizable in the Court of Small Causes as it has no jurisdiction to deal with it.

3. In support of the contention that only the Court fee prescribed for a suit of Small Cause nature is due the case in - 31 Mys LJ 147 (A) has been cited on behalf of the plaintiff. It is expressed in that case that for the application of the amended article what is material is the nature and quantum of the claim and not the Court in which the suit is to be filed. For this reference is made to - Secy, of State v. Ayyasami Chettlar. AIR 1933 Mad 178 (B), where the question was whether in a suit for two sums of Rs. 600/- and Rs. 400/- Court fee was to be paid separately on each or on the total amount. It was held that by virtue of S. 17 of the Court-fees Act, court-fee was to be separately assessed on each item and on this basis payment at the lower rate prescribed for Rs. 400/- was sufficient, since "the test in such cases is what is the amount that would be payable had separate plaints been filed for each of the several distinct claims, all of which the suit embraces." This is not a case of clubbing together or consolidating two or more claims but a single claim and the suit for enforcement of this cannot be a small cause for one purpose and original for another. When the procedure and incidents of an original suit not provided for in a small cause case are all applicable to the suit, the plaintiff cannot escape liability to pay the court-fee at the rate prescribed for an original suit. We are unable to agree with the view expressed in - 31 Mys LJ 147 (A) that a case such as this is governed by Art. (a), Court-fees Act.

4. The order of the lower Court directing payment at the rate prescribed for an original suit is correct. The petition is dismissed. No costs. Petition dismissed. AIR 1954 MYSORE 122 (Vol. 41, C.N. 51) "In re Rangiah" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND B. VASUDEVAMURTHY, J. ( Division Bench ) In re Rangiah, Accused-Appellant. Criminal Appeal No. 15 of 1953 with Criminal Revn. Case No. 13 of 1953, D/- 5 -10 -1953, against conviction and sentence passed by Principal S. J. Bangalore in Tumkur Sessions Case No. 9 of 52-53. Criminal P.C. (5 of 1898), S.423 and S.439 - APPEAL - REVISION - HIGH COURT - Power of High Court to alter acquittal into conviction. When the records of a criminal proceeding are brought to its notice by an appeal from a conviction the High Court can enhance the sentence in the exercise of its revisional jurisdiction under S. 439. In a proper case where it finds that there has been a miscarriage of justice and that the accused should really have been convicted of a more serious offence of which he had been charged and acquitted by the lower Court, the High Court can direct a retrial. But if it finds that there is no need at all to order a retrial, that the entire available evidence has been placed before it and that no useful purpose except further harassment to the accused and waste of public time will be caused by a retrial, the High Court can use their powers under Ss. 439 and 423 conjointly so as to do substantial justice. The limitations set upon the power of revision found in S. 439, are sufficient safeguards against any possible misuse of the combined powers. (Para 20) The argument that the accused has been acquitted and that some sacrosancy is attached to it cannot be upheld because the order of acquittal is by no means final. (Para 21) The provision that the State alone should be empowered to appeal against an acquittal is no doubt a very necessary safeguard. But if by some oversight or otherwise such an appeal is not filed which is more likely especially in cases where the lower Court convicts for a lesser offence and does not acquit the accused altogether the High Court can interfere. Of course such power of interference would be used only in extraordinary circumstances and in very serious cases or where some vital principle of law is involved or where on the facts found the lower court has applied the law wrongly and its decision amounts clearly to a perverse one. (Para 21) Held on the facts of the case that this was a clear case calling for interference and for altering the conviction under S. 323 to one under S. 304, Part II of the Penal Code. Case law reviewed. (Paras 20, 21, 22) Anno : Cr. P.C., S. 423, N. 17, (see also N. 19). 1949 Mitra : S. 423, P. 1249, N. "Find him guilty" and S. 439, P. 1353, N. 1219A, "Converting...... conviction" - See also N. 13 and 25a(a) to S. 439 in AIR Com. (Notes in AIR Com., exhaustive and analytical), Cr. P.C., S. 439, N. 13, (See also N. 25a(a)) 1949 Mitra : S. 423, P. 1249, N. "Find him guilty" and S. 439, P. 1358, N. 1219A, "Converting...... conviction" - See also N. 17 and 19 to S. 423 in AIR Com. (Notes in AIR Com. exhaustive and analytical). Cases Referred : Courtwise Chronological Paras (A) (VI) AIR 1914 Mad 258 : 57 Mad 119 : 15 Cri LJ 180 9, 10, 11, 12, 15 (B) (86) 9 All 134 : 1886 All WN 322 (FB) 9 (C) (V 40) AIR 1953 SC 131 : 1953 Cri LJ 668 (S) 9 (D) (V 14) AIR 1927 Mad 582 : 50 Mad 259 : 28 Cri LJ 397 10 (E) (V 9) AIR 1922 All 487 : 44 All 332 : 23 Cri LJ 202 10, 11, 12, 14 (F) (V 15) AIR 1928 PC 254 : 29 Cri LJ 828 (PC) 11, 14, 15, 18, 20 (G) (V 11) AIR 1924 Bom 456 : 26 Cri LJ 830 11 (H) (V 11) AIR 1924 Rang 93 : 25 Cri LJ 247 12, 15

(I) (04) 12 Pun Re Cr. 1904 13 (J) (V 13) AIR 1926 Rang 154 : 27 Cri LJ 1393 12 (K) (V 5) AIR 1918 All 65 : 20 Cri LJ 22 13, 14

(L) (V 21) AIR 1934 Oudh 200 : 35 Cri LJ 973 13 (M) (V 25) AIR 1938 Sind 202 : 40 Cri LJ 93 13 (N) (V 39) AIR 1952 All 369 : 1952 Cri LJ 751 (FB) 13, 14 (O) (V 24) AIR 1937 All 240 : 38 Cri LJ 521 14, 16, 20 (P) (V 31) AIR 1944 All 137 : 46 Cri LJ 38 (FB) 14 (Q) (V 37) AIR 1950 All 380 : 51 Cri LJ 1040 14, 16 (R) (V 28) AIR 1941 Lah 465 : 43 Cri LJ 235 (FB) 15, 16, 18 (S) (96) 23 Cal 975 15 (T) (V 38) AIR 1951 Pepsu 154 : 52 Cri LJ 1413 (FB) (U) (V 35) AIR 1948 Lah 74 : 49 Cri LJ 106 16

(V) (V 22) AIR 1935 PC 35 : 57 All 156 : 36 Cri LJ 482 (PC) 20 K.N. Srinivasan, for Appellant; The Advocate General, for Government. Judgement The appellant accused was tried by the Sessions Judge, Bangalore Division, for an offence under S. 302, I.P.C. but was convicted under S. 323, I.P.C. and sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 1000/- and in default to undergo rigorous imprisonment for a further period of three months. The case against him was that on the evening of 8th June 1952 he committed murder of one Rajagopal by squeezing his testicles near a mango garden beyond the limits of the Tumkur town. Of the three assessors, two were of the opinion that the accused was guilty while the third was doubtful.

2. The learned Sessions Judge fully believed the occurrence. He held that the accused had waylaid the deceased Rajagopal and had assaulted him and used criminal force against him by squeezing his testicles as a result of which he died in His house a few hours later. He found that the motive which prompted the accused to assault Rajagopal was clearly established by evidence. The deceased had assaulted the accuseds son a few days prior to the date of occurrence in connection with some difference in the matter of supply of stones by the latter. There is no evidence that the accuseds son was in any way seriously hurt by the deceased and it appears to have been one of those incidents which would ordinarily have been ignored. P.W. 8, Nemiraj, P.W. 11, Thopiah, P.W. 12 Chinnappa Naidu, P.W. 18 Raghunath, P.W. 22 Kariya were the eye-witnesses to the assault. The assault was apparently comparatively slight, but the accused appears to have become unduly incensed at it and owed vengeance against the deceased. He told P.W. 12, father of the deceased, that he would assault and finish his son as Rajagopal had assaulted his son. The accused expressed a similar intention before P.W. 21 who advised him not to do so and to have the matter settled by a panchayati. Subsequently P.W. 12 went to the Swamiji of Siddaganga Mutt and sought his intervention. P.W. 25 Mr. K. Shivananjiah has spoken about this. As directed by the Swamiji he sent for the accused, but the accused did not go to him. P.W. 9 Rashid, a jutka driver, was asked by P.W. 12 to warn the deceased against going to Tumkur as the accused was waiting to assault him. P.W. 12 approached the accused and begged him not to hurt his son but the entreaties apparently fell on deaf ears. The learned Counsel for the appellant did not seriously attempt to show that these facts were not true.

3. That the accused waylaid the deceased with a view to assault him and did so and squeezed his testicles has been conclusively established by clear and disinterested evidence of the eyewitnesses against whom nothing has been elicited. P.W. 13 Virupakshiah, P.W. 14, Shivanna, P.W. 15 Rudradevaru, P.W. 16 Sadasivaradhya and P.W. 17 Narasimhamurthy are young students who had recently passed the S. S. L. o. examination. They were returning from Siddaganga High School and on their way back they saw the deceased and the accused quarrelling. The accused caught the testicles of Rajagopal, squeezed and pulled them. Rajagopal cried out and moved slightly back. Then the accused lifted his hand to hit at the private parts of Rajagopal. P. Ws. 13, 14 and 15 then went and stood between them and pacified them and by that time Narasimhamurthy, Sadasivaradhya and Gopaliah also came there running hearing the cries of the deceased. When they went and stood between the accused and the deceased the accused told Rajagopal........ Then the accused went away towards his house and Rajagopal and the witnesses went towards the Mutt. Rajagopal was limping, clenching his teeth and Narasimhamurthy asked him why the accused had assaulted him. He" said that he had assaulted the accuseds son near the quarry and out of that ill-will the accused had assaulted him. When the deceased returned to his house he was very much exhausted and P.W. 12, his father, questioned him what the matter was. He said that the accused had assaulted him and squeezed his testicles near Krishna Iyengar garden and that he had much pain. He was then put to bed and the Doctor, P.W. 1 was sent for. He saw the deceased, examined his testicles and gave him a coramine injection. P. Ws. 12, 18, 19 the deceaseds wife, and P.W. 1 Doctor have deposed in respect of these matters. P.W. 1 advised fomentation with hot water bottle, but a hot water bottle was not available and some fomentation was given with The deceased was then attempted to be removed to the Tumkur hospital in a jutka belonging to P.W. 8, but by the time he reached hospital he was dead as spoken to by P.W. 1 the doctor who examined him. P.W. 3 conducted the post mortem examination and discovered internal injuries in the testicles and he is of the opinion that death was due to shock as a result of internal injuries to the testicles.

4. It is contended by the learned counsel for the appellant that there are some discrepancies in the evidence of the eye-witnesses P. Ws. 13 to 17 about the date on which they were given the S. S. L. C. cards and the date when they witnessed the incident. The learned Sessions Judge has discussed that portion of the evidence in detail. We have also been taken through it and we are in entire agreement with the learned Sessions Judge that those discrepancies are of a minor character and may be due to some confusion of dates or incidents. It is impossible to accept the argument of the learned counsel that all those witnesses, who are educated, young and thoroughly disinterested, would have made common cause to swear falsely about the incident of such an extraordinary character, and against the accused to whom they bear absolutely no bias or grudge, nor is it shown that they were in any way interested either in the deceased or P.W. 12 to make them depose falsely.

5. It was next urged for the appellant that hot might have been applied to the testicles of the deceased and that it might have brought; about his death. It has to be observed that at the post mortem no external marks of any such fomentation were discovered by the doctor. It is not even suggested to the doctor that there were any such injuries which one would have expected if very hot poultice was applied.

6. On the above evidence one would ordinarily have expected the learned Sessions Judge to have found the accused guilty of an offence under Section 302, I.P.C. It is clear from the evidence that the accused, had threatened to do away with the deceased and that he bided his opportunity and deliberately assaulted him on a vital part of his body and was probably prevented from killing him on the spot by the corning on the scene of the eye witnesses. The learned Sessions Judge, however, thought that the accused might not have intended to kill the deceased, and for coming to that conclusion he has relied on a statement of the Doctor P.W. 1 that fomentation, if any, with much heated to the testicles might seriously complicate matters, and of P.W. 3, that generally squeezing of testicles might not result in death and that he himself had not come across any case where people had died as a result of the squeezing of testicles though in re-examination he, however, added that in the present case the injury caused to Bajagopal was sufficient to cause his death in the usual course of nature.

7. When the appeal came up for hearing Mr. Ramachandra Rao, learned counsel for the appellant, took us through the entire evidence and argued the case. We also heard the learned Advocate-General and we ordered notice to issue under S. 439, Criminal P.C. as to why the sentence should not be enhanced and posted the case to another day. On that day the appeal was again further argued by Mr. Ramachandra Rao and he has again tried to show that the accused was innocent of any offence and that the prosecution evidence does not support the conviction. He also urged that the finding of the learned Sessions Judge that the accused is guilty of an offence under S. 323 is correct and that he is not guilty of any more serious offence including that under S. 302 with which he was charged. We are inclined, in the circumstances of the case though with some hesitation, to accept the learned counsels argument that the accused may not have intended to kill the deceased and that he merely threatened to do so without intending it. But nevertheless we think the case would clearly fall under S. 304, Part II, I.P.C. This matter has been numbered as Criminal Revn. Case No. 13 of 1953.

8. Mr. Ramachandra Rao has next urged that this Court cannot enhance the sentence in this case, even if it finds that the appellant has committed a more serious offence, as the learned Sessions Judge has already awarded maximum sentence of one years rigorous imprisonment. His contention is that under S. 439, Criminal P.C. this Court has no power to convert an acquittal into a conviction, and as the learned Sessions Judge has in effect and substance, though he has not said so expressly, acquitted the accused of the offence under S. 302 this Court cannot in an appeal by the appellant convict him of that offence in order to enhance the sentence. The question whether in the circumstances like the present the High Court has power to alter the finding and to convict the accused of the more serious offence with which he was originally charged and tried or any other offence which the facts as found disclose is not free from doubt and has been decided differently by some other High Courts though in Mysore the question has not arisen.

9. The Madras High Court in - K. Bali Reddy v. Emperor, AIR 1914 Mad 258 (A) had a case before them of five accused persons who were charged with rioting armed with deadly weapons and with having murdered a man. The Sessions Judge found the accused not guilty of those offences but of simple rioting and of culpable-homicide not amounting to murder under Ss. 147 and 304, I.P.C. The accused appealed against their sentence to the High Court and the High Court as a Court of Revision issued notice, altered the finding to one of murder punishable under S. 302 and awarded enhanced sentences. Their Lordships on a reading of Ss. 423 and 439, Criminal P.C. held that S. 423 (b) gives power to the High Court, when hearing an appeal against a conviction, to alter the finding and S. 439 gives power to enhance the sentence so as to make it appropriate to the altered finding. They observed that S. 439, Sub-S. (4), which enacts that "nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction" must be construed as referring to cases where the trial has ended in a complete acquittal; any other construction would be inconsistent with the power to "alter the finding" given to the Court as a Court of Revision by virtue of it power to exercise the power conferred on a Court of Appeal by S. 423, Cl. (b). They followed two earlier decisions of their own Court and distinguished the case reported in - "Queen Empress v. Balwant, 9 All 134 (FB) (B) on the ground that in that case there had been a "complete acquittal" and that there had been no appeal before the High. Court against a conviction so as to make S. 423 (b) read with S. 439 applicable and the effect of that provision had not been considered. They also observed that the acquittal by the lower Courts in respect of the offence under S. 302 could not be relied on as a bar under S. 403, Criminal P.C. as the appeal was not a second trial but only a continuation of the trial in the Sessions case. See in this connection a recent case in - Kalawati v. State of Himachal Pradesh, AIR 1953 SC 131 at p. 132 (C) where a similar view has been taken in respect of an appeal against an acquittal while dealing with Art. 20 (2) of the Constitution.

10. In - Subba Chukli, In re, AIR 1927 Mad 582 (D), a Division Bench of the same High Court which had only an application for revision before it held that it had no power in revision under S. 439 to convert a conviction under S. 304(2) into one under S. 302 with which the accused had been charged and not convicted. They, however, set aside the judgment and directed a fresh trial. They dissented from - AIR 1914 Mad 258 (A) and thought that the correct view had been enunciated in - Emperor v. Sheo Darshan Singh, AIR 1922 All 487 (E). They thought that a complete or partial acquittal could not be the ground for the application of S. 439. That case was also one under S. 439 only and there was no room for the application of S. 423(1)(b).

11. AIR 1914 Mad 258 (A) came up for discussion in - Kishan Singh v. Emperor, AIR 1928 PC 254 (F). That was a case purely of a revision. The accused who had been charged with the offence of murder under S. 302 had been convicted by the Sessions Judge under S. 304 and sentenced to a term of imprisonment. The local Government did not appeal but applied to the High Court in revision. The High Court convicted the appellant of murder and sentenced him to death. On appeal under special leave their Lordships of the Privy Council held that in view of the provision contained in S. 439, Sub-S. (4) that nothing in that section shall be deemed to authorise a High Court to convert a finding of acquittal Into one of conviction - the learned Judges of the High Court, who were dealing only with the application for revision, had no jurisdiction to convert the learned trial Judges finding of acquittal on the charge of murder into one of conviction of murder. Referring to - AIR 1914 Mad 258 (A) which was pressed on their attention, their Lordships pointed out that the facts of that case were different from the facts of the case before them, inasmuch as in the Madras case the accused had appealed to the High Court against their conviction and the High Court as a Court of Revision had given them notice to show cause why they should not be convicted of murder and sentenced for that offence. They also made an observation which has given rise to some controversy. They said : "It is not necessary on the present occasion for their Lordships to express any opinion whether the facts of the cited case would justify the decision at which the learned Judges arrived. Their Lordships, however, do think it necessary to say that if the learned Judges of the High Court of Madras intended to hold that the prohibition in Sec. 439, Sub-S. (4), refers only to a case where the trial has ended in a complete acquittal of the accused in respect of all charges or offences, and not to a case such as the present, where the accused has been acquitted of the charge of murder, but convicted of the minor offence of culpable homicide not amounting to murder, their Lordships are unable to agree with that part of their decision." Those observations were, we think, necessary to be made even in order to lay down as the Privy Council did that while exercising powers of revision alone under S. 439 the High Court could not convert an acquittal into a conviction irrespective of whether in the trial the accused had been partly convicted of some other offence, i.e., he was not completely acquitted. Their Lordships referred with approval to - AIR 1923 All 487 (E) and - Emperor v. Shivaputraya Durdandaya, AIR 1924 Bom 456 (G), which were both cases where the High Court was acting only as a Court of Revision under S. 439, and there were no appeals before them under S. 423(1)(b) to attract the powers given under that section conjointly with those under S. 439.

12. In - On Shwe v. Emperor, AIR 1924 Rang 93 (H) the Rangoon High Court held that where a man charged with murder has been convicted of a minor offence, the High Court can while acting both as a Court of Appeal and a Court of revision convict him of murder and sentence him to death but if it is acting solely as a Court of revision it cannot convert the acquittal of murder into conviction. The learned Judges relied on - AIR 1914 Mad 258 (A) and a case decided by the Punjab Chief Court in - Bhola v. King Emperor, 12 Pun Re Cr 1904 p. 34 (I). They referred to - AIR 1922 All 487 (E) which they said was "not parallel" since there the prisoner had not appealed and the High Court was merely acting under s. 439, In - Emperor v. Kan Thein, AIR 1926 Rang 154 (J) the learned Judges referred to - AIR 1924 Rang 93 (H) and explained how they could not interfere in revision and convert an acquittal into a conviction as they had previously dismissed summarily an appeal by the convict.

13. The Allahabad High Court had on an earlier occasion while deciding - Dulli v. Emperor, AIR 1918 All 65 (K) taken the view that it was open to a High Court to convict an appellant who had appealed against his conviction for a minor offence under S. 325, of a more serious offence under S. 392 with which he had been charged. They observed "It has repeatedly been held by various High Courts that an appeal against the conviction opens out the entire case, and that the appellate Court being empowered to alter the finding under S. 423(1)(b) may record a conviction in respect of an offence of which the trial Court has found the accused not guilty." Their Lordships recognized fully that under S.423(1)(b) by itself, the finding could only be altered without enhancement of the sentence. The power to order enhancement was, however, given to the High Court under s. 439 and they felt no doubt that the High Court had authority to record a conviction under S. 302, I.P.C. and pass an appropriate sentence. Their Lordships eventually dismissed the appeal, altered the conviction to one tinder S. 302 and enhanced the sentence to transportation for life. Dulli v. Emperor (K) has been followed in - Lakhan Singh v. Emperor, AIR 1934 Oudh 200 (L) by Nanavati, J. In - Jado Rahim v. Emperor, AIR 1938 Sind 202 (M), which is quoted with approval by Waliullah, J. in - Taj Khan v. Rex, AIB 1952 AU 389 (N). David, C.J. and Lobo, J. considered that the better view to take was that Cl. (b) of S. 423(1) does not apply to cases of acquittal, that it is only under Cl. (a) of S. 423(1) that an appellate Court could convert an acquittal into a conviction and that such powers could only be exercised if there was an appeal by the Government against the acquittal and not otherwise. They gave as a reason for their conclusion that the exercise conjointly of the powers of the appellate Court under S. 423 and of revision under S. 439 could not depend upon a chance circumstance that in a case where the accused has been convicted of a lesser offence he has been given already the maximum sentence therefor. With great respect to the learned Judges who decided that case it is not easy to follow that reasoning. The revisional powers of the High Court can be exercised in the case of any proceeding the record of which has been called for by itself or which has been reported for order or which otherwise comes to its knowledge. The circumstance that the illegality found or injustice occasioned by a decision of a lower Court comes to the notice of the High Court during the course of their hearing of an appeal by one who has been convicted of a minor offence and been awarded the maximum sentence therefore cannot be more in the nature of a chance than the discovery of the same as a result of the perusal of the periodical reports or statements of cases decided by the Sessions Judges received by the High Court or on an appeal by the Government over which occurrences also the accused cannot claim any control.

14. In - Sardaprasad v. Emperor, AIR 1937 All 240 (O), a person was accused of two offences but the trial Magistrate acquitted him of one and convicted him of the other. On appeal the Sessions Judge reversed the findings and convicted the appellant of the offence of which he had been acquitted. On a revision petition by the accused (and with no appeal by the Government against the acquittal. Sulaiman, C.J. and Bennet, J. held that the appellate Courts order was wrong and that he could not so alter the findings. They did not follow - AIR 1918 All 65 (K) as the subsequent case of - AIR 1922 All 487 (E) had been approved by the Privy Council in - AIR 1928 PC 254 (F). There can be no doubt that the Sessions Judge who had no revisional powers under S. 439 could not act in the manner he did, his duty being to report the matter to the High Court which under its revisional powers could not order a retrial in that case. AIR 1922 All 487 (E) was, as already noticed, also a case of the exercise by the High Court of revisional powers only. In - Zamir Qasim v. Emperor, AIR 1944 All 137 (PB) (P), a case heard by a Full Bench of five Judges, Iqbal Ahmad, C.J., Ismail and Dar, JJ. held that an appellate Court is subject to other provisions contained in the Criminal Procedure Code, empowered under S. 423 (1)(b)(2) to alter a finding of acquittal into one of conviction even though no appeal has been preferred by the Provincial Government. This power is, however, subject to the condition that the appellate Court cannot enhance the sentence imposed by the trial Court. But Mulia and Hamilton, JJ. held that a Court of appeal is not em1 powered under S. 423(1)(b)(2) to alter a finding of acquittal into one of conviction; the same could be done only on an appeal under S. 417. Iqbal Ahmad, C.J. also observed that even in the absence of an appeal under S. 417 it is open to the High Court under S, 439 to set aside an acquittal and order a retrial. It was, he said "manifest that the mere omission of the Provincial Government to appeal against an order of acquittal does not, in all cases, attach finality to that order, and such order is liable to be set aside by the High Court in the exercise of its revisional jurisdiction. The contention that the omission to file an appeal under Sec. 417 renders an order of acquittal immune from attack is, therefore, not sustainable." Ismail, J. also thought similarly. He pointed out "There is no doubt that some sanctity should be attached to an order of acquittal but it cannot be disputed that it is liable to be set aside in more than one way (e.g.) on an appeal under S. 417 or in revision under S. 439 (by ordering a retrial)." In that case no question of the combined use of S. 423(1)(b) and S. 439 arose and Hamilton, J. expressly said it was unnecessary for the purposes of the reference to express any opinion in that matter. In - Mahammed Shariff v. Res, AIR 1950 All 330 (Q), Agarwala and Bhargava, JJ. held that where the accused is found not guilty and acquitted of the offence punishable under S. 302, Penal Code, but is found guilty under S. 304, the High Court as a Court of appeal has no power to convert the finding of acquittal into one of conviction under S. 302 and to enhance the sentence imposed upon him. They said they could have set aside the acquittal and ordered a retrial but did not feel called upon to do so in that case, but were content with enhancing the sentence. In - AIR 1952 All 369 (FB) (N), Wall Ulla and Agarwala, JJ. held that it was not open to the High Court in an appeal from conviction under S. 323, Penal Code, to alter the conviction of the appellant to one under S. 302, Penal Code, with which he had been charged, and in exercise of its revisional jurisdiction after having previously given notice for enhancement of the sentence, to enhance the sentence of imprisonment to one of death or transportation for life. Harish Chandra, J. disagreed. He was of the opinion that S. 439(4) did not in any way fetter the discretion of the High Court to convert a finding of acquittal into one of conviction while dealing with an appeal by a convict. The qualification that a finding can be altered only as long as the sentence is not enhanced does not appear to be germane to the interpretation as the reversal or alteration of the finding cannot depend on the sentence which is to be awarded as the result of the finding, which again depends on the facts and circumstances of the case which go to constitute the offence either charged or found by the trial Court or by the appellate Court. The provision that the appellate Court must retain the sentence may be merely a limitation on the power of the subordinate appellate Courts in the interests of accused person only, the High Court acting under S. 439 being given the power to enhance sentence in proper cases.

15. The Lahore High Court in - Bawa Singh Sawan Singh v. Emperor, AIR 1941 Lah 465 (R) (decided by a Full Bench of three Judges) unanimously held that it is open to a High Court hearing an appeal from a conviction by a convict who had been charged, as in this case, under S, 302, I.P.C., but convicted under S. 304 (part I) to alter the conviction from one under the latter section to under the former and then in the exercise of the powers conferred on the High Court under S. 439(1), Criminal P.C., to enhance the sentence to one of death. In the course of their decision they referred to - AIR 1928 PC 254 (F). They thought that the general trend of judicial authority in India up to the date of that decision was to the effect that the High Courts had such a power (Vide - AIR 1914 Mad 258 (A); - AIR 1924 Bang 93 (H) and - Queen Empress v. Jabanulla, 23 Cal 975 (S)). They observed that their Lordships in - AIR 1928 PC 254 (F) had only held that under S. 439 the High Court in revision could not convert a finding of acquittal into one of conviction; they had however expressly left the point open whether while exercising appellate jurisdiction they could do so by reason of the combined operation of Ss. 423 and 439. They had merely said that the decision in - AIR 1914 Mad 258 (A), which was pressed on their attention might or might not be correct, while pointing out that a portion of the reason of that ruling was not correct in that cl. (4) of S. 439 applied both to partial and complete acquittal.

16. In - Fauja Singh v. The State, AIR 1951 Pepsu 154 (T), the same question came up before a Full Bench of that Court. Teja Singh, C.J. with whom Ram Passey, J. agreed, held that "in an appeal by a convict and without an appeal by the State Government, on the findings of fact at which it arrives in appeal, the High Court can alter the finding under S. 423(1)(b)(2) to any other finding it considers proper subject to the proviso that as regards the alteration of the finding under S. 423(1)(b)(2) the power of the High Court as the Court of Appeal is subject generally to other provisions of the Criminal Procedure Code." Gurnam Singh, J. who dissented from the majority was of the view that : "In an appeal by a convict and without an appeal by the State Government on the findings of fact at which it arrives in appeal, the High Court can alter the finding under S. 423(1)(b)(2) to any other finding it considers proper subject to the limitation prescribed in sections for joinder of charges. But in no case a finding of acquittal can be converted into conviction by the appellate Court by acting under S. 423(1)(b)(2)." And the majority of the Full Bench further held that "after altering the finding under S. 423(1)(b)(2), the High Court can enhance the sentence under S. 439 to any sentence it considers suitable in spite of the fact that S. 423(1)(b)(2) enjoins that in case of alteration of finding, the sentence cannot be enhanced by the appellate court in the appeal by the convict." The majority quoted with approval the decisions of the Allahabad High Court reported in - AIR 1937 All 240 (O) and - AIR 1941 Lah 465 (FB) (R) and - Ranjha v. Emperor, AIR 1948 Lah 74 (U). They did not choose to follow the later decision of the Allahabad High Court in - AIR 1950 All 330 (Q).

17. This difference of opinion has risen as a result of the interpretation placed on the words "reverse" and "alter" in S. 423(1)(a) and (b), the limitation in cl. (1)(b) of that section that while the finding may be "altered" the sentence may not be enhanced, and the express prohibition contained in S. 439(4) that in revision an acquittal cannot be converted into a conviction. It may be that in S. 423(1)(a) while using the word "reverse" the legislature had in mind the case of an order of "complete" acquittal in the sense that the accused was found innocent or not guilty of any offence of any kind at all when on an appeal therefrom by the Government the acquittal order would have to be reversed, while in S. 423(1)(b) they used the word "alter" to deal with a case where the accused was found guilty of one offence rather than of another with which he was or could have been charged or found guilty subject of course to the further limitations contained in that section. In the latter case the appellate Court could alter the finding so as to fix, on the facts found either itself or by the trial Court, the exact offence in law of which the accused could be convicted. The limitation on that power is that the appellate Court acting under S. 423(1)(b) cannot enhance the sentence. That power was given to the High Court alone under S. 439. The High Court could exercise that power either on its own motion or on some application by a party, aggrieved and who could not have appealed from the decision of the Court below, or on a report from the Sessions Judge. But even the High Court sitting in revision only cannot convert a finding of acquittal into one of conviction and can only set aside the acquittal and order a retrial if it finds that the same is necessary in the interests of justice.

18. In - AIR 1928 PC 254 (F), their Lordships merely decided that the High Court while exercising revisional powers under S. 439 could not set aside an acquittal. Their observation to the effect that no difference can be made between a partial or complete acquittal while applying this rule, does not militate against the meaning and interpretation suggested above and which has also found favour with the learned Chief Justice in - AIR 1941 Lah 465 (FB) (R).

19. Apart from this interpretation when we come to examine the various arguments against the use of such combined powers by the High Court we think that such use is not only not prohibited but open to no real objection either in law or on any ground of public policy or principle of criminal jurisprudence. In some of the cases cited above the learned Judges have treated the words reverse and alter either as meaning much the same, or as substantially different, or the word "alter" as merely a less radical expression than the word "reverse" and meaning "change in form without changing the underlying character of the thing to be changed", conviction under one section in place of another being considered no more than a change in form. It is difficult to reconcile the various constructions placed on the use of those words in S. 423, Criminal P.C.

20. The High, Court can enhance the sentence in the exercise of its revisional jurisdiction under S. 439 when the records of a criminal proceeding are brought to its notice by an appeal from a conviction; see - Chunbidya v. Emperor, AIR 1935 PC-35 (V). That the High Court cannot without an appeal before it by either the Government or the convict in exercise of its revisional powers set aside an acquittal and pass an enhanced sentence must, now be taken as well established; see - AIR 1923 PC 254 (F). That in a proper case where the High Court finds, while hearing an appeal from a! convict that there has been a miscarriage of justice and that the accused should really have been convicted of a more serious offence of which he had been charged and acquitted by the lower Court, the High Court can direct a retrial cannot also be disputed; vide - AIR 1937 All 240 (O). Under the same circumstances if the High Court finds that there is no need at all to order a retrial, that the entire available evidence has been placed before the Court and that no useful purpose except further harassment to the accused and. waste of public time will be caused by a retrial and, as in this case, even the learned counsel for the accused does not ask for such a retrial, it is difficult to see why the High Court cannot use their powers under Ss. 439 and 423 conjointly so as to do substantial justice for which the Courts exist. The limitation set upon the power of revision found in S. 439; that no order shall be made to the prejudice of the accused unless he has had a full opportunity of being heard either personally or by a Pleader in his own defence, that no greater sentence shall be awarded than that prescribed under that section, that where an appeal lies from a conviction and sentence and no appeal has been brought, no proceedings by way of revision could be entertained at the instance of a party who could have appealed, that the convicted person to whom a notice has been given to show cause against the proposed enhancement of sentence shall while doing so be entitled to show that his conviction itself is bad, and that wholesome rule laid down for their own guidance by all the High Courts and the Privy Council that the Revisional Court may not ordinarily interfere with findings of fact and even on a question of sentence very rarely at the instance of a private party are all sufficient safeguards against any possible misuse of the combined powers.

21. In the absence of such power the High Court would find itself in rather an unenviable and anamolous position of being unable to interfere where clear illegality or injustice has been committed. It is possible to lay too much stress on the argument that the accused has been acquitted and that some sacrosanctity attached to it. The order of acquittal is by no means final. It is open to appeal by the local Government and according to the ruling of the Supreme Court and our Court, the appellate Court can in proper cases practically re-hear the matter and evaluate the evidence. It can be set aside in revision and a retrial ordered. The accused has an opportunity of defending that order in the High Court when he receives notice and in proper cases there is no doubt that if it is shown that a retrial is necessary it will be readily granted by the High Court. The provision that the State alone should be empowered to appeal against an acquittal is no doubt a very necessary safeguard and they are expected to use that power very sparingly and in really deserving cases. But if by some oversight or otherwise such an appeal is not filed which is more likely especially in cases where the lower Court convicts for a lesser offence and does not acquit the accused altogether, we think we will be unduly denying to the High Court the undoubted powers and unquestionable jurisdiction it has to set right a clear and serious wrong if we say it cannot interfere. Of course such power would be used only in extraordinary circumstances and in very serious cases or where some very vital principle of law is involved or where on the facts found the lower Court has applied the law wrongly and its decision amounts clearly to a perverse one bearing in mind that the accused has been found innocent of that charge by a competent Court and in the opinion of the Government it is not in fit case to appeal.

22. In our opinion, this is a clear case calling for our interference. We, therefore, alter the conviction of the accused under S. 323 and convict him for an offence under S. 304, Part II, I. P.C. The accused who is described in the evidence as a Pailwan or a Wrestler deliberately lay in wait for days and in spite of entreaties by the deceaseds old father assaulted him in a particularly cruel and sadistic manner by which the deceased who was a young man must have suffered excruciating agony. At the trial and even subsequently he has merely denied the offence and has shown neither regret nor contrition. But nevertheless we do not wish to be too severe. In lieu of the sentence which has now been passed against him by the Sessions Judge we sentence him to rigorous imprisonment for 5 (five) years. The accused will surrender to his bail and serve out the sentence. Order accordingly. AIR 1954 MYSORE 128 (Vol. 41, C.N. 52) "Deviah v. Karigowda" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) C.D. Deviah and another, Appellants v. Karigowda, Respondent. Regular Appeal No. 74 of 1949-50, D/- 2 -2 -1953, against decree of Addl. Sub. J., Mandya, in O. S. No. 4 of 46-47. (A) HINDU LAW - PARTITION - Hindu Law - Partition - Partial partition. In a suit for a declaration that the plaintiff was entitled to a share in the properties and for partition and possession of the same, the burden is heavy on defendant to prove that there had been a partial partition and that the plaintiff had taken his share and gone out of the family, the ordinary presumption under Hindu Law being that a Hindu family is joint. Where, therefore, the document regarding partial partition was not genuine, the oral evidence also was exceedingly thin and there was no provision for the maintenance of the mother, it could not be held that the plaintiff had become divided. (Paras 1, 4) (B) HINDU LAW - PARTITION - Hindu Law - Partition - Shares. If as a result of prior partition one of the branches could be treated differently from the other while allotting shares, the branch or the member of the branch which has acquired the shares of the other branches should be given the benefit of such accretion particularly when it is found that the acquisition was made for the purpose and with the clear and unequivocal intention of holding the same separately and as property in which the plaintiffs branch should not share : Case law discussed. (Para 15) (C) HINDU LAW - Hindu Law - Alienation - Coparceners. There can be no objection in principle why a particular item of property should not be sold by all or some of the other coparceners in favour of one of them if they can do so to a stranger. (Para 16) Cases Referred : Courtwise Chronological Paras (A) (V 17) AIR 1930 Mad 51 : 53 Mad 188 11, 14 (B) (78) 3 Bom 54 11 (C) (V 32) AIR 1945 Mad 407 : 1945-2 Mad LJ 17 11, 13 (D) 50 Mys MCR 177 11 (E) (V 23) AIR 1936 PC 264 : ILR (1937) Mad 1 (PC) 12, 13 (F) (V 30) AIR 1943 Bom 397 : 45 Bom LR 773 12, 13 (G) (V 32) AIR 1945 Mad 142 : ILR (1945) Mad 610 (FB) 12, 13 (H) (07) 9 Bom LR 595 : 17 Mad LJ 184 (PC) 12

(I) (V 33) AIR 1948 Mad 353 : ILR (1946) Mad 599 12 (J) (02) 25 Mad 690 (FB) 13 (K) (V 39) AIR 1952 Mad 419 : ILR (1952) Mad 835 (FB) 13

(L) (31) 10 Mys LJ 49 (FB) 15 (M) (82) 5 Mad 362 15 (N) (V 16) AIR 1929 Mad 865 : 57 Mad LJ 685 (FB) 15 (O) (V 2) AIR 1915 Bom 255 : 39 Bom 734 15 (P) (66-67) 11 Moo Ind App 75 : 8 WR 1 (PC) 15 Mirle N. Lakshmtnaranappa, for Appellants; M.A. Gopalaswamy Iyengar, for Respondent. Judgement The plaintiff is the adoptive son of one Davegowda who had three younger brothers Halligowda, the natural father of the plaintiff, Annegowda and defendant 1 Karigowda. He died about 10 years before suit. Thereafter the plaintiff and his uncles were living together as members of a joint Hindu family. The family is said to have owned moveable and immoveable properties described in the schedule to the plaint. Halligowda and Annegowda are said to have gone away from the joint family recently and had no right, title and interest in the suit properties. Defendant 1 had refused to give a share to the plaintiff and the suit has been brought for a declaration that the plaintiff was entitled to 2/5 the share in the plaint schedule properties and for partition and possession of the same. Defendant 2 was later on added as a supplemental defendant and she is the adoptive mother of the plaintiff. She has joined the plaintiff in this appeal.

2. Defendant 1 pleaded that the plaintiff had been married at the family expense and over Rs. 2000/- had been spent for the same. Thereafter he wanted to take his share and trade and live independently. He, therefore, did not want a share in the immoveable properties and received Rs. 1500/- by way of cash and certain money bonds in March 1942 and went away from the family and thereby became completely divided. Subsequently, the plaintiffs natural father Halligowda and the other brother Annegowda had sold their shares to defendant 1 under registered deeds dated 29-6-1945. They had very shortly after set up the plaintiff to file a suit. The plaintiff was therefore not entitled to any share. The extent of the properties liable to division was also denied. Defendant 1 had also incurred debts amounting to Rs. 3000/- mainly for purchasing the shares of his brothers. Defendant 2 supported the plaintiff and also claimed a share.

3. The Subordinate Judge of Mandya, before whom the suit was filed, dismissed it. He held that the partition set up by defendant 1 in the year 1942 at which the plaintiff is said to have taken his share and gone out of the family was true. We have been taken through the entire evidence and we think that the judgment of the Court below cannot be supported.

4. The burden was heavy on defendant 1 to prove that there had been a partial partition in 1942 and that the plaintiff had taken his share and gone out of the family, the ordinary presumption under Hindu Law being that a Hindu family is joint. In his written statement defendant 1 merely stated that the partition between the plaintiff and the other members of the family was in March 1942. He gave no date of the same but in the course of the evidence in this case Ex. IV, a note book, and certain loose sheets Exs. V, VI and VII therefrom are relied upon in proof of that partition. Exhibit IV is a small pocket note book. Three sheets are said to have been cut out of that note book. In Exs. V and VI, two of those loose sheets, names of some persons who are said to be debtors of the family are given with the amount due by each. Exhibit VII concludes that by documents Rs. 1415/- and by way of cash Rs. 85/-, in all Rs. 1500/-, has been taken by the plaintiff who is said to have signed in English below it. The entries are dated 23-3-42. This book was produced not at the time of the written statement nor even at the time when documents were to be produced to Court, but after D. W. 1 was examined on 24-8-1948, i.e. more than two years after the plaintiffs application to sue in forma pauperis was registered as a suit. It is represented that even in the course of the proceedings relating to pauperism the exact date of the separation was not mentioned. The learned Judge has nevertheless believed this document. And we are inclined to think that his view is clearly not correct.

5. If really the plaintiff had signed such a document it is impossible to believe that defendant 1 would not have taken it into his possession but would have allowed it to be taken by D. W. 2, the Patel. It is also most unlikely that after the suit was filed in forma pauperis defendant 1 would not have got the note book from defendant 2 and put it before Court at the earliest opportunity. (After discussing the evidence of the witnesses their Lordships continued :) We must say we are rather surprised that the learned Subordinate Judge should have so easily believed this document as genuine in spite of these suspicious circumstances and glaring improbabilities attending on its execution and late production into Court. 6-7. Without the support of that document on the side of the defendant 1, oral evidence let in to prove the partial partition in 1942 is exceedingly thin. The bonds said to have been given to the plaintiff have not been admittedly endorsed over in his favour. They were pronotes it is said, and no other accounts relating to the debtors are produced. Exhibit XII is the deposition in the pauper miscellaneous case of one of the debtors who is now dead, and he says that no share was written on the pronote for Rs. 100/- he had executed and the pronote was returned to him and he has torn it off. Such evidence could easily be secured as neither the alleged debtor nor defendant 1 runs any risk of liability as the debt itself, may be imaginary. It is not at all likely that these 8 debts which have been given to the share of the plaintiff were all collected in one lump within a day or two. It must have taken sometime and one would have expected the original documents with the share of discharge on them to be produced. Defendant 1 would have stopped payment if really the plaintiff had not executed a release deed within 15 days as promised. Defendant 1 also says that the exact amount due on the documents were not then calculated but only the probable amounts were mentioned in Ex. IV which again is improbable.

8. No provision was apparently made for the maintenance or share of the adoptive mother at that partition. The plaintiff was just 21 or 22 years of age at that time, and there is a suggestion that he immediately took up some drama contracts. Defendant 1s case is that he wanted to do business and therefore wanted cash. D. W. 2 as well as defendant 1 say that they were all on friendly terms at that time. The two brothers of defendant 1 were still undivided and it would be surprising if neither defendant 1 nor those two brothers nor the Patel thought of making some provision for defendant 2s share or at least for her maintenance but left her to the tender mercies of her young adoptive son who was launching on some fresh business. Defendant 1 was doing money-lending business and it could not be said that he was not versed in business affairs and he could be expected to have taken a formal document of release or a sale of the plaintiffs rights which in fact he has done in the case of his two brothers.

9. It is strongly urged for defendant 1 that in Exs. II and III which are sale deeds executed in his favour by his brothers including the natural father of the plaintiff, a reference has been made to the separation of the plaintiff. But a reading of those documents discloses that those two brothers were apparently old and were not in a position or mood to fight defendant 1 and were willing to put in any recitals he pleased. They say that they could not look after any share of immoveable property and therefore wanted cash; they had no male issue while defendant 1 is said to have six sons who seem to be helping defendant 1 in the management of his family affairs. It appears as though defendant 1 was able to dictate to them as he does not appear to have paid them in cash even according to the recitals in those documents and it is represented that he has made only part payments. If so it may be that the balance has not been paid on account of the plaintiffs suit but the fact remains that defendant 1 was and is in a much stronger position than those brothers. Defendant 1 could easily have examined his brothers in the light of the recitals made in those documents and they might have given valuable evidence about the partition. It is urged by Mr. Gopalaswamy Iyengar, learned counsel for the respondent, that it "was the duty of the plaintiff to have done so; but in the light of the recitals in those documents that could not be expected of the plaintiff. We must, therefore, differ from the learned Subordinate Judge and hold that the plaintiff did not become divided from defendant 1 and the other members of the family in 1942 as pleaded by defendant 1 and that he is entitled to a share in the joint family properties.

10. The next question that falls for consideration is what is the share to which the plaintiff is entitled. Defendant 1 claims to have acquired their right, title and interest in all the family properties from his two other brothers under Exs. II and III. They are registered sale deeds dated 20-5-45 and 29-6-45 respectively, and for a consideration of Rs. 2000/- each the brothers have conveyed all their rights they had in his favour. It is not shown that they are nominal and sham documents and the plaintiff has admitted in tae plaint that they have now no longer any interest in the family properties. It is contended here for him that the full amount of consideration has not been paid by defendant 1 to the executants, that only a part of it has been paid before the Sub-Registrar and that no receipt or other references have been produced by defendant 1 for having paid them the rest. They have not, however, been examined and there is no evidence or even a plea that they have not received the full consideration; nor do they appear to have taken any action to recover the balance from defendant 1. Even if any balance of consideration is still due to them that is a matter which cannot affect the legal effect of Exs. II and III in the matter of conveying away their title. It is also in evidence that defendant 1 has borrowed Rs. 3000/- from D. W. 6 and has executed Exs. X and X-a, a pro-note and consideration receipt dated 12-6-45 in his favour. D. W. 6 has deposed that the amount was borrowed by defendant 1 for the purpose of purchasing lands from his two elder brothers. It has not been shown by the plaintiff that this transaction is not a true one nor has the plaintiff been able to show how that fairly large sum of consideration for Exs. II and III was found by defendant 1 or that the same was contributed from the family chest or from the sale or mortgage of any family properties. Section 6(1) of the Hindu Law Womens Rights Act provides that property acquired by a member of a joint Hindu family without material and direct aid from property belonging to the joint family shall be deemed to be the separate property of such members notwithstanding that at any time previous to or at the time of his acquiring the property such member may have been maintained or supported at the expense of the joint family. On the facts and circumstances of this case, there is no doubt that the plaintiff has entirely failed to show that the acquisitions under Exs. II and III were with the aid of any joint family property and it must be held that they are his self-acquisitions.

11. Mr. Lakshminaranappa, learned counsel for the appellant, has contended that no member of a joint Hindu family can acquire for himself by a purchase from any of his undivided coparceners any or all of their share in the joint family estate and that even if he purports to do so the same will enure to the benefit of all the other members of the family who may be remaining joint and undivided with him. It has been held in - Lakshumi Achi v. Narayanaswami Naicker, AIR 1930 Mad 51 (A) following - Balkrishna Trimbak v. Savitri Bai, 3 Bom 54 (B), that if one of the coparceners sells his share in some of the family properties, not to a stranger but to another coparcener, he becomes divided from the latter in respect of the said properties without any right of survivorship thereto, and at p. 53 it has been observed that if a member of an undivided family sells the whole of his share in some of the family properties or part of his share in such properties, but not in any other properties, it may be that he continues undivided with the other members in respect of the properties other than those in which the whole or part of his share has been transferred and that so far as the properties in which the whole or part of the members share is sold or concerned, he must be regarded as divided from the other members. In - 3 Bom 54 (B), it has been held that the effect of a Hindu son relinquishing for a sum of money his share in the property of his father, natural or adoptive, and agreeing not to claim it during or after his fathers lifetime, is to place him in the position of a separated son. It is not contended for the appellant that according to the Hindu Law as in force in Mysore one of the coparceners cannot alienate for value his interest in any specific item of joint family property, or even in all his joint family properties, in favour of a stranger; and we have not been shown any authority that he cannot do so in favour of another member of the coparcenary. On the other hand, in - Somu Achari v. Singara Achari, AIR 1945 Mad 407 at p. 409 (C), Somayya, J. has pointed out that there is nothing in the Hindu Law to prevent a member of a joint Hindu family from selling his share to another member. It may be that if he releases or relinquishes without consideration, or does so even for consideration, such rights under circumstances which would either expressly or by implication mean that he is doing so in favour of the joint family as a whole or if the consideration is found to have flowed from the family funds the benefit of such sale or release or relinquishment may enure to the benefit of the other members of the family excluding himself. But if as in the present case the conveyance is expressly in favour of one of the members of the family who has paid consideration for it under circumstances which would clearly make it his self-acquisition and he has purchased with the express intention of excluding any possible claims from the plaintiff, it is difficult to see how the other member of the family much less the plaintiff can also claim to benefit under that acquisition. It is not the plaintiffs case either that defendant 1 renounced or waives his rights in those purchases in favour of the family of himself and the plaintiff. A clear intention to waive such separate rights is required to be established and cannot be inferred even from acts which may have been done merely from kindness or affection or by mere physical mixing of the ancestral and self-acquired properties; see - 50 Mys HCR 177 (D).

12. In this connection Mr. Lakshminaranappa has relied on a case reported in - Venkatapathi Raju v. Venkatanarasimha Raju, AIR 1936 PC 264 (E). In that case it has been held that where a member of a Hindu joint family governed by the Mitakshara Law relinquished his interest in the family property, the renunciation merely extinguished the renouncing members interest in the family estate but did not affect the status of the remaining members quad the family properties and they continued to be coparceners as before. The only effect of such, renunciation was to reduce the number of persons to whom the shares would be allotted if and when a division of the status took place. A similar view has been expressed in - Mahalingayya Basappayya v. Sangayya Chennayya, AIR 1943 Bom 397 (F), where it has been held that when out of two joint brothers one of them renounced his interest, the question whether the two brothers really intended to separate depends not merely on the act of formal renunciation but from the intention as gathered from their conduct and that where a joint brother renounced his interest in the joint property, the person renouncing severs his connection with the family but such renunciation apart from extinguishing the interest of the renouncing member leaves the coparcenary itself intact. In - Subbanna v. Balasubba Reddi, AIR 1945 Mad 142 (FB) (G), also, relying on - AIR 1936 PC 264 (E) and - Anandrao v. Wasantrao, 9 Bom LR 595 (PC) (H), it has been laid down that a member of a joint Hindu family cannot give his interest in the family estate to one of the several coparceners if they remain joint in estate. In such circumstances, he can relinquish his interest but the relinquishment operates for the benefit of all other members. The decision in - Chinnathayi v. Kulasakarapandia Naicker, AIR 1946 Mad 353 (I) is to the same effect.

13. Mr. Lakshminaranappa has also tried to make a distinction between the case where there are only two coparceners and one of them makes an effective alienation in favour of another and the case where there are more than one coparcener, and has referred to - AIR 1945 Mad 407 (C) in this connection. The decisions in - AIR 1936 PC 264 (E), - AIR 1948 Mad 142 (G) and - AIR 1943 Bom 397 (F) are all cases of renunciations or gifts and not sales or releases for consideration. It is contended for the appellant that all alienations including gifts and renunciations must be treated alike and as there can be no gift or renunciation by one coparcener in favour of another there cannot also be such a sale for consideration. It is too late in the day to contend that at least in Mysore, Madras and Bombay where alienations by a coparcener for consideration have been upheld, that such alienations for value stand on the same footing as gifts or bequests. AIR 1945 Mad 407 (C), which has been referred to for the appellant, happens to be a case where there were only two coparceners and does not lay down any general rule that different considerations would apply if there were more than one coparcener; and it expressly recognizes the right of a coparcener to buy a share of another and that, by a deed, which though it was termed a "release", was for consideration and was held really to amount to a sale. The decision in - AIR 1943 Bom 397 (F) only means that a sole surviving coparcener in a joint Hindu family, in whose favour another brother had renounced his interest, would still be subject to certain rights and liabilities by virtue of his having been a member of such coparcenary. He has also urged that an alienation by a coparcener does not terminate the coparcenary where the property alienated is either the whole or only a part of his interest in the family property and that notwithstanding the alienation the alienor continues to be undivided with the other members of the family, with rights of survivorship between him and the other members of the family in respect of other properties of the family, has been laid down by Bhashyam Iyengar, J. so far back as in - Aiyyagari Venkataramayya v. Aiyyagari Ramayya, 25 Mad 690 (FB) at p. 717 (J), and still continues to be good law. See also - Peramanayyakam Pillai v. Sivaraman, AIR 1952 Mad 419 (FB) (K). That, however, does not solve the point now to be decided.

14. Mr. Lakshminaranappa represents that if a member of a Joint Hindu family is enabled to sell his share to another member, either in a particular properly or in all the joint family properties and such a purchaser can claim a larger share than the others by virtue of that sale, it will lead to confusion and difficulty in the matter of common enjoyment of the properties of the family as well as while allotting shares at the time of any future partition. As regards the first point, if a member of the coparcenary purchases the rights of another coparcener and the right he has purchased is to be treated as his self-acquisition as pointed out in - AIR 1930 Mad 51 (A), it is difficult to see how such a position is very much different from the ordinary case of a coparcener being allowed to have and possess and enjoy separate self-acquired property while still being a member of the joint family and having a common interest and enjoyment in other joint property. The mode in which such property will be enjoyed is a matter for the members of the joint family. It may even be open to the member who has acquired the share of the coparcener to later on waive his interest in it and bring into the family hotchpot; but so long as there is no prohibition against a member of a joint Hindu family owning separate property it is difficult to see any force in this argument. The right which every member has to separate himself even by a mere declaration and ask for his own share by a partition is always open to him as a solution for any grievance he may feel in the matter of enjoyment of the properties.

15. As regards any difficulty which may be met at the time of partition in allotting shares such situations are not unknown to Hindu Law. Sadashiva Rao v. Subba Rao, 10 Mys LJ 49 (FB) (L) is a case in point. There, in a Mitakshara joint Hindu family comprising several branches, a member of one branch alone had separated himself from the coparcenary taking away his share at a partition effected for the purpose. The other members continued to live in jointness as before. At a subsequent partition, among all the branches, it was held that deduction should be given to the share withdrawn by one member in the earlier partition in the share to be allotted to his branch, - Manjanatha v. Narayana, 5 Mad 362 (M) and - Narayana Sah v. Sankar Sah, AIR 1929 Mad 865 (N) being followed and - Pranjivandas Shivlal v. Ichharam Vijbhukhandas, AIR 1915 Bom 255 (O) being dissented from. It was observed that the rule that partition should be made rebus sic standibus as on the date of subsequent partition had no application to cases of partial partition among the branches. That was a case converse to the present as it dealt not with the enlargement of the share of one branch but its depletion by a share being carved out at an earlier partial partition. Rama Rao, J. in his order of reference to the Full Bench pointed out the difficulty now envisaged for the appellant. At page 55 he observed : "If the Madras rule should be accepted, it may be argued that an account will have to be maintained as to the persons who divided and the properties available and actually allotted at each succession for guidance in future partitions, which is obviously not in consonance with the general rule of Hindu Law of equality of shares per stirpes at the time when the coparceners seek a division. If on account of the particular motives or attitude of one or more members of a particular branch who desire to withdraw, there is room to apprehend prejudice to the interest of the other branches, relief is always open to claim a partition among all the members.........." These difficulties did not appeal to the Full Bench in - 10 Mys LJ 49 (L), which chose to follow - AIR 1929 Mad 865 (FB) (N). That latter case affirmed an earlier decision of the same Court in - 5 Mad 362 (MX. It was then urged that the case in - 5 Mad 362 (MX had. been wrongly decided because it went counter to the principle of Hindu Law, that no member or branch of an undivided family could be said to have a definite share until a partition was actually effected, a principle laid down in - Apoovier v. Ramasubba Aiyar, 11 Moo Ind App 75 at p. 79 (PC) (P); and that even as regards equality, it could not be secured by taking a previous division into account and that it was impracticable in execution. These objections did not find favour with the Full Bench of the Madras High Court. It was observed by Coutts-Trotter, C.J. that partial partitions themselves were not recognized in Hindu Law texts, and that once partial partition had been permitted, it was necessary on considerations of equity, that the branch concerned, one of whose members had taken away his share at such partial partition should be compelled to bring into account that portion of the family property which had gone to their share, or that the branch should be debited that fractional share that had been so taken away, at the ultimate reckoning. Wallace, J. also observed that equity demands that the alienor should make good to the joint family so far as he can the sacrifice he has made it suffer; hence the system of accounting and debiting against the coparcener had a sound foundation in equity and the principle was not different for a branch; that in such case "a mental though not a real ledger is maintained against the appropriating coparcener or branch even while the joint family remains joint." He therefore saw no difficulty in applying a rule of equity in the matter of such allotting of shares among the branches as he thought that any other principle would in the circumstances result in inequitable division unfair to the branches which had remained whole in the joint family. Ananthakrishna Iyer, J. observes at p. 880 that what the fractional share to which any branch would be entitled is, would depend on the circumstances that exist at the time of the partition. In the present case the plaintiff belongs to one branch while defendant 1 and his sons belong to another branch. The plaintiff has claimed division per stirpes as between the two branches. If as a result of prior partition one of the branches could be treated differently from the other while allotting shares, it is not easy to see why on the same equitable principle the branch or the member of the branch which has acquired the shares of the other branches should not be given the benefit of such accretion particularly when it is found, as in this case, that the acquisition was made for the purpose and with the clear and unequivocal intention of holding the same separately and as property in which the plaintiffs branch should not share.

16. There can be no objection in principle why a particular item of property should not be sold by all or some of the other coparceners in favour of one of them if they can do so to a stranger. The family owning a number of items of immoveable property may find it necessary to raise money by the sale of one of the items and we do not see why one of the members of the family who is in more affluent circumstances should not be able to buy the items for himself and make it his own self-acquisition. It may often times be much more advantageous to do so than to sell it to a stranger. To hold otherwise would be going contrary to the right of every member of the family to own and possess self-acquired property. To permit a stranger who may immediately sue for partition and possession and thereby disrupt the family compulsorily, to purchase the rights or share of a coparcener in one or more t items of the properties of the joint family, appears to be more risky and less advantageous to the family than being able to sell the same to one of the coparceners and would not expose the family to loss or depreciation in value of the joint family property.

17. The circumstances under which the sales under Exs. II and III in favour of defendant 1 have been effected clearly show that the intention of defendant 1 was to acquire those shares for himself and not for and on behalf of the family. We have already found that those rights he has purchased must be treated as his self-acquisitions. The result is that the plaintiff would be able to recover only one-fourth in the joint family properties and not 2/5ths as he has claimed. Out of this th defendant 2 would be entitled to her share which will be th of the same under S. 8, Cl. 2(a) of the Hindu Law Womans Rights Act; (see S. A. No. 443/51-52 recently decided by one of us).

18. The Court below has not considered the other points raised by defendant 1 regarding the nature and extent of properties liable to division and these will now have to be determined by the lower Court.

19. In the result we allow this appeal, set aside the judgment and decree of the Subordinate Judge. There will be a preliminary decree in favour of the plaintiff declaring that he is entitled to 3/16th share in the joint family properties, defendant 2 being entitled to 1/16th share in the same. As regards costs, as neither party has succeeded in full we think the parties may bear their own costs both here and in the Court below and we order accordingly. The Institution-fee due to Government will be payable by the plaintiff and will be recovered from his share. Order accordingly. AIR 1954 MYSORE 132 (Vol. 41, C.N. 53) "H.R. Snow v. P.C. Bose" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) H.R. Snow, Petitioner v. P.C. Bose, Respondent. House Rent Control Revn. Petn. No. 142 of 1952-53, D/- 12 -1 -1953, against order of Addl. Dist. J., Bangalore, D/- 22 -2 -1952. Mysore House Rent Control Order (1948), S.4 - HOUSES AND RENTS - ACCOMMODATION CONTROL - Houses and Rents - Discretion of Controller. Houses and Rents. Mysore House Rent and Accommodation Control Act (30 of 1951), S.4. The House Rent Controller has powers of discretion to reduce the rent agreed upon even where no application is filed within time; but the discretion must be used judicially, and it must only be in extraordinary cases of injustice and when failure to file application in time is shown to be due to unavoidable reasons as in cases in which delay is condoned under the Limitation Act, that the House Rent Controller might use his discretion in interfering with the agreement arrived at between the parties. (Para 6) J.L. DSilva, for Petitioner; F.M. Xavier, for Respondent. Judgement This is a revision petition against the order of the Additional District Judge, Civil Station, Bangalore, in H. R. C. Appeal No. 331 of 51-52 confirming the order of the House Rent Controller, Civil Station, Bangalore in R. C. 720/FR/51.

2. The tenant who is the respondent in this Court was the petitioner before the house Rent Controller. He filed a petition saying that originally he agreed to pay a rent of Rs. 125/- for the premises let out to him including a garage and a room. He went on paying this rent till 1-4-51, but later the landlord disputed that the amount paid was fixed only for the house and did not include the rent for the garage and the room. Thereon he consented to pay Rs. 130/- per month. He went on paying at the rate of Rs. 140/- till the end of December 1950. The rent was again enhanced to Rs. 140/- in January 1951 and an application was thereupon filed by him for fixation of fair rent on the 30th March 1951. The House Rent Controller has fixed the rent at Rs. 122-8-0 and this has been confirmed in appeal. The point for consideration is whether the orders of the Courts below are correct. Section 4 of the Mysore House Rent Control Order, 1948 was applicable to the case and so far as the wording of the main section is concerned there is no difference between the present House Rent Control Order and the previous one. According to S. 4 : "The Controller may, in any case, and shall, on the application of the tenant or landlord of a house, fix the fair rent for such house after holding such enquiry as the Controller thinks fit." It will be noticed that a distinction is made between cases where the Controller has discretion to fix a fair rent after holding an enquiry and cases where he is bound to do so as is clear by the use of the words "may" and "shall" in the Section.

3. When an application, which is tenable, is filed before a House Rent Controller, he is bound to fix the fair rent after holding an enquiry. Such applications in cases of enhancement of rent have to be filed within a period of three months from the date of the increase of rent. In other words it an application for fixation of fair rent when any enhancement of rent is made, is filed more than three months from the date the increased rent is demanded or paid, such an application is barred by time. Under the present Act it is enacted that whether there is enhancement of rent or not, an application for fixation of fair rent must be preferred within a period of three months from the date of enhancement of rent if there is any enhancement and in other cases within three months from the date of commencement of the tenancy. The result is that when an application is filed for fixation of fair rent either on the ground that the rent is excessive or on the ground that it has been enhanced and it is filed within time, the Court is bound to hold an enquiry and fix the fair rent. In other cases the Rent Controller is not bound to hold art enquiry and fix fair rent but he has the discretion to do so The discretion has to be used judicially and it cannot be said that the discretion is used judicially, if he arbitrarily proceeds to fix the fair rent when no application is filed within time allowed by law. If he does so he will be defeating the very purpose for which the Act has fixed a period of limitation for obtaining such a relief.

4. According to the section, as it stood in the House Rent Control Order, 1948, no period of limitation was fixed for filing an application for fixation of fair rent but the moment there was enhancement of rent, the tenant was bound to file an application for fixation of fair rent within three months from the date the increase to rent was demanded or paid. In this case though the original rent fixed by the parties was Rs. 125/-, the tenant had agreed to pay Rs. 130/- and went on paying rent at that rate for about nine months. Assuming that this did not amount to enhancement of rent, but that this was a case in which increased rent was paid in view of additional accommodation, it may be taken that as the Act at that time stood, he could have filed an application for fixation of fair rent at any tune he liked, unless there was in the meanwhile an enhancement of rent. But in this case, as stated by the tenant, the rent was further enhanced to Rs. 140/- in January 1951. The moment this was done he could only file an application for fixation of fair rent within three months from the date the enhanced rent was demanded or paid. The application for fixation of fair rent which was filed within three mouths from the date this increased rent is demanded or paid must be regarded to have been filed within time to the extent that the reduction is in respect of the increase above Rs. 150/-.

5. If, however, it is held that the rent was increased from Rs. 125/- to Rs. 130/- in April 1950, the application for fixation oil fair rent below Rs. 130/- must be regarded as being barred by time since it was filed more than three months after April 1950. The case of the tenant himself is that the rent of Rs. 125/- was fixed for the entire premises including the garage, but on the pretext that the garage was not included the rent was enhanced to Rs. 130/-. If the tenant had agreed to pay Rs. 5/- more on account of increased accommodation as contended by the landlord he can have no grievance. Otherwise, taking the case of the tenant himself, there was enhancement of rent in April 1950 from Rs. 125/- to Rs. 130/- and so his application for reduction of rent on the ground that the rent was excessive is barred by time to the extent the reduction is claimed below Rs. 150/- His application however in so far as the enhancement from Rs. 130/- to Rs. 140 is concerned, is in time and the order of the House Rent Controller as confirmed by the learned Additional District Judge is right to the extent of reduction of rent to Rs. 150/-.

6. It is no doubt true that the House Rent Controller has powers of discretion to reduce the rent agreed upon even where no application is filed within time; but the discretion must be used judicially, and it must only be in extraordinary cases of injustice and when failure to file application in time is shown to be due to unavoidable reasons as in case in which delay is condoned under the Limitation Act, that the House Rent Controller might use his discretion in interfering with the agreement arrived at between the parties. No such case is made out. The revision petition is allowed to the extent that the order of reduction is not limited to Rs. 10/- only. The rent is fixed at Rs. 130/- per month. Parties will bear their own costs throughout. Petition partly allowed. AIR 1954 MYSORE 133 (Vol. 41, C.N. 54) "S. Ramanna v. Abbas Hussain" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) S. Ramanna and others, Appellants v. Abbas Hussain, Respondent. Second Appeal No. 152 of 1950-51, D/- 5 -1 -1953, against order of Dist. J., Shimoga, D/- 19 -12 -1949. Provincial Insolvency Act (5 of 1920), S.25, S.75 - INSOLVENT - APPEAL - REVISION - Second appeal and revision against order u/S.25. Mysore Insolvency Act (11 of 1925), S.35, S.75. No second appeal lies against an order passed under S. 25. The High Court may, however, in certain circumstances treat the second appeal as revision and examine the order of the District Judge and determine about its legality and correctness. AIR 1936 Rang 26, AIR 1931 Mad 745 and AIR 1934 Lah 807(1), Foll. (Para 3) Anno : Prov. Ins. Act, S. 25 N. 5; S. 75 N. 5, 6. Cases Referred : Courtwise Chronological Paras (A) (V 23) AIR 1936 Rang 26 : 155 Ind Cas 954 2, 3 (B) (V 18) AIR 1931 Mad 745 : 54 Mad 989 2 (C) (V 21) AIR 1934 Lah 807 (1) : 150 Ind Cas 664 2 (D) (47) 52 Mys HCR 373 4 M.P. Somasekhara Rao, for Appellants; M. Ramachandra Rao, for Respondent. Judgement This second appeal arises out of an order in an insolvency case. The appellant who holds a decree in O. S. No. 22/37-38 on the file of the Subordinate Judge, Shimoga, against the respondent for Rs. 2855-7-0 made an application on 17-8-43 for declaring the respondent an insolvent. The respondent raised several objections which were negatived and the Subordinate Judge directed that he should be adjudicated. On appeal the District Judge of Shimoga reversed that order and dismissed the appellants application on the ground that the respondent was able to pay his debts and he has come up in second appeal.

2. For the respondent, Mr. M. Ramachandra Rao, his learned counsel, has raised a preliminary objection to the hearing of this second appeal. He urges that under S. 75(1) of the Mysore Insolvency Act XI of 1925 which governs this case, only certain orders passed under the Act are subject to second appeal and that the present order which falls under S. 25 of the Act, is not liable to be appealed against to the High Court. In support of that position he has relied on - Wan Taik Ya v. M. S. S. Chettyar Firm, AIR 1936 Rang 26 (A); - Alagirisubba Naik v. Official Receiver, Tinnevelly, AIR 1931 Mad 745 (B) and - Ghulam Rasul v. Kidar Nath, AIR 1934 Lah 807(1)(C). The language of S. 75(1) and those cases clearly support the objection he has taken and a second appeal, therefore, does not lie in this case.

3. But Mr. Somasekhara Rau, learned counsel for the appellant, contends that nevertheless this Court may under S. 75(3) examine the order of the District Judge and determine about its legality and correctness, and that the present case is one in which such powers of revision ought to be exercised in favour of his client. He points out that this course has been adopted in - AIR 1936 Rang 26 (A). In view of the past history of this case, and its facts and circumstances and the clearly incorrect way in which the matter has been decided by the learned District Judge, I am inclined to adopt that procedure.

4. The order of the District Judge cannot be sustained. He has held that there was sufficient ground in law for the appellant, a creditor of the insolvent, to base his application. Indeed he was bound to do so as this matter has been finally decided between the parties by this Court as reported in - Ramanna v. Syed Abbas Hussein, 52 Mys HCR 373 (D). He, however, came to the conclusion that the respondent owned sufficient properties and was in a position to discharge his debts and therefore under S. 25 of the Insolvency ACL the Court would be justified in dismissing the application for insolvency. This particular ground, viz. that the respondent was able to pay off his debts was never taken in the objection statement filed before the Subordinate Judge, the ground relied on then being that the sale of the house in Bhadravati which was in execution of a decree for arrears of assessment was not an act of insolvency and did not afford a ground to the creditor for making the application. Though the appellants application was made so far back as in August 1943, right down till December 1949 when the District Judge made his order or even till today the respondent has not been able to pay off his debt or even the smallest portion of it. This, I think, would not be an improper test to determine about the bona fides of such a claim. (After considering the evidence his Lordship proceeded :) The learned District Judge appears to have had no evidence at all before him to come to the conclusion he has done, and for that reason alone his order is liable to be set aside even in revision. Moreover, there is another observation by the learned District Judge in his judgment which clearly shows that he has not properly directed himself in the disposal of this case. In the concluding paragraph of his judgment he has observed that if the appellant cannot recover the amount due to him by proceeding against other properties of the respondent "it is yet open to him to press his petition for the appellant being adjudged insolvent". He has apparently lost sight of the fact that then there would be no petition to press and it would be useless for the appellant to present another application which would be long after the alleged collusive sale in favour of the respondents second wife and which would be of no use to him even if he showed that this alienation ought to be set aside.

5. In the result this appeal is allowed and the order of the learned District Judge is set aside. The respondent will pay the costs of the appellant in this Court (Advocates fee Rs. 15/-). Appeal allowed. AIR 1954 MYSORE 134 (Vol. 41, C.N. 55) "Kesave Seethamma v. Bombay Life Assrn, Co." MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Kesave Seethamma, Plaintiff-Appellant v. Bombay Life Assurance, Co. Ltd., Defendant-Respondent. Second Appeal No. 438 of 1949-50, D/- 17 -12 -1952, against decree of Dist. J., Shimoga, in R. A. No. 91 of 1948-49. (A) Provincial Insolvency Act (5 of 1920), S.45 - INSURANCE - CONTRACT - Fraudulent suppression of material facts. Contract Act (9 of 1872), S.17. In answer to a query in the proposal form the insured had stated that he had been insured in another company at ordinary rates without any extra premium being charged or lien or condition being imposed. The insured had made a formal declaration at the end of the proposal form that the particulars given by him in the proposal form were true and that he agreed that the said proposal and any declaration to be made before the Medical Examiner should be the basis of the contract between him and the defendant company. The statement made in the proposal was found to be false to the knowledge of the deceased insured. Held that there was a fraudulent suppression of material facts on the part of the insured which vitiated the contract of insurance and that S. 45 of the Insurance Act could not help the plaintiff. AIR 1936 Sind 222; (1899) 2 QB 641, Rel. on. Case law Referred. (Paras 12, 13) Anno : Insurance Act, S. 45 N. 1; Contract Act, S. 17 N. 1, 3. (B) Civil P.C. (5 of 1908), S.35 - COSTS - Principle that costs shall follow the event. Principle that Contract of insurance - Defendant company not repudiating contract till after filing of suit by plaintiff even though notice of claim had been given 2 years back - Defendant company holding out hopes to plaintiff that matter was still under consideration - Even in written statement defendant stating that plaintiffs claim was still under consideration and that plaintiff had precipitated matters by rushing to court - Plaintiffs claim dismissed on one ground out of several grounds raised by defendant for first time in suit - Held that in the circumstances each party should be ordered to bear their own costs. (Para 14) Anno : C.P.C., S. 35 N. 7. Cases Referred : Courtwise Chronological Paras (A) (1908) 1908-2 KB 863 : 77 LJ KB 1108 4 (B) (1925) 1925 AC 344 : 94 LJ PC 60 5, 11 (C) (V 24) AIR 1937 Cal 510 : 172 Ind Cas 310 6 (D) (V 26) AIR 1939 Cal 8 : 181 Ind Cas 781 6 (E) (V 26) AIR 1939 Bom 161 : 182 Ind Cas 127 7 (F) (V 21) AIR 1934 Mad 674 : 152 Ind Cas 654 7 (G) (1879) 1879-11 Ch D 363 : 48 LJ Ch 331 9 (H) (1828) 108 ER 1160 : 8 B and C 586 10

(I) (1836) 150 ER 334 : 1 M and W 33 10 (J) (V 23) AIR 1936 Sind 222 : 166 Ind Cas 16 11 (K) (V 22) AIR 1935 PC 1 : 13 Rang 63 (PC) 11

(L) (1899) 1899-2 QB 641 : 69 LJ QB 45 12 A.R. Somanatha Iyer, for Appellant; K. Prahlad Rao, for Respondent. Judgement The plaintiff is the widow of one K. Srinivasaiya who died on 8-9-1945 at Koppa. He had insured his life with the defendant company for Rs. 3000/- and the plaintiff sued to recover that sum after the death of the insured. The defendant company denied their liability to pay any sum under the policies on three grounds : first that the insured had suppressed certain material facts and had made some false and fraudulent statements in his proposal and personal declaration forms, which circumstance vitiated the policy; secondly, that the insured had committed suicide and as the same was within 13 months of the date of insurance the contract under the insurance policy had become void and could not be enforced : and thirdly, that the insured had speculated on his life by insuring for much larger sums than he could afford and his taking up the insurance policies of the company in those circumstances was not a bona fide act on his part. The Additional Subordinate Judge, Chickmagalur, who tried the plaintiffs suit decreed it. On appeal, the District Judge of Shimoga reversed that decision and dismissed her claim. The plaintiff has now come up in second appeal.

2. The two latter pleas, viz. that the deceased had committed suicide and that he had speculated on his life have been found against the defendant company by both the Courts below, and the same cannot and are not pressed before me. It has not been explained what exactly the company meant by the third plea and it does not seem to be by itself any proper defence to a claim on an insurance policy though it might be a piece of evidence and might probabilize other pleas such as suicide or misrepresentation.

3. The first plea of fraudulent misrepresentation or suppression of material facts by the insured is with regard to statements recorded in columns 8 and 9 of the proposal form Ex. I. Under column 8, the insured was asked to state whether his life had ever been insured in any other company and to give particulars. He has answered that query by stating that he had done so in the Empire of India Life Insurance Co., Ltd., under four endowment policies aggregating Rs. 6,000/- and that they were accepted as proposed at ordinary rates without any extra premium being charged or lien or condition imposed. The insured has made a formal declaration at the end of the proposal form that the particulars given by him in the proposal forms were true and that he agreed that the said proposal and any declaration to be made before the Medical Examiner should be the basis of the contract between him and the defendant company. These statements are prima facie false. (After discussion of the evidence His Lordship proceeded :) It must therefore be held that the deceased made a false declaration in his proposal form Ex. I knowing it to be false and the point that falls for consideration is whether the same vitiates his contract of insurance with the defendant company.

4. It is next contended by the learned counsel for the appellant that under S. 45 of the Mysore Insurance Act (22 of 1939) no policy of life insurance effected before the commencement of the Act shall, after the expiry of two years from the date of the commencement of the Act and no policy of life insurance effected after the coming into force of this Act, shall, after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement in the proposal for insurance, or in any report of a medical officer or referee, or in any other document leading to the issue of the policy was inaccurate or false, unless the insurer shows that such statement was on a material matter and fraudulently made by the policy holder and that the policy holder knew at the time of making it that the statement was false. He urges that the statement of the insured regarding the details of his insurance with the Empire of India Life Insurance Co., was not on a material matter and was not fraudulently made. He has relied on a case in - Joel v. Law Union and Crown Insurance Co., (1908) 2 KB 863 (A) where it has been held that the non-disclosure of certain facts in answer to questions put by the medical referee of the insurer were not, in the absence of fraud, sufficient to vitiate the contract of insurance. In that case the insured had been asked some questions in the form of declaration to the medical referee regarding the state of her health prior to the proposal. That declaration form did not state that the answers were to form a part of the basis of the contract. It was found that she had foolishly, but not fraudulently, concealed the fact that she had a nervous breakdown which had necessitated her being confined in an asylum for sometime. It was held that, having regard to the nature and purpose of those questions, the truth of the answers to them was not on the true construction of the documents made part of the basis of the contract and, therefore, could not vitiate the policy. It has further been pointed, out by Fletcher Moulton L. J. in that case that the contract of life insurance is one uberrama fide and that the insurer is entitled to be put in possession of all material information possessed by the insured. The opinion of the insured as to the materiality of that knowledge is of no moment; if a reasonable man would have recognized that it was material to disclose the knowledge in question, it was no excuse to say that the insured had not recognized it to be so.

5. The next case relied on for the appellant is - Mutual Life Insurance Co. of New York v. Ontario Metal Products Co., 1925 AC 344 (B) where similarly it has been held that when statements made by an insured person in his application for a policy of life insurance are not made the basis of the contract but are to be treated as merely representations, an inaccurate statement is material so as to vitiate the policy if the matters concealed or misrepresented, had they truly been disclosed would have influenced a reasonable insurer to decline the risk or to have stipulated for a higher premium. It is not sufficient that they have merely caused delay in the issue of the policy while further inquiries were being made. In that case the insured, who had been in constant attendance in his office during the five years preceding the date of his policy and was never for a single day laid aside from work, had received some injections by way of tonic under medical advice. Their Lordships held, agreeing with the Judges of the Supreme Court, that those injections were not in the nature of a surgical operation which he should have disclosed and that his omitting any reference to the condition for which he received them were merely in respect of trivial ailments and the insured was not guilty of any inaccuracy in omitting to refer to them.

6. The next case sought to be relied on for the appellant is - Haridasi Debi v. Manufacturers Life Assurance Co. Ltd., AIR 1937 Cal 510 (C). But the decision in that case was reversed on appeal by a Bench in - Manufacturers Life Assurance Co. Ltd. v. Haridasi Debi, AIR 1939 Cal 8 (D). In that case the insured was asked by the Medical Examiner of an Insurance Company whether any members of his family had ever suffered from consumption or insanity, or whether the insured had lived in the same house or associated in any way with a case of tuberculosis. It appeared that the insured, even though he knew that the medical practitioners had diagnosed the disease that his paternal aunt was suffering from as tuberculosis and had arranged for treatment on the basis of that diagnosis, had answered the question in the negative. It was held that the answer was fraudulent since it would amount to active concealment of a fact by one having knowledge or belief of the fact within the meaning of S. 17 of the Contract Act and that the company was therefore, entitled to repudiate the claim on the policy.

7. Maneklal Kalidas v. Shivlal Dayaram, AIR 1939 Bom 161 (B) is the next case relied on for the appellant. In that case the age of the insured had been admitted and the burden of proving that such admission was procured by fraud was clearly on the Insurance Company. It was, therefore, held that the company must be held bound by their representation that they would not dispute the correctness of the age admitted by them. In - Indian Equitable Insurance Co., Ltd. v. Onkarappa, AIR 1934 Mad. 674 (F), which is another case relied on for the appellant, in a declaration for the purpose of reviving a policy the insured had stated that he was. having good health for a continuous period, but it was found that for sometime between the date of the original policy and the date of the declaration he had suffered from a mild attack of dyspepsia for which he underwent some treatment; it was held that this was not a mis-statement, much less a wilful misrepresentation. These cases, therefore, do not help the appellant.

8. The non-disclosure of the details regarding the previous insurance does not appear to be innocent and seems to have been deliberate and fraudulent. The insured had been examined on 11-8-1943 by an Assistant Surgeon on the Government McGan Hospital, Shimoga, holding an M.B.B.S. degree. While answering questions put by him to the insured, the insured has stated that his father had died at the age of 48 years on account of chronic malaria and anaemia and was ill for about a month before he died and that his mother died at the age of 35 years on account of secondary anaemia and that she was ill for about 3 or 4 weeks. On that, that Medical Officer reported that since the weight and measurements of the insured were below average, and his family history were not very good, he could be accepted on a load. While giving answers to the Medical Examiner of the defendant company, one Dr. K. Narasinga, an L.M.P. of the Rayapuram Medical School and a private Medical Practitioner who examined the insured on 19-8-44, the insured declared that his father had died at the age of 40, of Typhoid after being ill for 20 days and that his mother had died at the age of 35 of dysentery, having been ill for 30 days. Apparently family history is considered important. In determining the family history it is required, for instance, that if either the father or the mother had died from tuberculosis, the insured should state if the deceased ever lived in the same house as the proposer and the year in which the death occurred. This direction has been printed in red ink prominently in Col. 12 of the Medical Officers report of the Empire of India-Life Insurance Co., Ltd. showing the value attached to such family history. The insured must have known or thought that if he informed the defendant company that his proposal to the Empire of India Life Insurance Co., had not been accepted as proposed and also had been loaded, the defendant company would make independent enquiries of their own and would very easily discover about the false statements made in the family history columns.

9. Mr. Prahlada Rao, learned counsel for the respondent, has also referred to a number of cases. In - Lond Assurance v. Mansel, (1879) 11 Ch D 363 (G), in the proposal in answer to a question similar to the one in the present case, the insured had stated that he had insured already in two offices at ordinary rates. It was, however, found that his life had been declined by several other insurance companies, and it was-held that there had been a material concealment : and that the insurance company was entitled to have the contract set aside. It was pointed out by Jessel, M. R. that in cases of insurance a party is required not only to state all matters within his knowledge, which he believes to be material to the questions of insurance but all which are in point of fact so. If he conceals anything that he knows to be material it is a fraud. But besides that if he conceals anything that may influence the rate of premium which the underwriter may require although he does not know that it would have that effect, such concealment entirely vitiates the policy.

10. In - Lindenan v. Desborough, (1828) 108 ER 1160 (H), it has been held that it is the duty of a party effecting an insurance on life or property to communicate to the under-writer ail material facts within his knowledge touching the subject-matter of the insurance and it is a question for the Jury whether any particular fact was or was not material. In that case also Bayley, J. remarked : "I think that in all cases of insurance, whether of ships, houses or lives, the underwriter should be informed of every material circumstance within the knowledge of the assured and that the proper question is whether any particular circumstance was in fact material and not whether the party believed it to be so. The contrary doctrine would lead to frequent suppression of information, and it would often extremely be difficult to show that the party neglecting to give information thought it material." In - Wainwright v. Bland, (1936) 150 ER 334 (I), the suppression or false representation of facts material to be known by the insurers was held to vitiate a policy of insurance although it was in answer to a parol enquiry and the policy was, by the articles of the insurance office, to be void on false answers being given to certain written enquiries. Where a party gave false answers to verbal enquiries, whether she had effected similar Insurances at other office it was held that the policy was thereby avoided as from the nature of the contract, the suppression of any material fact or a false answer to a material question must avoid the policy.

11. Shivkumar v. North British and Mercantile Insurance Co., Ltd., AIR 1936 Sind 222 (J) was a case very similar to the present. In that case in answer to the query whether his life had in the past been proposed for assurance at any office, the insured stated that it had been insured in two companies and that his proposal had not been dropped or withdrawn or accepted by any other office at any extra premium or special terms or had been declined or deferred. It turned out that at the time when these answers were given the assured knew that his proposal of one of those companies had not matured into a policy and that that company and he had been carrying on some correspondence as the former were not prepared to accept the proposal of the insured at the rates of premium prescribed in their table for insuring a first class life and had made counter proposals and no policy had, as a matter of fact, been issued. It was held that the contracts of insurance were uberrima fidei and that what facts are material is a question of fact in each case. All such facts which would influence a reasonable man either to accept or decline a risk or stipulate for a higher premium would be; material. The failure by the insured to mention, the fact that his proposal to another Insurance Company had not matured into a policy and the circumstances under which it fell through, and the fact that he was twice insured with a third company were errors and omissions made wilfully or intentionally to induce the defendant company to accept his proposal and so vitiated the policy as these facts were material. In - (1925) AC 344 (B), it has been observed by the House of Lords that it is a question of fact in each case whether, if the matters concealed or misrepresented had been truly disclosed, they would on a fair consideration of the evidence have influenced a reasonable insurer to decline the risk or to have stipulated for a higher premium. See also - Dawsons Bank Ltd. v. Vulcan Insurance Co., Ltd., AIR 1935 PC 1 (K). It is. certain in any event in this case that the defendant company would not have agreed to issue a policy at normal rates, even if they did not reject the proposal, if they had been told that another responsible insurance company had done so shortly before. In that latter case they would have made counter proposals and the insured might or might not have accepted it and the contract might not have materialised at all.

12. The representation that one company had accepted or refused to accept as normal a proposal on the life of the insured would in my opinion be clearly a circumstance which would materially affect the decision of another company and to induce the latter to either refuse or accept the proposal on similar terms, see - Gordan v. Street, (1899) 2 QB 641 (L).

13. D. W. 1, the Deputy Manager of the defendant company, has stated that if at the time of the proposal it had been brought to the notice of the defendant company that the Empire of India Life Insurance Co., had accepted the insureds proposal with a load of five years, he very much doubted whether his company would, have accepted it. Fraud has been described in S. 17 of the Indian Contract Act as meaning and including the active concealment of a fact by one having knowledge of it with intent to deceive another party, or to induce him to enter into a contract. I think it must be held in this case that there has been such a fraud on the part of the insured as would vitiate his contract of insurance with the defendant company and that S. 45 of the Insurance Act does not help the plaintiff. The decision of the lower appellate Court is, therefore, correct.

14. In the result this appeal fails and is dismissed. As regards costs the lower appellate Court has awarded costs to the defendant. I think this is not a case in which costs should be so awarded. The defendant company did not repudiate the contract till the plaintiff filed her present suit on 11-8-47 though they were given notice of the claim so far back as on 24-5-45. They have pleaded in their written statement that the plaintiffs claim was still under consideration and that the plaintiff had precipitated matters by rushing to Court. They also put forward other objections to the plaintiffs claim which they have not been able to make out. If they had explained to the plaintiff the grounds on which they have now contested her claim and I not held out hopes to her that the matter was still under consideration, she might or might not have wasted her time and money to bring this action. I think, therefore, in the circumstances this is a proper case in which the parties should bear their own costs throughout this litigation and I order accordingly. Appeal dismissed. AIR 1954 MYSORE 138 (Vol. 41, C.N. 56) "M.S. Srikantaiah v. M. Hanumantha Rao" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) M.S. Srikantaiah, Appellant v. M. Hanumantha Rao and others, Respondents. Second Appeal No. 404 of 1950-51, D/- 3 -12 -1952, from decree of Addl. Dist. Judge, Mysore, in R. A. No. 168 of 1949-50. (A) TORT - NEGLIGENCE - Tort - Negligence - Collision - Suit for damages by injured person - Burden of proof. Generally speaking in running down cases, or as they are sometimes called collision on land cases, the plaintiff is not entitled to succeed unless he gives affirmative proof of negligence on the part of the defendant or his servant. Persons who base a claim for negligence must prove negligence. (Para 3) In a case of this kind, presumptions on question of fact arise and may have to be rebutted. Thus it may be sufficient for the plaintiff to prove that the bus in which he was travelling took a turn and proceeded beyond the road and in turning back to go to the road, it struck against a tree which caused injury to him. Then it is for the defendant to prove that one of the bullock carts going in front turned and stood across the road and he could not avoid taking a turn. If it is proved, then the presumption raised in plaintiffs favour stands rebutted by the defendants evidence. (Para 3) (B) TORT - NEGLIGENCE - Tort - Negligence - Collision - Duty of wiser course - Limits of. When by the negligent conduct of a vehicle or foot-passenger on the road a collision with another person or vehicle is rendered imminent, the latter will not be liable in respect of a collision if in the stress and agitation of the moment he takes unwise course in seeking to avoid it. Good sense and the policy of the law impose some limit upon the amount of care, skill and nerve which are required of a person in a position of duty, who has to encounter a sudden emergency. Thus even if it be possible to take a view that it would have been wiser for the driver to apply the brakes though he was quite near the bullock carts, he cannot be expected to be as wise as he or anybody else is expected to be at a cooler moment. AIR 1917 PC 173, Ref. (Para 4) Cases Referred : Courtwise Chronological Paras (A) (V 19) AIR 1932 PC 246 : 139 Ind Cas 663 2 (B) (V 20) AIR 1933 Cal 178 : 141 Ind Cas 248 3 (C) (1915) 1915 SC 205 4 (D) (V 4) AIR 1917 PC 173 : 46 Ind Cas 319 (PC) 4

V. Krishnamurthy, for Appellant; B.T. Ramaswamy, (for Nos. 1 and 2) and H. Venkatesamurthy, (for No. 3), for Respondents. Judgement The appellant filed a suit for damages against 1st respondent, who is the owner of a bus, and respondent 2, who is its driver, on the ground of injuries caused to his left-arm and left finger while he was travelling in their bus, and it is said the bus swerved and passed close to the side of a tree causing the aforesaid injuries to the plaintiff. The evidence of the plaintiff and his brother-in-law P.W. 4, discloses that the bus took a turn from the road in trying to pass two bullock carts which were going in front and that the accident occurred at that time. The evidence of the disinterested witness, D.W. 1, who was sitting in the front seat of the bus by the side of the driver, discloses that one of the bullock carts turned across the road leaving no space for the bus to move, with the result that the driver took a turn to a side, and finding a tree in front, he turned to the left. When he was thus taking the bus back to the road, after avoiding the cart one of the sides of the bus came so close to the tree that it was damaged and the arm of the plaintiff was injured as stated above. The learned Munsiff who gave a decree for plaintiff also thinks that it is probable that one of the bullock carts turned across the road and in consequence the bus had to take a turn to avoid a collision. But he thinks that since the driver had begun to detour at a distance of forty feet from the place of accident, he had enough time to apply the brake and stop the bus. As pointed out by the learned Additional District Judge, the evidence does not show that the bullock cart stood across the road when the driver began to detour the bus. If he did begin to detour the bus at a distance of 40 feet from the place of accident, it must be remembered, he did so to pass by the side of the bullock-carts. The disinterested testimony of D.W. 1 shows that one of the carts took a turn when the bus was almost close by and it is also clear that but for the driver taking a turn to the right, a serious accident to the drivers of the bullock-carts and to the bullocks as well as the passengers in the bus might have happened. The learned Munsiffs conclusion is that the bus was being driven at such a high speed that it was impossible for the driver to have stopped it though he saw the carts at a good distance. This is nobodys case, as the plaintiff does not allege even in the plaint that the bus was being driven at a high speed.

2. The learned Munsiff appears to be under an impression that the burden of proof shifts on the owner and driver of the bus in a case of this kind when the injured person proves that he has been injured in a bus accident. It is, no doubt, true, that it was observed by their Lordships of the Privy Council in - Winnipeg Electric Co. v. Jacob Geel, AIR 1932 PC 246 (A) as follows : "Apart from the 2nd plaintiff claiming damages for personal injury in a running down case would have to prove that he was injured, that his injury was due to the defendants fault and the fact and extent of his loss and damage; hence unless he succeeds in establishing all these matters he must fail. In virtue however of the statute he need only establish the first and the third elements, i.e., that he was injured by the defendant and the extent of his damages; as to the second, the onus is removed from his shoulders and if he established the two matters in respect of which the onus still remained on him, he may close his case because it is then for the defendant to establish to the reasonable satisfaction of the jury, that the loss, damage or injury did not arise through the negligence or improper conduct of himself or his servants. This the defendant may do in various ways, as for instance, by satisfactory proof of a patent defect, or by proof that the plaintiff was the author of his own injury; or by proof that the circumstances were such that neither party was to blame because neither party could avoid the other." It will first be noticed that even according to the observations of their Lordships, the initial onus rests on plaintiff. If, however, it is observed that in case he proves that he was injured and to what extent he has suffered loss or damage, the burden of proof shifts on to the defendant, it is so on account of the special provisions in S. 62 of the Manitoba Motor Vehicles Act, which was applicable to the case that was being considered by their Lordships. Even otherwise, on plaintiff proving certain facts, it may be possible to presume that unless the defendant proves the contrary, he must have been negligent. These are cases to which the principle of res ipsa loquitur applies. As regards the principle of res ipsa loquitur, it is worthwhile giving an extract from Salmonds Law of Torts on the point : "The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused ... On the other hand, if the defendant produces a reasonable explanation, equally consistent with the negligence and no negligence, the burden of proving the affirmative, that the defendant was negligent and that his negligence caused the accident, still remains with the plaintiff."

3. As observed by Costello, J. in - Baijnath v. Corporation of Calcutta, AIR 1933 Cal 178 (B) : "Generally speaking in running down cases or as they are now sometimes called collision on land cases the plaintiff is not entitled to succeed unless lie gives affirmative proof of negligence on the part of the defendant or his servant. Persons who base a claim for negligence must prove negligence." However, as observed by the learned Judge who was dealing with a case in which the vehicle of the defendant struck against a lamp-post : "....The law provides that when a vehicle is shown to be under management of the defendant or his servant and an accident occurs such as in the ordinary course of things does not happen, if he who has the management uses proper care, the onus exceptionally rests on the defendant to disprove that the accident arose from want of care." Similarly in this case, it may have been sufficient for the plaintiff to prove that the bus in which he was travelling took a turn and proceeded beyond the road and in turning back to go to the road, it struck against the tree. If nothing else had been admitted by the plaintiff, it was for the defendant to have proved that one of the bullock carts going in front turned and stood across the road and he could not avoid taking a turn. In a case of this kind, presumptions on questions of fact arise and may have to be rebutted. It is, however, admitted that two bullock carts were going in front, and even the learned Munsiff does not disbelieve the version that one of the carts stood across the road, with the result that if there is anything in the evidence on the side of the plaintiff to raise a presumption in his favour, it stands rebutted by the evidence adduced by the defendants.

4. Even if it be possible to take a view that it would have been wiser for the driver to apply the brakes though he was quite near the bullock carts, it must be remembered that the driver in a case of this kind cannot be expected to be as wise as he or anybody else be expected to be at a cooler moment. The law on this point as stated in Mr. Gibbs V Edition of the Law of Collisions on Land, at page 11, may be referred to : "When by the negligent conduct of a vehicle or foot-passenger on the road a collision with another person or vehicle is rendered imminent, the latter will not be liable in respect of a collision if in the stress and agitation of the moment he takes unwise course in seeking to avoid it." An illustration given by the learned author on the authority or - Wallace v. Berglus, (1915) SC 205 (C) is as follows : "A was driving a motor car on the proper side of the road. B was driving in the opposite direction on the same, i.e. wrong side. A swerved at the last moment to his wrong side. B swerved simultaneously; held that A was not liable for the ensuing collision." At page 12, the learned, author again explains : "Where a wrong step is taken in the agony of collision it does not follow that the step was a negligent step or one caused by fault. The negligent conduct of A has put upon X a burden which is too heavy for him to discharge in the course of exercising his normal duty of care. It has created a situation calling for extraordinary skill or care, and failure to show that is not negligence or fault in a legal sense." In the case of - Dwarakanath v. Rivers Steam Navigation Co. Ltd., AIR 1917 PC 173 (D) their Lordships of the Privy Council have observed that : "Good sense and the policy of the law impose some limit upon the amount of care, skill and nerve which are required of a person in a position of duty, who has to encounter a sudden emergency." What that limit should be, is stated as follows at page 178 : "In a moment of extreme peril and difficulty the Court is not to expect perfect presence of mind, accurate judgment and promptitude. If a man is suddenly put in an extremely difficult position and a wrong order is given by him, it ought not in the circumstances to be attributed to him as a thing done with such want of nerve and skill as to amount to negligence. If in a sudden emergency a man does something which he might as he knew the circumstances, reasonably think proper he is not to be held guilty of negligence, because upon review of the facts, it can be seen that the course he had adopted was not in fact the best."

5. In this case, it cannot be said that the 2nd defendant-respondent 2, who was the driver of the bus, was in any way careless or negligent. In my opinion, he has tried his best to avoid the danger of collision between the bus and the bullock cart, and in avoiding a greater danger, he took the alternative and a less dangerous course of taking a turn to a side and getting back into the road after passing the cart. In doing so, it is true that he could not avoid coming close to a tree which struck against the side of the bus and injured the arm of the plaintiff. It cannot be said under the circumstances that the respondents are liable for the injury caused to the plaintiff. The suit against the respondents was, therefore, rightly dismissed 6. As regards costs, normally speaking, one would sympathise with the plaintiff and order that both parties should bear their own costs. But, in this case, the plaintiff is aware of the fact that the second defendant was discharged in a criminal Court when he was proceeded against for offences (under Sections 279, 337 and 338, I.P.C.) of rash and negligent driving, and he should have thought twice before filing this suit, and should not have filed it unless he had good reasons to think that he had a case against the defendants. The appeal stands, therefore, dismissed with costs. Appeal dismissed. AIR 1954 MYSORE 140 (Vol. 41, C.N. 57) "S. Krishnappa v. Kishenlal" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) S. Krishnappa, Appellant v. Kishenlal and another, Respondents. Second Appeal No. 472 of 1951-52, D/- 17 -12 -1952, against decision of 1st Addl. Sub-J.; Sm. C. Court Bangalore, in R. A. No. 36 of 1950-51. Limitation Act (9 of 1908), S.6 and Art.182(5) - LIMITATION - APPLICABILITY OF AN ACT - Applicability of S.6 to period prescribed by Art.182(5). Where a decree-holder dies leaving a minor son during the pendency of his execution application and the application is subsequently dismissed, the minor son can claim the benefit of S. 6 read with Art. 182(5) in respect of a subsequent execution filed by him after attaining majority as a fresh start of limitation is given under Art. 182(5) on the dismissal of the application. 20 Cal 714; 23 Cal 374; 22 All 199 (FB); 29 All 279 and AIR 1935 Lah 144 (1), Rel. on. (Para 5) Anno : Lim. Act, S. 6 N. 14 Pt. 8 and N. 15. Cases Referred : Courtwise Chronological Paras (A) (31) 9 Mys LJ 389 2 (B) (12) 36 Bom 498 : 15 Ind Cas 829 3 (C) (05) 27 All 704 : 2 All LJ 453 4 (D) (V 5) AIR 1918 All 183 (2) : 40 All 630 (FB) 4 (E) (10) 16 Mys CCR 68 5 (F) (1900) 22 All 199 : 1900 All WN 8 (FB) 5 (G) (04) 27 All 67 : 1904 All WN 163 5 (H) (07) 29 All 279 : 4 All LJ 145 5

(I) (93) 20 Cal 714 5 (J) (96) 23 Cal 374 5 (K) (V 22) AIR 1935 Lah 144 (1) 5 D.S. Gundachar, for Appellant; Y.M.C. Sharma, for Respondents. Judgement In this case one Sevaram Lunidaram Sait obtained a decree for money on 21-2-1938. He applied for execution in Ex. 954/39-40 on 13-5-1940 and it was dismissed on 18-3-1940. Then an uncle of the present respondents, who were then minors, riled Ex. 325/40-41 and the same was dismissed on 22-10-41. On that date it is to be noted that both the respondents were minors. The first decree-holder appears to have attained majority on 27-3-1946 and made the present application Ex. 461/48-49 on 26-3-1949. The judgment-debtor pleaded that the execution application was barred by time, the same not having been filed within three years of the dismissal of the first execution application on 18-9-1940. The Second Munsiff, Bangalore, upheld that contention and held that the execution application was barred. On appeal the First Additional Subordinate Judge, Bangalore, reversed that decision and the judgment-debtor has come up in second appeal.

2. Mr. D.S. Gundachar, learned Counsel for the appellant, relies strongly on a case in - Lakkegowda v. Kempa, 9 Mys LJ 389 (A) and contends that time for executing the decree must be taken to have begun to run even during the lifetime of Lunidaram Sait and under Section 9 of the Limitation Act any subsequent disability of his minor sons could not stop such running. That case, however, is easily distinguishable. In that case the original decree-holder one Kalasegowda was alive when the execution application, which he had made on 23-7-1924 was dismissed, and it was sometime after his death that his minor sons made the next execution application. Obviously the right to make a second execution, application had accrued in favour of Kalasegowda as soon as the first execution application was dismissed and as time had begun to run against him the minority of his sons would not save the running of time. In the present case the fact that Sevaram Lunidaram Sait had died prior to the dismissal of the first execution application renders - 9 Mys LJ 389 (A)- inapplicable.

3. Mr. Gundachar has next relied on a case in - Bhagwant Ramchandra v. Kaji Mahamad Abas, 36 Bom 498 (B). That was a case of an attempt to secure extension of time provided under Section 48 of the Code of Civil Procedure and not of an execution application. Apparently other and different considerations apply in connection with the period prescribed in S. 43 of the Code, and some of the High Courts have laid down that the disability provisions in the limitation act apply only to the periods of limitation prescribed under that Act and not for those prescribed under the Code of Civil Procedure; and in that decision there is no reference to Art. 182 of the Limitation Act.

4. In Bhagat Biharilal v. Ram Nath, 27 All 704 (C) it was held that the person whose minority would, under S. 7 of the Indian Limitation Act, save the operation of limitation, must be a person who was entitled to bring the suit or make an application on the date from which the period of limitation for the particular suit or application was to be reckoned. In that case the person who was entitled to make an application on 21-3-1896 when an order absolute for sale was made was one Beijnath, who was not a minor, and consequently the respondent in that case could not avail himself of the benefit of S. 7. In - Kalika Baksh Singh v. Rant Charan, AIR 1918 All 183 (2) (FB) (D) the decree-holders were all of full age when the decree was passed. Limitation had already commenced to run and the subsequent intervention of minority was rightly held, did not entitle the legal representatives to the benefit of S. 7 of the Limitation Act.

5. In Mysore it has been held in - Janamma v. T. Lakshmaiya, 16 Mys CCR 68 (E) that a minor decree-holder is entitled to claim the benefit of S. 7 of the Limitation Act even though he be one of several joint decree-holders all of whom are not under a disability. In support of that conclusion - Zamir Hasan v. Sundar, 22 All 199 (FB) (F); - Jiwan Ram v. Ram Sarup Ram, 27 All 67 (G); - Sri Ram v. Het Ram, 29 All 279 (H); - Lolit Mohun v. Janoky Nath, 20 Cal 714 (I) and - Norendra Nath v. Bhupendra Narain. 23 Cal 374 (J) have been referred to. In 20 Cal 714 (I) it was pointed out that Art. 179 provides several points of time from which the period of three years will begin to run and for purposes of Limitation Act the period which begins from each point is a separate period and if the person entitled is under a disability at the time when any one of such periods commences, the operation of the Act is suspended during the continuance of the disability by the operation of S. 7. This has been approved and followed in 23 Cal 374 (J) at p. 388; 22 All 199 (FB) (F); 29 All 279 (H); and - Duni Chand Panna Lal v. Kuldip Singh, AIR 1935 Lah 144 (1) (K). Even a plain reading of Section 6 with Art. 182 of the Limitation Act would lead to the same conclusion. Under Art. 182, limitation prescribed for the execution of a decree is three years from the dates which are prescribed in the third column. Clause (5) of the third column states that the date of the final orders passed on an application made in a previous execution case would be the starting point for the next which may be filed within three years or that date, Section 6 of the Limitation Act prescribes that where a person entitled to make an execution application is on the date from which the period of limitation has to be reckoned a minor, he may do so within the same time after the disability has ceased. In the present case it was only after the death of Lunidaram Sait that the respondents could have made the next execution application and that they could make within three years of the dismissal of the first application which was on 18-9-40. But on that date they were minors and they could, therefore, properly claim protection under S. 6 of the Limitation Act.

6. I see, therefore, no reason to disturb the judgment of the lower appellate Court. This appeal fails and is dismissed with costs. Appeal dismissed. AIR 1954 MYSORE 141 (Vol. 41, C.N. 58) "Amco Ltd. v. Registrar of Associations" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VENKATA RAMAIYA, J. ( Division Bench ) Amco Ltd. Mysore Road, Bangalore City, Petitioner v. Registrar of Associations for Mysore, New Public Offices, Bangalore and another, Respondents. Civil Petn. No. 8 of 1950-51, D/- 5 -1 -1951. (A) Constitution of India, Art.226 - WRITS - Writ of certiorari - Declaration by Registrar u/S.28, Mysore Labour Act (Mysore Labour Act (13 of 1942), S.28. To support a claim for a writ of certiorari to call for the records and quash the declaration made by the Registrar under S. 28 of the Mysore Labour Act, 1942, the petitioner has to show that the declaration constitutes a judicial or quasi-judicial act and not a ministerial one and further that it is made without or in excess of jurisdiction. (Paras 1, 3) Held that as the declaration made by the Registrar could not be said to be without or in excess of jurisdiction and as the declaration had only a recommendatory or moral force and did not by itself create a liability or impose any penalty, no writ could be sought against it. (Para 6) Anno : Const. of India, Art. 225 N. 161. (B) Mysore Labour Act (13 of 1942), S.22, S.9 - EMPLOYMENT STANDING ORDERS - Permanent and indefinite cessation of work with reduction of employees - Effect of Standing Order No. 16. Where there is no means of knowing as to how long the cessation of work will continue and whether it will come to an end at all and the persons are deprived of employment without reference to the period during which they have been working and without indicating the period of unemployment, Clause (i) of Schedule II applies and the Standing Order No. 16 cannot be availed of to avoid the requirements of S. 22 of the Act. (Para 4) Case Referred : Courtwise Chronological Para (A) (V 37) AIR 1950 Bom 174 : ILR (1950) Bom 578 6 H.S. Rajaiengar, for Petitioner; Advocate-General, (for No. 1) and V.L. Narasimhamurthy and Sm. Ratna Bai Chittur, (for No. 2), for Respondents. Judgement This is a petition filed under Article 226 of the Constitution of India for issue of a writ of certiorari to call for the records and quash the declaration made by the Registrar under S. 28 of the Mysore Labour Act. The declaration was to the effect that the announcement by the petitioner to close for a certain date some departments of work carried on in the Amco Factory and dispense with, the services of the employees in those branches was a lock-out which for want of notice as required by S. 10(1) of the Act was illegal.

2. The main contention urged on behalf of the petitioner is that the Standing Order No. 16 provides for temporary closure of the work in certain contingencies and since the Standing Orders including this have been registered, it is not open to the employees to complain against suspension of work or to the Registrar to question the legality of it; the Registrar having found that the notice issued by the petitioner is in conformity with the Standing order, should have declared it to be in order.

3. To support the claim for a writ the petitioner has to show that the declaration constitutes a judicial or quasi-judicial act and not a ministerial one and further that it is made without or in excess of jurisdiction. The existence and extent of jurisdiction for the Registrar to make the declaration have to be ascertained from the provisions of the labour act. Section 9 of the Act provides for Standing Orders being framed by the employer and for the employees filing objections, if any, to these within 15 days thereafter, for an examination of the same by the Commissioner and after his approval, for registration by the Registrar. On this being done, it is stated that the Standing orders are to be determinative of the relations between the employer and the employee but these should relate only to the matters specified in Schedule I of the Act. For a change with respect to matters covered Schedule II, notice is made obligatory and a change without such notice is made illegal by Section 22 of the Act.

4. Admittedly no notice was given by the petitioner of the proposed closure and so the retrenchment of the staff would be illegal if it is a matter which comes under Schedule II as expressed by the Registrar. The earlier statement in the declaration that the closure is in conformity with the Standing Order cannot take away the effect of this as I think what is meant to be conveyed is, the closure no doubt is warranted by Standing Order but the Standing Order itself is ultra vires. The question therefore is whether Standing Order No. 16 relates to item 7 in Schedule I as argued for the petitioner or pertains to item 1 of Schedule II. Schedule I (1) refers to temporary stoppages of work and rights and liability of employers and employees arising therefrom. Schedule II (1) refers to reduction intended to be of permanent or semi-permanent character in the number of persons employed or to be employed not due to force majeure. Standing Order No. 16 is as follows : "The Company may at any time or times, in the event of shortage of orders, shortage of back materials, or due to process congestion or for any other trade reason or any cause beyond the control of the Company, stop any machine or machines, department or departments, fully or partially, without notice and without compensation in lieu of notice." Mere cessation of work for a time without affecting the number or remuneration of the employees does not present any difficulty but this cannot be expected in a business concern carried on economic considerations; when in this case the stoppage of work is accompanied with the cessation of employment of persons, a doubt arises as to its being beyond the pale of Schedule II. The period of time implied by the word "Temporary" and "semi-temporary" is left uncertain. It is possible that suspension of work and reduction of employees though styled temporary may virtually amount to both being permanent if it be prolonged and indefinite. The notice declared illegal states : "That there is a shortage of orders coupled with shortage of back material and process congestion compelling the stoppage ............ indefinitely." There is no means of knowing as to how long the cessation will continue and whether it will come to an end at all. If persons are deprived of employment without reference to the period during which they have been working and without Indicating the period of unemployment, it is difficult to hold that clause (1) of Schedule II does not apply. The Standing Order cannot therefore be availed of to avoid the requirements of S. 22 of the Act.

5. The Registrar has further stated that with the materials the petitioner has, the work can be carried on. From this it may be inferred that there is no force majeure required in No. 1 of Schedule II and the circumstances necessary for resorting to Standing Order No. 16 do not exist. As the notice issued by petitioner is capable of being considered as relating to matters provided for in Schedule II, the requirements of Section 22 are not satisfied and even otherwise the conditions necessary for action under Standing Order No. 16 are not shown to exist, the declaration made by the Registrar cannot be said to be without or in excess of jurisdiction.

6. Sri Raja Iyengar, learned Counsel for petitioner cited - Digambar Ramchandra v. Khandesh Spinning and Weaving Mills. Co. Ltd, AIR 1950 Bom. 174 (A) to show that the standing orders once registered are binding on the parties and must prevail over other considerations. That was a case in which rights of parties had to be determined in arbitration proceedings and not one for a writ. It is not therefore of help in this case. The discussion so far has proceeded on the assumption that the declaration is not a ministerial act. The question whether it is so or not need not be decided since the petition has to fail on the ground that the declaration is not shown to have been made without or in excess of jurisdiction. It may however be mentioned that the argument of the learned Advocate General in regard to the declaration not being a judicial or quasi-judicial act has much force. The formalities associated with a judicial or quasi-judicial proceeding such as notice to parties concerned, opportunity for representation, reasons for the declaration, are not required to be observed. The Registrar is enjoined to make the declaration within three days after an application is filed by the employer or employee irrespective of the difficulty felt in any case to form an opinion in such a short time and the facts necessary for it being available and either party furnishing these. The only consequence following the declaration is that the party contravening it is made liable for prosecution but the Act does not render the declaration conclusive but expressly provides for its being impeached by the accused as illegal. In effect therefore it is nothing more than a brutum fulmen. The acquittal of the petitioner in a case filed by the respondent for alleged contravention of the provisions of the Act supports this. Perhaps because of this consideration, the provision for the Registrars declaration is not found in the Act of the Indian Parliament. The declaration has therefore but a recommendatory or moral force and does not by itself create a liability or impose any penalty. The declaration is discretionary and when no conditions are prescribed for its exercise and the party against whom it is exercised is allowed to challenge it, how the petitioner can seek a writ - if he deems it necessary at all - alleging the declaration to be a judicial or quasi-judicial act cannot be easily understood.

7. It seems to me that this is not a case for issue of a writ of certiorari. The petition is, therefore, dismissed and the ad interim order vacated. Petition dismissed. AIR 1954 MYSORE 142 (Vol. 41, C.N. 59) "Shivapadegowda v. Anniahchar" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Shivapadegowda and another, Defendants-Appellants v. Anniahchar, Plaintiff-Respondent. Second Appeal No. 465 of 1949-1950, D/- 26 -11 -1952, against decree of Sub.-J., Mysore, in R. A. No. 23 of 1947-48. (A) Civil P.C. (5 of 1908), O.21, R.54 - ATTACHMENT - Absence of attachment and irregular and invalid attachment. A judgment-debtor has no right to question an auction sale on the ground of want of attachment or because the attachment was effected in an irregular manner; and a person who purports to purchase the property long after 30 days from the auction sale can have no better right than that of his predecessor. (Para 2) Anno : Civil P.C., O. 21, R. 54 N. 12 Pts. 2 to 4. (B) Civil P.C. (5 of 1908), O.21, R.63 - ATTACHMENT - Claim dismissed for default. Where a claim petition is dismissed for default without investigation nothing comes in the way of the claimant or any person under him laying claim to the property or contending that the claimant continued to be the owner of the property till the time of his death in spite of the claimants failure to get the order in the claim case set aside. (Para 3) Anno : Civil P.C., O. 21, R. 63 N. 4 and 16. (C) Transfer of Property Act (4 of 1882), S.43 - IMMOVABLE PROPERTY - Principle of section does not apply to cases of involuntary sales. (Para 4) Anno : T. P. Act, S. 43 N. 12 Pt. 3. (D) WILL - Will - Construction - Mere fact that document calls itself will does not necessarily make it will. (Para 6) Cases Referred : Courtwise Chronological Paras (A) (42) 47 Mys HCR 372 2 (B) (44) 49 Mys HCR 275 3 (C) (V 39) AIR 1952 Mys 25 : ILR (1952) Mys 118 3 (D) (V 25) AIR 1938 Lah 360 : 177 Ind Cas 746 4 (E) (V 8) AIR 1921 PC 89 : 58 Ind Cas 228 (PC) 6 (F) (47) 52 Mys HCR 187 6 M. Lakshminarayana Rao and C.N. Ramaswamy Sastry, for Appellants; K.R. Gopivallabha Iyengar, for Respondent. Judgement The property in respect of which disputes between the parties in this case arose belonged to one Chick Bommiah. He executed on 7-7-41 the original of Ext. G in favour of defendant 2 Chikmalliah concerning his properties, which I may here mention had been hypothecated by him to one Shivaram Singh sometime before the execution of this document. In pursuance of this document Chickmalliah executed the sale deeds exts. L, BBB, MM and MMM dated 28-8-41, 28-10-41, 4-11-41 and 3-9-42 respectively in order to discharge debts due by Chick Bommiah, as mentioned in Ext. G. To all these documents Chick Bommiahs attestation as evidence of his consent has been taken. In execution of a decree obtained by defendants 4 and 5 against the second defendant, all the properties of Chick Bommiah mentioned in Ext. G were attached and the suit property which is a dry garden land was purchased by the decree-holders as per sale certificate Ext. F. Plaintiff-respondent has purchased the suit property from Defendants 4 and 5. Meanwhile Chick Bommiah filed a claim petition contending that Ext. G did not convey his interest in the properties to Chick Malliah and that he continued to be the owner of the properties. But the claim petition was dismissed for default. Subsequently the suit filed by him for setting aside this order was withdrawn with permission to file a fresh suit. But no such suit has since been shown to have been filed. The plaintiff-respondent is the purchaser of the suit property from defendants 4 and 5. After the claim case filed by Chick Bommiah was dismissed on 2-8-42, the second defendant Chick Malliah executed on 3-9-42 the sale deed Ext. 8 conveying the suit property to the first defendant, and it is the first defendant who is the first appellant in this case. Defendant 6 has purchased the properties mentioned in Ext. G other than the suit property from the second defendants son the 3rd defendant in whose favour Chick Bommiah had executed Ext. I on 8-5-43 and the 6th defendant claims to have discharged the debts due by Chick Bommiah under the hypothecation deed executed by him in favour of Shivaram Singh.

2. The first contention raised by the first defendant who claims the property as having purchased it from the defendant is that the attachment of the suit property was not effective as a copy of the attachment warrant was not affixed on it and a copy of the warrant was not affixed to the Court notice board as required under O. 21, B. 54, Civil P.C. On the other hand, it is contended that as a copy was affixed on one of the properties that were attached and all the properties including the suit property are in the same village, the requirements of the rule are satisfied. There is no evidence whether a copy of the warrant was affixed to the Court notice board, except for the fact that the Amins report about it is silent. But these two defects, if they are defects, do not arise for consideration in this case as after the attachment and prior to the sale in favour of defendants 4 and 5, the suit property had not been conveyed by the judgment-debtor the second defendant in this case, to either the first defendant or any one else. By the time the second defendant executed the sale deed Ext. 8 on 3-9-42, the suit property had been sold away in execution of the decree and purchased by defendants 4 and 5 as per the sale certificate Ext. F on 28-7-42. It is no doubt true that the sale was confirmed after the date of the sale deed. But this by itself cannot help the first defendant as the sale was held actually prior to the date of Ext. 8. When the second defendant sold the property to the first defendant, long after 30 days had elapsed from the date of the Court sale, he had ceased to have any interest in the property. In fact, so far as he was concerned he had no right, at the time he sold the property, to question the sale on the ground that the attachment was defective and even if there was no attachment the sale is valid as against the judgment-debtor. I may here refer to the decision reported in - 47 Mys HCR 372 (A) in which it has been held that "An auction-sale held in execution of a decree is not invalid for want of attachment, or because the attachment was effected in an irregular manner." If the second defendant, the judgment-debtor, had no right to question the sale, a person like the first defendant who purports to purchase the property from him can have no better right than that of his predecessor. The contention of the appellants that the attachment was not valid therefore fails.

3. The main contention of the appellant is that the property continued to belong to Chikka Bommiah even after he executed Ext. G which purports to be a will in favour of Chikkamalliah and the latter who was the judgment-debtor of defendants 4 and 5 had no title to the suit property when it was sold in execution of the decree against him. The objection of the respondent is that the appellant is not entitled to rely on the title of Chikka Bommiah to the suit property as Chick Bommiah had filed a claim petition and it was dismissed for default. The suit filed by Chick Bommiah within one year from that suit was subsequently withdrawn with permission to file a fresh suit and it is no doubt true that no fresh suit is shown to have been filed since then, and it may be taken that the dismissal of the claim petition has not been set aside in any subsequent suit. On the other hand, it is contended that as the claim petition was dismissed without investigation nothing comes in the way of Chick Bommiah or any person under him laying claim to the property or contending that Chick Bommiah continued to be the owner of the property till the time of his death. This contention is not without substance. It was held in - 49 Mys HCR 275 (B) that where a claim was dismissed for default the order of dismissal was not made as one after investigation and therefore O. 21, 63, Civil P.C., would not apply to the order and there would be no obligation on the part of the claimant to have that order set aside. That decision is fully applicable to the facts of this case. Therefore, since the claim petition was dismissed for default, it cannot be said that anything comes in the way of Chick Bommiahs title being raised, in spite of his failure to get the order in the claim case set aside. It is no doubt true that the observations made in this case as regards suits filed under O. 21, B. 103 read with Art. 11(a) have not been followed, in the decision reported in - "Ramchandra Rao v. Subba Rao, AIR 1952 Mys 25 (C), but the actual decision in respect of O. 21, R. 63 which is the point under consideration is binding on this Court. It may be added, that it has been made clear in - AIR 1952 Mys 25 CO that unless the words after investigation in O. 21, R. 63 are deleted the intention of the Legislature in amending Art. 11 by dropping the words after investigation in it may not be said to have been achieved without doubt. When reference to the intention of the Legislature for amending Art. 11 is referred to in that decision, it is done, in order to point out that the Legislatures attempt to avoid the distinction that arises by the presence of these words in Art, 11 and the absence of the same in Art. 11(a) shows that the absence of these words in Art. 11(a) is significant. Similarly so long as these words are retained in O. 21, R. 63 which bars a subsequent suit, it must be held that the bar in it only applies to cases in which the Court passes an order in claim cases after investigation. It is therefore open to appellant to contend that Ext. G executed by Chick Bommiah is a will and Chikkamalliah had no interest in the property till the latter died.

4. Before coming to the consideration of the document, the original of Ext. G, another objection to the appellant contending that the property did not belong to Chikmalliah, but belonged to Chick Bommiah may be disposed of. It might "here be stated that it is no doubt true that the rights of both the plaintiff and the first appellant are based on the right of Chikmallish to the suit property. It is no doubt true that if Chickmalliah had no right in the suit property the first defendants title to the suit property is as shaky as that of the plaintiff himself. But as it is the plaintiff who has come to Court it is open to the first defendant-appellant to contend that he cannot succeed as he has not derived any title to the suit property since Chickmalliah, his predecessor-in-title, had no right to it. Then again it is no doubt true that if Chikmalliah had voluntarily sold the suit property to defendants 4 and 5 the predecessors-in-title of plaintiff, he was estopped under S. 43 of the Transfer of Property Act from pleading that it did not belong to him. when at any rate he became the owner of it after Chick Bommiahs death. This principle however does not apply to cases of involuntary sales, such as Court sales in which the interest of Chikmalliah was purchased by defendants 4 and 5, predecessors-in-title of plaintiff. I may here refer to the decision reported in - Nanak Chand v. Gandu Ram, AIR 1938 Lah 360 (D) that : "Where certain share of a person is sold by a Court sale though in fact he was not entitled to any such share at the time of sale but subsequent to the sale has become entitled to such share, such person in equity would not be compelled to make good from the share which he subsequently acquires the title conveyed to vendee at the court sale because there can be no question of equities in the case of a Court sale."

5. Having thus found no good reason coming in the way of examining the title of Chickmalliah on the date of the Court sale, it is now necessary to examine the nature of Exhibit G executed by Chick Bommiah on 7-7-41, that is long before the Court sale. The document of which Ext. G is a copy calls itself a will. It states that the properties have been put in possession of Chickmalliah and there is a direction that Chickmalliah should discharge the debts due by him and that he should maintain him and perform his obsequies. It is also stated that he and his progeny might enjoy the properties for ever and concludes by saying that no one else has any interest in the properties conveyed.

6. Two strong circumstances relied on by the appellant for construing the document as a will are, first, that the document calls itself a will and secondly that the executant states that no one has any interest in the property other than himself. It might be stated here that the mere fact that the document calls itself a will does not necessarily make it a will. I may here refer to the decision reported in - Tirugnanpal v. Ponnammal Nadathi, AIR 1921 PC 89 (E) in which it has been held that "The mere fact that a document in some places styles itself a Will does not make it a Will." As regards the second contention, all that is stated at the end of the document is that no one other than the executant of the document had any interest in the properties mentioned in the document. This does not mean that he intended to continue to have any right in the property after the execution of the document. The fact that the properties were delivered to Chikmalliah in whose favour the document was executed so that he and his progeny might enjoy the properties, clearly indicates that the document was executed in order to convey immediate transfer of interest in the properties. I may here refer to a decision of this Court, as it is almost on all fours with this case, and that decision is - Konamma v. Kalamma, 52 Mys KCR 187 (F). In that case it was held : "On a construction of the deed, that though the document is described as a settlement deed, the description at the head of the document is not the controlling factor to construe its legal effect. It is the substance and not the form which is to be looked into; and the deed of settlement in this case was a gift, what was transferred under the document being possession and enjoyment of properties and the transfer being immediate." If there is any doubt about the intention of Chick Bommiah in his having executed the original of Ext. G in favour of Chikmalliah, it is made clear that he intended to convey immediately the title to the latter by his having consented to Chick-malliah selling away some of the properties under Exts. L, BBB, MM and MMM referred to above. - It is also significant that they document has been executed on a stamp paper of Rs. 37-8-0 which in the case of a will was not necessary. On the whole I feel no doubt that Chikmalliah was the owner of the property at the time of the attachment and sale of the suit property in execution of the decree against him, and that the plaintiff has become the full owner of the property after purchasing it from defendants 4 and 5, who had purchased it in the Court sale.

7. The next point for consideration is the contention of the 6th defendant - the second appellant that he has discharged the debt due by Chick Bommiah. If he has done so, it will be noticed that he did so as he had purchased other properties of Chick Bommiah. In fact, it has not been proved in this case that any such debt has been discharged though it is mentioned in the sale deed in favour of the 6th defendant that part of the consideration has to be utilised for that purpose. There is however, nothing to show that he has paid anything more than the amount for which he bought the properties other than the suit property and he cannot lay claim to get from the plaintiff any amount said to have been paid by him in order to discharge the hypothecation debt. Similarly, the claim for improvements has not been made out. In the result, I hold that the learned Subordinate Judge was right in decreeing the plaintiffs suit. This appeal stands dismissed with costs and the judgment and decree of the learned Subordinate Judge are confirmed. Appeal dismissed. AIR 1954 MYSORE 145 (Vol. 41, C.N. 60) "Himantharaju v. Corporation of Bangalore" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) B. Himantharaju Setty, Plaintiff-Appellant v. Corporation of the City of Bangalore, Defendant-Respondent. Regular Appeal No. 129 of 1951-52, D/- 28 -7 -1953, against decree of Sub-J., Civil Station Bangalore, in O. S. No. 38 of 1950-51. (A) Transfer of Property Act (4 of 1882), S.55(1)(d) - EXECUTION - SALE DEED - DEED - Execution of indemnity bond - Condition for executing sale-deed. If the seller insists on the purchaser to execute a meaningless indemnity bond, which in law he cannot do, and makes that a condition for executing the sale-deed which he is bound to execute, the mere fact that he does so by way of abundant caution cannot justify his action in law or save him from the consequences of such unreasonable conduct. (Para 6) Anno : T. P. Act, S. 55 N. 5. (B) Transfer of Property Act (4 of 1882), S.55(1)(d) - SALE DEED - DEED - Sale-deed in favour of purchasers nominee. The obligation under S. 55(1)(d) is merely to execute a proper conveyance, the section being silent as to the person in whose favour the conveyance is to be executed. The seller is therefore bound to execute a proper conveyance to the purchasers nominee. AIR 1935 Bom 340, Foll. (Para 7) Anno : T. P. Act, S. 55 N. 5 Pt. 13. Cases Referred : Courtwise Chronological Paras (A) (V 22) AIR 1935 Bom 340 : 59 Bom 582 7 (B) (1877) 6 Ch D 469 : 46 LJ Ch 356 7

V. Krishnamurthy, for Appellant; W. Ekambaram, for Respondent. Judgement The plaintiff brought a suit in the Court of the Subordinate Judge, Civil Station, Bangalore, for the recovery of Rs. 6750/-. His suit was dismissed and he has come up in appeal.

2. The facts of the case which are not in dispute are as follows : At a public auction held by the defendant Corporation in respect of certain "building sites, one H.V. Sriranga Setty was the highest bidder for one of the sites, his bid being Rs. 15,200/-. Before the commencement of the auction, he had deposited a sum of Rs. 100/- as required by one of the conditions of sale. Immediately after the auction he paid a further sum of Rs. 4000/- to cover 25 per cent, of the purchase money, through a cheque issued by the plaintiff. Tie had to pay the balance of the purchase money within 15 days from the date of confirmation of the sale. On 30-7-1946. even before the sale was formally confirmed, Sriranga Setty wrote Ex. C wherein he stated that as he was a permanent resident of Saklespur it was not possible for him to manage the property at Bangalore and that as such the sale-deed of the site may be executed in favour of the plaintiff after receiving from the latter the balance of Rs. 11,100/-. He also stated in that letter that the earnest money of Rs. 4000/- had in fact been paid by the plaintiff on his behalf. The defendants then wrote to the plaintiff as per Ext. M, dated 5-8-46, in which they enclosed a copy of Sriranga Settys letter (Ext. C) and asked him to deposit the balance of Rs. 11,100/- if he was agreeable to the arrangement proposed in Ext. C. The plaintiff accordingly deposited Rs. 11,100/- on 20-8-1946. On 11-11-1946 the defendants forwarded a copy of a draft sale-deed which they were willing to execute and asked the plaintiff to pay an additional sum of Rs. 485/- towards cost of stamp paper, drafting and typing fees. They subsequently wrote a reminder Ex. S on 26-3-1947 asking the plaintiff to pay the said amount immediately after which they would arrange for the execution and registration of the sale-deed in his favour. The plaintiff paid this amount also on 9-4-47. He however did not hear anything further from the defendants about the execution of the sale-deed and he therefore wrote Ex. W on 19-6-47 asking them to expedite the matter. At this stage, on 17-7-47, the defendants wrote Ex. Y to the plaintiff informing him that the Standing Committee was objecting to execute the sale-deed in his favour and inquiring if it could be drafted in favour of Sriranga Setty to which the plaintiff replied on 19-11-47 as per Ext. Z drawing their attention to the previous correspondence and pointing out that the Municipal Commission (as the defendants were then called) could not raise such objection then as they had accepted from him Rs. 4000/- towards earnest money and Rs. 11,100/- being the balance of purchase money as also the cost of stamp paper, etc., amounting to Rs. 485/-. He further stated that Sriranga Setty was his nephew and not a third party and that the arrangement between them was only a transfer and insisted that the sale-deed should be executed in his favour. He was then informed by a reply dated 25-11-47 (as per Ex. AA) that the Standing Committee of the Municipal Commission had decided against him and as such the sale-deed could only be executed in the name of Sriranga Setty. The stamp paper, which in the meanwhile had been purchased out of plaintiffs money, was returned to him with that letter. The plaintiff then issued a notice, Ext. BB, dated 12-1-48, as required by S. 38 of the Bangalore Municipal Law and demanded the return of purchase money with interest, etc., aggregating Rs. 16559-9-0. The Commission did not reply to this notice but simply sent him a copy of letter Ext. CC, dated 23-3-48, addressed by them to Sriranga Setty in which they had enquired whether he would indemnify the Municipal Commission by executing the necessary bond in their favour. The plaintiff wrote back to say that he was standing by his statutory notice. Sriranga Setty also refused to execute an indemnity bond as required by them. The defendants again wrote as per Ex. EE on 8-7-48 to the plaintiffs counsel forwarding a resolution of the Municipal Commission dated 24-6-48 to the effect that the sale-deed may be executed in favour of the plaintiff on his executing an indemnity bond as a safeguard against any possible claims by Sriranga Setty or his heirs. This evoked a reply from the plaintiff as per Ext. VIII that he stood by his demand notice issued through his advocate on 12-1-1948. Thereupon the Municipal Commission wrote to Sriranga Setty on 4-9-1948 as per Ext. GG asking him to pay the balance of Rs. 11,100/- as the plaintiff had refused to buy the site. Sriranga Setty refused to do so. He wrote as per Ex. K and asked the defendants to refund the entire sum to the plaintiff. The plaintiff however subsequently complained to the Government whereupon the defendants returned a sum of Rs. 11,149-1-0 by cheque on 2-6-1949 and refused to pay the earnest money of Rs. 4100/- and other charges and hence his present suit.

3. The contention on behalf of the Corporation was that all along they were agreeable to execute the sale-deed in favour of the plaintiff provided they were safeguarded against any claim from the highest bidder, Sriranga Setty, and that the plaintiff and Sriranga Setty had unreasonably refused to give such an indemnity. They further contended that there was no privity of contract between the plaintiff and the defendants and that as such the plaintiff was not entitled to claim the suit amount.

4. Sriranga Setty has been examined in the case as P. W. 1. He has unequivocally declared that his maternal uncle, the plaintiff, had advanced Rs. 4000/- towards earnest money by means of a cheque issued by him in favour of the defendants on 19-6-1946. He has also admitted that he wrote Ext. C wherein he has not indicated any objection to the refund of Rs. 4000/- to the plaintiff.

5. We think the judgment of the lower Court is clearly wrong and cannot be supported. Mr. W. Ekambaram, learned counsel for the respondents, urged before us that there was no privity of contract between the plaintiff and the defendants. Such a plea is unintelligible as the defendants in this case have chosen to accept the arrangement by which the amount paid by Sriranga Setty was to be treated as having been paid by the plaintiff and to execute a sale-deed in his favour. They have also called for and received the necessary expenses for stamp and registration and sent to him a draft sale-deed. Sriranga Setty has told them definitely in Ext. C and Ex. K that the sum of Rs. 4000/- paid towards earnest money really belongs to the plaintiff, his close relation, and he has not at any time subsequent thereto objected to the refund of the same to the plaintiff or to the execution of the sale-deed in his favour. The plaintiff accepted the offer made by the defendants as per Ext. M and in fact paid the balance of the purchase money as also stamp and registration charges, etc. There is therefore no substance in the contention relating to privity of contract.

6. It was next urged by Mr. Ekambaram that the plaintiff or Sriranga Setty might easily have executed the indemnity bond demanded of them when the defendants would have executed a sale-deed in favour of the plaintiff without any difficulty and that as the indemnity bond was asked for with a view to safeguarding the interest of the Corporation, the demand for it was bona fide. As Sriranga Setty had himself written the letters Ext. C and Ex. K there was no possibility of any claim being made by him against the Corporation and as such there was no question of his giving an indemnity bond in the matter. Nor can the plaintiff be required to give such a bond. If the defendants insisted on such a meaningless bond, which in law they could not do, and made that a condition for executing a sale-deed which they were bound to do, the mere fact that they did so by way of abundant caution cannot justify their action, in law, or save them from the consequences of such unreasonable conduct.

7. Mr. Ekambaram further contended that the acceptance of the arrangement with the plaintiff has been by the Secretary and not by the President of the Municipal Commission and that the Secretary had no power to commit the Municipal Commission by such an acceptance. Here again, the defendants are on slippery ground. Mr. T.S. Desikachar who was the Manager of the Municipal Commission has admitted in his evidence that the "President sees every tappal. At times the Secretary used to act according to the instructions of the President.......... Ex. M was not brought to the notice of the President. Ext. M is a routine paper. On routine papers the Secretary had power to act." That is clearly an understandable position. By writing Ext. M to the plaintiff the Secretary was not imposing any additional or new burden or responsibility on the Municipal Commission. He was not making any new contract with the plaintiff. The Municipal Commission had merely to execute the sale-deed in favour of the plaintiff instead of the original bidder, Sriranga Setty, according to the latters instructions. One of the duties cast on the vendor by S. 55(1)(d) of the Transfer of Property Act is, on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place. The obligation under the sub-section is merely to execute a proper conveyance, the section being silent as to the person in whose favour the conveyance is to be executed. In a case decided by Beaumont, C.J. and Rangnekar, J. and reported in - Rahimtulla v. Official Assignee, AIR 1935 Bom 340 (A), it has been pointed out that unless there is anything express in the contract to convey, entitling the vendor to insist that he is not bound to execute1 any conveyance except in the name of the purchaser, the vendor is bound to execute a proper conveyance to the purchaser or his nominee. The party to a contract may dispose of the benefit of the same in favour of any other person. Such a disposition may be made either by way of assignment or by a sale or in any other way. In England the law appears to be quite clear that a purchaser can always demand a conveyance from the vendor not only in his own favour, but in, favour of any person as he would direct and the vendor cannot refuse to execute a conveyance in favour of the nominee of the purchaser. See - Earl of Egmont v. Smith, (1877) 6 Ch D 469 at p. 474 (B), where Jessel, M. R., has pointed out that "an ordinary contract of sale is not only to convey to the purchaser, but to convey as the purchaser shall direct." It is observed in Halsburys Laws of England, Vol. 29, Hailsham Edn., 1938, at p. 411- "Para 558. As a rule the conveyance is made to the purchaser, but, provided the vendor is not prejudiced, the purchaser can direct it to be made to a nominee, for such estate and interest, not exceeding the interest purchased, as he pleases. Where the grantee is to enter into covenants with the vendor, the purchaser cannot substitute a new covenantor for himself without the vendors consent, and in such a case the "nominee must not be a person under disability." "Para 559. When the purchaser has disposed of the land before the completion of the contract, it is usual, for the purpose of saving the expense of the second conveyance and double stamp duty, to take the assurance direct to the second purchaser. The disposition may be either by assignment of the contract or resale of the land. Upon an assignment of the contract the original purchaser is not usually a necessary party to the conveyance, nor is he a necessary party where there is a resale without increase of price." In such a course there is no additional burden cast on the vendor as he receives full consideration and goes out of the scene. It is not urged in this case that the purchaser had to perform any other obligation or that any personal qualification of the purchaser was a material element of the contract of sale, or that there was any special contract which would override the general rights of the parties.

8. In the result, we think that the judgment and decree of the learned Subordinate Judge must be set aside and the suit allowed.

9. As regards the amount for which a decree has to be passed in favour of the plaintiff, it is contended by Mr. Ekambaram that the plaintiff cannot claim interest on Rs. 4100/- from 19-6-46 and on Rs. 11,100/- from 5-8-46 as he has done. By virtue of S. 55(6)(b) of the T. P. Act, a purchaser is entitled, unless he has improperly declined to accept delivery of the property, to a charge on the property for the purchase money paid by him in anticipation of the delivery and also for interest thereon and if the sale falls through for no fault of his and he properly declines to accept the delivery, also far earnest money. The defendants adopted a curious and vacillating attitude and their refusal to refund the amount even when demanded through a lawyers notice, Exhibit BB, which expressly claimed interest from dates of deposit clearly entitles the plaintiff to claim it by way of damages. The defendants had the use of a large sum of money of the plaintiff and the latter who is described as a merchant was deprived of the use of it and is entitled to be compensated for the same. The interest claimed at 6 per cent, per annum is not unreasonable or excessive. The plaintiff cannot however claim such interest either from 19-6-46 the date of the sale or 5-8-46 but can only do so from 20-8-46 by which time the cheques issued by the plaintiff had been realised and the entire purchase money was made up.

10. We therefore allow this appeal and there will be a decree in favour of the plaintiff as prayed for but with interest only from 20-8-1946 up to date of payment. The plaintiff will have his costs from the defendants both here and in the Court below. Appeal allowed. AIR 1954 MYSORE 147 (Vol. 41, C.N. 61) "Puttappa v. Maligamma" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Puttappa, Petitioner v. Maligamma and others, Respondents. Civil Revn. Petn. No. 389 of 1952-53, D/- 11 -3 -1953, against order of Sub. J., Hassan, D/- 11 -8 -1952. Civil P.C. (5 of 1908), O.47, R.7 and S.115 - REVIEW - REVISION - Revision. Maintainability of appeal against order in review not objected to before appellate Court - Order of appellate Court, setting aside order in review, just, while order in review unjust : Held that in the absence of objection to maintainability of appeal it was to be taken that the opposite party conceded that the error which occasioned the review fell within Cl. (a), (b) or (c) of O. 47, R. 7(1) : Held further that the appellate order in such a case will not be interfered with in revision merely on the ground that the Court of appeal had no jurisdiction : Case law referred to. (Para 4) Anno : C.P.C., S. 115 N. 27; O. 47, R. 7 N. 16. Cases Referred : Courtwise Chronological Paras (A) (26) 4 Mys LJ 53 4 (B) (V 16) AIR 1929 Rang 198 : 120 Ind Cas 693 4 (C) (V 8) AIR 1921 Lah 265 : 67 Ind Cas 278 4 (D) (31) 9 Mys LJ 433 4 E. Kanakasabhapathy, for Petitioner; R.V. Srinivasaiya, for Respondent. Judgement This is a revision petition against the decision in Misc. Appeal No. 7/51-52 on the file of the Subordinate Judge, Hassan, setting aside the order of review in Mis. 142 of 49-50 on the file of the Munsiff, Hassan, granting review of the decree in O. S. No. 351 of 48-49.

2. The property in dispute was purchased by Puttappa, the present petitioner, from one Mahadeviah and his son Renukaradhya. Bramarambha, their minor daughter, filed a suit claiming the property as belonging to her deceased mother and after her death Malligamma respondent 1 in this case was brought on record, as the L. R. of Bramarambha. The ultimate decision of the High Court in that case is that Malligamma was entitled to th share of the property while Puttappa the present petitioner was entitled to -th share. When Malligamma was executing the decree in her favour, the three younger brothers of Puttappa, the petitioner in this case, filed a suit for declaration of their title to the property in dispute and for an injunction restraining Malligamma from executing the decree in her favour. Puttappa, the present petitioner, was also made a defendant, but he remained ex parte. Thereafter there was a compromise between the petitioners brothers and Malligamma, the latter being allowed to take th share, -th share being allowed to be taken by the three brothers. There was a decree in accordance with this compromise. But Puttappa, the present petitioner, filed a review petition saying that he was not aware of the compromise and that he should get the entire th share that had fallen to the share of Malligamma or at least th of her share. The review was granted by the learned Munsiff.

3. It will be noticed that the learned Munsiff was wrong in allowing the review petition and giving the petitioner -th of the th share that had fallen to the share of Malligamma. The petitioner knew full well that he who had purchased the property got only ths share and if at all his brothers had any claim to it as members of an undivided family, they could only get -th of the ths share, which according to the High Court decision he was entitled to in the property. He should have, therefore, sought for getting th share in the -th share to which he and his brothers were entitled to. But this he did not apply for, as evidently he and his brothers intended to deprive Malligamma of her th share in the said property. The learned Subordinate Judge was therefore right in setting aside the order passed in review.

4. It is contended that whatever might be the merits of the case, the learned Subordinate Judge was wrong in interfering with the order in review in an appeal filed against it. As has been held in - 4 Mys LJ 53 (A) : "If a Court has erroneously granted a review, unless the error falls under cls. (a), (b) or (c) of sub-r. (1) of R. 7 of O. 47, the order granting the review cannot be objected to either by way of appeal or in revision." Unfortunately for the petitioner in this case no objection was taken in the Court of appeal, about the maintainability of the appeal, and in the absence of any such objection it must be taken that it was conceded that the error which occasioned the review fell under cls. (a), (b) or (c) of sub-r. (1) of B. 7 of O. 47. Moreover, in this case it has been shown that the order of the appellate Court is just, while the order passed by the learned Munsiff in review is unjust. In such cases the Court of revision is not bound to interfere merely on the ground that the Court of appeal had no jurisdiction to sit in appeal over the order and it is so particularly when the question of lack of jurisdiction was not raised in the Court of appeal. As has been observed in - M. T. T. K. M. M. N. Chettyar Firm V. V. K. P. A. N. M. Firm, AIR 1929 Rang 198 (B) that : "Where the appellate Court has decided correctly but has decided without jurisdiction by holding that appeal lay where appeal did not lie, High Court will not interfere in revision." I may here refer to the decision in - Ganda Ram v. Sundar Lal, AIR 1921 Lah 265 (C) that : "The High Court is not bound to interfere on the revision side even when there is a defect of jurisdiction unless failure of justice has directly resulted from such a defect." It has also been observed in - Doddamallappa Setty v. Khanderaya Setty, 9 Mys LJ 433 (D) that : ".................... the revisional jurisdiction is exercised in the ends of justice, and not in furtherance of purely technical grounds, especially at the instance of a party who had the assistance of counsel and who himself was responsible for the course adopted by the opponent and the lower Court."

5. No case is, therefore, made out for interference in revision in this case. The revision petition stands dismissed. The parties will bear their own costs. Petition dismissed. AIR 1954 MYSORE 148 (Vol. 41, C.N. 62) "A.V. Krishnappa Reddy v. Venkatappareddy" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) A.V. Krishnappa Reddy, Plaintiff-Petitioner v. Venkatappareddy and others, Defendants-Respondents. Civil Revn. Petn. No. 340 of 1952-53, D/- 5 -3 -1953, against order of Principal Dist. J., Bangalore, D/- 29 -7 -1952. (A) Civil P.C. (5 of 1908), O.33, R.1 - FORMA PAUPERISM - Suit filed in ordinary way can be continued at later stage as pauper suit provided circumstances justify it. (Para 3) Anno : Civil P.C., O. 33, R. 1, N. 2 Ft. 1. (B) Civil P.C. (5 of 1908), O.7, R.11 and O.33, R.1 - PLAINT - FORMA PAUPERISM - Deficit court-fee not paid but leave to continue suit as pauper asked for. Order 7, R. 11 does not apply to applications to sue in forma pauperis. When the plaintiff is given time to make up the deficiency in the court-fee and within the time so allowed, he applies for permission to continue the suit as a pauper, the application should be considered on merits and the plaint should not be rejected for failure to pay the deficient court-fee. AIR, 1936 Cal 221, Relied on. (Para 3) Anno : Civil P.C., O. 7, R. 11 N. 5; O. 33 R. 1 N. 2. (C) Civil P.C. (5 of 1908), O.33, R.2 - FORMA PAUPERISM - PRACTICE AND PROCEDURE - Leave asked for, at later stage of suit - Procedure. The procedure in Rr. 2-8 is essentially meant for applications instituted in forma pauperis at the inception. When a suit has already been registered in the ordinary way, and leave is asked for at later stage, it is obviously unnecessary to include a plaint as required under R. 2. The Court in the exercise of its inherent power should dispose of the application on merits after notice to the opposite side. (Para 4) Anno : Civil P.C., O. 33, R. 2 N. 1. Cases Referred : Courtwise Chronological Paras (A) (V 23) AIR 1936 Cal 221 : 162 Ind Cas 689 3 (B) (V 20) AIR 1933 Cal 238 : 141 Ind Cas 135 3 (C) (V 16) AIR 1929 Mad 828 : 53 Mad 43 4 (D) (V 38) AIR 1951 Mad 841 : 1951-1 Mad LJ 446 4 N.V. Ramachandra Rao, for Petitioner; B.V. Rama Rao, for Respondents, Judgement This revision petition is directed against the order of the District Judge, Bangalore, rejecting I. A. No. 3 filed by the plaintiff in O. S. No. 81 of 1951-52.

2. The said original suit was filed by the plaintiff for partition and possession of his th share in the family properties, alleging that he was in joint possession, on payment of a fixed court-lee of Rs. 50/-. Later, an amendment of the plaint to include a prayer for cancellation of a release deed was sought for and granted by the Court. In consequence of the amendment granted, the plaintiff was required to pay an additional court-fee of Rs. 975/-. Pleading his inability to meet the heavy demand, he filed an application (I. A. No. 3) under O. 33, R. 1, Civil P.C., through his counsel for permission to continue the suit as a pauper. The trial Court held that such an application in pending proceedings is not maintainable.

3. Mr. Rama Rao, the learned Advocate for the respondent, frankly admitted that he is unable to support the order of the trial Court on the grounds mentioned therein, but contended that the application is liable to be rejected on other grounds. I am unable to agree with the learned District Judge that the suit filed in the ordinary way could not be continued at a later stage as a pauper suit. It is a recognised principle that the Court which has the power to permit on certain grounds, the institution of a suit in forma pauperis, be deemed to possess power to continue the suit on similar grounds at a later stage provided the then circumstances justify such a course. In - Mahomed Fateh Nasib v. Saradindu Mukerjee, AIR 1936 Cal 221 (A), where a suit had been registered as an ordinary suit and the plaintiff did not pay the deficient court-fee but applied for permission to continue the suit as a pauper, it was held that the application should not be rejected on the ground that the suit had already been registered as an ordinary suit. It was contended by the respondent that the plaintiff, not having paid the requisite court-fee as directed, the suit should have been dismissed under O. 7, R. 11, Civil P.C. Order 7, R. 11, does not apply to applications to sue in forma pauperis. When the plaintiff is given time to make up the deficiency in the court-fee and within the time so allowed, he applies for permission to continue the suit as a pauper, the application should be considered on merits and the plaint should not be rejected for failure to pay the deficient court-fee (Vide - Surendra Chandra v. Showdamini Roy, AIR 1933 Cal 238 (B)). The same High Court has laid down in - AIR 1936 Cal 221 (A) that "the mandatory provisions contained in O. 7, R. 11, are intended for cases when no other complications intervene and the Court has sufficient inherent power to depart from the normal procedure to suit the exigencies of the situation." Order 33 prescribes a special procedure to aid a person not having sufficient means to pay the court-fee to institute a suit as a pauper provided he fulfils the conditions laid down in the said Order and there is no prohibition to extend the benefit of the said provision at any stage of the suit or to withdraw the concession and dispauper the suitor if circumstances justify such a procedure.

4. It is next argued that the application is liable to be rejected on the ground that it was not presented in person as required by R. 3 of O. 33. Rule 1 of O. 33 enables the filing of suits in forma pauperis. Rule 2 prescribes the contents of the petition to include a plaint in detail and under R. 3, the application has to be presented in person or by a duly authorised agent. Rule 8 provides for registration of the application, when admitted, as a regular suit. This procedure is essentially meant for applications instituted in forma pauperis at the inception. When a suit has already been registered in the ordinary way, it is obviously unnecessary to include a plaint as required under R. 2. In a similar case - Subba Rao v. Venkataratnam, AIR 1929 Mad 828 (C), the Madras High Court held that an application should not be dismissed because it was not in accordance with Rr. 2 to 8 of O. 33, Civil P.C., but the Court in the exercise of its inherent power should dispose of the application on merits after notice to the opposite side. The respondent relied upon a recent decision reported in - Parvathi Ammal v. Meenakshi Animal, AIR 1951 Mad 841 (D) in support of the proposition that an application presented not in person by the applicant but through the counsel was held to have been not validly presented under O. 33. That case is distinguishable from the facts of the present petition, as in that case it was held to be a fresh suit and not an application in pending proceedings to continue the suit as a pauper. In that case, the original plaint was returned as not being within the jurisdiction of the Court, and the case ended. It was re-presented after making an amendment suo motu to bring it within the jurisdiction of the same Court. It was therefore held that being a fresh suit the petitioner had not complied with the provision that it should have been presented in person. In the circumstances of the present case, there is no doubt that an application to continue the suit as a pauper is maintainable and should have been enquired into and disposed of on merits. I, therefore, set aside the order of the trial Court and remit the application back for disposal on merits. The costs of this petition will be costs in the cause and will abide the final result; Advocates fee is Rs. 15/-. Case remanded. AIR 1954 MYSORE 149 (Vol. 41, C.N. 63) "Papiahachary v. Gurusamappa" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA AND MALLAPPA, JJ. ( Division Bench ) Papiahachary, Decree-holder-Petitioner v. Gurusamappa and others, Judgment-debtors-Respondents. Civil Revn. Petn. No. 69 of 1952-53, D/- 5 -3 -1953, against order of Sm. C.C.J., Bangalore, D/- 20 -3 -1952. (A) Limitation Act (9 of 1908), Art.182 - LIMITATION - Revival and continuation. First execution application for sale of certain movables filed within limitation - Claim by third person and stay of sale of movables - Execution dismissed on 21-12-1943 for statistical purposes as there was no other prayer - Second execution for sale of same movables dismissed on 6-3-1945 - Claim allowed on compromise and attachment of movables raised - Third execution filed on 23-12-1948 praying for arrest of judgment-debtor and for attachment of other movables : Held that the third execution could not be treated as a continuation of the previous applications as the prayers for relief were not the same as in the previous applications and as such it was barred under Art. 182(5). (Para 4) Anno : Lim. Act, Art. 182 N. 143 Ft. 20. (B) Limitation Act (9 of 1908), S.20 - LIMITATION - Duly authorised agent. A claimant of attached property cannot be said to be the agent of the judgment-debtor within the meaning of S. 20. In fact their interests are adverse to each other. (Para 5) Anno : Lim. Act, S. 20 N. 18. Cases Referred : Courtwise Chronological Para (A) (41) 19 Mys LJ 82 2 Y. Adinarayan Rao, for Petitioner; H. Nanjunda Sastry, for Respondents Nos. 1 to 3. Judgement The short point for consideration in this revision petition is whether Execution Application No. 889 of 48-49 on the file of the Court of Small Causes, Bangalore, filed on 23-12-1948 is in time or whether it is barred by time. The decree which is sought to be executed was passed on 10-6-1940. In Execution Case No. 976 of 41-42 certain moveables and immoveables were attached but the execution application was dismissed as being old : and the attachment was ordered to subsist. In Execution No. 84 of 43-44 the moveables attached in the previous execution case were sought to be sold. But a third person one Venkatachalam, who is not the judgment-debtor, filed a suit in O. S. No. 224 of 43-44 claiming that the moveables attached are his and got an order to stay sale of the moveables sought to be sold in that execution case. The result was that the execution application was dismissed as there was no prayer in that execution application for proceeding against the judgment-debtor in respect of any other property or by his arrest. Thereafter O. S. No. 224 of 43-44 was dismissed for default on 30-11-1944. Then the decree-holder filed Execution Case No. 459 of 44-45 for proceeding with the sale of the moveables already referred to but this was dismissed on 6-3-1945 on account of default of the decree-holder to pay process fee and to file a copy of the attachment list. The original suit was, however, restored to file on 20-12-1946 and ended in a compromise decree on 17-2-1948. According to the compromise the claimant paid Rs. 140/- with the result that the attachment of the moveables is raised and his claim to the same is allowed. The decree-holder then filed Execution 889 of 48-49 on 23-12-48 for arrest of the judgment-debtor and for attachment of other moveables. It will be noticed that this execution application is not only beyond three years from 21-12-1943 on which Execution Case No. 84 of 43-44 was dismissed but also more than 3 years from 6-3-1945 on which Execution No. 459 of 44-45 was dismissed. The Execution Application No. 889 of 48-49 is on the face of it barred by time.

2. It has however to be observed that it has been established by a long series of cases in our High Court that where an execution application is dismissed for statistical purposes on the ground that execution has been stayed or dismissed for no fault of decree-holder the first execution application after the bar is removed in case it had been stayed, must be treated as an application for a revival of the previous execution case dismissed for statistical purposes and not as a fresh execution application for purposes of Arts. 181 and 182, Limitation Act. We need refer only to - Venkate Gowda v. Mudli Setty, 19 Mys LJ 82 (A) and the case law referred to in it.

3. It is contended that since Execution No. 84 of 43-44 was stayed pending decision in O. S. No. 224 of 43-44, and that case must be deemed to be pending till it was disposed of by compromise on 17-2-1948, the period between the stay and the compromise must be excluded. What was stayed however is sale of moveables sought to be sold in Execution No. 84 of 43-44 and the decree-holder was not prevented by any stay order from proceedings against the other properties of the judgment-debtor or by his arrest. As such, while a fresh execution application after the stay order ceased to be operative, for proceeding with execution of the decree to the extent the stay order had come in the way of execution of the decree may be taken as a revival of the old execution case, it cannot be said that an execution application for execution of the decree to the extent the stay order did not come in the way of its execution, is a revival of the old case and that it is not governed by Arts. 181 and 182 if it is filed beyond time as provided in those articles.

4. When an execution application is dismissed for statistical purposes as, for instance, on the ground that it is one year old, though the decree-holder is diligent, it is contended that it is open to him to file a fresh execution application to continue the previous execution application dismissed for no fault of his. The new application filed to revive the old proceedings is not barred though it is filed more than 12 years after the decree but this contention is correct only to the extent that the new application seeks relief claimed in the previous execution application dismissed for statistical purposes. If there is a fresh prayer, the new application must be treated as a fresh application to that extent. In this case the contention would have been held good in case the prayer in Execution 459 of 44-45 was the same as the prayer in Execution No. 889 of 48-49 as in such cases it may have to be taken that the disposal in the previous case is for statistical purposes and the later execution application in which the same prayer is made is a continuation of the previous execution application dismissed for statistical purposes. In this case, however, attachment of the moveables for the sale of which Execution No. 84 of 43-44 was filed is not sought. In fact the attachment of those moveables has been raised. What is sought is the attachment of other moveables of the judgment-debtor, i.e., the prayers in the two execution applications are not the same though they are similar. It cannot therefore be said in any sense that Execution No. 889 of 48-49 can be taken as a continuation of Execution No. 84 of 43-44 even if it is deemed that the disposal of that execution case is merely for statistical purposes. Then again there is now a prayer for arrest of the judgment-debtor and in respect of this prayer it cannot be said that it is even similar to the prayer made in Execution No. 84 of 43-44. It was also contended that Execution No. 975 of 41-42 was disposed of for statistical purposes. It is admitted that the prayer in that case was for attachment of certain immoveables and for attachment and sale of moveables already referred to. As such, the present execution application, i.e., Execution No. 889 of 48-49 on the file of the Court of Small Causes, Bangalore, in which the relief sought is attachment and sale of other moveables and arrest of judgment-debtor can, under no circumstances, be deemed to be a continuation of Execution No. 975 of 41-42 in which no such prayer had been made. As the prayer in the present execution application is totally different from the previous execution applications, the contention of the decree-holder that the present execution application must be deemed to be a continuation of either Execution No. 84 of 43-44 or of 975 of 41-42 fails.

5. There is only one other contention raised on behalf of the decree-holder for the purpose of showing that the execution application under consideration is in time. It is contended that a sum of Rs. 140/- has been paid by the plaintiff in O. S. No. 224 of 43-44 and that payment must be deemed to be the payment on behalf of the judgment-debtor for purposes of S. 20, Limitation Act. In the first place this point has not been relied upon in the execution application and in the second place it cannot be said under any circumstances that the claimant is an agent of the judgment-debtor and in fact their interests are adverse to each other. Moreover, no allegation is made and no attempt is made to prove that payment is either towards the interest or towards the principal and that the payment has been evidenced by an acknowledgment in the hand-writing of, or in a writing signed by, the person making the payment.

6. On the whole there is no substance in any of the contentions raised by the decree-holder. The lower Court was right in holding that the execution application is time barred. This revision petition is therefore dismissed with costs. Revision dismissed. AIR 1954 MYSORE 150 (Vol. 41, C.N. 64) "Seshagiri Rao v. State of Mysore" MYSORE HIGH COURT Coram : 1 VENKATARAMAIYA, J. ( Single Bench ) M. Seshagiri Rao, Petitioner v. The State of Mysore, Complainant-Respondent. Criminal Revn. Petn. No. 300 of 1953, D/- 18 -2 -1954, against conviction and sentence passed by Special First Class Magistrate, Ramanagaram, in C. C. No. 949 of 1953. (A) Mysore Police Act (5 of 1908), S.56(o) - POLICE OFFICERS - OBJECT OF AN ACT - Scope. For the purpose of Cl. (o) of S. 56, it is enough that in a public street indecent language is indulged in with or without particular reference to an individual and so the non-examination of any one cannot have the significance which it may otherwise have, provided there is proof of the alleged utterance. (Para 1) The judgment in a summary trial should be such as to enable a higher Court to know from a perusal of the same, the nature of the case, substance of the evidence and the reasons for the conclusion arrived at. The accused is under a handicap in challenging the conviction in a summary trial but this should not lead to his being dealt with arbitrarily. (Para 2) Anno : Cr. P.C., S.263 N, 2. The omission of the Magistrate to put his signature on the judgment by writing his name instead of the initials is a mere irregularity not affecting the legality of the conviction. It is desirable, however, that Magistrates should avoid this and not give room for criticism on the score of the provisions of the Code not being duly complied with AIR 1954 SC 194; AIR 1925 All 299, Rel. on. (Para 3) Anno : Cr. P.C., S. 265 N. 3; S. 537 N. 12. Cases Referred : Courtwise Chronological Paras (A) (V 17) AIR 1930 Mad 867 : 32 Cri LJ 430 2 (B) (V 17) AIR 1930 Mad 187 : 31 Cri LJ 715 2 (C) (V 12) AIR 1925 All 299 : 26 Cri LJ 688 2 (D) (V 41) AIR 1954 SC 194 : 1954 Cri LJ 475 (SC) 2 S.K. Venkataranga Iyengar, for Petitioner; Advocate-General, for the State. Judgement The petitioner has been convicted under cl. (o) of S. 56, Mysore Police Act, for having uttered abusive words in indecent language in a public street and sentenced to pay a fine of four annas. The case was tried summarily and in view of S. 263, Criminal P.C., the correctness of the conviction has to be mainly determined from the judgment in the case. Sri S.K. Venkataranga Iyengar, learned counsel for the petitioner, contended that according to the report made by the police, the offence alleged is one falling under cl. (r) of S. 56 which requires that the words uttered should not only be abusive and in a street bus also intended or likely to cause breach of the peace, that since there is no finding that the words were intended or likely to cause it, the conviction is erroneous. Under cl. (o) mere use of indecent language is punishable. The word "indecent" is not found in cl. (r). That the words attributed to the accused are indecent admits of no doubt. The accused was asked whether he gave expression to these and if it is proved that he uttered the words the conviction under cl. (o) cannot be said to be wrong whatever may have been alleged by the police. It was next urged that the person with reference to whom the words were uttered has not been examined and that the case is concocted. For the purpose of cl. (o) it is enough that in a public street indecent language is indulged in with or without particular reference to an individual and so the non-examination of any one cannot have the significance which it may otherwise have, provided there is proof of the (alleged utterance. The accused in his statement mentions ill-will on the part of the Sub-Inspector who is not a witness but does not impute any motive for the witnesses who have been examined to implicate him unnecessarily. Their version cannot therefore be discarded as false. If this is believed, as has been done by the lower Court, the conviction is justified.

2. The objection strenuously put forward to the conviction is that the judgment is defective inasmuch as the names of witnesses and the particulars of the evidence of each are not set forth in sufficient detail and that it does not bear the signature of the Magistrate. It is true that in a case of this kind the requirements of S. 263 should be satisfied as the judgment is almost the sole record to be looked into and the reasons for the decision are to be gathered from it. As pointed out in many cases the judgment should be such as to enable a, higher Court to know from a perusal of the same the nature of the case, substance of the evidence and the reasons for the conclusion arrived at. The accused is under a handicap in challenging the conviction in a summary trial but this should not lead to his being dealt with arbitrarily. The evidence may well have been referred to in some detail and the requirements for constituting the offence noticed in the judgment but I do not think that these are serious flaws. For the contention that the judgment is invalid as it does not bear the signature of the Magistrate the decision of - Sundaram Chetty, J. in - Brahmaiah v. Emperor, AIR 1930 Mad 867 (A) was cited. In that case which was tried summarily by a Bench of Magistrates the judgment was signed by two of them and initialled by one. The learned Judge considering the words of S. 265 of the Code "a judgment shall be signed by each member of the Bench........" and the meaning attached to the word signing in cases relating to will and risk note, and warrant of arrest, held that the "requirements of public policy necessitate the writing of the full name of the Magistrate who signs the judgment and the mere putting in of the initials is not a sufficient compliance with the mandatory provisions of the section." But a Division Bench of the same Court held in - T. M. A. Nathan v. Emperor, AIR 1930 Mad 187 (B), that a judgment of a Bench of Magistrates signed only by the Chairman of the Bench does not affect the conviction though S. 265 of the Code required that by whomsoever the judgment and record may have been written these shall be signed by all the members present and that the omission as to the signing was an irregularity which occasioned no failure of justice and curable under S. 537 of the Code, since all the members had signed the register in which the sentence was embodied. In - Ram Sukh v. Emperor, AIR 1925 All 299 (C) Mukerji, J. expressed that the omission of a Magistrate to sign the judgment is an irregularity covered by S. 537 of the Code and added "It will be deplorable if after a trial the judgment has to be set aside and a retrial has to be ordered simply because the learned Magistrate forgot to sign the judgment and date it. The irregularity does not affect the merits of the case and therefore this point fails." As to what is essential for consideration about a judgment in a criminal case, Bose, J. in the course of the judgment of the Supreme Court - Surendra Singh v. State of Uttar Pradesh, AIR 1954 SC 194 (D) at p. 196 states "Small irregularities in the matter of pronouncement or the mode of delivery do not matter but the substance of the thing must be there; that can neither be blurred or left to inference and conjecture nor can it be vague. All the rest-the manner in which it is to be recorded, the way in which it is to be authenticated, the signing and the sealing, all the rules designed; to secure certainty about its content and matter can be cured. If a judgment happens not to be signed and is inadvertently acted on and executed the proceedings consequent on it would be valid.........."

3. The omission of the Magistrate to put his signature by writing his name instead of the initials is in the circumstances a mere irregularity not affecting the legality of the conviction. It is desirable that the Magistrate should avoid this in future and not give room for criticism on the score of the provisions of the Code not being duly complied with.

4. There are no good grounds for interference. The petition is hence dismissed. Petition dismissed. AIR 1954 MYSORE 152 (Vol. 41, C.N. 65) "Abdul Shakoor v. Custodian of Evacuee Property" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) Abdul Shakoor and another, Appellants v. Custodian of Evacuee Property in Bangalore, Respondent. Regular Appeals Nos. 5 and 6 of 1953, D/- 4 -2 -1954, connected with Writ Petns. Nos. 67 and 68 of 1953, against the order of Revenue Commissioner and Custodian of Evacuee Property, Mysore, D/- 2 -12 -1952. (A) Mysore Administration of Evacuee Property (Emergency) Act (47 of 1949), S.30 - EVACUEE PROPERTY - APPEAL - REPEAL AND SAVINGS - Right of appeal - Act repealed subsequently - Effect of repeal on right. Civil P.C. (5 of 1908), S.96. Ordinarily the law in force at the time the action started must govern the decision of such action at all stages. The right of appeal which is a matter of substantive right, and not one relating merely to procedure, becomes vested in a party when proceedings are first initiated in, and before a decision is given by, the inferior Court. Such a vested right cannot be taken away except by express enactment or necessary intendment. The right of appeal, which had been expressly granted under S. 30 of the Mysore Administration of Evacuee Property (Emergency) Act (47 of 1949) in respect of proceedings initiated under s. 5 of that act, was not taken away either expressly or by necessary intendment by the subsequent Acts, namely, the Mysore Administration of Evacuee Property Second (Emergency) Act (74 of 1949) or the Administration of Evacuee Property Act (31 of 1950). AIR 1953 SC 221, Foll. (Paras 3, 4, 6) Anno : C.P.C., S. 96, N. 2. (B) Mysore Administration of Evacuee Property (Emergency) Act (47 of 1949), S.2(c) - EVACUEE PROPERTY - "Leaves or has left" - Temporary leaving. The words "leaves or has left "imply some amount of permanent stay or residence outside India, though not to the extent of completely abandoning the Indian domicile. It could never have been the object of the Legislature when they enacted the Mysore Administration of Evacuee Property (Emergency) Act (47 of 1949) to declare people who had gone out of Mysore for a short time and had returned to Mysore even long before that Act was contemplated, i.e., between 1-3-47 and 7-7-49, as evacuees or to declare their properties as evacuee properties and to render them homeless paupers even if they chose to continue to reside in Mysore or drive them out of India unless their cases fell under sub-cls. (ii) and (iii) of S. 2(c). AIR 1953 Pat 112, Rel. on. (Para 16) (C) Mysore Administration of Evacuee Property (Emergency) Act (47 of 1949), S.2(c) - EVACUEE PROPERTY - Remittance of funds to members of family in Pakistan or for trade purpose. Administration of Evacuee Property Act (31 of 1950), S.2(d). The definition of "evacuee" in S. 2(c) applies to the person who is to be found to be an evacuee. Merely because some members of his family have migrated to Pakistan and he has sent some monies to them the person cannot be treated as an evacuee and his property in India as evacuee property. If the persons have transferred some funds for legitimate purposes of either their trade or for providing maintenance to the members of their family who might have left for Pakistan on account of disturbances, it will not necessarily make such persons evacuees. (Para 18) (D) Mysore Administration of Evacuee Property (Emergency) Act (47 of 1949), S.2(c) - EVACUEE PROPERTY - Evacuee - Members of family in Pakistan. Administration of Evacuee Property Act (31 of 1950), S.2(d). There is nothing in the definition of evacuee which will justify holding that if some members of a family of a person are in Pakistan or have migrated to Pakistan on account of the disturbances or are living there, the person in India is an evacuee. (Para 19) (E) Constitution of India, Art.7 - CITIZENSHIP - MIGRATION - "Migrated". The expression "migrated from the territory of India to the territory now included in Pakistan" as used in Art.7 can only mean departure from the territory of India to Pakistan with the intention of residence or settlement in that country. (Para 21) Anno : Const. of India, Art.7 N. 2. (F) Constitution of India, Art.7 - CITIZENSHIP - Temporary visit to another country. A temporary visit to another country on business or otherwise cannot amount to migration. Whether a person has migrated from one country to another or has gone there on a temporary visit is primarily a question of fact which will have to be decided on the circumstances of each case. AIR 1952 All 257, Foll. (Para 21) Anno : Const. of India, Art. 7 N. 2. Cases Referred : Courtwise Chronological Paras (A) (V 40) AIR 1953 SC 221 : 1953 SCR 987 (SC) 6 (B) (1905) 1905 AC 369 : 74 LJPC 77 6 (C) (08) 32 Bom 337 : 10 Bom LR 330 6, 7, 8 (D) (V 14) AIR 1927 PC 242 : 9 Lah 284 (PC) 6, 7, 8 (E) (V 15) AIR 1928 Lah 627 : 10 Lah 165 (FB) 6 (F) (V 15) AIR 1928 Cal 640 : 56 Cal 512 (FB) 6 (G) (V 31) AIR 1944 Bom 252 : 46 Cri LJ 328 6 (H) (V 16) AIR 1929 Mad 381 : 52 Mad 361 (SB) 6

(I) (V 15) AIR 1928 All 437 : 50 All 965 (FB) 6 (J) (V 37) AIR 1950 Ngp 177 : ILR (1950) Nag 532 (FB) 6 (K) (V 39) AIR 1952 Punj 103 : ILR (1951) Punj 395 (FB) 6

(L) (V 18) AIR 1931 Cal 100 : 129 Ind Cas 349 6 (M) (V 38) AIR 1951 SC 124 : 52 Cri LJ 391 (SC) 6 (N) (V 39) AIR 1952 SC 409 : ILR (1953) Patiala 9 (SC) 6 (O) (V 39) AIR 1952 Pat 380 6 (P) (V 30) AIR 1943 Mad 208 (1) : 1942-2 Mad LJ 667 7 (Q) (V 31) AIR 1944 Mad 148 : 215 Ind Cas 65 7 (R) (47) 52 Mys HCR 455 9 (S) (V 41) AIR 1954 Mad 103 : 1953-2 Mad LJ 334 (FB) 11 (T) (V 37) AIR 1950 Pat 318 : 29 Pat 318 11 (U) (V 38) AIR 1951 SC 230 : 1951 SCJ 334 (SC) 11

(V) (V 40) AIR 1953 Pat 112 : 32 Pat 131 16 (W) (V 40) AIR 1953 SC 298 : 1953 SCR 691 (SC) 17

(X) (V 39) AIR 1952 All 257 : 1952 Cri LJ 553 21 K. Rajah Iyer and Mahomed Haneef, for Appellants; Nittoor Srinivasa Rao, Advocate-General, for Respondent. Judgement VASUDEVAMURTHY, J. :- The above two appeals are by two brothers Khan Saheb Abdul Ghani and Khan Saheb Abdul Shacoor against a common order dated 2-12-1952 passed by the Revenue Commissioner and Custodian of Evacuee Property in Mysore in Evacuee Property Case No. 12/51-52. The two writ petitions are by the same parties and are made under Art. 226 of the Constitution of India and therein they have prayed that the same order of the Custodian may be quashed by a suitable writ.

2. This case has had a chequered history to which it is necessary briefly to refer. Shortly after the partition between what is now known as the territory of India and Pakistan, the then Government of His Highness the Maharaja of Mysore being satisfied that circumstances existed which rendered it necessary to take immediate action to provide for the administration of evacuee property in Mysore and in exercise of the powers conferred by Sub-S. (1) of S. 31 of the Government of Mysore Act of 1940 enacted Act No. 47 of 1949. The Mysore Administration of Evacuee Property (Emergency) Act of 1949. Thereafter the Custodian of evacuee property in Mysore, by virtue of his powers under S. 6 of that Act, notified in the Mysore Gazette dated 21-9-1949 the properties of the appellants as evacuee properties which had vested in him under the Act. The appellants then applied to him under S. 8 objecting to their properties being so treated and their applications were transferred for enquiry to the Deputy Commissioner and Deputy Custodian of Bangalore District. He overruled their objections and declared their properties as evacuee properties by an order dated 17-4-1950. Against that order the appellants appealed to the Custodian and that officer passed a long and considered order on 22-8-1950. He found that there was not sufficient evidence to treat the appellants as evacuees as defined in S. 2(c)(i), (ii) and (iii) of the first (Emergency) Act and that consequently the properties in question belonging to the appellants could not be treated as evacuee properties. He, therefore, set aside the order of the Deputy Custodian and allowed the appeals. He made a reference to the first (Emergency) Act apparently because by that time in Mysore a second Act had been passed by the Government of His Highness the Maharaja of Mysore Act 74 of 1949. The Mysore Administration of Evacuee Property Second (Emergency) Act. Subsequent to that order the Custodian General issued notice to the appellants on 3-10-1950 calling upon them to show cause why the order of the Custodian should not be revised. That notice purported to be under S. 27 of Act 31 of 1950 which was an Act enacted by Parliament on 17-4-1950 called the Administration of Evacuee Property Act of 1950. The Custodian General who was not the Custodian General who issued notice, then heard arguments and made an order on 13-9-52 setting aside the order passed by the Custodian and he sent the case back to him with a direction that he should proceed to dispose of the case in the light of the evidence already recorded before his predecessor and such other evidence as may be produced by the appellants. On receipt of the records the then Custodian made an interim order on 7-4-52 noting down certain points on which he thought evidence should be recorded. He also noted the names of certain witnesses who might be examined in addition to those who may be produced by the appellants and referred the matter to the Deputy Custodian of Bangalore for recording such evidence and re-submitting the file to himself for disposal. The Deputy Custodian accordingly recorded evidence and returned the records to the Custodian. The Custodian issued another notice on 10-7-52 calling upon the appellants to show cause why an order should not be passed declaring them as evacuees or in the alternative as intending evacuees and their properties as evacuee property under the provisions of Act 31 of 1950. The appellants objected to this notice by an application dated 4-8-52. They represented that the proceedings against them were started under S. 8 of the Mysore Act 47 of 1949 and their claims were filed under S. 8 of the same Act. The Deputy Custodian had passed orders dismissing their claim; but on appeal it had been decided by the Custodian that though meanwhile other Acts had come into force both in Mysore and in India relating to evacuee property, their case was-governed by Act 47 of 194y which was the law in force when the proceedings were taken, and he had found that there was not enough evidence to treat the appellants as evacuees as defined in S. 2(c)(i), (ii) and (iii) of Act 47 of 1949. He had therefore set aside the order of the Deputy Custodian, Bangalore, and allowed the appeal. The Custodian General while remanding the case to the Custodian had observed that the Custodian himself should dispose of the matter as that would give a chance to the appellants to appeal against any adverse decision and that having regard to the scope of the order of remand by the Custodian General the enquiry should be confined only to the narrow question as to whether the appellants were not evacuees within the meaning of S. 2(c) of Act 47 of 1949; and they wanted the Commissioner to withdraw and cancel the notice issued to them. On this application the Custodian made a considered order on 6-9-1952. He held that while in law there could be no objection for proceedings being taken in terms of the notice issued to the appellants, yet having due regard to the representations made by them that they would thereby be deprived of the right of appeal they would have had if such proceedings were to be started by the Deputy Custodian instead of the Custodian, he was inclined on grounds of equity to concede the point with regard to the present proceedings before him and to confine the enquiry to the issue as to whether the appellants were evacuees or not within the meaning of S. 2(c)(i). That order, he observed, should not however be taken as a bar to any action that may be taken against the appellants independently under S. 19 of the Evacuee Property Act of 1650 at a later stage if necessary. The Custodian, who was not the Custodian who passed the first order, then made a final order on 2-12-1952 holding that the appellants were to be treated as evacuees and their properties as evacuee properties; and it is against that order that the appellants have come up in appeal to this Court.

3. The appeals are made under S. 30 of Act 47 of 1949 under which any person aggrieved by an order made under S. 8 may prefer an appeal to the High Court whether the original order has been passed by the Custodian, the Additional Custodian or the authorized Deputy Custodian. A preliminary objection has been taken on behalf of the respondent to the maintainability of the appeals and it is urged that by the time the Custodian passed the first order of August 1950, act 47 of 1949 had been repealed and superseded by S. 53 of Act 74 of 1949 and later by S. 58 of Act 31 of 1950 which provided for no appeal to the High Court but only for revision by the Custodian General under S. 27 against an order like the one with which we are concerned in this case. Reference has been made to the saving clause contained in those sections which provide that anything done or any action taken in exercise of any power conferred by the said act 47 of 1949 shall be deemed to have been done or taken in the exercise of the powers conferred by these later Acts, and it is argued that the same means that the remedies open to a person aggrieved by an order of the Custodian can only be under S. 27 of Act 31 of 1950. It is also urged that the appellants have acquiesced in and submitted themselves to the jurisdiction of the Custodian General and cannot how challenge the revisional jurisdiction he has exercised in this case. In answer Mr. Rajah Iyer, learned Counsel for the appellants, has urged that the right of appeal which had been expressly granted under S. 30 of Act 47 of 1949 in respect of proceedings initiated under s. 5 of that act was in the nature of a substantive right and not one which related merely to procedure, that such a right to which the appellants had become entitled could not and had not been taken away except expressly by the subsequent Act, that the first order of the Custodian of August 1950 became final and was not subject to any revision by any other higher authority and that the action taken and order made by the Custodian General revising that order was ultra vires and without jurisdiction and not in accordance with law. He represents that his clients have all along been contending before the Custodian and Custodian General that the proceedings in these cases which were initiated under act 47 of 1949 were to be conducted and are governed by that Act alone notwithstanding the changes made in the succeeding statutes. He further represents that even before the Custodian General this aspect was raised in the course of the arguments and an application was also made to that effect to the Custodian on 4-8-1952, which we have already noticed above. He has also relied on the terms of a notice dated 10-10-1952 issued by the Custodian which refers to the status quo ante as having been restored as a result of the order of the Custodian General and the properties again vesting in the Custodian during the pendency of the case. He also urges that there can be neither acquiescence nor submission to a jurisdiction which did not exist and, that notwithstanding their objection, the Custodian General exercised his revisional powers, that in any event he has made no final order against the appellants but has merely directed a further enquiry by the Custodian, that even the Custodian in Mysore has in his first order conceded and recognised that the proceedings were to be governed by the old Act and that everyone concerned in this case has understood the proceedings as being governed by that Act alone.

4. There is considerable force in the contentions of the appellants. Even the Custodian in the course of his order dated 2-12-1952 has conceded in para. 3 that the contention of the appellants that the proceedings before him could only be under S. 2(c) of the Mysore Act 47 of 1949 and not under the later Act of 1949 as the same could not have retrospective effect. He has held that ordinarily the law in force at the time the action started must govern the decision of such action at all stages and has referred to Case No. 46 decided by the Custodian General in support of that conclusion.

5. For the respondent reference has been made to an interim order dated 7-4-52 framing certain issues, notices dated 10-7-52 and 12-8-52 purporting to issue under Ss. 22(b) and 10(3) of Act 31 of 1950 by the Custodian. But in view of the circumstance that the appellants objections filed on 4-8-52 pointing out that the proceedings against them were started under S. 5 of the Mysore Act 47 of 1949 and that their claim was based, on S. 5 of the same Act, and the order passed thereon on 6-9-52 allowing that application and confining the enquiry to the issue as to whether they were evacuees or not within the meaning of S. 2(c)(i), and the finding in the last order of the Custodian, these notices cannot have much significance. They are indicative of the uncertainty which prevailed in the mind of the Custodian with regard to the application of the two Acts.

6. In - Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh, AIR 1953 SC 221 (A), Mahajan and S.R. Das, JJ. have held : "A right of appeal is not merely a matter of procedure. It is a matter of substantive right. This right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by, the inferior Court. Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere1 with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication." In that case the question arose whether the appellants appeal was governed by the Central Provinces and Berar Sales Tax Act when the assessment proceedings were started or by a later amended proviso to S. 22(1) of the Act. The Board of Revenue had taken the view that as the order of assessment was made after the amendment of the section and the appeal was filed thereafter, such appeal must be governed by the provisions of law as it existed at the time the appeal was actually filed and the law as it existed before the filing of the appeal could not apply to the case. The assessee then moved the High Court of Madhya Pradesh under Arts. 226 and 227 of the Constitution of India for an appropriate writ directing the Sales Tax Commissioner to admit and hear the appeal without demanding payment of the amount of sales tax assessed by the Assistant Commissioner of Sales Tax as required by the later amendment. The High Court dismissed his application and the assessee thereupon applied for and obtained special leave to appeal to the Supreme Court. While allowing the appeal, their Lordships of the Supreme Court referred to - Colonial Sugar Refining Co. v. Irving, 1905 AC 369 (B), where Lord Macnaghten, who delivered the judgment of the Privy Council, said "that the only question before the Board was, was the appeal to His Majesty in Council a right vested in the appellant on the date of the passing of the Act or was it merely a matter of procedure. It seemed to their Lordships that the question did not admit of any doubt. "To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case, there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested." In the course of their judgment they have referred to - Nana Aba v. Sheku Andu, 32 Bom 337 (C); - Delhi Cloth and General Mills Co. v. Income-tax Commr., Delhi, AIR 1927 PC 242 (D); - Kirpa Singh v. Rasalldar Ajaipal Singh, AIR 1928 Lah 627 (FB)(E); - Sadar Ali v. Doliluddin Ostagar, AIR 1928 Cal 640 (FB)(F); - Hasan Abdul Karim v. Emperor, AIR 1944 Bom 252 (G); - In re, Vasudeva Samiar, AIR 1929 Mad 381 (SB) (H); - Ram Singha v. Shankar Dayal, AIR 1928 All 437 (FB) (I); - Radhakisan v. Sridhar, AIR 1950 Nag 177 (FB) (J); - Gordhandas Baldevdas v. Governor-General in Council, AIR 1952 Punj 103 (FB) (K); - Nagendra Nath v. Mon Mohan Singha, AIR 1931 Cal 100 (L); - Janardhan Reddy v. State, AIR, 1951 SC 124 (M) and - Ganpat Rai Hiralal v. Agarwal Chamber of Commerce, AIR 1952 SC 409 (N), in which the principle of the above decision has been accepted. See also - Kailash Singh v. Sheopujan Singh, AIR 1952 Pat 380 (O).

7. Mr. Rajah Iyer has also urged that the Custodian General had no authority to revise the order of the Custodian as such power was not found in act 47 of 1949. He urges that the order of the Custodian of 25-8-1950 became final and was subject only to an appeal by the appellants if the same had gone against them and that that order had therefore become final and could not be set aside by the Custodian in the exercise of revisional powers given to him under the later Act. He has referred in this connection to cases reported in - AIR 1927 PC 242 (D); - Examiner of Local Fund Accounts v. Subramania Mudaliar, AIR 1943 Mad 208 (1) (P); - Surayya v. Inspector Municipal Councils and Local Board, Madras, AIR 1944 Mad 148 (Q) and - 32 Bom 337 (C). In - AIR 1943 Mad 208(1)(P), their Lordships pointed out that there is no logical distinction between a right of appeal and the right of a final judgment without an appeal. Both are vested rights and cannot be deemed to be affected by later enactments or rules retrospectively unless such an enactment or rule is given retrospective operation either expressly or by necessary intendment.

8. In - 32 Bom 337 (C) the plaintiff filed a suit on 24-2-1906 in the Mamlatdar Court under Bombay Act 3 of 1876. In October the later Mamlatdar Courts Act 2 of 1906 came into force and by s. 2 of that act the earlier act was repealed. In 1907 the plaintiff whose suit was dismissed by the Mamlatdar presented an application for revision of his order under s. 23 of the later act of 1906. Under the earlier Act of 1876 the Collector had no power of revision. It was held -by Sir Lawrence Jenkins, C.J. and Batchelor, J. that having regard to the words of the Bombay General Clauses Act the Collector had no jurisdiction; to hold otherwise would be to affect a legal proceeding in respect of a right which had accrued under the old Act and that to disturb an existing right of appeal was not a mere alteration in procedure.

9. In Mysore also in - Gururajachar v. Rangiah, 52 Mys HCR 455 at p. 484 (R), that principle had been accepted. In that case the Revenue Commissioner made an order in April 1945 under the House Rent Control Order as it then stood. Subsequently in August 1945 an amendment was made providing for revision by Government of such an order by the Revenue Commissioner and the tenant applied for a revision of the order in September 1945. Venkataramana Rao, C.J. and Venkata Ramaiya, J. held that the order of the Revenue Commissioner became final when it was passed in April 1945 and there was no remedy by way of revision under the House Rent Control Order as it then stood. The plaintiff had acquired a vested right to a final judgment and as observed in - AIR 1927 PC 242 (D), the provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment.

10. Mr. Rajah Iyer has also referred to certain rulings of the Custodian General in Cases Nos. 34, 42, 46 and 60 which arose before him and which are found in Vol. 1, Rulings of the Custodian General, published by the Federal Law Depot, Delhi. These rulings may not be binding on the Civil Courts, but they show that even the Custodian General has recognised the above principle and lend great support to the stand taken by the appellants in connection with the writ petitions that their remedy is not clear and that as the Custodian General himself has conceded in such cases that an appeal lies to the High Court it would not be reasonable to ask them to apply to him in appeal or revision under the later Act and await his decision when by that time their right to appeal to the High Court would have become barred by time. It is not necessary to refer to those cases in detail. But it might be noticed that in Case No. 46 the Custodian General has laid down that a right of appeal to the particular forum which existed at the time the action was started is not taken away or otherwise affected by any change in the law taking place during the pendency of the action unless such change has either expressly or by necessary intendment been given a retrospective operation, that proceedings commenced by the appellant under S. 8 of the Ordinance No. 12 of 1949 did not fall within ambit of S. 55 (3) of Ordinance No. 27 of 1949 and that the appeal from the order of Authorised Deputy Custodian under the Ordinance No. 27 of 1949 declaring certain properties as evacuee properties lay to the High Court and not to the Custodian General.

11. For the appellants reliance has also been placed on - Madhava Rao v. Surya Rao, AIR 1954 Mad 103 (FB) (S) and - Raghuraj Prasad Singh v. Basudeo Singh1, AIR 1950 Pat 318 (T), where it was held that where there is no inherent jurisdiction neither acquiescence nor request nor any application on the part of a party can give such jurisdiction. In the first of these cases the petitioners applied under Art. 226 of the Constitution of India or the issue of a writ to quash an order of a Deputy Registrar of Cooperative Societies in the matter of some election dispute. They had not objected before that officer to his jurisdiction to pass such an order and had also carried his order in revision to the Registrar of Co-operative Societies. It was held that this fact did not preclude them from questioning the jurisdiction of the Deputy Registrar before the High Court. In - United Commercial Bank Ltd. v. Workmen, AIR 1951 SC 230 at pp. 236, 237 (U), the Supreme Court has observed that no amount of consent will cure the initial want of jurisdiction.

12. In this connection there is another circumstance which would vitiate or at least seriously raise a doubt regarding the validity of the Custodian Generals exercising of powers of revision in this case. The Mysore Act 47 of 1949 was repealed by Act 74 of 1949 which came into force on 29-11-1949. Act 31 of 1950 became law in Mysore also only on 17-4-1950 and by S. 58. Cl. (i) of that Act, only the Administration of Evacuee Property Ordinance 1949 (27 of 1949) was repealed with no reference to any Mysore State laws with a saving clause 2 that the previous operation of that Ordinance was not affected by the repeal and subject thereto anything done or action taken under that Ordinance should be deemed to have been done under act 31 of 1950. This S. 58 was later on repealed and substituted by Act 66 of 1950. Sub-clauses (2) and (3) of that section came into force on 7-12-1950. The first order of the Custodian was passed on 22-3-1950. On that date there was no provision similar to sub-cl. (3) of S. 58 of Act 66 of 1950 declaring that proceedings taken under any corresponding law in any State was to be deemed to have been taken under act 31 of 1950, thereby attracting the operation of S. 27 of that Act, viz., powers of revision of the Custodian General. The mysore act 74 of 1949 no doubt provided for a revision of the Custodians order by the Custodian General. But that was also an emergency Act passed under S. 31 of the Government of Mysore Act and it automatically expired and ceased to exist after six months, i.e., on 29-5-1950. The Custodian General has not, apparently therefore and for reasons which are not clear or explained, acted under any provision of that Act but has purported to act expressly under S. 27 of Act 31 of 1950. Until by Act 66 of 1950, S. 58, Cls. (2) and (3) were amended the case could not be brought under act 31 of 1950 or the powers of revision provided in it by S. 27 applied even if the same could otherwise have been exercised in the present case.

13. Mr. Rajah Iyer has also urged that the proceeding under Ss. 5, 6 and 8 of Act 47 of 1949 have no corresponding parallel in Act 74 of 1949 or Act 31 of 1950 and that the provisions of the later two Acts are quite different from those in the first Act. He represents that on the date of the commencement of proceedings under act 47 of 1949 there was no Custodian General in existence and hence the order of the Custodian dated 22-8-50 became final under S. 30(6) of the Mysore Act. The revisional powers of the Custodian General which came into existence later could not therefore be exercised by him so as to take away from the finality attached to that order, which was in the nature of a vested right, and that right could not and had not been infringed by act 31 of 1950. He therefore contends that the saving clause contained in S. 58 of Act 31 of 1950 cannot be invoked for the purpose of enabling the Custodian General to exercise his powers of revision in the present case, that the scheme of the later Acts is quite different from that of the earlier, that the later Acts introduced new and radical changes in the method by which the property of a person should be declared evacuee property and he, as an evacuee or intending evacuee and that the later Acts provided for a different procedure for enquiry and determination of those questions and prescribed quite different and new forms of appeal and revision. While the orders under act 47 of 1949 were open to be examined by the High Court the later Acts took away that very valuable right and gave other overriding powers to the Custodian General. This could not be merely a matter of procedure. Neither the Mysore Act 74 of 1949 nor Act 31 of 1950 expressly or even impliedly refers to this right of appeal to the High Court which the parties had come to possess by reason of the well recognized principles of law discussed above. The saving clauses in S. 53 of Act 74 of 1949 or S. 58 of Act 31 of 1950 could under the circumstances only refer to the procedure to be adopted, the effect to be given and the implementations to be made in respect of prior orders and pending orders and not to already acquired vested rights of appeals. In a case like the present when through executive orders rights to valuable property and status of an Indian citizen are sought to be decided finally, without recourse to judicial process one would not be too ready to accept the argument that by the saving clauses which are contained in S. 53 of Act 74 of 1949 and S. 58 of Act 31 of 1950 it is to be implied that the already vested valuable right in pending proceedings of recourse to the highest Court in the land should be taken away by a side wind. In any event one would also hesitate to deny now to the High Court power and jurisdiction to examine such orders which they undoubtedly possess under Art. 226 of the Constitution to correct palpable errors affecting the rights and liberty of subject guaranteed under Chapter III of the Constitution if they find that any orders have been made without jurisdiction and are not justified by the definition of evacuee and evacuee property in act 47 of 1949.

14. In the light of the above discussion we think that the appeals to this Court are competent.

15. We have been taken through the documentary and oral evidence. Mr. Rajah Iyer has contended that the same do not justify the finding that the appellants are evacuees, that the first order of the Custodian was correct, that the subsequent order of the Custodian, which is appealed against, is based not on evidence but on mere suspicion and that the Custodian has not kept in view the difference between an Evacuee and an intending Evacuee. The learned Advocate-General also has argued in support of the order. Evacuee has been defined in S. 2, Cl. (c) of Act 47 of 1949 as follows : " Evacuee means any person (i) who, on account of setting up of the Dominions of India and Pakistan, or on account of civil disturbances or the fear of such disturbances, leaves or has, on or after the 1st of March 1947, left any place in Mysore for any place outside the territories now forming part of India; or

(ii) who is resident in any place now forming part of Pakistan and who for that reason is unable to occupy, supervise or manage in person his property in Mysore, or whose property in Mysore has ceased to be occupied, supervised or managed by any person or is being occupied, supervised or managed by an unauthorised person; or

(iii) who has, after the 1st of March 1947, acquired in any manner whatsoever any right, to, interest in or benefit from, any property which is treated as evacuee property under any law for the time being in force in Pakistan." The Custodian has rightly found that the appellants case does not fall under Sub-cls. (ii) and. (iii) of that definition and that the only question is whether it falls under sub-cl. (i).

16. As the appellants have not left Mysore to any place outside India, in the sense that they were on the date when the proceedings, were started and are still residing in Mysore, their case has to be considered only with reference to the words "leaves (or has), on or after the first day of March 1947, (left) any place in Mysore." The word leaves in that context prima facie applies to a person leaving Mysore after the coming into force of act 47 of 1949 in contradistinction to a person who has already left on or after 1-3-1947. It cannot apply in any case to short temporary visits made to a place outside Mysore on some legitimate business followed by a return to India. It cannot also include a person who might merely have had some remote or passing inclination to make a choice of his future domicile outside India and who has returned to Mysore before the passing of the first (Emergency) Act on 7-7-1949. As pointed out in - S.M. Zaki v. State of Bihar, AIR, 1953 Pat 112 (V), the words "leaves or has left" imply some amount of permanent stay or residence outside India, though not to the extent of completely abandoning the Indian domicile. It could never have been the object of the Legislature when they enacted that Act to declare people who had gone out of Mysore for a short time and had returned to Mysore even long before that Act was contemplated, i.e., between 1-3-47 and 7-7-49, as evacuees or to declare their properties as evacuee properties and to render them homeless paupers even if they choose to continue to reside in Mysore or drive them out of India unless their cases fell under Sub-cls. (ii) and (iii) of S. 2(c). It must be remembered that in act 47 of 1949 there was no definition or reference to an intending evacuee and that the same came in only in the Second (emergency) act 74 of 1949. That would have been a very unreasonable way of dealing with Indian Nationals who had returned before the passing of act 47 of 1949 having made up their mind to remain as citizens of this country particularly where, as in this case, both the going and returning was under proper and valid temporary permits or no objection certificates. It has not been shown that the appellants who had ample scope and funds at their disposal when they visited Karachi had acquired any properties there or effected any exchange of their own properties in India with any properties situated in Pakistan. This would have been a relevant and even a strong indication of their intention or object of their visit.

17. The Custodian has not also paid sufficient attention to the words "evacuee means any person who (leaves or has left), on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances" in that sub-clause. He has not expressly found that the appellants who were living and carrying on business and owned considerable properties in South India had gone to Karachi (Sind) in Pakistan for any of those reasons. The evidence in the case merely shows that they had gone there with the perfectly lawful object of meeting the members of their family and not with a view to make arrangements for leaving this country after realizing their assets. The first Emergency Act as well as the later Acts were designed for the State to seize, preserve and manage the property of evacuees or persons who had chosen to leave India for specified reasons some time before or even after the first Act was passed. This was to be done for the benefit of displaced persons and to prevent such properties from being left uncared for or frittered away or wrongfully taken up by others or transferred or taken away outside India. The Act was not meant to punish people or impose the penalty of depriving them of all their properties or to drive them out of this country or render them homeless paupers merely because they were for a short while panicky or foolish and of two minds as to where they should settle down here or elsewhere - and who had done nothing else with their properties which would bring them within the definition of evacuees or intending evacuees. As pointed out by the Supreme Court in - Ebrahim Aboobaker v. Tek Chand, AIR 1953 SC 298 at p. 303 (W), the provisions of the Administration of Evacuee Property Act "far from suggesting that the person declared an evacuee suffers a civil death and remains an evacuee for all time show on the other hand that the person may cease to be an evacuee under certain circumstances that he is reinstated to his original position and his property restored to him subject to certain conditions and without prejudice to the rights if any in respect of the property which any other person may be entitled to enforce against him. These provisions also establish that the fact of a property being evacuee property is not a permanent attribute of such property and that it may cease to be so under given conditions. The property does not suffer from any inherent infirmity but becomes evacuee because of the disability attached to the owner. Once that disability ceases, the property is rid of that disability and becomes liable to be restored to the owner."

18. The Custodian has also not borne in mind that the definition must apply to the person who is to be found to be an evacuee. Merely because some members of his family have migrated to Pakistan and he has sent some monies to them the person cannot be treated as an evacuee and his property in India as evacuee property. This is clear even from the definition of "intending evacuee" and the proviso to S. 2(c)(i) and the definition of the words "members of the family" as meaning any member of the family of any person who is wholly dependent upon the earnings of such person for the ordinary necessaries of life or who shares with such evacuee in the ordinary expenses of the household to which they jointly belong or who owns property or carries on business jointly with such evacuee. If, therefore, as found in this case the appellants have transferred some funds for legitimate purposes of either their trade or for providing maintenance to the members of their family who might have left for Pakistan on account of disturbances, it would not necessarily make the appellants evacuees. It is well-known that on account of the disturbances the families who were living near the border of the two countries became separated and that has been one of the tragedies of the partition. The persons who are living in India at the time of the partition would have had also relations in Pakistan who are dependent on them for support - like aged parents, or wife and children who happen to be living separately at the time and who might not even be agreeable to come back - and if funds were legitimately sent to them, such sending of the funds to them would be specifically saved from being inferred as intention to migrate from India.

19. The Custodian has found that the wife and children of one of the appellants Abdul Shacoor are still in Pakistan and that one wile and her children and two of his children by the first wife have all along been here. He has also found that their return had not been secured though some years have now elapsed and that that is an indication of the appellants being evacuees. The appellants have stated that they have applied to the authorities for permission to bring them down to India from Pakistan. This has not been refuted by the Custodian. These proceedings have been pending from 1948 and the properties of the appellants had become vested in the Custodian. They have been kept sufficiently uncertain, busy and worried about their own affairs here while the means for getting down the members of their family from Pakistan were greatly diminished. Such permission for people to migrate from Pakistan to India is not shown to be either so easy or so readily obtainable, and we see nothing in the definition of evacuee which would justify holding that if some members of a family of a person are in Pakistan or have migrated to Pakistan on account of the disturbances or are living there, the person in India is an evacuee. In Case No. 52 decided by the Custodian General he has recognised that neither a mere expression of an intention of going to Pakistan nor the mere circumstance of ones son having migrated to Pakistan can make a person an evacuee.

20. (His Lordship then considered the evidence relating to certain alleged transactions of the appellants and reached the conclusion, namely). On the facts and circumstances disclosed in this case we have no hesitation in holding that the appellants are entitled to succeed and that these appeals should be allowed. "We accordingly allow the appeals and set aside the order of the Custodian dated 2-12-1952. The respondents will pay the costs of the appeals, Advocates fee Rs. 250/- in each appeal.

21. When the preliminary objection was taken regarding the maintainability o the appeals, the appellants have filed two writ applications and have prayed that the order of the Custodian may be quashed. We have found in the course of our judgment in the appeals that the Custodian General had no jurisdiction to interfere in revision and set aside the first order of the Custodian. In addition to the ground that the Custodian-General had no such revisional jurisdiction we think that the appellants can reasonably complain that their fundamental rights under the Constitution of India are being infringed by the order of the Custodian General and that they are entitled to relief at the hands of this Court on that ground also. It is undisputed that the appellants were citizens of India within the meaning of Art. 5 of the Constitution. They were born in the territory of India; their parents were also born in the territory of India and they have been residents in the territory of India for long over five years preceding the commencement of the Constitution. Article 7 provides that notwithstanding anything in Arts. 5 and 6 a person who has, after the 1st day of March 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India; but even that is subject to the proviso that nothing in that article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return. The expression "migrated from the territory of India to the territory now included in Pakistan" used in Art. 7 can only mean departure from the territory of India to Pakistan with the intention of residence or settlement in that country. As pointed out in - Shabbir Husain v. State of U.P., AIR 1952 All 257 (X), a temporary visit to another country on business or otherwise cannot amount to migration. Whether a person has migrated from one country to another or has gone there on a temporary visit is primarily a question of fact which will have to be decided on the circumstances of each case. In that case the applicant who was an Indian subject and was born and brought up in the District of Bijanur in Uttar Pradesh was carrying on cloth business. He sent some of his goods to Lahore and in order to dispose of them he went to Lahore for two months. Before his departure from Bombay to Pakistan and within the period of his temporary visit to Pakistan he expressed his intention that he would be going there on a temporary visit and would return home alter finishing his business. After finishing his business he did return to India. It was held that in the circumstances it was not possible to hold that a temporary visit of the kind undertaken by the applicant amounted to migration from India to Pakistan and that the applicant could not be deemed to have lost the citizenship of India and could not be ordered to be removed from India though he had come into India under a temporary permit. The present is a stronger case as the appellants have gone to Pakistan and returned on temporary no objection certificates. Under Art. 19(1) as citizens of India the appellants have a right to reside and settle in any part of the territory of India and to acquire, hold and dispose of property in India subject of course to the exceptions mentioned in sub-cl. (v) of that Article, and they would of course be liable to lose that right if the appellants were declared evacuees or intending evacuees. If they are not evacuees and their fundamental rights are sought to be infringed by an order which is bad for want of jurisdiction or other similar grounds, this Court has undoubtedly power under Art. 226 of the Constitution to grant them relief and to quash the proceedings. No doubt ordinarily the remedy of persons like the appellants against whom the provisions of the Evacuee Property Act are enforced and who feel aggrieved is to seek relief under that Act by proceedings prescribed in that Act. But where, as in this case, it is not quite clear that the appellants have no right to appeal to this Court and it is not also clear under what particular Act the proceedings before the Custodian have been taken and the order passed and where the appellants have good ground to contend that the Custodian General had no jurisdiction in revision to re-open the earlier proceedings and pass an order of remand which has now resulted in the present order of the Custodian, we think that this Court ought not to refuse relief to the appellants under Art. 226 of the Constitution on the ground that they may have any other equally certain, clear or effective remedy.

22. In this view, we allow the applications and direct a writ quashing the order of the Custodian dated 5-12-1952 to issue. There will be no separate order as to costs in these petitions. Appeals and applications allowed. AIR 1954 MYSORE 158 (Vol. 41, C.N. 66) "Thiruvengadam v. Indian Institute of Science" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) M. Thiruvengadam, Petitioner v. The Indian Institute of Science, Bangalore and others, Respondents. Writ Petn. No. 5 of 1954, D/- 15 -7 -1954. Constitution of India, Art.226 - WRITS - TERMINATION OF SERVICE - SERVICE MATTERS - Termination of service - Petition for writ against employer - Maintainability - Proper remedy. Master and servant - Resignation of servant - Acceptance of, if necessary for termination of service. The petitioner was confirmed in his appointment as an Electrical Supervisor in the Indian Institute of Science, Bangalore, with effect from 2-5-1950 and was to hold the appointment till the age of 60. Under the terms of employment the services could be terminated on either side with six months notice. The petitioner wrote a letter dated 11-5-1953 in which he tendered his resignation on account of certain charges made against him." On 17-6-1953 he however wrote another letter by which he purported to withdraw his offer to resign. The Institute authorities however refused to allow him to withdraw his resignation and treated his employment as terminated at the end of six months from the date of letter of resignation. The petitioner thereupon filed a petition under Art. 226 for a writ to the Institute authorities declaring that he was still in service and requiring them to admit him to the post and let him work without let or hindrance : Held (i) that the contention of the petitioner that his letter of resignation dated 11-5-1953 conveying notice of six months did not amount to unconditional- resignation or that it required acceptance before the offer to withdraw was made, could not be accepted. From the terms of the letter of 11-5-1953 it was clear that no acceptance of its terms was ever contemplated or required and that it was in the nature of a notice by which the petitioner said he had resigned or renounced his job and would cease to work from a date six months later. Nothing more was therefore necessary to be done either by him or by the employers in pursuance of the notice which had put an end to the contract of service in a manner stipulated between the parties themselves. (Paras 4, 6)

(ii) that it was not a proper case in which a writ ought to be issued. The terms and conditions of service between the Institute and the petitioner were not governed by any statute or rules having the force of law the obedience to which could be enforced through a writ. Nor did the case raise any question of any judicial enquiry or quasi-judicial enquiry by any authority which could be corrected by a writ of certiorari. AIR 1953 Cal 581, Ref. to. (Para 5)

(iii) that the remedy, if any, of an employee in such a case where it was alleged that a breach of a contract of service had taken place would obviously be by a suit and not through an application for a writ. AIR 1952 Cal 610, Rel. on. (Para 5) Cases Referred : Courtwise Chronological Paras (A) (V 40) AIR 1953 Cal 581 5 (B) (V 39) AIR 1952 Cal 610 : 56 Cal WN 264 5 (C) (V 38) AIR 1951 Mad 882 : 1951-1 Mad LJ 709 5 (D) (V 39) AIR 1952 Mad 150 : 1951-2 Mad LJ 561 5 (E) (V 11) AIR 1924 Mad 396 : 45 Mad LJ 798 6 (F) (1900) 2 Bom LR 790 7 (G) (V 41) AIR 1954 Ass 65 : 58 Cal WN 54 8 H.S. Raja Aiyangar, for Petitioner; Nittoor Srinivasa Rao and K.R. Gopivallabha Iyengar, for Respondents. Judgement VASUDEVAMURTHY, J. :- The petitioner has made an application under Art. 226 of the Constitution of India and prayed for the issue of a proper direction, order or writ to the respondents declaring that his appointment by respondent 2 to the post of Electrical Supervisor in the Department of Power Engineering of respondent 1 never ceased, that he is still an occupant of the post entitled to hold and function in the same without any obstruction from the respondents, and requiring respondents 2 and 3 to restore and admit him to the post and let him work therein without any let or hindrance. Respondent 1 is the Indian Institute of Science, Bangalore, respondent 2 the Council of the Indian Institute of Science, respondent 3 the Director and respondent 4 the Registrar of that Institute.

2. The facts relevant to this case are practically undisputed and are set out in para 8 of the petition. On 7-5-1953, it appears that the then Director in charge while checking a statement presented by the petitioner called him a liar and charged him with incompetence. The petitioner took exception to his conduct and wrote a letter dated 11-5-1953 addressed to the Director. Therein he tendered his resignation. On second thought he wrote another letter on 17-6-1953 to the Registrar by which he purported to withdraw his offer to resign. The Institute authorities however refused to allow him to withdraw his resignation and treated his employment as terminated at the end of six months from the date of the letter of resignation.

3. It is contended by Mr. H.S. Raja Iyengar, learned Counsel for the petitioner, that the letter of resignation required acceptance by the Director, and that till it was so accepted, it could not have any legal effect. To appreciate this contention it is necessary to refer to the circumstances under which the petitioner was appointed. By a resolution of the council of the Institute he was appointed on probation for one year and joined duly on 2-5-1949. The probation period was extended by one more year and thereafter by a resolution passed on 6-10-1952 the petitioner was confirmed in his appointment as Electrical Supervisor with effect from 2-5-1950. He was to hold the appointment till the age of 60. After the passing of this resolution the Registrar sent a draft of his service agreement and asked the petitioner to sign it. One of the clauses of that agreement provided "that the employee may likewise terminate the contract of service by giving the Director as the Chief Executive six months notice in writing of his intention of doing so". It is common ground that under the original terms of the employment itself the services of the employee were liable to be terminated by the Council either on medical grounds with three months notice or on grounds of retrenchment or economy with six months notice as part of the conditions of the service.

4. It is contended for the petitioner (1) that he could not have been asked to enter into any fresh additional term providing for termination of service by six months notice by the employee. (2) that the petitioners letter dated 11-5-1953 did not amount to an unconditional resignation and (3) that as the resignation was not accepted before its withdrawal it could not have the legal effect of terminating his service. This additional clause in the agreement was one entirely in favour of the petitioner and conferred a right on turn. Without such a clause he could not have resigned even if he got very lucrative or more advantageous job-elsewhere. He could not apparently also resign on any personal ground, other than ill-health, say for disagreement with his Employer or on account of any other adverse conditions of service in the Institute. Surely if the petitioner had secured a better job after sending a notice like the present and the Institute had refused to accept it and relieve him after six months, the petitioner would not have tolerated such a position. This additional provision as to notice by the employee did not, as a matter of fact, provide for any acceptance. An acceptance of a resignation in such circumstances is not always necessary or required in law. Unless the appointment was for a fixed term on a contract basis and the resignation of an employee suddenly in the midst of his work was likely to cause serious harm or prejudice to the employer, ordinarily a service like the present ought to be capable of being put an end to both by the employer and employee on sufficient notice in the absence of any other special contract. What was required was six months notice by the employee terminating his service. The petitioners letter of 11-5-1953 did not also ask for any such acceptance. Therein the petitioner said that he felt that in view of the charge against him he could not do true justice to his work and that he was most reluctantly compelled to apply for his resignation. He had to give six months notice and his letter was to be treated as six months notice with effect from 15-5-1953. Indeed by his letter dated 17-6-1953 the petitioner said he would be grateful if he was permitted to withdraw his earlier letter and that he wished to apologise for his hasty action in sending it. In the meantime on 29-5-1953 he had been told that no leave which he had asked for in the letter of May was admissible to him and that before the period of notice, viz., six months, elapsed he had to give some explanations and render some accounts and make some reports about his work in the Institute. In this connection we may refer to the ordinary and familiar case of notice issued by a landlord or a tenant in cases where the lease is terminable at will or by agreed notice. Nobody in such a case could ever contend that it requires acceptance toy the other party. The present contention of the petitioner that his letter of resignation conveying notice of six months was not a resignation or that it required acceptance has, therefore, no substance.

5. We do not think that this is a proper case in which a writ ought to be issued. The terms and conditions of service between the Institute and the petitioner are not governed by any statute or rules having the force of law the obedience to Which could be enforced through a. writ. Nor does the case raise any question of any judicial enquiry or quasi-judicial enquiry by any authority which, could be corrected by a writ of certiorari. See - Bibhuti Bhusan v. Damodar Valley Corporation, AIR 1953 Cal 581 (A) for a similar case where it has been pointed out that in order that a writ of certiorari may issue for quashing the departmental proceedings and the order of dismissal Which follows as a result of such proceeding it must be shown that an obligation or duty has been imposed by statute upon the employer to act judicially or quasi-judicially in relation to such inquiry. That was a case of an Engineer employed under the Damodar Valley Corporation who brought a writ complaining against the termination of his services. The dispute is really in the nature of one between a private employer and employee though it may be that the Council of the Institute is functioning and its affairs are being administered under a scheme made or approved by the Government of India. There is no case of any refusal of natural justice to the petitioner. He voluntarily chose to send his letter of resignation or notice of termination of his services and cannot complain if the same has been given effect to according to the express terms of his contract with the Institute. Neither party has told us what exactly was the reason for disagreement between the then Director and the petitioner or the irregularities he was charged with. We have therefore no material before us to express any opinion on anything other than the purely legal aspect of the matter. The remedy, if any, of an employee in a case like the present where it is alleged that a breach of a contract of service has taken place would obviously be by a suit and not through an application for a writ as pointed out in - D. Parraju v. General Manager, B.N. Rly., APR 1952 Cal 610 (B) where it has been observed that "A person aggrieved by an order of removal from service has a more convenient, effective, complete and adequate remedy by way of a suit for a declaration that the order dismissing him was void." See also in this connection AIR 1953 Cal 581 (A) - Dr. M. Krishnamoorthy v. State of Madras, AIR 1951 Mad 882 (C) and - Purushotham v. Venkatappa, AIR 1952 Mad 150 (D).

6. Mr. Raja Iyengar has referred to some cases in support of his petition. In - Sudarsana Rao, v. Christian Pillai, AIR 1924 Mad 396 (E) Ramesam, J. held that an Honorary Magistrate does not cease to hold his office on his resignation but only when the resignation is accepted. He however observes at p. 396 : "It may be that the need for acceptance does not apply to honorary appointments and it is a question of fact in each case whether the resignation amounted to a renunciation without acceptance and may depend to a certain extent on the contents of the letter of resignation which is not filed in this case. But it is unnecessary) to pursue this line of argument further as the petitioner never contended in the Court below that he resigned on the 21st September". In the present case from the terms of the letter of 11-5-1953 it is clear that no acceptance of its terms was ever contemplated or required and that it was in the nature of a notice by which the petitioner said he had resigned or renounced his jab and would cease to work from a date six months later. Nothing more was therefore necessary to be done either by him or by the employers in pursuance of the notice which had put an end to the contract of service in a manner stipulated between the parties themselves.

7. Ganesh Ramchandra v. G. I. P. Rly. Co., 2 Bom LR 790 (F) was a case of a suit and not of a writ brought against a Railway Company. The plaintiff, a Station Master, had written a letter of resignation with 24 hours notice and stopped, away from work thereafter. He was later on dismissed by the Company. It was urged for him that as he had ceased to be in the Companys employment by resignation he could not be visited with the consequences of a dismissal. The Railway Company contended that they had not accepted his resignation. The terms of service between the plaintiff and the defendant are not disclosed in the report. The facts and terms of contract in the present case are clear and are covered by the observation of Sir Lawrence Jenkins, C.J. at page 792 of the report. "Mere resignation obviously is not enough unless it be assented to, or unless it complies with those terms which the law implies or the prior agreement of the parties may permit. "

8. Himendra Chandra v. Gauhati University, AIR 1954 Assam 65 (G) was a case of a writ of a candidate for an examination against the Assam University to compel the performance of certain statutory duties required of them by the Gauhati University Act and has no application to the present case.

9. In the result this petition is dismissed. In the circumstances there will be no order as to costs. Petition dismissed. AIR 1954 MYSORE 161 (Vol. 41, C.N. 67) "A. S. Ramaiya v. State of Mysore" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) A. S. Ramaiya and another, Petitioners v. State of Mysore by the Chief Secretary, Respondent. Writ Petn. No. 49 of 1954, D/- 9 -7 -1954. (A) Constitution of India, Art.226 - WRITS - Who can apply. Only a person aggrieved can move the Court by a writ. No one except those whose rights are directly affected by a law can raise the question of the constitutionality of that law. AIR 1951 SC 41, AIR 1951 Mys 14, AIR 1953 Hyd 227 and AIR 1951 All 1 (FB), Rel. on. (Para 1) Anno : Const. of India, Arts. 32 and 226 N. 22. (B)Mysore Court-fees (Amendment) Act (9 of 1954) - COURT-FEE - CONSTITUTIONALITY OF AN ACT - LAW - Constitutionality of. Constitution of India, Art.13(2) and Part 3. The raising of court-fees from Rs. 2/- to Rs. 20/- on writ petitions by the Mysore Court-fees (Amendment) Act, 1954, is not unconstitutional on ground that it takes away or abridges the rights conferred by Part III The enhancement is neither so unreasonable nor the proposed court-fee of Rs. 20/- so heavy that it can operate in that way. Moreover, admittedly the proposal to enhance the court-fee is to bring it in line with the charges which are being collected in the neighbouring province and "the pith and substance" of that legislation is therefore not to abridge or discourage such applications. (Para 2) (C) Constitution of India, Art.246, Sch.7, List 2, Item 3 and Item 66 - Mysore Court-fees Amendment) Act (9 of 1954) - LEGISLATURE - COURT-FEE - CONSTITUTIONALITY OF AN ACT - INTERPRETATION OF STATUTES - Validity. Interpretation of Statutes. The Mysore Legislature was fully competent under List 2, Item 3 of Sch. 7 to pass the Mysore Court-fees (Amendment) Act, 1954, by which it raised court-fees in respect of certain matters including a petition for a writ. (Para 3) Item 66, List 2, Sch. 7 cannot be construed as taking away the right given in Item 3 of the same List. Such a construction is obviously unreasonable as Item 66 would then have to be treated as destructive of Item 3 and. such construction leading to "absurdity" is not permissible and is opposed to the well-recognized principles of interpretation of statutes. (Para 3) Fees in Item 66 could only mean fees other than court-fees as the latter has already been expressly provided for in Item 3. (Para 3) Cases Referred : Courtwise Chronological Paras (A) (V 38) AIR 1951 Mys 14 : 31 Mys LJ 171 1 (B) (V 38) AIR 1951 SC 41 : 1950 SCR 869 (SC) 1 (C) (1914) 235 US 151 : 59 Law Ed 169 1 (D) (V 40) AIR 1953 Hyd 227 : ILR (1953) Hyd 336 1 (E) (V 38) AIR 1951 All 1 : 1950 All LJ 767 (FB) 1 (F) (V 29) AIR 1942 All 156 : 43 Cri LJ 674 2, 3 S.K. Venkataranga Iyengar, for Petitioners. Judgement VASUDEVAMURTHY, J. :- This is an application under Art. 225 of the Constitution of India by which the petitioners have prayed that the action of the Legislature in Mysore in enhancing the court-fees on writ petitions under the Mysore Court-fees (Amendment) Act, from Rs. 2/- to Rs. 20/- is void as being opposed to the fundamental rights guaranteed under the Constitution. The petitioners do not claim any other relief nor do they complain in their petition that any particular fundamental rights of their own have been at present infringed and that the enhanced court-fee is standing in their way of approaching this Court under Art. 226 on account of their own poverty. We have held in this Court that only a person aggrieved can move the Court by a writ : vide - Bangalore Dist. Hotel Owners Association v. District Magistrate, Bangalore, AIR 1951 Mys 14 (A). The Supreme Court have also expressed the same view in - Charanjit Lal v. Union of India, AIR 1951 SC 41 (B), where Fazl Ali, Das and Mukherjea, JJ. have pointed out that no one except those whose rights are directly affected by a law can raise the Question of the constitutionality of that law and they have referred to a passage in - McCabe v. Atchison, (1914) 235 US 151 (C). That case arose out of a suit filed by five Negroes against five railway companies for restraining them from making any distinction in service on account of race pursuant to a State Act known as "The Separate Coach Law." Upholding the dismissal of the suit Hughes, J. observed : "It is an elementary-principle that in order to justify the granting of this extraordinary relief, the complainants need of it and the absence of an adequate remedy at law must clearly appear. The complainant cannot succeed because someone else may be hurt. Nor does it make any difference that other persons who may be Injured are persons of the fame race or occupation. It is the fact, clearly established, of injury to the complainant-net to others-which justifies judicial interference." The same view has been taken in - Veerasham v. Vajrama, AIR 1953 Hyd 227 (D) and - Indian Sugar Mills Association v. Secy, to Govt., Uttar Pradesh Labour Department, AIR 1951 All 1 (FB) (E). It is, however, urged for the petitioners, that they may be deemed to also have personal interest in the matter as citizens of India as their right to approach this Court is proposed to be curtailed or affected by the raising of the court-fee. We are, therefore, not disposing of their application only on that ground though we are disposed to think that it can be dismissed on that short ground.

2. It is contended for the petitioners that this legislation goes counter to Art. 13 (2) of the Constitution. It is represented that formerly writ petitions were being charged court-fees of Rs. 2/-only under Art, 1 of the Mysore Court-fees Act as on an application or petition to the High Court for which no other provision was made and that by attempting to raise it the State is really making a law which takes away or abridges the rights conferred by Part III and consequently that any such law is void. In the affidavit annexed to the application it is represented that the reason given for the enhancement was to bring about uniformity in the rate of court-fees leviable in this State and the rates levied in the Bellary District which has recently been added on to Mysore and on the principle that justice must not be sold but should be administered freely the rates in Bellary ought to have been reduced to bring it in line with the court-fees in Mysore. We do not think that the raising of court-fees from Rs. 2/- to Rs. 20/-, which we may observe has been done in Madras also, in any way takes away or abridges the rights conferred by Part III. The enhancement is neither so unreasonable nor the proposed court-fee of Rs. 20/- so heavy that it can operate in that way. Moreover admittedly the proposal to enhance the court-fee is to bring it in line with the charges which are being collected in the neighbouring province and "the pith and substance" of that legislation is therefore not to abridge or discourage such applications. It may be that some persons wishing to make groundless, speculative and frivolous applications merely for the purpose of sensation or harassing others may be somewhat discouraged or deterred from filing such applications by reason of the small increase but it is not likely to act as an obstruction to bona fide applications by persons who have a real grievance. In this connection reference may be made to a case reported in - Emperor v. Munna Lal, AIR 1942 All 156 (F). In that case the U. P. Sugar Factories Control Act (1 of 1938) was impugned as unconstitutional on the ground that the Act tended to restrict entry into or export of sugarcane from the province which the Provincial Legislature could not do under S. 297 (1) of the Government of India Act (1935). That construction was negatived. It pointed out : "Now the Sugar Factories Act does not expressly or directly prohibit or restrict export or import of sugar or sugarcane from or into the province. It is not a law on the subject of export but it is a law on the subject of agriculture, industries and factories. And in so far as it directs the sugarcane in a reserved area to be sold by some sort of statutory compulsion at a price not below a minimum, it has adopted a necessary measure in the interest of and in order to preserve and develop sugarcane cultivation at a stage when the sugarcane was not and was not likely to be in future, with the doubtful exception in some border districts, subject of inter-province trade. And any remote or indirect interference which may result to export or import by these measures is not open to objection under S. 297 (1), Constitution Act."

3. It is next urged that the State Legislature was not competent to legislate in this matter. List II, State List, Sen. VII, Item 3 permits legislation with regard to the fees taken in all Courts except the Supreme Court. But it is argued that Item 66 which permits legislation in this matter "of fees in respect of any of the matters in that List but not including the fees taken in any Court" takes away the right given in Item 3 of the same List. Such a construction is obviously unreasonable as Item 66 would then have to be treated as destructive of Item 3 and such construction leading to "absurdity" is not permissible and is opposed to the well-recognized principles of interpretation of Statutes; see Maxwell on Interpretation of Statutes, 9th Edn., p. 5. Fees in the later Item 66 could only mean fees other than court-fees as the latter has already been expressly provided for in Item 3. It refers to fees or cesses leviable in respect of the various matters or items enumerated in that List. By this entry the State Legislature can levy fees or cesses in all matters which are within their legislative ambit by being included in the said List II; see - AIR 1942 All 156 (F). The Mysore Legislature was therefore. in our opinion, fully competent to pass the Mysore Court-fees (Amendment) Act, 1954, by which it raised court-fees in respect of certain matters including a petition for a writ.

4. This petition is therefore dismissed. Petition dismissed. AIR 1954 MYSORE 162 (Vol. 41, C.N. 68) "Kishenlal v. Rathan Singh" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) J. Kishenlal Phoolchand, Plaintiff-Appellant v. A. Rathan Singh, Defendant-Respondent. Misc. Appeal No. 80 of 1953, D/- 21 -6 -1954, against order of Dist., J., Civil Station, Bangalore, D/- 16 -6 -1953. Civil P.C. (5 of 1908), O.40, R.1 - RECEIVER - APPOINTMENT - MORTGAGE - Receiver, if and when may be appointed in mortgage suits. In a suit on a simple mortgage a Receiver can be appointed under O. 40, R. 1 at the instance of the simple mortgagee. 12 Mys LJ 495, Foll.; Case law referred. (Paras 6, 10) In a suit on a simple mortgage the mortgagee plaintiff applied for appointment of a Receiver nearly two years after the institution of the suit when he came to know that a prior mortgagee had obtained a decree and was proceeding against the mortgaged property. This prior encumbrance was suppressed by the mortgagor from the knowledge of the mortgagee. No interest was paid on the mortgage since the date of its execution. The property was not fetching a fair amount due to improper management of the mortgagor and the security had been rendered insufficient due to the prior mortgage : Held, that in the circumstances it was thoroughly just, reasonable and convenient to appoint a Receiver in the suit. The circumstance that the plaintiff had made an application for the appointment of a Receiver some time after the suit was filed and not immediately but after the prior mortgagee-had obtained decree and started to proceed against the mortgaged property was indicative of bona fides and an anxiety to safeguard his own interest rather than otherwise. Anno : Civil P.C., O. 40, R. 1 N. 4, 14. Cases Referred : Courtwise Chronological Paras (A) (34) 12 Mys LJ 495 6 (B) (V 16) AIR 1929 Mad 138 : 52 Mad 979 6, 7 (C) (V 12) AIR 1925 Lah 590 : 85 Ind Cas 737 6 (D) (V 14) AIR 1927 Sind 230 : 102 Ind Cas 353 6 (E) (V 13) AIR 1926 Cal 978 : 95 Ind Cas 6 6 (F) (V 13) AIR 1926 Cal 1006 : 95 Ind Cas 632 6 (G) (V 23) AIR 1936 Rang 296 : 14 Rang 308 (SB) 6 (H) (V 7) AIR 1920 Cal 545 : 47 Cal 418 6, 8, 10

(I) (V 20) AIR 1933 Mad 570 : 65 Mad LJ 222 (FB) 7, 10 (J) (V 23) AIR 1936 All 495 : 58 All 949 (FB) 9 (K) (V 30) AIR 1943 All 1 : 204 Ind Cas 210 (FB) 9

(L) (V 34) AIR 1947 All 157 : ILR (1947) All 456 9 (M) (90) 14 Bom 431 10 A.R. Somanatha Iyer and M.V. Srinivasa Iyengar for Appellant; N.K. Gopala Iyengar, for Respondent. Judgement VASUDEVAMURTHY, J. :- The appellant, who is the plaintiff in the Court below, has filed a suit to recover, Rs. 1,15,000/- principal plus Rs. 4,662-8-0 interest on the foot of a deed of simple mortgage admittedly executed by the defendant on 8-1-1951. It bears the endorsement of the Sub-Registrar that the amount was paid in his presence. The defendant has pleaded that he has not received full consideration for the document and has asked for a re-opening of some previous transactions between himself and others which, according to him, have a bearing on the consideration for the suit document.

2. In March 1953 the plaintiff made an application for the appointment of a Receiver for managing and protecting the mortgaged properties and for the collection of rents and profits. In the affidavit annexed to the application, he represented that nearly Rs. 1,41,000/- were due to him by that date including costs, that though in the mortgaged deed the respondent had expressly covenanted with the plaintiff that the mortgaged properties were all free from encumbrances except those set out in it he had recently come to know that some of the items had been already mortgaged to one Ambaram Fakirbhai in July 1942, that the latter had filed two suits O. S. Nos. 56 and 57 of 51-52, obtained decrees for sale and had been executing the said decrees and that a sum of Rs. 22,000/- was stated to be due to him under those decrees and that though the respondent had agreed to pay interest at one per cent, per mensem regularly he had not paid any amount towards interest from the date of mortgage though he was realizing a sum of Rs. 920/- for rent. In the meantime the value of the mortgaged properties was falling and in the event of a decree there was no chance of his realizing the full amount due to himself as some of the plaint items were now to be subject to the prior encumbrance in favour of Ambaram Fakirbhai. He estimated the present value of the properties at Rs. 1,33,500/- after deducting the amount due under the previous mortgage in favour of Ambaram Fakirbhai.

3. In the counter affidavit the defendant pleaded that the plaintiff was aware about the encumbrances and that one Khanmull Ganeshmull who was acting for the plaintiff had applied or promised to apply for an encumbrance certificate and had collected the necessary charges from himself. The suit mortgage deed was got drawn up by Ganeshmull who for some reason did not incorporate therein the two mortgages in favour of Ambaram. The value of the properties mortgaged was according to him Rs. 4,11,000/- and they were fetching rent of Rs. 680 and not Rs. 920/- as alleged. He characterized the plaintiffs application as mala fide.

4. The learned District Judge who heard the application refused to appoint a Receiver. He was inclined to believe that the value of the immovable properties had fallen; but he thought that, as ordinarily money-lenders advance loans only up to 40 per cent, of the value of the properties, the mortgaged properties were of sufficient value and continued to be good security for the plaintiffs loan, He said : "I am not just now in a position to know the real or probable market value of properties. However it is significant that the fact of a prior mortgage was not embodied in the suit mortgage deed, and at this stage, it may be inferred that the defendant did not have it embodied. But the application was filed about 8 months after the suit and ordinarily a simple mortgagor has a right to remain in possession and appropriate the profits of the mortgaged property till the sale has actually taken place." He thought that though the amount was heavy it could not be said that the arrears had fallen due for a long period of time. The plaintiff has come up in appeal against that order.

5. It is difficult to support the learned District Judges order. That some considerable amount is due to the plaintiff is not denied by the defendant. It is also not denied that no interest at all has been paid to the plaintiff though more than four years have now elapsed since the date of the mortgage. It is not clear how the learned District Judge considers that a creditor advances only 40 per cent, of the value of the property. Section 66, Transfer of Property Act, provides that a security is sufficient only if in the case of mortgaged buildings they are at least twice the value of the debt. It cannot be believed that the value of the properties is Rs. 4 lakhs and odd as represented by the defendant if the rent which he is realizing from them is only Rs. 680/- per month. If the rent is capitalized as 162/3 x 10 months rent it would amount to Rs. 1 lakh and odd. Admittedly there are two prior mortgages for which decrees have been obtained and execution has been sought in respect of some of the items mortgaged. It is represented for the respondent that he has not chosen to raise the rent of the buildings and that the tenants have continued to pay the same rent from a long time. This would indicate either that the respondent is unable to manage his affairs properly, if he is not sufficiently interested in realizing the proper rents especially when he is so heavily indebted, or that the premises are not kept in proper repair and management. It appears to be therefore thoroughly just, reasonable and convenient to appoint a Receiver in the present case. The respondent can certainly be not said to be justified in asking that he should be collecting all the rents and utilising them himself without paying a single pie even towards his admitted and just debts for which decrees have been obtained and which would vitally affect the plaintiffs security. The circumstance that the plaintiff has made an application for the appointment of a Receiver some time after the suit was filed and not immediately and probably after Ambaram obtained decrees and started to proceed against the mortgaged property is indicative of bona fides and an anxiety to safeguard his own interest rather than otherwise.

6. Abdul Basid Sab v. Sahukar Sardarmul Multan Mull, 12 Mys LJ 495 (A) is a clear, authority for the position that a Receiver can be, appointed at the instance of a simple mortgagee. The learned District Judge has tried to distinguish that case on the ground that there was an allegation of waste of the mortgaged property made in it. But it has been laid down in that case that apart from the allegation of waste there was a distinct allegation that nearly Rs. 8000/- interest had not been paid and that circumstance was a sufficient ground to justify the order of appointment of a Receiver in a suit on a simple mortgage. The cases in - Ethirajalu Chetty v. Rajagopalachari, AIR 1929 Mad 133 (B), - Paras Ram v. Puran Mal-Ditta Mar, AIR 1925 Lah 590 (C); - Punjab National Bank Ltd. v. Moosaji Jafferji, AIR 1927 Sind 230 (D); - Abdul Khairat Mahommad v. Hrishikesh Das, AIR 1926 Cal 978 (E) and - Manindra Chandra v. Suniti Bala Debi, AIR 1926 Cal 1006 (F), are referred to therein in support of that position; see. also - Venkenna v. Mangammal, AIR 1936 Rang 296 (SB) (G) and - Rameswar Singh v. Chuni Lal, AIR 1920 Cal 545 (H), which are to the same effect.

7. In out that AIR 1929 Mad 138 (B) it is pointed "It is impossible to lay down a hard and fast rule laying down under what circumstances the Court will appoint a Receiver. But ordinarily there should, be some loss or detriment not foreseen by the mortgagee at the time when he chose to take a simple mortgage and allow possession to remain with the mortgagor, which loss could, not be compensated except by the appointment of a Receiver." This case has been referred to and followed in - Paramasivan Pillai v. Ramasami Chettiar, AIR 1933 Mad 570 (PB) (I).

8. In - AIR 1920 Cal 545 at p. 547 (H) when dealing with the contention that a Receiver could not be appointed at the instance of a simple mortgagee their Lordships observed that the same was not based on principle and that there was no foundation for the contention that a mortgagee who is not entitled to possession of the mortgaged properties is not entitled to ask for the appointment of a Receiver; whether the mortgagee is or is not entitled to possession, he may invite the Court to appoint a Receiver, if the demands of justice require that the mortgagor should be deprived of possession.

9. The learned District Judge has referred to - Anandi Lal v. Ram Sarup, AIR 1936 All 495 (PB) (J) which lays down the contrary. That decision was based on the interpretation of the words "any person" in O. 40, R. 1 as meaning even parties to the suit, and held that as a simple mortgagee has no present right to remove the opposite party from possession, and custody he cannot get a Receiver appointed to the property mortgaged to him. That decision was later on considered by a Pull Bench in - Mt Tulsha Devi v. Shah Chironju Lal, AIR 1943 All 1 (K) and Iqbal Ahmed, C.J. observed that the Division Bench which heard the appeal had entertained considerable doubt about the accuracy of that decision and that the answer to the question whether cl. (ii) of R. 1 of O. 40 has application only to properties in the possession of third parties or is also applicable to the properties in the possession of one of the parties to the litigation is beset with considerable difficulty and there is considerable divergence of judicial opinion on the point. The Pull Bench considered advisable that, in order to set the doubt at rest so far as their Courts were concerned, the rule should be so amended as not to leave any doubt as to the true interpretation of cl. (ii) of R. 1 of O. 40. They themselves left the question open as they felt it unnecessary to decide it in the case before them. Subsequently the rule was amended in Allahabad as referred to in - Bireshwar Banerji v. Sudhansu Shekhar Singh, AIR 1947 All 157 (L). By that amendment the words "not being a party to the suit" were inserted after the word "person" in sub-r. (ii).

10. It must be observed that the wording of O. 40, R. 2 in the Code of Civil Procedure as in force in Mysore is the same as in Madras and Calcutta; and nevertheless those Courts have not considered the same as any bar to the appointment of a Receiver in suits on a simple mortgage. They seem to be based on the principle that by appointing a Receiver in such a case the mortgagee is not really seeking to deprive the possession by the mortgagor of the mortgaged property or to obtain possession for himself but is ensuring that the same is managed for the benefit of the mortgagor and on his behalf so that its income and profits which may be said to be accretions to the mortgaged property may be made available and applied towards the discharge of the mortgage debt and that the Court by such appointment is merely ensuring the payment of interest to the mortgagee as agreed to by the mortgagor and that the appointment of a Receiver is only a mode of realizing the security even in the case of a simple mortgage; see - AIR 1933 Mad 570 at pp. 574, 581 and 582 (FB) (I). They also base their decisions on principles of English law in such matters; see - AIR 1920 Cal 545 (H); - Jaikissondas Gangadas v. Zenabai, 14 Bom 431 (M). In any event we are bound by the decision of this Court which appears to us, if we may say so with respect, to be in consonance with justice and equity.

11. We, therefore, allow this appeal and set aside the order of the Court below. The District Judge is directed to appoint a proper person as Receiver with powers to manage the properties, collect the rents and deposit the same in Court. There will be no order as to costs in this appeal.

12. During the course of the arguments in the appeal before us it was agreed for the appellant that a sum not exceeding Rs. 200/- per month may be paid out of the rents so collected to the defendant till the disposal of the suit for his current expenses. The learned District Judge will give effect to the same.

13. The suit was filed more than two years ago. The matter involved appears to be simple, and it is surprising that the suit has not been disposed of till now. It is hoped that the learned District Judge will do so expeditiously. Appeal allowed. AIR 1954 MYSORE 164 (Vol. 41, C.N. 69) "M. Ramamurthy v. State of Mysore" MYSORE HIGH COURT Coram : 2 BALAKRISHNAYYA AND MALLAPPA, JJ. ( Division Bench ) M. Ramamurthy, Accused-Petitioner v. State of Mysore. Criminal Revn. Petn. No. 242 of 1953, D/- 4 -2 -1954, against decision of Principal Sessions J., Bangalore, in Cr. A. No. 75 of 1953. (A) Penal Code (45 of 1860), S.292 - OBSCENITY - Obscene publication - What is - Test. The test of obscenity is, whether the tendency of the matter charged as obscene is to deprive and corrupt those whose minds are open to immoral influences and in whose hands a publication of this sort may fall. The publication must be regarded as obscene if it is calculated to produce a pernicious effect in depraving and debauching the minds of the persons into whose hands it might come. (1868) 3 QB 360, Rel. on. (Para 4) Works of art are never considered as obscene. (Para 6) It is the effect of the publication on the mind of an ordinary young person that has to be considered in deciding whether it is obscene or not. AIR 1952 Cal 214, Rel. on. (Para 6) Whether the book is obscene is a matter in which the Court is entitled to rely on its own judgment as well as the evidence of witnesses in support of this finding of fact. AIR 1932 Cal 651, Rel. on. (Para 9) Where a man publishes a work manifestly obscene he must be taken to have intended the inevitable consequences. The object which the writer has in view is immaterial. If the publication is an obscene publication it would be no defence to say that the law was broken for some wholesome and salutary purpose. (Para 9) Held on a consideration of the publication Kama Kala as a whole that it was obscene within the meaning of S. 292, Penal Code. (Para 8) Anno : Penal Code, S. 292 N. 1. (B) Criminal P.C. (5 of 1898), S.242, S.537 - SUMMONS CASE - CRIMINAL PROCEEDINGS - Effect of non-compliance of S.242. Under S. 242, Cr. P.C., a Magistrate trying a summons case is required at the very outset to state to the accused the particulars of the offence and to ask him to show cause why he should not be convicted. The particulars must be stated in such detail as to give the accused full information regarding the case which he has to meet. 16 Mys CCR 231, Rel. on. (Para 10) Where the omission to comply with S. 242 has prejudiced the accused in his defence the conviction cannot be sustained. (Para 10) Anno : Cr. P.C., S. 242 N. 8. Cases Referred : Courtwise Chronological Paras (A) (1868) 3 QB 360 : 37 LJMC 89 4, 9 (B) (V 34) AIR 1947 Lah 383 : 48 Cri LJ 910 5 (C) (V 39) AIR 1952 Cal 214 : 1952 Cri LJ 575 6 (D) (V 19) AIR 1932 Cal 651 : 56 Cal LJ 123 : Cri LJ 771 7, 9 (E) (V 7) AIR 1920 Bom 402 : 22 Bom LR 166 : 22 Cri LJ 513 8 (F) (1814) 3 M and S 11 : 105 ER 516 9 (G) (11) 16 Mys OCR 231 10 (H) (24) 2 Mys LJ 223 10

(I) (29) 7 Mys LJ 144 10 C.B. Srinivasa Rao, for Petitioner; The Advocate General, for the State. Judgement This is a revision petition against the judgment of the Principal Sessions Judge, Bangalore, in Criminal Appeal No. 75 of 1953 confirming the conviction under S. 292, I.P.C., but modifying the sentence passed by the Additional First Class Magistrate, Bangalore, in C. C. No. 10 of 1952-53.

2. The petitioner-accused is the editor of a monthly journal known as Kama Kala. The prosecution case is that the accused-petitioner is distributing and has put into circulation this monthly journal which contains obscene writings and pictures. Eleven copies of the journal of different months have been exhibited in the case and three witnesses were examined for the prosecution and according to them the journal contains obscene writings harmful to youngmen and women. On the other hand, the accused has examined two witnesses of whom one is Dr. Puttanna, a retired Surgeon and who was the Principal of the Medical College and the other gentleman is the well-known author Sri Devadu Narasimha Sastry. The Doctor is of opinion that there is nothing obscene in the pamphlets and that it is fit to be prescribed as a text book in Medical Colleges and Schools. Sri Devadu Narasimha Sastry is of opinion that he has no hesitation in placing these pamphlets in the hands of children of sufficient age.

3. We have been taken through some portions of the pamphlets and before considering the question whether they are obscene it may be useful to state that what has to be considered as obscene or indecent has changed from time to time and may not exactly be the same in different countries. What is tolerated in one country may be considered as bordering on obscenity in another country. It may also be stated that there has been a difference of opinion as to whether young men and women have to be educated on questions of sex and if so. to what extent. Though the tendency in recent times is to consider that young men and women should know something of sex, the orthodox view la still that such a knowledge is dangerous. The intention however of Legislature is not to prohibit knowledge of sex being spread on scientific lines. What however is objectionable according to law is that a person should not take advantage of the curiosity of young men and women to know something of sex and make money out of publications that will have the effect of depraving their minds.

4. The Indian Penal Code has not denned what is meant by "obscene". In "Manual of Law terms and phrases" by K.J. Aiyar "obscene" is defined as follows : "This term is intended in law to denote what is an offence to public moral and decency. The offences against public moral and decency are (1) selling, distributing, importing, or printing for sale, or hire, or publicly exhibiting any obscene book, pamphlet, paper, drawing, painting, representation or figure; (2) Having in possession any obscene book for sale or exhibition; Sections 282 and 293, I.P.C." The test of obscenity according to what has been laid down by Cockburn, C.J. in - R. v. Hicklin, (1868) 3 QB 360 (A), which is invariably relied on in most of the later authorities on the point is, "whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to immoral influences and in whose hands a publication of this sort may fall." He also observed that the publication must be! regarded as obscene if it is "calculated to produce a pernicious effect in depraving and debauching the minds of the persons into whose hands it might come."

5. As observed in - Emperor v. Harnam Das, AIR 1947 Lah 383 (B); "Where the book in question was a serious work intended to give advice to married people, and particularly husbands, on how to regulate the sexual side of their lives to the best advantage, that is to say, with a view to promoting their health and mutual happiness. Held : Such books when properly written serve a useful purpose. Such books are published on a large scale and widely circulated in all civilised countries including Britain and the United States of America. If such books are effectively to fulfil their intended purpose it is obvious that they must be written in fairly plain language in order to be understood, and, it cannot be said that the publication of such books should be banned altogether because of the danger, against which it is undoubtedly very difficult to provide effective safeguards, that they may fall into the wrong hands."

6. It may be added that works of art are never considered as obscene. Then again as observed in - Sukanta Halder v. The State, AIR 1952 Cal 214 (C) : "The Courts have, more often, restricted the use of the term obscenity to sexual immorality only. Such matters as would tend to stir in persons, into whose hands such matter is ordinarily expected to reach, sex impulse which lead to sexually impure and lustful thoughts, are declared as obscene, attracting the jurisdiction of the Court to ban out such publications. The true test is not to and out what depraves the morals in any way whatsoever but what leads to deprave only in one way, viz., by exciting sexual desires and lascivious thoughts." Another point that may arise for consideration is whether a book can be called obscene if it produces depraved thoughts on any young person. It may be that a young person may be so sensuous in nature that his feelings will be roused by a look at the diagram of sex organs in a medical book. There may be persons whose feelings are not roused under any circumstances. It is not the effect of the publication on such persons the Courts have to take note of. It is the effect of the publication on the mind of an ordinary young person that has to be considered in deciding whether it is obscene or not. As observed in the above authority : "The effect produced on an ordinary member of the society or a particular class of readers for which a particular publication may be meant has to be ascertained. It is neither a man of wide culture or rare character nor a person of a depraved mentality should be thought of as being the readers of such literature. The standard of readers is neither one of exceptional sensibility nor one without any sensibility whatsoever."

7. As regards appreciation of evidence in cases of this kind, "whether the book is obscene is a matter in which the Court is entitled to rely on its own judgment as well as the evidence of witnesses in support of this finding of fact," as observed by Jack, J. in - Kailash Chandra v. Emperor, AIR 1932 Cal 651 (D).

8. In this case some oral evidence has been adduced and the Courts below have rightly applied their mind and found that the journal contains material that would corrupt and deprave the minds of young persons, it would but be fair to say that the journal contains some useful matter to young men and women, but on the whole there are a good number of passages that would have an undesirable effect on the minds of young men and women. What the author clearly refuses to answer to imaginary or real questions put to him, he publishes in the form of questions stated to have been put to him in letters. Pictures of naked men and women are printed to attract youngsters. No better purpose than this could be thought of for the introduction of a large number of such portraits exhibiting different postures of naked persons. Taken as a whole it is difficult to differ from the findings of the Courts below. It is true that some passages contain useful matter that may be read by young men but as observed by Hayward, J. in -Rahimatalli v. Emperor, AIR 1920 Bom 402 (E) : "It is necessary of course, to take into consideration the whole pamphlet and not merely to look to passing references which might give no real indication of its true intention. But on the other hand it is equally necessary not to be misled by the length of perfectly unexceptional and proper passages into missing the sting, however short and pungent, lurking in the pamphlet."

9. It is contended that the intention of the accused is to instruct the young and not to deprave their minds. But Blackburn, J. in - (1868) 3 QB 360 (A), took the rule of law to be, as stated by Lord Ellenborough in - Rex v. Dixon, (1814) 3 M and S 11 (F) in the shortest and clearest manner "it is a universal principle that when a man is charged with doing an act of which the probable consequence may be highly injurious the intention is an inference of law resulting from the doing of the act." As observed in - AIR 1932 Cal 651 (D) : "Where a man publishes a work manifestly obscene he must be taken to have intended the inevitable consequences;" and as observed by Mitter, J. in the above case : "The object which the writer has in view is immaterial. If the publication is an obscene publication it would be no defence to say that the law was broken for some wholesome and salutary purpose."

10. The oral evidence of the Doctor, Puttanna, and Sri Devadu is no doubt in favour of the accused but it is unfortunate that the prosecution has not concentrated on the above portions of the pamphlets and questioned the witnesses as to their view on these portions. Even the P. Ws. have not been questioned with reference to these portions of the publication. It is this weakness in the evidence that leads us to ascertain what definite case the accused has been asked to meet. It is found that no question under S. 242, Cr. P.C., has been put at all. Even after the P. Ws. were examined he had not been questioned particularly with reference to the objectionable passages and we are of opinion that this has prejudiced the accused to a considerable extent. The question for consideration is whether the conviction under these circumstances has to be upheld. As was pointed out in -- 16 Mys OCR 231 (G) under S. 242, Cr. P.C., a Magistrate trying a summons case is required at the very outset to state to the accused the particulars of the offence and to ask him to show cause why he should not be convicted. The particulars must be stated in such detail as to give the accused full information regarding the case which he has to meet. It may here be stated that this is a decision of a Bench. It is no doubt true that this case has been distinguished in - 2 Mys LJ 223 (H). That is a case decided by a Single judge. The omission was regarded as a mere irregularity and in view of certain points referred to in that decision it was considered that the accused was not prejudiced and the conviction was upheld. In a later decision it is pointed out that the omission amounts to an illegality. That is a decision of a Bench of two Judges and it has been held in that decision, - 7 Mys LJ 144 (I), that in a summons case, the procedure prescribed in S. 242, Cr. P.C., is mandatory. The Court should bring to the notice of the accused persons, the particulars of the offence they were accused of, and their plea should be recorded tinder Ss. 242 and 243, Cr. P.C. Mere examination of the accused under S. 342, Cr. P.C., after prosecution witnesses had been examined, will not cure the initial illegality in the omission to follow the provisions of S. 242" when renders the trial void. The weakness of the oral evidence as it stands and the inadequacy of questions put under Ss. 242 and 342, Cr. P.C., make us feel that the conviction cannot be upheld on this count.

11. The petitioner appears to be young man of some intelligence. He has faced the trial. This case has been hanging on from 10-6-52 when the charge sheet was filed. He had filed an appeal and has come up to this Court in revision. We have been assured that the publication of Kama Kala was stopped from the date on which the charge sheet was placed. It may be added that it has been brought to our notice that this is the first case launched in Mysore under S. 292, I.P.C. Considering all the circumstances of the case, we do not think that it is necessary to remand the case and order a re-trial. The revision petition is therefore allowed and the conviction and sentence are set aside. Conviction and sentence set aside. AIR 1954 MYSORE 167 (Vol. 41, C.N. 70) "Hutcheeregowda v. Sanjeevagowda" MYSORE HIGH COURT Coram : 1 BALAKRISHNAYYA, J. ( Single Bench ) Hutcheeregowda, since deceased by L. Rs. and others, Plaintiffs-Appellants v. Sanjeevagowda and others, Defendants-Respondents. Second Appeal No. 14 of 1952-53, D/- 9 -2 -1953, against decree of First Addl. Sub.-J., (Court of Sm. C.), Bangalore in R. A. No. 72 of 1849-50. Civil P.C. (5 of 1908), O.3, R.4 - ADVOCATE - Pleaders - Power to compromise. A pleader has no authority to enter into a compromise on his own responsibility unless the vakalatnama in his favour confers such authority on him and a compromise decree effected by the pleader without the necessary authority is not binding on the client. Even in the case of express authority in writing, the general power to conduct the case cannot imply a specific power authorising the Advocate to agree to compromise on his own responsibility. 4 Mys LJ 94, Rel. on; Case law referred : Held that as the Advocate in the case had made it amply clear in his deposition that he had compromised the suit on behalf of all the parties as he had power to do so and the assertion was fully supported by the express authority to compromise contained in the vakalatnama, the compromise was binding on the parties. AIR 1950 Pat 253, Distinguished. (Paras 4, 5) Anno : Civil P.C., O. 3, R. 4, N. 7. Cases Referred : Courtwise Chronological Paras (A) (V 17) AIR 1930 PC 158 : 57 Ind App 133 (PC) 4 (B) (V 22) AIR 1935 PC 119 : 14 Pat 545 (PC) 4 (C) (V 10) AIR 1923 PC 98 : 84 Ind Cas 721 (PC) 4 (D) (98) 21 Mad 274 : 3 Mad LJ 40 4 (E) (26) 4 Mys LJ 94 4 (F) (V 5) AIR 1918 Mad 656 : 41 Mad 233 4 (G) (V 37) AIR 1950 Pat 253 5 G. Dayananda, for Appellants. Judgement The suit from which this appeal arises was filed to repel the terms of a compromise entered in O. S. 338/46-47 and to declare the decree passed therein as null and void. The trial Court dismissed the suit and the said decision was confirmed in the first appeal.

2. O. S. 338/46-47 was filed by defendants 1 to 3 of this suit, against the plaintiff and defendant 4 (pro forma) for declaration that the alienation of the properties made by their father was not binding on their interests. During the progress of the suit, a compromise was entered into under the terms of which the defendants obtained certain portions of the properties involved in that suit. The compromise petition was signed by defendant 4 who was present in Court and the lawyer (Mr. H. Narayana Rao) who was appearing for all the defendants in that suit signed on their behalf. The ground upon which the suit is filed is that the compromise was entered into without the knowledge of the plaintiffs and that it was the result of fraud on the part of the lawyer in collusion with defendant 4. It has been found by the Courts below that there was no proof of either collusion or fraud on this part of the lawyer and that the compromise entered into was bona fide and in pursuance of the authorisation contained in the vakalatnama (the kannada version translated) to the effect that "we have hereby given full powers to agree to compromise on our behalf in the case." The appellants are thus concluded by the concurrent findings of fact and no interference is called for.

3. A point touching the validity of, and impeaching the power of the Advocate to enter into, the compromise, is raised. It is argued for the appellants that the general power stipulated in the vakalatnama was insufficient to enable the Advocate to act on his own responsibility so as to bind the appellants for the acts of the counsel, and that in addition it was incumbent on the part of the Advocate to have taken special authority before the compromise was agreed upon. I am unable to appreciate the contention, especially in view of the express authority contained in the vakalatnama.

4. The relation of a party with that of the Advocate appointed to conduct the suit on his behalf is regulated by the agreement, express or implied, between them. In the English Courts, the authority of an Advocate to compromise on behalf of a client in a suit is said to be derived from the known existence of the implied authority attributable to his appointment as counsel. If the authority is derived from an express agreement in writing, no question of implied authority arises, but the extent of the power is governed by the specific terms of the authority. In a general authorisation to conduct a case, the authority to compromise is not implied; and the Advocate in such cases cannot, without reference to his client, compromise a suit on his behalf. But the Advocate can always compromise if the express authority is contained in the vakalatnama. Following the practice obtained in the English Courts, Lord Atkin delivering the judgment of the Judicial Committee of the Privy Council observed in an appeal from Bengal - Sourendra Nath v. Tarubala Dasi, AIR 1930 PC 158 at p. 161 (A) that "their Lordships regard the power to compromise a suit as inherent in the position of an Advocate in India. The considerations that have led to the implied power being established in the Advocates of England, Scotland and Ireland, apply in equal measure in India." This decision was followed in a later case - Sheonandan Prasad Singh v. Abdul Fateh Mohammad, AIR 1935 PC 119 (B), where it was laid down that "Counsel in India have the same implied authority to compromise an action as have counsel in English Courts........... It may, however, be withdrawn or limited by the client; in such a case the actual authority is destroyed or restricted." These are cases in which implied authority was the question for consideration, without an express authority in writing. In the former case, the learned Lord (Lord Atkin) proceeds to state at page 162 that "When a legal representative in Court of a client, derives his authority from an express written authority, such as a vakalatnama, different considerations may well arise, and in such cases their Lordships express no opinion as to the existence of any implied authority of any kind under discussion." Where the compromise was supported, not on implied authority but depended upon an express written authority, the opinion of their Lordships has been expressed in - Sourindra Nath v. Heramba Nath, AIR 1923 PC 98 (C) thus : "A pleader who does not hold or has not filed in the suit before the Court his clients general power of attorney authorising him generally to compromise a suit on behalf of clients cannot be recognised by a Court as having any authority to compromise the suit, unless he has filed in the suit his clients vakalatnama giving him authority to compromise the suit before the Court." When the party has retained a pleader and signed the vakalat which made no reference to the power to compromise, the Madras High Court held in - Jagapati Mudaliar v. Ekambara Mudaliar, 21 Mad 274 (D) that "it is not competent to a pleader to enter into a compromise on behalf of his client without his express authority to do so." This Court has, on a consideration of - 21 Mad 274 (D) and - AIR 1923 PC 98 (C), laid down in - Naranaiyengar v. Naranachar, 4 Mys LJ 94 (E) that "A pleader has no authority to enter into a compromise on his own responsibility unless the vakalatnama in his favour confers such authority on him and a compromise decree effected by the pleader without the necessary authority is not binding on the client." Even in the case of express authority in writing, the general power to conduct the case cannot imply a specific power authorising the Advocate to agree to compromise on his own responsibility. A provision in the vakalat "to present, if necessary, petitions of rajinama for withdrawal and for referring to arbitration and to sign the rajinama, etc.", was held to be insufficient to give authority to the Vakil to enter into compromise without reference to his client (vide - "Thenal Ammal v. Sokkammal, AIR 1918 Mad 656 (F)).

5. It was further argued that the mere signature of the Vakil to the petition without indicating that it was so signed in pursuance of authority vested in him under the vakalat, does not bind the client. Reliance was placed for this proposition on - Shital Prasad Singh v. Surendra Nath, AIR 1950 Pat 253 (G). In that case, the express authority in writing claimed by the Vakil to compound the case was not proved by the production of the vakalat and in consequence, it was observed that the power, even if available, could not be recognised as there ^vas not even an endorsement indicating that signature was appended in pursuance of the express power vested in him. The case is thus distinguishable and does not help the appellants. In the present case, the Advocate has made it amply clear in his deposition that "I have compromised the suit on behalf of all the parties as I had power to do so" and this assertion is fully supported by the express authority to compromise, contained in Exhibit XIV the vakalatnama. There is thus no reason to interfere with the concurrent decisions of the Courts below.

6. In the result, the appeal is dismissed without notice. Appeal dismissed. AIR 1954 MYSORE 168 (Vol. 41, C.N. 71) "Bank of Mysore v. B.D. Naidu" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND MALLAPPA, JJ. ( Division Bench ) Bank of Mysore Ltd., Avenue Road, Bangalore City by its Manager, B.V. Narayana Reddy, Appellant v. B.D. Naidu, Respondent. Regular Appeal No. 75 of 1950-51, D/- 2 -12 -1953, against decree of Dist, J,, Bangalore in O. S. No. 27 of 1945-46. Contract Act (9 of 1872), S.38 - CONTRACT - TENDER - Valid tender - Essentials. A tender to be effective must be, as required by S. 38. Contract Act, unconditional and of the full amount due. A tender clogged with the term that the money is to be taken as a settlement is not good. (1847) 11 QB 130 and (1833) 172 ER 1223, Rel. on. (Para 3) Thus, a cheque for an amount which is short of what is actually payable for a complete discharge with a condition that it should operate as extinction of the entire liability is not a valid tender. There is no principle of law which authorises the acceptance by the creditor of a cheque for a sum smaller than what is due without prejudice to his rights, when the cheque describes the payment to be in full discharge of the liability. (Para 3) Further, when a cheque is meant to discharge two debts as a whole without specifying the portion of the amount to be applied, to either debt the creditor has no option or obligation to receive the amount and distribute it between the debts in a manner which the debtor considers to be helpful to him. (1848) 136 ER 1091, Rel. on. (Para 3) Anno : Contr. Act, S. 34 N. 2, 3, 4. Cases Referred : Courtwise Chronological Paras (A) (1847) 11 QB 130 : 116 ER 425 3 (B) (1833) 172 ER 1223 : 6 Car and P 237 3 (C) (1848) 138 ER 1091 : 5 CB 793 3 K. Raja Iyer, D.H. Chandrasekharaiya and C.K. Narayana Rao, for Appellant; D. Narasarajulu and K.P. Muddappa, for Respondent. Judgement VEVKATA RAMAIYA, J. :- Respondent sued the appellant which is the Bank of Mysore, Ltd., for return of the Shares left as security for a loan, alleging that the Bank unreasonably failed to accept the tender of monies due and caused loss to the respondent estimated at Rs. 11,000/- and this sum together with dividends payable with respect to the shares are more than sufficient to wipe off the debt. The tender and discharge of the debt were both denied by the Bank and a lien on the shares was claimed for payment of the loan referred to in the plaint as well as another for recovery of which a decree has been obtained in the Court of the Sub Judge. The question as to what was the amount due to the Bank was raised in Issue No. 4, that of tender in Issue No. 1 and of damages in Issue No. 3. Without recording any evidence the learned District Judge dismissed the suit holding that it was not maintainable. The dismissal was set aside by this Court and the case remanded for disposal after taking evidence and allowing amendment of the plaint. Subsequently, an account of monies due to the Bank and of damages due to plaintiff was asked for and an additional issue about the Banks right to retain the shares till payment of the amount due under the decree of the Sub Court was framed. Besides the correspondence and extracts of accounts relating to the transactions exhibited in the case, the only persons examined in the case are plaintiff and the Superintendent of the Loan section of the defendant Bank. The lower Court has on a consideration of these decreed the suit as prayed for awarding Rs. 11,000/- as damages. On behalf of the Bank it is contended that the decision is not warranted either by the facts of the case or the law applicable to it. Learned Counsel for the respondent did not rely on the cases referred to in the judgment for supporting it as some of these were found to be either misquoted or misapplied.

2. The plaintiffs right to the shares cannot be disputed as these stand in his name and the plaintiff cannot question the Banks claim to retain the shares till the amount due in respect of what is called the share loan account is discharged as the shares were given as security for the loan. The case of the plaintiff is not that as a matter of fact the amount was paid by him but only that he offered to pay it, that the Bank unreasonably refused the offer and that, owing to this refusal to receive the amount and release the shares, the plaintiff could not have the benefit of realising about Rs. 11,000/- by disposing of the shares when the value of these had appreciated. According to the Bank there was no acceptable offer and plaintiff has suffered no loss by retention of the shares. The crux, or the case is the factum and legality of tender. Except for a mere reference in the plaint which is controverted, there is no proof of tender of any amount in the year 1941. The allegation concerning this in the letter Exhibit A is so vague and dubious that no weight can be attached to it. Apart from this it is the cheque dated 29-5-1943 for a sum of rupees twenty thousand drawn by the plaintiff in favour of defendant which is alleged to constitute an effective tender. The cheque was not sent to the Manager of the Bank but given to Sri Wajid who was then a Director of the Bank. Mr. Wajid is not examined in this case and the cheque is not encashed. The cheque directs payment in "full and final settlement of all accounts" of the plaintiff. In his evidence the plaintiff states "I had known from the defendant that Rs. 21,500/- was due by me on all accounts and if Rs. 20,000/- had been accepted it was in full settlement and the defendant is to give up Rs. 1500/-". It is admitted that besides the debt contracted by the plaintiff for the purchase of shares, he owed monies in the overdraft account, that in the suit for recovery of the latter, the settlement of both debts by means of the cheque was set up by plaintiff but negatived and there was a decree without relying on the settlement. Absolutely no evidence is adduced in this case to prove that the Bank agreed to forego any part of the amount due from plaintiff. It therefore follows that the amount for which the cheque was issued is less than what was payable to the Bank as admitted by the plaintiff himself for complete discharge of his liabilities. The cheque was stated to be in full discharge of all liabilities and there was no letter qualifying it or intimation for its being appropriated otherwise. Nor did plaintiff make any effort directly with the Manager to reach an understanding or renew the offer to pay on modified terms. In these circumstances the question is whether the Bank can be subjected to liability for not returning the shares.

3. It is argued on behalf of the plaintiff that since the amount of the cheque was at any rate more than what was due for satisfaction on the share loan, the Bank should have appropriated what was necessary for the same out of the realisation under the cheque and credited the rest towards the other account. In the absence of any instruction from plaintiff in this behalf, the Bank could hardly have adopted this course unless the law required it. Even if this was possible or necessary, the plaintiff, it is alleged is not entitled to insist on delivery of the shares by virtue of art. 19 of the articles of Association. The Article is pointedly set out in a letter to the plaintiff wherein a lien is claimed on the shares for the amount due not merely on the share loan account but also on the overdraft account. An attempt was made on plaintiffs behalf to show that the contract between the parties must be construed as having limited the lien only to the share loan. Even so, the contention for the Bank is that the lien is two-fold - one under the general law of contract as in Section 171 capable of being varied by agreement, another under the Companies Act binding on plaintiff as a shareholder which cannot be avoided. The Banks contention has, I think, to be upheld though it is enough for the purpose of the decision in this case that the cheque in any event cannot be regarded as a valid tender and the right of the Bank to proceed against the shares for recovery of the debt in respect of the overdraft account is secured by the attachment of the shares in execution of the decree. A tender to be effective must be, as required by Section 33, Contract Act, unconditional and of the full amount due. Prima facie both these are lacking in the cheque. The amount is admittedly short of what was payable for a complete discharge and yet it is intended to operate as extinction of liability. In - Bowen v. Owen, (1847) 11 QB 130 (A), Lord Denman, C.J. observed. "All persons who make a tender in form do so for the purpose of extinguishing a debt. If, in tendering for that purpose, they merely propose that the creditor should take the sum offered and leave it open to him to persist in his claim for more such a tender is free from objection : but if a party says I will not pay this money unless you give a receipt for it as the whole amount due that is no legal tender". Baron Vaughan put it tersely thus in - Mitchell v. King, (1833) 172 ER 1223 (B) : "A tender clogged with the terms that the money is to be taken as a settlement is not good". Learned counsel of plaintiff has not pointed out any provision or principle of law which authorises the acceptance by the creditor of a cheque for of sum smaller than what is due without prejudice to his rights, when the cheque describes the payment to be in full discharge of the liability. There is also no authority for the proposition that when the cheque is meant to discharge two debts as a whole without specifying the portion of the amount! to be applied to either debt the creditor has an[ option or obligation to receive the amount and distribute it between the debts in a manner which the debtor considers to be helpful to him. A view definitely against it has been expressed in - Hardingham v. Alien, (1848) 136 ER 1091 (C) with the head note "A demands from B 11. 7s. for several matters-including 10s. for a particular service performed by A. B tenders 19s. 6d. This will not support a plea of tender of 10s. on account of such service." 4. Cottman, J. observed : "With regard to the tender no doubt if the 19s. 6d. tendered was sufficient to cover the plaintiffs entire demand it would be a good tender as to the 10sh; but if it was insufficient to cover the entire demand then inasmuch as it was not specifically applied to any portion of it, it does not sustain the replication". Assuming that a choice of adjustment was open to the Bank, there is apparently no reason why the settlement of the share loan amount had to be preferred to the discharge of the decree debt. On the contrary, consistent with the contention about the Hen being confined to the share loan account, the Bank would have better reason in the absence of definite instructions to appropriate the amount towards the debt which was unsecured rather than the one which was secured. It may be mentioned that plaintiff attempted settlement only after the Bank sued him for recovery of the money due on the overdraft account and in the course of the suit drew the cheque for Rs. 20,000/- for discharge of that debt as well as the one now in dispute. The question of settlement was raised in issue and the learned Sub-Judge Mr. U.D. Narayanamurthy after recording evidence came to the conclusion against plaintiff. The effect of this is that it was not in mind of plaintiff when he gave the cheque, it was given in discharge of one of the debts as is now argued. The result is that the cheque cannot be held to be a valid tender of the amount due by the plaintiff either for both the debts or any of those. The claim for damages does not arise as the foundation for it of a valid tender is lacking. It is therefore unnecessary to discuss whether the plaintiff can be said to be damnified at all and if so to what extent. The plaintiff has been benefited in a way by the shares not being disposed of as on the strength of being a holder of these he has acquired an equal number at the reallotment, on terms manifestly favourable to him. This is not taken into account but arbitrarily the value of the shares prevalent in 1944, the year following that of the cheque and preceding that of the suit, is taken as basis for awarding the damages as it happened to be higher comparatively. The award of damages being thus untenable and the amount allowed being unreasonable must be set aside. Though this is the essential part of the plaintiffs case, there are other reliefs for which the suit was unnecessary and about which there is no controversy. Those are returning the shares to the plaintiff on payment of the amount due. Relying on the Banks accounts Exhibit XVIII the lower Court has held that the amount clue on 31-3-1950 by the plaintiff is Rs. 10,843-13-0. The correctness of this is not questioned by the plaintiff.

5. The learned Judge of the lower Court was of the view that the tender was sufficient and that the Bank has no lien for the overdraft account, and that a sum of, Rs. 11,000/- was due to plaintiff towards damages by the Bank on account of the failure of defendant Bank to return the shares to plaintiff. The sum of Rs. 10,843-13-0 due by plaintiff was adjusted to the amount of Rs. 11,000/- due by defendant as damages. He directed the return of the shares unconditionally. As has been stated already he should have held that there was no proper tender and that the Bank had a lien over the shares in respect of the overdraft account. In this view his decree for returning the shares should have been conditional on the plaintiff paying not only Rs. 30,843/- but also money due on the overdraft account. The finding that plaintiff is entitled to damages on the ground of there being a proper tender and on the ground that the Bank had no lien for the overdraft account is therefore set aside.

6. There will be a decree that in case the plaintiff pays Rs. 10,843-13-0 with interest at 4 per cent, from 31-3-50 and discharges the decree debt due on the overdraft account within three months from this date the Bank will return the shares with dividends thereon from the above date and in case he fails to do so the Bank is at liberty to realise the debts due to them on the security of the shares. The appeal is allowed and the claim for damages is dismissed. The plaintiff will pay the costs of defendant in both Courts as he has not been able to establish his claim to the unconditional delivery of the shares. Appeal allowed. AIR 1954 MYSORE 170 (Vol. 41, C.N. 71) "In the matter of R. Nanjiah" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) In the matter of R. Nanjiah, Merchant and Commission Agent, Santhepet, Mysore. Civil Petn. No. 19 of 1953, D/- 2 -12 -1953. (A) Mysore Sales Tax Act (46 of 1948), S.3, S.2 - SALES TAX - Sales Tax - "Dealer" - Commission agent licensed by Regulated Market. The part played by a commission agent licensed by the Regulated Market in the disposal of the goods is not that of a vendor. His role is only to introduce the seller to the places where the goods may be sold and to help him to get into contact with the buyer. He can neither determine the terms of the bargain nor hand over, the goods. Such a person can hardly be considered a dealer as defined in the Act and as such is not liable to sales tax. Having regard to the nature of the work done by him, he cannot be called a commission agent and has to be termed only a broker. AIR 1952 Mad 718 (FB); AIR 1950 Mad 521 and AIR 1954 Mad 184. Ref. (Paras 3 and 4) (B) Mysore Sales Tax Act (46 of 1948), S.9 - SALES TAX - LICENSE - Sales Tax - Omission to take out license. Section 9 provides for a person obtaining a license to exempt from taxation. It cannot imply that all those who do not have the license may be taxed, as what is material is their being dealers and not licensees. Hence if a person is not a dealer (e.g. commission agent) within the meaning of the Act he cannot be taxed although he has not taken out a licence under S. 9. (Para 5) Cases Referred : Courtwise Chronological Paras (A) (V 39) AIR 1952 Mad 718 : 65 Mad LW 250 (FB) 4 (B) (V 37) AIR 1950 Mad 521 : 63 Mad LW 413 4 (C) (V 41) AIR 1954 Mad 184 : 4 STC 331 : 1954 Cri LJ 158 4 The Advocate-General, for the Govt.; S.K. Venkataranga Iyengar, for Assessee. Judgement VENKATA RAMAIYA, J. :- The two questions referred to this Court by "the Commissioner of sales Tax under S. 16, Mysore Sales Tax Act are : "1. Whether on the facts of the case the assessee being a commission, agent licensed by the Regulated Market is required to take out a license under S. 9 of the Mysore Sales Tax Act so that he may not be taxed as a dealer and whether in the absence of a license he is liable for taxation under S. 3 of the Mysore Sales Tax Act ?

2. Whether S. 9 of the Mysore Sales Tax Act is a charging Section......".

2. The facts bearing on the first question as stated in the reference are : The ryots and sellers of goods bring them to Mysore City. The Octroi Mutsaddi or Octroi Ookad levies market cess and octroi if any. The assessee as holder of a license issued by the Regulated Market to act as commission agent waits at the Ookad, takes the carts in which the goods are brought by the ryots to the Regulated market or deputes his authorised agents to do so. Alternatively the Octroi Mutsaddi notes the name of the commission agent as mentioned by the seller and sends the carts to the Regulated market. At the market the goods are sold in the presence of the Market Authorities by the Commission Agent. If the sellers agree to part with the goods for the highest bidder the goods will be delivered to him. Otherwise these will be resold on a subsequent day and till then remain with the market authorities, a fee being charged for storage. The seller will be present at the sale whenever it be, signs the papers relating to it and receives the amount. There is no case in which the commission agent is authorised to either accept the bid or receive the amount on behalf of the seller. The commission agent gets a commission of three pies per rupee for the services rendered by him.

3. The main condition of liability for payment of the tax is mentioned in S. 3 to be that the person concerned should be a dealer in goods. "Dealer" is defined in S. 2 as any person who carries on the business of buying or selling goods; Sale is defined as transfer of the property in goods by one person to another in the course of trade or business for cash or......Obviously the assesses is not a buyer of goods. He can be charged, if at all, he can be deemed to carry the business of selling the goods and this depends on his effecting the transfer of the property in the goods "by one person to another. The part played by him in the disposal of the goods is not that of a vendor and no one can either mistake him to be such as it is known that the price has to be accepted by another and the goods can be obtained with his consent. His role is only to introduce the seller to the places where the goods may be sold and to help him to get into contact with the buyer. He can neither determine the terms of the bargain nor hand over the goods. Such a person can hardly be considered a dealer as defined in the Act.

4. Having regard to the nature of the work done by the assessee the absence of authority to fix the transaction and of power to hand over the goods, he cannot be called a commission agent and has to be termed only a broker. As pointed out in the Full Bench decision of the Madras High Court - Radhakrishna Rao v. Province of Madras, AIR 1952 Mad 718 (FB) (A) in the case of a commission agent he has control over or possession of the goods with the authority from the owner of the goods to pass the property in and title to the goods to anybody to whom he may sell. At p. 722 reference is made to an earlier case, - Provincial Govt. of Madras v. Veerabhadrappa, AIR 1950 Mad 521 (B) the facts of which are summarised to be that the sellers were bringing their goods to the plaintiffs shop, plaintiff sent for prospective purchasers who came in person or their representatives, the purchasers themselves inspected the goods and the prices were fixed after discussion between the sellers, buyers and commission agents, thereafter delivery was made to the buyers and plaintiffs were paid with consent of the sellers, commission and other sums such as rusum, Dharma etc. As regards the view taken in that case it is observed "there can be no doubt whatever that the merchants in those cases do not fall within the definition of dealer. They themselves neither sold nor bought the goods. They simply brought the seller and buyer together and received a brokerage or commission by way of remuneration for their trouble". In another case of the Madras High Court cited by Sri S. K. Venkataranga Iyengar - Public Prosecutor v. M. Thommaia Fernando, AIR 1954 Mad 184 (C) it was held that persons who do nothing more than crying out the bids at the auction and who have no custody or possession over the property auctioned and have no authority to pass the property in the goods to the purchasers can only be brokers not falling within the definition of dealers and as such not liable to sales tax. If these principles are applied to the facts in the present reference, the answer to the first question must be in favour of the assessee. The learned Advocate General has not made out that a different view is possible or necessary to justify the assessment.

5. Section 9 provides for a person obtaining a license to exempt from taxation. It cannot imply that all those who do not have the license may be taxed as what is material is their being dealers and not licensees.

6. The answer to both the questions raised is in the negative. The parties will bear their own costs. Answer in the negative. AIR 1954 MYSORE 171 (Vol. 41, C.N. 72) "Bangalore City Municipality v. K. Rangappa" MYSORE HIGH COURT Coram : 2 MALLAPPA AND VASUDEVAMURTHY, JJ. ( Division Bench ) Bangalore City Municipality, now the Corporation of Bangalore and another, Appellants v. K. Rangappa, Respondent. Second Appeal No. 141 of 1950-51, D/- 15 -12 -1953, against decree of Sub-J., Civil Station, Bangalore, in R. A. No. 44 of 1949-50. Land Acquisition Act (1 of 1894), S.6 - ACQUISITION OF LAND - MUNICIPALITIES - CIVIL PROCEDURE - Public purpose - Acquisition of Hind at instance of Municipality for private institution - Validity. Municipalities. Mysore City Municipalities Act (7 of 1933), S.43. Civil P.C. (5 of 1908), O.1, R.10. The Government started acquisition proceedings at the instance of the Bangalore City Municipality for acquisition of the two shops in suits and a few other shops and according to the notification the acquisition was necessary for widening a street in the City, and for adding some land to a private institution. The cost of acquisition of the two shops in suit was to be met not by the Government or the Municipality but by the private institution for which the land was acquired. The plaintiff, the owner of the two shops, sued defendants 1 and 2 who were the Bangalore City Municipality represented by its Commissioner and the Special Land Acquisition Officer attached to that Municipality for a declaration that the acquisition of the suit properties was illegal, invalid and inoperative and for a permanent injunction restraining them from entering upon or otherwise interfering with its possession and enjoyment. Held that (i) the proposed acquisition was not warranted by S. 6, Land Acquisition Act, and was, therefore, void. Under S. 6, Land Acquisition Act, the Government must be satisfied that the land to be acquired was needed for a public purpose or for a company and it could not be said that the two shops were required for any public purpose or any company. Then again, under the proviso to that section no declaration for the acquisition of the land could be made unless the compensation to be awarded was to be paid by a company or wholly or partly out of the public funds. Hence, the acquisition of the two shops was bad as the cost had to be met by the private institution which was not a company. (Paras 4, 7, 17)

(ii) The acquisition was also not warranted by S. 43, Mysore City Municipalities Act, as it was certainly not one of the duties and obligations imposed on the Municipal Council by the City Municipalities Act. (Paras 5, 17)

(iii) That the suit against the Land Acquisition Officer or other persons interfering with possession, without the Government being made a party was maintainable. 22 Mys CCR 277 and 25 Mys CCR 228, Rel. on. (Para 6) Anno : Land Acquisition Act, S. G N. 2, 5; Civil P.C., O. 1, R. 10 N. 25. Cases Referred : Courtwise Chronological Paras (A) (V 8) AIR 1921 Cal 159 : 48 Cal 916 5, 6, 14, 16 (B) (20) 25 Mys CCR 228 5, 13 (C) (17) 22 Mys CCR 277 6, 13, 14, 16 (D) (V 32) AIR 1945 Mad 304 : 1945-1 Mad LJ 480 10 (E) (07) 34 Cal 470 : 5 Cal LJ 669 13 (F) (1800) 24 Bom 600 : 2 Bom LR 395 15 (G) (V 32) AIR 1940 Mad 394 : ILR (1946) Mad 153 (FB) 16 (H) (V 12) AIR 1925 Bom 538 : 90 Ind Cas 695 17 R. Rangiah, for Appellant; S.N. Krishniah, for Respondent. Judgement MALLAPPA, J. :- The plaintiff-respondent filed the suit under consideration in this appeal for declaration that the acquisition of two shops mentioned in the plaint schedule by the Government at the instance of the Bangalore City Municipality is illegal and invalid and for an injunction restraining the defendants, that is, the Bangalore City Municipality and the Land Acquisition Officer from disturbing the possession of the plaintiffs.

2. The Government started acquisition proceedings at the instance of the Bangalore City Municipality, as it then was, for acquisition of the two shops now under consideration and a few other shops and according to the notification the acquisition was necessary for widening Rangaswamy Temple Street at the junction of the Avenue Road, Bangalore City, and for adding some land to Sri Siddaroodaswami Mutt. As is clear from Ext. II, the plaintiff who is the owner of the two shops, objected to the acquisition on the ground that the two shops were separated by another building, which was not acquired, from the other shops acquired for purpose of widening the road, and the acquisition of his two shops was for the private, purpose of adding some lands to what, is known as Siddaroodaswami Mandali there being no Siddaroodaswami Mutt as such, and that the, acquisition also was not valid as the Government had decided that the acquisition of the land must be at the cost of Siddaroodaswami Mandali. It id surprising as was contended that the authorities concerned decided to acquire the shops which had been dedicated to an ancient temple, of the City, but we are concerned with the legality of the acquisition and not with the propriety.

3. It is not seriously disputed that acquisition of the property under the Land Acquisition Act with the purpose of giving the property to a Mutt or any private individual is illegal. But what was urged is that the acquisition is at any rate partly for the purpose of widening the road and as such it cannot be said that the acquisition is not legal. It is not necessary to consider in this case whether an acquisition of some property partly for a public purpose within the meaning of S. 3, cl. (f). Land Acquisition, Act, and partly for a purpose not contemplated by that Act is valid or not, as in this case it is clear that the acquisition is in respect of two different set of properties one set being required for the public purpose of widening the road and the other for the purpose of adding some land so acquired to a building belonging to what is referred to as Siddaroodaswami Mandali. Exhibit D makes it clear that the plaintiff has been informed that the Government has directed immediate action being taken to hand over possession of the two shops of the plaintiff to the authorities of Siddaroodaswami Mandali. While it is clear that the two shops were acquired for purpose of giving the land on which the two shops have been built to Siddaroodaswami Mandali, the other three shops separated from these two shops by another building not acquired, were acquired for purpose of widening Rangaswami Temple Street at the place where it joins the Avenue Road. It is also clear from the evidence that the cost, of acquisition of the shops now in question has to be met not by the Government or by the Municipality.

4. The acquisition of the two shops is void for more than one reason. Under S. 6, Land Acquisition Act, the Government must be satisfied that the land to be acquired is needed for a public purpose or for a Company and it cannot be said, in this case that the two shops were required for any public purpose or any Company. Then again, under the proviso to that section no declaration for the acquisition of the land can be made unless the compensation to be awarded is to be paid by a Company or wholly or partly cut of the public funds. In this case, the acquisition of the two shops is bad as the cost had to be met by Siddaroodaswami Mandal. Then again the Municipality can only get lands acquired under S. 43, City Municipalities Act, and it is as follows : "When any land, whether within or without the limits of the Municipality, is required for the purposes of this Regulation, the Government may, at the request of the Municipal Council, proceed to acquire it under the provisions of the Land Acquisition Regulation, 1894, and on payment by the Municipal Council of the compensation, awarded under that Regulation and of any other charges incurred by the Government in connection with the acquisition, land shall vest in the Municipal Council."

5. A careful reading of this section makes the following points clear. First it cannot be said that acquisition of land for being added on to the premises belonging to Siddaroodaswami Mandali can be said to be for any purpose under the Municipalities Act. Secondly, the Municipality cannot acquire any land for the use of somebody else. Thirdly, it cannot also be said that the Municipality by the Municipal Council has or could have paid the compensation or other charges, incurred by the Government as contemplated by this section. It was observed in - Manickchand Mehta v. Corporation of Calcutta, 48 Cal 916 : (AIR 1921 Cal 159 (A)) : "Though the notification under S. 6, Land Acquisition Act, is conclusive so far as S. 4, Evidence Act, is considered, yet the Court is entitled to inquire into the validity of the steps leading up to the recommendation, and was competent to inquire into the legality or otherwise of the acts of the Corporation and the Trust. Also, held, that special powers of the Corporation for purposes of acquiring land cannot be used to enable another body to acquire land through them, however estimable the purpose. The power to acquire is limited to cases where the Corporation itself undertakes the work". It can be stated in this case, as was done in the case reported in - 25 Mys CCR 223 at p. 234 (B) : "In the case before us an essential pre-requisite to the exercise by Government of the power to take compulsory proceedings for acquisition is absent, in that the compensation to be awarded is not to be paid wholly or partly out of public revenues".

6. Regarding the objection that the Government is a necessary party to the suit, it cannot be said in cases of this kind that the suit against the Land Acquisition Officer or other persons interfering with possession, without the Government being made a party, is not maintainable in view of the decision in - 22 Mys CCR 277 (C). As was observed in - 48 Cal 916 : (AIR 1921 Cal 159) (A) : "It is to be assumed that the Local Government and the Laud Acquisition Authorities will stay their hands in view of a decision of the Court, and not be parties to what may be held to be illegal and ultra vires action".

7. The judgment and decree of the learned Subordinate Judge, therefore, declaring the acquisition as void and granting an injunction restraining the defendants from taking possession must be affirmed. The appeal stands, therefore, dismissed with costs. VASUDEVAMURTHY, J. :

8. The plaintiff sued defendants 1 and 2 who are, the Bangalore City Municipality represented by its Commr. and the Special Land Acquisition Officer attached to that Municipality for a declaration that the acquisition of the suit properties consisting of two shops in Rangaswamy Temple Street, Bangalore City, was illegal, invalid and inoperative and for a permanent injunction restraining them from entering upon or otherwise interfering with its possession and enjoyment. His suit was dismissed by the Munsiff but on appeal the Subordinate Judge has set aside the judgment and made a decree as prayed for against both the defendants. The Bangalore City Municipality by its Commissioner and the Special Land Acquisition Officer have now come up in second appeal.

9. The case for the plaintiff is that defendant 1, at the instance of an association called Siddharudaswamy Mandali proceeded to acquire the plaint schedule shops for making them over to that Mandali and that such an acquisition was not for a pub-lie purpose and was not in law permissible either under the Mysore Land Acquisition Act or the Mysore City Municipalities Act. The defendants pleaded that the proposed acquisition was for the purposes of widening the road at the place where the property is situate and also to add land to the property of the Mandali which is said to be a religious and charitable institution, and was registered under the "Religious and Charitable Associations Act". There is no Act of that same and apparently what is meant is the Societies Registration Act 30 of 1904. They also pleaded that the plaintiffs suit was not maintainable and was also barred under S. 6, Land Acquisition Act.

10. It is contended by Mr. B.R. Keshava Iyengar, learned Counsel for the appellants, that the purpose for which the acquisition is proposed is really a "public" purpose, i.e., the widening of the road, and that even if it is found that the other object which is tacked on to that purpose and is mentioned in the notification, i.e., to give some land to the Mandali is not such a purpose, it cannot be said that the combined object is not a public purpose. He represents that the cost of the acquisition or the compensation amount is to be met from out of the funds of the Bangalore City Municipal Council as well as of the Mandali, and that therefore the acquisition is for a public purpose according to the test laid down by S. 6 (2), Mysore Land Acquisition Act. He has relied in this connection on a case reported in - Abdul Rasak v. Abdul Rahim, AIR 1945 Mad 304 (D) where it has been held that it is sufficient compliance with the proviso to S. 6(1) if any part, however small, is paid out of public funds.

11. Mr. S. N. Krishniah, learned counsel for the respondent, has urged that the Mandali, which is called Sri Siddharudhaswami Mutt in the notification for acquisition, Ex. I, is not either a company registered under the Companies Act or a local authority as contemplated in S. 6, Land Acquisition Act; that the Mandali cannot obviously be contributing its funds to the widening of the road and that such a thing is not urged or even pleaded. That the Mandali is therefore contributing its funds for the cost of acquisition only in so far as it concerns it, viz., the addition of some land or additional property to itself. There is considerable force in this contention of Mr. Krishniah and it must be accepted. Exhibit D is an endorsement by the Special Land Acquisition Officer on 2-11-1945 with- reference to an application by the plaintiff protesting against the proposed acquisition of the plaint schedule shops and the plaintiff is thereby informed that that officer had been directed by Government to take immediate action to hand over possession of the said (suit) buildings to the authorities of the Siddharudaswami Mandali and calling upon the plaintiff to deliver up possession of the properties to the Municipal Engineer failing which coercive steps would be taken under S. 47, Land Acquisition Act, before the City Magistrate. It is thus clear that the suit shops were being acquired for the express purpose of making them over to the Mandali who were to meet the cost of its acquisition and that there could be no connection between this object and the widening of the Municipal road for which other properties were being acquired as seen from Ex. 1, the notification, under S. 4, Land Acquisition Act.

12. Mr. Krishniah further urges that a Municipal Council can ask the Government to acquire land only for certain purposes and to fulfil certain objects prescribed by the Mysore City Municipalities Act 7 of 1933 and that the present acquisition does not fulfil those requirements. Under s. 43 of that act it is only when any land "is required for purposes of the Act" the Government may at the request of the Municipal Council proceed to acquire it and on. payment by the Municipal Council of the compensation awarded under the Land Acquisition Act the land vests in the Municipal Council. Under Ss. 58 and 61 of that Act the obligatory and discretionary functions of the Municipal Councils are set out : and it is not even suggested that it is any part of the Municipal Councils functions or duties to take away the land of private individual through acquisition and make it over to a private individual or institution like the Mandali or that it is so empowered; and the acquisition, of the suit property is not being defended on that basis.

13. Mr. Keshava Iyengar, however, contends that the suit as brought by the plaintiff for a declaration against the Municipal Council and the Land Acquisition Officer without making Government a party is not maintainable. He urges that the Land Acquisition Officer is merely an officer of Government who is acting for and on behalf of the Government and is merely carrying out the duties prescribed under the Land Acquisition Act and that in Mysore no such suit could have been brought against the Government in 1946 before the Constitution. These objections have, however, been, considered in two cases of this Court reported in - 22 Mys CCR 277 (C) and - 25 Mys CCR 228 (B). In - 22 Mys CCR 277 (C) the plaintiff sued the Secretary to the Government of Mysore in the General and Revenue Departments and the Deputy Commissioner of Mysore who was the officer authorised to take action under the Mysore Land Acquisition Act, for a declaration that an order of Government authorizing him to take action for the acquisition of certain lands in Mysore under the Land Acquisition Act was contrary to the Act and of no effect and for an injunction restraining the Deputy Commissioner from taking possession of the land. The District Judge dismissed the suit on the ground that it was a suit against the Government and that in Mysore such suits do not lie against the Government. Sir Leslie Miller, C.J. and Paramasiva Iyer, J, held in that case that there was no cause of action against the Secretary to Government as he had merely signed a declaration under S. 6, Land Acquisition Act. He was neither the Government of Mysore nor an officer authorised by that Government to direct the Deputy Commissioner to acquire the land but only the hand by which the authority of Government was transmitted. They further held that the Courts in Mysore have jurisdiction to decide whether an act of the Government which purports to be done under the warrant of an enactment is or is not warranted toy that enactment and if it is not so warranted to make a declaration to that effect in a suit against the officer authorized to give effect to the illegal act and that a public officer who acts illegally cannot protect himself by pleading the authority of Government and the Courts are not powerless to issue an injunction in a proper case to restrain a public officer from committing an illegal act. They, therefore, held that the suit as against the Secretary to Government did not lie and that the suit against defendant 2 did lie. There still remained two questions to be answered : (1) Whether the Courts were entitled to decide that the purpose stated in the notification is not a public purpose within the meaning of the Act ? and (2) If they were so entitled whether the purpose stated in the case before them was a public purpose or not ? They remanded the case to the lower Court for a determination of those questions. After the case went back to the District Judge he declared the notification issued in the case illegal and the subsequent acquisition proceedings null and void. The case again came up before Chandrasekhara Aiyar, Offg. C.J. and Plumer, J. and their decision is reported in - 25 Mys CCR 228 (B). It was urged before them by the Government Advocate that inasmuch as the declaration of the intended acquisition of the land published in the Official Gazette was conclusive evidence that the land was needed for a public purpose, the District Judge was wrong in making a declaration to the contrary. In that case the first Government order sanctioning acquisition of certain lands directed that the cost of acquisition should be charged to the Third Maharajakumaris Estate, and a later one authorised the Comptroller to place certain sum at the disposal of the Deputy Commissioner, the charge being debited to the Third Maharajakumaris Estate as directed in the previous order. Their Lordships held that there was no intention to pay, though it was. arranged to advance the amount of compensation from the public revenue, and that essential prerequisite being absent in that the compensation was not to be paid out of the public revenue, the entire proceedings for acquisition were ab initio null and void. They further held that the direction contained in the proviso to sub-s (1) to S. 6, Land Acquisition Act, was a condition imposed by the Statute which must be complied with in substance and spirit before the Government can become clothed with the power to make a declaration which is the starting point for proceedings under acquisition. They relied for so holding on the following passage in - Rameswar Singh v. Secretary of State, 34 Cal 470 (E) at pp. 480 and 431 : "In order to give validity to the proceedings and finality to the award in which they terminate, the power of acquisition with all statutory limitations and directions for its use must be strictly pursued; every essential prerequisite to the jurisdiction called for by the statute must be strictly complied with. It is an elementary-proposition that statutory provisions in respect of acquisition of lands must be strictly complied with, and the burden of proof of compliance rests upon those who claim statutory powers or base their title upon the exercise of statutory provisions".

14. In - 48 Cal 916 : (AIR 1921 Cal 159) (A) it has been held that though the notification under S. 6, Land Acquisition Act, is conclusive so far as S. 4, Evidence Act, is concerned yet the Court is entitled to enquire into the validity of the steps leading to the recommendation and is competent to enquire into the legality or otherwise of the acts of the Corporation and for whose benefit the land is being acquired. It was also held in that case that the special powers of the Corporation of Calcutta for the purpose of acquiring the land could not be used to enable another body the Calcutta City Improvement Trust, to acquire land through them however estimable the purpose. The power to acquire was limited to cases where the Corporation itself undertook the work. They also observed that it was to be assumed that the Local Government and the land acquisition authorities would stay their hands in view of a decision of the Court and not be parties to what may be held to be an illegal and ultra vires action. This observation was necessitated by an argument which was advanced before the learned Judge as has also been put forward in the case before us, viz., that as the Government was not a party to the suit they may not feel themselves bound by the decision of the Court and give effect to it. Such an objection is also answered by Sir Leslie Miler, C.J. in - 22 Mys CCR 277 (C) in the same way.

15. For the appellants reliance has been placed on some cases which may be examined. In - Shastri Ramchandra v. Ahmedabad Municipality, 24 Bom. 600 (F) the District Municipality purchased through Government a narrow strip of land at the entrance of a private street for the purpose of widening the street in order to facilitate the effective use of fire engines. It was clearly a purpose within the powers of the Municipality and was conducive to the promotion of public health, safety and convenience and it was therefore held that the Civil Court had no jurisdiction to restrain the Municipality from the exercise of such powers. Even in that case Parsons, J. pointed out that the land acquired would not be "thrown into and become a part of" the private road : "It would become vested in the defendant Municipality for being used by them for any purpose sanctioned by the Bombay District Municipal Act."

16. In - Suryanarayana v. Province of Madras, AIR 1945 Mad 394 (FB) CG) it has no doubt been held that S. 6, Land Acquisition Act, is a bar to a Civil Court questioning a declaration by a Provincial Government that a land is required for a public purpose. But it is, however, pointed out in that decision that : "Of course, if the Provincial Government in fraud of its powers directed land to be acquired a suit would no doubt lie; but where there is no charge against the Provincial Government that it has acted in fraud of its powers, its action in directing the acquisition cannot be challenged in a Court of law." In that case it was conceded for the appellant that it could not be said that the Provincial Government had acted "in fraud of its powers". Mr. Keshava Iyengar has laid stress on this observation and urged that it is only if "fraud" is alleged or proved that a suit will lie and that there was no such charge in this case. There seems to be no justification for construing that observation as confining to the class of cases so punishable but only to cases where "fraud" is alleged. The expression "fraud of. its powers" has a wider significance, if the avowed or real object which may or may not be expressed in the notification can be proved to be illegal or ultra vires of the Land Acquisition Act as in - 22 Mys CCR 277 (C) or the City Municipalities Act or other enactment as in - 48 Cal 916 : (AIR 1921 Cal 159) (A) it is obvious that a suit does lie even according to the principle conceded by their Lordships in their observation.

17. In - Municipal Corporation of Bombay v. Ranchordas Vandravandas, AIR 1925 Bom 538 (H) the notification under S. 6, Land Acquisition, Act, stated that the land was required for a public purpose, viz., the building of quarters for Municipal servants of the Bombay City Municipality. It appeared that the Bombay Municipality contemplated designing the ground floor portion as shops to be let on hire. The plaintiffs who were interested in the property proposed to be acquired challenged the purpose of the acquisition on the ground that the bunding of shops for renting them out was not a public purpose. On the facts and circumstances of that case that objection was not upheld, the learned Judges based, their decision on the ground that the contemplated utilization of the ground floor of the premises to be built upon the area in suit as shops was not sufficient to invalidate the whole scheme. There could be no doubt that as held in that case the building of quarters for Municipal servants was a measure likely to promote public convenience and could properly have been undertaken by the Municipal Council. This is permitted also under the Mysore City Municipalities Act, S. 61(2)(e). That was the real and only purpose of the acquisition and was within the discretion of the Municipal Council. A Court of law could not be asked to interfere with the exercise of that discretion. That case has no bearing on the present case. The grant of grounds or shops to the Mandali is certainly not one of the duties and obligations imposed on the Council by the City Municipalities Act. The proposed acquisition of the plaint schedule shops is therefore clearly not warranted by the Mysore City Municipalities Act and by S. 6, Land Acquisition Act.

18. In the result the judgment and decree of the learned Subordinate judge are affirmed and this appeal is dismissed with costs. Appeal dismissed. AIR 1954 MYSORE 175 (Vol. 41, C.N. 73) "Venkatacharya v. Mysore Sugar Co." MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHHAIYA, JJ. ( Division Bench ) B.V. Venkatacharya, Appellant v. The Mysore Sugar Co., Ltd., Respondent. Regular Appeal No. 159 of 1949-50, D/- 30 -3 -1953, against decree of Addl. Sub. J., Bangalore in O. S. No. 131 of 1946-47. SERVICE MATTERS - CONTRACT - Master and Servant - Person appointed on probation. Contract Act (9 of 1872), S.73. Person appointed on probation for one year - Persons services can be terminated before expiry of period of one year - No damages can be claimed. (Paras 4, 5) Anno : Contract Act, S. 73 N. 13. A. R. Somanatha Iyer and S. Suryanarayana Rao, for Appellant; Gutur Sreenivasa Rao, for Respondent. Judgement VENKATA RAMAIYA, J. :- This is a plaintiffs appeal against the dismissal of a suit for damages claimed on the ground of wrongful termination of service. The plaintiff who is a graduate in Agriculture was appointed Farm Superintendent on a salary of Rs. 300/- in the grade Rs. 300-25-500 on prohibition for 1 year, entered on his duties as such on 10-8-1946" and was served on 23-11-1946 with a notice intimating termination of his employment from 9-12-1946. He issued a notice on 23-1-1947 alleging that the termination of service was wrongful but the defendant in its reply of 21-2-1947 maintained that it, was justified. Thereupon the suit was filed on 5-4-1947 seeking payment of Rs. 2487-1-6 as salary for unexpired period of appointment, Rs. 331-10-0 high. price allowance, compensation of 1000-0-0 for mental worry, of 2000-0-0 for loss of reputation, of 500-0-0 for loss due to dislocation of affairs and 25-5-6 as notices charges, in all Rs. 6344-1-0. Defendant denied. liability to pay any amount and contended that the appointment of the plaintiff was not regular, that even otherwise its termination could not be questioned. The learned Subordinate Judge on a consideration of the evidence adduced in the case held that the appointment of the plaintiff was quite valid and legal, that there was no good reason for the termination of the service but it afforded no cause of action for the suit as the employment was at the will of the defendant. He therefore dismissed the suit with costs.

2. In this appeal the claim is limited to the salary and allowance besides a sum of Hs. 500/-as damages for wrongful dismissal, the other amounts being given up. The arguments on either side were confined to the nature and extent of the rights which an employee has when he is appointed en probation. No case in which the question was raised or decided has been brought to our notice. The term probation is not defined or explained anywhere by the defendant in the rules governing appointments. The plaintiff did not ascertain the exact implication of the words "on probation for one year" when he entered service. It is possible that the plaintiff had the impression that he would not be disturbed at all. Likewise it is improbable that defendant would have sent away plaintiff if the former incumbent for the post was not restored. At the time the plaintiff was appointed the previous Superintendent was reverted to the post of Chemist. The reversion was subsequently held to be unjust or unnecessary and as such recalled so that plaintiff had to vacate the office in his favour. Both parties rely on the terms of the order of appointment to justify the stand of each and the question is as to which of these is to be upheld.

3. In Exhibit E which is a publication in the Hindu inviting applications for the post it is stated that "candidates selected will be on probation for one year and salary will be according to qualifications". There is no mention of the possibility of the candidate being confirmed at the end of one year. Exhibit J dated 8-8-1946 addressed to the plaintiff states "....it has been decided to appoint you to the post on probation for one year on a salary of Rs. 300/- in the grade.... plus ......and to request you to report yourself for duty as early as possible" The plaintiff applied for the post in response to Exhibit E and accepted the offer made in Exhibit J. Emphasis is laid on the period of one year on behalf of plaintiff and on the word "probation" for the defendant, the argument on one side being that the period being fixed cannot be cut short by exercise of the defendants option to terminate the service before the expiration of the period while tae contention of the other party is that the option may be exercised at any time. If as urged for the plaintiff the expression "on probation for one year", entitles him to be employed for one year, irrespective of the wishes of defendant, the words "on probation" will be superfluous and meaningless. Such a construction will perhaps place him even in a better position than a person appointed without that condition though ordinarily the absence of the condition implies that the appointment is permanent in the sense of not being liable to be brought to an end by the will of the employer. "Probation" according to Law Lexicon of Ramanath Iyer means "testing of a persons capacity, conduct or character especially before he is admitted to regular employment". In Websters Dictionary "Probation" is said to have been derived from the Latin word Probatio and French "Frobare" meaning to try, examine, prove and is itself defined as any proceeding designed to ascertain truth to determine character, qualification, etc.; examination; trial or a period of trial; as, to engage a person on probation.

4. Obviously a probationer is not in the same position as others in service. His is a state of suspense attended with the uncertainty of an inchoate arrangement. Prima facie his rights and claims against the employer are less than those; of others. "Probation" cannot be taken to bind the parties to be employer and employee till it is over and confer on the employee rights not available to others. That would be contrary to the accepted notions of service as "probation" is understood to be a stage preparatory and prior to confirmation. It is not disputed that the services of a person on probation can be dispensed with on grounds on which a person appointed without it can be dismissed. While the two to that extent are on a par, it is more reasonable to imply a disability or disadvantage for a "probationer" than a privilege as against one who is not on probation. The period denotes the time up to which he will be on trial and not an assured duration of service. The plaintiff, it is conceded, could not have complained against the termination of service at the end of one year.

5. No objection can possibly be raised to a person on probation for any given time being confirmed even before the lapse of the said period. The employee will welcome it. Another way of examining the position is to see whether plaintiff himself could not have left the service before the completion of one year and whether by virtue of his being on probation for one year he was subject to the obligation to work so long under the defendant. If so, probation is not different from contract. The words have to be taken to convey the meaning ordinarily attaching to them. So read, the plaintiff having accepted the terms proposed cannot insist on being kept in service for a full year and make the termination of the service earlier the basis of an action for damages. It was open to the plaintiff to seek modification of the terms proposed as he deemed fit but having agreed without demur to serve "on probation" for whatever period it be cannot now be aggrieved, the option vested in the defendant to terminate the plaintiffs service being exercised, on the ground that it was done sooner than was expected. The defendant having the option to terminate the service must be deemed to have the option to fix the time at which the service is terminated. The plaintiff by submitting himself to work on trial for one year must be considered to have agreed to the contigency of being sent away and put himself in the hands of the defendant.

6. The claim in my opinion was rightly disallowed by the lower Court. The appeal is dismissed without costs. Appeal dismissed. AIR 1954 MYSORE 177 (Vol. 41, C.N. 74) "Hutchappa v. Mallappa" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA AND BALAKRISHNAYYA, JJ. ( Division Bench ) Hutchappa, Plaintiff-Appellant v. Mallappa and others, Defendants-Respondents. Second Appeal No. 405 of 1950-51, D/- 29 -1 -1954, against decree of Addl. Sub-J., Mysore, in Regular Appeal No. 10 of 1950-51. Transfer of Property Act (4 of 1882), S.58, S.67, S.68 - MORTGAGE - SALE - Simple mortgage usufructuary - Right to sue for sale. Where a mortgage deed after reciting that a sum of Rs. 650/- was received from the mortgagee and that the properties were left in his possession for a period of two years, stated that immediately after the expiration of the said period the mortgagor would pay the amount to the mortgagee and in case of default the mortgagee may continue to be in possession of the properties : Held, that the mortgage contained a personal covenant to pay and therefore it could not be regarded a purely usufructuary mortgage but may be called a simple usufructuary mortgage. The mortgagee under such a mortgage had a right to sue for realisation of the mortgage debt by sale of the mortgaged property. The subsequent clause for continuance of enjoyment in case of default in payment was not to nullify the previous covenant to pay on expiry of the period. Case law ref. (Para 5) Anno : T. P. Act, S. 58 N. 41; S. 67 N. 15; S. 68 N. 17. Cases Referred : Courtwise Chronological Paras (A) (08) 13 Mys CCR 145 5 (B) (V 40) AIR 1953 Mys 1 : ILR (1952) Mys 286 5 (C) (91) 14 Mad 232 5 (D) (04) 27 Mad 526 : 14 Mad LJ 61 (FB) 5 (E) (V 20) AIR 1933 Mad 613 : 56 Mad 892 5 (F) (96) 19 Mad 411 : 6 Mad LJ 210 5 (O) (V 20) AIR 1933 Lah 151 : 141 Ind Cas 377 5 (H) (V 34) AIR 1947 Lah 40 : ILR (1946) Lah 805 (FB) 5

(I) (10) 6 Ind Cas 153 (Cal) 5

V. Krishnamurthy, for Appellant; N.A. Gopalaswamy Iyengar, for Respondents. Judgement VENKATARAMAIYA, J. :- The main question for determination in this appeal is whether the plaintiff is entitled to seek recovery of the amount advanced by him on the mortgage of two items of property described in the plaint schedule, by means of sale thereof through Court. Exhibit A dated 20-4-1946, on the terms of which the decision depends is styled as a document of mortgage with possession. After reciting that a sum of Rs. 650/- is received from the mortgagee and the properties are left in his possession for a period of two years, it states that immediately after the expiration of the said period the mortgagor will pay the amount to the mortgagee and in case of default the mortgagee may continue to be in possession of the properties. Defendant I and his wife defendant 2 have executed the document stating that they have signed it also as guardians of their three minor sons defendants 3, 4 and 5. Defendant 5 died during the pendency of the suit.

2. The suit from which this appeal arises was filed after the lapse of two years from the date of the mortgage for realisation of the principal sum with interest by sale of the properties alleging that possession of the properties was not delivered to the plaintiff and that the mortgage was effected for purposes binding on the family of defendants. Denying these allegations defendants pleaded that plaintiff is not entitled to the relief asked for and has only the right to be in possession of the properties.

3. Both Courts have held that plaintiff obtained and is in possession of the mortgaged properties and the finding has to be taken as correct. On the question of legal necessity needlessly raised with regard to one item of property and about the right of plaintiff to claim payment of money there are divergent findings, the trial Courts view being in favour of plaintiff and that of the appellate Court against him. Consequent on this the decree passed by the learned Munsif for payment of the amount has been reversed and the suit dismissed. Plaintiff has appealed.

4. Item I which is a land belongs to defendant 2 according to the sale deed in her favour and so the mortgage with respect to this cannot be questioned by the other defendants. The mere fact of others having joined her in executing the deed cannot imply that they have interests in the property subject to the mortgage. Consideration of legal necessity can arise in regard to only the other item which is a house as it is admittedly ancestral or joint family property. The inclusion of this in the mortgage cannot be said to have been imprudent or improper as part of the consideration for Exhibit A is shown to have been utilised for discharge of a prior mortgage debt and the deed mentions that the balance was required for expenses of the marriage of the daughter of defendants 1 and 2. Neither of these defendants has stepped into the witness-box to deny this. The evidence and probabilities support the version of plaintiff and the mortgage of both items of property must be held valid.

5. The learned Sub Judge has stated that the mortgage is purely usufructuary, there is no covenant express or implied for payment of the amount and therefore a decree for sale cannot be granted. Sri Krishnamurthy learned counsel for the appellant contends that this is not correct and not warranted by the provisions of law applicable to the case or fair construction of Exhibit A. The mortgage is not one in which the entire debt is to be discharged by the creditor appropriating the income of the properties during a certain or any period. The income is meant to be a substitute for interest and the debtor is free from obligation to pay interest as the mortgagee is given a right to enjoy the usufruct of the properties. There is no provision for the income being applied to any extent towards the principal amount and irrespective of the quantum of the income or the period during which it is received by the mortgagee, the principal sum has to be repaid to the mortgagee for possession of the properties being restored to the mortgagors. In addition there is a specific undertaking in the deed for payment of the amount at the end of two years. The mortgage has thus the characteristics of what is termed usufructuary and what IB called simple. It cannot be regarded a purely usufructuary mortgage as stated by the learned Sub Judge but may be called a simple usufructuary mortgage. A mortgagee under such a mortgage was in - 13 Mys. CCR 145 (A) considered to have a right to sue for realisation of the mortgage debt by sale of the mortgaged property. This case has been followed and similar relief granted in - S.N. Rajan v. Govindaraj Mudaliar, AIR 1953 Mys 1 (E). The case in - 13 Mys CCR 145 (A) was decided before the Transfer of Property Act came into force in Mysore but is based upon the principles and reasoning adopted by other courts in applying the provisions of the Transfer of Property Act. - Ramayya v. Guruva, 14 Mad 232 (C) and - Kangaya Gurukal v. Kalimuthu Annasei, 27 Mad 526 (PB) (D) are preferred to support the appellants claim. Sri Gopalswamy Iyengar learned counsel for respondents argued that the covenant for repayment is qualified by the succeeding condition that the mortgagee is to continue in possession of the properties if the amount is not paid and read as a whole the document does not confer a right on the mortgagee to sue for payment of the mortgage debt. Damodara Shanbhogue v. Chandapur Pujary, AIR 1933 Mad 613 (E) cited for this position is distinguishable as the terms of the document on the consideration of which the right of sale was held to be not available to the mortgagee In that case are different from those in the present case. It is however stated that - 14 Mad 232 (C) which has been relied upon in - 13 Mys CCR 145 (A) lays down the correct rule and that the words "on the expiry of the terms I shall pay the said sum and redeem the lands" in - Udayana Pillai v. Senthivelu Pillai, 19 Mad 411 (F) were rightly held to constitute a personal covenant to pay. It is also observed that "In those deeds there was a further clause that in default of such payment the mortgagee should continue to enjoy the property in the aforesaid manner till redemption. In view of the fact that there was a clear and unequivocal personal covenant to pay the money as an independent provision the learned Judges held that the subsequent clause for continuance of enjoyment in case of default in such payment was not to nullify the previous covenant to pay on a certain day". A clause of that kind is as stated in - 14 Mad 232 (C) at p. 234 "one in favour of the mortgagee extending his security beyond the prescribed period and does not take away the right arising out of the covenant to pay, to sue for sale of the mortgaged property". Mahomed Abdullah v. Mahomed Yasin, AIR 1933 Lah 151 (G) cited for respondents is to some extent against the plaintiffs claim but this is dissented from in - Mohd. Saeed v. Abdul Alim, AIR 1947 Lah 40 (FB) (H) where a Full Beach answered the question "When a mortgage with possession contains a personal covenant to pay the principal by a certain date .. .. .. .. .. .. does it cease to be a purely usufructuary mortgage or does it become at the same time a simple mortgage on which the mortgagee can bring the mortgaged property to sale" ? in the affirmative, Mahajan, J., as he then was, while delivering the opinion expressed : "To my mind it is a settled proposition of law that if a deed of mortgage contains a personal covenant to pay the principal mortgage debt or interest by the mortgagor such a covenant implies the right of sale unless there is some specific term to the contrary". Since there are no such words in Exhibit A the plaintiff must be held to be entitled to a decree for sale according to the above decisions. The decision of the Calcutta High Court in - Pitambar Purkait v. Madhu Sudan Mandal, 6 Ind Cas 153 (I) is also to the same effect. The mortgagor in that case took a loan and executed a mortgage deed agreeing to repay the money on a certain day. The instrument provided that the mortgagee would be placed in possession and during the period of such possession the profits would be set off against the interest due on the sum advanced. The judgment states "It is well settled that when an instrument of mortgage gives a right to possession and also contains a covenant to pay thus presenting a combination of a usufructuary and simple mortgage the two rights are independent and the mortgagee may sue for sale though he may have given up possession."

6. The learned Munsiff while upholding the plaintiffs claim granted a decree for payment of the amount by the defendants personally. This is not what the plaintiff sought in the plaint and he was therefore justified in filing cross-objections to the decree under appeal before the sub-Judge. The dismissal of the suit by the appellate Court is based on an erroneous view of law and wrong interpretation of Exhibit A. The appeal has to be consequently allowed and a decree for realisation of the principal sum of Rs. 650/- by Bale of the plaint schedule properties has to be passed. On the ground of defendants being held to be agriculturists, learned counsel for respondents pressed for an account of the income of the properties from the date of the mortgage being taken and for the amount due to plaintiff being reduced by fixing a reasonable rate of interest for the debt and adjusting the residue of the income towards principal after appropriation for interest. Apart from the permissibility of this course being doubtful when the understanding between the parties is reduced to writing and it is not shown to be vitiated by defects invalidating it, the contention implies that the income was more than what may be deemed to be a fair return for the loan. The materials placed before the court for fixing these are very meagre. Defendants 1 and 2, as already stated, have not given evidence in the case and there is only a suggestion that plaintiff attempted to lease the land for more than Rs. 300/- and possibility of two or more mulberry crops per year being raised in the land. There is absolutely no proof of the plaintiff having realised any amount or the mulberry crop being raised at any time. In these circumstances, there is no justification for the principal sum mentioned as payable in the deed being reduced and the income whatever it is, must be taken to represent the interest for the debt.

7. The decrees of the Courts below are set aside and in lieu thereof there will be a decree in plaintiffs favour for Rs. 650/-, the amount being payable in two annual instalments from this date and on default of such payment the plaint schedule properties will be sold and proceeds of such sale appropriated towards the said amount. Plaintiff will have his costs throughout. Order accordingly. AIR 1954 MYSORE 179 (Vol. 41, C.N. 75) "Ningamma v. Linge Gowda" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Ningamma and another, Plaintiffs-Appellants v. Patel Linge Gowda and others, Defendants-Respondents. Second Appeal No. 329 of 1952-53, D/- 25 -3 -1954, against decree of Sub-J. Mandya, in Regular Appeal No. 30 of 1950-51. (A) Mysore Hindu Law Womens Rights Act (10 of 1933), S.4, S.21 - HINDU LAW - APPLICABILITY OF AN ACT - Applicability. K, a Hindu, died issueless before the introduction of Mysore act 10 of 1933. Ks nearer heirs according to Mitakshara law succeeded to his properties as absolute owners. By a deed of settlement dated 6-1-1919 these heirs gave some of these properties to Ks brothers widow for her enjoyment during her lifetime. She was constituted by that arrangement not the holder of a limited estate under Hindu law but a person entitled to enjoy a life interest according to the terms of the release deed, the express terms of the release deed being that the properties should, after her death, revert back to the owners. The widow died after the Act came into force and the question was whether the widows heirs would succeed to the properties given to her after her death under the provisions of the Act. Held that the provisions of the Act were not applicable to such a case. To hold otherwise would mean that act 10 of 1933 can affect conveyances and transfers which had been effected by persons, who were absolute owners before that Act came into force, and that could never be possible or permissible. 48 Mys HCR 29, Distinguished. (Para 2) (B) Mysore Hindu Law Womens Rights Act (10 of 1933), S.3(h), S.16, S.17, S.18, S.19, S.20, S.21 - HINDU LAW - WORDS AND PHRASES - Limited estate, meaning of. Words and phrases. The expression "limited estate" defined in S. 3(h) has been used in various places in the Act, e.g. in Ss. 16, 17, 18, 19, 20 and 21. In all those places and by necessary implication it can only mean the limited estate of a woman according to the Hindu Mitakshara Law. (Para 3) Case Referred : Courtwise Chronological Para (A) (43) 48 Mys HCR 29 2 M. Sadanandaswamy, for Appellants; Ramamurthy, for Respondents 2 to 9. Judgement The plaintiffs 1 and 2 are a daughter and daughters son respectively of one Linge Gowda by his widow Chikkamma. Both Linge Gowda and Chikkamma are dead. Linge Gowda had another brother Kempe Gowda, who died after him without issue long before the introduction of Act 10 of 1933, the Hindu Law Womens Rights Act. The heirs to his properties then were according to Mitakshara Law P. Linge Gowda and Nanjegowda, fathers of defendants 1 and 2, and defendant 3 respectively, as also the father of defendant 4. It appears that P. Lingegowda, Nanje Gowda, Boregowda, father of defendant 4 and one Lingegowda, uncle of defendant 4, entered into a settlement with Chikkamma. By that settlement which is evidenced by a document dated 6-1-1919 some of the properties which had been owned by Kempe Gowda were left in the possession of Chikkamma to be enjoyed by her during her lifetime and the other properties of Kempegowda were taken over by Linge Gowda and others. The plaintiffs brought a suit in the Court of the Munsiff, Mandya, for recovery of possession of the plaint schedule properties which belonged to Kempegowda on the ground that they were the nearer heirs of Kempegowda than the defendants and could claim them after Chikkammas death in 1948 or thereabouts. Their suit was dismissed, it being held that act 10 of 1933 could not apply to the case as Kempegowda had died before the coming into force of that Act. That decision was confirmed by the learned Subordinate Judge of Mandya on appeal.

2. For the plaintiffs Mr. Sadandaswamy, their learned Counsel, has urged that as the settlement deed of 6-1-1919 created "a life estate" in favour of Chikkamma, the succession to the items of properties covered by the release deed at least should be given effect to in accordance with S. 4 of Act 10 of 1933 which had come into force by the time she died and that according to s. 21 of that act the nearest heirs to Kempegowda in 1948 were the plaintiffs. For this position he has relied on a case reported in - 48 Mys HCR 29 (A). In that case it was observed that Ss. 4 and 25 of the Act provide that even when the last male owner died before the Act came into force, if a limited estate of a woman followed and terminated after the Act came into force, succession to the last male owner is to be regulated by the provisions of the Act. But that was a case where the limited estate of the woman was one created or falling under Hindu Law. It was not a life interest created inter partes by any document as in the present case. The present is a case where P. Lingegowda, Nanjegowda, Boregowda and Ningegowda who were at the concerned time absolute owners of Kempegowdas properties, having succeeded to them as nearer heirs, chose to give some items to Chikkamma for her enjoyment during her lifetime. She was constituted by that arrangement not the holder of a limited estate under Hindu Law but a person entitled to enjoy a life interest according to the terms of the release deed, the express terms of the release deed being that the properties should, after the death of Chikkamma, revert back to the owners Lingegowda and others. The case in - 48 Mys HCR 29 (A) has therefore no application to the present case. To hold otherwise would mean that act 10 of 1933 can affect conveyances and transfers which had been effected by persons who were absolute owners before that Act came into force, and that could never be possible, or permissible.

3. Mr. Sadandaswamy has referred to the definition of "limited estate" in S. 3, Cl. (h) of Act 10 of 1933, as meaning "any estate other than a full estate". The expression "limited estate", has been used in various places in the Act : e.g. in Ss. 16, 17, 18, 19, 20 and 21. In all those places and by necessary implication it can only mean the limited estate of a woman according to the Hindu Mitakshara Law.

4. There are therefore no grounds to interfere with the judgments and decrees of the Courts below. This appeal fails and is dismissed. The parties will bear their own costs of this appeal. Appeal dismissed. AIR 1954 MYSORE 180 (Vol. 41, C.N. 76) "Union of India v. M. Hanuman Das" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) Union of India and another, Appellants v. M. Hanuman Das, Respondent. Regular Appeal No. 193 of 1950, D/- 5 -3 -1953, against decree of Principal Sub. J., Bangalore, in S. No. 208 of 1948-49. Railways Act (9 of 1890), S.75 - RAILWAY - Loss - Proof. It must be decided upon the facts of each case whether loss has occurred within the meaning of S. 75. Mere proof of non-delivery is by no means conclusive evidence as to whether or not the loss has occurred. Para 4) Where it was proved that the consignment had reached a midway station but it was not put into the train again to be despatched to the station of destination. Held that it was not a case of a loss in. transit within the meaning of S. 75(1) and the consignor was not deprived of his right to claim compensation for non-delivery. 30 Mys CCR 153; AIR 1934 Cal 783; AIR 1926 All 299, Dist. and explained; AIR 1946 All 198 and AIR 1949 All 223, Foll. Para 6) Anno : Railways Act, S. 75 N. 7. Cases Referred : Courtwise Chronological Paras (A) (25) 30 Mys CCR 153 3 (B) (V 21) AIR 1934 Cal 783 : 61 Cal 599 4 (C) (V 11) AIR 1924 Cal 725 : 51 Cal 615 4 (D) (V 13) AIR 1926 All 299 : 92 Ind as 622 5 (E) (V 33) AIR 1946 All 198 : ILR (1946) All 250 6 (F) (V 36) AIR 1949 All 223 : 1949 All LJ 166 6 A.R. Somanatha Iyer, the Advocate General, for Appellants; V. Krishnamurthy, for Respondent. Judgement VASUDEVAMURTHY, J. :- This is an appeal by the Union of India and the Agent and General Manager of M. and S. M. Railway, Madras, against the judgment and decree of the Subordinate Judge, Bangalore, granting a decree against them in respect of two bundles of goods which had been entrusted to the railway authorities at Bombay (Victoria Terminus) for transport by rail to Yeshwanthpur near Bangalore City in May 1948.

2. The main and practically the only defence of the defendant-railway was that the plaintiff had failed to make a declaration as regards the contents of the two bundles in, dispute as required by S. 75, Indian Railways Act, 1890 (which corresponds to S. 59, Mysore Railways Act) and that as those bundles contained goods worth more than Rs. 300/-, the plaintiff could not recover their value. That defence has been rejected by the Subordinate Judge.

3. Section 75 of the Indian Railways Act provides that - ".... the railway administration shall not be responsible for the loss, destruction or deterioration of the parcel or package unless the person sending or delivering the parcel or package to the administration caused its value and contents to be declared or declared them at the time of the delivery of the parcel or package for carriage by railway, and, if so required by the administration, paid or engaged to pay a percentage on the value so declared by way of compensation for increased risk." In this Court the learned Advocate-General who appears for the appellants strongly relied on a case reported in - 30 Mys CCR 153 (A). In that case a bale of silk exceeding Rs. 100/- in value was consigned from Maddur to a firm of silk merchants trading in Bangalore City, on a "risk note" form without declaring its value to the railway administration; and it was found, as a question of fact, that the parcel was lost during its carriage by the railway companys agents by road from the railway station to the address of toe consignee. The decision in that case turned mainly on the terms of the risk note, form Y, which was exhibited in the case, and the question whether or not the goods had been "lost" within the meaning of S. 75 did not arise for consideration, it being accepted or found that they were lost.

4. It is urged by the learned Advocate General that the goods in the present case have been lost because they are not forthcoming for delivery and in support of his contention he has relied on a case reported in - Secretary of State v. Surjyamall Haribaksh, AIR 1934 Cal 783 (B). The head-note in that case appears rather misleading. What their Lordships have really said in that case is that it must be decided upon the facts of each case whether loss has occurred within the meaning of S. 75. In that case the goods had been mis-delivered on the basis of a forged telegram purporting to be from the plaintiff as also a forged letter written on me plaintiffs printed note-paper addressed to the Station Master at the station from which delivery had to be made. Loss by theft or by means of fraud was, in their Lordships opinion, clearly a loss within the meaning of S. 75, and it was not necessary that the goods should have been lost only through, inadvertence or involuntarily to enable the railway to claim the benefit of S. 75. In support of their view they referred with approval to a decision reported in - East Indian Rly. Co. v. Jogpat Singh, AIR 1924 Cal 725 (C). They further held that mere proof of non-delivery was by no means conclusive evidence as to whether or not the loss has occurred.

5. For the appellants reliance was also placed on a case reported in - Chandrabhan v. E. I. Rly. Co., AIR 1926 All 299 (D). That case was decided by a single Judge who said that it was only when the articles had been lost by the company that it could claim protection under S. 75. He also observed that "when a certain article delivered to the railway company is not forthcoming for delivery at the destination and its whereabouts are not known, the article is lost within S. 75." Obviously that decision cannot support the rather large claim that is being made in the present case by the railway administration, viz., that merely because the articles are not forthcoming for delivery they must be presumed to have been lost.

6. The learned counsel for the respondent relied on two cases reported in - Governor-General in Council v. Debi Sahai, AIR 1946 All 198 (E) and - Governor-General in Council v. Mohd. Badr-i-alam, AIR 1949 All 223 (F) respectively. In the former case it has been held that in a suit to recover damages for non-delivery of a parcel consigned to a railway if the defendant claimed protection under the provisions of S. 75 of the Railways Act, and the plaintiff proved non-delivery, it was incumbent upon the defendant to show that the parcel had been lost or destroyed; the defendant must show that everything possible had been done to trace the missing article, that the whereabouts of the article were not known or must adduce some other evidence from which it can be inferred that the parcel had been lost before the Court can hold in its favour that the parcel had been lost. In the latter case it has been held that : "Such a meaning should be put on the word "loss in S. 75 as would be ejusdem generis in its effect with the implication of the words "destruction or deterioration" which follows." ** ** ** And that "where it was proved that the consignment had reached a midway station but it was not put into the train again to be despatched to the station of destination, it is not a case of a loss in transit within the meaning of S. 75(1) and the consignor is not deprived of his right to claim compensation for non-delivery". We are therefore to see whether in the present case the railway company has proved that the goods have been lost. The plaintiff has examined himself and one witness and has sworn that in spite of repeated demands, the railway company did not deliver the bundles in question. For the railway only one Witness has been examined. He was at the time an Assistant Parcel Clerk at Gadag Station and was on night duty. He has deposed that he unloaded at Gadag, goods booked from Bombay V. T. to Yesavanthanagar near Hospet; that two bundles were unloaded along with nine other packets on that date at Gadag; that there was no record to show that the two bundles were again reloaded on the forwarding railway and that he could not say whether those two bundles were reloaded at all. The railway company has not examined any other witness nor has it produced any registers or documents to show what happened subsequently to these bundles. The company has also failed to show that these bundles were again reloaded into the train going to Yeshwanthpur which place is of course different from Yesavanthanagar referred to by D. W. 1. Exhibit II is a report said to have been made by the Chief Commercial Manager of M. and S. M. Railway to the Traffic Manager, Mysore Railway. The Officer who is referred to in para. 3 of that report and who conducted the investigation has not been examined. The railway company has not taken the trouble to place before the Court sufficient material to show that the bundles were actually lost. From the evidence of D. W. 1 it is quite possible to assume that the goods are still in Gadag. In this unsatisfactory state of evidence we think the lower Court was fully justified in holding that the railway company had not established the loss which alone would entitle the company to the benefit of S. 75, Railways Act.

7. In the result, this appeal fails and is accordingly dismissed with costs. Appeal dismissed. AIR 1954 MYSORE 181 (Vol. 41, C.N. 77) "Kursedji v. State of Mysore" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) Kursedji Wookerji Bananji, Petitioner v. State of Mysore, Opposite Party. Criminal Revn. Petn. Nos. 106 and 107 of 1954, D/- 13 -8 -1954, against order of City Magistrate, Mysore, D/- 23 -3 -1954. Criminal P.C. (5 of 1898), S.205, S.353 - EVIDENCE - APPEARANCE - WARRANT - Exemption from appearance - Issue of warrant.

3 My LH 66 (Notes); 7 My LJ 429, 38 My HCR 92, Dissented from. Section 205 is not exhaustive of the conditions under which exemption can be granted to an accused from appearance in court and absence of summons in the first instance is not an impediment to exemption being allowed. The issue of summons or warrant to the accused in the first instance is not the criterion. Apart from S. 205, the court has an implied power to exempt an accused from being present under S. 353. There may be cases in which the accused voluntarily appears without either a summons or a warrant and apply for exemption. It would be unreasonable to reject such applications only because the summons was not issued to the accused. Case law discussed. (Paras 2, 3) Anno : Cr. P.C., S. 205 N. 2. Cases Referred : Courtwise Chronological Paras (A) (25) 3 Mys LJ 66 (N) 1, 3 (B) (V 11) AIR 1924 Pat 46 : 24 Cri LJ 872 1 (C) (12) 14 Bom LR 236 : 13 Cri LJ 464 2 (D) (13) 17 Cal WN 1248 : 15 Cri LJ 281 2 (E) (V 34) AIR 1947 Mad 433 : 48 Cri LJ 874 2 (F) (V 35) AIR 1948 All 393 : 49 Cri LJ 573 2 (G) (V 36) AIR 1949 Ngp 334 : 50 Cri LJ 932 2 (H) (V 37) AIR 1940 All 178 : 41 Cri LJ 500 3

(I) (29) 7 Mys LJ 429 3 (J) (33) 38 Mys HCR 92 3

V.K. Govindarajulu, for Petitioner; Advocate-General, for Opposite Party. Judgement VENKATARAMAIYA, J. :- The petitioner in these two cases is an accused in two cases on the file of the Court of the City Magistrate, Mysore, which arose from police charge sheets alleging commission of offence of cheating. The petitioner who is said to be a resident in Bombay applied for exemption from appearance in Court at the hearing but permission was refused on the ground that warrant and not summons was issued to him for his appearance. A decision of this Court in 3 Mys LJ 66 (N) (A) is referred to in support of the refusal. In that case summons was issued at first to the accused and later on a warrant. But before the warrant was executed the accused applied for and obtained exemption. This was considered by Doraswamy Iyer, J. to have the effect of the cancellations of the warrant and not as such to offend the provisions of S. 205, Criminal P.C. which states : "Whenever a magistrate issues a summons he may, if he sees reason to do so, dispense with the personal attendance of the accused and permit him to appear by his pleader." The learned Judge seems to have taken the view that if summons is not issued to the accused for his appearance he cannot seek exemption and for this - Abdul Hamid v. Emperor, AIR 1924 Pat 46 (B) is cited. That was a case in which warrant was issued to accused in the first instance and the question was not that of granting exemption but of the effect of recording evidence in the absence of an accused due to his exemption. Both cases deal with the provisions of only S. 205 and not any other.

2. There are several reasons to hold that S. 205 is not exhaustive of the conditions under which exemption can be granted to an accused from appearance in court and also to consider that absence of summons in the first instance is not impediment to exemption being allowed.- The section is found in Chapter XVII the heading of which is of the commencement of proceedings before Magistrates". Section 204 relates to the issue of process to secure the presence of the accused and the form of the summons as given in Schedule V enables the accused to appear either in person or by pleader before the Magistrate. This would suggest that what is provided for in S. 205 is exemption at the initial stage of the proceedings as the heading to the chapter denotes and not exemption at later stages of the case. Power is given to a Magistrate under the section and not to any Judge to allow an accused to be absent. It looks anomalous if Sessions Judges cannot exercise powers similar to those of magistrates in regard to accused tried by them. There is ample authority to show that apart from S. 205 the Court has an implied power to exempt an accused from being present under S. 353, which is as follows : "Except as otherwise expressly provided all evidence taken under Chapters ...... shall be taken in the presence of the accused or when his personal attendance is dispensed with in presence of his pleader." Emperor v. King, 14 Bom LR 236 (C); - Raj Rajeshwari Debi v. Emperor, 17 Cal WN 1248 (D) and - In re, Ummal Hasanath, AIR 1947 Mad 433 (E) are cases in which it is held that existence of power is implied under the section in courts presided by Magistrates or others; and to the same effect is the decision in - Aditya T.D. Bagchi v. Jogendra Nath, AIR 1948 All 393 (F), The Nagpur High Court has not accepted this construction but relied on S. 561A to grant exemption in - Madhao Rao v. Ishwardas Sheoratan, AIR 1949 Nag 334 (G). Section 561A can be availed of by the High Court and not by other Courts. Section 540A too limits the exercise of discretion to cases in which the accused are more than one, and the accused is or are being incapable of remaining in Court.

3. There may be cases in which the accused voluntarily appears without either a summons or a warrant and applies for exemption. It would be unreasonable to reject such applications only because the summons was not issued to the accused, and in - Jagdish Narain v. Emperor, AIR 1940 All 178 (H). it was held that such an application is entitled to consideration. These aspects of the matter have not been noticed and discussed in 3 Mys LJ 66 (N) (A) or in the two later cases in 7 Mys LJ 429 (I) and 38 Mys HCR 92 (J). In the latter case warrant was served on the accused and yet exemption was granted. The reason given in the other case for making a similar order is that the accused is a practising advocate. In all the cases S. 205 is construed liberally, so as to indicate that the court has a larger latitude than what is expressed in the section to grant exemption. Without attempting to enlarge the scope of the section or the extent of its application, it is possible to rely on S. 353 and exercise the power implied by it to dispense with the attendance of an accused in the light of the large volume of authority in support of the existence of such a power. The orders of the lower Court are set aside. The lower Court will pass appropriate orders afresh on a consideration of the grounds on which exemption is sought, bearing in mind that the issue of summons or warrant to the accused in the first instance is not the criterion for disposal of the applications. Revision allowed. AIR 1954 MYSORE 183 (Vol. 41, C.N. 78) "State of Mysore v. A.C. Hanumanthappa" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) State of Mysore v. A.C. Hanumanthappa, Respondent. Civil Petn. No. 142 of 1953, D/- 28 -8 -1954. (A) Mysore Sales Tax Act (46 of 1948), S.2(d) - SALES TAX - Sales Tax - Dealer. A person whether he himself sells direct or through an employee or through a commission agent or through other means comes under the definition of a dealer irrespective of the nature of the machinery he employs to sell the goods. AIR 1954 Mad 96, Relied on. (Para 4) (B) Mysore Sales Tax Act (46 of 1948), S.3, S.9 - SALES TAX - Sales Tax - Unlicenced agent - Sales effected by - Exemption from tax when can be claimed - Liability of principal and agent. An agent may be a principal in respect of any transaction done on his own account; there is nothing in law to prevent the same person from acting as an agent on behalf of others; if, he deals in the capacity of an owner he must pay tax either as buyer or as seller but if the goods sold by him belong to others on whose behalf he acts as a mere agent or as a broker, then the licence he has taken under S. 9 of the Act will protect him provided he proves that he has sold the goods on behalf of a known principal, who is specified as such in his accounts though it is not necessary that he should disclose the principal to the persons who deal with him. Besides, another important condition to entitle him to exemption is that the transaction should have been included in the turnover of the principal on whose behalf he deals, under the proviso to S. 9. In the case of an unlicensed agent no such exemption is available as he is deemed to be a dealer, like any others; the tax collected by him on the sale of goods must be paid over to the Government. In any case either the principal or the agent, not licenced, has to pay the tax, but tax need not be paid by both on the same transaction. (Para 4) In case the unlicenced agent himself pays the tax, the principal is exempted, but in that case the principal is bound to prove that the agent has in fact paid the tax, otherwise the responsibility of the principal will not cease. The burden is always on the dealer, on whom the liability of payment of tax primarily rests, to prove that a particular transaction is exempt by reason of payment through an agent or otherwise. The inclusion in the turnover of sales through a licenced agent will relieve the agent from liability, but the principal cannot escape taxation by reason of omission of such sales in his annual turnover. (Para 5) It follows that the principals are liable for taxation for sales through licenced agents, even though the principals have not collected sales tax and have not included the said commission sales in their turnover. The agents who have not been licenced under S. 9 can claim no exemption from tax in respect of sales effected by them. They are taxable as any other dealer and the principal who sells his goods to an agent will also be liable. Though the liability of both the principal and the unlicenced dealer is joint and several, the tax on the same transaction cannot be collected twice or from both the principal and the agent. (Para 6) Case Referred : Courtwise Chronological Para (A) (V 41) AIR 1954 Mad 96 : 1954 Cri LJ 21 4 Asst. Advocate-General, for the State; K.R. Gopivallabhaiengar, for Respondent. Judgement This petition has been registered on a reference made under S. 16(1), Mysore Sales Tax Act of 1948 by the revising authority, the Commissioner of Sales Tax in Mysore.

2. The facts of the case as disclosed in the statement of case are as under : The respondent Hanumanthappa is a merchant in Chickkaballapur, dealing on his own account as well as on commission basis inside the State and also consigning goods outside the State. He claimed exemption in respect of goods sold by him or on his behalf on commission basis both by agents within and outside the State. The Sales Tax Officer granted exemption on all sales outside the State, but disallowed the claim on sales which took place within the State, holding that the respondent being the principal was liable to pay tax irrespective of the fact whether or not his agent had taken out a license under S. 9, Mysore Sales Tax Act.

3. The Deputy Commissioner rejected the appeal on the ground that the commission agent selling goods on behalf of the principal has not obtained license under S. 9 of the Act and that in the absence of license under S. 9 of the Act by the commission agent, both the principal and the commission agent become liable to pay tax. The respondent raised the same points in a revision petition filed before the Commissioner of Sales Tax and the said revision petition was also dismissed; he then filed a petition under S. 16, Mysore Sales Tax Act to refer the points of law raised by him for decision to the High Court. The following two questions are suggested by the respondent and referred to by the revising authority; (a) Whether the principals can be assessed on sales effected by commission agents who have obtained license under S. 9, Mysore Sales Tax Act even though the principals have not collected sales tax and have not included the said commission sales in their turnover or whether, the commission agents themselves are liable to pay sales tax on such turnover and (b) in cases where the sales are effected by commission agents who have not taken licenses under S. 9, Mysore Sales Tax Act, whether both the principal and the agents are liable to pay sales tax on the turnover.

4. Mr. Gopivallabha Iyengar on behalf of the respondent contended that under S. 9 of the Act, it is only the licensed agents who sell on behalf of known principals that are exempt from sales tax provided such sales are included in the turn-over of the principals or of the dealers from whom purchases were made and that inferentially he argued that an unlicensed agent selling goods on behalf of an unknown principal shall make himself liable to pay sales tax which excludes the responsibility of the principal and that in consequence, sales tax must be levied and recovered from an unlicensed agent and the department should not, on any account, look to the principal for payment of the tax. We are unable to agree fully with the contentions advanced. Section 3 obliges every dealer to pay tax on his total turn-over for the year and the dealer is defined under S. 2(d) as meaning any person who carries on the business of buying or selling goods. Therefore a person whether he himself sells direct or through an employee or through a commission agent or through other means cornea under the definition of a dealer irrespective of the nature of the machinery he employs to sell the goods. (Vide - In re, K.T. Pappanna, AIR 1954 Mad 96 (A)). An agent may be a principal in respect of any transaction done on his own account; there is nothing in law to prevent the same person from acting as an agent on behalf of others; if he deals in the capacity of an owner he must pay tax either as buyer or as seller but if the goods sold by him belong to others on whose behalf he acts as a mere agent or as a broker, then the license he has taken will protect him provided he proves that he has sold the goods on behalf of a known principal, who is specified as such in his accounts though it is not necessary that he should disclose the principal to the persons who deal with him. Besides, another important condition to entitle him to exemption is that the transaction should have been included in the turn-over of the principal on whose behalf he deals, under the proviso to S. 9. In the case of an unlicensed agent no such exemption is available as he is deemed to be a dealer, like any others; the tax collected by him on the sale of goods must be paid over to the Government. In any case either the principal or the agent, not licenced has to pay the tax, but tax need not be paid by both on the same transaction.

5. In case the unlicenced agent himself pays the tax, the principal is exempted, but in that case the principal is bound to prove that the agent has in fact paid the tax, otherwise the responsibility of the principal will not cease. The burden is always on the dealer, on whom the liability of payment of tax primarily rests, to prove that a particular transaction is exempt by reason of payment through an agent or otherwise. The inclusion in the turn-over of sales through a licenced agent will relieve the agent from liability, but the principal cannot escape taxation by reason of omission of such sales in his annual turn-over.

6. From the foregoing discussion the answer to the first point in the statement of case is that the principals are liable for taxation for sales through licenced agents, even though the principals have not collected sales tax and have not included the said commission sales in their turn-over. The sales effected by agents who have not been licenced under S. 9 can claim no exemption from tax. They are taxable as any other dealer and the principal who sells his goods to an agent will also be liable. Though the liability of both the principal and the unlicenced dealer is joint and several, the tax on the same transaction cannot be collected twice or from both the principal and the agent. The reference is thus answered. The respondent will pay the costs of the State of Mysore. Advocates fee Rs. 100/-. Reference answered accordingly. AIR 1954 MYSORE 184 (Vol. 41, C.N. 79) "Shankariah v. Ramiah" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Shankariah and others, Appellants v. Ramiah, Respondent. Second Appeal No. 466 of 1953, D/- 16 -12 -1953, against decree of Sub. J., Tumkur in R. A. No. 221 of 1951-52. Easements Act (5 of 1882), S.13 - EASEMENT - Continuous easements - Right to water. Where the plaintiff and the defendant who were brothers were entitled to equal rights and both portions of the lands were entitled to get water not only from the tank, but also from the well, as stated and recognised in Survey records, and it was not the case of the defendant that the right of the plaintiff to take water from the well had been taken away by any agreement at the time of the partition : Held, that the right of taking water to the plaintiffs land from the well situated in the land belonging to the defendant continued to exist as before even after partition and it was unnecessary to prove any agreement giving such right after the partition. 9 Mys LR 168, Foll. (Para 2) Anno : Easements Act, S.13 N. 3, 5. Case Referred : Courtwise Chronological Para (A) (86) 9 Mys LR 168 2 E. Kanakasabhapathy, for Appellants. Judgement The point for consideration in this appeal is whether the learned Subordinate Judge was right in holding that the plaintiff-respondent has a right to take water from the well situated in the land that has fallen to the share of the defendant and in awarding damages of Rs. 200/- on the ground that the appellant-defendant prevented the plaintiff from taking water to his land and thus caused his garden to dry up.

2. It is not disputed that the entire land which belongs to the plaintiff and the defendant who are brothers was fed not only by tank water but also by the water from the well situated in the portion of the land that has fallen to the share of the defendant. In fact there is Ex. A Uttaar copy which Clearly shows that both portions are entitled to water from both sources. It has to be noticed that the defendant could only get water through a channel situated in the plaintiffs land while the plaintiff has to take water from the well situated in the land that has fallen to the share of the defendant. There is nothing to show that at the time of the partition either the right of the defendant to take water through the plaintiffs land or the right of the plaintiff to take water from the well situated in the land that fell to the share of the defendant was curtailed and in the absence of any such curtailment, it has to be taken that the two lands are entitled to take water in the manner stated in the survey records. In fact this would be the case even in a case of grant of land. As observed in - 9 Mys LR 168 (A) : "We have had a considerable number of cases cited to us, and out of them I think that two propositions may be stated as what I may call the general rule governing cases of this kind, (i.e. cases of implied grant or reservation of quasi easements). The first of these rules is that, on the grant by the owner of a tenement or part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which of course I mean quasi easements) or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owner of the entirety for the benefit of the part granted. The second proposition is that if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly. Those are the general rules governing cases of this kind, but the second of these rules is subject to certain exceptions. One of those exceptions is the well known exception which attaches to cases of what are known as ways of necessity." These observations are applicable with greater force to a case of partition. Both the brothers in this case were entitled to equal rights and both portions of the lands were entitled to get water not only from the tank, but also from the well. This has been, as already observed, specifically stated and recognised in the Survey records. After partition, in cases of this kind, the rights which the parties had at the time of partition will continue unless any such right is specifically taken away at the time of the partition. It is not the case of the defendant that the right of the plaintiff to take water from the well has been taken away by any such agreement. The learned Munsiff is wrong in thinking that the plaintiff should have proved an agreement by which he got a right to take water from the well, situated in the portion of the land that has fallen to the share of the defendant. In fact no such agreement was alleged in the plaint and it was unnecessary to prove any such agreement. The learned Subordinate Judge was therefore right in holding that the right of taking water to the plaintiffs land from the well situated in the land belonging to the defendant continued to exist as before even after partition and it is in evidence that the plaintiff continued to enjoy its right even subsequent to the partition. The defendant was wrong in preventing the plaintiff from taking water to his land from the well in question and as such the plaintiff was rightly awarded damages. As regards the quantum of damages, it may be remembered the plaintiffs land is an areca garden and the damage caused to it by the defendants illegal obstruction is such that the learned Subordinate Judge is correct in awarding Rs. 200/- as damages.

3. The appeal stands therefore dismissed without notice to the respondent. Appeal dismissed. AIR 1954 MYSORE 185 (Vol. 41, C.N. 80) "Narasimhiah v. Lakshamma" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) D. Narasimhiah, Appellant v. Lakshamma and others, Respondents. Regular Appeal No. 267 of 1950-51, D/- 30 -6 -1954, against decree of Sub-J., Civil Station, Bangalore, in O. S. No. 10 of 1950-51. Negotiable Instruments Act (26 of 1881), S.26, S.87 - NEGOTIABLE INSTRUMENT - EXECUTION - Execution of document by one - Material alteration. The question whether want of execution by one can absolve the other who has executed the document is to be determined by ascertaining the intention of parties, if the understanding was that either both A and B or neither of the two should be liable and execution of the pronote by B was a condition precedent to the obligation for payment by A, it is a matter for proof. If the transaction was not intended to be effective unless. B was an executant, the creditor would not fail to protest against A, taking away the money or would at least attempt to obtain the signature of B who was present at the time. The fact that this was not done and it was considered sufficient to strike off the recital about B being a party to the instrument shows that Es execution though desired was not deemed vital for the purpose of the transaction. Further the deletion of the words having reference to B being an executant of the pronote is not a material alteration of the instrument so as to render it void. Because it could not be said that the right or liability of A was varied or that he was in any way prejudiced by reason of B not being an executant. If B had received the amount or the liability had to be apportioned between B and A, there might be room for grievance. Nor is it possible to hold that by reason of the recital about Bs execution being struck off there is a material alteration under S. 87 so as to render the instrument void when the words were struck off immediately after the execution of the pronote by A and B who was then present declined to affix her signature and secondly the rights or liabilities of the parties inter se were in no way altered by the words being scored off. AIR 1640 PC 160, Foll. (Paras 2, 3, 5) Anno : N. I. Act, S. 26 N. 1; S. 87 N. 1. Cases Referred : Courtwise Chronological Paras (A) (V 1) AIR 1914 Mad 369 (1) : 23 Ind Cas 464 (1) 3 (B) (V 12) AIR 1925 Mad 929 : 87 Ind Cas 48 3 (C) (V 15) AIR 1928 Mad 1092 : 112 Ind Cas 404 3 (D) (V 27) AIR 1940 PC 160 : 67 Ind App 318 (PC) 4 M.B. Janardhan, for Appellant; P.M. Xavier, for Respondents 1 to 3. Judgement VENKATARAMAIYA, J. :- Appellant sued the Respondents for recovery of money due under an on demand promissory note executed by the 1st Respondent in favour of 10th Respondent and endorsed by the latter to appellant. Respondents 2 and 3 are children and Respondent 4 sister of the 1st Respondent. Respondents 5 to 9 are children of 4th Respondent. Appellant claimed to be a holder in due course and to be entitled to a decree against all the Respondents on the ground, money was advanced tinder the pronote for the benefit of Respondents 1 to 9 and payment was made to the 10th Respondent as consideration for the endorsement. The claim was contested by Respondents 1 to 9 and various pleas were put forward by them. Upholding these pleas the lower Court has dismissed the suit. Although the decree as a whole is challenged in the memorandum of appeal, Sri Janardhan learned Counsel for the appellant conceded that the dismissal of the suit against Respondents 2 to 9 was justified and sought for and decree only against the 1st Respondent.

2. The main reason for the dismissal of the suit against the 1st Respondent is that the 4th Respondent is not a joint executant of the pro-note along with the 1st Respondent and that the deletion of words in the body of the instrument about 4th Respondent being an executant constitutes a material alteration under S. 87, Negotiable Instruments Act so as to render the instrument void. The question whether want of execution by one can absolve the other who has executed the document is to be determined by ascertaining the intention of parties. If the understanding was that either both or neither of them should be liable and execution of the pronote by the 4th Respondent was a condition precedent to the obligation for payment by the 1st Respondent, it is a matter for proof. The evidence shows that the husband of the 10th Respondent wanted the pronote to be executed by both the sisters and the pronote was also written as if both would be executants. The consideration was paid to the 1st Respondent and after she signed the pronote the 4th Respondent refused to sign it as no money was paid to her. If as alleged by the 1st Respondent the transaction was not intended to be effective unless 4th Respondent was an executant, there would have been discussion about the matter and the creditor would not have failed to protest against 1st Respondent taking away the money or would have at least attempted to obtain the signature of the 4th Respondent who was present at the time. The fact that this was not done and it was considered sufficient to strike off the recital about 4tli Respondent being a party to the instrument shows that 4th Respondents execution though desired was not deemed vital for the purpose of the transaction. Respondent 1 appears to have been the person who applied for the loan and negotiated with the 10th Respondents husband to obtain it as seen from the letter Exhibit IV. When payment was demanded by means of a notice sent by a lawyer, she kept silent and raised no objection. The amount is said to have been required for the expenses of the marriage of her daughter. In view of all this, it is difficult to hold that there was an agreement by which the non-execution of the 4th Respondent can be a ground on which 1st Respondent can escape liability.

3. The next question for consideration is whether the deletion of the words having reference to 4th Respondent being an executant of the pronote is a material alteration of the instrument so as to render it void. Section 87, Negotiable Instruments Act relied upon by the 1st Respondents Counsel and lower Court to make out that the instrument is invalid on account of the words being scored off does not specify expressly or by means of illustration the kind or category of alterations which are to be regarded as material to have the effect -mentioned. No case in which the deletion such as that in the suit pronote is deemed to be a material alteration has been cited by Sri Xavier, learned counsel for Respondent 1. Amritham Pillai v. Nanjah Gounden, AIR 1914 Mad 369 (1) (A) referred to is distinguishable as the document was found to be forged in that case. Madam Pillai v. Athinarayana Pillai, AIR 1925 Mad 929 (B) and - Santhu Mohideen Pillai v. Jamal Md. Jamaluddin, AIR 1928 Mad 1092 (O) are also not helpful to treat the deletion as a material alteration. In the first of these two Devadoss, J. observed that S. 87 has no application to alterations made at the time of execution of the documents and granted a decree against the person who had executed the document though it was found that the signature of the other was a forged one. Wallace J. took a contrary view in - AIR 1928 Mad 1092 (C) and dismissed the suit on account of the signature of one of the alleged executants being a forgery. This is not a case of any signature being forged or struck off but one of absence of signature and the effect of the two cannot be taken to be the same.

4. The test of an alteration being material or not is stated in - Nathu Lal v. Mt. Gomti Kuar, AIR 1940 PC 160 (D) thus : "A material alteration is one which varies the rights, liabilities or legal position of the parties ascertained by the deed in its original state or otherwise varies the legal effect of the instrument as originally expressed or reduces to certainty some provision which was originally unascertained and as such void or may otherwise prejudice the party bound by the deed as originally executed."

5. If this test is applied, it cannot be said that the right or liability of 1st Respondent is varied or that she is in any way prejudiced by reason of 4th Respondent not being an executant. If the latter had received the amount or the liability had to be apportioned between her and 1st Respondent, there may have been room for grievance. 1st Respondent admits that the entire amount was paid to her and under the law her liability would have been no less than what it is, even if 4th Respondent had been an executant. Nor is it possible to hold that by reason of the recital about the 4th Respondents execution being struck off there is a material alteration under S. 87, Negotiable Instruments Act so as to render the instruments void as in the first place the words were struck off immediately after the execution of the pronote by the 1st Respondent and 4th Respondent who was then present declined to affix her signature and secondly the rights or liabilities of Respondents 1 to 10 inter se are in no way altered by the words being scored off. It is unnecessary to consider whether the plaintiff is a holder in due course as he is entitled to succeed even if his rights are only those of the original promisee who is the 10th Respondent.

6. As regards the amount due, it has been found that though Rs. 3000/- are mentioned in the pronote and the receipt as the consideration, Rs. 180/- were not paid. The principal amount therefore is only Rs. 2820/-. Interest on this for the period relating to the claim is Rs. 356/-. A sum of Rs. 300/- is allowed as damages to Respondents on account of the plaintiff having wrongfully got their properties attached before judgment. Deducting this, the total amount payable to the plaintiff is Rs. 2876/-

7. In reversal of the decree of the lower Court there will be a decree in Appellants favour for payment of this amount by the 1st Respondent. The dismissal of the suit against the other respondents is confirmed. As the claim was to some extent excessive in regard to the amount and persons liable for the same and the endorsement to the plaintiff of the instrument seems to have been effected for the purpose of the litigation, we direct the parties to bear their own costs throughout. Order accordingly. AIR 1954 MYSORE 187 (Vol. 41, C.N. 81) "Paremajalu Chettiappa v. Pattangeri" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Paremajalu Chettiappa, Appellant v. Pattangeri and others, Plaintiffs-Respondents. Second Appeal No. 300 of 1953, D/- 30 -7 -1954, against decree of Dist. J., Coorg, in Civil Appeal No. 8 of 1949. (A) Transfer of Property Act (4 of 1882), S.60 - Coorg Land Revenue Act, S.106(4), S.145 - MORTGAGE - LAND REVENUE - OBJECT OF AN ACT - TRUST - Scope and applicability - Benami purchase by usufructuary mortgagee at revenue sale brought about by his own default - Effect of, on right to redeem. Trusts Act (2 of 1882), S.90. Coorg Land Revenue Act, S.106, S.145. Where a usufructuary mortgagee who is bound under the terms of the mortgage to pay the land revenue to the Government, fraudulently allows the property to be sold for arrears of Government revenue and purchases the property benami in the name of a third person, neither S. 106(4) nor S. 145, Coorg Land Revenue Act can operate as a bar to the mortgagors suit for redemption and possession of the mortgaged property which has continued all along in the possession of the mortgagee. Section 108(4) of the Coorg Land Revenue Act is meant to bar a suit against a real purchaser in a revenue sale, where a certificate has been issued to Mm and he has been put in possession, for a declaration that the sale is benami; and cannot be invoked to assist a benami purchaser who has been a party to the fraud with the mortgagee and has sought to assist the mortgagee to commit breach of a constructive trust as defined under S. 90 of the Indian Trusts Act. 10 Moo Ind App 540 (PC); AIR 1916 PC 227, Rel. on. (Para 3) Anno : T. P. Act, S. 63 N. 23, Pts. 8, 27; Trusts Act, S. 80 N. 18. (B) Limitation Act (9 of 1908), Art.12, Art.148 - LIMITATION - APPLICABILITY OF AN ACT - Applicability. Mortgaged property sold for arrears of revenue due to default of usufructuary mortgagee - Mortgagee fraudulently purchasing property benami in the name of third person and continuing in possession even after the sale - Mortgagor can ignore the sale and need not sue for setting it aside within the period prescribed by Art. 12 - Mortgagee must hold the property subject to the mortgage and the mortgagor is entitled to redeem it. (Para 4) Anno : Lim. Act, Art. 12 N. 1; Art. 148 N. 1a. (C) Civil P.C. (5 of 1908), S.11, S.96 - RES JUDICATA - APPEAL - Finality of appealable decision. Suit for redemption against usufructuary mortgagee and his benamidar auction purchaser at a revenue sale brought about by fraudulent conduct of mortgagee - Plea by mortgagee alone that suit is premature - Plea decided against mortgagee and plaintiff held entitled to redeem - Appeal by benamidar purchaser alone - Decision that suit is not premature is final and the purchaser cannot be allowed to raise it in appeal. (Para 5) Anno : Civil P.C., S. 11 N. 111; S. 96 N. 6. (D) Transfer of Property Act (4 of 1882), S.60, S.62 - MORTGAGE - Right of redemption when arises. Where a usufructuary mortgagee who is entitled to appropriate the usufruct of the property for a period of 50 years in discharge of the mortgage debt allows the mortgaged property to be sold for arrears of revenue which he was bound to pay under the terms of the mortgage and the mortgagor brings a suit for redemption and possession of the mortgaged property before the expiry of the period, the mortgagee is not entitled to resist the suit on the ground that it is premature. AIR 1925 Mad 825; 34 All 659; 1 Mys LJ 30, Ref. to. (Para 6) Anno : T. P. Act, S. 60 N. 5; S. 62 N. 5. Cases Referred : Courtwise Chronological Paras (A) (V 3) AIR 1916 PC 227 : 44 Cal 573 (PC) 3 (B) (1865-66) 10 Moo Ind App 540 : 5 Suth WR 83 (PC) 3, 4, 10 (C) (V 12) AIR 1925 Mad 895 : 90 Ind Cas 138 8 (D) (12) 34 All 659 : 17 Ind Cas 340 9 (E) (12) 34 All 273 : 13 Ind Cas 573 9 (F) 1 Mys LJ 30 10 (G) (96) 20 Bom 492 10 (H) (03) 26 Mad 385 10 K.P. Muddappa, for Appellant; V. Krishnamurthy, (for Nos. 1 to 5) and A.C. Nanjappa (for Nos. 7 to 9), for Respondents. Judgement The suit by the plaintiffs for redemption and possession of the plaint schedule lands has been decreed by the Court below and defendant 5 has come up in second appeal. The lands were mortgaged with possession by Pattangeri alias Markje Thammiah, father of plaintiffs 2 to 5, and Belliappa, father of plaintiff 1, in favour of Thekkada Belliappa the father of defendants 1 and 2 and grand-father of defendants 3 and 4 under a usufructuary mortgage deed dated 19-3-1894, According to the plaintiffs the mortgagee was entitled to the usufruct of the property for a period of 50 years from the date of that mortgage. He was bound to pay land revenue and other dues payable to Government upon the said property and to pay himself a sum of Rs. 600/- and interest thereon from the income of the property during that period, and thereafter restore back possession of the property to the mortgagors. It was also alleged in the plaint that while defendants 1 to 4 were in possession as legal representatives of the original mortgagee they wilfully allowed the property to be sold for arrears of land revenue due to Government and got it knocked down for their benefit in the name of their own sisters husband Belliappa, father of defendant 5, who has since died; and that in spite of the sale defendants I to 4 have continued to be in possession and enjoyment of the property. Defendants 1 to 4 pleaded that the suit, which was brought on 13-5-1944, was premature as the plaintiffs were not entitled to redeem the properties before 19-3-1951. They denied that there was any collusion between them and the 5th defendants father and pleaded that the lands were sold for arrears of land revenue because they themselves were unable to pay the assessment and that the fifth defendants father is a bona fide purchaser and not a benamidar for them. Defendant 5 pleaded similarly that the property was his by virtue of the purchase in the revenue sale by his father and that the sale was not fraudulent.

2. Both the Courts below who have upheld the plaintiffs right to redeem have held that the revenue sale was brought about fraudulently by defendants 1 to 4 who were able as well as bound to pay the land revenue due to Government, that in spite of that sale the suit property had continued to remain all along in the possession of defendants 1 to 4 and was never in the possession of defendant 5 or his father; that only nominally the property had been got knocked down in the name of defendant 5s father benami for defendants 1 to 4 and for their benefit and that the plaintiffs suit was not premature and was maintainable.

3. Mr. Muddappa, learned counsel who appears for the appellant, has urged that the suit is barred under S. 106 Cl. 4 of the Coorg Land Revenue Act. That section is meant to bar a suit against a real purchaser in a revenue sale, where a certificate has been issued to him and he has been put in possession, for a declaration that the sale is benami; and cannot be invoked to assist a person like defendant 5 or his father, who has been a party to the fraud with the mortgagees and has sought to assist the mortgagee to commit breach of a constructive trust as defined under S. 90 of the Indian Trust Act. He was in reality merely an agent of defendants 1 to 4 and what they could not gain if they had purchased the property themselves personally cannot be permitted to be achieved if they bought it through an agent. See - Deo Nandan Prashad v. Janki Singh, AIR 1916 P.C. 227 (A) which was a similar case of a benami purchase, S. 106(4) is designed to prevent fraudulent claims and to use it in the way now sought as against the plaintiffs would be to use it as a machinery to effect and perpetuate a fraud. In - Nuzar Ally Khan v. Ojoodhyaram Khan, 10 Moo Ind. App. 540 (B) which was also a similar case of benami purchase in revenue auction to defraud a mortgagee their Lordships of the Privy Council held that as the sale was a fraudulent one brought about by the mortgagees representative in possession, the Act under which, it was held did not apply so as to defeat the mortgagors equity of redemption. The sale was to be considered as nothing more than a private sale and impressed a trust on the estate which passed under it. There had been a fraudulent agreement between the mortgagees representative in possession and the purchaser at the Government sale and so both were estopped as against the mortgagor from relying upon the sale. Even S. 145 of the Coorg Land Revenue Act provides for a revenue sale being set aside by a Civil Court when such a sale is vitiated by fraud. In view of the concurrent findings of the Courts below that the revenue sale was fraudulently brought, about by defendants 1 to 4, mortgagees, that the purchase by defendant 5s father was really by them alone and was for their benefit though nominally the bid was knocked down in the name of defendant 5s father, neither S. 106(4) nor S. 145 of the Coorg Land Revenue Act can operate as a bar to the plaintiffs present suit for redemption and possession of the mortgaged property which has been really in the possession of the mortgagees.

4. He has next urged that the plaintiffs should have brought a suit within one year of the sale for setting aside of the revenue sale under Art. 12 of the Limitation Act and that not having done so their suit is barred by time. This is not a case where the plaintiff has brought a suit against the Government or against the person who has purchased the property in a revenue auction complaining of irregularity or fraud committed in the conduct of the sale or its earlier proclamation or later confirmation. After the sale the plaintiffs applied to the revenue authorities for the same being set aside, but the revenue authorities saw no reason to do so apparently as the sale had been properly conducted and that is all they were then concerned with; they were not concerned to see whether defendant 5s father had purchased the property for himself or fraudulently as benamidar of defendants 1 to 4. If defendant 5s father is merely a benamidar or name-lender for defendants 1 to 4 it is as though defendants 1 to 4 themselves have purchased the property. The finding of the Courts below is that defendant 5s father was living with defendants 1 to 4 and their father, and that the former or defendant 5 never paid kandayam for the suit lands except in 1945-46 and that the same was done by defendants 1 to 4 who have continued to remain in possession all along. There was therefore no need at all for the plaintiffs to sue for setting aside the revenue sale because they could ignore it as, in spite of the revenue sale, the property continued to remain with the mortgagees, who held it subject to the mortgage and the plaintiffs are entitled to redeem it. See - 10 Moo Ind. App. 540 at 543 (PC) (B).

5. It has next been urged that the plaintiffs suit is premature. That plea is not raised, in the written statement of the 5th defendant and I do not see how he could be allowed to raise such a plea. He is not the mortgagee and does not admit that he is liable to be redeemed in 1951. He claims that he is the owner of the property and if, as has been viewed by the Courts below, he is not clothed with any independent title but is merely a name-lender or alias for defendants 1 to 4, he cannot resist the suit for redemption when they themselves had put forward that plea in the Courts below and have failed. Defendants 1 to 4 have not appealed to this Court and the judgment of the Courts below that the suit is not premature and that they are liable to be redeemed and to deliver up possession with mesne profits has now become final.

6. However, as it has been urged before me that the plaintiffs suit is premature, I may consider that plea also. The learned Munsiff, on a reading of the document, has held that the period of 50 years must be counted from the date of the mortgage. On the other hand the learned District Judge has observed that 50 years may have to be counted after the expiry of 7 years during which period the property had already been mortgaged with possession to one Derappa whose rights had been assigned in favour of the mortgagees earlier to the date of Ex. A. I have gone through the document and I think that the learned Munsiffs interpretation of the document may be preferred to that of the learned District Judge. (His Lordship then referred to the document and after quoting a portion of the text of the document in Kannada, proceeded :) The learned District Judge has, in spite of his observation, agreed with the learned Munsiff in holding that the suit is not premature and in allowing redemption. The ground on which that has been done by both the Courts is that the mortgagee, having failed to perform the duty cast on him to pay the land revenue assessment and having allowed the property to be sold for arrears of land revenue, cannot insist on the mortgagor keeping to one of the terms of the mortgage, namely, the period of 50 years. Such a plea is also unreasonable and self contradictory. If the mortgagors like the plaintiffs simply kept quiet and waited for the period of mortgage to run, they might later on be met by plea of limitation or adverse possession as has been put forward by defendant 5 in this case.

7. There is no doubt that when a mortgagee, who is liable to pay arrears of land revenue either as an usufructuary mortgagee under S. 76(c) of the Transfer of Property Act or under an agreement with the mortgagor, falls to so pay the land revenue and allows the mortgaged property to be sold and purchases it himself, he holds it as trustee and for the benefit of the mortgagor. See S. 90 of the Indian Trusts Act - Illustration A.

8. It has been held in - Narasimha Rao v. Immani Seshayya, AIR 1925 Mad 825 (C) that when a term is fixed in a usufructuary mortgage deed and possession is given to the mortgagee, it is the duty of both the parties to adhere to the terms of the mortgage, and that if the mortgagee committed breach of any of the terms it is equitable that he should not be allowed to insist upon one of the terms of the mortgage deed being given effect to when he himself has given a go by to the other terms of the deed.

9. Similarly in - Chhatku Rai v. Baldeo Shukul, 34 All 659 (D) redemption was allowed before the expiration of the period fixed on the ground that it was equitable to do so as the defendants had not performed the contract so far as they were concerned. In - Rashik Lal v. Ram Narain, 34 All 273 (E) referred to for the Appellant the distinction between a contract and a conveyance is pointed out and it has been held that the mere fact that a part of the mortgage money is not paid does not render the mortgage itself invalid. That case has no bearing on the question which has arisen in this case.

10. In - 1 Mys LJ 30 (F) where a mortgaged property which was sold for arrears of land revenue owing partly to the default of the mortgagee and purchased by a stranger was subsequently purchased by the mortgagee himself, the mortgage, it was held, was revived and could be redeemed by the mortgagor or his heirs; and it was immaterial that the default of the mortgagee was not the sole cause of the sale or that it was not intentional, the reason being that no man was to be allowed to take advantage of his own wrong, a principle embodied in S. 90 of the Indian Trusts Act. - 10 Moo. Ind. App. 540 (B); - Kalappa v. Shivaya, 20 Bom 492 (G); - Sanagapally Lakshmayya v. Intoory Bolla Reddy, 26 Mad 385 (H) and other cases have been relied on in that decision.

11. Mr. V. Krishnamurthy, learned Counsel for the respondents has also referred to Jones on Mortgages 8th Edn. page 714 where it is said : "when the payment of the taxes is a duty on the part of the mortgagee he is like a trustee and cannot affect the right of the mortgagor by purchasing the property at a sale for such taxes .......... if the mortgagee has bought the tax title for the benefit of the mortgagor as well as for his own benefit he cannot afterwards set it up against the mortgagor to defeat redemption by him."

12. In the result, I find there are no grounds to interfere with the judgments and decrees of the Courts below. This appeal is accordingly dismissed with costs of plaintiffs 1 to 5. Appeal dismissed. AIR 1954 MYSORE 189 (Vol. 41, C.N. 82) "M.P. Basappa v. Channappagowda" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) M.P. Basappa, Petitioner v. Padasale Channappagowda and others, Respondents. Civil Revn. Petn. No. 458 of 1952-53, D/- 23 -2 -1954, against order of Dist. J., Shimoga, D/- 9 -7 -1952. (A) Provincial Insolvency Act (5 of 1920), S.9(1)(c) - INSOLVENT - "Within three months". For an application by a creditor under S. 9, where the act of insolvency alleged against the debtor is the execution of a sale deed or other alienation which requires registration, the period of three months for presenting the petition for adjudication should be computed from the date of registration of the sale deed and not from the date of its execution. If it is held that the period of three months provided under S. 9 begins to run from the date of execution and not from the date of registration of a sale deed, that section can be easily rendered nugatory by the insolvent or the alienee merely deferring presentation of the document for registration till the last day of the four months within which the document may normally be registered or to the eight months available under some special circumstances referred to in S. 24 of the Registration Act. Case law discussed. (Paras 3, 5) Anno : Pro. I. Act, S. 9 N. 4. (B) Provincial Insolvency Act (5 of 1920), S.17 - INSOLVENT - Adjudication order after death. Section 17 authorizes the Court by necessary implication to pass an adjudication order even after the death of the debtor. AIR 1944 Cal 370, Rel. on. (Para 8) Anno : Pro. I. Act, S. 17 N. 1. (C) Provincial Insolvency Act (5 of 1920), S.25 - INSOLVENT - Ability to pay debts. Held that the finding of the Courts below that the debtor might have had slightly more assets than liabilities was not only not correct but was not even a very relevant circumstance to be taken into account while deciding whether the debtor was able to pay his debts. (Para 7) Anno : Pro. I. Act, S. 25 N. 1. Cases Referred : Courtwise Chronological Paras (A) (V 25) AIR 1938 Cal 417 : ILR (1938) 2 Cal 275 3, 4 (B) (V 20) AIR 1933 Lab 821 : 149 Ind Cas 853 3, 4 (C) (V 21) AIR 1934 Mad 637 (2) : 58 Mad 166 4 (D) (V 20) AIR 1933 Mad 185 : 141 Ind Cas 101 4 (E) (V 25) AIR 1938 Mad 801 : 179 Ind Cas 240 4 (F) (V 21) AIR 1934 Ngp 171 : 150 Ind Cas 834 4 (G) (V 24) AIR 1937 Nag 197 : ILR (1937) Nag 403 4 (H) (V 34) AIR 1947 All 383 : ILR (1947) All 623 4, 5

(I) (V 22) AIR 1935 Lah 565 : 16 Lah 735 (FB) 4 (J) (V 31) AIR 1944 Cal 370 : ILR (1945) 1 Cal 522 4, 8 (K) (V 21) AIR 1934 Rang 216 : ILR (1934) 12 Rang 263 4

(L) (V 24) AIR 1937 Rang 446 : 1937 Rang LR 375 (FB) 4 (M) (V 24) AIR 1937 Ngp 127 : 169 Ind Cas 846 6 (N) (V 26) AIR 1939 Lah 349 : ILR (1939) Lah 408 6 (O) (V 17) AIR 1930 Lah 192 : 124 Ind Cas 673 6 (P) (V 20) AIR 1933 Cal 417 : 60 Cal 345 6 (0) (V 23) AIR 1936 Mad 275 : 161 Ind Cas 348 6 (R) (V 15) AIR 1928 Mad 480 : 51 Mad 495 8 (S) (V 17) AIR 1930 Cal 590 : 34 Cal WN 445 8 D. Puttaswamy and E. Kanakasabapathi, for Petitioner; K.V. Subba Rao, for Respondents. Judgement The petitioner applied under S. 9 of the Mysore Insolvency Act to have one Padasale Channappagowda, now deceased, and who will hereafter be referred to as the respondent declared or adjudged an insolvent. He has since died on 25-5-1953 leaving behind him respondents 1(a), 1(b) and 1(c), his sons as his heirs and legal representatives. The application was made on 1-4-1950. The petitioner alleged that the respondent owed him Rs. 1500/- and interest on a pronote dated 1-2-48 and that in order to defraud him and other creditors he had purported to execute a nominal and fraudulent sale deed for Rs. 2000/- on 10-12-49 of almost all his immoveable properties in favour of his friend and relation, one Sivalingappa. The petitioner wanted that transfer to be annulled among all his creditors. The respondent pleaded that the pronote was unsupported by consideration and was obtained from bun by fraud, his signature being taken to some blank papers and that he was therefore not liable to pay anything to the petitioner. He denied that the sale referred to in the application was nominal, collusive or fraudulent and pleaded that he had conveyed the properties to Sivalingappa as they really belonged to him. In his evidence he has stated that he sold them back to Sivalingapppa for Rs. 2000/- in pursuance of some earlier promise made to reconvey it in favour of Sivalingappas father. He pleaded that he had other assets and was able to pay his creditors and that the petition was belated having been filed more than 3 months after the date of the alienation though within three months of the date of registration of the sale deed.

2. The Subordinate Judge before whom the application was made, and the District Judge who heard the appeal against his order, have both found that the pronote in favour of the petitioner is supported by consideration and that the amount evidenced by it is due and owing to the plaintiff, They have not believed the story of the respondent that the pronote was taken from him under the circumstances pleaded or that the plaintiff is liable to pay any part of the debts due by the quandom firm of the petitioner and the respondent, and that under the terms of the agreement Ex. D dated 1-12-1948 the respondent alone was responsible to discharge these debts. They have also found that the sale, under Ex. C, of 5 acres 17 guntas of garden land and 19 acres and 5 guntas of dry land which was worth considerably very much more, viz., Rs. 25,000/- to Sivalingappa could not be a real transaction and that the reason given by the respondent for effecting the sale of such valuable properties for a low figure has not been made out. These findings "cannot be challenged before me and have not been seriously questioned either.

3. The Courts below have however dismissed the application on two grounds, viz., that the same is barred by time having been filed beyond 3 months of the impugned sale deed, and that the respondent had sufficient assets to pay his debts. As regards the first point the Courts below have referred to and followed the cases reported, in - Ramananda Paul v. Pankaj Kumar, AIR 1938 Cal 417 (A) and - Ratan Chand v. Smail, AIR 1933 Lah 821 (B). The learned District Judge before whom it was urged for the petitioner that the former rulings applied to cases of alienations which were sought to be set aside as being a fraudulent preference under S. 54 of the Insolvency Act has referred to S. 47 of the Registration Act which declares that the title of a person under a registered document operates, not from the date of registration, hut from the date from which it would have commenced to operate if no registration thereof was required or made; and he was of the opinion that as the title of the alienee under Ex. C would date back to its date of execution and not the date of its registration the period of three months referred to in S. 9 would begin to run from that date. There is no decided case in Mysore on the point. But the preponderence of opinion among the other High Courts is that for an application by a creditor under S. 9 of the Insolvency Act, where the act of insolvency alleged against the debtor is the execution of a sale deed or other alienation which requires registration, the period of three months for presenting the petition for adjudication should be computed from the date of registration of the sale deed and not from the date of its execution.

4. The Madras High Court has held so in - Sarvathada v. Kurubasubbanna, AIR 1934 Mad 637 (2) (C) and - Muthiah Chettiar v. Official Receiver, Tinnevelly, AIR 1933 Mad 185 (D) and has followed the same principle in - Venkadari Somappa v. Official Receiver, Bellary, AIR 1938 Mad 801 (E) with reference to S. 54 of the Provincial Insolvency Act. To the same effect are the decisions in - Kanhaiya Lal v. Sadashiv Rao, AIR 1934 Nag 171 (F) and - G.W. Godbole v. Marotisa Balusa, AIR 1937 Nag 197 (G) and - District Board, Bijnor v. Md. Abdul Salam, AIR 1947 All 383 (H). The Lahore High Court had taken the opposite view in - AIR 1933 Lah 821 (B), to which reference has been made by the District Judge. The Transfer of Property Act was not in force in Punjab at the time and the decision is mainly based on the circumstance that the vendor had there, then, the option either to effect a sale orally or in writing. Even the learned Judge who decided that case has observed that the point was not free from difficulty while corning to his conclusion. But that case has since been overruled by a Full Bench of the Lahore High Court in - Lakhmi Chand v. Kesho Ram, AIR 1935 Lah 565 (I), where it was held that when a petition is presented alleging that a debtor has committed an act of insolvency by a deed registered, the period of limitation prescribed by S. 9 of the Act runs from the date of its registration and not from the date of its execution; and it is somewhat surprising that while the lower Court has noticed - AIR 1933 Lah 821 {B}, it has not referred to this later case. Even the Calcutta High Court has held in - Indo Burma Traders Bank v. Basada Charan, AIR 1944 Cal 370 (J) that for purposes of S. 9 of the Provincial Insolvency Act time has to be reckoned from the date of registration of the deed of transfer where the Transfer of Property Act requires a registered instrument for a transfer, which is alleged to constitute the act of insolvency. They have distinguished the earlier Calcutta case in - AIR 1938 Cal 417 (A) on the ground that it was concerned with S. 54 and not with Ss. 9 and 6 of the Provincial Insolvency Act. In - U Ba Sein v. Maung San, AIR 1934 Rang 216 (K), which was a case dealing with S. 54 of the Provincial Insolvency Act the same view as the other High Courts referred to above had been taken. But that decision was overruled in - U On Maung v. Maung Shwe Hpaung, AIR 1937 Rang 446 (FB) (L). Mr. Justice Baguley who was one of the Judges constituting the Full Bench has expressed the view that different considerations may arise in considering limitation with regard to S. 9 of the Provincial Insolvency Act.

5. It seems to me that if it is held that the period of three months provided under S. 9 begins to run from the date of execution and not from the date of registration of a sale deed, that section can be easily rendered nugatory by the insolvent or the alienee merely deferring presentation of the document for registration till the last day of the four months within which the document may normally be registered or to the eight months available under some special circumstances referred to in S. 24 of the Registration Act. The petitioning creditor can only base his application on a transfer which is brought to his notice or which may be deemed to have been brought to his notice by the fact of registration. If the registration of the document is absolutely necessary to validate it, and if without registration there can be really no effective transfer at all the act of insolvency, i.e., the transfer contemplated under S. 6 and on which the petition is grounded under S. 9(1)(c) may well be said to have occurred on the date of registration. Section 47 which provides that the transaction operates or takes effect retrospectively from the date of execution of the deed and not its registration is not really germane to this question. As pointed out in AIR 1947 All 383 (H) at 386 "Care has to be taken to keep the question of the operation of the deed distinct from the question of the point of time when the event which gives it legal effect takes place. Section 47 of the Registration Act is designed to avoid fraud of one kind, viz., to avoid a document executed on a later date to steal a march or prevail as against a document executed earlier and affect legal rights and interests created thereby already, by merely registering it earlier. It would be somewhat strange if that section is to be used to help a fraud by a person making a fraudulent alienation. In the above view the application of the petitioner must be held to be within time."

6. The Courts below have dismissed the application also on the ground that the assets of the respondent are more than his liabilities. The trial Court has very briefly discussed the value of the assets and has found that though the evidence is inconclusive the value of the assets of the respondent, other than those he has sold under Ex. C, may be just enough to discharge his debts including those of the petitioner. The learned Subordinate Judge has also found that the value of the assets has been exaggerated, but they may be sufficient to meet the liabilities and he appears to base his decision more on the question of limitation. It is urged before me by Mr. Puttaswamy, learned Counsel for the petitioner, that what is required under S. 25(1) of the Act is that the debtor must satisfy the Court that he is able to pay his debts and that the burden of proof is therefore on the debtor to establish that he was able to pay his debts; see - Gadi v. Govindrao Bapuji, AIR 1937 Nag 127 (M). He has referred to the evidence and has rightly urged that the immoveable properties now remaining not liquidated are easily available assets and are neither so considerable nor so valuable as the trial Court has thought and that the respondent has given absolutely no evidence of any attempt on his part to raise funds by either sale or mortgage of them in order to discharge his debts. In this connection he has relied on a case reported in - Bhagwan Das v. Md. Nawaz Shah, AIR 1939 Lah 349 (N) where it has been held that the "Mere presence of unliquidated assets does not necessarily prove that they are capable of being liquidated. Unliquidated assets cannot be sufficient to discharge debts until they are liquidated and until those stops are taken, willingly or unwillingly by the debtor, it cannot be said that, at the time when the petition is put in, praying for his insolvency, he is able to discharge his debts in the ordinary sense of the term." Their Lordships have pointed out in that case that the mere fact that the value of the immoveable properties owned by him is in excess of his liabilities is not sufficient to prove a debtors ability to pay his debts and that it must be shown by him that he has such realizable assets as can within a reasonable time be made available to meet all his liabilities and that from the circumstance that no effort has been made to pay off the creditors though the debts have been due for a considerable time can be presumed that he is unable to pay his debts within the meaning of S. 25. See also - "Tota v. Badri Pershad, AIR 1930 Lah 192 (O); AIR 1937 Nag 127 (M); - Pratapmal v. Chuni Lal; AIR 1933 Cal 417 (P) and - Chidambaram Chettiar v. Daivani Achi, AIR 1936 Mad 275 (Q) where it has been pointed out that the debtor must satisfy the Court that he has present ability to pay creditors and not that he will be able to do so in a more or less distant future.

7. The respondent had a number of minor sons when the application was made and was disputing the creditors debt itself by pleas which have now been found to be false. The debt due to the petitioner is on a pronote and when the respondent was alive it may not have been easy for him to raise money on the security of the family properties to discharge the petitioners debt in the light of the law as it stood in Mysore. Far from saying that he was either able or willing to discharge the other debts the respondent was trying to make our that it was the petitioner that should discharge either the whole or part of those debts and that he himself was not liable; and this has been found to be false, and contrary to what he has expressly agreed under Ex. D, Though the insolvency petition has been pending for nearly four years it has not been even suggested that he has discharged any of those debts and the effect of dismissing the creditors application at this stage would mean that the creditors would have probably no remedy to recover their just dues. The finding that the alienation effected by the respondent was not bona fide but was nominal and collusive and that it covers a most valuable portion of his property is a further circumstance by which it can reasonably be inferred that he was unable to pay his debts. The petitioner has also sworn that the respondent has, subsequent to his petition, transferred some of his shares and realizable assets without discharging either his debt or the debts of other creditors. The finding therefore of the Courts below that he may have had slightly more assets than liabilities is not only not correct but is not even a very relevant circumstance to be taken into account while deciding whether the debtor is able to pay his debts.

8. The respondent is now dead but under S. 17 the proceedings must be continued so far as may be necessary for the realization and distribution of the property of the debtor. Section 17 authorizes the Court by "necessary implication" to pass an adjudication order even after the death of the debtor. It has been so held in AIR 1944 Cal 370 (J) where it has been pointed out that the matter of realization and distribution of the property of the debtor cannot be conducted unless there is a person in whom the property is vested and the property of the debtor will vest in the Receive only on adjudication following - Ramathai Anni v. Kanniappa Mudaliar, AIR 1928 Mad 480 (R) and - Ramesh Chandra v. Charu Chandra, AIR 1930 Cal 590 (S).

9. In the result this revision petition is allowed and the orders of the Courts below are set aside. The respondent is adjudged an insolvent as prayed for in the petitioners application and the learned Subordinate Judge is directed to dispose of the case in accordance with law in the light of the observations made above. The petitioner will get his costs throughout from the respondents estate. Revision allowed. 1953 AIR 1953 MYSORE 1 "S. N. Rajan v. V.S. Govindaraj Mudaliar" MYSORE HIGH COURT Coram : 2 MALLAPPA AND VASUDEVAMURTHY, JJ. ( Division Bench ) S. N. Rajan, Plaintiff-Appellant v. V. S. Govindaraj Mudaliar, Defendant-Respondent. Second Appeal No.344 of 1949-50, D/- 7 -3 -1952. Mysore House Rent and Accommodation Control Order (1948), S.8 - Bangalore House Rent and Accommodation Law (1946) - HOUSES AND RENTS - ACCOMMODATION CONTROL - EVICTION - TENANCY - CIVIL COURT - SPECIAL TRIBUNAL - Houses and Rents - Petition by landlord for eviction of tenant - Tenant sot raising objection that tenancy, was not determined by notice to quit - Order for eviction - Subsequent civil suit questioning order of House Rent Controller on that ground as barred. Civil P.C. (5 of 1908), S.9. Special Tribunal. When an application is made by a landlord for eviction the tenant must plead all the grounds open to him including want of notice determining the tenancy if he relies on the same to resist the application. If no objection is raised at all regarding want of notice and an order of eviction is passed against the tenant, the tenant cannot file a civil suit questioning the order of the House Rent Controller on that ground. AIR 1949 Mad 127; AIR 1949 Mad 780; AIR 1949 Mad 784 and AIR 1949 Mad 785, Rel. on. (Para 6) Per Vasudevamurthy, J. :- The tenant would also be estopped from bringing the suit where the tenant had not only submitted himself to the order of eviction but had also made several applications in execution praying for extension of time to vacate the premises. AIR 1949 Pat 491, Rel. on. (Para 7) Anno : C.P.C., S.9 N.53. Cases Referred : Chronological Paras (26) AIR 1926 Cal 1101 : (97 Ind Cas 770) 2 (45) AAO No. 202 of 1945 (Mad) 2 (49) AIR 1949 Mad 127 : (1947-2 Mad LJ 559) 2 (49) AIR 1949 Mad 780 : (1949-1 Mad LJ 412) 2 (49) AIR 1949 Mad 784 : (1949-1 Mad LJ 417) 2, 6 (49) AIR 1949 Mad 785 : (1949-1 Mad LJ 74) 2 (47) 52 Mys HCR 455 1, 2, 3, 6 (49) AIR 1949 Pat 491 : (27 Pat 187) 7 Judgement MALLAPPA, J. :- The suit in respect of which this appeal arises, was filed by the plaintiff appellant for a declaration that the order passed by the District Judge, Civil Station, Bangalore, in appeal against the order in H.R.C. 106 of 1948, (directing his eviction) was without jurisdiction, as the defendant-respondent of whom he is a tenant, had not terminated the tenancy by the issue of a proper notice before he applied to the House Rent Controller for his eviction. The plea that the tenancy had not been terminated by issue of a notice or otherwise was not taken before the House Rent Controller. It was not contended before him that he had no jurisdiction on any such ground. All the same it is contended that the civil Courts have jurisdiction to ascertain whether the House Rent Controller has exceeded his jurisdiction, in passing an order of eviction, and the decision of this Court in - Gururajachar v. Rangiah, 52 Mys HCR 455 has been relied on.

2. There is hardly any doubt that an order passed by the House Rent Controller on matters about which he has no jurisdiction is ultra vires and could be questioned in a Civil Court. As observed in the decision relied on at p.463: "The House Rent Controller is a special tribunal created by the statute for a specific purpose. It can only act within the limits of the powers conferred by the statute. If the said limits are exceeded or are not conformed to, the decision of the tribunal is liable to be challenged by an action in a civil Court." The point for decision therefore in this case is whether the House Rent Controller had or had no jurisdiction to entertain the application filed by the defendant respondent for eviction of the plaintiff. He has inherent jurisdiction to pass orders in accordance with the provisions of the House Rent Control Order, which was passed in pursuance of Rule 81(2)(bb) of the Defence of India Rules. According to Rule 81(2)(bb) now embodied in Supplies, Services and Miscellaneous Provisions (Temporary-Powers) Act "for regulating the letting and sub-letting of any accommodation or class of accommodation, whether residential or non-residential, whether furnished or unfurnished and whether with or without board," and in particular: (i) for controlling toe rents for such accommodation either generally or when let to specified persons or classes of persons or in specified circumstances: (ii) for preventing in specified circumstances the eviction of tenants and sub-tenants from such accommodation; and (iii) for requiring such accommodation to be let either generally, or to specified persons, or classes of persons or in specified circumstances. According to the relevant provisions of the House Rent Control Order, 2(2) House means in the areas specified in the Schedule appended to this order, any building or part of a building let separately, suitable for any purpose residential or non-residential, and elsewhere a building or part of a building suitable for occupation as a residence and includes: X X X X X X X X Supposing it is not admitted that the relationship between the petitioner and the respondent is that of a land-lord and tenant, and the person who has claimed to be the tenant contends that he is not a tenant, but that he is a real owner of the property, it is open to the House Rent Controller to find out from evidence whether the person whose eviction is sought is a tenant or not. If he finds that he is the owner, he could dismiss the petition stating that he has no jurisdiction to deal with the matter. Even if he decides that it is proved before him that the person who is sought to be evicted is a tenant and he passes an order of eviction, it is open to the person against whom the order is passed to file in the ordinary Civil Courts having jurisdiction to decide the matter for declaration that he is the owner of the property and that the order of the House Kent Controller is without jurisdiction. Similarly in case the House Rent Controller passes an order in respect of a property which cannot be termed a house within the meaning of the House Rent Control Order, his order is without jurisdiction and can he questioned in a Civil Court. This is however different from stating that though he has inherent jurisdiction to pass an order his order can still be questioned in a Civil Court merely because his decision is incorrect. For instance, he can order eviction if he is satisfied "that the tenant has not paid and is not ready and willing to pay rent due in respect of the period before such an application; or (2) that the tenant is not ready and willing to pay the fair rent of the house for such period thereafter as he may continue to be in possession or (3) that the tenant has after the commencement of the order without the written consent of the landlord, transferred his right under the lease or sub-let the entire premises or any portion thereof etc. as contemplated in Clause 9(2)" of Mysore House Rent and Accommodation Control Order 1948. Merely because a tenant against whom an order is passed under these Clauses is able to satisfy the civil Court that the finding of the House Rent Controller is incorrect on these matters, it cannot be said that the Order of the House Rent Controller is without jurisdiction. The House Rent Controller has jurisdiction to decide these matters. He has jurisdiction not only to decide it rightly, but also to decide it wrongly. As provided in the House Rent Control Order an order of the Controller shall be final and shall not be liable to be called in question in any Court of Law. So long as the order is in exercise of any power conferred by or under the House Rent Control Order, the decision of the Controller as to the existence of circumstances which enabled him to pass an order of eviction under Selection 8, cannot be questioned in any civil Court. It may be fallen that one of the conditions which the House Rent Controller has to be satisfied to be existing before he passes an order of eviction is that the tenancy must have been terminated by efflux of time or by issue of a notice or otherwise Again this is a matter in which the House Rent Controller has jurisdiction to decide and his order right or wrong cannot be questioned in a civil Court. In - Gururajachar v. Rangiah, 52 Mys HCR 455, the view taken by Somayya and Rajamannar, JJ., of the Madras High Court in a decision on an appeal against Order No.202 of 1945 and also in the later decision reported in - Narayanan Nair v. Kunhan Mannadiar, AIR 1949 Mad 127 has been relied on. In - Krishnamurthy v. Parthasarathy, AIR 1949 Mad 780 Horwill and Rajagopalan, JJ. after taking into consideration the above two decisions held as follows : "The other question that arises in appeal is with regard to the jurisdiction of the Rent Controller to deal with this application in the absence of a notice to quit, on the assumption that a notice to quit was necessary, We agree with the learned Judge that this Court can entertain a suit to set aside an order of the Rent Controller if the Rent Controller exceeded the powers conferred on him. A Court or tribunal can, however be said to have no jurisdiction to entertain a suit or application, only if it has no jurisdiction with regard to the subject-matter of the suit or application, e.g., if a suit is valued beyond Rs.3000/-, the Court of a District Munsiff has no jurisdiction to entertain such a suit, and if it does so, then the decree is entirely void. Again, if a civil Court entertains one of those kinds of suits which are triable exclusively by a revenue Court under the Madras Estates Land Act, then its decree too, would be entirely void. But even these rules are subject to the qualification that if the jurisdiction of the Court depends upon the ascertainment of facts and the Court upon the facts found, holds that it has jurisdiction, then the decree of that Court cannot be ignored or set aside in collateral proceedings. In - Ishan Chandra v. Moomraj Khan, AIR 1926 Cal 1101:" Ghose, J., remarked : "There cannot be any question that a decree passed without jurisdiction is a nullity. But the expression jurisdiction has not unoften been used with ambiguity, and the distinction between a judgment where jurisdiction is assumed by the Court where there is absolute want of it, and where file Court in the exercise of its jurisdiction acted wrongly in disregard of the law has not always been borne in mind. This want of discrimination in the use of the term has resulted in a good deal of confusion. The distinction between a defect of jurisdiction and an error or irregularity in procedure is pointed out in Hawes on the jurisdiction of Courts thus." (Then follows this quotation from Hawes). "In the former case the whole proceeding is corum non judice and void; in the latter the proceeding cannot be impugned in a collateral action, even though it be erroneous upon its face and even though it relates to a fact which in a former stage of the proceeding might have been essential to confer jurisdiction. It is examinable only a direct proceeding as by an appeal or by a proceeding in the nature of an appeal, and where there is no remedy of that kind, it concludes for ever." This decision has been followed in two subsequent cases - D.P. Merchant v. Bank of Mysore Ltd., AIR 1949 Mad 784 and - K. Krishnan Nair v. Valliammal, AIR 1949 Mad 785 by Satyanarayana Rao, J., and Panchapakesa Ayyar, J., respectively. Therefore it is very clear that it is the House Rent Controller that has to be satisfied that the landlord has proved that the tenancy has been terminated by issue of a legal notice or otherwise and that there are other circumstances which entitled the landlord for an order of eviction against the tenant. He has jurisdiction to decide these matters and whether his order with respect to these is correct or not, cannot be questioned in any civil Court, though, if he purports to deal with a case in which he has no jurisdiction, as for instance when he purports to pass an order with respect to a property over which he has no jurisdiction or when it is proved in the Civil Court that the person affected is the real owner of the property not teanant and that the House Rent Controller had no jurisdiction, the civil Court has no doubt full power to go into the question and decide whether the House Rent Controller acted with or without jurisdiction. In this case, the plaintiif could have taken the objection of the lease having been not terminated by issue of a notice or otherwise. The very fact that he failed to do so shows that the lease had been terminated, as otherwise he would have taken that plea which he was entitled to take. The civil Court cannot re-open the matter and hold that the tenancy had not been terminated, this being a point over which the House Rent Controller had jurisdiction to decide.

3. It is no doubt true that there are other observations in - Gururajachar v. Rangiah, 52 Mysore H.C.R.455, which may support a contrary view and the question whether the case has to be referred to a full Bench was anxiously considered by us. It must however be stated that that course is not necessary, as in that case it was found as a matter of fact that the lease had been terminated and the question as to whether the civil Courts have jurisdiction to reconsider the matter had not arisen at all for consideration. Following with respect the view expressed in the later decisions of the Madras High Court we hold that it is not open to a tenant to question that the order of the House Rent Controller for his eviction is without jurisdiction on the ground that the lease had not been terminated by issue of a notice or otherwise. The judgments and decrees of the lower Courts are therefore upheld and this appeal stands dismissed with costs.

4. VASUDEVAMURTHY, J. :- The plaintiff was a tenant of the defendant in respect of a house in the civil station, Bangalore. The defendant applied to the House Rent Controller for the eviction of the plaintiff on the ground that he had failed to pay rents. His application was not granted and he appealed to the District Judge, Civil Station, Bangalore, under Section 14 of the Bangalore House Rent and Accommodation Control Law, 1946, which was then current in the then C. and M. Station, Bangalore; and he, as the Appellate Authority, passed an order directing the plaintiff to vacate the premises. When the defendant tried to execute that order, the plaintiff brought the suit O.S.No.70/48-49 on the file of the District Munsiff, Civil Station, Bangalore, for a declaration that the order passed by the District Judge was without jurisdiction and was invalid and for an injunction to restrain the defendant from executing that order. The District Munsiff dismissed the suit holding that it was not maintainable and the same was affirmed on appeal by the District Judge. The plaintiff has preferred this Second Appeal.

5. It is contended for the appellant that no notice had been issued by the defendant terminating the lease and that consequently the House Rent Controller had no jurisdiction to direct his eviction as his tenancy had not been determined in accordance with the provisions of the Transfer of Property Act. Such a plea was not raised before the Controller. The only ground on which eviction was sought was that the appellant was in arrears in the matter of rents. It was admitted that the appellant was in arrears but the same was sought to be justified unsuccessfully by the Appellant. The order of the appellate authority directing eviction was based on a finding against him in respect of that sole ground. The duty to issue a notice to determine the tenancy is not absolutely obligatory under all circumstances for instance it is incumbent on the landlord only in the absence of a contract or local law or usage to the contrary. The lease of immoveable property also determines by efflux of time as limited in the lease, or where such time limited conditionally on the happening of some event, by the happening of such event and other grounds set out in Section 111 of the Transfer of Property Act. The necessity to issue a notice and its sufficiency for determining the tenancy is not therefore in all cases a pure and simple question of law but may depend upon facts whose effects are to be legally interpreted in the light of the circumstances of the case. If the objection had been raised before the House Rent Controller he would have been called upon to consider whether such a notice was necessary before he could exercise jurisdiction and pass orders, and not having raised the plea it fa not open to the appellant to make it a ground for challenging the jurisdiction of the House Rent Controller by a suit in a Civil Court. It may also be observed that the Bangalore House Rent and Accommodation Control Law, 1946, does not expressly provide for the issue of any such notice.

6. In a case reported in - D.P. Merchant v. Bank of Mysore, Ltd., AIR 1949 Mad 784, the Rent Controller passed an order of eviction on the ground that the tenant failed to pay the rents due to the landlord. To enforce the order an execution petition was filed in the City Civil Court under S.9 of the Madras Buildings (Lease and Rent Control) Act of 1946, which corresponds to S.11 of our Order of 1946. Under that section also the order is executable as if it were a decree passed by the Court. The tenant objected to the execution of the order en, the ground that the order was passed by the Rent Controller without jurisdiction as the tenancy was not determined by a notice to quit under the provisions of the Transfer of Property Act. Satyanarayana Rao, J., observed : "No question of want of jurisdiction arises merely because a notice to quit was not issued. In the case of a suit by a landlord to eject a tenant without a notice determining the tenancy, if the tenant raised no objection to the passing of a decree, it would not be open to such a tenant in execution of the decree to raise the contention that the judgment was wrong. It is open to the tenant to raise in the suit objections such as want of notice, and if he does not raise the objection in proper time, he would be precluded from raising the objection thereafter. If that is the position in the case of a decree passed in a suit, I see no reason for treating the order of the Rent Controller which is a decree under S.9 of the Act on a different footing. If, before the Rent Controller, in answer to the petition filed by the landlord for eviction the tenant failed to raise the objection that the tenancy was not determined, assuming that that is the correct legal position, he is thereafter precluded from raising the objection in execution." No doubt that was a case of raising the objection in execution proceedings but the principle appears to be equally applicable to a subsequent suit brought for the purpose of questioning the order when no such objection was taken at all in proceedings before the Rent Controller. When an application is made by a landlord for eviction, the tenant must obviously plead all the grounds open to him including want of notice determining the tenancy if he relies on the same to resist the application. The House Rent Controller will only then be called upon to determine if on any of those grounds the application can be refused, as pointed out, even in the case reported in - Gururajachar v. Rangiah, 52 Mys HCR 455 at p.471 on which reliance is placed for the appellant. It has been held that where the right to evict is disputed, it must be determined by the H.R.C. before he can exercise his jurisdiction under Section 8 of the H.R.C. Order. This obviously cannot mean that even if no objection is raised at all regarding want of notice the tenant can file a civil suit questioning the order of the House Rent Controller on that ground.

7. The Courts below have held that the Appellant is also estopped from bringing his present suit. They have in this connection referred to the conduct of the Appellant subsequent to the passing of the order by the Appellate Authority when execution was applied for by the defendant. The Appellant not only submitted himself to the order of the District Judge but he made several applications supported by affidavits praying for extension of time to vacate the premises. Ex.II is one of such applications made in Execution Case No.3 of 1948-49 on 20-7-1948 in which the Appellant has applied for two months time to vacate the premises and for stay of the execution of the order pending disposal of that application. He has made a second application on 19-8-1948 in the next Ex.Case No.196 of 1948-49 praying for time till 15-9-48 and in the affidavit filed in support of that application he has stated that he had secured another house in Basavanagudi and that he would shift from the suit premises not later than the 9th or 10th of September 1948 settling the rents upto the date of vacating. He has made a third application on 16-11-1948 again in the next Ex.case No.214/48-49 praying for at least two months time to find other accommodation and to vacate the premises, and praying for the stay of the execution proceedings in the meantime. He has expressly stated in that application that the grant of that relief will in no manner whatsoever prejudice the counter-petitioner. In none of these applications and affidavits has the appellant ever complained of want of notice or questioned the validity of the order of the House Rent Controller. Having made those applications and secured relief therefrom the appellant is now clearly estopped from raising the plea of want of notice and that the House Rent Controller had no jurisdiction at all to pass the order. In a case reported in - Mt. Kapura Kuer v. Narain Singh, AIR 1949 Pat 491, the Court had ordered under its inherent powers the restoration of an application made under Order 9, Rule 13 of the Code of Civil Procedure which had been dismissed for default upon payment of costs to the opposite party. The costs were paid and accepted by the opposite party who later on attempted to challenge the order of restoration, on the ground that the Court had no jurisdiction under S.151 to order the same. It was held by the Patna High Court that he was estopped from challenging the legality or propriety of that order.

8. In the result there are no reasons to interfere with the judgments and decrees of the Courts below and this appeal is accordingly dismissed with costs (Advocates fee Rs.25/-).

9. After I prepared my judgment, I have had the benefit of reading my learned brothers judgment. I would, therefore, add to my judgment by saying that I fully agree with him. Appeal dismissed. AIR 1953 MYSORE 4 "S.Ahmed Khan v. Turup Mohamed Hayat" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) S.Ahmed Khan, Plaintiff-Appellant v. Turup Mohamed Hayat, Defendant-Respondent. Second Appeal No.191 of 1949-50, D/- 28 -2 -1952. Partnership Act (9 of 1932), S.42, S.44 and S.69(1) - PARTNERSHIP - Dissolution of partnership - Suit for recovery of sum received by defendant on plaintiffs behalf - Maintainability. The plaintiff alleged that he and the defendant agreed to run a taxi in partnership and for that purpose obtained a motor car on pledge for Rs.8,500/- from see, J., The plaintiff contributed Rs.3000/- and the defendant Rs.5,500/-. They began to ply the taxi for hire from 10-3-1945. Subsequently the defendant sent for the car to his house and returned it to J and collected from him the entire sum of Rs.8,500/- without the knowledge or consent of the plaintiff. On demand by the plaintiff the defendant agreed to pay him Rs.3000/- being his part of the amount of the sum received from J but failed to do so and hence the plaintiff brought a suit for the recovery of Rs.3,000/-. The defendant completely dedenied that he ever entered into a partnership arrangement with the plaintiff, the contribution by the plaintiff of Rs.3,000/-or the subsequent promise to pay the same to the plaintiff. Held that under the circumstances it was meaningless to expect a suit to be filed for dissolution and taking of accounts. Further when the defendant recovered from the pawnor the full amount for which the taxi had been pledged, he could only hold the plaintiffs share of it for and on his behalf and was bound to pay him the amount which belonged to him. Hence the suit was maiitainable in the form in which it was brought and S.69(1) of the Partnership Act was not a bar to it. Case law discussed. (Paras 5, 8) Anno : Partnership Act, S.44 N.2, 5, S.69 N.8. Cases Referred : Chronological Paras (37) AIR 1937 Bom 225 : (ILR (1937) Bom 628) 7 (38) AIR 1938 Bom 108 : (ILR (1938) Bom 102) 7 (42) AIR 1942 Mad 707 : (203 Ind Cas 644) 7, 3 (40) AIR 1940 Nag 78 : ILR (1940) Nag 130 7 (44) AIR 1914 Nag 124 : (ILR (1944) Nag 101) 7, 8 K.N. Srinivasan, for Appellant; S. Govinda Rao, for Respondent. Judgement The plaintiff brought a suit in the Court of the Munsif, Civil Station, for the recovery of Rs.3,000/- from the defendant. His case was that he and the defendant agreed to run a taxi in partnership and for that purpose obtained a Ford V 8 Sedan on pledge for Rs.8,500A from one Joseph. The plaintiff is said to have contributed Rs.3,000/- and the defendant Rs.5,500/-. They began to ply the taxi for hire from 10-3-1945; the plaintiff was looking after the service and paying the defendant a ten annas share of the profits. The terms of the partnership were later on reduced to writing in the form of an agreement Ex.A dated 1-7-45 which was prepared in duplicate with a copy to each party. Subsequently the defendant is said to have sent for the car to his house on 3-12-46 and returned it to Joseph and collected from him the entire sum of Rs.8,500/- without the knowledge or consent of the plaintiff. On demand by the plaintiff the defendant is said to have agreed 4o pay him Rs.3,000/- being his part of the amount of the sum received from Joseph but failed to do so and hence the suit.

2. The defendant completely denied that he ever entered into a partnership arrangement with the plaintiff, the contribution by plaintiff of Rs.3,000/- or the subsequent promise to pay the same to the plaintiff. The plaintiff had some time in June 1946, approached the defendant and invited him to do jointly with him, some business of importing leather goods and in that connection he requested the defendant to sign some typewritten paper on a false representation that such a deed was necessary to get goods intended for that partnership. This suit had been filed because the defendant who used to accommodate the plaintiff with some advances for his business now and then stopped doing so. He further pleaded that the suit was not maintainable as the alleged firm was not registered as required by law. The learned Munsif decreed the suit. He held that the partnership arrangement put forward by the plaintiff was true, that exhibit A was genuine and was not obtained under the circumstances pleaded by the defendant and that the latter had promised to pay the plaintiff Rs.3,000/- as stated in the plaint. He further held that the suit as brought was maintainable and that the plaintiff was entitled to recover the sum as claimed. On appeal however by the defendant, the District Judge, Civil Station, Bangalore set aside that judgment. He did not record his findings on the issues of fact; but he held that the suit was not maintainable. The plaintiff has come up in second appeal.

3. Sri K.N. Srinivasan, learned counsel for the appellant and Sri S. Govinda Rao, learned counsel for the respondent, have argued the appeal fully before me.

4. For the appellant it is contended that the story of the respondent that he executed the suit agreement, Exhibit A, under the circumstances pleaded by him is thoroughly improbable and unworthy of credit. I think there is considerable force in that contention. (After discussing evidence His Lordship concluded as follows:) The plaintiff has, I think, there fore clearly proved the partnership and the subsequent promise of the defendant to pay Rs.3000/- as found by the learned Munsiff.

5. It is contended by Sri S. Govinda Rao, the learned counsel for the respondent, that the plaintiff should have brought a suit for dissolution of the partnership and for accounts and that the suit for recovery of a specific sum of money is not maintainable against an alleged partner. The firm was constituted for a single and particular undertaking or venture. It has come to an end as the taxi has ceased to belong to the firm or available for running on partnership basis as a result of the defendants own action. The defendant does not say there is any subsisting partnership to be dissolved by the court or that there are any accounts to be gone into between them. In fact he denies the very existence of a partnership in these circumstances it appeals meaningless to expect a suit to be filed for dissolution and taking of accounts.

6. Moreover the plaintiff does not claim the sum of Rs.3000/- only as on dissolution of the partnership. His case is that subsequent to the dissolution, which the defendant himself brought about, the defendant had received from Joseph the full amount for which the taxi had been pledged to both of them and that the defendant is bound to pay the plaintiff the sum which he had advanced towards the pledges and that the defendant has also promised to so pay it.

7. Shri Govinda Rao next contends that the plaintiffs suit even on the basis of such a claim is barred under section 69(1) of the Indian Partnership Act as has been held by the learned District Judge. Section 69(1) provides that no suit to enforce a right arising from a contract or conferred by that Act shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. In this connection reliance is placed on - Patel S.H. v. Hussein Bhai Mahomed, AIR 1937 Bom 225, where the plaintiff and defendant were partners in a business carried on in a firm name. The partnership had been dissolved. Subsequent to the dissolution fee income-tax authorities made an assessment against the plaintiff on account of the Arm. The plaintiff paid the entire tax and sued the defendant for contribution. Beaumont, C.J., held that the language of sub-sections(1) and (2) of Section 69, Partnership Act, is wide enough to cover suits relating to a dissolved firm and sub-section (1) covers a suit by a plaintiff suing in respect of a right vested in him or acquired by him as a partner in a firm and it is not essential that the firm should be actually in existence at the date when the suit was instituted. He however observed that had the assessment been made on the plaintiff and defendant by name so that the assessment showed on the face of it that the defendant was liable for a part of the amount the plaintiff might have been entitled to recover the excess amounts he had paid on behalf of the defendant under section 70 or section 69 of the Contract Act. But as the case stood the plaintiff had to base his claim on the relationship arising out of the partnership and he could not therefore recover. In that case there was also no agreement relied on between the partners by which one of them promised to pay the sum to the other nor was it in the nature of an ascertained liability after or at the time of the dissolution. The claim for payment was therefore construed in that case as based on the relationship of partnership and arising directly under the provisions of the Partnership Act. That case was followed by Grille J. of the Nagpur High Court in - Chhotelal Nanakram v. Gopaldas Gulabdas, AIR 1940 Nag 78. He held that the words m sub-section (1) "suing as a partner in a firm" include a suit on a cause of action which is based on a right acquired solely as a partner in a firm, and hence if a firm is unregistered, no suit for money on the basis of a transaction in the unregistered partnership can he brought. The plaintiff claimed in that case that the partnership had been dissolved and that on his own calculation the defendant owed him a specified sum of money as the latters share of the loss. This sum, the learned Judge pointed out, could only be ascertained on the terms of the partnership. An account was apparently necessary to be taken between the partners before that liability could be ascertained. In - Bajranglal Maniram v. Anandilal Ramchandra, AIR 1944 Nag 124, a Bench consisting of Grille, C.J., and Puranik, J., were dealing with a case where the plaintiff stated that on the dissolution of a partnership by efflux of time, there had been a settlement of account and the total loss in the partnership ascertained. The liability of the defendant who owned a four anna share in the partnership had also been found at a certain sum. The defendant had accepted the settlement of accounts and the amount of loss payable by him and agreed to pay it and had also made some part payments. When he was sued for the balance he raised the bar of section 69(1). Their Lordships having tome to the conclusion that the settlement of accounts between the partners of a dissolved partnership accompanied by a promise to pay the amount found due affords a fresh cause of action on which a suit could be based, observed that S.69(1) had no application to such a suit. The suit was not one by or on behalf of any person suing as a partner in a firm but one by a person entitled to recover an amount on the basis of a settled account. As such it was not governed by section 69(1). The terms of the partnership no longer entered into the consideration in such suit and the fact that the partnership was an registered (unregistered?) firm had no bearing on the suit as laid. - ILR (1940) Nag 130 was distinguished by them as being a suit brought on the basis of the partnership transaction and not based on a subsequent or different cause of action arising after the dissolution. Their Lordships referred with approval and followed - Abdul Subhan v. Abdul Ravoof, AIR 1942 Mad 707, where it has been laid down that section 69 has to be strictly construed and that the bar of that section does not extend to suits for recovery of money due on a contract entered into after dissolution and the taking of accounts, - AIR 1937 Bom 225 and - Appaya Nijlingappa v. Subrao Babaji, AIR 1938 Bom 108 have also been distinguished in - AIR 1942 Mad 707 which last case is strongly relied on by the appellant. That was a suit for money agreed to be paid by one partner to another under an agreement entered into between the partners after the dissolution or at the time of the dissolution under which some definite amount was payable by one partner to another.

8. I think the present is an even stronger case than that of the plaintiff in - Abdul Subhan v. Abdul Ravoof, AIR 1942 Mad 707 and - Bajranglal Maniram v. Anandilal Ramchandra, AIR 1944 Nag 124. Here both the partners had taken a car on pledge, the plaintiff advancing Rs.3000/- and the defendant Rs.5500/-. They apparently continued to be co-owners of the taxi to the extent of the amounts advanced by each. When one of them recovered from the pawnor the full amount for which it had been pledged, he could only hold the plaintiffs share of it for and on his behalf and was bound to pay him the amount which belonged to him. It is not even the case for the defendant that the car or its proceeds were part of the capital of a partnership. I think therefore there is no substance in the contention either that the suit is not maintainable in the form in which it is brought that S.69(1) of the Indian Partnership Act is a bar to it.

9. In the result, this appeal is allowed, the judgment and decree of the learned District Judge are set aside and those of the learned Munsiff restored with costs throughout. Appeal allowed. AIR 1953 MYSORE 6 "Doddamadiah v. Mallappa" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND PUTTARAJ URS, JJ. ( Division Bench ) Doddamadiah and others, Defendants-Appellants v. Mallappa, Plaintiff-Respondent. Second Appeal No.242 of 1947-48, D/- 8 -7 -1949. Evidence Act (1 of 1872), S.92 - SALE DEED - DEED - Registered sale deed - Subsequent unregistered deed of cancellation. Where a sale deed is registered and on the date it was executed money was paid by the purchaser and was received by the seller and it was the intention of the parties that it should be an effective transaction, a subsequent unregistered document cancelling the sale cannot prevail over the sale deed. The mere fact that the seller mentioned to the Sub-Registrar that the money had been received back by the purchaser and the latter had agreed not to present the sale deed for registration cannot take away the legal effect of the sale deed. S.92 forbids evidence of the unregistered document of cancellation to overcome the registered sale deed. Case Law discussed. (Para 2) Anno : Evidence Act, S.92 N.29. Cases Referred : Chronological Paras (77-78) 2 Bom 547 2 (12) 15 Ind Cas 326 (Mad) 2

29 Mvs CCR 332 2

8 Mys LJ 225 2 Sri Malur Subba Rao, for Appellants; T. Rangaswamy Iyengar and B.V. Balaji, for Respondent. Judgement RAMAIYA, J. :- This is an appeal by the defendants in a suit for possession of a house conveyed by them under a registered sale deed to the plaintiff. Out of the consideration of Rs.800/-mentioned in the sale deed Rs.400/- was paid on the date of the document. Towards the balance of Rs.400/- Rs.185/-was payable at the time of registration and Rs.215/- had to be paid to one Nanjundaradhya a prior mortgagee of the property. Exhibit E is the sale deed dated 19-2-1944 and Exhibit E(1) is the consideration receipt for payment of Rs.400/- executed by the defendants on the same day. Possession of the property was not delivered to the plaintiff and one of the terms of the sale deed is that the defendants could remain in possession of the same for 3 months within which they had to construct a new residence. The defendants while admitting the execution of the sale deed and the consideration receipt pleaded that the sale was cancelled by means of the document, Exhibit I, dated 8/5/1944 wherein the plaintiff admitted repayment of Rs.400/- paid by him on the date of sale and that the sale was cancelled. He also promised not to present the sale deed for registration. Exhibit II is the receipt for repayment of Rs.400/-. In spite of the agreement contained in Exhibit I, the sale deed was presented for registration by the plaintiff on 22/6/1944 and in spite of the defendants statements before the Sub-Registrar that the plaintiff had agreed not to get the document registered after taking back Rs.400/- from them, the document was registered on 22/11/1944. The suit from which this appeal arises was filed on 12-2-1945. The learned Munsiff dismissed the suit upholding the defendants plea; but on appeal the learned Additional Subordinate Judge reversed this decision and granted a decree to the plaintiff.

2. Although the plaintiff in the pleadings totally denied having executed Exhibits I and II and having received Rs.400/- from the defendants, the finding of the learned Munsiff that these documents are genuine has to be preferred to that of the learned Subordinate Judge taking a contrary view. In the first place the observation of the learned Subordinate Judge that although the thumb impression contained in Exhibit I is that of the plaintiff, as spoken to by the Finger Print Expert and the witnesses, it was fixed to a blank paper later on filled up by the defendants is not warranted by the evidence on record. In the second place, no such plea was raised at all in the pleadings or suggested in the course of the trial. On the other hand, the question put at the end of the examination of D.W.2 as to whether it was not so obtained implies that the plaintiff must have executed it. The evidence of D.Ws.2 and 3 is not shown to be untrustworthy. The illness of the plaintiff which necessitated his being an in-patient in the hospital a few days after the execution of Exhibit I does not render his having executed Exhibits I and n impossible on the date these bear. We are, therefore, of opinion that Exhibits I and II are genuine and the plaintiff must have received Rs.400/-. This is not, however, sufficient to help the defendants to successfully resist the claim. Exhibit E is a registered document and it is common ground that on the date it was executed money was paid by the plaintiff and was received by the defendants and that the intention of the parties was that it should be an effective transaction. It is only on a subsequent date that an arrangement was entered into to cancel the sale. Unfortunately the terms agreed upon for cancellation as set forth in Exhibit E (Sic) cannot prevail over the sale deed for the reason that while the sale deed is registered, Exhibits I and II were unregistered. The mere fact that the defendants mentioned to the Sub-Registrar that the money had been received and the plaintiff had agreed not to present the document for registration cannot take away the legal effect of Exhibit E. It is curious that even after the defendants became aware of the plaintiff having player false in seeking registration of the sale deed, they did not choose to present Exhibit I for registration likewise. Section 92 of the Evidence Act forbids evidence such as Exhibit I to overcome a registered document such as Exhibit E. In - Umedlal Motiram v. Davu, 2 Bombay 547 a sale deed was executed for conveyance of a house and no money was paid and possession was not delivered to the purchaser. Shortly after the conveyance had been registered the purchaser made an endorsement thereon to the effect that he was unable to pay the purchase-money and returned it. Meanwhile a third person obtained a decree against the purchaser and himself purchased it in a Court sale. The question was whether the sale was cancelled and the purchaser in the Court sale has really a right in the property. The learned Judges observed:- "The deed of conveyance purports to make an immediate transfer of the ownership of the house, in consideration of value already received. It is not an agreement to convey, but a conveyance; and it is not open to the party who executed it to show that it was intended to be something quite different and the document had been executed, delivered, and duly registered, it operated as a conveyance, and the purchaser became the owner of the house. It is not pretended that he ever re-conveyed the house to the vendor. What is alleged, would, if proved, amount to an agreement to rescind the purchase; but the evidence offered to establish such agreement is not admissible. The endorsement made on the sale deed when it was returned cannot affect the property, because it is not registered, and as the sale deed has been registered no oral agreement to rescind it can be proved (Indian Evidence Act, Section 92, proviso (4)." These observations may be applied to the facts of the present case. In - Pichammal v. Ponnambala Bhotter, 15 Ind Cas 326 (Mad) the question was whether in a suit for possession of property on the basis of a sale deed, the defendants plea of an oral agreement whereby plaintiff had agreed to return the sale deed to the defendant and to relinquish his claim to the property could be countenanced. It was held that the evidence of the oral agreement was inadmissible under Section 92 of the Evidence Act and no question of estoppel arises in the case. At page 282 of the same volume there is another ease in which also it was held that oral evidence to prove that parties to a sale deed which was duly executed and registered, subsequently rescinded it by mutual consent, is inadmissible under Section 92 of the Evidence Act. 29 Mys CCR 332, is an authority for the view that where the original lease is in writing and registered, it is not open to parties to prove by oral evidence that that lease was surrendered under a later agreement and that oral evidence as to the surrender is inadmissible under the proviso 4 to Section 92 of the Evidence Act 8 Mys LJ 225 relied upon by the counsel for the appellants is distinguishable as it was held in that case that the sale deed was inoperative from the very inception and intended not to be effective. The conduct of the parties and the evidence in file present case go to show that the sale was effective at the beginning and intended to be such but by reason of a subsequent understanding it was sought to be cancelled. Such a plea is hit by the provisions of Section 92 of the Evidence Act and not saved by any of the explanations to it.

3. The conclusion reached by the learned Subordinate Judge in the case is, therefore, correct though we are not in agreement with him with all the reasons assigned by him therefor. It is open to the appellants to seek relief by taking such steps as are available under the law. The appeal is therefore dismissed. Having regard to the conduct of the plaintiff and the circumstances of the case we direct that the parties do bear their own costs throughout. Appeal dismissed. AIR 1953 MYSORE 8 "Gopalakrishnan v. Raja Iyengar" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND BALAKRISHNAIYA, J. ( Division Bench ) J. T. Gopalakrishnan, Petitioner v. H. S. Raja Iyengar and others. Respondents. Civil Petn. No.34 of 1950-51, D/- 29 -8 -1952. Constitution of India, Art.226 - WRITS - Wrong decision - Interference. The issue of a Writ of certiorari is entirely a discretionary matter. It is used only in cases where it is shown that there has been a failure to exercise jurisdiction vested in a tribunal or an illegal assumption of the jurisdiction not vested in it. The High Court is not sitting as a Court of Appeal against the order of the lower tribunals to test the legality thereof with a view to reach a different conclusion. An error of law does not constitute an error of jurisdiction and a wrong decision on facts or law cannot be questioned by way of a writ of Certiorari. (The decisions of the Labour Commissioner in Mysore on appeal from the order of the House Rent Controller and of the Government on revision from the order of the Labour Commissioner though erroneous held could not be interfered with by way of writ of Certiorari). Case law discussed. (Paras 8, 11) Cases Referred : Chronological Paras (50) AIR 1950 SC 222 : (1950 SCR 621) 11 (51) AIR 1951 SC 115 : (30 Pat 329 SC) 8 (52) 1952 Mad WN 502 : (AIR 1952 SC 319) 8 (52) 1952-7 DLR (SC) 220 : (AIR 1952 SC 192) 10 (52) AIR 1952 SC 179 : (1952 SCR 275) 8 (46) 48 Bom LR 691 : (AIR 1947 Bom 108) 11 (50) AIR 1950 Hyd 59 : (ILR (1951) Hyd 112) 4 (49) ILR (1949) Mad 657 : (AIR 1949 Mad 535) 4 (50) AIR 1950 Mad 56 : (1949-2 Mad LJ 138) 4 (50) C. Ps. Nos.17, 90 and 91 of 1950-51 : (AIR 1951 Mys 66) 11 (1879) 4 AC 30 : (48 LJ QB 65) 4 (1922) 2 AC 128 : (91 LJ PC 146) 8 (1950) 1 All ER 946 : (1950-2 KB 410) 10 (1874) LR 5 PC 417 : (43 LJ PC 39) 8 K. Raja Iyer and V. Narasimhiah, for Petitioner; O.S.N. Sheriff (for No.1), Advocate General (for Nos.2 and 3), for Respondents. Judgement BALAKRISHNAYYA, J. :- This is a petition filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorari calling for the records relating to the House Rent Control Appeal No.62 of 48-49 and House Rent Control Revision Petition No.99 of 49-50 and for quashing the orders passed thereon.

2. The facts leading to the case are as under: The petitioner purchased a house in Bangalore on 14-11-1947 from its previous owners, under whom the first respondent was a tenant for a number of years. He issued a notice on 18-12-1947 terminating the tenancy from 1-2-1948. Another notice was also issued on 1-4-1948 terminating the tenancy from 1-5-48 and claiming possession of the house for his bona fide occupation. In the first of these notices the petitioner alleged that lie purchased the house for his bona fide occupation as he found it difficult to carry on his business and activities in public life from Robertsonpet, K.G.F. and also because some of the members of his family had been latterly falling frequently ill with the result that they had to undergo treatment in Bangalore continuously. In reply, the first respondent challenged the bona fides of the petitioner in demanding possession of the house and pleaded that he has been in occupation of the house ever since 1936, using it for residence and a lawyers office and that as he is unable to find any other suitable accommodation for carrying on his profession he is unable to vacate the premises. Thereupon, the petitioner filed a case before the House Rent Controller under Section 8 of the Mysore House Rent Control Order of 1948. On the pleadings and the evidence of the petitioner who was the only witness examined in the ease, the House Rent Controller held that the house was needed for the bona fide occupation of the petitioner and allowed the petition directing the first respondent to quit and deliver possession of the premises to the petitioner. Thereupon the first respondent filed an appeal before the Commissioner of Labour in Mysore, who however, came to the conclusion that the reasons set forth by the petitioner were not convincing and in reversal of the order of the House Rent Controller, held that the petitioner had not made out a case for eviction under section 9(3)(a) of the said Control Order. The petitioner then availed himself of the remedy under Section 14(5) of the said Control Order by filing a revision petition before the Government who confirmed the order of the Labour Commissioner in the following terms: "The petitioner has extensive business in K.G.F. and it is most unlikely that he will stay in Bangalore needing a house therefore Government agree that landlord cannot evict a tenant to accommodate a brother unless they are members of a joint family. In this case, the notice dated 18-12-1917 makes no mention of any joint family and it appears from it that the petitioner is tie exclusive owner of the property. The mention of the joint family in the application appears to be an after-thought. There is no reason shown why the son who is in the hostel should be disturbed therefrom to the prejudice of the tenant. The reasons for possession do not constitute bona fide grounds justifying an order of eviction."

3. Respondent 2 is the Labour Commissioner and respondent 3 is the Government of Mysore State. One of the grounds taken by the petitioner is that under Article 19(1)(f) of the Constitution of India, the Petitioner is entitled to hold and dispose of the property as he likes, Sri Rajah Iyer, the learned Counsel for the petitioner, touched this aspect rather faintly but abandoned the contention during the course of the arguments.

4. The main ground urged on behalf of the petitioner is that the orders under consideration are in the nature of "Speaking Orders", an expression used by Karl Cairus, L.C. in - Overseer of the Poor of Walsall v. L, and N.W. Rly. Co., (1879) 4 AC 30. What exactly is meant by the expression "Speaking Orders" is explained by His Lordship thus : "If the Court of Quarter Sessions stated upon the face of the order by way of recital that the facts were so and so and the grounds of its decesion were such as were so stated then the order becomes on The face of it a speaking order and if that which was stated upon the face of the order, in the opinion of any party was not such as to warrant the order, then that party might go to the Court of the Queens Bench and point to the order as one which told its own story and ask the Court of Queens Bench to remove it by Certiorari." Sri Rajah Iyer contended that the orders in question are in the nature of "speaking orders" and the reasons set forth for arriving at the conclusion that the petitioners had not made out a bona fide case justifying an order of eviction are upon their very face untenable and amount to failure in the exercise of jurisdiction. The learned Advocate referred to the English Law quoted by Prem in his book, Law of Habeas Corpus at pages 336 to 341 and the conclusions stated therein may be summarised as follows. A writ of Certiorari will lie against a decision, ruling or order which materially affects the right of the applicant and is due to a wrong decision with regard to a collateral fact or an erroneous decision without any competent evidence to support it or a wrong interpretation of law or failure to follow or apply law. He next cited the decisions in - Krishnaswamy Ayyar v. Mohanlal Binjani, ILR (1949) Mad 657 and - Anand Krishna Chetty v. Messrs. M.K. and Co., AIR 1950 Mad 56 where it is held that errors on the face of the record are open to correction under the extraordinary jurisdiction by the issue of appropriate Writs. In - ILR (1949) Mad 657 it was held that- "Errors on the face of the proceedings are always treated as errors of jurisdiction for the purpose of quashing by issuing a Writ of Certiorari." The error on the face of the record found by the High Court in the above case was that a tender of rent held to be invalid by the lower Court was found to be valid in the opinion of the High Court. In - AIR 1950 Mad 56 the opinion of the Court below that the mere fact that the applicant was carrying on business in a residential building was sufficient to prevent him from obtaining possession of a non-residential building of his own for carrying on his business and was held to be a substantial error on the face of the record demanding an interference by a Writ. In a recent case (copy of which was produced) the same High Court following the decision of - ILR (1949) Mad 657 held that- "A Writ of Certiorari will issue when on the face of the proceedings, it is clear that the determination of the inferior court is wrong in law". The other case that was brought to the notice of the Court is - Secundarabad Commercial Banking Co. v. Inder Mai, AIR 1950 Hyd 59 which holds that- "Where the decision of the appellate authority under the Hyderabad Rent Control Order about the application of doctrine of res judicata is incorrect, then the High Court can in exercise of its extraordinary jurisdiction quash the decision on the ground that he has failed to exercise jurisdiction vested in him". A Writ of Certiorari should be issued only when the tribunal is known to have acted without jurisdiction or in excess of it.

5. The term want of jurisdiction to issue a Writ of Certiorari, it is argued, in the light of the decisions cited above, has a more extended meaning than what is generally assumed. This is a proposition of law with which we are not inclined to agree. As incorrect finding of fact, or an untenable inference on facts nor even an erroneous interpretation of law, do not, in our opinion affect the jurisdiction of the tribunal, so as to call for interference with the exercise of high prerogative Writ in the nature of Certiorari.

6. In this case, the question for consideration before the tribunals was whether the requirements under Section 9(3)(a) of the Mysore House Rent Control Act of 1948 had been complied with in order to enable the petitioner-landlord to get possession of his-house. The relevant portion of the section of the said Act runs thus - "If the house being a residential building is-required for the bona fide occupation of the landlord and he is not already occupying another residential building of his own in the same city, town or other area........." The explanation under the Sub-section reads as follows : "For purposes of this sub-clause the expression landlord shall not include a rent farmer, or rent collector or estate manager or other agent but includes the wife and children of the landlord." Under section 9(3)(a) of the said Act, it is argued that the petitioner had only to establish his bona fides for the occupation of his. house, that the House Rent Controller had rightly found that the bona fides had been established, but that the Labour Commissioner and the Revisional Authority viz., the Government, in coming to a different conclusion from that of the Controller, were influenced by irrelevant and extraneous considerations not at all warranted by the Rent Control Act and that the said determination by both the latter tribunals is not merely wrong in law on the face of it but tantamounts to a defect in the exercise of jurisdiction so as to attract the provision of Article 226 of the Constitution of India to issue a Writ for quashing the proceedings.

7. It was further contended by the learned Advocate for the petitioner that in view of the presumption of Hindu Law being in favour of the petitioner, in that the members of the family were all members of a Hindu joint family, for whose occupation the premises might be necessary, the petitioner had amply established the bona fides for the occupation of the house by his family members. The decision of the Labour Commissioner that :- "These reasons are not imperative as to order eviction of the present tenant living for a long time" and the Govt. holding that - "The reasons for possession do not constitute bona fide grounds justifying an order of eviction" are clearly decisions influenced by extraneous considerations liable to be quashed. The finding in this case as to the jointness of the family of the petitioner was not gone into on the ground that it was an after-thought. It is not a pure question of law but a mixed question of law and fact. It was open to the Petitioner to have urged that aspect at an early stage and on his failure to do so, the tribunals were within their just limits in drawing an adverse inference.

8. A Writ of Certiorari is a high prerogative Writ issued by a superior Court in respect of the exercise of judicial or quasi judicial functions by another authority, when the contention is that the exercising authority had no jurisdiction or exceeded jurisdiction. It cannot be denied that the tribunals concerned in this case had jurisdiction to deal with the matter. It is argued that the tribunals have acted arbitrarily and illegally in that they have failed to give a proper finding on facts and the circumstances of the case. This Court is not sitting as a Court of Appeal against the order of the tribunals to test the legality thereof with a view to reach a different conclusion. "If there "is any evidence the Court will not examine whether the right conclusion is drawn from it" (vide - R. v. Nat Bell Liquors Ltd., (1922) 2 AC 128 (PC). It is a well established principle of law that a Writ of Certiorari will not lie where the order or decision of a tribunal or authority is wrong in matter of fact or on merits. Thus in a very recent case - Parry and Co. Ltd. v. Commercial Employees Association, AIR 1952 SC 179 the Supreme Court of India held "No certiorari is available to quash a decision passed with jurisdiction by an inferior tribunal on the mere ground that such a decision is erroneous. The High Court cannot, under Article 226 of the Constitution exercise powers of an appellate Court and correct what it considers to be an error in the decision of the inferior tribunal". In another case the same Court held "A certiorari cannot be granted to quash the decision of the appellate tribunal on these points on the ground that the decision is wrong" - Ebrahim Aboobakar v. The Custodian General of Evacuee Property, 1952 Mad WN 502 (SC). It is therefore clear that in all findings on matters of fact and interpretation of law except in cases of defective jurisdiction the decision of the tribunal must be deemed to be final. The position is authoritatively summed up in Halsburys Laws of England Vol.IX in para 1492 where it is laid down thus: "Where proceedings are regular upon their face and the Magistrate had jurisdiction, the superior Court will not grant the Writ of Certiorari on the ground that the court below has misconceived a point of law. When the Court below has jurisdiction to try a matter it cannot be deemed to exceed or abuse its jurisdiction merely because it incidentally misconceives a statute or admits illegal evidence or convicts without evidence. No Writ will be granted on the ground that the decision is wrong in matters of fact and the Court will not hear evidence impeaching the decision on facts." Similarly in the case reported in - Colonial Bank of Australasia v. Willan, (1874) LR 5 PC 417, it is observed by their Lordships thus: "The question is whether the inferior court has jurisdiction to enter upon the enquiry and not whether there has been miscarriage of the procedure in the course of enquiry." At page 443 of the same case, the learned Judges observed- "An adjudication by a Judge having jurisdiction over the subject-matter is, if no defect appears on the face of it, to be taken as conclusive of facts stated therein." The case in (1874) LR 5 PC 417 has been approvingly cited by Fazl Ali, J. who held - Brij Raj Krishna v. S.K. Shaw and Brothers, AIR 1951 SC 115 that an error of law does not constitute an error of jurisdiction and that a wrong decision on facts or law cannot be questioned in a civil Court.

9. The learned Advocate-General for the respondents argued that the facts of the present case that fell for decision before the tribunals related to the needs of the petitioner who was admittedly a businessman at Robertsonpet. K.G.F. whose stay even on business and other activities would necessarily be short as rightly held by the tribunals that the needs of the son and the brother studying in the colleges, who were found to have been lodged in hostels and the need of another brother in Government service who was subsequently transferred to Bangalore did not deserve consideration as the question of their being members of a joint family was raised subsequently and considered to be an after-thought. These, it was urged, were all questions of fact which the tribunals were competent to enquire into and the tribunals did not believe in the bona fides of the grounds and their findings could not be impugned in a collateral action even though such findings are deemed to be erroneous upon the face. It is further contended that such findings are only examinable in a direct proceeding as by way of an appeal or other proceedings in the nature of an appeal and where such remedies are exhausted or where there is no further remedy of that kind, the findings are concluded; and that in coming to the decision in this case, the tribunals concerned followed the well recognised principles of approach and so long as their determination of the question was well within the ambit of the particular provision of law which conferred that power upon them, their decision whether right or wrong cannot be called in question in a collateral action before this Court.

10. The jurisdiction exercised by this Court in the matter of issuing writs is limited to cases where the authority whose action is questioned has acted without jurisdiction or in excess of jurisdiction. Sri Rajah Iyer has not been able to show that the tribunals concerned had no jurisdiction to enquire into the case; nor is it his case that the procedure or formalities required under the provisions had been violated. It being open to the tribunals to come to one or the other conclusion on the materials before them, it cannot by any means be said that the decisions are incorrect so as to attract the extraordinary jurisdiction for interference by a Writ of Certiorari. In a recent case before the Kings Bench Division in - R v. Brighton and Area Tribunal, (1950) 1 All ER 948, Lord Goddard, C.J. observed that: "As the tribunal had observed all the formalities of the Act, had offended against none of its provisions or against the regulations made under it, there was no ground for holding that the tribunals determination was not in accordance with law and therefore the motions for Certiorari and Mandamus should be refused". The purpose of Certiorari, as we understand, is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non-exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law committed by them in the exercise of powers vested in them under the statute. The accepted rule is that where a Court has jurisdiction it has a right to decide every question which crops up in the case and whether its decision is correct or otherwise, it is bound to stand until reversed by a competent Court. In a very recent case the Supreme Court of India - Veerappa Pillai v. Messrs Raman and Raman Ltd., 1952-7 DLR (SC) 220 observed "such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases, when the subordinate tribunals or bodies or officers act wholly without jurisdiction or in excess of it or in violation of natural justice or refuse to exercise jurisdiction vested in them or there is an error on the face of the record and such act, omission, error or excess has resulted in manifest injustice. However expensive the jurisdiction may be, it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide "what is the proper view to be taken or otherwise to be made." This, it is submitted with very great respect, represents the correct position of the law upon the point.

11. It is thus clear that the issue of a Writ is entirely a discretionary matter. It is used only in cases where it is shown that there has been a failure to exercise jurisdiction vested in a tribunal or an illegal assumption of the jurisdiction not vested in it (Vide also-Globe Theatres Ltd. v. Chief Judge of Small Cause Court, 48 Bom LR 691 and - Province of Bombay v. Khushaldas S.Advani, AIR 1950 SC 222.) These principles have been consistently followed by this court. (- Ratilal Bros, v. Government of Mysore), C. Ps. Nos.17, 90 and 91 of 1950-51. As both the Labour Commissioner and the Government have found on facts that the claim of the land-lord petitioner to occupy the premises under consideration was not bona fide I am of opinion that no interference is called for with those findings as in the circumstances of the case, they appear to be not unjustified.

12. The petition fails and is dismissed parties bearing their own costs.

13. In concluding this order, I cannot help remarking that the decision of the Government based as it is on rather insufficient evidence, is erroneous. Had the question come up in appeal it would very probably, and very properly too, been subjected to serious criticism; but, in these proceedings for a Writ, which is an extraordinary remedy, it can neither be set aside, nor could any discussion on its merits be entered into.

14. MEDAPA, C. J. :- The facts leading up to this petition are stated succinctly by my learned brother in the order which I have had the advantage of perusing and which he is about to pronounce. I am in agreement with him in his conclusion that on a consideration of all the relevant facts and circumstances of the case there are not sufficient grounds for the issue of a writ of certiorari. The reasons for reversing the order of the learned House Rent Controller are set out in the orders of both the Labour Commissioner and the Government though it must be said - to put it mildly - rather cursorily. It is contended that the findings and the reasons in support of the findings given by the learned Labour Commissioner and concurred in by the Government are very much strained. This contention appears to be largely well-founded. The observation that because the petitioner has extensive business in K.G.F. he has no need to keep a house in Bangalore is neither convincing nor satisfactory, the more so because the petitioner had admittedly to come to Bangalore off and on for the purpose at his business. The petitioner is a member of the local Legislature and in that capacity has necessarily to stay in Bangalore for quite some time in a year if he has to discharge his duties as a representative of the people properly and satisfactorily. The other observation that the petitioner - a Hindu - apart from his statement has not let in independent evidence to prove that he is joint with the members of his family and the further observation that his submission that he is a member of the joint family is an afterthought cannot be said to be in consonance with the well-known and well-accepted presumptions of Hindu Law in such matters.

15. The petitioner has paid a sum of Rs.42,060/- for the house in the year 1948 but has been successfully kept out of the same till now by a tenant who, if the sale price for the house is taken into consideration, must be held to be paying only a nominal rent. The petitioners son is a student studying inline of the colleges in Bangalore and his brother is an officer of the Government with his headquarters in Bangalore and both of them have to shift for themselves somehow for a residence, though they are joint owners entitled to be in joint possession of the bungalow in Bangalore. These are hard facts and go a long way to justify the contention of the petitioner that he has been subjected to a raw deal in the matter of securing possession of the house which he purchased for his own occupation and that of the members of his family.

16. The question however remains whether these circumstances will justify the issue of a writ of certiorari. It must be remembered that this Court, in hearing this petition, is not sitting as an appellate or a revision Court to interfere and correct errors of judgment, particularly on questions like the bona fides of a petition. The orders of the Government and the learned Labour Commissioner as already pointed out, contain in them the reasons for the conclusions embodied in them. The findings regarding the bona fides of the petitioner arrived at by the learned Labour Commissioner and the Government are for the reasons already stated, manifestly wrong and orders based on wrong findings must necessarily be erroneous but even so it cannot be said that either the Government or the learned Labour Commissioner acted without jurisdiction or beyond their jurisdiction. It is well settled that the issue of a writ of certiorari is not only discretionary but exceptional and, what is more, should be resorted to only when the person aggrieved has no other remedy available or open to him. The Government has, since the date of the petition, invested the High Court with powers of revision over the orders of the Rent Controllers and all matters arising out of the Rent Control Act are now entrusted to, and performed by, Judicial Officers. The petitioner can in this new set up approach the Rent Controller for redress according to law and it cannot therefore be said that he has no other remedy.

17. For the foregoing reasons, this petition Is dismissed. Having regard to the circumstances of the case already mentioned, there will be no order as to costs. Petition dismissed. AIR 1953 MYSORE 12 "K. Kariappa v. Govt. of Mysore" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) K. Kariappa, Accused-Petitioner v. Govt. of Mysore. Criminal Revn. Petns. Nos.139 and 140 of 1951-52, D/- 1 -8 -1952. Mysore Sales Tax Act (46 of 1948), S.22 - SALES TAX - Sales Tax - Tax levied on commodity exempted - Assessment not under Act - Validity can be challenged. It is only an assessment made under the provisions of the Sales Tax Act that is not liable to be questioned under S.22. However, if the assessment made or an order passed is ultra vires and is entirely outside the scope of the Sales Tax Act the assessment or an order made can be challenged in the ordinary courts civil or criminal, as it is an order made beyond the scope of the Sales Tax Act and not an order made under the Act which alone is contemplated u/s.22 of the Act. AIR 1951 Mys 70, Dis-ing; 52 Mys HCR 455; AIR 1925 Sind 130; AIR 1926 Bom 50 and AIR 1952 Trav-C 83 Rel. on. (Para 3) Thus, when a dealer is dealing in a commodity exempt from sales tax and is yet assessed to pay sales tax, the assessment is one not made under the Sales Tax Act. In such a case even if the assessee fails to question the assessment under the provisions contained in Ss.14 to 16, yet if prosecuted for failing to pay the sales tax he can successfully challenge the validity of the assessment. (Para 5) (Editorial Note: In support of his decision His Lordship, after citing a number of authorities, has proceeded to quote in Para 4 of his judgment a passage from the commentary on the Income Tax Act by A.C. Sampath Iyengar (3rd Edition) under S.67 of the Act. We would like to-point out that in the 4th Edition (1952), Vol.II, Para 1245, pages 1181-1182 Shri Sampath Iyengar has reconsidered his view in the light of - Raleigh Investment Co. Ltd. v. Governor-General in Council, AIR 1947 PC 78 and expressed his conclusion as follows : "The result, now, is that all objections to assessment however fundamentally erroneous or based upon an ultra vires provision of the Act, or raising the question of jurisdiction of the Income Tax Officer to assess, shall have to be raised before the appropriate authorities prescribed by the Act and be decided by them". Kanga and Palkhivala in their Income Tax Act, 2nd Edn., 1952, page 898, also opine that previous decisions require to be reconsidered in the light of the Privy Council decision). Cases Referred : Chronological Paras (25) 92 Ind Cas 351 : (AIR 1926 Bom 50) 3 (47) 52 Mys HCR 455 : (28 Mys LJ 36) 3 (51) AIR 1951 Mys 70 : (52 Cri LJ 825) 3 (24) 78 Ind Cas 940 : (AIR 1925 Sind 130) 2 (52) 1952 Ker LT 59 : (AIR 1952 Trav-C 83) 3 Syed Nazir Ahmed, for K.N. Srinivasan, for Petitioner; A.R. Somanatha Iyer, Advocate General, for the Govt. of Mysore. Judgement The petitioner in these two revision petitions is a dealer in fried-gram known as Hurigadale as has been mentioned in the charge sheet itself. He has been convicted in C.C.Nos.537 and 538 of 51-52 on the file of the City Magistrate, Mysore, for failure to pay sales tax for the years 48-49 and 49-50 within 21 days from the date of service of demand notice. It is contended that the petitioner did not file an appeal against the demand notice under Section 14 of the Sales Tax Act and that he did not take any steps to question his liability to pay the sales tax under sections 15 and 16 of that act

2. According to the prosecution, under Section 22 of the Act no assessment made under it shall be called in question in any court save as provided in Sections 14 to 16 of the Act. It has however to be noticed at this stage that Section 6 of the Act makes it clear that the Government may by notification in the official gazette make an exception, or reduction in rate in respect of any tax payable under the Act. It is not disputed that Hurigadale is exempted from the levy at sales tax. It is argued that this is however appoint which should have been taken up in an appeal against the order of the Sales Tax Officer and as the petitioner has failed to do so he is prevented by Section 22 of the Act from raising the question in a civil or criminal Court.

3. As observed in the case reported in - Rama Iyer v. Govt. of Mysore, AIR 1951 Mys 70 "the remedy allowed under S.20(b) for the enforcement of payment of assessed tax in a criminal court is of a summary nature. Where, therefore, it is proved to the satisfaction of the Court, that the assessee has become liable under the Act for payment, of sales tax, it is not the province of a criminal Court to enter into an enquiry about the correctness of the levy or the validity thereof" It was argued in that case for the assesses "that they are not liable to pay the tax by reason of the fact that the turnover does not exceed Rs.10,000/- per year and the Assessing Officer has to prove their liability without which the tax levied is invalid and illegal". Such an argument was rightly not accepted, if I may say so with respect. Whether the income exceeded Rs.10,000/- or not was a matter that the Sales Tax Officer had jurisdiction to decide and the correctness of his decision cannot be questioned in a civil or criminal Court. If however in that case the finding of the Sales Tax Officer was that the turnover was less than Bs. 10,000/-, the result might have been different, as an assessment could only be said to be one made under the Sales Tax Act. if the turnover exceeded Rs.10,066/-. It has to be remembered however that the Sales Tax Act is a special enactment in which there are provisions under which the Sales Tax Officer could ascertain whether the assessee is a person liable to pay tax, whether his turnover is Rs.10,000/- and whether he is dealing in a commodity which is not exempt from sales tax. If he makes a mistake in respect of these facts an appeal can be filed and if the appellant is not satisfied with the result of the appeal, he can file a revision petition against that decision under Section 15 of the Act. He can also have recourse to Section 16. But he cannot question the correctness of the finding in any civil or criminal Court as the order is passed under Sales Tax Act. This however does not mean that if, on the finding of the Sales Tax Officer, it cannot be said that the person is liable to pay sales tax or that the commodity with which he deals is liable for assessment under the Sales Tax Act or that he is a dealer within the meaning of the word as defined in the Sales Tax Act, it can be taken that any assessment has been made under the Sales Tax Act. It is only an assessment made under the provisions of the Sales Tax Act that is not liable to be questioned, under S.22 of that Act. If the assessment made or an order passed is ultra vires and is entirely outside the scope of the Sales Tax Act the assessment or an order made can be challenged in the ordinary courts civil or criminal, as it is an order made beyond the scope of the Sales Tax Act and not an order made under the Act which alone is contemplated under S.22 of that Act. As succinctly put in the notes on the Madras General Sales Tax Act on Section 16a) after the amendment of that Section; (By Sundara Vyas, Second Edition) "Both before and after amending the Act a challenge of the assessing authoritys act outside the Act is entertainable in the criminal Court. So if the action taken is ultra vires and is outside the purview of the Act the matter is open to challenge even in a criminal court both in regard to validity and liability as well. This is the law both before and after 1-1-1948. For instance, if an officer taxes something that is not taxable, the assessment is not one under the Act". Dealing with a similar provision Venkataramana Rao, C.J., observed in the case reported in - Gururajachar v. Rangiah, 52 Mys H.C.R.455 : "The House Rent Controller is a special tribunal created by the statute for a specific purpose. It can only act within the limits of the powers conferred by the statute. If the said limits are exceeded or are not conformed to, the decision of the tribunal is liable to be challenged by an action in a civil Court." There is hardly any doubt that the same principles apply to the special Tribunal created under the Sales Tax Act. So long as the decision is within the limits of the Act, it cannot be challenged in any civil or criminal Court. But for instance if the Sales Tax Officer assesses a person who, according to the Sales Tax Act is not a dealer as in the case of a Lawyer, it cannot be said that its validity or the liability under it cannot be questioned in any civil or criminal court. There are numerous decisions considering a similar provision under the Income Tax Act. As pointed out in a decision by Raymond A.J.C. and Kennedy, A.J.C, reported in - Dayaram Ramdas v. Secy of State, 78 Ind Cas 940 (Sind) : "Where an Income Tax Officer professes to tax income and income only, his order is one under the Income Tax Act, and if it is erroneous it is capable of rectification an appeal to the Commissioner. A civil court has no jurisdiction to question the propriety of such an order, as its jurisdiction is expressly barred under Section 52 of the Income Tax Act of 1918. It is only where an Income Tax Officer assesses something which is not income or levies the assessment on classes of income exempted by the Act, that he over-steps the limits of his jurisdiction and his assessment ceases to be under the Act within the meaning of S.52 of the Income Tax Act of 1918". Again as observed in - Haji Rehmatulla Haji Tarmahomed v. Secy of State, 92 Ind Cas 351 (Bom): "The provisions of S.39 of the Income-tax Act of 1836 do not operate to bar a suit in which it is claimed that an assessment is ultra vires". In the case reported in - Bombay Co. Ltd. v. State, 1952 Ker LT 59 it was found that a case had been made out for the issue of a writ of Certiorari for quashing the proceedings of the original and appellate tribunals which had sanctioned the levy of the sales tax on sales which are exempted from the levy of such a tax.

4. As already stated it could be easy to cite a number of authorities oh the point, but it would be sufficient for the purpose of the case to quote from the summary of decisions given in the commentary on Indian Income tax Act by A.C. Sampath Iyengar (3rd Edition) in dealing, with Section 67. "Next, the prohibition applies only when the assessment is one, made under this Act. No assessment can be said to be made under the Act if it is Ultra Vires or in excess of jurisdiction. A manifest defect of jurisdiction may be founded on the character and constitution of the assessing authority or on the nature of the subject matter of the enquiry, or on the absence of some preliminary proceeding necessary to give jurisdiction to the authority. Thus for instance, if an Income-Tax Officer ignoring the assessees objection to the place of assessment and without referring the objection to the proper authority should proceed to assess, his act would be in excess of jurisdiction and the assessment would be ultra vires. Likewise, if the income that is sought to be assessed is on the facts as found, not assessable to tax at all, there would be no jurisdiction to assess. Again, if without making any enquiry whatever, e.g. whether the assessee is a resident or not or whether the income is of an assessable nature or otherwise, the Income-tax Officer should proceed to assess, he would be assuming a jurisdiction which did not vest in him and his proceedings would be void. Where the defects in assessments are jurisdictional, the ordinary civil court would have jurisdiction to declare the assessment ultra vires and also to grant a refund. The above class of cases must foe distinguished from cases where an enquiry was made by the proper Income-tax Officer and he has arrived at a decision, though wrongly, giving himself jurisdiction to assess. Where the legislature sets up an authority or a tribunal to deal with certain limited matters it may do one of two things. It may say, in effect, that the Tribunal shall have jurisdiction to do certain things, if a certain state of facts exist and not otherwise. In such event, it is not for the Tribunal to conclusively decide whether that state of facts exists: and if it should exercise the jurisdiction without the existence of such facts, its decision might be questioned in a court of law. But the Legislature may do another thing. It may entrust the Tribunal with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists, as well as the jurisdiction to proceed further and do something more on finding such state of facts to exist. In this latter event, it is erroneous to say that the Tribunal cannot give itself jurisdiction by wrongly deciding the facts. The Legislature having given the Tribunal jurisdiction to determine all the facts, including the preliminary facts, its decision cannot be challenged. It is all one jurisdiction, a comprehensive one and not a double jurisdiction. Thus, if an Income tax authority should hold that the executor of an estate is chargeable and that he is the person to whom the income accrued, or that a certain income was received in British India, though wrongly, or should assess the income without allowing any deduction justly allowable in respect of land revenue paid on the estate or hold that the income of the assessee was not below the taxable limit, or that there was no trading loss in a business, or that the assessee was a resident in British India in the year it would have jurisdiction to so decide and its decision, though erroneous, cannot be assailed in a court of Law. The right to challenge in a court of law arises only where the Income-tax authority has no jurisdiction to assess on the undisputed facts, or on the facts as found by it or as assumed by it to exist. That is to say, if on certain facts the authority should hold it has jurisdiction in law and if that View of the law should be erroneous, the civil court would be entitled to interfere and not otherwise. The distinction, in other words is as between a jurisdiction arising on an erroneous decision of fact, as opposed to one usurped on an erroneous view of the law. In the former case, the jurisdiction of the Income-tax Officer cannot be attacked, since he is given jurisdiction to decide it, rightly or wrongly; in the latter case it can be on the ground that the assessment is not one made under the Act.

5. In this case the sales tax has been levied though on facts found by the Sales Tax Officer the petitioner is dealing in a commodity exempt from sales tax. It cannot, therefore, be said that the assessment is one made under the Sales Tax Act. The petitioner was not liable to pay sales tax levied either for the year 1948-49 or for the year 49-50. The revision petitions are allowed. The petitioner is acquitted of the offence of which he stands convicted. The convictions and sentences are set aside. Pine if levied will be refunded. Conviction quashed. AIR 1953 MYSORE 14 "Gurappa v. Govt. of Mysore" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Gurappa and others, Accused-Petitioners v. Government of Mysore, Complainant-Opposite Party. Criminal Revn. Petn. No.200/1951-52, D/- 1 -8 -1952. (A) Mysore Police Act (5 of 1908), S.63 - POLICE OFFICERS - SEARCH AND SEIZURE - GAMBLING - Large number of persons found playing cards late at night in a house with all its doors closed - Search taking place in pursuance of a warrant issued, u/S.38 - Playing cards and a large sum of money lying on Akhada recovered by police - Held that in the circumstances a natural presumption arose that the accused were engaged in playing a game of chance irrespective of whether the warrant was in accordance with law or not. Public Gambling Act (3 of 1867), S.6. (Para 3) Anno : Public Gambling Act, S.6 N.1. (B) Mysore Police Act (5 of 1908), S.4(b), S.38 and S.63 - POLICE OFFICERS - WARRANT - GAMBLING - Warrant signed by Assistant Superintendent of Police - Validity. Public Gambling Act (3 of 1867), S.5 and S.6. Under S.4(b), Mysore Police Act, an Assistant Superintendent of Police or any other person cannot be deemed to be a District Superintendent of Police for the purpose of the Mysore Police Act unless he is appointed by a general or special order of Government to perform all or any of the duties of a District Superintendent of Police under the Act in any District or part of a District. Rule 60 of the Mysore Police Manual makes it clear that the duties of the Assistant Superintendent in eharge of a sub-division are, within the sub-division, the same as those of the Superintendent. Hence even though the search warrant is signed by an Assistant Superintendent of Police, it must be deemed that he is a District Superintendent of Police for the purpose of Ss.38 and 63 of the Mysore Police Act. (Para 5) Anno : Public Gambling Act, S.5 N.2. (C) Mysore Police Act (5 of 1908), S.63, Expln.3 - POLICE OFFICERS - GAMBLING - Gaming and Playing - Distinction - Accused found in common gaming house during playing - Presumption. Public Gambling Act (3 of 1867), S.6. It is incorrect to say that the presumption under Expl.3 to S.63 does not arise until it is proved that the persons were playing a game of chance. The very fact that while in the earlier portion of explanation (3) both the words gaming and playing are used, only the word gaming is used at the end, makes it clear that a distinction is intended to be made between gaming and playing. The former refers to the case of a person found during any-gaming or playing. Gaming is clearly meant to connote a game of chance, white playing is used in a general sense, Hence even if the accused were found in the gaming house during playing, the presumption is, until the contrary is proved, that they were there for the purpose of gaming. (Para 6) Anno : Public Gambling Act, S.6 N.1. Cases Referred : Chronological Paras

2 Mys CCR 175 4, 6 (31) 10 Mys LJ 99 4 A. Shamanna, for Petitioners; A.R. Somanatha Iyer, Advocate General, for the State. Judgement All the petitioners in this have been convicted of an offfence under Section 63 (4) Mysore Police Act, and sentenced to pay a fine of Rs.160/- each, and in default to undergo simple imprisonment for one month. A-10 has, in addition, been convicted of an offence under Section 63(3) of the Mysore Police Act and sentenced to pay a similar amount of fine.

2. The prosecution case is that the Police Inspector PW 1 got a search warrant, Ext.P-1, issued by the Assistant Superintendent of Police, Channapatna, as he had for some time past come to know that the house of A-10 was being used as a common gaming house. On the house being raided at 11-30 on the night of 15-6-1951, it was found that both the front and hind doors were bolted from inside, and the shuffling of the cards and the conversation showing that a game of chance was being played were heard. On entering the house it was found that the game was actually going on as some of the playing cards were in front of the players, a few with face downwards, and others thrown nearby. A sum of more than Rs.600/-was actually found in what is known as the Akhada, which means the place where money is placed as stake. The only witnesses examined in the case are the Police Inspector and the Sub-Inspector, and the other mahazar witnesses are not examined.

3. There is hardly any doubt that it is open to the Court to reject the prosecution evidence in cases where mahazar witnesses are not examined. But, in this case, apart from the presumptions which arise and would be considered later, there is hardly any doubt that the prosecution version as stated by P.Ws.1 and 2 is true. Even the version of the accused is that there was a raid, that some of them were playing cards and that the money seized was actually seized there. They would, however, have the Court believe that they had met there for purposes of a chit fund transaction and that since one of the members of the chit fund had not still come, some of them were playing cards. That way, the only difference between the two versions is that, while according to the prosecution case, they were engaged in playing a game of chance, according to the accused, it was only a game of skill they were playing. Whether what was going on was a game of chance or a game of skill depends not much on the evidence of the witnesses themselves but on the circumstances of the case which are not denied. A large number of persons from different localities had met late at night in a house which evidently had the reputation of being used as a common gaming honse, as is clear by the fact that the Police had obtained a search warrant. What was taking place in the house was being conducted with both the main and back doors of the house bolted from inside and a large sum of money was on the Akhada. What is the natural presumption that arises in cases of this kind, whether the search warrant obtained by the Police was one that is in accordance with the law or not? The only answer that can be given in circumstances such as those of this case is that it must be presumed from the above facts that the accused were engaged in something which was shady and considering that they were playing cards with a good deal of money, the natural inference would be that they were playing a game of chance.

4. It has to be stated that a presumption also arises in cases of this kind under Section 63 of the Mysore Mysore Police Act Explanations 1 and 3 thereunder run as follows : Explanation I: "Any cards, dice, gaming table or cloth, board-or other instruments of gaming found in any building, enclosure, room, place or vehicle entered or searched, under the provisions of section 38 or on any person found therein shall be evidence that the building, enclosure, room, place or vehicle is used as a common gaming-house," and that the persons found therein were there present for the purpose of gaming although no play was actually witnessed by a Police Officer of others." Explanation 3 : "Any person found in any common gaminghouse, during any gaming or playing therein, shall be presumed, until the contrary be proved, to have been there for the purpose of gaming." Explanation 1 shows that if any house is entered or searched under the provisions of section 38 and cards or other instruments of gaming are found in it, they shall be evidence that the building is used as a common gaming house and that the persons found there, were present for the purpose of gaming. It is stated in 2 Mys CCR 175 so far back as 1897, there being no decision to the contrary, that; "When cards, dice andc., are found in any house entered or searched under Section 5 of the Gaming Act, it is evidence until the contrary is made to appear, that the house is used as a common gaming house and that persons found therein are present for the purpose of gambling." It must, however, be remembered that this is not a case in which the warrant under which the house is entered or searched, is defective for one reason or the other, though as is clear from the decision in - "Sannappa v. Court of Mysore, 10 Mys LJ 99 : "... Where a warrant issued under section 38 of the Mysore Police Regulation is defective; the presumptions which the explanations to section 63 give rise to, do not arise and in that case in a prosecution for an offence under Section 63, the proseerton has to prove that there "was gaming in a place which was a common gaming house within the meaning of section 63 Cl.(2) of Mysore Police Regulation ......"

5. It is contended that in this ease the warrant has been signed not by a First Class Magistrate or a District Superintendent of Police but by an Assistant Superintendent of Police. But, it will be noted that according to the definition of Section 4 of the Mysore Police Act, "District Superintendent" includes any Assistant Superintendent or other person appointed by general or special order of the Government to perform all or any of the duties of a District Superintendent of Police under the Act in any District or part of a District. It is contended that the person referred to in the latter part of Clause (b) of Section 4 as one appointed by general or special order of the Government to perform all or any of the duties of a District Superintendent of Police, does not refer to "Assistant Superintendents of Police" but to other persons. It might have been possible to interpret the Section that way if there was a comma after the words Assistant Superintendent in that clause. Considering the wording of the Section, as it stands, it is clear that whether it is an Assistant Superintendent of Police or any other person, he cannot be deemed to be a District Superintendent of Police for the purpose of the Mysore Police Act unless he is appointed by a general or special order of Government to perform all or any of the duties of a District Superintendent of Police under the Act in any District or part of a District. It has, however, to be observed that Rule 60 of the Mysore Police Manual makes it clear that the duties of the Assistant Superintendent in charge of a sub-division are, within the sub-division, the same as those of the Superintendent. It is thus clear that even though the search warrant was signed by an Assistant Superintendent of Police, it must be deemed that he is a District Superintendent of Police for the purpose of Sections 38 and 63 of the Mysore Police Act.

6. In this case, apart from the natural presumptions that arise, considering the circumstances already stated, presumptions under Explanations to Section 63 arise. Cards were found in the house entered into under the provisions of section 38 and this must be taken as evidence, until the contrary is proved, that the house was used as a common gaming house and the persons found therein were present for the purpose of gambling as stated in - 2 Mys CCR 175, and it may be added that no satisfactory evidence has been adduced in this case to show the contrary. Explanation 3 to Section 63 already cited makes it clear that "Any person found in any common gaminghouse, during any gaming or playing therein, shall be presumed, until the contrary be proved, to have been there for the purpose of gaming." It was contended that the presumption under this section does not arise until it was proved that the persons were playing a game of chance. The point that has to be noticed is that while in the earlier portion of the Explanation (3) both the words gaming and playing are used, only the word gaming is used at the end. This makes it clear that a distinction is intended to be made between gaming and playing. The former refers to the case of a person found during any gaming or playing. Gaming is clearly meant to connote a game of chance, while playing is used in a general sense. It is admitted by the accused that they were "engaged in playing and the very fact that cards were found indicates that the play was going on. A large sum of money has been discovered on the "Akhada" indicating that it was used as stake money. At a late hour in the night the accused were playing with all the doors closed and bolted from inside. All this points to the conclusion that what was going on was gaming punishable under the Mysore Police Act. Even if, as admitted, the accused were found in the gaming house during playing, the presumption is, until the contrary is proved, that they were there for the purpose of gaming.

7. Considering all the circumstances of the case, there is more than sufficient material justifying the convictions of all the accused of the offences of which they stand convicted. The sentences are very light. This revision petition stands therefore dismissed. Revision dismissed. AIR 1953 MYSORE 16 "Govt. of Mysore v. Kapurchand and Bros." MYSORE HIGH COURT Coram : 1 VENKATA RAMAIYA, J. ( Single Bench ) Govt. of Mysore by the Chief Secretary and another, Defendants-Appellants v. Kapurchand and Bros., Plaintiff-Respondent. Second Appeal No.650 of 1948-49, D/- 30 -6 -1952. (A) Mysore Railways Act, S.59 - RAILWAY - Excepted goods - Articles of "Special nature" - Lohis commonly called "shaawls" priced low. Railways Act (9 of 1890), S.75 and Sch.2, Item (m). Mysore Railways Act, Sch., Item (m). What is called "shawl" in common parlance in a loose sense which is a coarse mixture of woollen and cotton, priced low to attract large sales, cannot be deemed to be article of "special value". For the purpose of the schedule "shawls" must be construed as having application to those "shawls" which are of superior quality, texture, colour and finish. It may appropriately refer to Kashmir Shawls or other fabric requiring more than ordinarily skill and cost. Lohis of very low value though described as "woollen" in the consignment note are not shawls in the sense in which that word is usea in item (m) of the schedule. Therefore, the non-declaration and non-insurance of consignment of "lohis" cannot save the Railway Company of its liability in respect of the loss of the consignment. 39 Cal 1029 and AIR 1922 Bom 416, Rel. on. (Para 2) Anno : Rail. Act, S.75 N.2, 6; Sch. II N.1. (B) Mysore Railways Act, S.61 and S.122 - RAILWAY - Authority to whom notice should be sent - Notice within "Six months". Railways Act (9 of 1890), S.77 and S.145. Certain goods were consigned for transmission on 29-6-1944. The plaintiff commenced correspondence with the Traffic Manager about non-delivery within six months from that date. On 9-11-1945 a notification was issued authorising the Traffic Manager to receive notice and settle claims and the notification stated that "any notification served will be treated as equivalent to one served on the Railway administration in compliance with the provisions of Sections 61 and 122 of the Mysore Railways Act". The plaintiff served a notice for compensation on the Traffic Manager on 20-5-1946. Held (1) that the notice was not defective as having been addressed to the Traffic Manager instead of the General Manager: (Para 3) (2) That having regard to the terms of the notification and the fact that the Railway Administration treated the claim which was pending before it on the date of notification as sufficient to be acted upon the objection that since the letters previous to the notification had been addressed to Traffic Manager instead of the General Manager there was no valid notice within time was untenable. AIR 1948 Nag 17, Rel. on. (Para 3) Anno : Rail. Act, S.77 N.5, 6; S.45 N.1. (C) Limitation Act (9 of 1908), Art.31 - LIMITATION - Starting point of limitation - Non-delivery of part of consignment For a suit for damages for non-delivery of a part of the consignment, when time for delivery is not fixed in the consignment note, begins to run from after a definite refusal or declaration of inability to deliver. The cause of action arises when the owner of the goods is made aware that there will be no further delivery of the undelivered part of the consignment and not from the date on which the other part has been delivered to the plaintiffs. C.R.P. No.322 of 1948-48 (Mys), Disting.; AIR 1947 Cal 98; AIR 1946 Mad 133; AIR 1951 Cal 462, Rel. on.; AIR 1923 All 22 (2); AIR 1928 Cal 371, Ref. (Para 4) Anno : Lim. Act, Art.31 N.10. Cases Referred : Chronological Paras (23) 45 All 43 : (AIR 1923 All 22(2)) 4 (22) AIR 1922 Bom 416 : (47 Bom 18) 2 (12) 39 Cal 1029 : (14 Ind Cas 726) 2 (28) AIR 1928 Cal 371 : (116 Ind Cas 148) 4 (47) AIR 1947 Cal 98 4 (49) 4 Dom LR (Cal) 225 : (AIR 1951 Cal 462) 4 (46) AIR 1946 Mad 133 : (224 Ind Cas 436) 4 (48-49) C.R.P. No.322 of 1948-49 (Mys) 4 (48) AIR 1948 Nag 17 : (ILR (1947) Nag 369) 3 A.R. Somanatha Iyer Advocate General, for Appellants; M.R. Janardhanam, for Respondent. Judgement On 29-6-1944, two bales of Lohis were sent by rail from Ambarnath Station to the plaintiff at Bangalore City. Of these, only one was delivered to the plaintiff and for recovery of Rs.919-4-0 as the value of the undelivered bale he sued the Government of Mysore and the Mysore State Railways. Subsequent to the institution of the suit, part of the goods contained in the undelivered bale was given to the plaintiff and the claim was therefore reduced to Rs.590-12-0. The suit was contested on various grounds but decreed. The decree has been confirmed in appeal.

2. In the second appeal preferred by the defendants the decree made in favour of the plaintiff is challenged mainly on three grounds viz., firstly that the articles said to have been lost being of the kind mentioned in the schedule to the Railways Act, declaration of the contents of the bales should have been made as required by Section 59 of the Railways Act and since there was no such declaration, the defendants are not liable for the loss; secondly that the claim has to fail for want of a proper notice under Section 61 of the Act and thirdly that the suit is barred by limitation. The first two depend on the interpretation of Sections 59 and 61 of the Railways Act and the last on the application of the relevant Article of the Limitation Act. According to Section 59 in the case of articles mentioned in the schedule declaration is necessary about the contents, if the value thereof is more than Rs.100/- to render the Railways liable for loss. The declaration will put the Railway on guard to take extra care for safe transit of such goods and additional charges are levied to cover the responsibility. These goods are termed excepted goods on this account and enumerated in the schedule under the heading "Articles to be declared and insured". It is argued that Lohis are shawls mentioned as item (m) in the schedule and the total value of these being more than Rs.100/-the Railway is protected from liability by the absence of the declaration. Besides the several articles specifically mentioned in the schedule it includes "any article of special value which the Government may by Notification in the Official Gazette, add to this schedule" implying that the schedule relates to articles of special value. What is called "shawl" in common parlance in a loose sense which is a coarse mixture of woollen and cotton, priced low to attract large sales, cannot be deemed to be article of "special value". For the purpose of the schedule "shawls" must be construed as having application to those "shawls" which are of superior quality, texture, colour and finish. It may appropriately refer to Kashmir Shawls or other fabric requiring more than ordinary skill and cost. In - Sarat Chandra Bose v. Secy, of State, 39 Cal 1029 it was held that the term refers to shawls of special value and cannot be taken to apply to articles of inferior value such as Alwans. The same view was adopted in - E.I. Rly. Co. v. Dayabhai Vanmalidas, AIR 1922 Bom 416. The description of the articles as woollen in the consignment note is not of significance in view of the control price of a lohi being only Rs.9-2-0 and D.W.1s evidence as follows: "Lohis are classed under general classification and not along with shawls. Shawls are not included under general classification. In goods tariff there is nothing to show that lohis and shawls are identical." The plaintiff has produced a letter from the Cawnpore Woollen Mills intimating that lohis are included by the Indian Railway Board in the general classification of goods and not treated as shawls for the purpose of Section 75 of the Indian Act corresponding to Section 59 of the Mysore Act and this is borne out by what is found in the goods tariff No.26 of 1-6-1944 issued by the Indian Railways Conference Association. There is also a letter of the Assistant Secretary, Railway Board, to the Secretary, Upper India Chamber of Commerce, Cawnpore, showing that lohis are not excepted articles. In my opinion lohis are not shawls in the sense the term "shawl" is used in the schedule and Section 59 of the Act cannot be relied upon to resist the plaintiffs claim.

3. Section 61 of the Act prescribes that within six months from the date the goods are consigned to the railways for delivery, a notice in writing to the Railway Administration should be issued to sustain a claim for compensation. As already mentioned, the goods in this case were consigned on 29-6-1944. The notice Exhibit H was issued to the Traffic Manager on 20th May 1946. Between these two dates there was a notification dated 9-11-1945 by which the Traffic Manager (was) delegated with the authority to receive notice and settle claim.. It cannot now be said that it is defective as being addressed to the Traffic Manager instead of the General Manager. The decision in - R.A. 166 of 44-45 to the effect that the notice issued to the Traffic Manager is invalid may have affected the suit but for the notification subsequently issued which provides for it. There is, however, the other objection that the notice was issued beyond the period of six months from the date of delivery for carriage of the goods and therefore the requirement of Section 61 is not satisfied. The correspondence about non-delivery was started by the plaintiff within six months but it was prior to the notification. The contention is that since it was the Traffic Manager and not Manager to whom the letters were then addressed there was no valid notice within time. In - Govind Lal v. Governor-General in Council, AIR 1948 Nag 17, the facts were almost similar. As in this case one bale of cloth was not delivered to the consignee and the notice was sent to the Superintendent General and not as it should have been to the Manager or Agent of the Company. The notice was sent in October 1942 and in November 1942 the Superintendent General was authorised to receive notices under Section 77 of the Indian Act corresponding to 61 of the Mysore Act. The delegation of authority though subsequent to the date of the notice the notification was regarded as sufficient to validate the notice. The notification in the present case clearly states "Any notice served will be treated as equivalent to one served on the Railway Administration in compliance with the provisions of Sections 61 and 122 of the Mysore Railways Act". At the time the notification was issued the claim with respect to the undelivered bale was pending consideration and having regard to the terms of the notification and the fact that the Railway Administration treated it as sufficient to be acted upon the objection is not tenable. In this view of the matter, it is unnecessary to examine whether a notice is necessary at all in case of non-delivery - a question on which there is cleavage of judicial opinion.

4. The only other point left for determination is whether the suit is barred by time. It is not disputed that the Article applicable to the case is Article 31 of the Limitation Act which provides a period of one year from the date the article had to be delivered. Obviously no time was fixed for delivery in the consignment note but in the ordinary course of business both the bales were expected to be delivered within a reasonable time. The date on which one bale was delivered was 24th July 1944 and if this is deemed As to be date on which the delivery of the other bale also was to be made, the suit is barred as it was filed more than an year after that date. The construction of the Article in this manner will put the consignee in peril of time running against him even though there is a prospect or possibility of the goods being delivered after some time. He will be obliged to resort to court before exhausting attempts or completion of inquiries to trace the goods and then withdraw the suit if the attempt succeeds. The plaintiff in this case could not assume on the date one bale was delivered to him that the remaining one would not be given at all. On the other hand it is alleged that hopes of delivery were held out to him and as a matter of fact part of the missing bale was as a result of investigation got by him. A person in the position of plaintiff cannot be expected or required to file the suit until a positive refusal of delivery on the part of the Railway or the circumstances are such as to imply refusal. My attention was drawn to - C.R.P. No.322 of 1948-49 (Mys), in which Balakrishnaiya, J., has taken a different view. But the case seems to be distinguishable as it is stated to be one "in which there was neither refusal of delivery nor of plaintiff being misled by assurances held out by defendant". There is a volume of authority in favour of the view that the cause of action for a suit does not arise until there is positive or definite refusal by the Railways. In - Jainarain v. Governor-General of India, (1949) 4 Dom LR (Cal) 225, Chakravarthi, J., after reviewing all the authorities on the matter observed as follows: "This impressive array of authorities seem to me to establish beyond doubt that the time when the goods ought to be delivered, within the meaning of the third column of Art.31 is not the time when they should have been delivered in the normal course, at least in a case where there is no time fixed for delivery but the time when they ought to be delivered according to the subsequent promises by the Railway which informs the parties that it is carrying on enquiries. Time begins to run from after a definite refusal or declaration of inability to deliver. If I may say so with respect, that seems to me the only reasonable way of construing the Article." In - Raigarh Jute Mills Ltd. v. Commr. for the Port of Calcutta, AIR 1947 Cal 98, Gentle, J. held that when the plaintiff brings a suit for damages for non-delivery of a part of the consignment, as in this case. "the time under Art.31 begins to run from after a definite refusal or declaration of inability to deliver and the cause of action arises when the owner of the goods is made aware that there will be no further delivery of the undelivered part of the consignment." A similar view is expressed in - Palanichami Nadar v. Governor-General of India in Council, AIR 1946 Mad 133. See also - Mugal Kishore v. G.I.P. Rly. Co., 45 All 43 and -Rivers Steam Navigation Co. Ltd. v. Bisweswar Kundu, AIR 1928 Cal 371. Since it was not till 27-4-1946 that the claim was repudiated and the suit was filed well within a year from that date, it is not barred by limitation. The appeal consequently fails and is dismissed with costs. Appeal dismissed. AIR 1953 MYSORE 18 (Vol. 40, C.N. 8) "Venkatachala v. Govt. of Mysore" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench )

V. S. Venkatachala Chetty, Accused-Petitioner v. Govt. of Mysore, Opposite Party. Criminal Revn. Petn. No.166/1951-52, D/- 1 -8 -1952. Mysore Sales Tax Act (46 of 1948), S.22 - SALES TAX - Sales Tax - Decision of Sales Tax Officer when can be challenged - Assessees turnover less than Rs.10000 - Notice demanding payment of tax - Non-compliance - Criminal prosecution against assessee - Assessee can contend that he is not liable to pay tax under Act. Under the Sales Tax Act, Sales Tax Officer has jurisdiction to ascertain whether the turnover is over Rs.10,000/- or less arid the tax is leviable. When the Sales Tax Officer is satisfied that the assessee within the meaning of fee word as used in the Act, that be deals in a commodity not exempt from the levy of sales tax and that his turnover exceeds Rs.10,000/-, neither a civil nor a criminal court can sit in judgment over the decision of the Sales Tax Officer on the same facts over again and ascertain whether his finding is correct or not. If, however, on the facts found by the Sales Tax Officer, it is seen that the person assessed is not liable for assessment at all under the Sales Tax Act on the ground that his turnover is less than Rs.10,000/- or for other reasons, it cannot be said that the tax levied is one under the Sales Tax Act. Under Section 22 of the Sales Tax Act it is only an assessment made under the Sales Tax Act that cannot be called in question in any civil or criminal Court. (Para 2) Hence, where the turnover of the assessee for a particular financial year is admittedly below Rs.10,000/- even according to the Sales Tax Officer and a notice demanding the payment of tax is served on the assessee then the assessee can successfully contend in a criminal prosecution against him for non-compliance with the notice, that he was not liable to pay the tax and S.22 of the Act would be no bar to such a contention, inasmuch as the assessment cannot be said to be one under the Act. AIR 1951 Mys 70 and AIR 1953 Mys 12, Ref. (Para 2) Cases Referred : Chronological Paras (51) AIR 1951 Mys 70 : (52 Cri LJ 825) 2, 3 (52) Cr.R.Ps. Nos.139 and 140 of 1951-52 : (AIR 1953 Mys 12) 2 P. Krishnappa, for Petitioner; A.R. Somanatha Iyer, Advocate General, for the State. Judgement The petitioner in this case has been convicted for non-payment of sales tax in accordance with the demand notice served on him within 21 days from the date of service.

2. It is contended that the petitioner was not liable to any sales tax for the financial year 48-49 in respect of which the demand notice is issued. His turn-over for the financial year is admittedly below Rs.10,000/-. The financial year 1948-49 consists of only eleven months. Even according to the Sales Tax Officer the turnover of the petitioner was above Rs.9,000/-, but less than Rs.10,000/-. Anyway it is contended that the petitioner could have filed an appeal provided in the Sales Tax Act, against the decision of the Sales Tax Officer and if necessary file a revision petition or could have had recourse to the provisions of Section 16 of the Sales Tax Act. The decision in - Rama Iyer v. Govt. of Mysore, AIR 1951 Mysore 70 at p.71, has been relied upon in support of the contention "that it is not within the province of the criminal court to enter into an enquiry about the correctness of the levy or the validity thereof." In that case the Assessing Officer had found that the turnover of the petitioner was over Rs.10,000/- but "It was argued for the assessees that they were not liable to pay the tax by reason of the fact that the turnover does not exceed Rs.10,000/- per year." It will be noticed that under the Sales Tax Act Sales Tax Officer has jurisdiction to ascertain whether the turnover is over Rs.10,000/- or less and the tax is leviable. When the Sales Tax Officer is satisfied that the assessee is a dealer within the meaning of the word as used in the Act, that he deals in a commodity not exempt from the levy of sales tax and that his turnover exceeds Rs.10,000/-, neither a civil nor a criminal court can sit in judgment over the decision of the Sales Tax Officer on the same facts over again and ascertain whether his finding is correct or not. If, however, on the facts found by the Sales Tax Officer it is seen that the person assessed is not liable for assessment at all under the Sales Tax Act on the ground that his turnover is less than Rs.10,000/-as in this case or for other reasons, it cannot be said that the tax levied is one under the Sales Tax Act. It has to be remembered that under Section 22 of the Act it is only an assessment made under the Sales Tax Act that cannot be called in question in any civil or criminal court. As observed in the Commentary on the Indian Income tax Act by A.C. Sampath Iyengar while dealing with Section 67 of the Indian Income tax Act of 1922: "The right to challenge in a court of law arises only where the Income-tax authority has no jurisdiction to assess on the undisputed facts, or on the facts as found by it, or as assumed by it to exist. That is to say, if on certain facts the authority should hold it has jurisdiction in law and if that "view of the law" should be erroneous, the civil court would be entitled to interfere and not otherwise. The distinction, in other words, is as between a jurisdiction arising on an erroneous decision of fact, as opposed to one usurped on an erroneous view of the law. In the former case, the jurisdiction of the Income-tax Officer cannot be attacked, since he is given jurisdiction to decide it, rightly or wrongly; in the latter case, it can be, on the ground that the assessment is not one made under the Act. These observations on S.67 of the Indian Income tax Act which states that no suit shall be brought in any civil court to set aside or modify any assessment made under that Act equally apply to Section 22 of the Sales Tax Act. The point has been dealt with at some length in dealing with - K. Kariappa v. Govt of Mysore, Cr.R.Ps. Nos.139 and 140 of 1951-52 and I do not think it is necessary to reconsider the same aspect of the matter at greater length.

3. If in this case as in the case reported in - Rama Iyer v. Govt, of Mysore, AIR 1951 Mysore 70, the Sales Tax Officer had come to the conclusion that the turnover of the petitioner was over Rs.10,000/- for the financial year, it would not have been open to the petitioner to contend either in a civil or criminal court that he is not liable to pay the sales tax. Since his turnover is admittedly less than Rs.10,000/- for the financial year 1948-49, the assessment is not one made under the Sales Tax Act. The revision petition is therefore allowed. The petitioner is acquitted of the offence of which he stands convicted. The conviction and sentence are set aside. Fine if levied will be refunded. Conviction and sentence set aside. AIR 1953 MYSORE 19 (Vol. 40, C.N. 9) "Subban Beigh v. Govt. of Mysore" MYSORE HIGH COURT Coram : 1 T. N. MALLAPPA, J. ( Single Bench ) Subban Beigh, Petitioner v. Govt. of Mysore, by Assistant Sales Tax Officer, No.1, Circle, Bangalore, Respondent. Criminal Revision Petition No.167 of 1951-52, D/- 14 -8 -1952. (A) Mysore Sales Tax Act (46 of 1948), S.2 and S.22 - SALES TAX - Sales Tax - Order of assessment - Power of civil or criminal Court to question order - Dealer - Commission Agent. If the assessment is one made under the provisions of the Sales Tax Act, the correctness of the order cannot be questioned in any civil or criminal court, but if the assessment is found to be not one made under the Act, there is no bar in section 22 of the Act prohibiting civil or criminal courts from considering the correctness of the order as that section refers only to an assessment made under the Act. (Para 2) Where vegetables brought to commission agent by owners, are sold by him for them as their agent and he gets only the commission, he is not a dealer and the assessment made on him cannot be said to be an assessment made under the Act and therefore his liability to pay the tax assessed can be questioned in civil or criminal court. (Para 7) (B) Mysore Sales Tax Act (46 of 1948), S.2 and S.22 - SALES TAX - Sales Tax - Decision as to person being dealer - Finality of. As the Sales Tax Officer has every jurisdiction to decide whether a person was a dealer or a commission agent, his decision on the point is final. It is not open to the criminal court to question this finding of fact. (Para 8) Cases Referred : Chronological Paras (48) Public Prosecutor v. Narasimha Reddy, (AIR 1948 Mad 102(1)) 4 (50) ILR (1950) Mad 421 : (AIR 1949 Mad 843) 4 (51) ILR (1951) Mad 257 : (AIR 1950 Mad 521) 4 (52) 1952 Com T C 67 : (AIR 1952 Mad 718 FB) 4 (51) ILR (1951) Mys 399 : (AIR 1951 Mys 70 : 52 Cri LJ 825) 8 (52) Cri Revn Petn Nos.139 and 140 of 1951-52 : (AIR 1953 Mys 12) 8 (52) Cri Revn Petn No 166 of 1951-52 : (AIR 1953 Mys 18) 8 P. Krishnappa, for Petitioner; A.R. Somanatha Iyer, Advocate-General, for Respondent. Judgement In this case the petitioner has been convicted for non-payment of sales tax in accordance with the demand notice served on him.

2. The main contention of the Petitioner is that he is a commission agent not liable to pay sales tax. It is on the other hand contended that under Section 22 of the Sales Tax Act, no order passed under the Act or the rules made thereunder by any assessing authority shall be called in question except in the manner provided by the Act itself. While it can be said that if the assessment is one made under the provisions of the Sales Tax Act, the correctness of the order cannot be questioned in any civil or criminal Court, it is clear that if the assessment is found to be not one made under the Act, there is no bar in Section 22 of the Act prohibiting civil or criminal courts from considering the correctness of the order as that section refers only to an assessment made under the Act.

3. The first point that arises for consideration in this case is whether the assessment made in respect of the dealings of a commission agent can be said to be one made under the Act. It will be noticed that under Section 2 of the Sales Tax Act assessee means a person by whom sales tax is payable, a dealer means any person who carries on business of buying or selling goods and sales means every transfer of property in goods between one person to another in the course of trade or business for cash or deferred payment or other valuable consideration. Subject to the provisions of the Act every dealer shall pay tax on his total turnover. If a commission agent can be said to be a dealer there is hardly any doubt that he is liable to pay tax on his total turnover for each financial year subject to the provisions of the Act. As already noticed before a person can be said to be a dealer, he must be carrying on business of buying and selling goods and by sales transfer of property in goods by one person to another is contemplated. The contention that a commission agent helps the owner of the goods in transferring his right in those goods to another person, that he having no property in the goods cannot transfer any such right to any one else and that he cannot therefore be held to be a dealer deserves consideration.

4. The point whether a commission agent is a dealer within the meaning of the word as used in the Sales Tax Act came up for consideration in three cases before the High Court of Madras. There was a conflict of opinion on the point between the Division Benches of that Court, in the case reported in - Province of Madras v. Sivalakshminarayana, ILR (1950) Mad 421 and - Provincial Government of Madras v. Veerabhadrappa, ILR (1951) Mad 257. The same point arose for consideration in subsequent cases and they were posted before a Full Bench and the question was decided in the ease reported in - Kandula Radhakrishna Rao v. Province of Madras, 1952 Com TC 67. As observed in the Full Bench case: On the facts found in - The Public Prosecutor v. Narasimha Reddy, AIR 1948 Mad 102 (1) and - the Provincial Government of Madras v. Veerabhadrappa, there can be no doubt whatever that the merchants in those cases do not fall within the definition of dealer. They themselves neither sold nor bought the goods. They simply brought the seller and the buyer together and received a brokerage or commission by way of remuneration for their trouble." The comment made by the learned Chief Justice of the Madras High Court in the Full Bench case referred to above with respect to the decision in - Provincial Govt, of Madras v. Veerabhadrappa, ILR (1951) Mad 257 is as follows : "In - Provincial Government of Madras v. Veerabhadrappa, on the facts found by the District Munsiff from whose judgment an extract is to be found in the judgment of Satyanarayana Rao J., it is clear that the question which has come up before us for decision could not have arisen. In that case there was obviously no sale by the plaintiffs because all that the plaintiff did was to bring the seller and the purchaser and to earn a commission for themselves. They would art obviously be dealers within the meaning of the definition because they never transferred the property in the goods to the buyer. But the learned Judges did go into the question in a general way whether a commission agent would be a dealer - within the meaning of the definition in the Act. In so far as the learned Judges held that the plaintiffs in the case before them were not dealers within the meaning at the Act, no possible exception could be taken. But if they meant to lay down that a commission agent would never fall within the definition of a dealer with due deference to them, I cannot agree."

5. The Full Bench decision confirms the view taken by Satyanarayana Rao J. to the extent that such of the commission agents that get articles brought to them sold by bringing to the vendor persons desirous of buying the articles and realise commission, are not dealers within the meaning of Sales Tax Act. This would be the case of most of the commission agents who sell by auction, articles brought to them for sale from villages and pay the amount realised, after deducting the commission due to them. There may be other commission agents who sell articles entrusted to them for sale, long after the entrustment as if they belong to them and without disclosing to the buyer that he is not the owner. The point for consideration is whether persons of that kind could be said to be dealers.

6. The learned Chief Justice proceeds to examine the views of Satyanarayana Rao, J., that no commission agent could be said to be a dealer as denned in the Sales Tax Act and observes as follows: "Satyanarayana Rao, J., prefaces the discussion of the point with the assumption that when a dealer is defined as a person who carries on the business of buying or selling goods, that means that he buys or sells the goods on his own account. That, in his opinion, is the primary meaning of the definition. While I agree that ordinarily buying and selling by a person may be on his own account, there is nothing in the language of the definition to exclude from its ambit persons buying and selling goods on account of others. When a person buys or sells goods on behalf of some one else, even then it will not be inaccurate to say that he buys and sells goods. The learned Judge seeks to receive support for his view from Explanation (2) which includes within the definition the agent of a person resident outside the Province who carries on the business of buying and selling goods in the Province. I do not think that the Explanation throws any light on the point in issue. The reference in the Explanation is presumably to an agent of a person who carries on business qua agent of that person who however is residing outside the Province. Now it is well known and it was admitted by counsel before us that the plaintiffs in the cases before us though they describe themselves as commission agents, do not purport to be agents of any particular person or persons. Some of them admittedly get goods from as many as 100 principals. It will be opposed to facts to say that they are carrying on business as the agent of these persons. In the case of an agent who carries on business professedly as an agent of another then it is really the principal who can be deemed to be carrying on the business and the Explanation (2) refers to such a case. The learned Judge then refers to the definition of turnover and again makes the assumption that to constitute the turnover of the agent he must buy or sell the goods for himself. Dealing with the definition of sale as a transfer of property in goods the learned Judge draws the implication that the property in the goods at the time of the sale vested in the person who sells and by reason of the sale, the purchaser obtains a transfer of the property in the goods from the seller. If the learned Judge meant title by the terms property then undoubtedly property does not vest in the commission agent; but I think it would be correct to say that a commission agent who has custody and possession of the goods is vested with the property in the goods and he does have the authority to transfer the property in the goods to the buyer. Personally I am inclined to think that section 27 of the Sale of Goods Act to which I have already adverted earlier supports my view. The learned Judge says: ".........except in the limited classes of cases contemplated by Sec.27 of the Sale of Goods Act it is impossible for an agent to convey or transfer property in goods except under the authority of the principal. But a Commission agent does sell goods with the authority and consent of the owner of the goods."

7. It has however to be stated with respect that the contention, that when a commission agent sells goods with the authority and consent of the owner of the goods, the person who in the legal sense sells the articles is the owner of the goods and he sells them through his agent with the result that it is he who could be said to be the dealer and not the commission agent, is not without substance. It may also be stated with respect that persons who "though they describe themselves as commission agents do not purport to be agents of any particular person or persons" are not commission agents at all or any kind of agents. There may also be cases in which articles are sold by servants of dealers who call themselves agents and call the remuneration they get commission to avoid sales tax. Persons calling themselves commission agents may be selling articles which they have brought. These are no doubt liable to pay sales tax being not really commission agents. When a proper case arises the question may need careful consideration. In this case, however, the petitioners case is that vegetables brought to him by owners are sold by him for them as their agent and that he gets only the commission. Such a case is one in which it could be said that the commission agent sells the articles as agent of particular person. He is more or less a broker and he merely brings the vendor and vendee together and helps the sales. There is and can be no difference of opinion that a commission agent of this type is not a dealer within the meaning of the word as defined in the Sales Tax Act as held by the Full Bench decision. The assessment made on such a person cannot be said to be an assessment made under the Sales Tax Act. The liability to pay an assessment made on a commission agent of this type can be questioned in civil or criminal court. In the Full Bench case itself it was made clear that the "appeals arise out of suits filed for recovery of amounts or sales tax alleged to have been illegally levied." Some appeals were allowed and the suits decreed.

8. In this case, however, according to the finding of the assessing Officer the petitioner is a dealer in vegetables. In case it had been found by the Sales Tax Officer that the petitioner is a commission agent, it would have been open for the civil or criminal courts to consider whether the assessment made in respect of the dealings of a commission agent can be said to be one under the Sales Tax Act or not But, as the Sales Tax Officer had every jurisdiction to decide whether the petitioner was a dealer or a commission agent, his decision on the point is final. It is not open to criminal courts to say that the petitioner is a commission agent against the finding of the Sales Tax Officer that he is a dealer in vegetables. To what extent civil and criminal courts can question the correctness of assessment or orders made by Sates Tax Officer has been considered in - K. Kariappa v. Govt. of Mysore, C.R. Petns. Nos.139 and 140 of 1951-52 (Mys); and - Venkatachala Chetty v. Govt. of Mysore, Crl. Revn. Petn. No.166 of 1951-52 (Mys.) and in - Rama Iyer v. Government of Mysore, ILR (1951) Mys 399. It is sufficient for the purpose of this case to give the following extract from the commentary on Indian Income tax Act by A.G. Sampath Iyengar under Section 67 of the Indian Income tax Act, which contains a provision similar to the one now under consideration. "The right to challenge in a court of law arises only where the Income-tax authority has no jurisdiction to assess on the undisputed facts, or on the facts as found by it, or as assumed by it to exist. That is to say if on certain facts the authority should hold it has jurisdiction in law and if that view of the law should be erroneous, the civil court would be entitled to interfere and not otherwise. The distinction, in other words is as between a jurisdiction arising on an erroneous decision of fact, as opposed to one usurped on an erroneous view of the law. In the former case, the jurisdiction of the Income-tax Officer cannot be attacked, since he is given jurisdiction to decide it, rightly or wrongly; in the latter case, it can be on the ground that the assessment is not one made under the Act".

9. The learned Magistrate was not right in allowing the petitioner to adduce evidence that he was merely a commission agent and not a dealer, as it is not open to him to question the finding of the Sales Tax Officer on a question of fact. If the Petitioner who has been held to be a dealer of vegetables by the Assessing Authority under the Sales Tax Act, wanted to challenge that finding, he should have done so either by filing an appeal and a revision petition or taking proceedings under Section 16 of the Act. Having failed to do so, he cannot question the correctness of the order of the assessing authority, that he is a dealer in vegetables. He is liable to pay Sales Tax under the Act. The petitioner was therefore rightly convicted and the sentence is not severe. The revision petition stands therefore dismissed. Petition dismissed. AIR 1953 MYSORE 22 (Vol. 40, C.N. 10) "Kenchegowda v. Channaiya" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) Kenchegowda, Appellant v. P. Channaiya and others, Respondents. Second Appeals Nos.581 and 582 of 1948-49, D/- 30 -6 -1952. (A) Civil P.C. (5 of 1908), S.107 - EVIDENCE - APPELLATE COURT - Appreciation of evidence by appellate court - Weight to be attached to trial courts opinion. Evidence Act (1 of 1872), S.1. A Court of appeal should attach the greatest weight to the opinion of the trial judge who saw and heard the witnesses and consequently should not disturb a finding of fact unless it is satisfied that it is unsound. (Para 5) Anno : C.P.C., S.107 N.14 Pt.1; Evidence Act, S.1 N.12. (B) Limitation Act (9 of 1908), S.3 - LIMITATION - Delay - No bar to legal remedy. Mere delay is no bar to a legal remedy unless it amounts to a waiver or abandonment of right. The validity of the defence based on delay should be tested on equitable principles. (Para 6) Anno : Limitation Act, S.3 N.40 Pt. 1. (C) Transfer of Property Act (4 of 1882), S.53 - IMMOVABLE PROPERTY - Transfer of property - Transaction if real or nominal - How to be determined. Whether a transaction is real or nominal depends upon the intention of the parties which should be gathered from the surrounding circumstances. In a nominal transaction no title either legal or beneficial, is transferred. (Para 6) Anno : T.P. Act, S.53 N.5 Pt. 2. (D) Transfer of Property Act (4 of 1882), S.3 - IMMOVABLE PROPERTY - Notice by registration of instrument. Registration of a document which is compulsorily registrable is deemed to be a notice to the persons subsequently acquiring the property comprised in the instrument. (Para 6) Anno: T.P. Act, S.3 N.34 Pt. 9. (E) Evidence Act (1 of 1872), S.3 - EVIDENCE - Circumstantial evidence - Value of. Ordinarily, circumstantial evidence cannot be regarded as satisfactory as direct evidence. The circumstances may lead to particular inferences and the relationship to true facts may be mare apparent than real. The value of circumstantial evidence has to be assessed on consideration that it must be such as not to admit of more than one solution, and that it must be inconsistent with every proposition or explanation that is not true. If these conditions are fulfilled, circumstantial evidence may approximate to truth and be preferred to direct evidence. (Para 7) Anno : Evidence Act, S.3 N.6. (F) HINDU LAW - PARTITION - Hindu Law - Alienation - Alienation of undivided interest - General partition - Alienees right to get interest assigned. The alienee of a specific property or of the undivided interest of a coparcener in such property has on a general partition an equitable right to have that property or his alienors share in that property, as the case may be, assigned to his if it should be done without injustice to the other coparceners. But there may be equities between the coparceners or liabilities attaching to the alienor share which may render it inequitable or impracticable to do so. In such a case the alienee is entitled to recover from his alienor property of an equivalent value out of the properties allotted to the alienor for his share in substitution of the property alienated. (Para 8) Cases Referred : Chronological Paras (49) AIR 1949 PC 32 : (ILR (1949) Bom 639) 6 (51) 1951-6 Dom LR (SC) 52 : (AIR 1951 SC 120) 6 (25) AIR 1925 Mad 1005 : (88 Ind Cas 249) 6 (1945) AC 19 6 (1947) AC 484 : (1947-1 All ER 582) 6 In No.581 of 1948-49: Mirle N. Lakshminaranappa and S.R. Ramanathan, for Appellant; B.S. Puttasiddih, for Respondent. In No.582 of 1948-49: Mirle N. Lakshminaranappa and S.R. Ramanathan, for Appellant; V. Krishamurthy and B.S. Puttasiddiah, for Respondents (Nos.2 and 3 respectively). Judgement These two appeals are by the plaintiff who filed a suit for declaration of his title to, and for possession of, the schedule property with mesne profits. The Munsiff decreed the suit while the learned Subordinate Judge allowed the appeals filed separately by defendant 3 and defendants 1 and 2.

2. The dispute leading to the litigation has been fully set out in the judgments of the two courts below and for the present purpose a brief summary of the salient features will be stated.

3. The plaintiff purchased the undivided 1/3 share of the properties belonging to the joint family of the 1st defendant and his two brothers for a sum of Rs.500/- under a registered sale deed dated 8-7-1939 and he is said to have paid the consideration therefor under a receipt dated 12-7-1939. The first defendant could not, and in fact did not, put the plaintiff in possession of the property sold for the obvious reason that the share was undivided. Under a later general partition dated 25-4-1945 the first defendant got his share of the properties and subsequently sold the same in different lots to defendants 2 and 3. The plaintiff filed the present suit for possession of the schedule properties obtained by the first defendant at the said family partition on the equitable doctrine of substitution.

4. A number of pleas were taken by the contesting defendants most of which are not relevant. The only substantial contention raised is that the sale deed in favour of the plaintiff is nominal and not supported by consideration. Defendant 1 urged that the reason of the sale in plaintiffs Jayour was that his brothers did not give him his share of the properties in spite of repeated demands and that he sold his undivided 1/3 share nominally to the plaintiff on the specific understanding that the plaintiff should file a suit and recover the share for and on his behalf. On a consideration of the documents exhibited in the case, viz., the sale deed Ex.I and the consideration receipt Ex.A and also the oral evidence adduced by the parties, the trial Jude has reached the conclusion that the transaction is genuine and supported by consideration. The learned Appellate Judge has reversed that finding of fact.

5. At the outset, Mr. Mirle Lakshminaranappa, learned Counsel for the appellant, argued that the appellate Court should not have interfered with the finding of fact arrived at by the trial Court. There is much force in this contention. The concensus of Judicial opinion inclines to the view that a Court of appeal should attach the greatest weight to the opinion of the trial judge who saw and heard the witnesses and consequently should not disturb a finding of fact unless it is satisfied that it is unsound.

6. In - Yuill v. Yuill, (1945) AC 19, Lord Green M.R. observed : "It can, of course, only be on the rarest occasions and in circumstances where the appellate Court is convinced by the plainest considerations that it would be justified in finding that the trial Judge had formed a wrong opinion." The question was considered at length by the House of Lords in - Watt v. Thomas, (1947) AC 484 where their Lordships delivered the following opinion : "When a question of fact has been tried by a Judge without a jury and it is not suggested that he has misdirected himself in law an appellate Court in reviewing the record of evidence should attach the greatest weight to his opinion because he saw and heard the witnesses and should not disturb his judgment unless it is plainly unsound. The appellate Court is however free to reverse his conclusions if the grounds given by him are unsatisfactory by reason of material inconsistencies or inaccuracies or if it appears unmistakably from the evidence that in reaching them he has not taken proper advantage of having seen and heard the witnesses or has failed to appreciate the weight and bearing of circumstances admitted or proved." This view of the law was relied on and quoted with approval by the Judicial Committee of the Privy Council in a recent appeal from the High Court of Madras vide - Veeraswami v. Narayya, AIR 1949 PC 32. The Supreme Court of India followed and relied on the said decision in a very recent case in - Sarju Pershad v. Jwaleswari Pratap Narain Singh, (1951) 6 DLR (SC) 52 where their Lordships laid down : "Where the question for consideration is one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case, the appellate court has got to bear in mind that it has not the advantage which the trial Court has in having the witnesses before him and of observing the manner in which they deposed in Court. This certainly does not mean that when appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. It would not detract from the value to be attached to a trial Judges fnding of fact if the Judge does not expressly base his conclusion upon the impressions he gathers from the demeanour of witnesses. The duty of the appellate Court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial Court arrived at or whether there is an element of improbability arising from proved circumstances which in the opinion of the Court outweighs such finding." The points involved in the present case may how be considered in the light of the above observations. The most important documents in the case are Ex.I, the sale deed and Ex.A the consideration receipt executed by defendant-1 in favour of the plaintiff. The fast defendant has not proved the nominal nature of Ex.I by any direct evidence. It need hardly be said that the burden of proving want of consideration lay heavily on defendant-1. On the other hand, the plaintiff has examined the scribe of the sale deed and one of the attestors of the consideration receipt and both of them depose that the plaintiff paid the consideration amount of Rs.500/- on the date of the execution of the consideration receipt Ex.A and their evidence stands unassailed. It is significant that the learned appellate Judge has omitted to notice the effect of the evidence of these two witnesses, nor has he shown any element of improbability to discredit their evidence. He, however, simply proceeds on the basis that there is sufficient circumstantial evidence in the case which goes to prove that the sale deed is nominal. Some of the circumstances advanced by the learned appellate Judge may be noticed at this stage. He states that defendant 1 was a young man who was not on good terms with his brothers and that it is in that background of what he terms as the vexed and strained relationship that the sale deed was executed, that the plaintiff could have paid the money before the Sub-Registrar but he failed to do so; that the khata of the land is not transferred nor kandayam paid; that for a long period the plaintiff did not take steps for getting possession of the property. All these circumstances do admit of reasonable explanations. The 1st defendant was sui juris and it was not his case that he was trapped into the transaction; the payment of consideration before the Sub-Registrar is not obligatory, and there is proof that the amount has been paid under a separate consideration receipt. Similarly the non-transfer of khata and the non-payment of kandayam are equally amenable to explanation; the property sold was not a separate unit but an undivided share and since it was not separated neither could the khata be transferred nor the revenue paid separately. The plaintiff has no doubt not taken steps for a long time; but mere delay is no bar to a legal remedy unless it amounts to a waiver or abandonment of right. The validity of the defence based on delay should be tested on equitable principles. It is admitted that defendant-1 left the place soon after the sale and was absent for a number of years having taken up Military Service and for the enforcement of claim, the presence of defendant-1 was necessary; and in this view the delay is such as not to amount to any abandonment of the right. On the other hand, defendant-1 who has conveyed his title to the plaintiff has neither sought to recover back the property by reconveyance after the partition of his share nor has he given any notice to the plaintiff before he again sought to transfer the property to defendants 2 and 3. Whether a transaction is real or nominal depends upon the intention of the parties which should be gathered from the surrounding circumstances. In a nominal transaction no title either legal or beneficial, is transferred. It is in evidence that the 1st defendant executed the sale deed in favour of the plaintiff- a third party to file a suit for partition and possession of his share of the properties. If it is a nominal transaction the legal title will not vest with the vendee nor would the vendee be in a position to enforce the right derived therefrom. As the property was specifically transferred by the 1st defendant for the purpose of fighting "his brothers the effect is to transfer legal title to the plaintiff. As observed in - Rangappa Nayakar v. Rangasami Nayakar, AIR 1925 Mad 1005: "If a sale deed is got up to fight certain third parties, the intention to be drawn from the transaction is irresistible that the legal title at any rate was intended to be passed by the transaction from the transferor to the transferee; otherwise the very object of the transfer fails." On behalf of the defendants 2 and 3 it was further urged that they are bona fide purchasers for value. Registration of a document which is compulsorily registrable is deemed to be a notice to the persons subsequently acquiring the property comprised in the instrument. These considerations therefore afford no ground for disturbing the view taken by the trial Judge.

7. The learned Subordinate Judge bases his decision completely on circumstantial evidence detailed above ignoring the direct evidence. Ordinarily, circumstantial evidence cannot be regarded as satisfactory as direct evidence. The circumstances may lead to particular inferences and the relationship to true facts may be more apparent than real. The value of circumstantial evidence has to be assessed on consideration that it must be such as not to admit of more than one solution, and that it must be inconsistent with every proposition or explanation that is not true. If these conditions are fulfilled, circumstantial evidence may approximate to truth and be preferred to direct evidence. In this case the circumstances from which inference is drawn by the learned Subordinate Judge admit of other solutions as already discussed. Viewed from any stand point the preference by the appellate Court of circumstantial evidence to that of direct evidence which is jet impeached nor in which the bona fides of the witnesses undermined connot be upheld.

8. What remains for consideration is the question whether the plaintiff is entitled to recover the schedule properties. The plaintiff purchased under Ex.I about 7 acres of land in extent and in the partition defendant 1 gets land of approximately equal extent. There is no impediment for the plaintiff to recover the specific property that is allotted to defendant-1 in the general partition. In his book on Hindu Law, Mulla says (page 310) that "the alienee of a specific property or of the undivided interest of a coparcener in such property has on a general partition an equitable right to have that property or his alienors share in that property, as the case may out injustice to the other coparceners. But there may be equities between the coparceners or liabilities attaching to the alienors share which may render it inequitable or impracticable to do so. In such a case the alienee is entitled to recover from his alienor property of an equivalent value out of the properties allotted to the alienor for his share in substitution of the property alienated." The evidence regarding the passing of consideration, in this case is proved beyond doubt. So far as defendants 2 and 3 are concerned mere inadequacy or even want of consideration cannot prevent the passing of the title to the prior vendee, when there is a registered document, whatever may be equities that exist between the plaintiff and defeadant-1. The defendants cannot resist the suit claim. In the circumstances the plaintiff is entitled to recover the properties allotted to the share of defendant-1 in the partition. In the result, the judgment and decree of the learned Subordinate Judge are set aside and those of the learned Munsif restored, parties to bear their own costs throughout. Appeal allowed AIR 1953 MYSORE 25 (Vol. 40, C.N. 11) "Narayana Sa v. Hamimanthappa" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) Sulegai Dodda Narayana Sa, Appellant v. A. Hamimanthappa and others, Respondents. Appeal No.56 of 1949-50, D/- 26 -6 -1952. (A) Limitation Act (9 of 1908), Art.142 and Art.144 - LIMITATION - ADVERSE POSSESSION - TRUST - Adverse possession of trust property, by trustee Hindu widow appointed trustee by husband and acquiring property In that capacity - No question of her enjoying the property in her own right nor her prescribing for any title by adverse possession. (Para 4) Anno : Lim. Act, Arts.142 and 144 N.46. (B) Civil P.C. (5 of 1908), S.11 and S.92 - RES JUDICATA - PUBLIC TRUST - RELIGIOUS AND CHARITABLE ENDOWMENTS - Suit against trustee - Res judicata. Mysore Religious and Charitable Endowments Act (7 of 1927), S.17 and S.40. Earlier suit against trustee dismissed as not maintainable on the ground that it should have been brought under S.92, Civil P. C, after obtaining (necessary sanction of prescribed authority - Subsequent suit by same plaintiff under S.92 after obtaining necessary permission is not barred - Provisions of (Mysore) Religious and Charitable Endowments Act are also no bar. 54 Mys HCR 1 (FB), Rel. on. (Para 5) Anno : C.P.C., S.11, N.60; S.92, N.41. (C) Civil P.C. (5 of 1908), S.92 - PUBLIC TRUST - TRUST - Parties to suit under the section. Alienee of trust property is proper party; AIR 1932 Rang 132, Dissented from; 13 Mys LJ 98, Explained; 35 Bom 470, AIR 1944 All 1; AIR 1935 Cal 805 and AIR 1936 Mad 449, Rel. on; AIR 1952 SC 143, Distinguished. (Para 9) Anno : C.P.C., S.92 N.28. Cases Referred : Chronological Paras (52) AIR 1952 SC 143 : (1952 SCR 513) 8 (25) AIR 1925 All 683 : (47 All 770) 7 (44) AIR 1944 All 1 : (ILR (1944) All 20) 7, 9 (11) 35 Bom 470 : (12 Ind Cas 30) 7, 9 (06) 33 Cal 789 : (10 Cal WN 581) 6 (35) 39 Cal WN 1103 : (AIR 1935 Cal 805) 7, 9 (33) 1936 Mad WN 245 (2) : (AIR 1936 Mad 449) 7, 9 (35) 13 Mys LJ 98 6 (49) 54 Mys HCR 1 (FB) 5 (32) 10 Rang 342 : (AIR 1932 Rang 132) 6 S. Gundappa, for Appellant; M.R. Janardanam (for Nos.1 and 2) and S.J. Srinivasan (for No.3), for Respondents. Judgement The property concerned in this litigation admittedly belonged to one P. R.Hanumanthappa. He is said to have left a registered will dated 22-7-1921 by which he purported to create a trust over it for certain charitable purposes, viz., advancement of education of some orphan boys. By that will he appointed five trustees including his widow defendant 1 who died subsequent to the suit. The other trustees were Also dead before the suit was filed. Plaintiffs 1 And 2 and defendants 4 and 5 were the sons of these trustees. Defendant 2 is said to have purchased the suit item from defendant 1 under a sale deed dated 12-9-43 and later on sold it to defendant 3 by a sale deed dated 30-3-46.

2. The plaintiffs having applied for and obtained the permission of the Deputy Commissioner, Bangalore District, to bring a suit under S.92 Civil P.C., brought their suit and prayed for the removal of defendant 1 from her trusteeship, for settling a scheme in accordance with the directions contained in the will of Hanumanthappa and appointing new trustees and vesting the property in them, for accounting by defendants 1 to 3 and for recovery of possession of the property from the said defendants. The suit was contested by defendant 3. Defendant 2 merely filed a statement and later on absented himself. Defendant 3 denied the genuineness and validity of the will. He pleaded that defendant 1 was entitled to sell the property as no trust had been created by the will nor had it been acted upon. He also pleaded that he had spent some monies for improving the property and that he was a bona fide purchaser for value.

3. The learned District Judge held that the will was genuine and that it created a trust, and he directed the framing of a scheme and the vesting of the property in the new trustees to be appointed as the terms of trust were not being carried out. He was, however, of the opinion that he could not direct in this suit defendants 2 and 3 to deliver possession of the property to the plaintiffs or to any trustees that might be appointed or to render any account of the income of the suit property as the suit was one brought under S.98 Civil P.C. He, therefore, dismissed the suit as regards the last two matters. Defendant 3 has now come up in appeal.

4. Before us it has not been seriously contended for the appellant that the will of Hanumanthappa is not genuine or that it does not create a trust; nor is there any room for so doing. (After discussing the evidence the Judgment proceeded) : There could, of course, be no question of defendant 1 enjoying the property in her own right as she was a trustee expressly appointed by her husband, nor her prescribing for any title by adverse possession.

5. It is also not shown how the plaintiffs are estopped from bringing this scheme suit. The plaintiffs filed an earlier suit O.S. No.55 of 43-44 for recovery of possession of the property and appear to have applied for and obtained an order of temporary injunction restraining defendant 2 from dealing with the suit house. That suit was dismissed as not maintainable on the ground that it should have been brought as one under S.92, C.P.C., after obtaining the necessary permission of the Deputy Commissioner and was also barred under S.40, Religious and Charitable Endowments Act. Thereupon the plaintiffs applied for and obtained the consent of the Deputy Commissioner, Bangalore District, to bring the present suit. Defendants 1 and 2 and later on defendant 3 also were parties in the proceedings before the Deputy Commissioner under S.92 though defendant 3 has now chosen falsely to deny it. There is also now no substance in the contention that the provisions of the Religious and Charitable Endowments Act in any way bars this suit. In -Narayan Krishnaji v. Anjuman-E-Is-lamia, 54 Mys HCR 1 (FB) it has been held that it is open to two or more persons interested in a charitable endowment to institute a suit under S.92 Civil P.C. having obtained the sanction in writing of the Deputy Conumssioner, without moving, the Muzrai Officer to take action under S.17, Religious and Charitable Endowments Act, 7 of 1927, even though it is a matter in which the Muzrai Officer has power to take action.

6. Mr. Gundappas main contention before us is that defendants 2 and 3 were not necessary or proper parties to the suit. In support of that position he has relied on a case of this Court reported in -Mustapha Khan Sab v. Syed Abdul Gaffoor Sab, 13 Mys LJ 98 and on -Johnson, D.Po. Min v. U. Ogli, 10 Rang 342 which is referred to and relied on in that decision. In 13 Mys LJ 98, it has no doubt been held that in a suit under S.92 Civil P.C., claims of persons who axe strangers to the trust and who set up a title hostile to the trust such as alienees and mere trespassers cannot be gone into nor can such a suit be merely for declaration that the suit property is trust property. In that case the suit had been brought in a representative capacity under O.1, R.8, Civil P.C., for a declaration that the property in suit belonged to the public and for a permanent injunction restraining the defendants from interfering with the use thereof by the plaintiffs and others. The Munsiff who tried the suit found that the plaint disclosed a trust and as the suit fell within the provisions of S.92, Civil P.C., it was not maintainable without the consent of the Deputy Commissioner. He accordingly dismissed the plaintiffs suit. On appeal the District Judge was of the opinion that the suit did not fall within the purview of S.92, that the Deputy Commissioners sanction was not necessary and that the suit as brought was maintainable. He, therefore, remanded the case to the Munsiff. In a miscellaneous appeal against the order of remand it was contended before the High Court that the order of remand was incorrect. It was held by the High Court that the reliefs asked for in that case did not fall within the purview of S.92, C.P.C., and that the suit was maintainable without the sanction of the Deputy Commissioner. In those circumstances the order of remand was upheld and in that connection reference was made to 10 Rang 342 and - Budree Das v. Chooni Lal, 33 Cal 789. 13 Mys LJ 98, therefore, does not lay down that in a suit under S.92, alienees are not necessary much less proper parties at all nor was it necessary in that case to decide that question. We do not think, therefore, that 13 Mys LJ 98, in any way concludes the matter. In 10 Rang 342, it has, no doubt, been decided that strangers to the trust are no proper or necessary parties in a suit under S.92 and that no relief can be granted against them in such a suit. In coming to that conclusion Page, C.J. has differed from the Madras, Bombay and Calcutta decisions.

7. On the other hand there are several cases in which it has been held the other way. In - Anjaneya Sastri v. Kothandapani, 1936 Mad WN 345, Varadachariar and Stodart, JJ., held that alienees from a trustee of property belonging to the trust are not necessary parties but are proper parties to a suit under S.92, C.P.C., even though no relief can be granted against them regarding the alienation especially when they deny the existence of the trust and the title of the trust to the properties alienated; and that persons suing under S.92 have to establish as their cause of action (1) that there is a trust, express or constructive, created for public purposes of a charitable or religious nature and (2) that it has been broken. In that view persons who deny title of the trust and on that footing claim to be in possession of the property which is necessary for the proper discharging of the trust are proper parties to the suit when in their absence the Court cannot effectually and completely adjudicate the question. Varadachariar, J. after reviewing all the previous Madras and Allahabad cases refused to follow the Rangoon case referred to above. The Rangoon case has been expressly dissented from in that judgment. Their Lordships place their conclusion on another ground also that S.92 contains no provisions for the joinder of parties or causes of action and can create no exception to the general rules on that subject which are to be found in Orders I and II, C.P.C. They observe that grounds of mis-joinder are not to be set up to de lay decisions or multiply litigation. Therefore even if the impleading of third party transferees under S.92 is irregular, the decree passed by a competent Court alter a fair contest will not be set aside merely because there has been an irregularity of procedure in impleading third parties. In -Abdul Majid v. Akhtar Nabi, 39 Cal WN 11G3, it has been held that a stranger who purchases or receives trust property through a trustee with notice of the trust is in law a constructive trustee although he may not after his purchase act in the interest of the trust. Accordingly an alienee of trust property who according to the allegation in the plaint purchased with notice of the trust. is a proper party in a suit under S.92, C.P.C. and such a suit is maintainable against him. In - Ratan Sen v. Suraj Bhan, AIR 1944 All 1, it has-been held, relying upon - Ramrup. Goshain v. Ramdhari Bhaghat, AIR 1925 All 683, that in a suit under S.92 third party transferees of the alleged trust property who claimed the property in their own right or deny the validity of the trust can be impleaded and the declaration that the property is trust property can he granted, against tnem. In - Collector of Poona y. Bai Chanchalbai, 35 Bom 470 also it has been held that where a breach of trust is complaned of and where the alienee of trust property denies. that the property is the subject of public trust, for religious purposes he is a proper and necessary party to a suit brought under the provisions of S.539 Civil P.C., 1882, though no relief can be given as against him by way of a decree in ejectment.

8. Mr. Gundappa has also relied on a case reported in - Pragdasji v. Ishwarlalbhai, AIR 1962 SC 143, and has argued that the finding as to the existence of a public trust in circumstances like those in the present suit would be no more than an obiter dictum and cannot affect his client and that, therefore, there is no object in. making an alienee like his client a party. But it is seen that the case in. AIR 1962 SC 143 was brought for a declaration that the properties in suit were subject of a public trust of a religious character and that the defendant had been acting in a manner contrary to the usages of the institution and was guilty of incontinence, mismanagement and improper alienation of trust properties. It was found by the District Judge who tried the suit that the allegation of misconduct and breach of trust were not proved and in this view he dismissed the suit but made a declaration that the temple and the properties in the possession of the defendant were public, religions and charitable properties. Their Lordships of the Supreme Court pointed out that a suit under S.92, C.P.C., is a suit of a special nature. It presupposes the existence of a public trust of a religious or charitable character and can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration thereof and it must pray for one or the other of the reliefs that are specifically mentioned in the section. The defendant had denied the existence of the trust and denied further that he was guilty of misconduct or breach of trust. Though his denial could not certainly oust the jurisdiction of the Court when the Courts had found concurrently on the evidence adduced by the parties that the allegations of breach of trust were not made out, the very foundation of a suit under Section 92, C.P.C., was wanting and the plaintiffs had absolutely no cause of action for the suit they instituted". They accordingly held that in a suit framed under Section 92, C.P.C., a relief praying for a declaration that the properties in suit are trust properties does not fall within the reliefs which can be claimed under that section. When the defendant denies the existence of a trust a declaration that the trust does exist might be made as ancillary to the main relief claimed in the plaint if the plaintiff is held entitled to it. But when the case of the plaintiff fails for want of a cause of action there is no warrant for giving him a declaratory relief under the provisions of section 92, C.P.C. The finding as to the existence of a public trust under such circumstances would be no more than an obiter dictum and cannot constitute a final decision in the suit.

9. In view of the finding of the Court below, with which we agree, viz., that the suit property is trust property and that a public trust of a religious or charitable character has been created by the will of Hanumantnappa and that there has been a breach of that trust and mismanagement which necessitates an interference by the Court under Section 92, C.P.C., the Supreme Court case can have no application to the present case and it is to be decided" in the light of cases reported in - Collector of Poona v. Bai Chanchalbai, 35 Bom 470, - Ratan Sen v. Suraj Bhan, AIR 1944 All 1, - Abdul Majid v. Akhtar Nabi, 39 Cal WN 1103 and - Aajaneya Sastri v. Kothandapani, 1936 Mad WN 245 (2).

10. In the result, we think that the judgment and decree of the learned District Judge are correct. This appeal fails and is accordingly dismissed with costs. Advocates fee Rs.50/-. Appeal dismissed. AIR 1953 MYSORE 27 (Vol. 40, C.N. 12) "Subba Rao v. Venkata Rao" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) Subba Rao, Petitioner v. B. Venkata Rao and others, Respondents. Criminal Revn. Petns. Nos.132 and 133 of 1952-53, D/- 5 -11 -1952. (A) Criminal P.C. (5 of 1898), S.145, S.439 - LAND DISPUTE - REVISION - Finding of fact. The High Court seldom interferes on facts with in order passed under S.145 and S.146. AIR 1934 Pat 33, 37 Mys HCR 282, Rel. on. (Para 4) Anno : Cr.P.C., S.145 N.61; S.439 N.15. (B) Criminal P.C. (5 of 1898), S.145 - LAND DISPUTE - Dispute between rival landlords. Where the tenant who had the tenancy has not surrendered possession to his landlord, the claim to have attorned himself to a third person does not make the tenancy under previous landlord cease to operate. The dispute thus between rival landlord for the benefits of a tenancy can be maintained. 15 Cal 527; ILR (1948) 1 Cal 150, Rel. on. (Para 5) Armo : Cr.P.C , S.145 N.25, 26. (C) Criminal P.C. (5 of 1898), S.145 - LAND DISPUTE - POSSESSION - Declaration of landlords possession. The declaration that one of the parties was entitled to possession should be made exclusively to the landlord without taking into consideration that the tenant was in actual possession. (Para 5) Anno : Cr.P.C., S.145 N.52. (D) Criminal P.C. (5 of 1898), S.145 - LAND DISPUTE - TENANCY - Dispute between Landlord and tenant. In a dispute between the landlord and tenant the Court is not precluded from declaring the possession of one landlord against the rival landlord. Though such possession in favour of the landlord is declared the tenant cannot be deprived of the actual possession in spite of the fact that he has attorned himself to the rival landlord. Case law discussed. (Para 6) Anno : Cr.P.C., S.145 N.52. Cases Referred : Chronological Paras (88) 15 Cal 527 5 (29) AIR 1929 Cal 632 : (30 Cri LJ 982) 6 (48) ILR (1948) 1 Cal-150 5, 6

37 Mys HCR 282 4 (38) AIR 1938 Mad 654 : (39 Cri LJ 922) 6 (45) AIR 1945 Mad 255 : (46 Cri LJ 730) 6 (34) 35 Cri LJ 611 : AIR 1934 Pat 33 4 M.P. Somasekhara Rao, for Petitioner; H.V. Narayana Rao, for No.1 and Maloor Subba Rao, for Nos.2 to 5, for Respondents. Judgement These petitions arise out of an order passed by 1st class Magistrate, Sagar under S.145, Cr.P.C., in a dispute between two rival land-lords through a common tenant. Being satisfied that there was likelihood of breach of peace the learned Magistrate passed a preliminary order on 4-10-50 and ultimately found the first member of the first party to be entitled to possession of the properties until evicted in due course of law.

2. Cr.R.P.132/52-53 is filed by the tenant who is impleaded as the first member of the second party and the other members of the second party have filed Cr.R.P.133/52-53. Both arise out of a common order and are heard together.

3. The facts leading to the petitions are briefly these. It is undisputed that the property in dispute belonged to one Lakshmiah and after his death, his widow Appi alias Gowramma was in enjoyment till 1945 when she died leaving no heirs. The 1st member of the II party was admittedly cultivating the lands on behalf of the owner even from the time of Lakshmiah. After the death of Gowramma, there are rival claimants competing for the title and possession of the properties on the ground of being the nearest heirs to the said Lakshmiah. The 1st member of the I party claiming as the nearest heir is said to be in possession of the properties in dispute as also other properties belonging to lakshmiah. The 2nd member of the II party has purchased the properties from the 5tb member of the n party in the year 1950 and subsequent to that it is stated that the purchaser leased out the properties to the 1st member of the II party. Both the parties admit the 1st member of the II party to be in actual possession of the property; but each of them claims him to be his tenant to the exclusion of the other.

4. The 1st member of the I party affirms that he succeeded to the properties of Lakshmiah and that the 1st member of the II party who was a tenant under Lakshmiah and Gowramma continued to be a tenant under him also and executed a lease deed in his favour in the year 1949, while the 1st member of the II party has denied the title of the 1st member of the I party and has supported the title of the V member of the II party as being entitled to the properties, and on that ground avers that he put the purchaser, the II member of the II party in possession of the properties and obtained the geni tenure from him; Gowramma died in 1945, and when the tenant admits having put the purchaser in possession in 1950, it follows inferentially that he continued to be in possession till 1950, but no explanation is forthcoming as to who was the owner under whom he was a tenant between 1945 and 1950. Besides, according to the sale deed in favour of the II memoer of the II party, his vendor the V member of the II party, had no possession at the time of sale and could not, therefore, have put his vendee in possession and the attornment by the tenant gave him a right to claim constructive possession. After consideration of evidence, the learned Magistrate has believed that the 1st member of the II party has executed the lease deed of 1949 in favour of the 1st member of the I party and that the factum of lease finds further corroboration in Exs.IV, V and VI, the letters written by the tenant to the owner. No reason is shown why the finding of the learned Magistrate that the 1st member of the II party is the tenant of the I member of the I party should not be accepted. The High Court seldom interferes on facts with an order passed under sections 145 and 146. Where, therefore, no question of law is involved in the case and if on facts the High Court cannot hold that the reasons given by the Magistrate are entirely unsound and untenable, the High Court would not interfere - Saudi Mahto v. Sukhlal Mahto, 35 Cr. LJ 611: AIR 1934 Pat 33. The High Court on the revision side does not ordinarily interfere with the finding of fact by the trial Court (Vide 37 Mys HCR 282).

5. It is contended on behalf of the I party that the petition under Section 145, Cr.P.C., is not maintainable as the 1st member of the II party who is in actual possession has admitted the title of the landlord, the II member of the II party; it is further contended by the tenant that the order of the learned Magistrate declaring the first member of the I party to be entitled to possession is erroneous. The first contention is un-tenable. In - Sarbananda Basu v. Pran Shan-kar, 15 Cal 527 it is laid down that a dispute between two landlords in respect of rival claims can be enquired into under section 155, Cr.P.C. In that case, a dispute arose as to the right to collect the rents of certain land, the ownership of which was claimed by both A and B and the tenants who had been paying rents to A refused to pay rent to A and attorned to B; it was held that the conduct of tenants in attorning to B was not an assertion of possession adverse to A so as to put an end to the relation of landlord and tenant between them and A, and As right to collect rents. Such attornment did not deprive A of his right to have recourse to section 145 in case of a likelihood of a breach of peace, so as to have the possession of a right to collect the rents maintained pending proceedings in civil Court. Similarly it is observed in - Karnadhar Ray v. Sailendra Nath, ILR (1S4S) 1 Cal 150 that "under section 145 Cl.(2) it is permissible for the rival landlords to claim possession to disputed lands through tenants". In the present case, the tenant who had the tenancy, has not surrendered possession to his landlord, and the claim to have attorned himself to a third person does not make the tenancy under the previous landlord cease to operate merely because he has voluntarily chosen to attorn himself to a different person; the dispute thus between rival landlords for the benefits of a tenancy can be maintained. The next point that was urged on behalf of the tenant appears to have some force in the sense that the declaration should have been made exclusively to the landlord without taking into consideration that the tenant is in actual possession.

6. It was further contended that possession should have been declared exclusively to the tenant and reliance was placed on the decision reported in - Ranga Ragu v. Srinivasa Jaganna-tha, AIR 1938 Mad 654 and - Karnadhar Ray v. Sailendra Nath, ILR (1948) 1 Cal 150. In the Madras case, the dispute related to a question between actual possession of the landlord and tenant and an argument was raised that a tenants actual possession is the landlords actual possession. Pandrang Rao, J., observed that it was conceded that if the dispute about the land is between a landlord and a tenant this doctrine cannot possibly be applied and, the exception has admittedly to be made in the case of a dispute between co-owners inter se. The Calcutta case referred to above relates to a dispute between landlord and tenant and Lodge, J. observed that "I have no doubt that when the parties to a dispute regarding possession of land, are rival landlords, claiming possession through different groups of tenants, the possession of a group of tenants may amount to possession by the landlords of that particular group". These cases are not of much help in disputes between rival landlords; but in a case of dispute between the landlord and a tenant, the actual possession should be distinguished from the possession implied by law. This proposition is accepted in - Venugopal Mudaliar v. Neelakanta Mudaliar, AIR 1945 Mad 255, where Happell, J., laid down that "as between a landlord and tenant the rule that the possession of the tenant is the possession of the landlord does not apply, but as between rival landlords or between the landlord and the tenant of another landlord the rule will apply for the purpose of a declaration under section 145." The learned Judge commented upon the Judgment of Pandrang Row, J., in the following term: "It is true that in that case Pandrang Row, J., refused to accept the contention that the tenants actual possession is the landlords actual possession and held that respondent 1 in the case before him, even though his tenants were in possession would not be entitled to a declaration in his favour. With great respect, however, it does not seem that a decision on this point was entirely necessary to a decesion of the case" and observed that "I know of no case in which a Court has gone so far as to hold that a declaration under section 145 cannot be given in favour of a landlord as against a rival landlord where his tenants were found to be in actual possession on the date when the preliminary order was passed. As between a landlord and his own tenants there is authority for the proposition that the rule that the possession of the tenant is the possession of the landlord does not apply. See Weirs Rulings under the Code of Criminal Procedure (pp.11-107). But it seems implicit in the ruling that as between rival landlords or between a landlord and the tenants of another landlord the ordinary rule will apply". It, therefore, follows that in a dispute between the landlord and tenant the Court is not precluded from declaring the possession of one landlord against the rival landlord. Though such possession in favour of the landlord is declared the tenant cannot be deprived of the actual possession in spite of the fact that he has attorned himself to the rival landlord. Graham, J., in a Bench decision of the Calcutta High Court reported in - Suraj Mia v. D. Tullock, AIR 1929 Cal 632 held that "Where a proceeding under section 145 was drawn in respect of certain land a portion of which was in possession of tenants who had attorned to some of the second party and where the Magistrate had declared the possession of the first party in respect of the whole of the disputed property. Held: that in a summary proceeding of this kind the right of the tenants to be maintained in possession of the land of which they were in occupation was not affected and the order of the Magistrate was modified inasmuch as the lands in possession of the tenants were concerned the possession of the first party was declared through those tenants". I respectfully agree with the principle laid down in this case.

7. The dispute in the present case is essentially of a civil nature between the rival landlords. Parties often resort to criminal Courts for the settlement of their civil disputes. The object of Section 145, Cr.P.C., is not to allow parties to bring their civil disputes before a criminal Court; litigants often resort to the criminal Court with the object of getting an easy remedy without expense. This practice should be discouraged as the scope of the provision is to give a temporary remedy for the main purpose of maintaining peace in the event of the likelihood of breach of peace.

8. The learned Magistrate has declared the members of the party "to be entitled to possession of the properties in dispute described in the schedule annexed to the preliminary order, until evicted therefrom in due course of law and forbid all disturbance of such possession until such eviction". The wording of the order implies that they are entitled to constructive possession as there is little doubt that the 1st member of the n party is admittedly in actual physical possession on behalf of his landlord. It is liable to be construed that even the member of the II party who is the tenant in actual possession is forbidden to enter upon it. Section 145 is not concerned about the right to possession but the actual possession and as the dispute relates to the respective claims of two landlords; the possession of the tenant will be the possession of the landlord. Hence in modification of the order of the learned Magistrate, it is declared that the 1st party members are in possession through their tenant the 1st member of the II party. With this modification, the order is confirmed and both the petitions stand dismissed. Revisions dismissed. AIR 1953 MYSORE 29 (Vol. 40, C.N. 13) "Muthegowda v. Naranappa" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) Muthegowda, Plaintiff-Appellant; v. Shanbhogue Naranappa, and others, Defendants-Respondents. Second Appeal No.636 of 1948-49, D/- 17 -6 -1952. (A) Transfer of Property Act (4 of 1882), S.105 - LEASE - TENANCY - Permanent tenancy - Construction of leases. ln the absence of any words of inheritance a grant cannot prima facie be construed to create a hereditary interest, though the want of appropriate words conveying such an interest may be supplied by the purpose of the grant, custom or usage, appropriate to such locality, evidence of long uninterrupted enjoyment at a fixed unvarying rent or by subsequent recognition and conduct of parties. These surrounding circumstances must however be unequivocal. (Para 6) Anno : T.P. Act S.105 N.47 Pt. 1. (B) Transfer of Property Act (4 of 1882), S.105 - LEASE - TENANCY - WORDS AND PHRASES - Permanent tenancy - Construction of leases. Words and Phrases - Khayam, Guttige Kagada. The words "Khayam Guttige Kagada" which may be translated as "fixed or confirmed lease deed" do not per se imply that the lease is perpetual and inheritable. (Para 8) Anno : T.P. Act S.105 N.47. Cases Referred : Chronological Paras (66-67) 11 Moo Ind App 433 : (9 WR PC 3) 6 (36) 12 Cal 117 : (12 lnd App 205 PC) 6 (41) AIR 1941 All 306 : (195 Ind Cas 515) 6 (43) AIR 1943 Bom 148: (207 Ind Cas 62) 6 (40) AIR 1940 Cal 89 : (ILR (1939) 2 Cal 254) 4 (32) AIR 1932 Lah 586 : (13 Lah 432) 4 (92) 15 Mad 199 9 (94) 17 Mad 218: (3 Mad LJ 287) 6 (19) AIR 1919 Mad 897 : (46 Ind Cas 62) 6 (30) AIR 1930 Mad 434 : (125 Ind Cas 242) 6 (45-46) R.A. No. 157 of 1945-46 (Mys) 6 (29) AIR 1929 Nag 23 : (110 Ind Cas 487) 4 E. Kanakasabhapathy, for Appellant; E.S. Venkataramaiya, for Respondents. Judgement The short point that falls for consideration in this appeal is whether the lease-deed executed by the plaintiffs father gives the plaintiff a permanent heritable right. The two courts below have come to the conclusion that the document merely granted a permanent lease only for the life time of the lessee and did not grant any hereditary right. The plaintiff has preferred this appeal against those decisions.

2. The plaintiff has brought the suit from which this appeal arises, for a declaration of his right to the suit schedule property and for permanent injunction. The plaintiffs fattier, Dodda Muthegowda, obtained the lease of the schedule land from one Krishna Singh and executed a lease deed (Exhibit A) dated the 20th May 1915 in favour of the latter. The said lease has been referred to in Exhibit B, a will dated 30th August 1915 executed by Krishna Singh, wherein it is mentioned that the plaintiffs father should comply with the terms of the lease after Krishna Singhs death. The plaintiffs father enjoyed the property for some years and he is said to have died about 8 or 10 years ago. The successors-in-interest of the said Krishna Singh sold the property to defendant 1 for a sum of Rs.2500/- and defendant 2 has been impleaded as a tenant in possession under defendant 1.

3. The crucial point upon which the decision of this appeal turns is the interpretation of Ext. A, the lease deed executed by Dodda Muthe Gowda, a copy of which is proved in the case, the original not having been disputed. Mr. Kanakasabhapathy for the appellant contended that the tenure granted under the lease deed is not only permanent but also heritable, and that as the said right has been confirmed in Ext. B the expression "Khayam Gutta" used in Ext.A should be taken as meaning a permanent lease, especially as there is no indication in the document limiting its duration to the lifetime of the lessee and as no right of re-entry has been reserved. In support of his contention he relied upon a number of decisions which are not of much avail.

4. In - Biju Bapu v. Munnalal, AIR 1929 Nag 23, the document contained the expression "hamesha kareetha" which was interpreted as meaning "for ever." The Court held that in the absence of words indicating that a heritable estate was intended to be created in favour of the lessee the words "hamesha, kareetha" should be interpreted to mean only "for life". In the case reported in - Sohawa Singh v. Kesar Singh", AIR 1932 Lab. 586, the High Court held that in the absence of any reservation of re-entry, the lease must be held to be normally heritable. The case reported in - Anwarali Bepari v. Jamini Lal, AIR 1940 Cal 89, also relied upon by the learned Advocate for the appellant, can be distinguished inasmuch as it was a lease from month to month which was neither for agricultural nor manufacturing purposes, coming within the purview of S.106, T.P. Act; it was held therein that the tenancy created was a tenancy-at-will and could be determined on the death of either party i.e., the tenant or the landlord. The lease in that case was created after the T.P. Act came into force.

5. On behalf of the respondents, Mr. E.S. Venkataramaiya, urged that Ext.A though termed as a khayam gutta lease does not contain any words indicating continuity after the death of the lessee. He argued that since the lease under consideration was created before the T.P. Act came into force in Mysore, the question whether such a lease conveyed a hereditary or perpetual right or not must be determined by the presence of appropriate words to that effect, or in their absence, by the surrounding circumstances or the conduct of parties and that in this case all the considerations lead to the inference that no such right was intended or conveyed.

6. In many cases, leases are denned by certain well-known terms which have now assumed more or less definite import and are recognised as forming the necessary equipment of the Indian conveyancers vocabulary. It is in this sense and not in their lexigra-phical sense that such words must be construed. In an early case reported in - Tulshi Pershad Singh v. Ramnarain Singh, 12 Cal 117 (PC) their Lordships of the Privy Council explained that the words "istemrari mokurari", contained in a potta do not by themselves denote that the estate granted is one of inheritance; they were of opinion that in addition to those words, there must be such expressions as "ba farzandan" (meaning "including children or descendants") or "naslan bad naslan" (literally "from generation to generation") or similar words and that without the latter, the other terms of instrument, the circumstances under which it has been made or the conduct of the parties may show the intention with sufficient certainty to enable the court to pronounce the grant to be perpetual and in the circumstances of that particular case they were of opinion that definite intention of heritability was not shown. It is thus clear that in the absence of any words of inheritance a grant cannot "prima facie" be construed to create a hereditary interest, though the want of appropriate words conveying such an interest may be supplied by the purpose of the grant, custom or usage, appropriate to such locality, evidence of long uninterrupted enjoyment at a fixed unvarying rent or by subsequent recognition and conduct of parties. These surrounding circumstances must however be unequivocal. The Calcutta case referred to above has been followed by a Bench of the Madras High Court, vide - Rajaram v. Narsasinga, 15 Mad 199 where the words used in the document were "Khayam Saswata ijara patta" translated as "confirmed, permanent ijara (lease) patta." The learned Judges held that the expression "khayam saswatha" is not easy to distinguish from the words "istemrari mokurari" which the Privy Council in the Calcutta case held, do not per se convey an hereditary estate unless used in conjunction with words denoting from "generation to generation" or "with sons." In that particular case 15 Mad 199 it was also observed that the conduct of the parties, no less than the language of the instrument, raised a presumption that the lease was not intended to be hereditary. In a later case of the Madras High Court, reported in- Rama Iyengar v. Guruswamj Chetti, AIR 1919 Mad 897. Abdul Rahim J. held that the incidence of "Khayam saswatha patta" in the Madras Presidency and the tests for determining its character are those laid down by the Privy Council in 12 Cal 117 (PC) as applicable to "istemrari mokurari" pattas in Bengal. The word patta itself is a generic term and embraces every kind of engagement between the lessor and the lessee. It does not prima facie give any hereditary interest apart from the other words importing inheritance: see - Dhanput Singh v. Gooman Singh, 11 Moo Ind App 433 (PC). In the Madras Presidency a Mirasdar is held to be a permanent tenant and the same sense is conveyed by the word "Niranter" in districts where Marathi and Kanarese are the prevailing languages - Unhamma Devi v. Vaikunta Hedge, 17 Mad 218. The trend of opinion in other parts of India also points to the fact that the tease which is for an indefinite period does not by itself import a heritable estate. The words of inheritance must be found before it can be said that the lease necessarily implies a perpetual heritable tenure. In - Saldanha v. Roman Catholic Church, Mermajal, AIR 1930 Mad 434 it was held that in respect of leases made for an indefinite period, it would enure, generally speaking, as far as the lifetime of the lessee and passes so interest to his heirs unless there are words showing an intention to grant a hereditary estate and that the absence of the words from "generation to generation" or "you and your descendants" are important circumstances to be taken into consideration in the interpretation of the instrument which was claimed to be a "moolgeni" lease as distinct from a "chalgeni" lease. On the other hand, the lease of property to a person simply without mentioning for how long would confer upon him an implied estate for life. In Jumma v. Madhusoodan Dayal, AIR 1941 All 306, Iqbal Ahmed J. held thus "A tenancy created for an indefinite period and terminable at the landlords will enure, at best, for the tenants lifetime. The interest acquired by the tenant is not heritable in the absence of the words showing an intention to grant a heritable interest and the tenancy terminates on the tenants death." It is also equally clear that merely because the lessees interest is made transferable, it does not mean that it is also heritable. It was so held by Beaumont, C.J., in - Donkangouda Ramchandragouda v. Revanshiddappa Shivalingappa, AIR 1943 Bom 148. The rent note in that case, executed by the tenant in favour of the landlord, provided that on paying an annual rent, the lessee should be continued in possession and should net be evicted. There was alas a stipulation that the rents should not be raised; it was held that the document created only a tenancy for the lifetime of the lessee, and that therefore, on his death, possession of his heirs, became adverse to the landlord. The learned Chief Justice further observed, that in India there is no settled system of conveyancing and a permanent tenancy might be created without the use of any words of inheritance, although if the intention was to create a permanent tenancy, one would expect to find a reference to heirs or successors; but that in order to constitute a permanent tenancy, the court must be able to say from the terms of the document which creates it that the lease would continue after the time at which according to its terms, it would normally expire, namely, after the death of the lessee. In a judgment of this court marked Exhibit XIX (R.A. 157 of 45-46) where the stipulation was to pay a cash rent every year, 3t was held that in the absence of any indication in the lease that the lease should continue, even after the lifetime of the lessee it would expire at the death of the lessee.

7. Where however the words used in a lease are themselves not free from ambiguity, it is then necessary to refer to the circumstances under which the lease was given, the relationship of the parties and their subsequent conduct, in order to ascertain the exact nature of the terms agreed span.

8. Applying these principles of law, enunciated in the foregoing cases to the facts of the present case, we have no doubt whatever that Doddamuthegowda got only a life interest and nothing more under the original of Ext.A; the words used in the said document are very important in construing the nature of the interest conveyed under it. The document begins with the words "Guttige kagada" meaning "lease deed" and ends with the words "khayam guttige kagada" which may be translated as "fixed or confirmed lease deed." They do not per se imply that the lease is perpetual and inheritable, in the light of the various decisions, holding that the words "khayam" or "Saswatha" do not by themselves operate to create any interest beyond the lifetime of the grantee; the surrounding circumstances also support this conclusion. In Ext.A there is a stipulation that the grantee should look after the cocoanut plants, and replant such as those which are decayed and get destroyed, implying thereby that the granter had reserved some interest for himself. The subsequent conduct of the grantee also is hardly consistent with that of a person who had taken a perpetual and a heritable lease. Exhibit VII series are the letters in which he as stated that owing to want of rains, the crops have failed and that he was not prepared to cultivate the land and that it may be taken back; while in Exts.8 and 8(b) which are money-order coupons, undoubtedly referring to the suit land, he has similarly stated that the wet land may be taken back as it was difficult for him to cultivate and may be given to somebody else. D.W.5 who is the Post Master of the village, states that he wrote those letters and M.O. coupons as instructed by the plaintiff. If the lease was khayam or permanent in the sense that it was heritable, the original lessee would hardly have thought of surrendering the same even before his dearth. Besides it is rather too much to imagine that Krishna Singh would part with all his rights in the property, the major portion of which is garden land, measuring four acres, for a mere pittance of Rs.32/- per annum, in favour of the grantee who is neither his relative nor even his caste-man. It is thus clear that both on the interpretation of the document as well as on a consideration of all the relevant circumstances of the case including the subsequent conduct of the parties, the lease deed cannot be held to grant a heritable estate in the property.

9. In the result, I do not see any reason to disagree with the concurrent decisions of the Courts below. The appeal therefore fails and is dismissed with costs. Advocates fee is Rs.50/-. Appeal dismissed. AIR 1953 MYSORE 31 (Vol. 40, C.N. 14) "Gullegar Setty v. State of Mysore" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Gullegar Setty, Accused-Petitioner v. The State of Mysore. Criminal Revn. Petn. No.288 of 1951-52, D/- 10 -9 -1952. (A) Mysore Prohibition Act (37 of 1948), S.4(1)(j) - PROHIBITION - EVIDENCE - Burden of Proof. Evidence Act (1 of 1872), S.106. Where the prosecution has proved that the accused was found to have consumed liquor, without being intoxicated, in a "dry" area, at a place and under circumstances which profeabilise that he did so in a dry area it is for the accused to plead and prove that he took the drink in a non-prohibition or "wet" area: AIR 1952 Sau 35 Dissented from. (Para 3) Anno : Evidence Act, S.106 N.2. (B) Evidence Act (1 of 1872), S.106 - EVIDENCE - OBJECT OF AN ACT - Scope. Section 106 cannot be invoked to make up for the inability of the prosecution to produce evidence of circumstances necessary to prove the guilt of the accused. But where the facts proved by the evidence give rise to a reasonable inference of guilt unless the same is rebutted, and such inference can be negatived by proof of some fact which in its nature can only be within the special knowledge of the accused, S.106 can be applied and its effect considered while weighing the evidence. (Para 6) Anno : Evidence Act, S.106 N.1. Cases Referred : Chronological Paras (36) AIR 1936 All 833 : (38 Cri LJ 205) 6 (18) 19 Cri LJ 189 : (AIR 1918 Mad 111) 6 (52) AIR 1952 Sau 35 : (1952 Cri LJ 737) 3, 5 Gulur Srinivasa Rao, for Petitioner; A.R. Somanatha Iyer, Advocate General, for the State. Judgement The petitioner has been convicted by the Special First Magistrate, Shimoga, for an offence under S.4(1)(j), Mysore Prohibition Act, and sentenced to pay a fine of Rs.100/-. On appeal, the Sessions Judge, Shimoga, confirmed the conviction and sentence. He has now come up in revision.

2. The case for the prosecution was that the petitioner was found on the Ayanoor Shimoga road to have consumed intoxicating liquor on the night of 23-4-1951 when he was travelling as a passenger in a car with his wife, and when the car was stopped by the Police Inspector of Shimoga Taluk coming to Shimoga in the opposite direction. It is not disputed that the whole of Shimoga District is a prohibition or "dry" area and that the Prohibition Act fully applied in that area; nor is it now contended that the accused had not consumed any liquor. But Mr. Gulur Sreenivasa Rao, learned Counsel for the petitioner, has raised a rather interesting question and that is that the case of his client does not fall under S.4(1)(j), Prohibition Act, which refers to consuming liquor or any intoxicating drug within a "dry" area. He urges that in a case like the present, it is not enough for the prosecution merely to establish that the accused had taken some liquor somewhere and was found smelling of liquor within the prohibited or "dry" area, but it should also be shown positively that he had consumed that liquor within that area. He presents that it has not been proved in this case that the accused had actually consumed the liquor within such area. In this connection he has referred to S.5, prohibition Act. According to that section, a person is liable to punishment if he is found in a state of intoxication in any public place, or if he is found in such a state even in a private place if he does not possess a permit to drink. He urges that reading S.5 along with S.4(1)(j) it is only if a person is found in an intoxicated state in a dry area that he can be punished, while under S.4(1)(j), he can only be punished if it is proved that he had actually consumed liquor within that area and that in the latter case the burden of proving where the liquor was consumed is entirely on the prosecution.

3. I am unable to accept that contention. Section 5, Prohibition Act, applies no doubt to cases where, irrespective of the place of drinking, the accused is found" intoxicated either in a public place or in a private place within a "dry" area, and S.4(1)(j) to cases where the accused has consumed liquor within the "dry" area. In the latter ease proof of the intoxicated condition is not necessary. But where in a case like the present the prosecution has proved that the accused was found to have consumed liquor, without being intoxicated, in a "dry" area, at a place and under circumstances which probabilize that he did so in a dry area it is really for the accused to plead and prove that he took the drink in a non-prohibition or "wet" area. The exact place where the accused actually drank the liquor is a matter specially within his knowledge. In the ordinary course of events, he may be expected to have taken it somewhere locally in the vicinity where he is found. It is open to him to show that he took the liquor in a "wet" area and had travelled or moved into a "dry" area while the effects of drinking were still persisting. In this connection Mr. Sreenivasa Rao has strongly relied on a case reported in - State v. Pranjivan Gendalal, AIR 1952 Sau 35. In that case the accused was found in Bhavanagar in a drunken condition. He was charged with an offence under S.66(b), Bombay Prohibition Act, of having consumed an intoxicant without a permit. There was no evidence on record as to where the accused had actually taken the intoxicant. The learned Sessions Judge found that it had not been proved that the respondent had taken an intoxicant within the limits of the jurisdiction of the Magistrate who had tried the accused and convicted him; and he, therefore, held that the accused could not be convicted at Bhavanagar of the offence of having taken ark intoxicant within that area. Upholding that decision, Chhatpar, J., observed that there could be no presumption that in the natural course of events a person should be considered to have taken liquor at the place where he was found drunk. "The effect of drink may last for several hours and during that interval a man may proceed from place to place"; the local limits of the jurisdiction of the Magistrate at Bhavanagar were confined to the limits of that Taluka and another adjoining area and it was quite possible that a person may reach Bhavanagar from outside such limits within a very short period of time especially in view of quick travel by plane or railway.

4. The Advocate-General, who appeared for the State in that case, had put forward two-contentions. He urged that under S.114, Evidence Act, a Court may presume that liquor could have been drunk at the place where the accused was apprehended; and obviously there could be no such general presumption of law or fact under that section as rightly observed in that case. It would be a fact to be determined in each ease, though if a man was found with the effects of drink on him in a dry area far away from a wet area where the drink could have been taken, the Court would be naturally justified in relying on it as an ordinary probability taken along with the evidence that the accused must have consumed the liquor in the dry area. Under S.5 no person in a dry area is allowed to keep or drink liquor without a permit and the accused would have to explain how he came by the drink. The Advocate-General had also relied upon S.106, Evidence Act, and argued that as the fact of drinking was within the special knowledge of the accused, the burden lay upon him to prove that he drank liquor outside the limits of the jurisdiction of the Magistrate. Chhatpar, J., said that S.106 no doubt applied to criminal cases, but relying on the illustration to that section he thought that that section could only apply if the prosecution could not prove a negative fact. He held that positive facts giving jurisdiction to a Court must in all cases be established by evidence by the prosecution.

5. With great respect to that learned Judge, I am unable to fully agree with him with regard to the scope of S.106, Evidence Act. It says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It gives two illustrations. The first illustration relates to some intention which the accused may have had and which is specially within his knowledge and which might have a bearing an his guilt or innocence. Illustration B is a case of travelling on a railway without a ticket; as the fact whether he provided himself with a ticket before he boarded the train is a matter clearly within the special knowledge of a person accused of such an offence, this illustration says that the burden of proving that he had a ticket is on him. Those illustrations cannot be exhaustive of all cases. It is obviously impossible for the prosecution to establish the exact place where the accused could have taken his drink. If the accused pleaded and proved that he took the drink in an area where it was not an offence to do so he may no doubt be not guilty of an offence under S.4(1)(j). The prosecution cannot prove a negative, viz., that he did not drink in a non-prohibited or "wet" area; or that he consumed his drink within any particular place in the prohibited area, which is a matter peculiarly within the accuseds knowledge. The case in - State v. Pranjivan Gendalal, AIR 1952 Sau 35 was really concerned more with the question of jurisdiction and has reference to some special topography of the area. Though some observations in that case might lend some support to Mr. Gulur Sreenivasa Raos argument, I do not think he can contend on their strength that his client is not guilty. The accused in this case did not plead or show that he had taken the liquor in a wet area and had subsequently come into the dry area. He totally denied he had consumed any drink at all and both the Courts have rightly held that he had done so.

6. As pointed out in - Rambharose v. Emperor, AIR 1936 All 833 there is no doubt that S.106, Evidence Act, cannot be invoked to make up for the inability of the prosecution to produce evidence of circumstances necessary to prove the guilt of the accused. But where the facts proved by the evidence give rise to a reasonable inference of guilt unless the same is rebutted, and such inference can be negatived by proof of some fact which in its nature can only be within the special knowledge of the accused I do not see why S.106 should not be applied and its effect considered while weighing the evidence. As observed in a Madras case reported in - E.D. Smith v. Emperor, 19 Cri LJ 189 (Mad) at p.194 : "No doubt an accused is always entitled to hold his tongue; but where the only alternative theory to his guilt is a remote possibility which, if correct, he is in a position to explain, the absence of any explanation must be considered in determining whether the possibility should be disregarded or taken into account. The provisions of Ss.106 and 114, Evidence Act, are not without bearing on the point." I, therefore, see no reason to interfere with the conviction of the petitioner and the same is affirmed.

7. As regards sentence Mr. Gulur Sreenivasa Rao has urged that the fine of Rs.100/-is too much. The evidence in this case is that the accused was in a private motor car and it is not established that he was in an intoxicated condition or was otherwise making himself objectionable. I think in the circumstances of the case the fine is rather excessive and I reduce it to Rs.50/-. The excess of fine, if it has been collected, will be refunded to the accused. Subject to this slight modification in the sentence this revision petition is dismissed. Revision dismissed. AIR 1953 MYSORE 33 (Vol. 40, C.N. 15) "Rama Rao v. Jayamma" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) B.V. Rama Rao, Defendant-Appellant v. Jayamma, Plaintiff-Respondent. Second Appeal No.231 of 1949-50, D/- 26 -6 -1952. Contract Act (9 of 1872), S.23 - CONTRACT - AGREEMENT - Immoral agreements. The crucial consideration in cases of contracts founded on immoral considerations is this; what is the real consideration for the agreement? The ease has to be decided upon the construction of the document itself with the help of such extrinsic evidence if any, of the circumstances as may be available to show the relationship of the written agreement to the existing facts. If the evidence discloses specifically that future cohabitation formed part of consideration, then it is clearly void in law and equity; but if the agreement relates to past cohabitation it is not rendered invalid by the mere fact that the parties contemplated a continuance of cohabitation: (1904) 21 TLR 7; (1884) 26 Ch D 353 Relied on. (Para 4) Principles governing such contracts stated. (Para 4) Held, on the construction of the agreement and evidence, that the suit agreement containing a stipulation to pay future maintenance is not vitiated by the mere fact that cohabitation might have been in contemplation, as it did not form part of the consideration and in consequence did not offend S.23, Contract Act. (Para 6) Anno : Contract Act (1872), S.23 N.3, 11 and 17. Cases Referred : Chronological Paras (05) 27 All 266 : (1 All LJ 632) 3

50 Mys HCR at p 86 3 (1884) 26 Ch 353 : (50 LT 574) 4 (1873) 16 Eq 275 : 42 LJ Ch 690 4 (1850) 3 Mac and G 94 : (20 LJ Ch 186) 4 (1904) 21 TLR 7 : 7 Halsbury 400 4 (1800) 5 Ves 286 : (5 RR 48) 4 B. Venkata Rao, for Appellant; C. Nagaraja Rao, for Respondent. Judgement The short point that arises for consideration in this appeal is whether the agreement upon which the suit is based is immoral and opposed to public policy and as such unenforceable under S.23, Contract Act. The Courts below concurred in holding that the agreement created a valid and enforceable contract and decreed the suit. The defendant has come up in second appeal.

2. Briefly stated, the facts that led up to the suit claim are these Jayamma the plaintiff is a married woman, having had a child by her husband. She was living with her father having been deserted by her husband, whose whereabouts remain unknown. The defendant who is also a married man, living with his family in the vicinity, is alleged to have had criminal intimacy with her for some time while she lived with her father and later he took her into his own house, where the two lived together apparently as man and wife. The result of their living together was that she conceived and the defendant made arrangements to send her to the hospital for confinement and ultimately she delivered a female child. During her residence with the defendant, an agreement was executed in her favour by the defendant on 10-3-1946, under the circumstances which will be adverted to later. The plaintiff has filed the suit on the basis of the said agreement, claiming a maintenance of Rs.30/- per month. The defendant admitted the execution of the said agreement but pleaded that it was the outcome of fraud, force and coercion; he further pleaded that the consideration for the agreement was opposed to public policy and offends S.23, Contract Act. The said agreement runs thus : "Jayamma, daughter of Angadi Subba Rao living as tenant in house No.11, in the said Narasimharaja Colony came to my house on the 24th day of December 1945 and she is living therein. She has a daughter about 2 years old. Since that date both of them are living in my house and under my protection. When she came to my house neither she (as per original) nor her husband, nor her father told me anything about her protection or maintenance. Even afterwards they did not tell. Since the time she came I have been keeping the said Jayamma and her child as per her desire under my care and in my house. I am bound to make proper arrangement for the maintenance of the said Jayamma and her baby. That is if she remains obedient to me I will make all arrangements for her maintenance during her lifetime. I will maintain the said Jayamma and her child in the same manner in which I would maintain my own family and see that she will have no trouble whatsoever while she stays with me. In case she deserts and goes away with her children, I have agreed to pay from the time a sum of Rs.30/- per month for her maintenance. Apart from this there is no other relief to be given. If this maintenance is not paid every month, the same may be recovered out of the liabilities of my property."

3. Mr. B. Venkata Rao, learned counsel for the appellant urged that in addition to the past services, the agreement contemplated future cohabitation, the two together forming consideration for the agreement and consequently the contract is rendered immoral and apposed to public policy. In support of his contention he relied upon the decision reported in - Alice Marry Hill v. William Clarke, 27 All 266. In that case, the plaintiff was in the service of the defendant, and they lived together as husband and wife; the agreement executed by the defendant, recited that out of gratitude to the plaintiff for the past services and "with a view that she may continue in my service. I bind myself to case I may dispense with her services to pay to her so long as I may be alive Rs.50/- per mensem." On these facts Aikman, J. held that future cohabitation was at least part of the consideration was for the agreement and that this was shown very clearly by the words "with a view that she may continue in my service" and that the agreement was therefore opposed to public policy and as such unenforceable. The Allahabad case is distinguishable from the facts of the present case, which bear a close similarity to the case of this Court reported in - 50 Mys HCR at p.86. In the Mysore case an unmarried woman was forced to live with a man and at a certain stage it was agreed that a sum of Rs.1000/- should "be paid by the man to the woman for having done wrong to her. On these facts, Venkataramana Rao, C.J., held that the promise contained in the agreement to continue to protect the woman, as he was in honour bound to do, did not form part of the bargain by which he agreed to give the said compensation and as such the agreement was perfectly valid and enforceable.

4. Obviously, the crucial consideration in cases of this kind is this: What is the real consideration for the agreement? The case "has to be decided upon the construction of the document itself with the help of such extrinsic evidence, if any, of the circumstances as may be available to show the relationship of the written agreement to the existing facts. If the evidence discloses specifically that future cohabitation formed part of consideration, then it is clearly void in law and equity; but if the agreement relates to past cohabitation, it is not rendered invalid by the mere fact that the parties contemplated a continuance of cohabitation (- Re : Wootten Issacson, Sanders v. Smiles, (1904) 21 TLR 89 : 7 Halsbury p.400). In - Vallance v. Blagden, (1884) 26 Ch D 353, six months before his death a testator gave a bond to a lady with whom he had cohabited for more than 30 years, conditioned for payment to her at the expiration of two years of a sum of money and interest and he continued to cohabit with her until his death. There was nothing on the face of the bond with reference to cohabitation and there was no evidence that it was in fact given to secure the continuance of cohabitation. Kay, J., held that the mere continuance of the cohabitation was not enough to raise the presumption that the bond was given in consideration of future cohabitation and accordingly that the bond was good. The principles governing such contracts were summarised by Lord Seaborne thus: "Most of the older authorities on the subject of contracts founded on immoral consideration are collected in the note to - Benyon v. Nettlefold, (1850) 3 Mac and G 94 at p.100. Their results may be stated: (1) Bonds or covenants founded on past cohabitation, whether adulterous, incestuous, or simply immoral are valid in law and not liable (unless there are other elements in the case to be set aside in equity) (2) such bonds or covenants, if given in consideration of future cohabitation, are void in law, are therefore of course also void in equity. (3) Relief cannot be given against any such bonds or covenants in equity if the illegal consideration appears on the face of the instrument ( - Gray v. Mathias, (1800) 5 Ves 286) (4) If an illegal consideration does not appear on the face of the instrument, the objection of particeps criminis will not prevail against a bill of discovery in equity in aid of the defence to an action at law (5) Under some (but not under all) circumstances when the consideration is unlawful and does not appear on the face of the instrument, relief may be given to a particeps criminis in equity". (Vide Ayerst v. Jenkins, (1873) 16 Eq 275 at pp.281, 284 : 42 LJ Ch 690). Commenting on this Pollock says "The exception alluded to in this last sentence is probably this that where a party to the illegal or immoral purpose comes himself "to be relieved from the obligation, he has contracted in respect of it, he must state distinctly and exclusively such grounds of relief as the Court can legally attend to. He must not put his case on the ground of immoral consideration having in fact failed or complain that the instrument does not correctly express the terms of an immoral agreement". In his book on Contracts (12th Edn., p.279) Pollock further states that "where a security is given on account of past cohabitation and the illicit connection, if afterwards resumed or even is never broken of the Court will not presume from that fact alone that the real consideration was future as well as past cohabitation, nor therefore treat the deed as invalid." 5. Applying these principles to the facts of the present case, what do we find? The agreement was given by the defendant to the plaintiff with whom admittedly he had been cohabiting; there is not a word on the face of the bond with reference to future cohabitation; if there had been, the bond would have become void. No doubt there may be circumstances under which the Court will admit extrinsic evidence to show that in fact the consideration for the bond was the continuance of illicit cohabitation. The question is whether there is any such evidence here. A careful consideration of the pleadings and the oral evidence adduced in the case shows that there is no such evidence. In fact, the averments in para three of the plaint to the effect that the plaintiff began to live with the defendant in his house on or about December 1945 that the plaintiffs father and her well-wishers, residents of the locality contacted the defendant and pointed out to him the way in which he had wronged the plaintiff and brought dishonour to her and her parents house and that the defendant admitted his folly and as compensation for the wrong done to the plaintiff executed in favour of the plaintiff the agreement dated 10-3-46, were not specifically traversed in the written statement. The allegation that the agreement was executed as compensation for the wrong done to the plaintiff clearly indicates that the agreement was in respect of past cohabitation; this is neither denied nor canvassed otherwise in evidence; the defendant rested his contention on the ground that the suit document was unenforceable as it was brought about by force and fraud. There remains therefore the interpretation of the suit agreement dated 10-3-46 marked Ext.A.

6. Exhibit A the suit agreement, extracted above in extenso, is alleged to have been brought about by fraud and force; and it need hardly be said that the defendant has totally failed to substantiate the same. Both the Courts have therefore rightly held that it is not vitiated by fraud but that it is a genuine document voluntarily executed by the defendant. In Ext.A, it is recited that the plaintiff went to reside in the defendants house on 24-12-1945 and that she was living there with the defendant; thereafter the agreement continues that "I am bound to make proper arrangements for the said Jayamma and her baby". The mode of arrangement for maintenance is two fold: that if she remains obedient to him, he will make all arrangements for the maintenance during her lifetime on the same lines as his own family members; and that in case she leaves him, he agreed to pay from that time, a sum of Rs.30/- per mensem for her maintenance. The undertaking to protect her while she lives in his house, obedient to him, bears no manner of connection with, and may be regarded as a mere surplus age in relation to the independent liability arising on the happening of the contingency, of her leaving him. During her stay with the defendant, after the date of the agreement, it may be that future cohabitation is not ruled out; as observed above, the mere continuance of cohabitation raises no kind of presumption that the bond was given for an immoral purpose. I am therefore of opinion that the suit agreement containing a stipulation to pay future maintenance is not vitiated by the mere fact that cohabitation might have been in contemplation as it did not form part of the consideration and in consequence does not offend S.23, Contract Act.

7. In the result, I find no reason to differ from the concurrent decisions of the Courts below. The appeal therefore fails and is dismissed with costs. Appeal dismissed. AIR 1953 MYSORE 35 (Vol. 40, C.N. 16) "Basavantappa v. Dasappa" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Basavantappa and others, Appellants v. Dasappa and others, Respondents. Second Appeal No.534 of 1948-49, D/- 13 -6 -1952. Limitation Act (9 of 1908), Art.138 and Art.144 - LIMITATION - POSSESSION - SALE - Effect of symbolic delivery of possession. Civil P.C. (5 of 1908), O.21, R.95. Article 138 is not applicable to a case where the decree-holder-purchaser has filed a suit to obtain possession within 12 years after obtaining symbolical possession on filing an application under O.21, R.95. The delivery of symbolical possession obtained by him is sufficient to give a fresh start of limitation and the suit is in time. (Para 2) Anno : Limitation Act, Art.138 N.8 Pts.2 to 4; Arts.142 and 144 N.65 Pts.6 and 7. Cases Referred : Chronological Paras (18) 22 Cal WN 330 : (AIR 1917 PC 197 (2)) 2 (21) 43 All 520 : (AIR 1921 All 9 FB) 2 (12) 36 Bom 373 : (14 Ind Cas 447 FB) 2 (80) 5 Cal 584 : (5 Cal LR 548 FB) 2

12 Mys LJ 191 2 Nittoor Srinivasa Rao, for Appellants; K.N. Srinivasan, for Respondents 1 and 2. Judgement The suit filed by the plaintiffs is for partition of the plaint schedule properties and for being put in possession of such share as they are entitled to. The plaintiffs purchased the properties in execution of a decree obtained by them against a joint family, of which the defendants are members, on the foot of a hypothecation deed. The decree-holders-purchasers were put in possession of the properties on 2-1-1934. To what extent this decree was binding on the other members of the family was considered in 2 suits filed by some of them and it is sufficient to state that it is not disputed in this case that the share of the appellants is not affected by the sale in favour of the plaintiffs. What is however contended is that the suit filed on 2-1-1946 which is filed just within 12 years after delivery of possession, but beyond 12 years after the sale was made absolute, is barred by time as under Art.138, Limitation Act, time for a suit for possession of properties purchased in execution of a decree when the judgment-debtor was in possession at the date of the sale is 12 years from the date when the sale becomes absolute.

2. The point for consideration is whether Article 138 is applicable to a case where the decree-holder-purchaser has filed a suit to obtain possession within 12 years after obtaining symbolical possession on filing an application under O.21, R.95. It is to be observed that symbolical possession obtained under execution of a decree to which the person in possession is a party is as effectual as actual possession. As observed in - 12 Mys LJ 191: "It stops the previous adverse possession from running and serves to give a fresh starting period for purposes of limitation." Article 138 applies only to a case where such delivery has not been obtained, as otherwise it is open to a judgment-debtor to dispossess the decree-holder-purchaser who has obtained delivery 12 years from, the date the sale is made absolute and no remedy can be obtained against him as a suit filed by the decree-holder-purchaser subsequently, alter 12 years after the date on which the sale was made absolute has to fail. There was some difference of opinion between the Courts of Allahabad and Bombay and other Courts on this question of limitation, but the controversy was set at rest by the Privy Council decision in - Sri Radha Krishna Chanderji v. Ram Bahadur, 22 Cal WN 330 (PC), in which it was held that symbolical possession availed to dispossess the defendants sufficiently, because they were parties to the proceedings in which it was ordered and given. The point is made clear by the commentary under Art.138, Rustomji Law of Limitation: "It would seem that in view of the Privy-Council judgment in - Sri Radha Krishna Chanderji v. Ram Bahadur, 22 Cal WN 330 (PC), considerable doubt is thrown on the correctness of the Bombay Full Bench decision - Mahadev v. Janu Namji, 36 Bom 373 (FB), and the Allahabad Full Bench in - Jang Bahadur Singh v. Hanumant Singh, 43 All 520 (FB), which followed the Bombay Full Bench ruling. The Bombay Full Bench decision in 36 Bom 373 was cited in argument before the Privy Council in - Radha Krishnas case, 22 Cal WN 330 (PC), but their Lordships followed - Juggobundhu v. Ram Chunder, 5 Cal 584 (FB), in preference to the Bombay ruling, and repelled the argument that symbolical possession would not avail against the defendants, but that only actual dispossession would interrupt their adverse possession. On the contrary, the Privy Council definitely held that symbolical possession was sufficient in law to save the bar of adverse possession, i.e. to interrupt adverse possession where the person setting up adverse possession was a party to the execution proceedings in which the symbolical possession was given. However that may be, it is quite clear that the rule laid down by the Full Bench in Bombay and Allahabad, (viz. that when the judgment-debtor himself is in actual possession, mere symbolical delivery of possession to the execution-purchaser would not suffice to interrupt the judgment-debtors possession) has obviously no application to cases where the property in question is not of a nature of which actual possession could possibly be obtained by the purchaser, as in the case of a house. Thus, where it is zemindari property and is let out to tenants for cultivation, or is an undivided share in joint property, formal or symbolical possession would give the auction-purchaser a fresh start to limitation." I agree with respect with these observations. In this case the decree-holder purchased the appellants undivided share in the joint family property; and the delivery of possession obtained by him is sufficient to give a fresh start of limitation, and the suit filed within 12 years from the date of delivery of possession is in time. There is no substance in the contention urged on behalf of the appellants that the suit is barred under Art.138, Limitation Act. The appeal fails and is dismissed with costs. Appeal dismissed. AIR 1953 MYSORE 36 (Vol. 40, C.N. 17) "Nagappa v. Mahadevappa" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Nagappa and others, Defendants-Appellants v. Mahadevappa and others, Plaintiffs-Respondents. Second Appeal No.11 of 1949-50, D/- 15 -7 -1952. HINDU LAW - PARTITION - POSSESSION - Hindu Law - Alienation - A and his sons B and C forming joint family - Before Cs birth A and B selling entire ancestral property to discharge hypothecation debt not contracted for any necessity or purposes binding on family - C suing for partition and possession of his share - C held was entitled to one-fourth and not to one-third share in property. (Paras 3, 4 and 5) Cases Referred : Chronological Paras (41) 19 Mys LJ 310 1 A.R. Somanatha Iyer, for Appellants; V. Krishnamurthy, for Respondent No.1. Judgement The plaintiff respondent filed a suit for partition and possession of his share of the plaint schedule property on the ground that it is the joint family property of himself, his brother, Defendant 6, and their father Defendant 5. The concurrent finding of the Courts below that the property is the ancestral property of Defendant 5 was not disputed before me. The property was hypothecated for discharges previous debts one of which was a debt due on a promissory note. There is absolutely no evidence to show that the debts due by the 5th defendant were contracted for any necessity or purposes binding on the joint family. It has therefore to be stated that the hypothecation was binding only on such interest as the 5th defendant had at the time the hypothecation deed was executed. At that time the plaintiff had not been born. The only coparceners of the joint family were Defendant 5 and his son Defendants. The plaintiff was born on 8-8-1928. Defendants 5 and 6 sold away the entire property to the first defendant in order to discharge the debt due on the hypothecation deed. Though the sale is binding on such interest as Defendant 6 had in the property at the time of the sale, it cannot be said that the sale is binding on such interest in the property as the plaintiff had then. The learned Munsiff has passed a decree for partition of the plaint schedule property and directed that the plaintiff be put in possession of l/3rd share. The judgment and decree of the learned Munsiff have been confirmed by the learned Subordinate Judge. Though the point has not been specifically raised in the appeal memo it has to be noticed that the Courts below were wrong in holding that the plaintiff is entitled to l/3rd share, as in law the plaintiff is entitled to something less than that. As observed in the case reported in - B.K. Gurumurthiah v. Seetharamaiya, 19 Mys LJ 310: "An alienation of an item of joint family property by a father when he and his eldest minor son are "the only members of the joint family, binds the fathers half share in the property concerned, and no later addition to the coparcenary can affect that : nor can any coparcener who comes into existence afterwards question the same. But if the aliance wishes to enforce the alienation against any interest of the other members of the joint family beyond the fathers share he must prove the existence of either family necessity or benefit or that he made reasonable enquiry as to the existence of the same. A subsequently born son, who as soon as he comes into existence acquires an interest in the joint-family property, can in those circumstances challenge the effectiveness of the alienation against anything except his fathers share, and the alienee must make out his case of necessity or benefit or reasonable enquiry as aforesaid against every coparcener against whom he wishes to enforce the alienation. If the eldest son, who did not take part in the alienation when it was made, however loins in the alienation or adopts it before the birth of another son, the alienation will become complete against the whole of the then existing joint family and the latter cannot question it".

2. In this case it will be noticed that Defendant 5 had hypothecated the property before the plaintiff was born. At that time he had half interest in the property as already observed. The plaintiff who was born later cannot question the alienation in respect of the half share. As the debt contracted was not for legal necessity it has to be stated that half share of defendant 6 was not bound by the hypothecation. It is at this stage that the plaintiff was born. The fact that both the Courts below have passed a decree enabling plaintiff to get 1/3 share in the property and the fact that this has not been specifically raised in this appeal shows that it is not clear what share an unborn son gets in a property hypothecated by the manager of the family for a purpose not binding on the other coparceners of the family. The point deserves therefore some careful examination.

3. In the case of a joint Hindu family, a coparcener gets an interest in the joint family property as it stands at the time of his birth. Therefore, the plaintiff was entitled to one third share in the right to redeem the half share of defendant 5, which was liable to be proceeded against for the hypothecation debt. He was also entitled to a share in the other half of the property which was not liable to be proceeded against for the hypothecation debt. Subsequent sale by defendants 5 and 6 of the entire property does not affect such interest as the plaintiff had at the time of the sale, while the alienation is good to the extent of the interest of Defendants 5 and 6.

4. As already noticed the plaintiffs 1/3rd interest in the half share of the property was liable to be proceeded against for the hypothecation debt. Defendants 5 and 6 have sold away this 1/3rd share in half the property also and it was not contended in this case that the sale is not binding on the plaintiffs ?rd interest in half the property that was liable to be proceeded against for the hypothecation debt, or that the hypothecation debt could have been cleared without selling plaintiffs 1/3rd interest in this half share of the property.

5. As regards the interest of the plaintiff in the other half of the property that was not liable to be proceeded against for recovery of the hypothecation debt, it cannot be said that the sale by Defendants 5 and 6 is binding on plaintiff. As the half share of defendant 5 has been lost to the family for recovery of a debt contracted by him for purposes not binding on the family, it cannot be said that he has any right to claim a share in the other half of the property. In this half portion the plaintiff is entitled to a half, that is to a 1/4th share in the entire property; the other 1/4th share in this half has been conveyed to the first defendant under the sale deed executed by 6th defendant. The plaintiff is entitled to 1/4th share in the plaint schedule property.

6. In the result the judgments and decrees of the Courts below are modified to this extent that the plaintiff will be entitled under the decree to 1/4th share in the property and not to 1/3rd share as stated by the Courts below. Parties will bear their own costs in this appeal. Appeal partly allowed. AIR 1953 MYSORE 37 (Vol. 40, C.N. 18) "Basheer Ahamed v. Padmanabha" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) Basheer Ahamed, Judgmen-debtor-Appellant v. G. Padmanabha Kamath, Decree-holder-Respondent. Regular Appeal No.185 of 1949-50, D/- 30 -10 -1951. Mysore Agriculturists Relief Act (18 of 1928), S.3, S.4 - DEBT RELIEF - EXECUTION - DECREE - Debt Laws - Execution of decree of other State - Civil P.C. (5 of 1908), S.38, S.42, S.43. Money decree passed by Madras High Court and transferred to the Court of District Judge Bangalore for execution - Mysore Agriculturists Relief Act cannot apply - Executing Court cannot direct payment of decretal amount by instalments - In such eases the transferee Court must execute the decree in accordance with the law of procedure obtaining in the place of the transferee Court and cannot seek to determine the rights of the parties according to any substantive law of that place and apply the incidents of such law to the decree in the course of execution: Case law relied on. (Paras 7, 8, 9) Anno : C.P.C., S.38 N.8; S.42 N.1, la. Cases Referred : Chronological Paras (88) 10 All 130 8 (78) 8 Bom 185 8 (25) 93 Ind Cas 257 : AIR 1925 Pat 807 8 (48) AIR 1948 Pat 245 : (26 Pat 307) 9 (34) AIR 1934 Rang 166 : (35 Cri LJ 1502) 7 H. Lakshmanaswamy, for Appellant; S.V. Subramanyam, for Respondent. Judgement VASUDEVAMURTHY, J. :- The respondent obtained a money decree for Rs.15,000 against the appellant with costs and current interest, in Civil Suit No.148/1946 on the file of the High Court of Madras and got it transferred in September 1947 to the Court of the District Judge, Bangalore for execution. He seems to have filed Ex.142/47-48 in the latter Court and got some immoveable properties of the judgment-debtor attached. In his present execution application he has sought for the sale of these attached properties. The judgment-debtor has filed objections pleading that he is an agriculturist within the meaning of S.2, Mysore Agriculturists Relief Act; that he should therefore be permitted to pay the decree amount by annual instalments as provided by S.12, Agriculturists Relief Act and that his immoveable properties cannot be attached or sold except under conditions contained in S.14 of that Act. He therefore wanted his status as an agriculturist to be determined before execution was proceeded with.

2. The District Judge overruled his objections holding that the transferee-executing Court cannot consider the questions and the judgment-debtor has appealed.

3. It is contenaed by Sri H. Lakshmanaswamy, learned counsel tor the appellant that though the decree was passed in 1946 his client has applied to the District Court for relief under the Agriculturists Relief Act, raising the question of his status, at the earliest possible opportunity as allowed under sub-S.1(a) of S.4 of that Act and that the provisions of that Act must be held to affect and govern the terms of the decree though the same has been passed by the Madras High Court.

4. Prima facie this argument does not appear to be sound. The Agriculturists Relief Act is applicable only within the area of the Mysore State. Section 3 of the Apt is made to apply to certain suits in which the defendant is an agriculturist and these suits can only be suits filed in the Mysore Courts. Section 4 provides that where in any suit under S.3 a question is raised as to the status of the party as an agriculturist, the Court shall try the question as a preliminary issue and Ss.10, 11 and 12 provide for the terms including grant of instalments in which decrees can be passed in suits where one of the parties is an agriculturist.

5. Sections 23 and 24 provide for these suite being tried only as original suits and for special periods of limitation for such suits. The other provisions which relate to decrees such as Ss.12, 13 and 14 which are included in Chap. II of the Act which deals with "the scope of the Act and jurisdiction of Courts" can only refer to Mysore Courts and decrees passed by these Courts in suits referred to in S.3 which is also dealt with in the same Chapter.

6. But it is contended by the appellants counsel that the reference in Ss.13 and 14 to "any decree or order passed whether before or after the Act" are sufficiently wide to cover decrees even of Courts outside Mysore, but he has not been able to support his arguments by any clear rule of law or by any decided cases in this matter.

7. For the respondent Sri. S.V. Subramaniam, his learned counsel, has argued that if a decree is transferred to our Courts then under S.43, Civil P.C. the transferee Court has merely to execute the decree as it stands in the manner provided by our Code. It cannot in the execution proceedings before it go behind that decree or seek to alter its terms in any way. He urges on the strength of the ruling in - M.S. Singleys v. Ma To, AIR 1934 Rang 166 that, therefore, the transferee Court cannot direct payment of the decree amount by instalments when the decree provides for the recovery of the decree amount in a lump Sum.

8. It is now a well settled rule that the jurisdiction of the transferee Court is limited to the execution of the decree transferred to it. It cannot for instance transfer it to another Court, or entertain any objections as to its correctness or that it is defective or that it was obtained by fraud. It cannot entertain an objection that it directs a sale of property which is not saleable under S.60, Civil P.C. or S.9, N.W.P. Rent Act. (See - Sadashiv Lalit v. Jayantibai, 8 Bom 185 and - Madholal v. Katwari, 10 All 130. It cannot alter, vary or add to the terms of the decree. See Mullas C.P.C., 11 Edn., p.170; see also - Gajadhar Prasad v. Manulal Jagamath, 93 IC 257 : AIR 1925 Pat 807.

9. Sri S.V. Subramaniyam further contends that in cases like the present the transferee Court must execute the decree in accordance with the law of procedure obtaining in the place of the transferee Court and cannot seek to determine the rignts of the parties according to any substantive law of that place and appiy tne incidents of such law to the decree in the course of execution. For this position he has strongly relied on a case reported in - Inderchand v. Bansropan, AIR 1948 Pat 245. In that case a decree for money of the Calcutta High Court was being executed on transfer in a Court in Bihar. In the latter Court the judgment-debtors applied under Ss.13 and 14, Bihar Money-Lenders Act for some special reliefs available to them under that Act viz., for the valuation by Court of the properties to be proceeded against and the sale only of a sufficient portion in accordance with the provision of S.14 of that Act. Sinha and Meredith, JJ., of the Patna High Court refused to grant such relief holding that the rights and liabilities of the parties to the decree were to be governed, not by the Bihar Money-Lenders Act, but by the Bengal Money-Lenders Act which regulated the transactions of money-lending in Bengal and the Bihar Court had merely to execute the decree in accordance with the law of procedure obtaining in the Courts in that Province. In the course of his judgment Sinha, J. observes that the rules referred to in S.48, C.P.C. have reference to the rules framed under the Code by the different High Courts in pursuance of S.122 of the Code and have not the larger significance of rules of law inclusive both of adjectival and substantive law; and that the powers of the transferee Court referred to in S.42, C.P.C. are the powers of that Court in relation to the procedure to be followed and not in relation to the substantive law to be administered in executing the transferred decrees. Meredith J. who agreed with him was also of the view that Ss.13 and 14, Bihar Money-Lenders Act taken together did not merely prescribe rules of procedure. A substantive right was created by these sections for the protection of the judgment-debtor and the same was a matter of substantive law. In such, a case it was the substantive law of the Province where the decree was passed which would be applicable and not that of the Province where was transferred for execution.

10. We are inclined to agree with that reasoning in relation to the concerned provisions of the Agriculturists Relief Act. In this view, we see no grounds to interfere with the order of the Court below and this appeal is accordingly dismissed with costs. Advocates fees Rs.50. Appeal dismissed. AIR 1953 MYSORE 38 (Vol. 40, C.N. 19) "Chikkamma v. Kempegowda" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Chikkamma and others, Appellants v. Kempegowda and another, Respondents. Second Appeal No.152 of 1949-53, D/- 29 -7 -1952. Civil P.C. (5 of 1908), S.11 - RES JUDICATA - Adverse finding against party. Suit decided in favour of a party - Issue decided against such party does not operate as res judicata as he could not have appealed: AIR 1944 Nag 154, Rel. on.; 22 Mys CCR 207, Distinguished. (Para 3) Anno : C.P.C., S.11 N.109, 110. Cases Referred : Chronological Paras

22 Mys CCR 207 3 (44) ILR (1944). Nag 465 : (AIR 1944 Nag 154) 3 A.R. Somnath Iyer, for Appellants; Mahesh Chandra Guru (for No.1) and N. Sadanandaswamy (for No.2), for Respondents. Judgement The point for consideration in this appeal is whether the lower Courts were right is dismissing the suit of the plaintiffs on points of law raised in the case. The plaintiffs claim in this suit that the suit property belongs to them after the death of Gowregowda, first plaintiffs husband, the original owner of the property. They contend that defendant 2 under whom defendant 1 claims the property is not Gowregowdas son. Present defendant 1 had filed O.S.625 of 40-41 on the file of the Munsiffs Court, Nanjangud against defendant 2 on a hypothecation deed executed by him. Defendant 2 did not contest that suit, but the plaintiffs in this suit who were impleaded in that suit as defendants contended as they do now that the suit properties exclusively belonged to them and defendant 2 who had executed the hypothecation deed, was not the son of Gowregowda, plaintiff ls husband, to whom the properties in dispute originally belonged. It was contended by defendant 1 who was the plaintiff in that suit that the hypothecated properties had been divided between the hypothecator Chikkegowda and the plaintiffs in this suit, and as such the latter were bound to discharge that debt. In that case it had also been pleaded that the suit debt had been discharged and the Court held that the discharge as pleaded by the present plaintiffs is true, but it also held that defendant 2 Chikkegowda who was defendant 1 in that case is the son of Gowregowda. In the result the previous suit was dismissed. Disputes continued to arise between the parties and as usual in cases of this kind they ended in proceedings under S.145, Criminal P.C. As the defendants in this suit have succeeded in those proceedings, the plaintiffs have filed the present suit for possession of the properties from the Receiver appointed in those proceedings and also for recovery of the amount realised by the Receiver by the sale of the produce of the land and deposited in Court. Apart from other pleas it is contended by both the defendants that the question that defendant 2 Chickkegowda is the son of Gowregowda has been deeided in the previous suit and it has also been held in that suit that the plaintiffs are parties to the partition and as such the plaintiffs in this suit are barred by principles of res judicata from contending, as they have been now contending, that defendant 2 is not the son of Gowregowda and that they have nothing to do with the partition.

2. The learned Munsiff upheld the contention of the defendants and dismissed the suit as barred by principles of res judicata. The learned Subordinate Judge in appeal set aside the finding of the learned Munsiff, on the question of res judicata. He however held that there were admissions made by the plaintiffs or some of them that defendant 2 was the son of Gowregowda, that in the previous case it had been decided that there was a partition and that as it appears from the copies of documents filed in the ease that plaintiff 1 has produced partition deeds for registration, the suit filed without a prayer for cancellation of the partition deed is bad. He upheld the dismissal of the suit on these grounds.

3. As regards the first question whether the suit is barred by principles of res judicata, it has to be stated that apart from other requirements the points substantially in issue in the two cases must have been finally decided before it could be, held that there is any such bar. As observed by Mulla in his Commentary on S.11, C.P.C. "If the plaint is wholly dismissed, no issue decided against the defendant can operate as res judicata against him in a subsequent suit, for the defendant cannot file an appeal the decree being wholly in his favour". Again as observed in the case reported in - Scott L.R. Mrs. v. Mohammad Din, ILR (1944) Nag 465: "The trial of an issue decided against a party who has the decision of the suit in his favour and therefore couid not appeal from it, is not barred by the rule of res judicata in a subsequent suit, the decision of that issue in the former suit not being final". The learned Munsiff has relied on the decision reported in 22 Mys CCR 07. At first sight the decision in the above case appears to be helpful to the defendants. But the following head-note makes the point quite clear : "A partition of the family properties had been effected between the plaintiffs father, his brother and his nephews and a partition deed drawn up to which the plaintiffs were not parties. In O.S. No.5 of 1911-12 on the file of the District Judge, Mysore, the plaintiffs uncle and his sons sued for the cancellation of the partition deed alleging fraud. The plaintiffs were defendants 4 and 5 in that suit. An issue as to whether the partition deed was binding on the plaintiffs was framed and decided in the affirmative. In the present suit the plaintiffs prayed for a repartition of the properties and contended that the decision in the former suit did not operate as res judicata inasmuch as (1) there was no conflict of interests between them and the other defendants in the former suit, (2) they could not have appealed from the decree in the former suit and the former suit was not one for partition in which the share of each co-parcener could be allotted to him. Held: that the decision in O.S. No.5 of 1911-12 operated as a bar inasmuch as (1) the present plaintiffs were really co-plaintiffs in the former suit though they had been arrayed therein as defendants 4 and 5 and there was a conflict of interests between them and the present contesting defendants, (2) the present plaintiffs could have appealed from the decree in the former suit as it was not a decree in their favour but against them, (3) the decision in the former suit to which the plaintiffs were parties to the effect that a complete partition binding all parties had already been effected was as effectual a bar to future proceedings as a decision determining the respective shares of the co-parceners". The main point to be remembered in cases of this kind is that a decision cannot be said to be final if an appeal cannot be filed against that decision. It was held in the above case that though the first suit was dismissed, the plaintiffs in the second suit were pro forma defendants in the previous suit and were therefore really co-plaintiffs in it and could have filed an appeal against the decision dismissing the suit. Since the plaintiffs in the second suit could have appealed from the decree against them in the first suit, it was held that the decision in the first suit was final. It cannot be said in this case that the present plaintiffs who were defendants in the previous suit could have filed an appeal against the dismissal of the previous suit. As such it cannot be said that the findings against them in the previous suit come in the way of the same points being decided over again, in this suit

4. As regards the second point, the learned Subordinate Judge has fallen into the same error into which the learned Munsiff had according to him fallen. He should have remembered that, in this suit the pltfs. have not admitted the partition pleaded by the defendants and the findings in the previous suit about the partition do not, as held by him, come in the way of the plaintiff in this suit re-agitating the matter over again. He should have also remembered that the case had not been disposed of by the learned Munsiff on evidence after giving both parties opportunities to adduce all the evidence they want to adduce. He was therefore wrong in referring to the evidence available on record and giving findings based on such insufficient material. The appeal Ts therefore allowed and the judgment and decree of the courts below are set aside. The suit is remanded to the trial Court for disposal according to law after allowing parties to adduce evidence. The costs will abide the final result of the case. Court-fee paid on this appeal memo will be refunded. Appeal allowed. AIR 1953 MYSORE 40 (Vol. 40, C.N. 20) "Seetharamachar v. Closepet Municipality" MYSORE HIGH COURT Coram : 1 VENKATA RAMAIYA, J. ( Single Bench ) A. Seetharamachar and others, Plaintiffs-Appellants v. The Town Municipal Council, Closepet, Defendant-Respondent. Second Appeals Nos.669 and 670 of 1948-49, D/- 28 -3 -1952. Mysore Town Municipalities Act (8 of 1933), S.178 - MUNICIPALITIES - Municipalities - Notice under - Object of - Notice may be waived - Objection as to want of notice - When to be taken. The notice under S.178 is intended to give the authority concerned information sufficient enough to make out the basis of the grievance. It is not to be construed meticulously and deemed to be invalid because matters of detail which a Court has to take into account are not found. All objections regarding the maintainability of the suit for want of notice are to be taken at the earliest opportunity. A party will be deemed to have waived the notice and may be estopped by his conduct from pleading want of notice if the plea is not raised at the proper time : Held on facts that the notices were not invalid and even if they were, defendant had waived them. AIR 1948 Cal 150. AIR 1947 PC 197 and AIR 1952 Nag 213 Ref. (Para 3) Cases Referred : Chronological Paras (47) 49 Pom LR 794 : (AIR 1947 PC 197) 3 (48) AIR 1948 Cal 150 : (ILR (1948) 2 Cal 77) 3 (50) 1950-5 Dom LR (Nag) 81 : (AIR 1952 Nag 213) 3

V. Krishnamurthy, for Appellants; Y. Adinarayana Rao, for Respondent. Judgement These appeals arise from two suits filed against the Town Municipal Council. Closepet, for declaration that certain taxes levied by it were illegal and for refund of the amounts collected as such taxes. The liability to refund any amount was denied and the levy was alleged to be quite legal. Issues concerning these were framed and by consent of parties the suits were tried together with evidence common to both. The suits were dismissed on the ground that the requirements of S.178, Town Municipalities Act are not satisfied. The decision is confirmed in appeal. The plaintiffs in the two suits therefore appeal.

2. It is curious that although no objection is taken to the suits in the written statements on the ground of notices sent by plaintiff prior to the suits being defective, and no issue was framed about it, the learned Munsiff thought it necessary to scrutinise the contents of the notices and hold that these do not satisfy the provisions of S.178 of the Act. Further no finding has been recorded on the issues framed in the case in spite of the parties having adduced evidence about the same. If the Court felt that the question of notice was such as had to be considered irrespective of defendants plea, it should have been decided at the outset. Having allowed the parties to lead evidence in the case the Court should have properly given findings on all the issues instead of resting the decision on a point not covered by any issue. The learned Subordinate Judge has also failed to notice this.

3. The allegations in the plaint about issue of notices are not seriously controverted in the defence and parties joined issue only on matters pertaining to the legality of the levy, implying thereby that objection, if any, to the notices was waived. Section 178, Town Municipalities Act cannot be viewed as being stricter than S.80, Civil P.C. as regards the need for a proper notice before a suit is filed. The provisions are analogous and similar considerations apply for giving effect to these. With reference to S.80, Civil P.C. it was observed in - Vellayan Chettiar v. Govt. of the Provinces of Madras, 49 Bom LR 794 (PC) that the authority concerned can waive the notice. See also - Charu Chandra v. Snigdhendu Prasad, AIR 1948 Cal 150 and - Secy of State v. Sheoramjee, 1950-5 Dom LR (Nag) 81. In the last case it is definitely stated that all objections regarding the maintainability of the suit for want of notice are to be taken at the earliest opportunity. A party will be deemed to have waived the notice and may be estopped by his conduct from pleading want of notice if the plea is not raised at the proper time. The notice is intended to give the authority concerned information sufficient enough to make out the basis of the grievance. It is not to be construed meticulously and deemed to be invalid because matters of detail which a Court has to take into account are not found. The notices in these cases substantially comply with the requirements of the section and it is a set alleged that there was any difficulty on fee part of the defendant to understand the nature of the claims, the grounds of complaint or the reliefs sought. In my opinion the notices are not invalid and even if they are, defendant has waived these. The decrees of the Courts below are, therefore, set aside and the suits are remanded for disposal afresh in accordance with law. The Court-fee paid in the appeals will be refunded. Costs incurred so far will abide the result. Appeals allowed. AIR 1953 MYSORE 41 (Vol. 40, C.N. 21) "Pedda v. The State" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) Pedda and others, Appellants v. The State of Mysore, Complainant-Respondent Criminal Appeals Nos.17 and 57 of 1951-52, D/- 29 -8 -1952. (A) Penal Code (45 of 1860), S.146 - RIOTS - Rioting - Essentials. To sustain a charge of rioting, the prosecution has to establish that there was an unlawful assembly, that force or violence was employed and that an offence was committed. (Para 4) When what operated as the proximate and substantial cause for the assault and the persons concerned in it are not free from doubt, the charge of rioting cannot be taken to be satisfactorily substantiated. (Para 6) Anno : Penal Code, S.146 N.3, 4. (B) Penal Code (45 of 1860), S.141 - UNLAWFUL ASSEMBLY - COMMON OBJECT - Proof of common object. Existence of a common unlawful object is a requisite for an unlawful assembly under the Code and unless there is proof of an agreement amongst persons to do anything or a plan to carry out a design, and if this is not possible, unless it is shown that an inference in support of it can reasonably be drawn from the relations, acts and conduct of the parties, persons cannot be constructively made liable for others acts. From the mere fact of all or some of the accused being found at the scene of the occurrence at the time when the deceased was injured, it cannot be inferred that they were members of an unlawful assembly. Nor is it reasonable to assume from the acts themselves that the persons present had a common object to commit them and that they were committed in pursuance of a common object. AIR 1923 Mad 369 (2), Rel. on. Where it is stated in the judgment that the attack was not preconcerted and there was no arrangement by accused to meet at the spot to murder the deceased, the accused cannot have been members of an unlawful assembly if no other object is suggested. (Para 4) (C) Criminal P.C. (5 of 1898), S.154 - FIR - EVIDENCE - Evidentiary value of first information report. The earliest or first information of the occurrence is highly useful for the purpose of corroborating or contradicting the prosecution version but it cannot by itself, be substantive evidence, or made the basis for a conviction or an acquittal. (Para 7-9) Anno : Cr.P.C., S 154 N.10 Pt 3. IN CR.A. No.17 of 1951-52. Cases Referred : Chronological Paras (51) 1951 SCJ 518 : (AIR 1951 SC 441 : 52 Cri LJ 1491) 3 (52) 1952 SCJ 284 : (AIR 1952 SC 214 : 1952 Cri LJ 1131) 3 (23) AIR 1923 Mad 369 (2) : (24 Cri LJ 531) 4 B.S. Puttasiddiah, for Appellants; A.R. Somnath Iyer, Advocate-General, for Respondent. IN CR.A. No.57 OF 1951-52. A.R. Somnath Iyer, Advocate-General, for the State; B.S. Puttasiddiah and V. Krishnamurthy, for Respondents. Judgement The appellants, who were accused 1 to 7 in the lower Court, have been convicted of rioting and sentenced to three years rigorous imprisonment and some of them to farther imprisonment for other offences .found to he committed by them. of the six charges framed in the case, No.1 relates to rioting, No.2 to the murder alleged to have been committed by Accused 2, 8, and 11, the third to an offence under S.302/149, I.P.C. by accused 1 to 7, 9 and 10 as members of the unlawful assembly, in pursuance of the common object of which accused 2, 8 and 11 murdered Basavanna Gowda. The other charges relate to the individual acts committed by some of the accused. It is rather surprising that although the charges as framed by the Magistrate are said to have been amended before the trial, there is no mention of the date in any of the charges on which any of the offences is alleged to have been committed. The omission is not material as it was well understood to be 23-9-1950 when the election to the village Panchayath was conducted by the Amildar of Harihar in Hindaskatte a village about 12 miles from Harihar. The election was over by 5 P.M. and at about 5-45 P.M. in the outskirts of the village at a distance of about 3 furlongs from the place where the election was held, one Basavanna Gowda of about 30 years of age was brutally assaulted on the road between Malebannur and Nandagudi and as a result of the multiple injuries including the fracture of the skull caused to him he expired before reaching the hospital at Malebannur Besides Basavanna Gowda, his brother P.W.1 and two others, P.Ws.2 and 12, who accompanied him, were also injured at the time. Accused 5 was charged under S.323 for causing hurt to P.W.1 and similarly, accused 1, 3 and 4 for causing hurt to P.W.2. Accused 1, 3 to 7, 9 and 10 were also charged with having caused hurt to Basavanna Gowda. Of the 12 accused against whom the charge-sheet was placed, accused 12 was discharged in the Court of the Committing Magistrate. The learned Sessions Judge held that none of the accused was guilty of murder directly or constructively and acquitted accused 8 to 11 completely. The correctness of the conviction of accused 1 to 7 under S.148 and accused 1 to 5 of other offences in addition is questioned in the appeal filed by them. The Government have also preferred an appeal seeking conviction of the appellants as well as accused 8 to 11 for the offence under S.302/149, I.P.C.

2. There is undisputed evidence that Basavanna Gowda, a resident of Hallihalu village was in Hindaskatte in the afternoon of 23-9-1950 and while returning to his village with his broflier and-two others they were attacked at about 6 P.M. on the road by a number of persons and violently beaten with stones, sticks etc, that almost immediately the daffedar and four Constables arrived at the spot, that tile Amildar too went there a few minutes later and observed Basavanna Gowda lying in a precarious condition, speechless surrounded by a large crowd, and that Basavanna Gowda and P.Ws.1 and 2 were removed to the hospital at Malebannur for treatment but Basavanna Gowda was dead before any treatment could be given.

3. The material evidence on the side of the prosecution to show that the accused were perpetrators of or participants in the crime is that of P.Ws.1, 2 and 12, eye-witnesses to be attack from the beginning and that of P.W.11, the daffedar and the Constables P.Ws.13, 17, 18 and 19 who proceeded to the spot after hearing the cry of alarm or distress of these, the statement of P.W.12 has to be discounted as his presence at the time of the assault is open to doubt in view of the police witnesses saying that they saw him and his denial of having seen them. P.W.2 admittedly is a member of a faction opposed to that of the accused and a competitor with some of the accused for ttie election to the village Panchayath. On the first day of his examination in Court he stated: "I do not know who all hit and how........ I do not know with what weapons". His deposition in the Magistrates Court was then tendered as evidence under S.288. On the next day, his entire deposition was marked as an exhibit without drawing the attention of the witness to portion or portions therein the prosecution wanted to make use of and without eliciting from the witness whether those statements were correct or not. In - Tara Singh v. The State, 1951 SCJ 518 and - Bhagwan Singh v. State of Punjab, 1952 SCJ 284, S.288, Criminal P.C. has been considered to provide, for statements in the committing Court being used for purpose of corroboration or contradiction at the trial. Neither on the first day when P.W.2 was deemed to be contradicting the earlier statement nor on the second day when it was found to be not so was he reminded or questioned at all about anything said by him before the Magistrate. The learned Judge has not applied his mind to see whether there is need to resort to S.288 and in any case the propriety of the deposition as a whole being marked an exhibit. As this has not influenced the decision in the case and the case was argued on either side without reference to it, it is not necessary to discuss the force of the objection raised by Sri Krishnamurthy to the order made for allowing it.

4. To sustain a charge of rioting, the prosecution has to establish that there was an unlawful 1 assembly, that force or violence was employed and that an offence was committed. A mere assembly or gathering of persons is not unlawful though some of its members may employ force to commit an offence, as it may well be that the presence of some at the time was accidental or may be due to curiosity as mere spectators. Some may have been there as passers-by or passive by-standers. Section 141 requires that there should be a common object which can be brought within the purview of one or the other heads mentioned therein and S.142 expressly states that a person to be a member of an unlawful assembly should be aware of facts which rendered the assembly unlawful and that he should intentionally join the assembly or continue in it. From the mere fact of all or some of the accused being found at the scene of the occurrence at the time when Basavanna Gowda was injured, it cannot be inferred that they were members of an unlawful assembly. Nor is it reasonable to assume from the acts themselves that the persons present had a common object to commit them and these were committed in pursuance of a common object. As observed by Wallace, J., in - Ganapathi Sanua v. Emperor : AIR 1923 Mad 369 (2) "in order to find what was the common object of an unlawful assembly at the beginning, it is not a legitimate method merely to take all the actual offences committed by it in the course of the riot, and to infer that all these were originally part of its common object but must normally be based on more evidence than the mere acts themselves." The common object set out in the charge is the murder of Basavanna Gowda. It has been stated in the judgment that the attack was not preconcerted and there was no arrangement by accused to meet at the spot to murder Basavanna Gowda. If so, they cannot have been members of an unlawful assembly as no other object is suggested. It was argued by the learned Advocate-General that the view of the Teamed Judge is wrong as he has held that the accused were members of an unlawful assembly, and from the nature of the injuries caused and the death following it, the object must be presumed to be the murder of the deceased. Existence of a common unlawful object is a requisite for an unlawful assembly under the Code and unless there is a proof of an agreement amongst persons to do anything or a plan to carry out a design, and if this is not possible, unless it is shown that an inference in. support of it can reasonably be drawn from the relations, acts and conduct of the parties, persons cannot be constructively made liable for others acts.

5. The first thing to be inquired into is whether there was any motive, purpose or cause for the accused to combine and deliberate upon, an organised determined beating to Basavanna Gowda. The resolute and cruel manner of the beating suggests that the assailants must have had serious ground to cherish hostility towards him

6. Of the 11 accused in the case only three seem to have had cause for being aggrieved with the deceased, accused 1 and 2 on account of a case under the Opium Act said to have been instituted against them at his instance and accused 8 owing to a land dispute. (Their Lordships then discussed the evidence and proceeded as under:) Whatever may be its value to prove indivisual acts of accused, it can have little weight to make out common object. What operated as the proximate and substantial cause for the assault and the persons concerned in it are not free from doubt. The charge of rioting must, therefore, be taken to be not satisfactorily substantiated. 7-9. It remains only to see whether the accused can be convicted for any acts individually committed by them. For the purpose of determining as to who the actual assailants were, the learned Judge has mainly relied upon Ex.p-25 the first report of the occurrence by the Daffedar P.W.11 and the absence of any reference therein to accused 8 to 11 seems to be the strong reason. for their acquittal. The learned Advocate-General argued that this is not a correct way of dealing with the case and there is some force occurrence is highly useful for the purpose of corroborating or contradicting the prosecution version but cannot by itself be substantive evidence, i or made the basis for a conviction or an acquittal. It is therefore necessary to see whether apart from Ex.P-25 there is sufficient evidence on record to disturb the acquittal of accused 8 to 11 (Their Lordships then considered the evidence proceeded as follows:) The appeal filed by the Government is dismissed and the appeal filed by accused is allowed to this extent that convictions under S.148, I.P.C. are set aside. It therefore follows that besides A-8 to A-11, A-6 and A-7 are also entitled to complete acquittal as that is the only offence of which A-6 and A-7 are convicted. (Rest of the judgment is not material for the purpose of reporting.) Order accordingly AIR 1953 MYSORE 42 (Vol. 40, C.N. 22) "Govt. of Mysore v. Gulam Mohamad" MYSORE HIGH COURT Coram : 1 VENKATA RAMAIYA, J. ( Single Bench ) Govt. of Mysore v. Gulam Mohamad and others, Accused-Respondents. Criminal Appeal No.50 of 1950-51, D/- 10 -7 -1952. Constitution of India, Art.165 - GOVERNOR OF STATE - APPOINTMENT - APPEAL - Powers and duties of Advocate-General. Criminal P.C. (5 of 1898), S.417. The Advocate-General is entitled to file an appeal to the High Court against an acquittal by virtue of Art.165, Constitution of India, read with Mysore Government Notification, D/-13-4-1950, which authorises him to perform all acts necessary in or for a case without restriction. Non-mention of Advocate-General in S.417, Cr.P.C., is of no effect. (Paras 1, 2) Anno: Criminal P.C., S.417 N.4. A.R. Somanatha Iyer, Advocate-General, for the Government; S.K. Venkataranga Iyengar, for Respondents. Judgement A preliminary *objection to the maintainability of the appeal is raised by the learned counsel for the accused. The appeal is filed under S.417, Criminal P.C. against an order of acquittal by the Advocate-General on behalf of Government in accordance with the practice all along which was not questioned until very recently. It may be mentioned that there is no Public Prosecutor appointed by the Government to attend to criminal eases in appeal, revision or of reference in this Court and the Government is being represented by the Advocate-General in all such cases. The objection is based on the mention of Public Prosecutor and not Advocate-General in the Section as the person who may be instructed by the Government to file the appeal and on the distinction made in the Code between the two, not merely in the definition under S.4 but also in other sections in which either is specifically referred to. * Similar objection was taken in Cri Appeals Nos.56 and 60 of 1950-51 and Cri. Appeals Nos.15 and 20 of 1951-52. Since the provisions relating to appeal do not refer to Advocate-General at all he would not be entitled to appear in or conduct any appeal, be it against a conviction or acquittal, if the contention is correct. We are not impressed with the argument but it is not necessary for the purpose of this case to depend upon the provisions of fee Code to decide the question, in view of the appeal being filed after the Constitution of India came into force and Art.165 states that the Advocate-General has to perform such duties as are assigned to him. It is not and cannot be disputed that if the duties assigned to him, enable his filing the appeal the objections must fail.

2. According to the Notification in the Mysore Gazette dated 13-4-1950 "the Advocate General in Mysore will represent Government in all appeals and revision cases before the High Court ........ and generally appear before the High Court in all criminal cases in which Government have to be represented in that Court". The construction sought to be placed by accuseds counsel that the word Appeals has reference only to appeals against convictions and "Represent" entitles the Advocate-General only to argue does not appear to be sound. The words from their plain meaning and the context must be taken to be wide and comprehensive enough to authorise him to perform all acts, necessary in or for a case, without restriction. There can be no reason to require the appeal to be filed - a purely mechanical act by one and to be argued by another. A reading of the notification in such a manner is not warranted by the rules of interpretation, or the meaning of the words. The objection is, therefore, overruled as being untenable. Order accordingly. AIR 1953 MYSORE 43 (Vol. 40, C.N. 23) "K. Muniyappa v. M. A. Hanumantha" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) K. Muniyappa, Plaintiff-Petitioner v. M.A. Hanumantha and others, Defendants-Respondents. Civil Revn. Petn. No.441 of 1950-51, D/- 27 -9 -1951. Civil P.C. (5 of 1908), S.152 - AMENDMENT - DECREE - Amendment of clerical error in decree. Where the decree for redemption awards possession of a wrong item of property to the decree-holder through mistake, it is a clear case of a clerical error and if the Court refuses to amend the decree under the wrong impression that it has no such power, the order would be set aside in revision. 39 Mys HCR 1036 and AIR 1929 Nag 185, Ref. (Para 2) Anno : C.P.C., S.152 N.7, 20. Cases Referred : Chronological Paras (A) (29) AIR 1929 Nag 185 : 116 Ind Cas 427 (B) 39 Mys HCR 1036 D. Shama Rao, for Petitioner; V. Krishnamurthy, for Respondent 3. Judgement The petitioner filed a suit for re-second item of the plaint schedule property in consequence of redemption, and alleged that he was already in possession of the first item. The judgment of the learned Munsiff was in favour of the plaintiff and as is clear from the judgment and the order now under revision, by a clerical error he directed that the plaintiff must be put in possession of the first item instead of mentioning that he must be put in possession of the second item. The mistake naturally crept into the decrees drawn up in the case. It is contended that the petitioner discovered the mistake only when he had to file an execution application. A review petition was filed, but it was filed after the period of limitation. An application under S.152, Civil P.C., was also filed.

2. It is a clear case of clerical error and I am inclined to think that the learned had ample jurisdiction under S.152, Civil P.C., to make the correction, but unfortunately he has dismissed the application filed by the petitioner under an impression that he has no such power. I may here refer to - Kawdu v. Berar Ginning Co. Ltd., Akot, AIR 1929 Nag 185, where It is observed as follows : "An application for review of an order under O.47, R.1, Civil P.C., if found to be barred by limitation, may under appropriate circumstances be treated as an application under S.151 if the Court is satisfied that there has been a flagrant abuse of its own process and it is also open to the appellate Court under similar circumstances to treat a barred application for review, made to the first Court, as one made under S.151 in order to remove an apparent injustice done to the applicant and to prevent an abuse of the process of the Court." I may here also refer to the decision reported in 39 Mys HCR 1036 : "Where a Subordinate Judge inadvertently omitted to award costs in his order and his successor amended the said order by awarding costs on an application by the party concerned: Held that the lower Court was right in treating the application as one falling under S.152, Civil P.C. and in setting right the inadvertent omission." The learned Munsiff had ample powers under S.152, Civil P.C. to correct the judgment and decrees in such circumstances. The revision petition is allowed, the order of the Munsiff under revision is set aside and it is directed that he will make the necessary corrections in the judgment as well as in the decrees by substituting item 2 for item 1. Each party to bear his own costs. Revision allowed. AIR 1953 MYSORE 44 (Vol. 40, C.N. 24) "Hanumantha v. Gowdaiah" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND MALLAPPA, JJ. ( Division Bench ) Hanumantha and others, Defendants-Appellants v. Gowdaiah and another, Plaintiffs-Respondents. Second Appeal No. 6/1948-49, D/- 26 -9 -1951. (A) Civil P.C. (5 of 1908), S.107 - APPELLATE COURT - EVIDENCE - Appreciation of evidence - Consideration of oral evidence cannot be pressed when lower Courts have expressed that it was not satisfactory. (Para 3a) Anno : Civil P.C. S.107 N.14. (B) Evidence Act (1 of 1872), S.1 - EVIDENCE - Oral evidence - It is not safe to decide question of title on oral evidence. (Para 3a) Anno : Evidence Act, S.1 N.12. (C) Evidence Act (1 of 1872), S.101, S.102 and S.103 - EVIDENCE - EVICTION - Ejectment suit - Plaintiff must establish his title to property independently of the weakness of defendants case. (Para 3d) Anno : Evid. Act, Ss.101-103 N.30. (D) Evidence Act (1 of 1872), S.35 - EVIDENCE - Entries in Survey Record though entitled to weight are not conclusive on question of title. Entries in Survey regarding the names of the occupiers and the nature of their occupation are entitled to weight as having been made in the ordinary course of official duty, several years ago and there being no motive or reason at the time for anything being written contrary to existing facts. But though as a piece of evidence the entries are admissible and of value, these cannot be deemed to be conclusive. It is not part of the duty of the survey officers to determine the questions of title or the nature of the rights of persons in occupation of the lands. Whether occupants of lands are khadim or permanent tenants is a question to be decided on consideration of the materials which may be of a varied kind with respect to the several lands in the village. Where the entries in the survey records do not disclose the basis on which these were made, the persons who were examined and if any documents were referred to, nor is it clear by whom the entries were made and if any responsible officer checked it, and whether the jodidar who was the person affected was examined at all about the correctness of the claim of any occupant is uncertain, the entries cannot be conclusive on the question of title. The value to be attached to the entries depends on the evidence and probabilities in each case and there is no hard and fast rule governing it 6 Mys LJ 528; 7 Mys LR 208; AIR 1916 Mad 568 and AIR 1930 PC 91, Rel. on; 34 Mys CCR 349, Ref. (Paras 3d, 3e) Anno: Evid. Act, S.35 N.11. (E) TENANCY - Tenancy laws - Mysore - Permanent tenancy - Presumption - Jodi village. The presumption in the case of lands situated in a jodi village is against permanent tenancy and in the absence of satisfactory proof that any one has acquired a particular right to the land, it will be absolutely at the disposal of the jodidar. (Para 3d) Cases Referred : Chronological Paras (A) 6 Mys LJ 528 (B) 7 Mys LR 208 (C) (16) AIR 1916 Mad 568 : 29 Ind Cas 154 (D) (30) AIR 1930 PC 91 : 11 Lah 199 (PC) (E) 34 Mys CCR 349 Belur Srinivasa Iyengar, for Appellants; D. Venkatesiah and S. Gundappa, for Respondents. Judgement The dispute in this case relates to lands in a jodi village Dondenaballi, Magadi Taluk, of which Defendant 12 is the khayamguttadar. Survey and Settlement are not introduced in this village but what is called Pahani Soodu was prepared in 1916. As purchasers from the jodidar under a registered sale deed dated 17-1-1944 of an extent of about 9 acres in Survey No.59 and part of S.No.62 and as lessees of the rest of S.No.62 the plaintiffs sued the defendants for declaration of their right to the said lands and setting aside the order under S.145, Criminal P.C. passed in favour of defendants 1 to 11. They also sought for payment of Rs.80/- in deposit in the criminal Court.

2. Defendant 12 admitted the sale and conceded the claim but defendants 1 to 11 pleaded that the lands are not alienable as these were given away as Inam for pateli service and as kodige, that the defendants are in possession of the lands in their own right each holding portions thereof and that plaintiffs are not entitled to the declaration applied for.

3. The principal point in controversy between the parties is whether an absolute or limited right in the lands was conveyed to the plaintiffs by the sale; in other words whether the plaintiffs were entitled to possession of the lands or only to recover the kandayam due on the lands. The trial Court decreed the suit as prayed for and the decree has been confirmed in appeal Defendants 1 to 11 have preferred this second appeal questioning the decision only as regards the lands purchased by the plaintiffs. 3a. It is argued that the Courts below have not correctly appreciated the evidence and failed to give due effect to the entries in the survey records Consideration of the oral evidence cannot reasonably be pressed at this stage since two courts have expressed that it is not satisfactory and even otherwise it is not a safe basis for determination of title. Both parties trace title to the land from the acts of the jodidar and as such the question is as to who acquired rights to the land from him. The present jodidar who is defendant 12 supports the plaintiffs and there is a registered document Ex.A in support of the plaintiffs. 3b. The appellants can succeed only if they are able to prove that prior to Ex.A they had become the owners of the property. Admittedly there is no document in their favour. The extent of the portion which each of fee Appellants claims is not specific and no receipt for payment of kandayam by any of them is produced in the case. The plea in the written statement is that the lands are kodige inamthi as evidenced by Pahani Soodu and form part of Gowdike Inam lands. The jodidar who is examined as P.W.5 states that there is no Patel or Shanghogue for the village but this cannot be true in view of Exs.X and X(a) which are orders of the Deputy Commissioner appointing one Kenchiah as Patel in 1880 and 1881 and Exs.XII and XIII communications addressed by others to the Patel Prom the fact of the village having a Patel it does not follow that the lands were set apart as Inam for his services. The contention of the appellants mainly was that the lands were Kodagi, given to others in consideration of attending to the upkeep of the tank. 3c. In the glossary to the Revenue Manual Vol. I page 477 the meaning of Kodige Inam is given as land granted free of tax or on light assessment in consideration of services rendered in the construction or restoration of tanks on condition of their being maintained in good repair. The plaintiffs admit that the land is called Kodige hola only for the purpose of distinguishing it from other lands and not to signify that it was inam. For the appellants it is argued that the description of the land as Kodagi implies grant for a special purpose and that this is strengthened by the names of persons other than the jodidar feeing entered as Kardadars in the survey record, Ex.XVI prepared in 1916. Exhibit XVI is styled a detailed survey book containing particulars as regards classification of each land, the persons present at the time and in occupation. As regards the survey numbers assigned to the suit land under the heading "Name of Karda" names of persons other than the jodidar are noted. 3d. The point for consideration is whether this is sufficient to hold that the jodidar has no to the lands irrespective of the appealants being descendants or heirs of the persons mentionedin Ex.XVI and entitled as such to rely on the entry to support their claim as this is a suit for ejectment and plaintiffs have to fail unless they make out a title of their own to the property independently of the weakness of defendants ease. The term Karda according to Survey Manual, Vol.I, page 61 is synonymous with khata and Kardadar signifies occupant. The entries in Ex.XVI are apparently based on the information furnished to the survey officers but there is no indication of the source or nature of information. In the column headed person present the name of the jodidar is not found and there is nothing to show that the entries were made with his knowledge or consent. Nevertheless these are entitled to weight as having been made in the ordinary course of official duty several ago and there is no motive or reason at the time for anything being written contrary to existing facts. Though as a piece of evidence the entries are admissible and of value, these cannot be deemed to be conclusive. It is not part of the duty of the survey officers to determine questions of title or the nature of the rights of persons in occupation of the lands. Whether occupants of lands are khadim or permanent tenants is a question to be decided in consideration of the materials which may be of a varied kind with respect to the several lands in the village. The presumption in the case of lands situated in a jodi village is against permanent tenancy and in the absence of satisfactory proof that any one has acquired a particular right to the land, it will be absolutely at the disposal of the jodidar. See 6 Mys LJ 528 (A). The entries in the survey records do not disclose the basis on which these were made, the persons who were examined and if any documents were referred to. Nor is it dear by whom the entry was made and if any responsible officer checked it. Whether the jodidar who is the person affected was examined at all about the correctness of the claim of any occupant is uncertain, as there is no statutory provision or proof concerning it. Several years ago it was pointed out by this Court in 7 Mys LB 208 (B) that for proof of title survey records are not conclusive. The Madras High Court has expressed the same view in -Narayana Jogithaya v. Secy. of State, AIR 1916 Mad 568 (C). Similar expression is found in - Wali Mahomed v. Mahomed Bakhsh, AIR 1930 PC 91(D). 3e. 34 Mys CCR 349 (E), on which appellants counsel relied does not warrant a different or higher value being given to survey records and for the decision in the case the evidence and probabilities were taken into account apart from the entries. The following statement in the judgment is pertinent: "Since the survey was intended only for purposes of valuation, the details of title mentioned in the concerned papers were not expected to carry any guarantee and hence there was need for a certificate at the foot of Ex.33 by way of caution in the matter. But that does not mean that the particulars entered in the register must be necessarily inaccurate on the other hand for reasons above discussed it may be taken that the survey authorities who are disinterested recorded in Ex.XI what was admitted and well understood at the time by the respective disputants and others as regards title and possession of the various survey numbers". The value to be attached to the entries depends on the evidence and probabilities in each case and there is no hard and fast rule governing it.

4. The evidentiary value of the entries has been considered by two Courts and found to be insufficient to support the plea of Inam. Apart from the entries, there is no document or voucher to show that the lands were given away in consideration of rendering service. Not a single receipt is produced for payment or Sandayam though it is admitted that the lands are assessed. The appeal is dismissed. Parties will bear their own costs throughout. Appeal dismissed. AIR 1953 MYSORE 45 (Vol. 40, C.N. 25) "In re Ramegowda" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) In re, Ramegowda, Accused Appellant. Criminal Appeal No. 57 of 1350-51, D/- 9 -11 -1951. (A) Penal Code (45 of 1860), S.99 - PRIVATE DEFENCE - Right of private defence - Accused with gun shot injuring deceased in thigh who was armed with big penknife. - Deceased turning away - Accused firing second shot on back and killing deceased - Second shot held could not be said to have been fired to self-defence. AIR 1929 Mad 748 Dist. (Para 6) Anno : Penal Code S.99 N.5. (B) Arms Act (11 of 1878), S.19(e) - FIRE ARMS - "Going armed".Mysore Arms Act, S.14(d). Where In self-defence the accused fired the gun of his brother who had a license, and with whom he was living in the same house, the accused could net be said to have been going armed, his primary intention being to fire in self-defence and not to go armed and shoot when occasion arose. 9 Mys CCR 93, AIR 1925 All 396, 35 Cal 2l9 and AIR 1929 Bom 283, Rel. on. (Para 10) Anno: Arms Act, S.19 N.5. Cases Referred : Chronological Paras (A) (29) AIR 1929 Mad 748 : 31 Cri LJ 452 (B) 33 Mys CCR 38 : 5. Mys LJ 568 (C) 9 Mys CCR 93 (D) 33 Mys CCR 39 (E) (25) AIR 1925 All 396 : 47 All 606: 26 Cri LJ 987 (F) (08) 35 Cal 219 : 7 Cri LJ 242 (G) (29) AIR 1929 Bom 283 : 30 Cri LJ 1059

V. Krishnamurthy, for Appellant; A.R. Somanatha Iyer, Advocate-General for the Govt. Judgement The appellant has been convicted by the Sessions Judge, Shimoga, for an offence under the First Part of S.304 I.P.C. and sentenced to R.I for 10 years; he has also been convicted under S.14(d) of the Mysore Arms Act and sentenced to R.I. for one year, the sentences being directed to run concurrently. The case against him is that in the evening of 7-3-50 at about 5-15 P.M. he shot one Mullegowda who died the same night about three hours later.

2. It has been contended by Mr. Krishnamurthi, learned counsel for the Appellant, that the evidence in the case is insufficient to hold that it was the accused who shot Mullegowda. He relies strongly on the fact that the accuseds brother one Sannegowda, who has been examined as D.W.1 in the case, has unequivocally admitted that it was he that shot; that the license for the double-barrel gun from which the shots were fired stood in the name of Sannegowda; that it is natural to expect that ne would have used his own gun and that the accused who had apparently a license to own a muzzle loader gun would have used that weapon. The evidence, however, appears to be quite clearly against the Appellant. P.W.7 Capt. Appanna, an Assistant Medical Officer of Health, has deposed that in that evening he was taken by the S.I. Kuttapppa, P.W.15, to Jannapura, to treat a stab case of one Channegowda a Ciddegowda, that while nearing that spot he met Mullegowda who rushed by his side and went to the spot where the deceased Channegowda had fallen down, stopped there for two or three minutes and later went to the accuseds house, that shortly after he heard two gun shot sounds from there, and people came running from the direction of the accuseds bouse saying that Mullegowda had been shot; that he immediately went into the chavadi of accuseds house which was about 75 to 100 ft. away from the spot where Channegowdas body was lying, that when he entered the chavadi he saw the accused and his brother Ciddegowda in the right hand side room, that Ramegowda had a double-barrel breach loader gun which is M.O.1, that he asked the inmates of the house to give Mullegowda some water and some cloth to bandage him and that in the meantime the accused pointed out a knife held in the outstretched right hand of Mullegowda with its big blade open. He removed the pen knife and closed the blade and gave it to P.C. Maha-lingiah, P.W.13, who had followed him. The accused was standing on the threshold just at the inside of the room. Mullegowda was alive and told the accused to shoot him at the right spot and take him as *" ", and requested the witness to give him some poison and to end his life. Absolutely nothing has .been elicited why this evidence should be disbelieved, and it is fully corroborated by the evidence of P.Ws.11 and 12 who rushed behind the deceased and are said to have been standing on the steps leading up to the chavadi just below the top step on which Mullegowda was standing when he was shot. * Here" "is a Kannad word - Ed.

3. Mr. Krishnamurthi has argued that P.Ws.11 and 12 have tried to deny that Mullegowda was armed. It may be that they did not notice the knife which is not after all such a very big one and is merely a big penknife. Even if they sought to make it appear that the deceased was not the aggressive party, it is difficult to disbelieve the rest of their evidence particularly when it is fully supported by the disinterested evidence of P.W.7. P.W.15, the Sub Inspector, P.W.13, the police constable, and P.W.14, one Kasim Sab and P.W.16, who was then a Revenue Inspector and now the Head Clerk of the Taluk Office at Mudigere, who all followed the Doctor immediately after, have all corroborated the Doctor. If really the shots had been fired not by the accused but by his brother Sannegowda, there is nothing shown why the witnesses would have implicated the accused rather than Channegowda. All the witnesses have seen the accused with M.O.1 in his hand and have heard the deceased telling him to shoot again and kill him.

4. It is contended by the learned Advocate-General that Channegowda had apparently taken on himself the responsibility for firing the shots as he was involved in the case connected with the death of Channegowda a Siddegowda which is the subject matter of Cr.A.No.58/50-51; that by admitting that he shot the deceased in self-defence, both of person and property, which has to be partially accepted in this case, he would have felt that he was likely to be acquitted and that his brother would escape the practically certain conviction under the Arms Act and that he himself might be able to plead alibi in the connected case. This argument appears is have considerable force. As the deceased had clearly been shot by one of the brothers on their door-step one or the other of them was bound to explain how it happened.

5. Mr. Krishnamurthi has further argued by a reference to the sketch prepared in the case by P.W.1 that it was impossible for P.Ws.11 and 12 to have seen the shots being fired from the right hand side room. Both the committing Magistrate and the sessions Judge inspected the spot locally, the latter in the presence of the assessors and the Counsel on both sides, and apparently felt fully satisfied that the witnesses could see such an occurrence, nor have we been shown that the same is not possible. As against this argument, there is the inescapable circumstance that a large number of witnesses have spoken to seeing the accused with M.O.1 in his hand immediately after the occurrence. The accused in his statement does not say that his brother Channegowda did it nor did he say so to the witnesses.

6. It is next contended by Mr. Krishnamurthi that his client acted in self-defence and is there fore protected by S.96 read with sectiam 37 and 100, I.P.C. The learned Sessions Judge has found that the accused clearly extended such right of self-defence which he may have had by firing the second shot which shattered the left kidney and a part of the spinal column of the deceased and was apparently the cause of his death. The facts as found in this case show that the first shot took effect and hit the deceased in his thigh. The deceased must have slumped down and could not have moved much, if at all, afterwards. It is no doubt true that he had an open knife in his hand and when he came shouting with at least two other persons behind him the accused might have reasonably apprehended serious harm to himself and to the inmates of his house. While the earlier shot may therefore be considered not unreasonable, the second shot, which apparently had been fired at the back of the deceased when he had turned, would appear to be clearly unjustifiable. Under section 99, I.P.C., the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. The deceased was armed after all with a comparatively insignificant weapon and the accused could have probably used the rifle to hit him rather than shoot at him on the second occasion. The deceased did not proceed into the room after he was hurt by the first shot. The cartridges used contained slugs and the accused who apparently knew how to use the gun quite effectively must have known that it had a deadly power of killing.

7. Mr. Krishnmurthi has relied on a case reported in - Kuppusamier v. Emperor, AIR 1929 Mad 748 (A) and has urged that in such a case the accused cannot be expected to calmly consider the exact amount of force which he could employ to prevent the murderous attack over his person and property. In that case, there were a large number of people armed with knives and sticks who sought to attack the accused; and on facts therefore that case is not applicable to the present case. We think, therefore, that the learned Sessions Judge was quite correct in holding that the accused has exceeded his right of private defence and cannot invoke the benefit of section 97, I.P.C. and claim an acquittal.

8. Mr. Krishnamurthi has next contended that the conviction of the appellant under section 14 (d), Arms Act, is illegal Section 14 (d) provides that any person who goes armed in contravention of the provisions of section 8 is liable to punishment. Section 8 recites that no person shall go with any arms except under a license and to the extent and in the manner permitted thereby. The facts disclosed are that Channegowda, brother of the accused, who was living with him in the same house had a gun license to own and possess M.O.1. The accused took it up and fired the shots. Can it be said in those circumstances that the accused was "going" armed? The words go armed apparently mean that the accused must move from a place carrying arms with him with the deliberate purpose of using them. Mere carrying of arms of another as by a servant cannot be going armed. The learned Advocate-General has relied on a case in - 33 Mys CCR 38 : 5 Mys LJ 568 (B). In that case the accused was found shooting a crow in a field with a gun for which his father had a license and was charged under S.14(d), Arms Act, and pleaded guilty. The Magistrate nevertheless acquitted the accused relying on an earlier case reported in - 9 Mys CCR 93 (C). On appeal by the Government against the order of acquittal, it was held that the case in - 9 Mys CCR 93 (C) dealt only with a case of mere carrying by the son of a gun for which his father had a license and not to a case of the use of the gun and that the accused must therefore be held to have gone armed without a license within the meaning of section 14(d). In - 33 Mys CCR 39 (D) the accused had taken out the gun with the specific object of using it, and could be said to have been going armed and that circumstance would distinguish that case from the present.

9. The case reported in - Baburam v. Emperor, AIR 1925 All 396 (E) which is strongly relied on for the appellant, is more applicable to the present case. There the brother of a man who had a license to own a fire arm took his brothers gun and fired several shots in the air to scare away rioters and to prevent them from attacking his house. It was held that he was not guilty of any offence under the Arms Act because it could not be said that the gun had ceased to be in the possession of the license holder and had passed into the possession of the applicant. Their Lordships observed that the word possession is a well known, word in law and a man may be in the possession of a thing without being in physical touch with it; as for example when he has locked his vacant house, he is still deemed to be in possession of the same; or a license-holder going to an out-station leaving his gun in charge of his wife or his servant. In such a case, they pointed out that the possession of the wife and servant would be possession of the license-holder. If a house is invaded by a robber when the owner of the house is not present or is unable to act, surely it cannot be said that some other inmate of the house like his servant or his son cannot use the owners gun. 9a. An even stronger case in favour of the appellant is the one reported in - Prabhat Chandra v. Emperor, 35 Cal 219 (P). In that case the gun belonged to a person who was away from the country and was left by him with his brother. The accused who was a close relation of theirs saw a mad dog entering the compound of the house. He seized the gun and fired at the dog. He missed the dog but the shot wounded a stranger. It was held that the temporary possession of the gun which the petitioner had when he snatched it up and fired was not possession contemplated by S.14. In - Manjhubhai Gordhandas v. Emperor, AIR 1929 Bom 283 (G) the words goes armed have been interpreted as connoting carrying a weapon with the intention of using it when the necessity arose; and that the words goes armed would imply a man in the possession of the arms in contravention of the license and need not necessarily involve a habitual course of conduct. Mirza, J., in that case has however referred to the Dictionary meaning of the word go which is to pass about or abroad (in a certain state) or to move on a course. It is doubtful if a person can be said to go armed if he merely snatched up a rifle and fired from the place when he is standing. If a man moves anothers rifle from one place to another in the same house, it cannot be said he is going armed.

10. We, therefore, think that in this case, the aceused cannot be said to have been going armed; his primary intention was to fire in self-defence and not to go armed and shoot when occasion arose. In this view of the matter, we think that the accused cannot be convicted for an offence under section 14(d), Arms Act. His conviction and sentence for that offence must therefore be set aside and we order accordingly.

11. As regards sentence for the offence under the first part of section 304, I.P.C., we have given the matter our anxious consideration. There is no doubt that the accused was in a very difficult and unfortunate situation created by the deceased. The latter in spite of protests by the Sub-Inspector and others apparently tried to rush into the house of the accused after nightfall when there were ladies in the house with an open knife. He was accompanied by at least two persons and the accused could not have been sure that their intention was peaceful. We have held that the first shot was in self-defence and that the accused has stepped beyond the needs of the situation by firing the second shot. In these circumstances we think the sentence of 10 years R.I. imposed by the Sessions Judge is too heavy, and we reduce it to 18 months R.I.

12. Subject to the aboye modifications, this appeal is dismissed. Order accordingly. AIR 1953 MYSORE 48 (Vol. 40, C.N. 26) "Lakkappa v. Thimmappa" MYSORE HIGH COURT Coram : 2 BALAKRISHNAIYA AND MALLAPPA, JJ. ( Division Bench ) Lakkappa, Appellant v. Thimmappa, Respondent. Second Appeal No.46 of 1949-1956, D/- 6 -9 -1951. (A) Civil P.C. (5 of 1908), O.21, R.90 - SALE - Contents of application. An applicant under O.21 R.90 must not only allege in his application that there was a material irregularity or fraud in publishing or conducting the sale, but also that the applicant has sustained substantial injury and that it is by reason of such irregularity or fraud that such substantial injury has been caused. In the absence of such allegations the application is not maintainable as falling under O.21 R.90. (Para 1) Anno : C.P.C. O.21 R.90 N.2, 39, 40. (B) Limitation Act (9 of 1908), S.18, Art.166 - LIMITATION - Person defrauded must have been kept from knowledge of his right to apply. (Para 2) Anno : Lim. Act, S.18 N.5; Art, 166 N.18. (C) Evidence Act (1 of 1872), S.114(e) - EVIDENCE - May presume. A Court is not bound to raise a presumption under Section - Whether a presumption should be raised depends on the facts and circumstances of each case. (Para 3) Anno : Evi. Act, S.114 N.1, 29, 30. Cases Referred : Chronological Paras (A) (38) 16 Mys LJ 485 (FB) (B) (50) AIR 1950 Bom 346: 52 Bom LR 358 Maloor Subba Rao, for Appellant; E. Kana-kasabhapathy, for Respondent. Judgement MALLAPPA, J. :- This is an appeal against the decision passed by the Additional Subordinate Judge, Tumfcur in E.A. No.67 of 48-49 setting aside the order in Misc. Case No.10 of 48-49 on the file of the Munsiff of Tiptur. The appellant-petitioner is a judgment-debtor in Ex. Case No.217 of 45-46 who filed an application under O.21 R. Win. Misc Case No.10 of 48-49 referred to above. It is alleged in the application that the mortgage decree obtained against him was executed at the instance of the respondent as assignee of the -original decree-holder. The applicant was not aware of the assignment and was not served with a notice. It is also alleged in the application that the assignee decree-holder has fraudulently got the properties of the applicant-judgment-debtor sold, that he was not served with any sale notice, that there was no proclamation of the sale and that the sale is invalid in law and liable to be set aside. This is particularly so it is contended, as apart from two-thirds share of the judgment-debtor in the suit properties, the entire property including the one-third share was also sold. It is also alleged that the petitioner came to learn about the fraudulent execution of the sale proceedings about three weeks prior to the date of the petition and is entitled to damages. The allegations have been denied. The petitioner has examined himself and two witnesses -one of whom has attested the delivery receipt. They say that there was no sale proclamation in the village. The applicant has also sworn that he was not served with a notice. The learned Munsiff is of opinion that it was not proved that the sale notice was not served or the sale proclamation was not published by beat of tom-tom. As pointed out by him, the mere fact that two of the villagers did not know that the sale proclamation was published by tom-tom does not necessarily mean that there was no such sale proclamation. He further relied on the fact that it is not even alleged that the petitioner has suffered substantial injury or irreparable loss from the irregularity and fraud in the conduct and publication of the sale. The learned Subordinate Judge has not considered the evidence at all but observes that it is not disputed or denied that the judgment-debtor was not served with a sale notice in the execution case though he says that a notice of assignment before the final decree was passed, could be considered to be unnecessary. It is not clear why he says that it is not disputed or denied that the judgment-debtor was not served with the sale notice, though the allegations in the petition as observed by the learned Munsiff about the sale notice having not been served had been denied. He does not say what reason there is to differ from the learned Munsiff and to hold that there was no sale proclamation or that the judgment-debtor was not served with sale notice. He is also opinion that the fact that the Court held a sale in respect of the entire property though the judgment-debtors had only two-thirds interest has also prejudiced the judgment-debtor-applicant. He does not say how the judgment-debtor is prejudiced. The sale was confirmed more than two years prior to the date of the application under O.21 R.90 and it must be stated that even if all that is said in the application is said to have been proved, it cannot be a case in which the sale could be set aside under O.21 R.90. Order 21 R.90 is as follows : "90(1) Where any immovable property has been sold, in execution of a decree, the decree-holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it; Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud." It is clear that before an applicant under O.21 R. 90 succeeds he must allege in his application that there was a material irregularity or fraud in publishing or conducting the sale. It is also provided in that rule that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. It must be alleged in the application, therefore, that not only that there was a material irregularity or fraud in publishing or conducting the sale but also that the applicant has sustained substantial injury and that it is by reason of such irregularity or fraud that such substantial injury has been caused. It will be noticed that there are no allegations in his petition to show that on account of the irregularity or fraud the applicant sustained substantial injury. It follows that he has not stated that fraud or irregularity is the reason for any such substantial injury. The application as it stands is net maintainable as one falling under O.21, R.90, Civil P.C.

2. Again it will be noticed that no application under O.21 R.90 could be filed beyond 30 days after the date of confirmation of sale. The application is filed more than two years after the confirmation of sale. Unless it comes under S.18, Limitation Act the application is barred by time. Section 18, Limitation Act makes it clear that "where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded ...... the time limited for instituting a suit or making an application runs against the person guilty of fraud or necessary thereto, or against any person claiming through him otherwise than in good faith and for a valuable consideration, shall be computed from the time when the fraud first became known to the person injuriously affected thereby ......" In this case, the applicant merely states that he came to know of the sale about three weeks prior to the date of the application. He does not even say that he came to know about the sale less than 30 days before he filed the petition. Before S.18, Limitation Act is made applicable he must allege in the application not merely that there was fraud or irregularity in publishing or conducting the sale but also that he has been by means of fraud kept from the knowledge of his right to file the application. No such allegation has been even made in the application and as such, the application is barred by time.

3. As regards the service of sale notice it must be stated that merely because the petitioner swears that he was not served with a notice, it follows that there was no service at all. The Full Bench decision in 16 Mys LJ 485 (A) has laid down, it was argued, that it is not wrong to expect the applicant under O.21 R.90 to examine either the Amin or the Process Server or witnesses present at the time of service. As observed in that decision "the Court is not bound under S.114, Evidence Act to raise a presumption that a summons to a defendant, which according to the return to it has been served upon him, has been duly served." This does not, however, mean that no presumption at all arises. Under S.114, Evidence Act, the Court may presume the existence of any fact (as per IIIus. E to S.114, Evidence Act) that judicial or final acts have been regularly performed. It is not a case in which it has been said that the Court shall presume. It is open to the Court to raise a presumption or not to raise a presumption considering the circumstances of each case and all that is pointed out in the Full Bench decision referred to above is this aspect of the matter i.e., that the Court is not bound to raise a presumption. This does not mean that the burden of proof is shifted or that in no case the Court could raise such a presumption. As observed in that case, no rule could be laid down as to who has to ordinarily examine the Process Server who professes to have served the summons or the witnesses attesting the service as his witnesses. Each case has to be considered on its own merits and considering the circumstances in each case, it is for the Judge to raise a presumption or not and to give a finding on the evidence available as to whether the point at issue has been proved or not. Considering the circumstances of this case, we think that the appreciation of evidence by the learned Munsiff is quite correct and that by the learned Subordinate Judge is wrong in merely differing from him by observing that the point has not been disputed. In this case, the applicant-judgment-debtor had two-thirds interest in the property and it was this that was for sale. The other one-third interest belonged originally to R.W.1, a brother of the judgment-debtor, and he admits that he has conveyed it to the assignee-decree-holder. Any way, he does not feel aggrieved that his property was included in the sale. It has not been shown that any interest of the judgment-debtor not included in the decree has been sold in this case or that the judgment-debtor has in any way been prejudiced by the inclusion of the one-third share not belonging to him. The decision in - Ram Ganu v. Hari Sambhu, AIR 1950 Bom 346 (B) deals with a case where 16 guntas of property belonging to the judgment-debtors had been sold in execution of a decree obtained against them though, the decree directed sale of only guntas. A suit was filed for recovery of 8 guntas not covered in the decree on the ground that the sale of these 8 guntas was without jurisdiction and therefore a nullity. The decision makes it clear that the application under O.21 R.90 does not lie in cases of that kind. It may be mentioned that the persons who filed the suit were persons whose interest had been sold, while the applicant in this case had admittedly no interest in the property sold and not included in the decree.

4. On the whole, even if all the allegations made in the application are believed, though of course, as already observed, there is no reason to believe the same, it is clearly a case where the application of the judgment-debtor under O.21 R.90 has to be dismissed as the allegations to set aside the sale under O.21 R.90 are not even made in it and necessary allegations are also not included in the application to show that time is extended under S.18, Limitation Act.

5. The order of the learned Subordinate Judge is, therefore, set aside and that of the learned Munsiff restored. Parties will bear their own costs in this appeal.

6. BALAKRISHNAIYA, J. :- I agree with the conclusion. Appeal allowed. AIR 1953 MYSORE 49 (Vol. 40, C.N. 27) "Hutchegowda v. Chennigegowda" MYSORE HIGH COURT Coram : 2 BALAKRISHNAIYA AND MALLAPPA, JJ. ( Division Bench ) Hutchegowda Defendant Appellant v. Chennigegowda Plaintiff Respondent. Second Appeal No.8 of 1948-49, D/- 17 -8 -1951. (A) Civil P.C. (5 of 1908), O.41, R.27 - APPEAL - EVIDENCE - Application showing need of evidence is not untenable. (Para 5) Anno : C.P.C., O.41, R.27 N.13. (B) Evidence Act (1 of 1872), S.65 - DOCUMENTS - Objection as to admissibility. Where the plaintiff swears that the original document of which the copy is filed is not in his possession and the defendant does not object to the production of the copy and plaintiff is not cross-examined on the point of his not being in possession of the original it cannot be objected in appeal that the copy was wrongly allowed to be put in by the lower court. AIR 1922 P.C. 56, AIR 1931 Bom 105 Rel. on. (Para 6) Anno : Evidence Act S.65 N.13. (C) Registration Act (16 of 1908), S.60 - DOCUMENTS - Registered document - Presumption. Evidence that a document was duly registered is some evidence of its execution by the person by whom it purports to have been executed. Case law discussed. 45 Mys HCR 97 and 50 Mys HCR 118, Dist. (Para 7) Anno : Registration Act S.60 N. 12. (D) Evidence Act (1 of 1872), S.18 - EVIDENCE - Admission - Binding nature. An admission by a party is not binding upon a person not claiming through him. AIR 1949 Mad 84 Rel. on. (Para 14) Anno : Evid. Act S.18 N.3 (E) Limitation Act (9 of 1908), Art.144 - LIMITATION - ADVERSE POSSESSION - Adverse possession against minor. When the property is in possession of a close relative, particularly when the owner is a minor and has no other male member to look after him, it must be presumed that the possession is not adverse. (Para 15) Anno: Limitation Act Art.144 N.24. Cases Referred : Chronological Paras (A) (22) AIR 1922 PC 56 : 48 Ind App 365 (PC) (B) (31) AIR 1931 Bom 105 : 55 Bom 103 (C) (06) 33 Cal 537 : 33 Ind App 60 (PC) (D) (29) AIR 1929 Lah 711 : 116 ind Cas 911 (E) (66) 6 WE 105 (F) (74) 21 WR 265 (G) (80) 7 Cal LR 276 (H) (90) 17 Cal 903

(I) (15) AIR 1915 All 383 : 38 All 1 (J) (43) AIR 1943 PC 83 : ILR (1943) Kar PC 69 (K) (07) 9 Bom LR 401

(L) 45 Mys HCR 97 (M) 50 Mys HCR 118 (N) (95) 57 All 494 : AIR 1935 PC 132 (O) (41) AIR 1941 Lah 400 : 197 Ind Cas 581 (P) (36) AIR 1936 Lah 946 : 17 Lah 686 (Q) (47) AIR 1947 Mad 57 : 229 Ind Cas 201 (R) (39) 16 Mys LJ 249 (S) (43) S A No 25 of 1943-44 (T) (41) AIR 1941 Oudh 529 : 196 Ind Cas 787 (U) (28) AIR 1928 PC 38 : 55 Cal 532 (PC)

(V) (49) AIR 1949 Mad 84 : ILR (1949) Mad 171 S.K. Venkataranga Iyengar and V.V. Srinivasa Iyengar for Appellant. M.S.Ranganathan and B.T. Ramaswamy for Respondent. Judgement MALLAPPA, J. :- This appeal is against the judgment in R.A. 51 of 46-47 on the file of the Subordinate Judge, Mysore, dismissing the appeal filed against O.S.331 of 1944-45 on the file of the Second Munsiff, Mysore who had decreed the plaintiff-respondents suit for declaration of title and for possession of the plaint schedule properties as prayed for.

2. The case of the plaintiff-respondent is that the suit properties belonged to Channigegowda. His widow Thimmi alias Helavi took plaintiffs father in adoption and executed a registered deal to evidence the same. Helvi was defendants fathers sister and this is how plaintiff and his mother came to be, after the death of his father, under the protection of defendants father. Helvi died while they were living with defendants father who began to look after the properties for and on behalf of the plaintiff. After the death of the father of the defendant, the suit was instituted for declaration of plaintiffs title and for possession of plaint-schedule properties. The defendant-appellant admits that Helvi is his fathers sister, but denies that she ever lived with him. Though the adoption is denied in the statement, it is not contended before us that the adoption is not true. The defendant has denied that the properties belonged to Chennigegowda and that his father was looking after the properties on behalf of the plaintiff. According to him the plaintiff was never in possession of the properties within 12 years before suit and the suit is barred by adverse possession.

3. Both the courts below have come to the conclusion that the properties belonged to Channigegowda and to plaintiffs father and that these belong now to plaintiff. They are of opinion that as defendants father was in possession of the property on behalf of plaintiff, till his death the suit in well within time and that it not barred by adverse possession. It will be noticed that the defendant does not contend that the properties belonged to him or to his father. His case is one of adverse possession. It is in evidence that plaintiffs grand father Chennigegowda purchased three of the suit properties under registered sale deeds, Khata of most of thera stood in the khata of his wife after his death and none of these were in the khata of defendants father till the time of the introduction of record of rights. Defendants father did not issue a reply claiming the properties as his when plaintiffs mother issued a notice claiming them. From these and other circumstances of the case, the learned Subordinate Judge has agreed with the learned Munsiff in his finding that the properties belonged to plaintiffs grand-father.

4. As regards the question whether the plaintiff has been in possession of the properties within 12 years before suit or whether the suit is barred by adverse possession, it was rightly held by the two courts below that the father of the defendant was in possession of the property on behalf of the plaintiff and that he was looking after the management of the properties. As admitted by the defendant in his statement, Thimmi alias Helvi was defendants fathers sister. It is true that he has denied that Helvi ever lived with her brother Venkatagowda after her husbands death. But Chikkadasappa 8th witness for the defendant admits that Helvi lived in Venketegowdas house. Doddavenkatiah DW-9 admits much more than this. He says that Helvi was wife of Channigegowda and that after his death, she began to live with defendants father Venkategowda. Plaintiffs father whose marriage took place in Venkategowdas house lived in that house till his death. It is therefore very clear that Helvi who came to her brothers house after her husbands death must have taken plaintiffs father in adoption and celebrated his marriage in that house. Plaintiffs father and mother lived under the protection of defendants father Venkategowda till plaintiffs father died, leaving the plaintiff who was a baby at the time. Plaintiffs father according to D.W.9 was tending cattle in Venkategowdas house till his death. Evidently being dull, he was occupying a subordinate position in Venkategowdas house and both he and the plaintiff were under his protection, Venkategowda under the circumstances cannot but be deemed to have been looking after the properties for and on behalf of the plaintiff and his possession must tantamount to possession by the plaintiff and his father. There was thus good material for both the courts below to come to the conclusion that the plaintiff is the owner of the plaint schedule property and that the suit 4s within time and not barred by adverse possession. These are questions of fact and the concurrent findings of the two co courts below cannot be attacked in second appeal in this court.

5. It was however contended that the courts below erred in their view as to what constitutes adverse possession and that the lower appellate court was wrong in treating the two registered sale deeds in favour of the plaintiffs grand-father as proved merely because copies of those documents were filed in court, and that the lower appellate court was also wrong in admitting copies of these documents under O.41, R.27. It is no doubt true, that under O.41, R.27 the court can call upon a party to adduce additional evidence if it feels that evidence is necessary to enable it to give a proper decision. This, however, does not mean that a party cannot file an application bringing to the notice of the appellate court the need for such evidence. It cannot be said that the lower appellate court was wrong in merely allowing the plaintiff to put in certain copies of registered documents.

6. What is, however, more seriously contended is that the copies of the registered documents should not have been allowed to he put in without satisfactory evidence about the loss of the originals and that from mere production of copies of registered documents the lower appellate court was wrong in presuming the genuineness of their originals. Plaintiff is the person who must have been in possession of the originals of the copies of the two registered sale deeds in favour of Channigegowda. He swears that he has not got the original deeds with him and that the schedule properties were purchased by his grandfather Chennigegowda under exhibits C and D. Here it has to be noticed that the learned Subordinate Judge has noted that the Advocate of the appellant appearing in that court had no objection. In these circumstances, it is difficult to understand the objection of the learned advocate for, the appellant that the copies were wrongly allowed to be put in. As observed in - Ihtishan Ali v. Jamna Prasad, AIR 1922 PC 56 (A) : "It is, no doubt not very likely that such a deed would be lost, but in ordinary cases, if the witness in whose custody the deed should be deposed to its loss, unless there is some motive suggested for his being untruthful, his evidence would be accepted as sufficient to let in secondary evidence of the deed. And if in addition he was not cross-examined this result would follow all the more." As observed by Baker, J., in - Vishvanath Ramji v. Rahibai Ramji, AIR 1931 Bom 105 (B) "The question whether secondary evidence is rightly admitted is one proper to be decided by the Judge of the first instance and depends very much on his discretion and his conclusion should not be overlooked except in a very clear case of miscarriage." In this case it is stated that the objection in fact was waived and the plaintiff has not been cross-examined on the point of his not being in possession of the originals of exhibits C and D. There is, therefore, no substance in this contention.

7. The main point on which the learned counsel for the appellant attacked the decision of the lower appellate court is in respect of its coming to a decision, from the mere production of copies of registered documents that the originals of those documents were proved. Evidence that a document was duly registered is some evidence of its execution by the person by whom it purports to have been executed. There was some difference of opinion in the High Courts of India outside Mysore on this aspect of the matter. The Privy Council decision in - Gangamoyi Debi v. Trailukhya Nath, 33 Cal 537 (C), set the matter at rest. Sir Ford North who delivered the judgment of their Lordships in that case observed : "The registration is a solemn act, to be performed in the presence of a competent official appointed to act as Registrar, whose duty it is to attend to parties during the registration and see that the proper persons are present, are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be done duly and in order. Of course it may he shown that a deliberate fraud upon him has been successfully committed; but this can only be by very much stronger evidence than is forthcoming here." As observed in - Piara v. Fattu, AIR 1929 Lah 711 (D) by Bhide, J., with whom Fforde, J., agreed : "On behalf of the respondent, on the other hand, it is contended that the certificate of the Registering officer merely shows that the legal formalities as to registration was complied with and that it cannot be looked upon as evidence of its execution as there is no guarantee that the person who appeared before the Registering officer and claimed to be the executant was the real executant. There seems to be a considerable body of authority in support of this view; Vide - Kripanath v. Bhashaye Mollah, 6 WR 105 (E) :- Fyez Ali v. Omedee, 21 WR 265 -Fuzal Ali v. Bia Bibi, 7 Cal LR 276; - Sulrmatul v. Koylashpoti, 17 Cal 903 and -Rajmangal v. Mathura Dubain, AIR 1915 All 383. But most of these rulings were prior to the Privy Council decision in 33 Cal 537 (C), and the effect of that decision does not appear to have been considered in the later rulings which were referred to." Again Lord Phillimore who pronounced the judgment of their Lordships in AIR 1922 PC 56 (A) has observed : "There is no doubt that the deed was executed, for it was registered, and registered in a regular way, and it is the duty of the registrar, before registering, to examine the grantor, or some one who, he is satisfied, is the proper representative of the grantor, before he allows the deed to be registered. There can be no doubt therefore, that Ehsan Ali Khan executed the deed and was party to its registration." Sir George Rankin, who pronounced the judgment of their Lordships in the case reported in - Gopal Das V. Sri Thakurji, AIR 1943 PC 83 (J) has observed: "The registrars endorsement show (see sub-S.2 of S.60, Registration Act, 1877) that in 1881 a person claiming to be this Parshotam Das, and to have become son of Harish-chandra by adoption made by his widow Manki Bahu, presented the receipt for registration and admitted execution. He was identified by two persons - one Sheo Prasad and the other Girja Prasad, who was the scribe of the document and was known to the Registrar. What remains to be shown is that the person admitting execution before the Registrar was this Parshotam Das and no impostor. The question is one of fact except in so far as there was as a matter of law a presumption that the registration proceedings were regular and honestly carried out: 33 Ind App 60 at p.65 (C) AIR 1922 PC 56 at p.58 (A). It seems olear that any objection to the sufficiency of the proof upon this point would have been idle, the circumstances being such that the evidence of due registration is itself some evidence of execution as against the plaintiffs." In AIR 1931 Bom 105 (B), Beaumont, C.J., and Baker, J., were dealing with a case in which the first appellate court had observed "The lower court has not even insisted on proof that any such document was ever executed by deceased Ramji; the person who is said to have identified him before the Sub-Registrar is not examined. The respondent cited the writer and witnesses, but did not examine them. The result of this extraordinary conduct of the case is that the plaintiff is allowed to accuse Ms adversary without any proof of having a certain document, and is allowed to take every advantage of this accusation, being exempted thereby from his obligation to prove the execution of the document." But Baker, J., who delivered the judgment of the High Court observed : "Then as to the proof, the document, in this particular instance, has been registered and bears the necessary endorsements by the Sub-Registrar before whom the executant was identified by the Kulkarni of the village. The effect of registration has been considered by this court in - Thama v. Govind, 9 Bom LR 401 (K) where it was held that Ss.58, 59 and 60, Registration Act, provide that the facts mentioned in the endorsement may be proved by these endorsements provided the provisions of S.60 have been complied with. The endorsement of the Sub-Registrar in the present case shows that Ramji the executant admitted execution of the document and gave his thumb impression and that he was identified before the Sub-Registrar by Keshav Hari Talati who was known to the Sub-Registrar. In these circumstances, the view of the first court that the copy of the adoption deed is admissible in evidence and that is sufficiently proved appears to be correct." From these decisions, it is clear that the lower appellate. Court was right in regarding the copies of the two registered documents as some evidence of the genuineness of their originals.

8. It is, however, brought to our notice that there are decisions in this court which show that the genuineness of the original cannot be presumed from the mere production of copies of registered documents. The decisions reported in 45 Mysore HCR 37 (L) and 50 Mys HCR 118 (M) are relied on. As regards the first of these cases it will be noticed that a certified copy of a partition deed was produced in evidence and it was urged on behalf of the contesting defendant that the partition deed being a document more than 30 years old no proof as regards its genuineness was necessary beyond the production of the certified copy and the genuineness of the original may be presumed under S.90, Evidence Act. It may be stated with respect that it was correctly held in that case that though the genuineness of the certified copy of the partition deed could be presumed under S.90, Evidence Act, the certified copy being a document 30 years old, the mere production of the certified copy was not sufficient to justify a presumption under that section of the due execution of the original. The decision of the Privy Council in - Basant Sing v. Brij Raj Saran Sing, AIR 1935 PC 132 (N) also merely states that S.90 of the Evidence Act itself is dear on the point that production of a copy is not sufficient to justify the presumption of due execution of the original under S.90, 45 Mys HCR 97 (L), however has nothing to do with; the question of raising a presumption under S.60, Registration Act. In fact, there is nothing to show the certified copy relied on in that case is a copy of a registered document As observed by Beckett, J., in - Harnam Singh v. District Official Receiver, AIR 1941 Lah 400 (O) with reference to the Privy Council decision relied on by this Court in the decision referred to above : "All that was laid down in AIR 1935 PC 132 (N) was that the age of a copy gave rise to no presumption of the due execution of the original, not that such execution could not be presumed on any other grounds, S.60, Registration Act, provides that the certificate of the registering officer shall be admissible for the purpose of proving net only that the document has been duly registered, but also that the facts mentioned in the usual endorsements have occurred as therein mentioned. The endorsements mentioned in S.58 include endorsements relating to the execution of the document. Following 33 Cal 537 (PC) (C) and AIR 1929 Lah 711 (D) it was held by a Division Bench of this Court in - Brij Raj Saran v. Alliance Bank of Simla, AIR 1936 Lah 946 (P) that a Sub-Registrars endorsement duly made under S.60, Registration Act, is relevant evidence for proving the execution of the document. In the present instance, the copy shows that the arbitrators themselves admitted the execution of the document container the award. It would indeed be unfortunate if registered records became practically useless as they grew old unless they could be produced in the original form but happily this does not appear to be the law." It is thus clear that the decision of this court in 45 Mysore HCR 37 (L) which does not deal with a case under S.430, Registration Act, does not help the appellant in any way.

9. The decision reported in 50 Mys HCR 118 (M) however, appears at first sight to be in favour of the coatentions raised by the learned Advocate for the Appellant That was a case in which a certified copy of a registered document was produced and it was held that a presumption of genuineness of the original cannot be raised. - Ramanathan Chettiar v. Ramanathan Chettiar, AIR 1947 Mad 57 (Q) was relied on and it was held in the latter case also that where only a copy of a document purporting to be more than 30 years old is produced, the Court cannot under S.90 of the Evidence Act draw a presumption that the original document, of which it is a copy, is genuine. The question whether a presumption under S.60, Registration Act, of the genuineness of the original document on the ground of its being a registered document was neither raised nor considered, and as such it cannot be taken as an authority on that aspect of the matter. There is, however, the following observation, which is likely to raise an impression that under no circumstances production of registered documents as in that case can be evidence of the genuineness of the originals : "If in this case there was nothing on the record except the production of these two copies following the decisions above named, we should have had no difficulty in holding the genuineness of the originals of which Exhibits U and W purport to be copies, had not been made out." It is unfortunate that 16 Mys LJ 249 (R) and the Privy Council -decisions were not brought to the notice of the learned Judges as in such a case it is likely that the above observation would not have been made. Moreover, there was in that case no need to raise any presumption, as it is clear by the following observation in it : "But an examination of the evidence clearly shows that the genuineness of those documents has been established beyond doubt, and indeed since the copies are not themselves over 30 years old the plaintiff cannot seek the aid of Section 90 in proof of the originals of these documents and the learned Munsiff seems to have unnecessarily considered this aspect of the case." It is thus seen that in view of the fact that the evidence in that case itself established the genuineness of the documents, no question of raising a presumption under S.60, Registrators Act, arose for consideration.

10. On the other hand, in the decision of this Court in 16 Mys LJ 249 (R) which relies on the Privy Council decision in 33 Cal 537 (C) referred to in AIR 1929 Lah 711 (D) mentioned above, Shankaranarayana Rao, J., observed : "Sections 34 and 35 of the Registraion Regulation cast certain duties on the Sub-Registrar; he has to enquire whether or not the document produced before him was executed by the person by whom it purports to have been executed, to satisfy himself about the identity of the persons appearing before him and alleging that they executed the document, and so on." This is no doubt a decision by a Single Judge. But in - Fakir Ahamed v. Abdul Wahab, S.A. No.25 of 1943-44 (S), the Bench consisted of Venkataramana Rao, C.J., and our present Chief Justice and the following observation in that case lays down the law on the point : "Certified copies contain endorsements which go to show that the documents were executed by Mohamad Hussain and under S.60, Cl.2, .Registration Act, these documents can be relied en for purpose of proving the execution of the originals. The appellate Court has discussed the case law on the point and we must take it that execution of the originals had properly been proved." It has to be noticed that, as in this case, no oral evidence of the documents had been adduced in that case in respect of genuineness of the documents in question and the mere production of the copies of the registered documents containing endorsements which made it clear that the person by whom it purports to have been executed did execute those documents, was held to be sufficient proof of the execution of the documents.

11. Ara Begam v. Deputy Commr., Gonda, AIR 1941 Oudh 529 (T), relied on by the learned Advocate for the appellant is a decision of a single Judge. It was observed in that case as follows: "The fact of the matter is that if the broad proposition put forward on behalf of the plaintiffs were to be accepted, in a large majority of cases proof of execution such as is contemplated by S.67, Evidence Act, would become unnecessary. The effect of the registration endorsement is not to prove execution as is required by S.67 but only to prove an admission made by the executant to the Registrar or Sub-Registrars certificate is admissible not to prove execution of the deed but merely to prove the admission of execution. The effect of the admission is in every case a separate question....... ... .... To sum up the whole position, as it appears to me, the plaintiffs were in a position to lead evidence of execution without, so far as appears from the record, any difficulty. They have chosen to withhold evidence of execution although it could hardly be said that the surrounding circumstances were free from suspicion." The decision in the first place suggests that the endorsement of the Sub-Registrar may only go to prove an admission of a person that he executed the document and that this admission cannot be binding on third parties. Secondly, it holds that it may not be safe to raise a presumption of due execution of the document even in a ease where the party has purposely failed to adduce other evidence though he could have easily done so and there are suspicious circumstances. It has however to be remembered that in 33 Cal 537 (C) and other cases, referred to above the endorsement of the Sub-Registrar has not been relied on merely as an admission. In - Puran Chand v. Monmotho Nath, AIR 1928 PC 38 (U) it was contended that the word executing used in S.35 of the Registration Act only meant actual signing. Their Lordships of the Privy Council rejected that contention, and it was observed "A document is executed, when those who take benefits and obligations under it have put or have caused to be put their names to it.......Hence the words "person executing" in the Act cannot be read merely as "person signing". They, mean something more, namely, the person, who by a valid execution enters into obligation under the instrument." As observed by Shankaranarayana Rao, J., in 16 Mys LJ 249 (R), the Sub-Registrar, has, to enquire whether or not the document produced purports to have been executed and to satisfy himself about the identity of the persons appearing before him and alleging that they executed the document and so on. The presumption raised in these cases is in respect of the execution of the documents.

12. It is not merely a presumption under S.60, Registration Act, that arises in cases of this kind. Apart from any presumption that arises under any law, a presumption of fact arises in cases of this kind. As stated in S.114, Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Woodroffe and Ameer Ali in their commentary under S.4, Evidence Act, observes : "Presumptions of fact or natural presumptions are inferences which the mind naturally and logically draws from given facts without the help of legal direction. They are always rebuttable. They can hardly be said with propriety to belong to that branch of the law which treats of presumptive evidence. They are in truth but mere arguments of which the major premise is not a rule of law; they belong equally to any and every subject matter, and are to be judged by the common and received tests of the truth of propositions and the validity of arguments. They depend upon their own natural efficacy in generating belief, as derived from those connections which are shown by experience, irrespective of any legal relations. They differ from presumptions of law in this essential respect, that while those are reduced to fixed rules, and constitute a branch of the system of jurisprudence, these merely natural presumptions are derived wholly and directly from the circumstances of the particular case by means of the common experience of mankind, without the aid or control of any rules if law. Such, for example, is the inference of guilt drawn from the discovery of a broken knife in the packet of the prisoner, the other part of the blade being found sticking in the window of a house which, by means of such an instrument, had been burglariously entered. These presumptions remain the same under whatever law the legal effect of the facts, when found, is to be decided." (See Taylor. Ev. 214).

13. In case of a registered document the document is registered only after the officer appointed for the purpose satisfies himself that the document has been duly executed. In many cases an endorsement of the Sub-Registrar proves that a person who purports to have executed the document has presented it for registration and has received consideration in the presence of the Sub-Registrar. All this is something more than admissions. The document itself might remain unchallenged for more than a score of years. What will be the presumption of all such circumstances put together? The presumption is one of fact, and the Court is at liberty to infer from all these circumstances that the document was executed by the person by whom it purports to have been executed. After all, the fact that the document is registered is only a piece of evidence. It is open to the Court to accept it or reject it. It may be rejected in the circumstances referred to in Oudh case mentioned above, that is, where it can hardly be said that the surrounding circumstances are free from suspicion and where the party on whom the burden of proof lies wantonly keeps back the evidence of witnesses present at the time of execution though they are alive. As observed by Shankaranarayana Rao, J., in 16 Mys LJ case, it may be shown that a deliberate fraud has been played upon the Sub-Registrar. Thus, while it is clear that the presumption of the genuineness of a document is not unrebuttable it is one that the Court may raise considering the circumstances of each case including the hardship, that might be caused by not raising such a presumption in a proper case. Let us take the case of a suit for possession of a land leased to another for a long period of time, on the expiry of the said period of the lease. If the tenant in whose favour the lease deed was executed denies the existence of the document and all the attestors and the scribe of the document are dead, how will it be possible for the owner of the property to prove that the lease deed was executed by him or his predecessor-in-interest? In such cases, where it is impossible for any person to prove the execution of a document on account of the death of all the persons concerned, the best and only possible evidence that may be available is that of a certified copy of the registered document.

14. As regards the question of adverse possession it is contended that plaintiffs mother issued a notice Exhibit II, saying that defendants father took wrongful possession of her produce. Evidently, considering the allegation in the notice that defendants father promised to give her produce, it is clear that the idea in the notice is not that defendant claimed to be in possession of the property in his own right. Assuming that plaintiffs mother issued the notice admitting the properties to be in .adverse possession of the defendant, the admission does not bind the plaintiff who does not claim the property through her. As observed in - Kaliammal v. Sundarammal, AIR 1949 Mad 84 (V): "An admission by a party to a suit is not binding upon a person not claiming through him. Thus, where a widow admits that her husband and her husbands brother had reunited after partition, the admission is art binding upon her daughter who is not her representative-in-interest as she does not claim her title through her mother but through her father."

15. When the property is in the possession of a close relative, particularly when the owner is a minor and has no other male member to look after him, it must be presumed that the possession is not adverse. The point is quite clear and it is unnecessary to refer to the case law on the point. It is sufficient to refer to the following observation in the commentary of U.N. Mitra on Law of Limitation under Art.144, Limitation Act, and the decisions relied on by the learned author are also set out in it: "Acts amounting to adverse possession should be scrutinized in the light of relationship that exists between the parties. With reference to the property of a female living with her relation he is deemed to be manager on her behalf until he openly asserts a hostile title to hold on his own behalf. Possession of husband or brother or mother is prima facie not adverse. Minor and guardian : It is not open to a person who takes charge of a minor and protects him to plead that as regards his properties he has adverse possession. The law is clear that a person who is either an actual legal guardian or who takes upon himself the guardianship of a minor cannot be heard to say that his possession must be taken to be adverse to the minor. So long as he acts as guardian or as agent, the law regards him as bailiff or trustee for the minor and would not allow him to set up adverse possession. The position of a lunatic is also similar. The presumption is that such possession is on behalf of the infant or the lunatic and it continues so even after the ward attains majority until something has been done to alter the character of that possession."

16. In this case, there is evidence to show that the plaintiff and his father lived with defendent father till the latter died and that he was in possession of the properties of Channanigegowda grand-father of plaintiff. There are registered sale deeds executed in his favour. It is clear that defendants father was in possession of the properties on behalf of plaintiff till he died. The defendant has not stated that the properties belonged to him or his father, or stated how they belonged to them. None of the properties stood in the Khatha of defendants father. On the other hand in the case of three out of the four properties, khatha stood in the name of the mother of the plaintiff till it was changed to the name of the defendants father at the lime of the introduction of the Record of Rights within 12 years before suit. It cannot, therefore, be said that the lower Courts had no evidence to support their conclusion that the properties belonged to the plaintiff, and that defendants father was in possession of the properties only for and on behalf of the plaintiff.

17. There was ample material for both the Courts below for coming to the conclusion that plaintiff is the owner of the suit properties and that he was in possession of them within 12 years before suit. Plaintiffs suit was rightly decreed as prayed for by him and this appeal against the concurrent findings of the Courts below stands dismissed with costs.

18. BALAKRISHNAIYA, J. :- I agree. Appeal dismissed. AIR 1953 MYSORE 55 (Vol. 40, C.N. 28) "Mallari Gowda v. Mari Gowda" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Mallari Gowda, Defendant-Appellant v. Mari Gowda, Plaintiff-Respondent. Second Appeal No.267 of 1949-50, D/- 30 -6 -1952. Oaths Act (10 of 1873), S.9 - OATH - AGREEMENT - Retreat from agreement - Powers of Court - Law as to. If there is an agreement that the suit should be decreed or dismissed on a particular person taking an oath or on his refusing to do so nothing comes in the way of the Court disposing of "the case in accordance with the terms of the agreement. (Para 2) If before the oath is actually administered, a party who offered to be bound by it has valid and sufficient grounds to withdraw, the Court has the power to go into the validity or reasonableness of the grounds urged and if it is satisfied that the party has justifiable grounds to resile, the Court may permit him to do so, and this power can be exercised even after the offer has been accepted by the opposite party. If, however, the oath is made, either without objection, or after the objection is heard and rejected as frivolous or futile, the party who made the proposal is bound by it, and cannot afterwards retract. 4 Mys LJ 217, followed. (Para 2) Parties should generally be allowed to withdraw from the agreement to take an oath in a temple in the presence of the villagers, if the application to withdraw is made soon after the agreement and the opposite party is not prejudiced. (Para 3) Anno : Oaths Act, S.9 N.3. Cases Referred : Chronological Paras (A) 4 Mys LJ 217 (B) 17 Mys LR 18 A.R. Somanatha Iyer, for Appellant; B.S. Pranesha Rao, for Respondent. Judgement The suit in O.S. No.171 of 48-49 on the file of the Munsiff, Krishnarajanagar, in respect of which this appeal arises came up for evidence on 4-1-1949. The plaintiffs counsel on that date gave an offer to the defendant in. the following terms as is dear from the order sheet : "That if he (defendant) swears before Hampapur Amma Temple at Hampapur that he (defendant) does not owe anything to the plaintiff, the suit will be dismissed or if the defendant allows the plaintiff to swear before the said temple that the defendant has taken a loan from him (plaintiff) the suit will be decreed as prayed for. The defendant states that he would, take an oath before the said temple. The plaintiffs counsel admits to it." The Court passed an order appointing a commissioner for administering an oath and stated that if the defendant were to swear the suit shall be dismissed with the costs of the defendant and that it should be decreed in case he failed to do so. Before the date on which the oath lad to be taken the defendant filed an application urging that he may be allowed to resile from the agreement to take the oath in the presence of the villagers on the ground that the plaintiff was making elaborate arrangements to humiliate him by inviting his followers to be present at the time the oath is to be taken. The learned Munsiff dismissed the application and as the defendant has failed to take the oath, decreed the suit as prayed for.

2. It will be noticed that so far as the Oaths Act is concerned, it empowers the Court to issue a commission to administer the oath and it also states that the evidence so given shall as against the person who offered to be bound by it be conclusive proof of the matter. There is no provision, however, as to what has to be done if the party who agrees to take the oath does not do so. If there is an agreement that the suit should be decreed or dismissed on a particular person taking an oath or on his refusing to do so nothing comes in the way of the Court disposing of the case in accordance with the terms of the agreement. Before considering, however, the exact terms of the agreement to which the defendant is a party it may be necessary to consider to what extent the Court has discretion in allowing the party to retract from the agreement to be bound by the oath. It is unnecessary to consider this aspect of the matter in detail as I fully agree with respect with the following conclusion arrived at in the case reported in - 4 Mys LJ 217 (A) after elaborately considering the case law on the point. "From the above brief resume of the cases bearing on the point, it appears to be clear that if before the oath is actually administered, a party who offered to be bound by it had valid and sufficient grounds to withdraw, the court had the power to go into the validity or reasonableness of the grounds urged and if it was satisfied that the party had justifiable grounds to resile, the court may permit him to do so, and this power can be exercised even after the offer had been accepted by the opposite party. If, however, the oath is made, either without objection, or after the objection is heard and rejected as frivolous or futile, the party who made the proposal is bound by it, and cannot afterwards retract. Where the objection is lodged before the date fixed for the oath being taken, but was not heard and decided before the oath was actually administered, the Court, it would seem according to - Anjanappa v. Moothe Gowda, (17 Mys LR 18) (B) had the power to permit the party who made the offer to retract provided he had reasonable grounds for doing so".

3. It may be stated that in tins case oath has not been taken and the Court had ample power to allow the party to resile from the agreement. The defendant it looks as though, agreed to take the oath in the heat of the moment and thereafter considering the effect of taking an oath in a temple in the presence of the villagers and realising the embarrassment to which he might be put to, appears to have filed an application for permission to withdraw from the agreement. I am inclined to think that parties in cases of this kind, should generally be allowed to withdraw from the agreement to take an oath in a temple if it is made soon after the agreement and the application is considered to be a bona fide one, as I think it is in this case, and it is particularly so when the opposite party is not prejudiced in any way as in cases where the oath has been administered and subsequently the opposite party wants to resile from the agreement.

4. Another point for consideration is what the agreement in this case is and whether the suit could be decreed if it is enforced. The plaintiffs counsel no doubt suggested that in case the defendant takes an oath, the suit might be dismissed with costs and that in case the plaintiff takes an oath the suit should be decreed as prayed for. The defendant did not agree that the suit should be decreed as prayed for in the case the plaintiff takes an oath. He did not agree that in case he failed to take an oath the suit should be decreed. The result is though it was open to the learned Munsiff to have dismissed the suit in case the defendant took the oath, as that was the effect of the agreement, the learned Munsiff was wrong in decreeing the suit as prayed for on the defendant failing to do so, on the basis that there was such an agreement when there was no such agreement. There was no evidence on record justifying a decree as prayed for. The orders of the Courts below have proceeded on the wrong presumption that the suit should be decreed as prayed for in case the defendant failed to take the oath.

5. In the circumstances, the appeal is allowed and the judgment and decree of the lower Courts are set aside. The learned Munsiff will post the case for evidence on merits and dispose of the case according to law. Parties will bear their own costs throughout in respect of these proceedings. The court-fee paid on this appeal memo is ordered to toe refunded. Case remanded. AIR 1953 MYSORE 56 (Vol. 40, C.N. 29) "Mohamed Ali v. Govinde Gowda" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) K. Mohamed Ali, Plaintiff - Petitioner v. Govinde Gowda, - Defendant - Respondent. Civil Revn. Petn. No.35 of 1951-52, D/- 21 -9 -1951. (A) Mysore Agriculturists Relief Act (18 of 1928) - DEBT RELIEF - Debt Laws - Money. The word money includes also livestock and cart used for agricultural purposes. (Para 3) (B) Mysore Agriculturists Relief Act (18 of 1928) - DEBT RELIEF - Debt Laws - Lending. Where, according to the plaint, some livestock including four bullocks and a cart belonging to the defendant and sold by him to the plaintiff, were left with the defendant for use in his lands as the defendant was a tenant of the same: Held that this was a case of lending and the defendant could therefore plead in the suit for recovery of the same that he was an agriculturist under the Act. (Paras 2, 4) N.S. Narayana Rao, for Petitioner; H. Lakshmanaswamy, for Respondent. Judgement This is a revision petition against the order of the Munsiff, Chickmagalur, in O.S.138 of 50-51 holding that the defendant-respondent can plead that he is an agriculturist under the Agriculturists Relief Act.

2. The suit filed is for the recovery of some livestock including four bullocks and a cart or the value of the same. According to the facts of the case as set out in the plaint they belonged to the defendant and, they were sold by him to the plaintiff. They were, however, left with the defendant for use in his lands as the defendant was a tenant of the same. It is contended that this is not a suit in which the defendant can claim to be an agriculturist under the Agriculturists Relief Act, as this is not a suit for money at all and secondly as under any circumstances it is not a suit for recovery of what is lent or advanced to the defendant.

3. As regards the first point, according to the definition of money as given in the Agriculturists Relief Act, Money shall he deemed to include agricultural produce, implements and stocks". According to Practical Standard Dictionary stock means "Various domestic animals raised or used, as on a farm or ranch, specifically called LIVESTOCK". It is therefore clear that the word money as defined in the Agriculturists Relief Act includes also livestock and cart used for agricultural purposes.

4. The next point for consideration is whether it could be said that the articles were lent or advanced to the defendant. The tenor of the plaint and the reply statement make it clear that the articles were left with the defendant as he is a tenant of the plaintiffs lands for being made use of for the purpose of agricultural operation in those lands. But for the leaving of the bullocks and cart with the defendant, he had to make use of his own bullocks and cart for cultivating the lands of the plaintiff. According to the allegations in the plaint this is a case of the plaintiff having lent the bullocks and cart to the defendant and the defendant can, therefore plead in this suit that he is an agriculturist under the Act.

5. The revision petition stands, therefore, dismissed. Revision dismissed. AIR 1953 MYSORE 57 (Vol. 40, C.N. 30) "Devaraju Naidu v. Prabiruviah" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) C. G. Devaraju Naidu and another, Petitioners v. T. M. Prabiruviah and others, Respondents. Civil Revn. Petn. No.357 of 1956-51, D/- 31 -7 -1952. (A) Civil P.C. (5 of 1908), O.33, R.1 and O.22, R.3 - FORMA PAUPERISM - LEGAL REPRESENTATIVES - Right of legal representative to continue suit in forma pauperis. The provisions of O.33 cannot be treated as completely exhaustive of all the situations which may arise in respect of an application to sue as a pauper. (Para 5) Where during the pendency of an application for lease to sue in forma pauperis the applicant dies, his legal representative is entitled to be brought on record in place of the deceased plaintiff in the plaint for the purpose of continuing: the suit, provided he files a separate application under O.33, R.1, and is able to satisfy the court that he himself is a pauper and that the right to sue survives in him: AIR 1946 Nag 320, Foll. Observation to the contrary in 21 Mys LJ 201 held obiter. Case law discussed. (Paras 5, 6) Anno : C.P.C., O.33 R.1 N.11. (B) Civil P.C. (5 of 1908), Pre. - PREAMBLE - Code how far exhaustive. The Code of Civil Procedure not being exhaustive should be constructed liberally and as far as possible merely technical objections should not be allowed to defeat substantial justice. (Para 5) Anno : C.P.C., Pre. N.4. Cases Referred : Chronological Paras (78-80) 2 All 241 : (6 Ind App 126 PC) 5 (95) 17 All 29 : (1894 All WN 190) 5 (84) 8 Bom 615 5 (76-77) 2 Cal 130 5 (93) 20 Cal 319 5 (06) 33 Cal 1163 : (4 Cal LJ 234) 4 (06) 33 Cal 927 : (3 Cal LJ 67) 5 (07) 34 Cal 860 : (11 Cal WN 856) 5 (33) 60 Cal 827 : (AIR 1934 Cal 25) 5 (28) 51 Mad 697 : AIR 1928 Mad 278 3, 4, 5 (34) AIR 1934 Mad 467 : (58 Mad 169) 5 (47) AIR 1947 Mad 405 : (ILR (1947) Mad 820) 5 (43) 21 Mvs LJ 201 3 (33) AIR 1933 Nag 234 : (147 Ind Cas 255) 4 (46) AIR 1946 Nag 320 : (ILR (1946) Nag 663) 3, 4 (36) AIR 1936 Pat 591 : (15 Pat 738) 4 (1878) 4 AC 504 : (48 LJCP 705) 5 M.K. Srinivasa Iyengar, for Petitioners; M. Ramchandra Rao, for Respondent No.3. Judgement VASUDEVAMURTHY, J. :- This revision petition has been referred to a Bench. It involves a question of law of some importance on which there has been no decided case of this Court so far.

2. One Guruswami Naidu, father of the petitioner who claims to be his only son and legal representative, filed an application under O.33, R.1, Civil P.C., seeking permission to sue in forma pauperis, for partition and possession of a half share in some immoveable properties. The application was accompanied by an unstamped plaint purporting to be under O.7 R.1, Civil P.C. Notices were ordered on his application but before his pauperism was enquired into, and his application registered as a suit Guruswami Naidu died. The petitioner filed two applications I.A. No.1 under O.22, R.4, Civil P.C., to fee brought on record as the legal representative of the deceased plaintiff and allowed to continue the proceedings initiated by his father; and I.A. No.2 under O.33, R.1, Civil P.C. praying for permission to sue and continue his fathers suit in forma pauperis as he himself was unable to pay the necessary court-fee on the plaint.

3. The District Judge of Shimoga dismissed those two applications. He was of the view that the right to sue in forma pauperis was a right personal to the deceased and that the petitioner could not be allowed to continue those proceedings. His remedy was either to pay court-fee on the plaint already filed when the same could be registered as a suit, or make a fresh application of his own observing the necessary formalities for permission to sue in forma pauperis. In support of this order he has relied on a decision of this Court in - Arifulla v. Unji Abdul Wahab, 21 Mys LJ 201 and refused to follow a case in - Annapurnabai v. Balaji Maroti, AIR 1946 Nag 320 as he considers that the same was opposed to the law laid down in 21 Mys LJ 201. There is no doubt that in 21 Mys LJ 201 at p.205 Singaravelu Mudaliar, J., sitting as a single Judge in revision has observed: "The only way in which the petitioners can safeguard their rights is by their being allowed to pay the Court fees". But when we come to examine that case closely we find that the observation was really not necessary for the purpose of deciding it. In that case one A filed an application under O.33, R.1 for permission to sue in forma paupers and died during the pendency of that application. An application by his legal representatives to be brought on record as such in that application itself was held to be not maintainable as the right to file an application under O.33, R.1 was a personal right and did not survive to the legal representatives. But the legal representatives had offered to pay the court-fees in the lower Court and asked for time to do so. This request had been refused and the offer was renewed in this Court. In those circumstances Singaravelu Mudaliar, J., held that the legal representative may be allowed to be brought on record on payment of the court-fees or that they may file a separate application for leave to sue in forma paupers if the right to sue had survived to them. In this connection Singaravelu Mudaliar, J., observed that the only way in which the petitioner could safeguard their rights was by their being allowed to pay court-fees in order to take advantage of the provisions of S.149, Civil P.C., a course suggested in - K. Subbiah v. Bala Tripura Sundara, 51 Mad 697. The question whether a legal representative could not file an independent application under O.33, R.1 in his own personal and individual right and based on his own personal inability to pay court-fees while praying separately to be brought on record as legal representative in the plaint filed lay the original petitioner so that he may continue these proceedings did not arise in that case for decision as the legal representatives were able, ready and willing to pay the court-fees.

4. In - K. Subbiah v. Bala Tripura Sundara, 51 Mad 697, the petitioner died pending disposal of his petition for leave to sue in forma pauperis. His legal representative was held not entitled to continue the further prosecution of the petition. Sreenivasa Ayyangar, J., observed that he did not see anything in the legal representatives petition itself to the effect that she was either prepared to continue the proceedings by paying toe necessary court-fee or anything to show that she herself was a pauper. He has referred to - Mohan Mandal v. Satish Chandra, 33 Cal 1163 as a direct authority in the matter. In 33 Cal 1163 the application was by the legal representative for being substituted in the place of .his deceased father and for proceeding with the application for leave to sue as a pauper. That application was made apparently over 15 years after the death of the original petitioner. Their Lordships pointed out that there was no suit pending in Court but only an application for leave to sue in forma pauperis. The right to obtain such permission being only a personal right, the applicant could not ask for permission to sue as a pauper as legal representative of the deceased petitioner and to be substituted in his place. It was observed that it was open to the legal representative, if the right to sue survives in him, to present a fresh application if he is himself a pauper for permission to sue as such or to institute a suit for the same relief which the deceased had sought. In - Bhoorilal v. Kanhaiyalar, AIR 1933 Nag 234, 33 Cal 1163 and AIR 1928 Mad 278 : 51 Mad 697 were relied on for the conclusion that the right to sue as a pauper is a personal one sad dies with the person and does not survive to the legal representative. The legal representative, however, could be substituted for the deceased plaintiff in the ordinary course and then after substitution, the question whether the representative can himself sue as a pauper, which is a personal one to the representative, must be considered afresh. If the right to sue survives, the legal representative will have to continue the suit either as a pauper on a fresh application alleging and proving that he is a pauper or on payment of court-fee. In - Annapurnabai y. Balaji Maroti, AIR 1946 Nag 320 this last case has been followed. The substitution of legal representative, it was pointed out, in such case, is to the position of the deceased party as a plaintiff and not as a person applying for permission to sue as a pauper. He is being brought on record not as one suing for exemption from payment of court-fees but as one who is entitled to relief in respect of the original claim as a legal representative of the deceased. If he is unable to pay court-fee, he will have to apply to the Court for permission to sue as a pauper. In - Mt. Marim Bibi v. Suraj Mai, AIR 1936 Pat 591, 51 Mad 697 was referred to with approval as laying down that it was open to a legal representative to continue the proceedings as a suit by substitution on payment of court-fees or else by filing a fresh application for leave to sue as a pauper. The tower Court had in that case not allowed sufficient time to the applicant for substitution of the hefts of the deceased plaintiff and the High Court granted such tune.

5. If such substitution is not allowed and time granted for payment of court-fee or for making a fresh application by the legal representative to be permitted to sue or continue the suit in forma pauperis, the consequences to the legal representative would be obviously very serious as his claim may be barred by tame. For the respondent, it is contended that there is no provision to Order 33, for any such course. But it may be pointed out that the Code of Civil procedure is not exhaustive, and procedure is nere machinery and its object is to facilitate and not to obstruct the administration of justice; see - Kendali f. Hamilton, (1878) 4 AC 504 (525). The Code should therefore be construed liberally and as far as possible merely technical objections should not be allowed to defeat substantial justice; see Mullahs Code of Civil Procedure, 11th Edition, page 2, - Hukumchand v. Kamalanand Singh, 33 Cal 927 (940), - Durga Dihal Das v. Anoraji, 17 All 29 and - Jogendra v. Wazidunnissa Khatun, 34 Cal 860, The provisions of Order 33 cannot be treated as completely exhaustive of all the situations which may arise in respect of an application to sue as a pauper. In - Hafiz Mahammad Fateh Nasib v. Aminuddin, 60 Cal 827 a suit was instituted by the plaintiff in the ordinary manner by payment of court-fee on the valuation put on the plaint by him. He was later on directed to pay some extra. Court-fee and was unable to do so. He then made an application to continue his suit in forma pauperis. The Subordinate Judge refused to entertain such an application. It was held by the Calcutta High Court, following -Nirmul Chandra v. Doyal Nath, 2 Cal 130, - Thomson v. Calcutta Tramway Co., 20 Cal 319 and -Ravji Patil v. Sakharam, 8 Bom 615, that a Court has the power to allow a plaintiff to continue a suit is the ordinary way in forma pauoeries. In 2 Cal 130 the power to allow a case to continued as a pauper suit was held to be included in the power given to the Court to allow a suit to be instituted in forma pauperis. If it is permissible to do so it is difficult to see why in a case like the present if the petitioner is, as a matter of fact, a pauper unable to pay the necessary court-fee he should be refused relief if he makes an independent application of his own under O.33, R.1 for permission to continue his fathers suit in forma pauperis. The view that court-fee could be paid by the legal representative on the application which had been filed in forma pauperis involves a recognition that there is a plaint on which such" court-fee could be paid in addition to an application personal to the original petitioner which has terminated by his death see - Brahamaramba v. Seetharamayya, AIR 1947 Mad 405, where relying on - K. Subbiah v. Bala Tripura Sundara, AIR 1928 Mad 278; - Duraipandiyan v. Solaimalai Pillai, AIR 1934 Mad 467 and -Stuart Skinner v. William Orde, 2 All 241 (PC), Leach, C.J., and Lakshmana Rao, J., construe an application to sue in forma pauperis as a composite document - a plaint coupled with a prayer to sue-without payment of Court-fees - to hold that a legal representative of a deceased applicant can be allowed to continue the suit after paying fee necessary court-fees. In that case the legal representative was able to pay the court-fees. There would, therefore, be nothing wrong in principle in allowing a legal representative, provided he is able to satisfy the Court that he is himself a pauper and unable to pay the Court-fee, to continue the earlier suit in forma paupeis, nor has it been shown that it is opposed to any express provision of law.

6. In the result we allow this revision petition, set aside the order of the Court below and direct the District Judge to dispose of I.A. Nos.1 and 2 in the light of the observations we have made above. The parties will bear their own costs of this revision petition. Revision allowed AIR 1953 MYSORE 59 (Vol. 40, C.N. 31) "B. W. C. and S. mills v. L. A. Tribunal" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) Bangalore Woollen Cotton and Silk Mills Co. Ltd. Petitioner v. The Labour Appellate Tribunal of India and another, Respondents. Civil Petns. Nos.4 and 21 of 1952-53, D/- 5 -9 -1952. (A) Constitution of India, Art.226 - WRITS - Certiorari. Where the Labour Appellate Tribunal, whose office is located in the Fort area at Bombay, has passed an order in appeal against an order of the Industrial Tribunal, Bangalore, the High Court of Mysore can issue a writ of certiorari against the Labour Appellate Tribunal for quashing its order. (Para 2) Anno : C.P.C., Appendix III; Constitution of India, Art.226, N.13. (B) Constitution of India, Art.226 - WRITS - INDUSTRIAL DISPUTE - APPELLATE TRIBUNAL - Certiorari. Industrial Disputes (Appellate Tribunal) Act (48 of 1950), S.18. An application for the issue of a writ of certiorari against the Labour Appellate Tribunal made within 30 days prescribed by S.18 of the Industrial Disputes (Appellate Tribunal) Act is not premature. (Para 5) Anno : C.P.C., Appendix III; Constitution of India, Art 226, N.13. (C) Industrial Disputes Act (14 of 1947), S.33 - INDUSTRIAL DISPUTE - WRITS - Conditional permission to discharge workmen. Constitution of India, Art.226. Where in granting permission to discharge workmen under S.33, the Board or Tribunal passes an order imposing a condition for payment of retrenchment bonus, it cannot be said that it acts without jurisdiction. (Para 6) Moreover, if the order imposing the condition is only a part of the order which cannot be separated from the rest of the order, the High Court cannot issue a writ of certiorari to quash such part of the order. (Para 10) Anno : C.P.C., Appendix III; Constitution of India, Art.226, N.13. Cases Referred : Chronological Paras (A) (43) AIR 1943 PC 164 : 70 Ind App 129 (PC) (B) (52) AIR 1952 Bom 449 : 54 Bom LR 552 (C) (50) AIR 1950 SC 188 : 5 Dom LR (SC) 114 (D) (49) AIR 1949 FC 111 : 1949 FCR 321 (E) (50) AIR 1950 Bom 174 : ILR (1950) Bom 578 E.S. Venkataramanan and O.T.G. Nambiar, for Petitoner in No.4/1952-53, and Respondent 2 in No.21/1952-53; G.V. Ramachar, for Respondent No.2 in No.4/1952-53 and for Petitioner in No.21/1952-53. Judgement VASUDEVAMURTHY, J. :- C.P. No.4/52-53 is an application by the Bangalore Woollen, Cotton and Silk Mills Co., Ltd., Bangalore under Art.226, Constitution of India, praying for the issue of a writ of certiorari quashing the order of Respondent 1 dated 14-3-52 only in so far as it imposes -certain conditions on the petitioners while granting permission to discharge some workmen who were employed in the petitioners Mills. Respondent 1 is the Labour Appellate Tribunal of India constituted under the Indian Appellate Tribunal Act, 1950 and is described as having its office at Fort, Bombay and Respondent 2 is the Binny Mills Labour Association with its office in Bangalore City. The application is accompanied by an affidavit wherein the circumstances under which the present application has come to be made are set out. In May 1950, the Government of Mysore referred to the Industrial Tribunal, Bangalore under S.10(1) of the Industrial Disputes Act (Act XIV of 1947) for adjudication, several disputes which were pending between the management of the Petitioners-Mills and Respondent 2 as regards the workmens demands. During the pendency of those proceedings, the Petitioners felt the necessity to retrench 179 workmen who were engaged in their Woollen Department, and under S.33, Industrial Disputes Art they made an application to the Tribunal for permission to do so. That Tribunal after hearing the parties passed an order refusing to allow the Petitioners to pay off these workmen. The Mills then preferred an appeal before the Labour Appellate Tribunal of India who, sitting at Bangalore, heard the parties and passed a considered order on 14-3-1952. By that order they gave permission to the Petitioners to retrench the 179 workmen but made it subject to the condition that they should be paid by way of "retrenchment relief" a sum equivalent to one months basic wage, for every year of completed service in the Company; and they went on to define how that basic wage was to be calculated. They also directed that those workmen should be deemed to have been in service and entitled to the usual emoluments till the date of their order. The Petitioners feel aggrieved on account of the first of the conditions attached to the order and have prayed that the same may be quashed. The Labour Association has filed a similar application (C.P. No.21/52-53) praying for the quashing of the entire order permitting retrenchment.

2. We have heard Mr. O.T.G. Nambiar, learned Counsel for the Petitioners, and Mr. G.V. Ramachar, learned Counsel for Respondent 2. Mr. Ramachar has raised a prelimniary objection to the hearing of this application. He contends that the office of Respondent 1 is located in the Fart area at Bombay and that any writ which is to be effective against them can only be issued by a High Court having territorial jurisdiction over that Tribunal. In that view he urges that this application should have been made in the High Court of Bombay. It appears to us that there is no force in this contention. In - Ryots of Garabandho v. Zemindar of Parlakimedi, AIR 1943 PC 164 (A), a similar question came up for consideration before-their Lordships of the Privy Council. In that case the Madras High Court had issued a writ at the instance of some ryots against the Board of Revenue whose office was situate within the town of Madras quashing an order which had been passed by the Board in connection with a settlement of (rents) dispute between the ryots and the zamindar of Parlakimedi which was in Ganjam District. Though, on appeal to the Privy Council, their Lordships of the Privy Council found that the jurisdiction of the Madras High Court to issue writs was confined to the local limits of the ordinary original Civil jurisdiction of that High Court, they held that in spite of the circumstance that the Board of Revenue had its office in Madras town, the Madras High Court could not issue a writ as the zamindari lands in respect of which the Board of Revenue had passed such an order was situated beyond the local limits of its original jurisdiction. Their Lordships pointed out that the question of jurisdiction must be regarded as one of substance and not merely one of form; although the Board of Revenue was situated within the Presidency town of Madras and had issued their order in that town the parties as well as estate concerned in the dispute were not within the original civil jurisdiction of the Madras High Court; the mere location of the Revenue Tribunal within the town of Madras according to their Lordships afforded no ground to claim jurisdiction for the Madras High Court to issue a writ in a matter of the kind concerned in that case.

3. The Bombay High Court had recently to consider a similar though converse question in - The Madras Electric Tramway Ltd. v. M.K. Kanganathan, reported in AIR 1952 Bom 449 (B). In that case, the Labour Tribunal had passed an order refusing to reinstate certain dismissed employees of the Company. Against that order, an application for a writ of certiorari was made by the concerned workmen and Shah, J. took the view that the order of the Labour Appellate Tribunal was without jurisdiction and quashed the order. On appeal Chagla, C.J., and Gajendragadkar, J., upheld the objection on behalf of the Company that the Bombay High Court had no jurisdiction to issue a writ in that matter; the fact that the Labour Appellate Tribunal had its office in Bornbay they said would not afford any ground for such jurisdiction; it was an All India Tribunal acting as an appellate authority from the decisions of various Labour Tribunals all over the country and it also sits at other places in India; both the Company and the workmen were not within the jurisdiction of the Bombay High Court and the subject-matter of the dispute between the parties was not also within its jurisdiction. The Bombay High Court could not, therefore, issue a writ though the Madras High Court may be able to quash the order and make a decision binding upon the parties who would be before the Court as being within its jurisdiction. Reliance was placed in this connection on - AIR 1943 PC 164 (A).

4. In the connected civil petition (C.P. 21/52-53) the Binny Mills Labour Association has made an application to this Court for a writ. Though that by itself may not be a very relevant consideration we think that even on grounds of convenience to the parties the High Court within whose jurisdiction the dispute has arisen and the parties reside or carry on business would be a more appropriate forum in a matter like the present.

5. Mr. Ramachar has raised another preliminary objection to the hearing of this petition. He contends that under S.18, Industrial Disputes (Appellate Tribunal) Act, the award of a Tribunal shall become enforceable only on the expiry of 30 days from the date of publication or decision and that this application which has been filed a few days before, the expiry of that period is premature. Mr. Nambiar for the Petitioners has urged that the period of 36 days provided by that section is analogous to the time which may be granted for carrying out the terms of a decree or order of a Civil Court and in such a case it can certainly be not suggested that the period of limitation for filing an appeal or taking some other proceeding to challenge that decree would be kept in abeyance. In our opinion, the provision as to 30 days in that section can only mean that the award cannot be enforced and, no penalty or punishment can be incurred or inflicted if the directions contained in the award are not carried out within that period. There is, therefore, no substance in this preliminary objection raised for the 2nd Respondent either.

6. On behalf of the Petitioners, Mr. Nambiar has contended that under s.33 of act xiv of 1947 the Board or Tribunal could either grant or refuse permission in the matter of discharge of the concerned workmen and could not impose conditions such as they have done in this case for payment of retrenchment bonus. We think that such an interpretation of S.33 would be putting rather too narrow a view on the powers of the Tribunal in arbitration proceedings under the Act. Those powers ere much wider than those of arbitrators in an ordinary arbitration proceeding between individuals who may bring a dispute before them arising out of ordinary contractual or other obligations. As pointed out by Fazl Ali, J. in - Bharat Bank Ltd., Delhi v. Employees of the Bharat Back Ltd., Delhi, AIR 1950 SC 188 at p.190 (C) an Industrial Tribunal may have to override contracts and create eights which are opposed to contractual rights. In Western India Automobile Association v. Industrial Tribunal, Bombay, AIR 1949 FC 111 at p.120 (D) the following passage from Ludwick Tellers book at p.137 has been quoted with approval : "Industrial arbitration may involve the extension of an existing agreement or the making of a new one or in general the creation of a new obligation or modification of old ones while commercial arbitration generally concerns itself with the interpretation of existing obligations and disputes relating to existing agreement." Labour legislation has been designed not merely to define the rights and liabilities of the employer and the employee and their enforcement as against each other but to provide suit able and special machinery by which disputes between the employer and the employee may be settled reasonably with a view to maintain peaceful relations between them and to avoid as much conflict as possible. If in order to bring about such a result the Industrial Tribunal passed an order granting retrenchment bonus to the employees we do not think it can be said that they acted without jurisdiction. Even the wording of S.33 would not justify the placing of such a narrow construction on that section. It requires the permission of the Tribunal not merely for discharging or dismissing the employees but also for imposing other punishments on any workman except for misconduct not connected with the dispute. It would be difficult to contend that if an employer proposes to fine a workman heavily or to suspend him without pay or to reduce his salary the Board cannot direct the employer to levy a lesser fine or make a smaller reduction in the salary or in the period of suspension by way of punishment when dealing with an application under S.33.

7. Mr. Nambiar has next contended that the liability of an employer with regard to any payment which he may be called upon to make to his employee must be determined only by reference to the standing orders. He urges that the only liability which an arbitrator to whom a dispute has been referred has jurisdiction to determine is the liability flowing from and arising out of the standing orders which have been settled between the Mills and its worisien and that he has no jurisdiction to override the standing orders. For this position he has relied on - Digamber Ramchandra v. Khandesh Spinning and Weaving Mills Co. Ltd., AIR 1950 Bom 174 (E) decided by Chagla, C.J., and Bhagwati, J., which fully supports him. In that case they have also pointed out that any order passed by an Industrial Court which is without jurisdiction or which is in excess of jurisdiction conferred upon by it by statute can always be questioned in a Civil Court. "An act like the one with which we are concerned" they observe "sets up a Court of limited jurisdiction and such Court must be confined to the functions and powers which are conferred upon them by the statute which creates the Courts."

8. As against this Mr. G.V. Ramachar has relied on a case decided by the Madras High Court in (1952) Mad LJ 655 (sic) where Rajamannar, C.J., and Somasundaram, J., have held that it cannot be said that a direction to pay gratuity to a workman who is being discharged is beyond the jurisdiction of the Industrial Tribunal. They point out that it is true that neither under the common law nor any express provision under the contract between the parties is there liability on the part of the management to pay such gratuity on retirement or compulsory discharge. But they observe that it is too late in the day to contend that the Industrial Tribunal cannot go into the question of such payments which may not strictly speaking come within the ambit of the contract. It is, however, unnecessary for us to deal further with this question in the present case to the view we have taken that the petitioners cannot ask this Court to cancel what is only a part of the order of the Tribunal which, in our opinion, cannot be separated from the rest of the order.

9. By the order in question the Appellate Tribunal while giving permission to the Mills to retrench the workmen made it expressly subject to the condition that in view of the circumstances disclosed in the course of the proceedings the workmen sought to be retrenched, other than temporary workmen, shall be paid by way of retrenchment relief a sum equivalent to one months basic wage for every year of completed service in the Mills. The Tribunal observed: "We are satisfied on the facts before us that owing to circumstances beyond their control the Management is obliged to reduce its staff by means of the proposed retrenchment, and the necessity for retrenchment has been proved. Retrenchment is always regrettable but unfortunately it becomes inevitable at times. The workmen have put in long and loyal years of service in the Company, which has had the benefit of it and the employees must therefore be shielded from the worse rigours of retrenchment." If the Mills were not willing to pay such retrenchment relief it was open to them not to pay off these workmen. Mr. Nambiar has, however, suggested that the permission to retrench may be permitted to be availed of by the Mills while the relief by way of payment of retrenchment relief must be left to be sought by the workmen by initiating other arbitration proceedings of their own and that it could only be granted if the standing orders permitted it. And, in the present case, it is urged that the standing orders make no provision for the grant of any such relief. We do not think that that would be a very reasonable construction to place either on the powers of the Tribunal or the only reasonable way of resolving the differences between the employers and the workmen. The employers took the extreme position that they were entitled to pay off these workmen and should be permitted to do so unconditionally while the workmen denied altogether the existence of any circumstances which would justify such retrenchment of persons who were in the service of the employers for longer or shorter periods on a permanent basis. There appears to be no objection in principle why in the interests of peaceful relations between the employers and the employees of these Mills the Tribunal who were required to decide such a question involving real and unavoidable hardship on both sides granted as a kind of via media such retrenchment relief. It is also difficult to see how it would be beyond the jurisdiction of the Tribunal to give such a conditional permission. The reduction permanently in the strength of the number of workmen employed by the Company may even amount to seeking of a change in the standing orders as contemplated by S.10 read with the first schedule to the Mysore Labour Act and if instead of splitting the proceedings on the application made by the employers in the way suggested, if the Tribunal considered on this employers application alone the relative claims of the employers and the workmen and passed a conditional order it is difficult to see how the same is beyond the powers of the Tribunal.

10. Mr. Nambiar has made it quite clear to us that the petitioners do not want the whole order to be cancelled. Indeed that is the relief which has been asked by the workmen in the connected civil petition. In these circumstances we think that the present is not a case in which we could issue a writ as prayed for quashing part of a conditional order. By this we should not, however, be understood as saying that the order is otherwise liable to be quashed. We have not at all gone into the merits of the applications nor were the same argued before us.

11. In the result C.P. No.4/52-53 is dismissed.

12. C.P. No.21/52-53 is an application by the workmen for the quashing of the same order in its entirety. Mr. Ramachar, learned Counsel for the petitioners in this application, intimated that they would not be pressing their application if the relief asked for by the employers in C. P. No.4/52-53 was not granted by this Court. C.P. No.21/52-53 is, therefore, dismissed.

13. As both the petitions have been dismissed, we think in the circumstances of the case the parties should be directed to bear their own costs in these petitions and we order accordingly. Petitions dismissed. AIR 1953 MYSORE 62 (Vol. 40, C.N. 32) "Gurumurthappa v. M. Chickmunisamappa" MYSORE HIGH COURT Coram : 2 MALLAPPA AND VASUDEVAMURTHY, JJ. ( Division Bench ) M. Gurumurthappa Decree-holder-Appellant; v. M. Chickmunisamappa, Judgment-debtor-Respondent. Misc. Appeal No.36 of 1949-1950, D/- 7 -3 -1952. (A) Transfer of Property Act (4 of 1882), S.109 - LEASE - Notice. Notice by original landlord to tenant after he parts with his rights and sells property to another - Notice cannot have any legal effect or bind latter in any way. (Para 7) Anno : T.P. Act S.109 N. 2 (B) Evidence Act (1 of 1872), S.115 - ESTOPPEL - Estoppel by conduct and pleadings. In a civil suit brought by A against B the latter objected to the jurisdiction of the civil Court and pleaded that the House Rent Controller had such jurisdiction. A accepted that position and applied to the Rent Controller. Held that it did not lie in Bs mouth now to turn round and say that the House Rent Controller had no such jurisdiction and that A should have again sought relief in the civil Court. B was clearly estopped by his own pleadings and conduct from so doing. Case law discussed. (Paras 9 and 10) Anno : Evidence Act S.115 N. 3 C, 24 (C) Civil P.C. (5 of 1908), S.38 - DECREE - Power to go behind decree. As the order of the House Rent Controller is in the nature of a decree it is not open to the tenant in execution of the decree to raise the contention that the order passed by the Controller is invalid. AIR 1949 Mad 784, Ref. (Para 11) Anno : C.P.C. S.38 N.8 Cases Referred : Chronological Paras (A) (47) 53 Mys HCR 298 (B) (45) 51 Mys HCR 277 (C) (1828) 130 ER 863: 4 Bing 509 (D) (44 ) ATR 1944 Mad 62 : 215 Ind Cas 130 (E) (16) AIR 1916 Mad 745(2) : 38 Mad 36 (F) (29) AIR 1929 Nag 79 : 117 Ind Cas 285 (G) (29) AIR 1929 Bom 1 : 53 Bom 75 (H) (30) AIR 1930 All 15 : 120 Ind Cas 125

(I) (47) 52 Mys HCR 455 : 28 Mys LJ 36 (J) (49) AIR 1949 Mad 784 : 1949-1 Mad LJ 417 H.K. Sreenivasa Murthy, for Appellant; S.K. Venkataranga Iyengar, for Respondent. Judgement VASUDEVAMURTHY, J. :- This Miscellaneous Appeal is aeainst an order of remand made by the Subordinate Judge of Bangalore in S.A.129 of 48-49 by which he set aside the order of the Krst Munsiff of Banealore dismissing an application I.A.II in Ex. Case No.195 of 48-49. The facts relating to this application are as follows:

2. The appellant, the landord, applied to the House Rent Controller, Bangalore and obtained an order of eviction against the respondeat, the tenant, in H.R.C. Case No.820 of 45-16 on 22-11-46. That order was finally affirmed by the Government by an order dated 20-10-47. Thereafter the appellant applied for the execution of that order and in Ex. Case 195 of 48-49 on the file of the First Munsiff of Bangalore, he was duly put in possession of the premises concerned in this case on 31-10-1948. The respondent then filed his present application I.A.II on 8-11-48 under Ss.47 and 151, C.P.C. for restitution or redelivery back to him of the premises on the ground that the orders passed toy the H.R.C. and Government were passed without their having any jurisdiction so to do. According to him the original lease in his favour was only at a vacant piece of land on which he had himself put up a structure in accordance with the terms of an agreement which provided for the site as well as the superstructure being delivered back to the landlord after the termination of the lease only on certain terms; that the House Rent Controller could only deal with cases of houses which were let and not such cases of vacant sites which really had to go before the ordinary Civil Courts in the usual way. Moreover, no sufficient or proper notice to quit in accordance with the provisions of S.111(h), Transfer of Property Act had been given by the landlord. As the tenancy had not therefore been properly terminated the House Rent Controller had no jurisdiction to order eviction. The landlord opposed his application as not maintainable. The executing Court could not have questioned the legality of the order which had been passed by the House Rent Controller and having allowed execution to proceed and the property having been delivered to the landlord in accordance with that order there was nothing more for the executing Court to do and there was no power in such cases to order restitution. There was also no lack of jurisdiction on the part of the House Rent Controller or the Government on the grounds pleaded by the Respondent.

3. The learned Munsiff dismissed I.A. II. He held that a proper notice to quit had not been given and that the properties when they were let were a vacant site to which the provisions of the House Rent Control Order had no application. But be held that he could not however order restitution relying on a case reported in - Abdul Aziz Khan v. Nanjundappa, 53 Mys HCR 298 (A). On appeal the learned Subordinate Judge disagreed with the Munsiff as regards fee last point. He was of the opinion that the Court had jurisdiction to direct restitution in proper cases in view of some recent changes in the House Rent Control Order which made applicable the provisions of the C.P.C. to proceedings under that order. But as the Munsiff had not recorded any evidence before coming to conclusions as regards the nature of the property leased and its incidents and about the failure to give notice terminating the lease, fee remanded the case to the Munsiff to take evidence and dispose of the application in accordance with law.

4. It is contended here by the learned Counsel for the appellant, Sri. V. Krishnamurthy, that the order of remand is wrong. He urges that even the admitted proceedings, pleadings and documents which was before the Courts below clearly establish that a proper notice to quit had been given to the Respondent; and that the respondent is estopped hi the circumstances of tins case from questioning the jurisdiction of the House Rent Controller to pass an order of eviction.

5. To appreciate the appellants contentions it is necessary to refer briefly to certain earlier proceedings in Court connected with this property. It is not disputed that the premises in question belonged to one Sampannappa and that the respondent was his tenant. Sampannappa filed a suit on 18-1-1943 against the respondent and 3 others in S.C. No.1009 of 1942-43 for possession of the premises and for two months rent which was in arrears. He expressly stated in the plaint that the defendants had taken the property on lease from his adoptive father under a lease deed dated 29-8-1929, that they were continuing in possession as tenants from month to month after the period of that lease had expired, and that though he had given them a notice to quit and deliver possession by 29-11-1942 they had failed to do so. Defendant 1 put forward numerous defences to the plaintiffs suit; among others, he stated in para 5 of his written statement that the notice to quit was not valid and tenable, without specifying why it was so, and waived as he had received rents subsequently. In para 11 he pleaded that so far as the suit for ejectment was concerned the plaintiff was not entitled to relief in view of the waiver of notice to quit and as per the Defence of India Rules and the Mysore House Rent Control order. Defendants 2 and 4 who were represented by the same Counsel as defendant 1 pleaded that they were no longer in possession and were not lessees under the plaintiff at all They however, admitted having received the notice to quit which they said they saw no object in replying to. Subsequently Sampannappa, died and his ancestors and trustees brought themselves on record and filed a reply in which after reiterating that the notice to quit was valid and there was no waiver thereof, they stated that in view of the Mysore House Rent Control Order and a decision of the High Court in a second appeal they felt themselves precluded from pressing the relief for ejectment in the suit and reserved to themselves the right to adopt suitable steps in this behalf before the proper tribunal. The suit was ultimately decreed on 7-11-1945 for Rs.52/- being the rents claimed in the plaint for the months ending 29-11-42 and 29-12-42.

6. The executors and trustees then filed an-other suit O.S.477/45-46 on 12-6-1946 in which they claimed all the rents due from the month ending 29-1-3943, up to 18-4-1946 on which date they had sold the property to the appellant and who they said was therefore entitled to the subsequent rents. That suit was also contested by deft.1 who set up the title of one Najappa and to whom he said he had paid up the rents and from whom subsequently he had himself bought the property on 6-1-1945. That suit was intimately decreed on 6-9-1951. The executors after they sold the property to respondent (appellant?) gave a notice to him (respondent?) on 18-1-1946 through their advocate. Therein he was informed of the sale and he was required to pay the entire arrears of rents due till the sale to the executors and to deliver possession of the property to the purchaser, the respondent, (appellant?) forthwith. The appellant as purchaser of the suit property afterwards applied to the House Rent Controller for eviction as already referred to above.

7. The notice of 18-1-46 has given room for a good deal of difficulty in this case. It is carelessly worded and refers to the respondent as "having been continuing as tenaat from month to month under the executors and trustees" which obviously was never the ease of the executors and trustees much less of the respondent. The latter was all along denying their right and the will and codicil of the testator Sampannappa and setting up title in one Nanjappa as nearer heir of the latter from whom he had come to purchase the property himself. In this connection Mr. V. Krishnamurthy has cited a case in 51 Mys HCR 277 at p.287 (B) where reference is made to - Abed v. Stocks, (1838) 130 ER 863 (C) and it is pointed out that a notice to quit is necessary when a tenancy is admitted on both sides and when the tenant denies any tenancy there is no need to (sic) and what the tenant says has no existence in fact. Decree for arrears of rent had been obtained for a continuous period covered by the small cause suit and the original suit O.S.477/45-46 and Nanjappa himself had filed a suit in O.S.61/ 45-46 putting forward his own title which was dismissed on 16-1-47 as against the executors. In these circumstances there is no substance in the respondents contention that the earlier notice of 29-10-1942 was waived or that the notice of 1946 is the one that must be looked into. That latter notice moreover was given by the executors after they had parted with their rights and sold the property to the appellant and cannot have any legal effect or bind the appellant in any way.

8. The respondents contention that a tenancy from month to month between the appellant and respondent must be presumed to have come into existence in this case is therefore thoroughly groundless and the earlier notice of 1942 must be held to be valid and as having lawfully .terminated the lease.

9. As regards the other objection to the jurisdiction of the House Rent Controller that the property concerned in these proceedings was a vacant site and the adjudication regarding it was properly for a Civil Court and not the House Rent Controller to decide, it must be observed that there was a house or shed on the vacant site when the proceedings were started before the latter. The respondent had earlier objected to the jurisdiction of the Civil Court and pleaded that the House Rent Controller had such jurisdiction. The appellant had accepted that position, and it does not lie in the mouth of the respondent now to turn round and say that the House Rent Controller had no such jurisdiction and that the appellant should have again sought relief in the Civil Court. The respondent is clearly estopped by his own pleadings and coo-duct from so doing.

10. Mr. S.K. Venkataranga Iyengar contended that the appellant may not have been well advised in accepting the legal position put forward by the respondent and he urged that if he chose to walk into a trap laid by the respondent he had only himself to thank. Such a contention which appears to lack any merit cannot be tolerated by a Civil Court which has to do justice and equity between the parties and not merely judge which of them is cleverer. Mr. V. Krishnamurthy, learned Counsel for the appellant, contends on the strength of some decisions that the respondent cannot in law raise such objection. He has relied on cases reported in - Bala Lingayya v. Sunku Nallayya, AIR 1944 Mad 62 (D), which refers to and follows a case in - Govindappa v. Hanumaathappa, AIR 1916 Mad 745 (2) (E), In AIR 1916 Mad 745 (2) (E), the plaintiff made an application for restitution to the executing Court under S.583 of the old Code corresponding to the present S.144, but the application was disallowed on an objection taken by the defendant that such an application did not lie. Then he filed a regular suit and the defendant again objected to the suit. His contention was negatived, the Court observing that it was on his objection that the plaintiff had been driven to a separate suit and he could not now be heard to say that the procedure to which he himself successfully objected was the proper one. (Vide also a similar case in - Uttamchand v. Saligram, AIR 1929 Nag 79 (F)) In AIR 1944 Mad 62 CD), it was held that where representations are made by one of the parties to execution proceedings of facts that would necessitate some other proceedings and on which the Court acts and passes a certain order, that would operate as an estoppel against that party from contending in other proceedings that those facts were not true. In - Kondi Ravjiv. Chuni-lal Rupchand, AIR 1929 Bom 1 (G), the plaintiff had made an application to Court to file an award and pass a decree in its terms. Later he sued to obtain a declaration that the decree was unauthorised and void. It was observed by their Lordships that the Court was one of equity as well as a Court of law and they were not bound to give relief to the plaintiff in the circumstances and that he could not be permitted to go back on his own representation and urge want of jurisdiction. In-RamKhelawan Singh v. Maharajah of Benares, AIR 1930 All 15 (H) an appeal was filed before the Commissioner from an order under an earlier Tenancy Act confirming a sale. The appeal was opposed by the respondent on the ground that the case was governed by a new Tenancy Act and that the appeal should have been filed in the High Court. The appeal was accordingly returned by the Commissioner and it was presented in the High Court and the respondent then changed his position and contended that the case was not governed by the new law but by the old law and that an appeal did not lie to the High Court. It was held that he was estopped from raising any question of jurisdiction inasmuch as it was on his own insistence that the appeal was returned by the Commissioner and by his objection he had accepted the jurisdiction of the High Court as the proper forum of appeal.

11. Sri Krishnamurthi has also pointed out that even in - Guru Rajachar v. Rangiah, 52 Mys HCR 455 (I), which is relied on for the respondent as enabling him to question the jurisdiction of the House Rent Controller the remedy which is conceded by that decision is, if any, by suit and not by means of an application or objection in the executing Court. He has in this connection referred to a case in - D.P. Merchant v. Bank of Mysore Ltd., AIR 1949 Mad 784 (J), where it has been held that as the order of the House Rent Controller is in the nature of a decree it is not open to the tenant in execution of the decree to raise the contention that the order passed by the Controller is invalid.

12. In the result we allow tins appeal and set aside the order of the learned Subordinate Judge. I.A. No.II is dismissed with costs throughout (Advocates fee Rs.15/-). Appeal allowed. AIR 1953 MYSORE 64 (Vol. 40, C.N. 33) "Bangarappa v. Ranganatha" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) T. Bangarappa, Accused-Petitioner v. Ranganatha Rao, Complainant-Respondent. Criminal Revn. Petn. No.153 of 1950-51, D/- 5 -10 -1950. Criminal P.C. (5 of 1898), S.403 and S.235(1) - DOUBLE JEOPARDY - JOINT TRIAL - CHARGE - Any distinct offence. Where a person is prosecuted under S.56, Mysore Police Act and is acquitted, his subsequent prosecution on private complaint under S.355, Penal Code, arising out of the same transaction is not barred. The offences are distinct. (Para 4) Anno : Cri.P.C., S.403 N.5. Cases Referred : Chronological Paras (A) 31 Mys CCR 335 (B) (25) AIR 1925 All 299 : 26 Cri LJ 688 (C) (40) AIR 1940 Mad 224 : 41 Cri LJ 401 K.P. Muddappa, for Petitioner; Maloar Subba Rao, for Respondent. Judgement The accused in C.C. No.264 of 49-50 on the file of the Special 1st Class Magistrate, Sagar, has been proceeded against under S.355, Penal Code on a private complaint on the allegation that the complainant was shoe beaten causing him dishonour. The accused raised as objection that the present prosecution is barred under S.493 as he had been already prosecuted for the same offence under S.56(o) and (q), Mysore Police Act in C.C. 313 of 49-50 which ended in acquittal. The objection was rejected by the learned Magistrate who directed the case to proceed according to law. It is against that decision that this revision petition is filed.

2. It is argued for the petitioner that the offences for which he was prosecuted by the police is substantially the same as the one complained of under S.355, Penal Code which is not denied to have arisen out of the same transaction and as such the accused should not he tried again for the same offence.

3. Section 403(1), Criminal P.C., embodies the maxim that no person should be twice troubled for the same cause. It incorporates the common law principle known as ature fois acquit which means that no one shall be put into peril twice on the same matter or grounds of public policy. Clause (2) of S.403 provides that "a person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on a-former trial under S.235(1), Criminal P.C." Section 235(1) enables that where more offences than one are committed from acts in the same transaction, a person may be charged with and tried at one trial for every such offence. The question for consideration is whether the two offences are distinct. The offence complained of under S.56, Police Act concerns indecent pushing in a public place giving rise to a breach of public peace. The offence now under enquiry is that the complainant was shoe beaten causing him dishonour. In 31 Mys CCR 335 (A), it has been held that affray and hurt caused to an individual in the transaction are distinct offences and the trial of one does not bar the subsequent trial for the other. Mukherji, J., in - Ram Sukh v. Emperor, AIR 1925 All 299 (B) held that conviction for affray is no bar for subsequent conviction far causing hurt in the affray. A bench of the Bombay High-Court have laid down that a "conviction of an accused for an offence under S.160, Penal Code on prosecution initiated by the police ...... does not bar the subsequent prosecution of the accused for offences under Ss.323 and 147, Penal Code on a complaint laid by the complainant." In a recent case reported in - Thanammal v. Alamelu Ammal, AIR 1940 Mad 224 (C) it was held that a conviction under S.75, City Police Act is no bar for trial for an offence under Ss.323 and 352, Penal Code. In effect, the sets of offences in each of these cases are deemed to be distinct though committed in the same transaction.

4. In this case, the accused was previously prosecuted under S.56(o) and (q). Clause (o) deals with the offence of indecent behaviour in a public place and cl.(q) with the offence of obstructing or annoying passengers in the public street. If during the same transaction any individual is affected, he is not deprived of his personal right to proceed separately against the person offending. The offence against public peace is distinct from the offence against a particular individual committed in the same transaction and governed by S.403(2), Criminal P.C. I am, therefore, of opinion that the acquittal under S.56, Mysore Police Act is no bar for a trial under S.355, Penal Code on the private complaint.

5. In the circumstances, the Magistrate is correct in having overruled the objection; this petition, therefore, fails and is dismissed. Revision dismissed. AIR 1953 MYSORE 65 (Vol. 40, C.N. 34) "Chief Secy. Mys. Govt. v. Rama Chetty" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) Chief Secretary to Government of Mysore, Defendant-Appellant v. A. Rama Chetty, Plaintiff-Respondent. Second Appeal No.692 of 1947-48, D/- 6 -3 -1951. Railways Act (9 of 1890), S.75, Sch.2, Cl.(1) - RAILWAY - WORDS AND PHRASES - "Silks", meaning. The fact that the invoice sent by the person who sold the goods to the plaintiff, described the package as a "Silk cloth parcel" cannot be conclusive against the plaintiff. Where the bundle contained articles made of a mixture of cotton and silk and the cost of the silk content in the articles was a little less than 50 per cent, of the total cost of the bundle, it was held that the articles were not silks within the meaning of Cl.(1). Case law discussed. (Paras 4, 5) Anno: Railways Act, S.75 N.2, Sch.II N.1. Cases Referred : Chronological Paras (A) (67-68) 4 Bom HCR 129 (B) (1864) 33 LJ Ex 187 : 12 WR 380 (C) (83) 6 Mad 420 (D) (16) AIR 1916 Cal 554 : 42 Cal 888 Advocate-General, for Appellant; Nittoor Srinivasa Rao, for Respondent. Judgement VASUDEVAMURTHY, J. :- The plaintiff is a cloth merchant at Mysore; and his suit against the Mysore Railways for recovery of the value of articles consigned by him, for interest and notice charges was dismissed with costs by the Munsiff of Mysore. That judgment was reversed by the Additional Subordinate Judge, Mysore, and the defendants have filed this second appeal.

2. It is admitted by the railways that a bundle of cloth was consigned on 12-3-1945 to the plaintiff from Chamarajanagar, that it was received at the Mysore city railway station and that it was stolen away from there and could not therefore be delivered to the plaintiff. Its value has also-been found by both the lower Courts to be Rs.1,407-1-0. The learned Munsiff was of the view that the plaintiff has not made out that the loss of the parcel was due to want of care or diligence on the part of the railway administration, but the learned Subordinate Judge did not agree with him and observed that according to the evidence on the side of the defendants, the parcel, after it arrived at its destination station was allowed to lie on the platform and was subsequently found to be missing and he apparently considered that this might be enough to hold that there was such gross negligence as amounted to misconduct on the part of the employees of the Railways who were responsible for its safe custody.

3. D.W.1 the Chief Parcel clerk, of the Railways, has deposed that the bundle was received at the Mysore city Railway station on 12-3-45 at 9-30 P.M and as the parcel room was fall with other parcels, this parcel was kept on the platform and when the plaintiff came to claim it was found missing. There is no evidence that adequate watch was kept on the parcel which contained goods of considerable value, and leaving it on the public and open platform, certainly lends support to the plaintiffs contention that the loss was due to lack of proper care and diligence on the part of the Railway officials concerned. There was however no issue raised in this matter and apparently the railways did not seriously contend that there was no misconduct. The sole ground that has been taken in the appeal memo here and which is now strongly pressed before us is that the articles contained in the consignment in question were "Excepted articles" within the meaning of S.59, Mysore Railways Act. Under that section when any articles mentioned in the schedule annexed to it are contained in any parcel or package delivered for carriage to a Railway Administration and the value of such articles in the parcel or package exceeds Rs.100/- the Railway cannot be held liable unless the contents of the package have been declared and a percentage paid or engaged to be paid on the value so declared by way of compensation for increased risk.

4. It is contended by the learned Counsel for the appellants that the suit parcel contained articles coming within the description of cl.(1) to the said schedule which runs as follows : "Silks in a manufactured or unmanufactured state and whether wrought up or not wrought up with other materials." In the present case the package contained quite a large number of sarees and konams and it is admitted that they were not made of pure silk but were a mixture of cotton and silk. It is obviously a question of fact in each case whether the articles fall within the description of one of the items of that schedule, and there can be no general rule in that behalf. It is argued for the appellants that Ex.B, the invoice sent by the person who sold the goods to the plaintiff, described tie package as Silk cloth parcel". Such a description cannot be conclusive against the plaintiff. Moreover, if such an invoice stated that it was all cotton cloth surely the railways could not have felt themselves bound by such a description and they could still show that the articles were of silk. The lower Courts have relied mainly on the evidence of P.W.3 and D.W.3 in this matter. P.W.3, a clerk of the merchant who sold the articles to the plaintiff and who supervised the packing of the goods, has sworn that the articles in the package were a. mixture of cotton and silk, the proportion of cotton to silk ranging from 80 to 85 per cent of the former to 15 to 20 per cent of the latter, and he has also given the value of the silk content of the articles in the parcel. D.W.3 the Commercial Inspector of the South Indian Railways, who made investigation in respect of the plaintiffs claim on the railway, has deposed that he considered that the details given in Ex.I were correct, that the goods conveyed under Ex.B could not be either pure cotton or pure silk but were a mixture and that after enquiry he found that the parcel contained goods worth Rs.1407-1-0 out of which the value of silk alone was Rs.400/-and remaining was the value of cotton in the goods. On this evidence the learned Subordinate 5 Judge has found that the silk content of the articles in the bundle was very much less both in quantity and value than the cotton content and that both in quantity and value it was only 30 per cent of these articles that were made up of silk and the rest of them cotton; and he was therefore satisfied that the silk content in the articles was not so much as to bring the said articles within the meaning of the expression silk in cl.(1). The learned Munsiff was also of the view that the cost of the silk contents in the articles would be a little less than 50 per cent of the total cost of the bundle. We, have, there Tore, the concurrent finding of both the lower Courts that the value of the silk content in the articles was less than 50 per cent and that is a question of fact which cannot be interfered with in second appeal.

5. In a similar case in -Laxmidas Hira Chand v. G.I.P. Rly. Co., 4 Bom HCR 129 (A), it was held that whether or not cotton fabrics bordered with silk, or having a portion of silk otherwise used in their manufacture are silks in a manufactured or unmanufactured state, wrought up or not wrought up with other materials, is a question of fact to be decided on the evidence and not a question of law; and it was observed : "The proper test for a Judge to apply in such cases, is to determine whether or not the value of the silk wrought up with other materials is more than half the value of the fabric. If it be not, the fabric cannot be considered to be silk, within the meaning of the Act." In coming to that conclusion reliance is placed by their Lordships on a case reported in -Brunt v. Midland Railway Co., (1864) 33 LJ Ex. 187 (B) and an earlier unreported decision of a single Judge Westropp, J., of the Bombay High Court wherein it was held in a ease where the articles concerned were dhoties with silk borders and some of them with gold in the borders, that the total value of each material was to be the chief point to be ascertained in dealing with the question of the Railways liability. Couch, C.J., with whom Westropp, J., concurred was of the opinion that as a question of fact the articles before them were not silks as the value of the silk was not more than one half of the entire value. Whether a particular fabric is of silk or not would obviously depend only on same such test, if a cotton dhoti or sari has a small silk border it would not be proper to call it a silk dhoti or silk sari. A sift upper cloth which is usually made mainly of silk nut in which invariably some cotton is also used either to give it the necessary weight or strength or feel or to keep down the overall price cannot surely be called a cotton fabric. Taking into account the nature, relative proportion and value of the cotton and silk contents of the articles which were in the suit parcel as found by the lower Courts, we are inclined to agree with the reasoning and conclusions arrived at in the Bombay case and consider that those articles were not silks within the meaning of cl.(1) of Sch.IV. In (1864) 33 LJ Ex. 187 (B), there of the Judges treated a very similar matter as a question of fact to be dealt with by the Court sitting as a Jury".

6. In -Saminadha v. South Indian Rly. Co., 6 Mad 420 (C), Sir Charles Turner, Kt., C.J. and Muttusami Ayyar J., held that the term silks in a manufactured state and whether wrought up or not wrought up with other materials used in Sch.II of the Indian Railways, Act, 1879, does not apply to all cases of goods in which silk may be introduced and that a cloth composed of silk and cotton thread, non-eighth- being silk and seven eighths Cotton, the proportionate value of silk and cotton being one to four and a half, did not come within the meaning of the said term.

7. - G.I.P. Railway Co. v. Changa Khan, AIR 1916 Cal 554 (D), is a further authority for the position that the question whether silks in a manufactured or unmanufactured state is to be treated as silk is a question of fact. In that case also, (1864) 33 LJ Ex. 187 (B), as well as Bom HCR 129 (A) and 6 Mad 420 (C) are relied on. Their Lordships observe: "We do not, and indeed we cannot, bind all Courts to follow the exact test which was adopted by the Madras Court in one case and by the Bombay Court in another. Each case must depend upon its own circumstances. Where a Court has adopted a fair test and where upon that test it has found that the article is silk within the meaning of the section, that is in our opinion a clear finding of fact, and the Court cannot go behind it in appeal."

8. We are therefore of the opinion that the judgment of the learned Subordinate Judge is correct and must be confirmed. This appeal is dismissed with costs. Appeal dismissed. AIR 1953 MYSORE 66 (Vol. 40, C.N. 35) "Madina Rice Mills v. V. Sampangirmiah" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) Madina Rice Mills, Defendant-Appellant v. V. Sampangirmiah, Plaintiff-Respondent. Appeal No.124 of 1949-50, D/- 9 -11 -1951. (A) Sale of Goods Act (3 of 1930), S.35 - SALE OF GOODS - Goods to be supplied at buyers mills - Seller is not obliged to supply unless buyer asks for delivery and is ready with price. Where according to the terms of a written contract the goods have to be supplied at the buyers mills, according to S.35 buyer has to apply for delivery. The buyer has further to be ready with the money for payment at the time of delivery. There is no obligation on the defendent to send or deliver the goods unless the buyer applies for it and the price is offered. The obligation to apply for delivery may however be relieved by a special contract to the contrary or mercantile usage. Where the buyer sues fee seller for damages for non-delivery of goods application for delivery on his part is a part of the cause of action unless there is an express stipulation to the contrary and must be explicitly stated in the plaint. AIR 1935 PC 67 and AIR 1947 Bom 293, Rel. on; 37 Mys HCR 16 Disting. (Paras 3, 4a, 4c) Anno: Sale of Goods Act, S.35 N.1. (B) Contract Act (9 of 1872), S.55 - CONTRACT - Mercantile Contract - Rates daily fluctuating - Time prescribed for performance is generally to be treated as the essence of the contract.

29 Mys OCR 38, Rel. on. (Para 4b) Anno : Contract Act, S.55 N.2. (C) Evidence Act 1 of 1872, S.92 - DOCUMENTS - CONTRACT - EVIDENCE - Terms of contract reduced to writing and signed by both parties - Subsequent arrangement not in writing enlarging time for performance of contract, alleged - Oral evidence in this respect not believed. (Para 4b) Anno : Evidence Act, S.92 N.28. (D) Contract Act (9 of 1872), S.73, S.74 - CONTRACT - SALE OF GOODS - Contract of sale of goods - Buyer paying advance - Breach of contract - Both parties at fault - No provision for forfeiture of advance - Buyer held entitled to return of the advance. (Para 5) Anno : Contract Act, S.73 N.11 S.74 N.12. Cases Referred : Chronological Paras (A) 29 Mys CCR 38 (B) (35) AIR 1935 PC 67 : 58 Mad 670 (PC) (C) (47) AIR 1947 Bom 293 : ILR (1948) Bom 91 (D) 37 Mys HCR 16 (E) 9 Mys LJ 35 S.K. Venkataranga Iyengar, for Appellant; M.R. Janardhanam, for Respondent. Judgement This is an appeal by the defendant in a suit for damages for breach of contract. The contract is in writing marked Ex.A dated 2-10-1945 and signed by the parties. The terms of the contract are expressed thus: "Quality :- Ground-nut oil Quantity - 1001 one thousand and one maunds only. Rate 8-6-0 Rupees per maund of 28 lbs. Ex. Mills. Time of delivery- end of October 1945 Option - Nil. Terms of advance : 2000. Terms of payment: cash against delivery.

2. The receipt of Rs.2,000/- as advanee from the respondent is admitted and that the quantity supplied is only 167 maunds is not disputed. There is difference between the parties as to who is responsible for the rest of the stipulated quantity not being supplied, each party imputing default to the other. After exchange of notices the suit relating to this appeal was filed on 31-3-1948 for recovery of Rs.10705/- made up of Rs.2000/- paid as advance, Rs.375/- cost of barrels left with the defendant and Rs.8330/-as damages. Defendant denied liability to pay anything, as, according to him, plaintiff alone was to blame for the contract not being fully carried out. The learned District Judge on a consideration of the evidence held that defendant was in default and liable to pay damages which were assessed at Rs.4,378-8-0 together with the advance and value of barrels as claimed by the plaintiff.

3. Sri Venkataranga Iyengar on behalf of the appellant argued that the finding of the learned Judge is not warranted by the evidence and referred to the relevant portions thereof to show that the plaintiff himself has failed to perform the initial conditions necessary to support the claim. From the terms "Ex-Mills" in Ex.A it is clear that the goods had to be delivered at the defendants mills at Channapatna and S.35, Sale of Goods Act requires that the buyer should apply for delivery. The buyer had further to be ready with the money for payment at the time of delivery. There was no obligation on the defendant to send or deliver the goods unless the plaintiff applied for it and the price was offered. According to Ex.A the entire supply had to be made by the end of October 1945. The plaintiff did not write to the defendant in Exs.VI, VII and VIII which are the only letters in October that he wants it or arranged to take it. In Ex.VI he complains about the quality of the oil sent and in Ex.VII he seeks intimation of the rate at which the oil would be supplied in November in order to enter into a new agreement. None of the witnesses examined for the plaintiff says that any one went to the defendant on plaintiffs behalf in October to obtain delivery of the oil. In view of this the plaintiff is not justified in claiming damages on the ground of defendant committing a breach of the contract. 4a. It was contended for plaintiff that time of performance was extended and that the partial supply of oil subsequent to October implies obligation on the defendant to deliver the remaining quantity. Exhibit VII dated 12-10-1945 in which plaintiff writes. "If you inform us definitely the rate at which 1000 maunds will be supplied next month that is in November and if it suits us an order will be placed" shows that supply of oil after October was, if at all, to be made at rates to be settled independently of Ex.A. 4b. Generally in the case of Mercantile contracts and when the rates were daily fluctuating as is evident from the evidence, the time prescribed is to be treated as the essence of the contract : See 29 Mys CCR 38 (A). The plaintiff has not produced any accounts to show the dates on which 167 barrels of oil were supplied and the rates at which these were valued. Defendast says that the supplies had to be paid for at rates different from that in Ex.A. When the terms were once reduced to writing and both parties signed it in token of their consent, the alleged arrangement to enlarge the period for supply would have been, if true, likewise in writing. The plaintiff admits in his evidence "After the expiry of the time fixed in Ex.A there was no fresh agreement between us, implying thereby that the contract under Ex.A was not treated as being in force. The uncertainty and indefiniteness of the period extended for performance are other factors which make it difficult to accept the plaintiffs version. Neither in the plaint nor in the evidence is the time for performance as extended given. In the circumstances of the ease a determination of this on consideration of reasonableness would be arbitrary and not warranted by the conduct of the parties and the nature of the contract. 4c. The plaintiff says that there was no supply at all after February 1946 and yet he did not demand the goods till August 1947 when he got a notice issued to the defendant. It is highly improbable and unreasonable to suppose that the contract was kept open for so long or that plaintiff would have waited till then to seek delivery if the theory of extension is true. In - Sivayya v. Rangannya Kuler, AIR 1958 PC 67 (B), where the claim was similar it was observed with reference to S.93, Contract Act now replaced by S.35, Sale of Goods Act that the buyer is under an obligation to apply for delivery and the obligation may be relieved by a special contract to the contary or mercantile usage. - Dinkerrai Lalitkumar v. Sukhdayal Rambilas, AIR 1947 Bom 293 (C), was a case in which construction of S.35, Sale of Goods Act arose and the learned Judges held that where the buyer sues the seller for damages for non-delivery of goods application for delivery on his part is a part of the cause of action unless there is an express stipulation to the contrary and must be explicitly stated in the plaint. 4d. 37 Mys HCR 16(D), relied upon by Sri Janardhanam for the respondent is not of help as it does not touch the question of delivery having to be asked for, the case was not one under the Sale of Goods Act and for escaping the bar of limitation delivery of part of the goods beyond the time prescribed was treated as sufficient. Neither in the plaint nor in the evidence in this case is it alleged that at any particular time the plaintiff sought for delivery and as such the defendant cannot be held responsible for non-supply of the goods. The determination of the date of breach or the question of damages does not arise for consideration since the plaintiff cannot get damages to any extent.

5. As regards Rs.2000/- receipt of which as advance is admitted by: the defendant, there is no reason to disallow the claim for refund. In 9 Mys LJ 35 (E), which related to contract for sale of goods, repayment of the advance was ordered on the view that when both parties are at fault one of them should not be permitted to get an advantage over the other by retaining the advance money, the consideration for such retention having failed. The defendant in the course of his evidence states that there is no provision for forfeiting the amount and that he did not inform the plaintiff of its being forfeited. He also says that the forfeiture is not noted in the account. The correspondence and evidence indicate that the mills were not always working and in a position to supply the full quantity of oil mentioned in Ex.A. The allegation in the plaint that the value of the goods supplied has been paid up is not denied in the written statement. Sri Venkataranga Iyengar did not attempt to justify defendant withholding the amount. Besides Rs.2,000/- paid as advance plaintiff is entitled to get Rs.375/- as value of 15 empty barrels. Though defendant denied being in possession of these, Ex.B-4 written by him and Ex.IX produced by him show that the demand for return of the barrels in plaintiffs notice which is supported by the entry in Ex.H are justified.

6. In modification of the decree of the lower Court, there will be a decree in plaintiffs favour for Rs.2,375/- with current interest. Parties will pay and receive casts in proportion to their failure and success in both Courts. Order accordingly. AIR 1953 MYSORE 68 (Vol. 40, C.N. 36) "Narayana Rao v. Francis" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) B. Narayana Rao and others, Decree-holder-Appellants v. S.K. Francis, Respondent. Regular Appeal No.183 of 1950-51, D/- 5 -9 -1952. (A) Civil P.C. (5 of 1908), S.145 - SURETY - CONTRACT - Discharge of surely. Contract Act (9 of 1872), S.133, S.135, S.137 and S.139. Attachment before decree - Surety bond - Decree - Execution - Stay application by judgment-debtor on ground that he wanted to prefer appeal - Stay granted - Order mentioning that "the previous bond executed subsisted only till the decree in the original suit granted" - Decree confirmed in appeal - Execution started against surety - Question whether stay order had the effect of discharge of surety - Reference of the previous bond in the stay order held was rather casual - Liability under bond did not terminate. Mere forbearance on the part of the creditor did not in the absence of any provision in the guarantee to the contrary discharge the surety under S.137 of the Contract Act. Sections 133, 135 and 139 of the Contract Act did not in terms apply - (Applicability of these sections considered). (Paras 11, 13, 15) Anno: Civil P. C., S.145 N.9; Contract Act, S.133 N. 1. (B) Civil P.C. (5 of 1908), S.145 - SURETY - Suretys liability. The surely is liable for any decree that may ultimately be passed against the defendant and his obligation is not limited to the decree that is passed by the Court of first instance. 49 Mys HCR 221, Foll. (Para 14) Anno : Civil P.C. (1908), S.145 N.3. Cases Referred : Chronological Paras (A) (37) AIR 1937 Mad 584 : 169 Ind Cas 671 (B) (1929) 98 LJ Ch 59 : (1929) 1 Ch 14 (C) (39) AIR 1939 Bom 23 : ILR (1938) Bom 794 (D) (1816) 129 ER 21 : 7 Taunt 53 (E) (1836) 150 ER 607: 1 M and W 679 (F) (1814) 128 ER 712 : 5 Taunt 319 (G) 49 Mys HCR 221 (H) (38) AIR 1938 Lah 593 : ILR (1938) Lah 624

(I) (37) AIR 1937 Lah 772: 174 Ind Cas 965 B. Somaiya and N.S. Narayana Rao, for Appellants; V.L. Narasimhamurthy and Ratnabai Chittur, for Respondent. Judgement This appeal arises out of an order in an execution case on the file of the Subordinate Judge at Kolar. The appellants are the decree-holders in a suit O.S. No.7 of 46-47 and the respondent is one of the sureties who is sought to be proceeded against to obtain satisfaction of the decree they have secured is that suit against one Aruldoss.

2. The plaintiffs filed their suit far-file recovery of Rs.6,500/- against the judgment-debtor and applied for attachment before judgment of his shop goods. When the warrant was about to be executed the respondent and another Susinathan jointly entered into a surety bond Exhibit I on 15-9-1943 in favour of the Court agreeing to pay the entire amount of the decree that may be passed in the case and so the attachment was not effected. The plaintiffs suit was ultimately decreed on 29-11-1948 and the same was confirmed by this Court in R.A. No.108 of 47-48.

3. On 5-12-1948, almost immediately after the decree was passed in their favour, the decree-holders filed an execution application No.

12 of 1947-48 and applied forattachment of the judgment-debtors moveables both in his shop and in his residence as well as two items of immoveable properties belonging to the sureties "as the decree amount was large and as one of the sureties had already alienated by way of mortgaging his property and the other also was about to alienate his." On that application, on 6-12-47 the Subordinate Judge ordered notice to the sureties and the attachment of immoveables. On 8-12-47, the judgment-debtor filed an application under O.41, R.5(2), Civil P.C., for stay of execution. The learned Judge made an order on that application in the following terms : "Judgment-debtor by K.V. for Mr. P.R.R. files an application today under O.41, R.5, Civil P.C. praying to stay execution of the decree on the ground that the defendant in-fends to prefer an appeal against the decree of this court. It is seen that the previous bond executed subsists only till the decree in the original suit is granted. (Ex.V-a). Mr. K.V. says that the same sureties will come and execute a fresh bond and that the defendant is going to appeal against the judgment and that therefore the execution may be stayed. Execution is stayed. Defendant should furnish security in 3 days. Bring up on 12-12-47." It is to be noted that the decree-holders were not present or represented when this order was passed.

4. On 12-13-47, the case was adjourned to 13-12-47 and on the latter date the decree-holders counsel was present. The first judgment-debtor offered three sureties who were named. The decree-holders counsel, it is noted in the order sheet, accepted them on condition of their executing a registered security bond charging their immoveable properties. The sureties being agreeable, the case was adjourned to 18-12-47. By that date, apparently, no such bonds had been given and the decree-holders counsel said that he was not willing to accept the suretyship of two of three new persons who had been offered earlier and that "he would be satisfied with the attachment of the immoveables of Francis (the petitioner) who has already stood surety." The execution ease was then pasted to 22-12-47 as the judgment-debtor was absent and an adjournment was sought for by his pleader. On 22-12-47, a further adjournment was sought for on behalf of the judgment-debtor. This, was opposed by the decree-holders counsel who insisted on the attachment of the respondents (suretys) immoveables and the Subordinate Judge ordered the attachment by 30-1-48. The order sheet further shows that the two items of immovables were accordingly attached and that the Subordinate Judge ordered the same to subsist when he dismissed that execution application. Then the judgment-debtor filed an appeal in this Court and obtained an ad interim order of stay of execution subject to his furnishing security within a fortnight. The same two persons who had been proposed by the judgment-debtor as his new sureties, viz., Dhanapal and T.V. Subba Rao were again offered. The Subordinate Judge was not satisfied about their solvency and he reported that security had not been furnished within the prescribed time. The judgment-debtor then applied for and obtained an extension of time for furnishing security and on 14-7-1948 the Court accepted with fee consent of the decree-holders counsel a surety bond filled by the three new sureties with a note that they would be in addition to the sureties offered at the time of attachment. This Court thereafter made the stay absolute. Soon after the appeal was disposed of by this Court on 3-8-49, the decree-holders filed their present Exn. Application No.20 of 49-50 on 4-1-50 for recovery of the amount of the decree, subsequent interest and costs of both the Courts and prayed for attachment of the salary of the respondent.

5. The respondent objected to execution. He pleaded that he executed the surety bond without knowing its contents and that he thought he was thereby merely undertaking to produce the judgment-debtor whenever called upon; and that his liability under that bond had been discharged by the order of 3-12-47; further as the judgment-debtor had been given time without his consent and the agreement by which he undertook to be surety had been also otherwise materially varied without his knowledge or his consent he was no longer liable in law.

6. The Subordinate Judge of Kolar (who is not the Subordinate Judge who passed the orders in the previous Ex. Case 12 of 46-47) upheld his objection and dismissed the execution application.

7. For the appellants-decree-holders, their learned counsel Mr. Somayya has taken us through all the relevant Judges notes and orders passed from time to time and be contends that far from agreeing to grant any time for payment his client has all along been thoroughly prompt and diligent in pressing for his remedies against the judgment-debtor as well as the sureties, that the interpretation of the present learned Subordinate Judge on the order of 8-12-47 of the previous Subordinate Judge and the conclusion he has come to that the respondent has been discharged from liability are not correct.

8. Mr. V.L. Narasimhamurthy, learned counsel who appears for the respondent has strenuously attempted to uphold the order of the Court below. The learned Subordinate Judge has written a long and elaborate raster discussing numerous cases. The questions involved, however are really quite simple, and it is not possible to support his order. The learned Judge has rightly held that the story of the respondent that he executed Ext. I in ignorance of its contents is not true and that finding is not questioned here. The learned Judge has put a clearly erroneous interpretation on his predecessors note in the order sheet of 8-12-47, viz., "it is seen that the previous execution subsists only till the decree in the original (suit) is granted." That that Subordinate Judge who made that note did not consider that the security bond executed by the respondent had ceased to have any validity and that his liability had become somehow terminated by reason of that note is quite obvious from the fact that he himself shortly afterwards directed the attachment of the sureties immoveables. That rather casual note, which the learned Subordinate Judge has treated as an "order passed rightly or wrongly by his predecessor which the decree-holders were bound to have got set aside by a competent Court" could in that context only mean that by the previous surety bond the sureties were liable only for the amounts due to the decree-holders upto the date of the decree and that it would not enure to secure in their favour the payment of any further interest and costs which may become due to them as a result el the proposed appeal. The reason for that observation was obviously because in para 3 of the judgment-debtors application 1-A, under O.41, R.5, Civil P.C. the judgment-debtor had stated that he had already furnished a security bond which would cover future interest and costs also and that there was no need to insist on his furnishing any further security as required under that order. Mr. V.L. Narasimhamurthy conceded that the note was no doubt unreasonable and meaningless but nevertheless he urges it has to be given effect to as pointed out by the learned Subordinate Judge. We do not, however, think that the earlier Subordinate Judge meant to pass any such unreasonable, indeed perverse or absurd order. After having himself granted a decree a few days back in a contested suit he could not have intended in effect to deprive the decree-holders of the fruits thereof merely because the defendant said he would file an appeal against the decree. The decree-holders were not even present or beard when that note was made and it certainly cannot be said to be an order as being a formal expression of any decision which determined the rights of the parties with regard to any controversy between them.

9. The note goes on to say "Mr. K.V. says that the same sureties would come and execute a fresh bond." Mr. Narasimhamurthy urges that Mr. K.V. has not filed a vakalath for the sureties. But we think we can in the circumstances justifiably raise a reasonable presumption that the sureties might have been consulted by Mr. K.V. before a responsible pleader like him made a statement before the Court that the same sureties would come and execute a fresh bond. The sureties have not examined him nor given any evidence to the contrary. We, therefore, think that the sureties may have been fully aware of the proceedings that took place in Court on and after 6-12-47 and by entering appearance even if informally they rendered the issue of notice which had been ordered to them and the judgment-debtor unnecessary.

10. Even otherwise, the subsequent proceedings in the execution case clearly show that the decree-holders were resisting the stay of execution and insisting on additional satisfactory security. Their request that the immovables of the sureties may be attached was made as the judgment-debtor was gaining time. In the execution application itself the decree-holders bad stated that the sureties were about to alienate their properties and that one of the items bad been mortgaged subsequent to the execution of the surety-bond. It is difficult, therefore, to see what else the decree-holders could have done when the Court was giving time to the judgegment-debtor to furnish further security before ordering stay. Mr. Narasimhamurthy has urged that by asking for such attachment the decree-holders impliedly consented to the stay being made and thereby to the grant of time to the Judgment-debtor. To put such a construction on the decree-holders action would, we think, be not reasonable. They were bound to submit themselves to the orders of the Court and if they felt that they might at least secure Ace attachment of the immovables before they were disposed of by the sureties, taking advantage of the delay in the proceedings in Court, their action can certainly he not considered as conceding that a stay might be made or that the judgment-debtor should have time to make payment or as throwing any additional burden one the sureties. They applied for attachment and the order was made in the execution case itself and not in any independent proceedings and was a part of the execution process. Further, it is seen that in the security bond Ext.I the sureties also have expressly agreed that they would be liable for all orders that may be passed by the Court and such orders may well be deemed to include orders like the ones above mentioned.

11. Mr. Narasimhamurthy has argued that the Courts order staying execution under O.41, R.5 itself operates as an extension of time for payment to the judgment-debtor and that the effect of it is to discharge the liability of the sureties under S.135, Indian Contract Act. Section 135 refers to a contract between the creditor and the principal debtor by which the creditor makes a composition with or promises to give time to or not to sue the principal debtor as discharging the surety unless the surety assents to such contract. The reason of this rule appears to be that a surety has a right immediately on a debt becoming due to insist on proceedings being taken at once against the principal debtor and any contract that would prevent the creditor from suing him would be inconsistent with that right. See S.139, Indian Contract Act. "Mere forbearance on the part of the creditor does not in the absence of any provision in the guarantee to the contrary discharge the surety under Section 137 of the Act."

12. For the respondent some cases have been cited and they will be presently examined. But none of them has laid down that a Court before granting stay of execution is bound to consult the surety or that the surety will be discharged by an order staying execution under O.41, R.5 either by the Court which passed the decree or by the appellate Court. In - Krishtappa v. Adinarayanappa, AIR 1937 Mad 584 (A) thedecree-holder agreed to receive the decree amount by instalments to and Horwill, J., held that such an agreement to give time to the judgment-debtor had the effect of discharging the surety while recognising that there is an exception even to this general rule, i.e., when the decree-holder gives concession to the judgment-debtor while the right to proceed against the surety is specifically reserved. In - Smith v. Wood, (1929) 1 Ch 14 at p.23 (B) it has been observed that it is for the sureties to judge and for, them to decide whether they would allow any alteration in the contract between the principal debtor and the judgment-debtor and that it is not for a Court or Jury to determine the materiality of the alteration. That was act a case of a surety bond given in favour of a Court and has no application to the circumstance of the present case.

13. Mr. Narasimhamurthy has relied very strongly on the case reported in - Parvatibai Harivallabhdas v. Vinayak Balvanf, AIR 1939 Bom 23 (C). The facts of that case, however, appear to be rather peculiar. In that case, security bonds were executed by sureties during the pendency of a suit against the principal debtor. A decree having been passed against the principal debtor the decree-holder took out execution proceedings. The principal debtor went up in appeal against the decree and execution against him was stayed on offering of fresh security for fee decretal amount. The question was whether the old sureties were discharged by reason of the acceptance of the new sureties It is seen in that case that after the passing of the decree the High Court granted interim stay in the usual terms leaving the question of security to the trial Court. The decree-holder then made an application in that Court in which she mentioned that her execution application to recover fee mesne profits was pending, that if execution was to be stayed altogether Rs.15,300/- would be due by the defendant and that the Court should take a proper and solvent surety for Rs.16,000/-. In his reply to this application the judgment-debtor requested that as regards mesne profits the same surelies as before may be taken and that Statement may be taken from them as to their willingness to execute a fresh surety bond and suggesting further that if the Court did not deem it proper to continue the sureties, a notice should be issued to them. No such notice appears to have been issued and a fresh surety was appointed for the total amount of mesne profits for which the two previous sureties were liable. The record did not show that the defendant offered a new surety in place of the former two sureties. Subsequently the High Court made the order of stay absolute only as regards fee immoveable property but discharged it in other respects. The result of it was that there was nothing to prevent the plaintiff from proceeding with the execration application for recovery of mense profits. But, nevertheless, the execution proceedings were kept pending until the decision of the appeal. There was a delay of about six years in pressing for relief against the surety which was quite unnecessary, there having been no stay and the appeal not relating to the matter covered by the execution application at all. In those circumstances, it was held that the previous sureties were discharged. We think that the case must be held to apply only to the facts and circumstances of that particular case. Even the decree-holder appears to have been under the impression that the fresh surety bond superseded the prior one and the Court itself was responsible for substituting fresh sureties. Indeed that decision itself recognises that having regard to the definition in S.126 it is clear that Ss.133, 135 and 139, Contract Act cannot in terms apply to a transaction where the surety bond is given to be Court and there is no creditor within the meaning of S.126, the principles underlying those provisions being only applied mutatis mutandis. Such application can obviously be only to do substantial justice between the parties for which the Courts are bound. We do not think that AIR 1939 Bom 23 (C) lays down any general principles which are applicable in the circumstances of the present case or which we would like to follow. Mr. Narasimhamurthy has also referred to certain passages in Rowlatt on Principal and Surety, 3rd Edition, at pp.253 and 256. While the passages at p.253 are merely general, the reference at p.256 to the effect that the principle that a surety is discharged by a binding agreement giving time to the principal was applied to bail in actions at law is clearly (applicable?) when the plaintiff gave time after judgment - Willison v. Whltaker (1816) 7 Taunt 53 (D) or "accepted a confession of judgment" agreeing to postponement of payment - Whitfield v. Hodges, (1836) 1 M and W 679679 (E); - Croft v. Johnson, (1814) 5 Taunt 319 (F). We think that in this J case there has neither been any extension of time granted by the decree-holders nor any variation of the contract by the surety which has the effect of discharging his liability. We cannot also accept the contention that stay of execution by the Court by itself operates to discharge the surety.

14. The next contention for the respondent is that the sureties are liable only for the amount decreed by the lower Court. But this contention is clearly opposed to the terms of the surety bond which provides that they would pay the entire amount of the decree which may be passed against the defendant in the suit O.S. No.7 of 46-47. It has been held in 49 Mys HCR 221 (G), which was dealing with a language similar to that in Ext.I, that the surety was liable for any decree that may ultimately be passed against the defendant and that his obligation is not limited to the decree that is passed by the Court of first instance. There is, therefore, no substance in this contention either.

15. Mr. Narasimhamurthy has next contended that under S.145, Civil P.C. the issue of a notice to the surety is a condition precedent before action can be validly taken against him in execution and has relied on some decisions in that connection. That point, however, does not seriously arise for consideration in this case. It is very significant that the plea of want of notice was not taken in the earlier statement of objections filed by the surety on 8-2-50 and was only taken later on 2-3-1950 by way of additional objections. This would strongly probabilize that the sureties were fully aware of the proceedings which were sought for against them in Ex.12/46-47 and that by intervening in those proceedings through a counsel as referred to above rendered the issue of a formal notice unnecessary Moreover, it is represented for the appellants that after filing an appeal in this Court they have obtained a fresh order of attachment. Even in - Rahim-ud-Din v. Murli Dhar, AIR 1938 Lah 593 (H), which was one of the cases relied on for the respondent in this connection Addison, J., while recognizing that, "there must be notice of some kind to fee surety before his property could be attached in execution of the decree", directed that the notice required by law may be handed to the surety in Court; and this was subsequent to fee initiation of the execution proceedings against the surety. In - Nanak Chand Ramji Das Firm v. Ibrahim, AIR 1937 Lah 772 (I), Tek Chand, J., observed that S.145, Civil P.C. does not lay down that the notice of attachment should be in writing, that all that is necessary under fee law is that before fee attachment actually takes place, the surety should have notice of the order directing attachment, the object being that he may be able to raise objections, if any, to the validity of the order and that if the objection of want of notice is not raised before fee executing Court, it must be taken to have been waived. The real purpose of fee notice to fee surety appears to be to give him a chance to persuade the judgment-debtor or make him pay the decree amount or point out the properties of the judgment-debtor so that they may be proceeded against ha the first instance and to avoid his being taken by surprise. The mere absence of notice cannot be relied upon to claim discharge of the liability of the surety altogether. It is, however, unnecessary to go into the question further in the view we have taken that the surety in this case had notice of the previous execution proceedings against him and that the attachment made in the course of those proceedings is not therefore invalid.

16. In the result this appeal is allowed, the order of the Court below is set aside. The Subordinate Judge will now proceed with the execution in accordance with law. The appellants will get their costs both here and in the Court below. Appeal allowed. AIR 1953 MYSORE 72 (Vol. 40, C.N. 37) "Puttaswamiah v. Ramachandriah" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Puttaswamiah, Defendant 1 -Appellant v. Ramachandriah, Plaintiff and another, Defendant 2-Respondents. Second Appeal No.92 of 1949-50, D/- 21 -7 -1952. (A) Civil P.C. (5 of 1908), S.11 - RES JUDICATA - "Might." Gift by limited owner and subsequent transfer of same property - In suit by limited owner to cancel gift, she, having conveyed property as absolute owner, cannot raise plea that donee would cease to have any interest in property after her death - Suit by donee after death of limited owner, for declaration of title and possession of property, against subsequent transferees - What was in dispute in previous suit by limited owner was her life interest and not donees title to property after her death and defendants are not barred from taking up latter ground as defence. (Para 2a) Anno : Civil P.C., S.11, N.36. Civil P.C. (5 of 1908), O.20, R.4. Will conferring property on daughter subject to life interest of wife - Donee from wife ceases to have any interest in or title to property after her death - His suit for declaration of title and possession of property against subsequent transferees from wife cannot succeed on the ground that latter had no better title to property than himself. (Para 2) Plaintiff if he wishes to succeed on ground that wife was the heir of predeceased daughter and hence gift conferred title on him after death of wife must allege and prove that there were no nearer heirs to property which was the stridhan of daughter. In absence of such plea and proof Court should dismiss suit and cannot of its own accord proceed on that ground and decree it. (Para 3) Anno : Evi. Act, Ss.101-103 N. 51; Civ.P.C., O.20 R.4, N.5.

V. Krishnamurthy, for Appellant. Judgement The plaint in the suit now under appeal was filed for a declaration of title and possession of the plaint schedule property. The case of the plaintiff is that the property belonged to one Mangamma and that she made a gift of it to the plaintiff on condition that fee portion now in dispute should be in her possession till she died and that it might be taken possession of by plaintiff after her death. The defendants who are the appellants claim under a document executed by Mangamma subsequent to the gift.

2. It is in evidence that the suit property was given to Mangamma by her husband Verikatappa for being enjoyed by her till her death. According to his will the property had to go to her daughter Venkatalakshamma thereafter. It is thus clear that Mangamma had only a life interest and the gift could only be effective in respect of such interest as she had in the property. It is also clear that the plaintiff respondent ceased to have any title in the property the moment Mangamma died. It may be stated that the defendants who also claim their title under Mangamma have no better right to the suit property than the plaintiff. What however is not noticed by the lower Courts is that the plaintiff cannot succeed on account of the weakness of defendants case. Since the plaintiff has no title to the property after death of Mangamma, the suit had to be dismissed. 2a. The lower Courts have proceeded on the ground that as Mangammas suit for cancellation of the gift deed executed by her in favour of plaintiff was dismissed, neither she nor the defendants who claim under her can raise in this suit any plea which she had not raised in the previous suit. The lower Courts, however, have not noticed that Mangamma could not herself have pleaded that after her death the plaintiff would cease to have any interest in the property. What has been conveyed by her is only such interest as she had that is her life interest, though she purported to have conveyed the property as if she was the absolute owner of it. Before it could be said that the defendants are barred lay principles of res judicata the matter directly and substantially in issue in this suit must have been directly and substantially in issue in previous suit. What was in dispute in the previous suit filed by a limited owner was only her life interest in the property and plaintiffs title to such property after her death was not then in dispute. The defendants can, therefore, claim in this suit that plaintiff ceased have any right in the suit property the moment Mangamma died.

3. The learned Munsiff has argued that she is the heir of her daughter, as it is in evidence that the latter is dead. If he had been careful, he would have noticed that such a plea had not been taken in this suit and even if such a plea had been taken it has not been shown that her son-in-law is dead. The property was gifted to Venkatalakshamma and it would be her Sthridhana property. There are a number of nearer heirs than the mother to the daughters estate and in fact the previous judgment Ext. B makes it clear that Venkatalakshammas husband was alive after her death. Anyway it was for the plaintiff to have pleaded that Mangamma was the-nearest heir to her daughter and proved that it was so before he could succeed in this suit. He did not do so. The suit, therefore, ought to have been dismissed.

4. In the result the appeal is allowed and judgment and decree of the Courts below are set aside and the suit stands dismissed. Considering that the defendants have also not shown to have any title, the parties will bear their own costs throughout. Appeal allowed. AIR 1953 MYSORE 73 (Vol. 40, C.N. 38) "I.-T. Commr. v. Mysore Engineering Co." MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) Commissioner of Income-tax, Mysore cum Travancore-Cochin, Bangalore, Petitioner v. Mysore Engineering Co., Bangalore, Assessee Respondent. Civil Petn. No.41 of 1950-1951, D/- 24 -11 -1952. (A) Mysore Retrocession Transitional Provisions Act (24 of 1947), S.5 - INCOME-TAX - C. and M. Station, Bangalore. Mysore Retrocession (Application of Laws) Act (23 of 1947), S.4. Income-tax Act (11 of 1922), S.66. The High Court of Madras was an authority exercising jurisdiction in the C. and M. Station, Bangalore, under the Indian Income-tax Act, 1922. Therefore, proceedings under S.66 (1), Income-tax Act, 1922 which were pending before it and which were not finally disposed of on the date of the retrocession of C. and M. Station, Bangalore, have to be continued, before the Mysore High Court as if first initiated before it. (Para 3) Anno : I.T. Act, S.66 N.1. (B) Income-tax Act (11 of 1922), S.4(1)(a) - INCOME-TAX - Business carried out of British India. Pre-1950 case. Mere acceptance of the contract in British India does amount to an operation of an engineering contractors business within British India. Where no portion of the business is carried out in British India, and the profits and gains arising out of the business are earned directly from the work done and materials supplied within the Mysore State, in such a case the contract is not the source of income but the construction of buildings by the contractor, which is in the nature of an asset or business capable of yielding the income, is the source of income. AIR 1938 PC 232 and AIR 1951 Mad 551, Rel. on. (Para 7) Anno : I.T. Act, S.4 N.7. Cases Referred : Chronological Paras (A) (38) AIR 1938 PC 232 : 1938-6 ITR 521 (PC) (B) (1881) 51 LTQB 86 : 8 QBD 414 (C) (51) AIR 1951 Mad 551: 1950-18 ITR 331 D.M. Chandrasekhar, for Petitioner; S.K. Venkataranga Iyengar, for Respondent. Judgement VASUDEVAMURTHY, J. :-This is a reference by the Commissioner of Income-tax, Mysore cum Travancore-Cochin, Bangalore, which was formerly made by the Income-tax Appellate Tribunal, Bombay, under S.66(1), Indian Income-tax Act of 1922 as amended by S.92, Income-tax (Amendment) Act of 1939 to the High Court, of Judicature at Madras. That reference was heard on 4-8-1948 by Rajamannar, C.J., and Yaha Ali, J., who directed the return of the records in the case to the Income-tax Appellate Tribunal as it was represented to them that the Madras High Court had ceased to have jurisdiction to deal with the reference in view of the retrocession of the C. and M. Station, Bangalore, wherefrom the reference arose, to the Government of Mysore.

2. The assessees who are respondents before us are a firm of Engineering Contractors who had their office within the Mysore State limits. During the concerned account year ending March 1942 they did some building construction work for a war camp in Bangalore at Jalahalli which place is also situate within the limits of the Mysore State. It is not disputed that the contract for these works was accepted by the Commander, Royal Engineering, Bangalore, whose office was then in the C. and M. Station, Bangalore. The then Income-tax Officer of the C. and M. Station assessed the income which the firm had derived from these contracts as he was of the view that the same was derived from contracts made in the C. and M. Station, Bangalore and the income therefrom accrued or arose in the station within the meaning of S.4(1), Indian Income-tax-Act as applied to it. The assessees carried up the matter in appeal and the Appellate Assistant Commissioner of Income-tax, C. and M. Station, Mr. F.W.A. Morris, the then Collector of the Station, by an order dated 4-12-43 allowed the appeal and set aside the assessment. He held that the income of the respondents was not liable to taxation in the station either on the ground of accrual or receipt and that no part of the business operations of the firm was carried out in the station. The Income-tax Department took up the matter before the Income-tax Appellate Tribunal, Madras Bench. That Bench concurred with the view that neither under S.42, Indian Income-tax Act nor by virtue of S.4(1)(c) read with S.10 of the Act the income of the assessees was liable to be taxed in the C. and M. Station, and they dismissed the Departments appeal. Thereafter the Department asked for and obtained a reference by the Appellate Tribunal to the High Court of Madras and that Court made the order above referred to. Subsequently, quite a long time afterwards, the present Commissioner of Income-tax has purported to re-file the reference in this Court; and thus the matter has come up for decision before us.

3. Mr. S.K. Venkataranga Iyengar, learned counsel for the assessee, has raised certain preliminary objections against the present reference to this Court He contends that this petition if treated as a reference is very belated; and is not competent if it is to be treated as a mere refiling in this Court of a reference already made to the Madras High Court. He urges that the Madras High Court returned the reference so far back as 4-8-1948 and the same reference was reftled in this Court on 24-6-1950 nearly two years afterwards, that the explanation for the delay, viz. that the Income-tax authorities were taking legal or administrative advice from the Central Government is not sufficient justification for the very long delay. The present petition, however, does not purport to be and is not a fresh reference by the Appellate Tribunal under S.66 (1) on any application by the Commissioner. The period of limitation of 60 days within which the Commissioner has to make an application to the Appellate Tribunal for making a reference does not, therefore, apply to this petition. Under S.5(c) of Act 31 of 1948, the Mysore Income-tax and Excess Profits Tax (Application to the Retroceded Area) (Emergency) Act, 1948, it has been specifically provided that an appeal or application pending before an income-tax or excess profits tax authority in the Retroceded Area immediately prior to the first day of July 1948 shall be deemed, on that date, to be an appeal or application pending before an income-tax or excess profits tax authority in Mysore vested with or ordinarily exercising the functions of such authority and the Indian Income-tax Act, 1922, or the Excess Profits Act, 1946, as the case may be, as in force in the Retroceded Area immediately prior to the first day of July 1946, shall apply to suck appal or application. By S.4 of Act 23 of 1947, the Retrocession (Application of Laws) Act, 1947, the words "High Court" and "Court of Resident" in any enactment in force in the C. and M. Station shall be construed as a reference to the High Court of Mysore; and under S.5 of Act 24 of 1947, the Retrocession (Transitional Provisions) Act, 1947, any proceeding under a law in force in the Civil and Military Station prior to the date of retrocession initiated before an authority in the Civil and Military Station which is not finally disposed of or decided before that date, shall on that date be deemed to be a proceeding initiated before an authority in Mysore vested with or ordinarily exercising the functions of such authority and the proceeding may be continued thereafter before the authority in Mysore, as if first initiated before him. If the High Court of Madras was an authority which was exercising jurisdiction in the C. and M. Station under the Indian Income-tax Act of 1922 then proceedings which were pending before it and which were not finally disposed of on the date of the retrocession have to be continued before the Mysore High Court as if first initiated before it. It appears to us, therefore, there is no substance in this objection.

4. The next objection raised by Mr. Venkataranga Iyengar is that by an agreement or arrangement between the Government of Mysore and the Income-tax Department of the Government of India which was enforced and authorized to administer the provisions either of the Mysore Income-tax Act or the Indian Income-tax Act which may be applicable to the assessment with which we are concerned in this case, the assessment leviable and payable to the C. and M. Station Income-tax authorities for the year in question has now become payable to the Government of Mysore; that the Government of Mysore Income-tax authorities have duly and validly assessed to income-tax under the Mysore Income-tax Act, this income of the assessees as laying accrued or arisen within the Mysore State, that these taxes have been duly paid and that matter has, therefore, become final and concluded; that if we allow this reference and permit the Indian Income-tax authorities, who it must be deemed in this matter to be acting merely for and on behalf of and for the real and ultimate benefit of the Government of Mysore, the Government of Mysore will be allowed to collect further tax to which they are in no way entitled. In this matter there was formerly a conflict of claims between the Income-tax Department of the Government of Mysore and that of the former Civil and Military Station. By reason of the retrocession of the C. and M. Station, Mr. Venkataranga Iyengar argues, there has been such a merger of the claims which would render it opposed to justice, equity and good conscience for the Commissioner to collect and pay any excess of tax to the Mysore Government. This would moreover have the effect of allowing the Mysore Income-tax authorities to re-open their own assessment made in Income-tax proceedings, which had been properly and finally decided by themselves.

5. For the Commissioner it is urged by Mr. Chandrasekhar, learned counsel who appears for him, that this is not the concern of the assessee but merely one of an arrangement between the two Governments. He, however, has not denied the nature of the financial arrangements referred to by Mr. S.K. Venkataranga Iyengar,

6. Neither Mr. S.K. Venkataranga Iyengar nor Mr. D.M. Chandrasekhar has been able to cite any precedent which might have been of use to us in deciding this rather interesting; question apparently because the situation that has given rise to it is out of the ordinary. But it must be admitted that there appears to be considerable force in that objection. The Mysore Governments claim to assess and collect the tax from the assessee having been fully satisfied it is not easy to see how they can again seek to collect afresh or recover any more income-tax revenue from the assessee. If a creditor has once chosen to accept a certain payment or adjustment, from his debtor and given a full and final discharge of his claim, it can hardly be doubted, that he cannot, merely by employing an agent disclaim or revoke the settlement or discharge, and seek to collect some extra sums under colour of a totally inconsistent claim put forward through the agent. That is apparently the legal position occupied by the Commissioner of Income-tax vis-a-vis. the Government of Mysore with regard to the assessment for the year concerned in this case.

7. Apart from this technical objection, we think the order of the Appellate Tribunal confirming that of the Appellate Assistant Commissioner of Income-tax is, on its merits, correct. The respondent firm had its office within the Mysore State and it carried on these and its other contracts there. The contract was fulfilled by the erection of buildings only at Jalahalli within the Mysore State. No part of the building operations involving any work or manufacture or sale of any manufactured article took place in the station. Merely because the contract happened to be signed for purposes of convenience of the Military authorities or payment was made through the Imperial Bank of India in the Civil Station for the same reason cannot, in our opinion, render the profits, income or gains derived from the contracts with which we are concerned in this case to be deemed to have been derived by any person through or from any business connection in British India. The Appellate Assistant Commissioner of Income-tax has pointed out that many of the cheques issued by the Military authorities were sent to the firms Bankers in the Mysore State limits and cashed by the latter and that it could not be said that the income was received or can be deemed to have been received in the station to attract liability to tax under S.4(1)(a). It is difficult to hold that merely because a person who was resident outside the Mysore State, say in Madras, asked a building contractor whose business activities were confined entirely to Mysore State to put up a building for him in Mysore State and chose for his own convenience, and because he happened to have a current account in Madras, to issue cheques to the former in payment of his bills, that the former had any business connection or made profits. In Madras so as to render him liable to income-tax in Madras. The Appellate Tribunal have in the course of their order dated 22-11-44 set out the facts of this case and found that the income in the ease if it at all accrued or arose or was received, was with reference to a business and that the whole of the business had been carried on outside the C. and M. Station, Bangalore. The persons carrying on the business were non-residents. Their office was situate outside the C. and M. Station. In those circumstances the Tribunal found it difficult to say that while the income from carrying on of the business is to be taxed, it can be suggested that such business was carried on in any part of Civil and Military Station, Bangalore, and therefore the income accrued or arose in that place,. The mere acceptance of the tender in C. and M. Station was merely a chain in the causation but it was not the proximate cause from which the income by carrying on business of house building had arisen or accrued as contemplated by S.4 read with S.10, Income-tax Act in the C. and M. Station. They also agreed with the Appellate Assistant Commissioner in holding that merely because the cheques were drawn on the Imperial Bank of India in C. and M. Station, Bangalore, by the Military authorities, it could not be said that the income had been received or could be deemed to have been received in the station by or on behalf of the respondent firm. They relied on a case in - Commissioner of Income-tax, Bombay Presidency and Aden v. Chunilal B. Mehta, AIR 1932 PC 232 (A), and to observations therein which are as follows : These considerations lead their Lordships to the conclusion that under the Indian Act a person resident in British India carrying on business there and controlling transactions abroad in the course of such business is not by these mere facts liable to tax on the profits of such transactions. If such profits have not been received in or brought into British India it becomes or may become necessary to consider on the facts of the case where they accrued or arose. Their Lordships are not laying down any rules of general application to all classes of foreign transactions, or even with respect to the sale of goods. To do so would be nearly impossible and wholly unwise to use the language of Lord Esher in - Erichsen v. Last, (1881) 8 QBD 414 (B). They are not saying that the place of formation of the contract prevails against everything else. In some circumstances it may be so, but other matters - acts done under the contract, for example - cannot be ruled out a priori. In the case before the Board the contracts were neither framed nor carried out in British India; the High Courts inclusion that the profits accrued or arose outside British India is well founded. The Departmental representative who appeared before the Tribunal appears to have given up the contention that the acceptance of the contract in the C. and M. Station, Bangalore, amounted to an operation of the respondents business within the station. The Tribunal observed that he did very rightly give up that ground because in their opinion also it could not be said in the circumstances of the case that any portion of the business was carried out in the station. We think the profits and gains were earned directly from the work done and materials supplied within the Mysore State. It could not, therefore, be said, as found by the Appellate Tribunal, that it was the contract that was the source of income but the construction which was in the nature of an asset or business capable of yielding the income. The Madras High Court in a case in - Commr. of Income-tax. Madras v. Anamallais Timber Trust Ltd., AIR 1951 Mad 551 (C) in which the facts are very similar, and which has referred to and relied on AIR 1938 PC 232 (A), has taken the same view as we do and fully supports the assessee in this case. We are, therefore, entirely in agreement with the reasoning and the conclusion of the Appellate Tribunal.

8. In the result our answer to the question raised before us is that the Tribunal was right in holding that the income assessed by the Income-tax Officer or any part thereof with which we are concerned in this ease was not taxable under the Indian Income-tax Act as applied to Civil and Military Station, Bangalore. In view of the peculiar circumstances of the case, the parties will bear their own costs of this reference. Order accordingly. AIR 1953 MYSORE 75 (Vol. 40, C.N. 39) "State of Mysore v. K. Basappa" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) The State of Mysore v. K. Basappa, Accused-Respondent. Criminal Appeal No.59 of 1951-1952, D/- 5 -9 -1952. (A) Defence of India Rules (1939), R.81(2) and R.81(4) - NATIONAL SECURITY - Notification calling upon declaration of stock. Person is liable for false declaration, even if subsequent declaration made to officer unconnected with department be true. (Paras 7, 11) (B) Constitution of India, Art.141. High Court of Mysore is now bound by the law laid down by the Supreme C(Precedents). (Para 12) (C) Criminal P.C. (5 of 1898), S.417 - APPEAL - HIGH COURT - Power of High Court. High Court can review evidence bearing in mind that presumption of innocence of accused is reinforced by acquittal and that the trial Court had advantage of seeing witnesses. AIR 1952 SC 52, Relied on; 19 Mys LJ 358, No more good law. (Para 13) (D) Criminal P.C. (5 of 1898), S.417 - APPEAL - EVIDENCE - Appreciation of evidence. The rigour of the rule against interference against the orders of acquittal is somewhat less in cases where the High Court is to examine the grounds of acquittal of a person who had been convicted by the trying Magistrate, because, the Sessions Judge is in no better position to weigh the evidence than the High Court. AIR 1930 Lah 403 and AIR 1933 Pesh 27, Foll, and 12 Mys LJ 253, Ref. (Paras 14, 15) (E) Defence of India Rules (1939), R.81(2) - NATIONAL SECURITY - OBJECT OF AN ACT - Scope. Rule 81 is wide enough to include an order where a person is asked to make a return of an article or thing in his keeping or which he has in store. 48 Cri LJ 634 (Lah), Foll. (para 16) (F) Penal Code (45 of 1860), S.40 - NATIONAL SECURITY - Mens rea. Defence of India Rules, R.81. Where the accused is found to have made a false declaration, false to his knowledge, no question of want of mens rea arises. AIR 1950 Nag 38, Disting AIR 1951 Mad 261, Foll. (Para 17) Anno : Penal Code, S.40 N.1. (G) Defence of India Rules (1939), R.81 - SENTENCE IMPOSITION - MAGISTRATE - PROBATION OF OFFENDERS - CRIMINAL TRIAL - Sentence. Criminal P.C. (5 of 1898), S.32, S.562. Criminal trial - Punishment. If rich or influential persons are too lightly dealt with though they are guilty, the respect for law and order will be seriously impaired. (Para 19) Anno : Cr.P.C., S.32 N.3; S.562 N.3. Cases Referred : Chronological Paras (A) (40) 19 Mys L J 358 (B) (34) AIR 1934 PC 227: 56 All 645 : 36 Cri LJ 786 (PC) (C) (87) 10 Mys LR 317 (D) (52) AIR 1952 SC 52: 1952 Cri LJ 331 (SC) (E) (30) AIR 1930 Lah 403: 32 Cri LJ 348 (F) (33) AIR 1933 Pesh 27 : 142 Ind Cas 312 : 34 Cri LJ 384 (G) (33) 12 Mys LJ 253 (H) (47) 230 Ind Cas 414 : 48 Cri LJ 634 (Lah)

(I) (50) AIR 1950 Nag 38 : 51 Cri LJ 427 (J) (51) AIR 1951 Mad 261 : 1950-2 Mad LJ 334 A.R. Somnath Iyer, Advocate-General, for Appellant; V. Krishnamurtbi, for Respondent. Judgement The accused was tried and convicted by the City Magistrate, Mysore, for an offence under R.81(2) and (4), Defence of India Rules read with Act 15 of 1947 and sentenced to undergo simple imprisonment for one week and a fine of Rs.1,000/- and in default of payment to undergo S.I. for one month more. On appeal the then Principal District and Sessions Judge, Mysore Division, set aside the conviction and sentence and acquitted him. The Government have preferred this appeal against that judgment.

2. The case against the accused is briefly as follows: On 10-11-1948 the Deputy Commis. sioner, Mysore District, issued a notification which was published in the Mysore Gazette on 11-11-1948 whereby he called upon all the stockists of paddy and rice to furnish a true declaration of the correct stocks of the said foodgrains held either for himself or on behalf of others to the Rationing Officer, Mysore City, if the stocks were held in Mysore City. This was to be done on or before 20-11-1948 and the purpose of the notification was stated to be with a view to maintain supplies and services essential to the life of the community. The declaration had also to state the place or the building where the stock was stored.

3. In response to this notification the accused gave a ileelaration Ex.P-1 dated 20-11-1948 that he held a stock of 95 pallas of paddy in Thibbanna Rice Mills of which 85 pallas were for the use of his excise employees and the rest 10 pallas was meant for the use of himself and his family. On 5-12-1948, P.W.5, the Police Daffedar who was then in charge of the Mandi Police Station in Mysore, was asked by the Sub-Inspector of Police, Anti-corruption Branch, to conduct a search of the Thibbanna Rice Mills, which is also known as Shankarananda Rice Mills, as information had been received that the accused had kept paddy in that Mill without a permit. He reported this matter to P.W.6 who was then the Inspector of that Division and they proceeded to the Mills to make the search. Three of the rooms in that Mill were found closed and under lock of the accused. The locks were then sealed and on the next day, i.e. 6-12-48 the rooms were got opened and searched in the presence of the accused. It was then discovered that the accused had stocked in bags and loosely 204i pallas of paddy. This entire quantity was claimed by him as his and it was seized under a mahazar Ex.P-2(a). After further investigation a charge was laid against the accused and his son in C.C. No.488 of 48-49 on the file of the then City Magistrate. Mysore, on 23-12-1948. The case was tried and the accused persons were discharged. That order was set aside in revision by the Principal District and Sessions Judge, Mysore, in Cri. Revn. Petn. No.6 of 1949-50 as against the present accused only. He was then tried afresh in C.C. No.452 of 50-51 and was convicted by the City Magistrate as aforesaid.

4. In Court also the accused admitted that the paddy so discovered was his and he does not deny that he made the declaration Ex.P-1. Those facts have also been fully established by the evidence for the prosecution. P.W.1 Ranga Ramiah, a clerk of the Rationing Officer in Mysore, has deposed that the declaration Ex.P-1 though it bears date 20-11-48 reached the office of the Rationing Officer only on 24-11-1948 and that it bears the initials of the Rationing Officer Mr. D.J. Balaraj for having so received it. It has been duly registered in the office and the accused has not given any other declaration to that office. He has been examined at great length but apparently to no purpose and even in this Court the learned Counsel for the accused has not even referred to that evidence, much less challenged it. P.W.2, a retired Military Officer, P.W.3 Basaiah, the man who measured the paddy seized, Puttaswamiah the proprietor of a neighbouring Rice Mill, P.W.5, the Police Daffedar and P.W.6, the Inspector of Police, have all spoken about the search and the discovery of the paddy in the mill. On this evidence, apart from same grounds based oh points of law which have been put forward for the accused and which will be examined later on, there is no room for any doubt that the accused had made a declaration which was false, to the Rationing Officer, to whom he was bound to make a true declaration of the stock of paddy held by him and was prima facie liable to be punished for a violation of that order.

5. It was pleaded for the accused, however, that he had made an application on 22-11-1948 for a permit to enable him to hull 60 pallas of paddy to D.W.2 (Mr. G.N. Puttanna) the then Food Assistant to the Deputy Commissioner in Mysore, and that he had stated in that application that he had declared 95 pallas of paddy in the Ration Office and had got about another 100 parties of paddy in Thibbanna Rice Mills. This application, it is urged, would, taken along with Ex.P-1, negative the suggestion that the accused had any intention of making any false declaration with regard to the total quantity of paddy in his possession. The learned City Magistrate was of the view that apart from issuing a Hulling Permit Ex.D-8, dated 4-12-48, D.W.2 or anyone else did not communicate to the Rationing Officer the additional quantity mentioned in Ex.D-7. Moreover D.W.2 had stated that it was usual to ascertain before the issue of Hulling Permits, the stock which was with an applicant therefor, and he had treated the irformation conveyed in Ex.D-7 to have been given merely in furtherance of that requirement. The accused had made a separate and independent declaration in Ex.P-1 which suppressed from the Rationing Officers knowledge the existence of over 100 pallas of paddy. Ex.P-1 could not in the circumstances be considered to be a true declaration in response to the Deputy Commissioners notification and the accused was therefore guilty.

6. It is difficult to fallow the reasoning of the learned Sessions Judge or gather from his judgment the exact grounds on which he holds that the accused is not guilty. It is too general and merely refers in a rather confusing way to the arguments which were put forward before him and does not set out what the prosecution had to prove and how in his own opinion it has failed to prove it or his criticism of the evidence or the reasons for his conclusions therefor or how the accused has reputed the effect of the evidence for the prosecution or where the lower Court has wrongly appreciated the evidence or misapplied the law. The learned Sessions Judge has not disbelieved the prosecution case that the accused made a declaration as per Ex.P-1 nor does he say that it was a true declaration. He has also agreed with the Magistrate that the appellant had stocked the paddy in the mill. He was also of the opinion that the subsequent decontrol order may not have the effect of nullifying the effect of the Deputy Commissioners notification altogether as appears to have been argued before him. He posed to himself the questions whether Ex.D-7 amounted to a declaration within the requirements of the notification and if it did not, whether the accused should be considered to have made a false declaration by stating in Ex.P-1 that he had only 95 pallas while actually he held a stock of 204J pallas in the mills. He recognized that the accused was aware of the fact that he should make a declaration to the City Rationing Officer. He still considered that in the circumstances it was difficult to assert that the presentation of Ex.D-7 to the Food Assistant was not due to any bona fide intention or that it was given with the deliberate intention of keeping from the knowledge of the City Rationing Officer who could take statutory cognizance of the correct quantity of stock. He therefore felt justified in giving the benefit of the doubt to the accused. This reasoning of his is not at all easy to follow and it is not at all clear what is the evidence for the prosecution or the conclusion therefrom which was to be doubted.

7. The learned Advocate-General has rightly contended that in para 6 of his judgment, the learned Sessions Judge has chosen to give the benefit of the doubt to the accused after a vague and indefinite reference to some circumstances without clearly setting out what they are and wherein there was any room for doubt in regard to the specific accusation or charge against the accused, viz., that he made a false declaration to the Rationing Officer. The learned Judge has thus, in our opinion, completely failed to see the real point in the case which was whether Ex.P-1 was a true declaration or a false declaration. A true declaration had to be made to the City Rationing Officer and if it was found to be false, the circumstance, even if true, that he had disclosed for some reason of his own - by a side light so to say - some more stock to some other unconnected officer, cannot affect his liability for making the false declaration Ex.P-1. The case against the accused was not that he presented Ex.D-7 to the Food Assistant with a mala fide or dishonest intention as the Sessions Judge seems to think, but whether he had made a truthful declaration before the Rationing Officer as required by the Deputy Commissioners notification, particularly when he knew perfectly well that that was the officer to whom he should make the declaration.

8. It appears to have been contended before the learned Sessions Judge, and it has been argued before us for the State, that the circumstances under which Ex.D-7 has come into existence are very suspicious. It is urged that either it might have been presented by the accused through his son sometime after 24th November containing suitable recitals with a view to create evidence in his own favour so that he might escape the consequences of the discovery of the false statement he had made in Ex.P-1 if such contingency arose or that such an application might have been presented after the accused became aware that an enquiry was afoot about the false statement with a view to create some evidence of bona fides. In this connection, reliance is placed on the evidence of P.W.6, the investigating Officer, and the evidence given by D.W.2. P.W.6 has stated that on 7-12-1948 he examined certain records in the Deputy Commissioners office in connection with the District Magistrates notification. In cross-examination he has stated that he saw the application Ex.D-7 in the Deputy Commissioners office on 17-12-1948 during his investigation. In re-examination he has referred to an entry Ex.D-7(a) that it was received on 28-11-48 and that he examined the current registers and did not find any entry relating to the receipt of the application Ex.D-7. The learned City Magistrate apparently had his own doubts about Ex.D-7 and he put a few questions of his own to D.W.2.

9. In examination-in-chief D.W.2 stated that the hulling permit, apparently Ex.D-8, had been issued on his orders though he had not signed the permit as he was on leave for 8 or 10 days. He took Ex.D-7 to be a declaration as well as an application for hulling permit. In answer to the Court questiors D.W.2 has deposed that a declaration by any resident in Mysore City should be given to the Rationing Officer and not to himself and that he was receiving declarations in respect of any area in Mysore if they sent the same to him. He did not send Ex.D-7 to the Rationing Officer nor did he advise the accuseds son to declare the additional quantity of paddy to the Rationing Officer. He did not take any action so far as the declaration portion of Ex D-7 was concerned and assumed that the mention of paddy in Ex.D-7 was only to show that the accused had in his possession paddy in respect of which he had applied for a hulling permit. He did not take it to be a declaration in response to the District Magistrates notification because Ex.D-7 was nothing more than an application for a hulling permit. His evidence that he does not know if any register had been kept to note the declarations given to him is rather strange.

10. This is all the evidence with reference to the giving of the application Ex.D-7. It bears no serial number, nor has it apparently been registered in the office. The learned Sessions Judge does not seem to have approved of the eliciting of the answers by the City Magistrate as he refers to that attempt as heckling. Seeing that he was an officer holding a position of some importance and as his evidence in examination-in-chief was opposed to the terms of the notification under when declarations had only to be made to the Rationing Officer and not to himself and as receiving of any such declaration was not justified by any rules or practice, the learned City Magistrate was justified in putting a few questions as apparently the Prosecuting Inspector, who is comparatively a junior officer, might have hesitated to do so.

11. There sure some other suspicious circumstances attaching to Ex.D-7. It is dated 22-11-48 and bears a note Ex.D-7(a) by D.W.2 with his initials that it was received through Sri Channappa and that a permit may be issued as usual for 60 pallas only. It bears another endorsement below which is not very legible and which bears the date 28-11-48. It is explained for the accused that it might mean that it was passed on to the concerned clerk on 28-11-48 to prepare a permit. The permit Ex.D-8 does not make any reference to Ex.D-7. It is argued for the State that in Ex.D-7 the accused says that as "ragi is not available in the bazaar, he is finding it difficult to supply grains to tappers and that he has to supply rice alone;" and he has asked for the issue of a permit to hull 60 pallas of paddy "for the use of his tappers and coolies for that month," i.e. November and the coming month. Yet Ex.D-8 is issued only on 4-12-48 just on the eve of the search. It is urged that a person like the accused would not have allowed this delay to occur in the issue of the permit particularly as he wanted rice for the current month. His son Channappa has not been examined. No explanation is given why he should declare in Ex.P-1 on 20-11-48 that he had only 95 pallas of which 85 pallas were for the use of his excise coolies and state in Ex.D-7 on 22-1148 that he had another 100 pallas of paddy which he wanted to be hulled for the use of his tappers and coolies. 20-11-48 was a holiday being a penultimate Saturday. If Ex.P-1 was presented on 24-11-48, as appears from the endorsement Ex.P-1(a), it was easy for the accused and fully incumbent on him to declare the full quantity in his possession to which he had made reference in Ex.D-7 on 22-11-48. There was also no need to have mentioned in Ex.D-7 about the declaration made in Ex.P-1 and such mention can only be of a self-serving nature made with some ulterior object. In these circumstances, it is difficult to resist the conclusion which the prosecution wants to be drawn against Ex.D-7 that it might have been introduced into the office of the Deputy Commissioner sometime after Ex.P-1 with a view to create doubts and escape from the consequences of the false declaration already made in Ex.P-1.

12. Mr. Krishnamurthi, learned Counsel for the accused contends that this is not a case in which this Court ought to interfere in appeal against an acquittal and relies upon a decision of this Court reported in - Govt. of Mysore v. Maddura, 19 Mys LJ 358 (A). In that case it has no doubt been laid down that this Court will interfere in appeal against acquittal preferred under S.417, Criminal P.C. only when the acquittal depends upon a mistake of law or clearly on an unreasonable finding of fact. The decision of the Privy Council in - Sheo Swarup v. Emperor, AIR 1934 PC 227 (B) was brought to the notice of their Lordships who heard that case and it was contended that in approaching an appeal against acquittal the High Court must apply exactly the same principles as would be applied to a case against conviction and that this Court should go into the evidence and assess its value on the same principles as may be adopted by the trial Court. But their Lordships refused to follow the Privy Council decision and preferred to follow an earlier decision of this Court in - 10 Mys LR 317 (C). They were of the view that in regard to appeals against acquittals a different standard prevails in the matter of appreciation of evidence and questions of fact to that applicable when an appeal is filed against a conviction. But as pointed out by the learned Advocate-General for the State this Court is now bound under Art.141 of the Constitution by the law laid down in this matter by the Supreme Court.

13. In - Surajpal Singh v. The State, AIR 1952 SC 52 (D) the Supreme Court has pointed out that it is well established that in an appeal under S.417, Criminal P. C, the High Court has full power to review the evidence upon which the order of acquittal was founded though it is equally well settled that the presumption of innocence of accused is further reinforced by his acquittal by the trial Court and the finding of the trial Court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons. In - AIR 1934 PC 227 (B) the Privy Council has held that upon an appeal to the High Court under S.417, Criminal P.C. from an order of acquittal made by a Sessions Judge without a Jury but with Assessors, Ss.417, 418 and 423 of the Code gave to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed No limitation should be placed upon that power unless it is found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusion on facts the High Court should and will always give proper weight and consideration to such matters as the views of the trial Judge as to the credibility of the witnesses, the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, the right of the accused to the benefit of any doubt and the slowness of an Appellate Court in disturbing a finding of fact arrived at by a trial Judge who had the advantage of seeing the witnesses. To state this, however, was only to say that the High Court in its conduct of appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice. It seems, therefore, that when the power of the High Court to interfere against acquittals has been now defined by the Supreme Court, to the extent to which it is different from the rule laid down in - 19 Mys LJ 358 (A), the former must prevail.

14. The learned Advocate-General has also contended that in the present case the High Court is not really being called upon to set aside the acquittal passed by a trying Magistrate but an order of acquittal by a Sessions Judge on appeal. He urges that she rigour of the rule against interference against the orders of acquittal is somewhat less to cases where this High Court is to examine the grounds of acquittal of a person who had been convicted by the trying Magistrate. That contention is not without force. In this connection, he has relied on a case reported in - Emperor v. Mahomed Khan, AIR 1930 Lah 403 (E) where it has been held that whatever may be the value of the judgment of a trial Court which has had the opportunity of seeing the witnesses and observing their demeanour, no such reason can apply where the trial Court convicts the accused and it is the Appellate Court which acquits. In such a case it was observed that the Sessions Judge was in no better position to weigh the evidence than the High Court and the order of acquittal was set aside as in the opinion of the High Court the offence had been clearly proved against the accused. To a similar effect is the decision reported in - Emperor v. Chattar Singh, AIR 1933 Pesh 27 (F).

15. Mr. Krishnamurthi has pointed out that in - In re Dyavamma, 12 Mys LJ 253 (G), while dealing with the revisional powers of the High Court to interfere against an order of acquittal, it has been pointed out that the Government will not as a rule direct an appeal to be preferred against an acquittal where the case is trifling in itself or where the acquittal does not involve an erroneous principle of law and not of much public importance requiring correction at the hands of the High Court. We would say with respect that this is no doubt a very healthy rule which the Government should bear in mind when approaching this Court to set aside orders of acquittal and this Court may refuse to interfere against an order of acquittal if the Government has not observed this rule; but that decision does not define the powers of this Court while hearing an appeal against an order of acquittal. There is no doubt that in the present case the learned Sessions Judge has not kept before him the real point for decision and the same is not in accordance with law and we feel justified in upholding the judgment of the City Magistrate in preference to that of the Sessions Judge.

16. Mr. Krishnamurthi has contended that R.81(2) does not empower the Deputy Commissioner to issue a notification like the one with which we are concerned in this case calling upon persons to declare the stocks held by them. Rule 81(A) which refers to regulating or prohibiting, keeping, storage, movement, transport, distribution, disposal etc., of articles or things either general or by specified classes of persons and is, in our opinion, sufficiently wide to cover the present case. Such power has apparently never been doubted; and while Mr. Krishnamurthi has not been able to point out any decision which supports that contention the case in - Karam Chand v. The CrownV 48 Cri LJ 634 (Lah) (H) is clearly opposed to it. In that case it was held that an order under sub-R.(2) of R.81 contemplates making provisions for making rules for the production, storage etc., of any article or thing of any description whatsoever, and these words are wide enough to include an order where a person is asked to make a return of an article or thing in his keeping or which he has in store.

17. Mr. Krishnamurthi has next urged that the accused has, by making an application as per Ex.D-7 established that he had no mala fide or dishonest intention in making the declaration Ex.P-1. The Deputy Commissioners notification required all stockists to make true declaration of their stock. If the accused is found to have made a false declaration, false to his knowledge, no question of want of mens rea arises. In this connection he has relied on a case reported in - Hatimali v. Emperor, AIR 1950 Nag 38 (I). In that case the accused who were hardware merchants had made an incorrect declaration of their stock when they were required to do so under an order similar to the present. They had failed to disclose certain items of their stock and hence they were prosecuted. It was found that their non-disclosure was not the result of bad faith and was due to a genuine misapprehension on the part of the accused. There was abundant material in that case to come to the conclusion that their impression was that they were not required to disclose some of the items, an impression which was supported by some memoranda issued by the Controller himself. In those circumstances it was held though they were guilty and were liable to be punished on account of the non-disclosure of certain items concerning other items which were referred to in the judgment, the non-disclosure was not a result of the bad faith but due to a genuine impression on the part of the accused, and that circumstance was relied upon to reduce the sentence on the accused. That decision, therefore, does not seem to help the accused if he is shown to have made a declaration which was false to his knowledge.

18. A decision nearer in point has been cited by the learned Advocate-General. In - Narayana Naik, In re, AIR 1951 Mad 261 (J) a licensee sold rice and issued receipts to customers but failed to note their addresses and license number of shops as required by a notification issued under the Essential Supplies (Temporary) Powers Act. A contention was raised feat proof of mens rea was necessary. Pacchapakesa Sastry, J., observed: "Assuming without conceding that proof of mens rea is necessary, I fail to see why it should be held that there is no such proof in this case." He pointed out that by saying that mens rea should be established what was required was proof that the petitioner had a guilty mind in doing the act. If he knew that the law and the conditions of the license required that he should comply with certain formalities and with that knowledge he deliberately omitted to make the necessary entries which were required for checking purposes, he did it consciously knowing that what he was doing was a violation of the law which was by itself proof of mens rea. The profit motive or anything analogous to it was not essential.

19. We think, therefore, that this criminal appeal must be allowed. We accordingly set aside the order of acquittal passed by the learned Sessions Judge. The accused is convicted of the offences with which he is charged under R.81(2) and (4), Defence of India Rules read with Act 20 of 1947 and the notification of the Deputy Commissioner dated 10-11-1948. As regards sentence, we have given, the matter our anxious consideration. The offence was committed quite a long time back and the accused has been facing the prosecution in one form or another ever since November 1948. The food controls have since been largely modified and even abolished in some parts of the State. The accused is an elderly man and it is represented that his object in keeping back the information about the actual stock held by him was more to help his excise coolies and tappers who were employed under him rather than make any large personal profit by selling the rice in the black market. The learned City Magistrate has observed that the accused is a prominent merchant and he could not be said to have been unaware what the purpose of the notification issued by the Deputy Commissioner and that the accused was by his action attempting to deny the use of a large quantity of paddy by the public in a time of scarcity. Such, anti-social acts by persons who are educated and well placed in life he rightly felt should be severely punished. We fully endorse those observations. We are also aware that the offence is a serious one and that the accused instead of frankly confessing to the offence has tried to raise a cloud of dust by putting in Ex.D-7 under suspicious circumstances and that if rich or influential persons are too lightly dealt with though they are guilty, the respect for law and order will be seriously impaired. We are, however, inclined to think that in the present case the interests of justice will be sufficiently met by a sentence lesser than that imposed by the City Magistrate. We accordingly sentence the accused to pay a fine of Rs.1,000/- only and in default to undergo simple imprisonment for a period of one month. Appeal allowed. AIR 1953 MYSORE 80 (Vol. 40, C.N. 40) "State of Mysore v. V. Sampangiramiah" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) State of Mysore v. V. Sampangiramiah, Accused Respondent. Criminal Appeal No.66 of 1951-52, D/- 23 -10 -1952. (A) CRIMINAL TRIAL - EVIDENCE - Criminal trial - Evidence - Admission or rejection of. The reception of even inadmissible evidence is less injurious than the rejection of admissible evidence because in the former case in arriving at a decision the evidence wrongly admitted can well be excluded from consideration whereas in the latter case the evidence wrongly excluded can only be brought on record by having recourse to further proceeding necessitating thereby the prolongation of the trial and possible harassment to the persons concerned. 9 Mys LJ 89 and 6 Mys LJ 551, Rel. on. (Para 15) (B) Evidence Act (1 of 1872), S.45 - EVIDENCE - Expert evidence - Duty of Court. The guilt or innocence of the accused has to be determined by the tribunal appointed by law and not according to the test of anyone else. AIR 1915 Cal 545 and AIR 1929 Pat 275, Ref. (Para 15) Anno : Evi. Act, S.45, N.2, 8. (C) Criminal P.C. (5 of 1898), S.235 - JOINT TRIAL - Same transaction. The question whether the1 acts are connected together as to form the same transaction within the meaning of S.235, Cr.P.C., is more a question of fact than of law and each case has to be decided on its merits. The real and substantial test by which to determine whether several offences are so connected as to form the same transaction depends on whether they are so related to one another in point of purpose, or as cause and effect, or as principal and subsidiary acts, as to constitute one continuous action. AIR 1916 Cal 188 and 27 Bom 135, Ref. (Paras 18, 19) Thus a retail kerosene dealer is selling kerosene oil to a single customer for excessive price on a solitary occasion may be committing several offences; (a) selling at excessive price; (b) not issuing a receipt as required to be done by him at the time of such sale (c) not entering the same in his account-book as required under some rules and (d) selling it without insisting on a ration card. These are series of acts which are so closely connected together as to form a single transaction. (Para 20) Anno : Cr.P.C., S.235 N.2. (D) INTERPRETATION OF STATUTES - Interpretation of Statutes - Quoting wrong section. Where the main object and intention of a statute are clear it must not be reduced to a nullity by the draftsmans unskilfulness or ignorance of law, except in the case of necessity or the absolute intractability of the language used. The mere mention even of a wrong section or provision of law is not a deciding factor and the Courts always look to the substance and not form of the matter. (1889) 24 QBD 186, Ref.; AIR 1945 Mad 331, Disting. (Para 22) (E) Criminal P.C. (5 of 1898), S.423 - APPEAL - Acquittal in first appeal - Interference in second appeal. In the case of an acquittal by an appellate Court the usual rigour of the rule against interference with an order of acquittal does not apply. AIR 1939 Lah 403 AIR 1933 Pesh 27, Rel. on. (Para 23) (Conviction by trial Court after carefully going into evidence - Acquittal by First Appellate Court not appreciating and not even discussing prosecution evidence - Decision on question of law erroneous and contrary to decisions of the Court - Order of acquittal set aside in second appeal). (Para 23) Anno : Cr.P.C., S.423, N.15, 19. (F) Defence of India Rules (1939), R.81(4) - NATIONAL SECURITY - SALE - Sale of Kerosene at excessive price - Breach of Control Order - Flagrant case of black marketing by licensed dealer - Sentence - Case should not be viewed with complacency. (Para 25) Cases Referred : Chronological Paras (A) (31) 9 Mys LJ 89 (B) 6 Mys LJ 551 (C) (15) AIR 1915 Cal 545: 42 Cal 422 : 16 Cri LJ 170 (D) (29) AIR 1929 Pat 275 : 30 Cri LJ 675 (E) (16) AIR 1916 Cal 188: 42 Cal 957 : 16 Cri LJ 497 (F) (02) 4 Bom LR 930: 27 Bom 135 (G) (24) AIR 1924 Rang 98: 76 Ind Cas 830 : 25 Cri LJ 270 (H) (25) 3 Mys LJ 237

(I) (32) 10 Mys LJ 342 (J) (31) AIR 1931 Mad 225 : 131 Ind Cas 458 : 32 Cri LJ 753 (K) (12) 13 Ind Cas 825 : 14 Bom L R 41 : 13 Cri LJ 137

(L) (48-49) Cri A No 43 of 1948-49 (Mys) (M) (1846) 15 LJ Ex 170: 153 ER 736 (N) (1886) 55 LJPC 69: 11 AC 627 (O) (1889) 59 LJQB 455: 24 QBD 186 (P) (45) AIR 1945 Mad 331: ILR (1945) Mad 385 : 47 Cri LJ 195 (Q) (53) AIR 1953 Mys 75 : (Cri A P No.59 of 1951-52) (R) (52) AIR 1952 SC 52 : 1952 Cri LJ 331 (SC) (S) (34) AIR 1934 PC 227 : 56 All 645 : 36 Cri LJ 786 (PC) (T) (30) AIR 1930 Lah 403 : 32 Cri LJ 348 (U) (33) AIR 1933 Pesh 27 : 142 Ind Cas 312 : 34 Cri LJ 384 A.R. Somanatha lyer, for the State; V.T. Rangaswami Iyengar, for Respondent. Judgement VASUDEVAMURTHY, J. :- This is an appeal by the State against an order of acquittal passed by the First Additional Sessions Judge, Bangalore Division, setting aside the conviction and sentence passed against the accused by the City Magistrate, Bangalore.

2. The accused was a registered retail dealer in kerosene, oil with his shops in New Tharagupet, Bangalore City. He was prosecuted for selling two tins of kerosene oil containing 8 gallons to one Channaveerappa, P.W.8, for Rs.19/- which was in excess of the price fixed and notified by the Deputy Commissioner, Bangalore District In that connection he was also charged for having sold the kerosene oil to P.W.8 who did not hold a ration card, having failed to issue him a receipt in respect of the same, for failing to maintain a daily sales account as he was required to do in respect of the sales of kerosene and for not exhibiting in his shop premises a statement required of him showing the stock, selling price and other particulars of kerosene held by him for sale.

3. P.W.3, a Sub-Inspector of Police attached to the office of the Special Officer, Anti-corruption Measures, received information on 17-8-49 that the accused was selling kerosene oil at more than the controlled rate. With a view to verify this information he had two ten rupee currency notes Exs.P-6 and P-7 initialed by the First Magistrate, Civil Station (P.W.6); and on the morning of 18-8-49 he along with P.W.4 Vittal Rao, another Sub-Inspector of Police, P.W.5 Venkata Rao, a Police Daffedar and P.W.14 Govindappa, the Sub-Inspector of the local Chamarajpot Police Station, and P.W.8 Channaveerappa went near the shop of the accused. P.W.8 was asked to go into the accuseds shop and to buy two tins of kerosene. The accused is then said to have sold to him the two tins of kerosene oil M. Os. 1 and 2 for Rs.19/- and received Exs.P-6 and P-7 currency notes for Rs.10/-each and given him a rupee note as change. While he was coming out of the accuseds shop with the tins the police went into that shop and recovered the two marked notes and charged the accused as aforesaid. The accused pleaded that he was not present in the shop when P.W.8 came to his shop and asked for kerosene, that during his absence a servant of his, one Hanumanthappa had sold to P.W.8 not kerosene oil but diesel oil for Rs.15/- and that he himself had not therefore committed any offence.

4. The learned City Magistrate found that the accused had sold the oil for more than the controlled price and was accordingly guilty of an offence under R.81(4), Defence of India Rules. He also found that he had sold the kerosene oil to a person who held no ration card, that he had failed to issue a receipt and that he had also failed to put up a board of the stock and rates; but he was not satisfied that the prosecution had made out that the accused had not maintained the accounts as required of him and gave him the benefit of the doubt in respect of that charge. He accordingly convicted and sentenced him to rigorous imprisonment for three months and to pay a fine of Rs.1000/- and on the other three counts he sentenced him to pay a fine of Rs.250/-each. On appeal the First Additional Sessions Judge acquitted him in respect of all the charges. He came to the conclusion that the prosecution had not established by clear evidence that the appellant had sold the kerosene oil to P.W.8 for a price higher than that fixed; and the other three charges being incidental to that main charge he acquitted the accused of all the three charges. As regards the charge that the accused had not put up a board, he held that it was not clearly shown that no board had been put up.

5. The learned Advocate-General contends that the conclusions reached by the learned Additional Sessions Judge are very unreasonable and that his appreciation of the evidence and surrounding circumstances of the case is perverse. He urges that there is overwhelming evidence in this case which conclusively establishes that the accused sold kerosene oil and not diesel oil to P.W.8 and that at a rate higher than the controlled price. The City Magistrate has discussed the evidence of the prosecution witnesses and of D.W.1 and found that the evidence of D.W.1 was interested, discrepant and absolutely unbelievable while, as against it, the prosecution evidence regarding the incident was unshaken. He no doubt considered the evidence of D.W.1, the Chemical Examiner, as peculiar. He thought that that witness had to a certain extent gone back on his report. His report Ex.P-5 taken along with the rest of the evidence for the prosecution clearly established the sale, of the kerosene oil by the accused. The learned Sessions Judge, on the other hand, thought that the Chemical Examiner had given evidence which was not merely peculiar but something more than that meaning apparently that it was false, and that his report also could not be acted upon in the light of his evidence. The learned Advocate-General contends that the learned Sessions Judge has ignored the rest of the evidence for the prosecution or defence and the surrounding circumstances and has not discussed them at all or come to any conclusion of his own in regard to the truth or otherwise of that evidence though it was clearly incumbent upon him to do so. This contention is well founded. Apart from Ex.P-5 and the evidence of D.W.1, the Chemical Examiner, there is overwhelming evidence in this case that the accused sold kerosene oil and not diesel oil. The present is not a case where a casual customer went into the shop and asked for kerosene and might have chosen to buy some alternative. The Police went to the spot with the determined object of laying a trap as the accused who was a retail dealer in kerosene was reported to be selling the same at excessive prices. For that purpose they got two currency notes marked. They searched the person of P.W.8 before he was deputed to go into the shop. He was expressly asked to buy kerosene oil. He went in and even as spoken to by D.W.2 asked for kerosene oil. It is impossible, therefore, in those circumstances to believe that he would have purchased diesel oil instead. This aspect of the matter which is in our opinion almost conclusive against the story for the defence has not been adverted to at all by the learned Sessions Judge.

7. Then we have the direct and positive evidence of P.Ws.7 and 8 which clearly establishes that P.W.8, has deposed that he went into the shop of the accused and enquired of him as to the price of the Kerosene oil. 8-11. (After discussing the evidence the judgment proceeds as follows:-) The learned City Magistrate had seen and heard all these witnesses and had accepted their evidence. The learned Sessions Judge has given really no reasons for not acting on their evidence; and we think that his appreciation of the evidence in this matter is thoroughly unreasonable and that he erred in disturbing the finding of the City Magistrate on this simple question of a fact. We have not so far referred to Ex.P-5, the report of the Chemical Examiner, or his evidence as P.W.1. 12-14. (The judgment then discussed them and proceeded as under:) The learned Special Public Prosecutor made an application before the Sessions Judge praying for permission to adduce additional evidence by directing C.W.1 to conduct all necessary tests to find out as to whether the contents of the tins were Kerosene oil or diesel oil or to get them analysed by another expert. This application was allowed by the predecessor-in-office of the present Judge. The accused took up the matter in revision and that order was set aside by a single Judge of this Court. He thought that the application for additional evidence was belated and that it would be rather unsafe to apply further tests after the lapse of such a long period. In that view he set aside the order of the Sessions Judge. The learned Counsel for the accused has not been able to tell us how mere delay would affect the tests to find out whether a particular oil is kerosene oil or diesel oil. Another expert who would have conducted the tests in accordance with the order of the Sessions Judge would have been able to tell the Court whether any changes occurred in the oil whereby such tests after a lapse of time would not be useful.

15. As pointed out in (In re S.N. Appan-naiengar, 9 Mys LJ 69 (A) and 6 Mys LJ 551 at p.560 (B), the reception of even inadmissible evidence would have been less injurious than the rejection of admissible evidence because in the former case in arriving at a decision the evidence wrongly admitted can well be excluded from consideration where in the latter case the evidence wrongly excluded can, only be brought up on record by having recourse to further proceeding necessitating thereby the prolongation of the trial and possible harassment to the persons concerned. In this connection we must also observe that it is not clear from the judgment of the learned Sessions Judge whether he was invited to and examined the Test of the evidence for the prosecution. It appears as though, after some sort of concession by the Special Public Prosecutor that the evidence of C.W.1 was not conclusive as to the nature of the contents of M.Os.1 and 2, the learned Sessions Judge thought that there was no more a case for the prosecution. We do not think that the learned Sessions Judge was justified in doing so. The guilt or innocence of the accused has to be determined by the tribunal appointed by law and not according to the test of anyone else; See - Ram Ranjan Roy v. Emperor, AIR 1915 Cal 545 (C) and - Kunja Subodhi v. Emperor, AIR 1929 Pat 275 (D) and the Judge is still under a duty while dealing with a criminal case to deal with it according to law. The learned counsel for the accused here has not, and rightly in our opinion, relied upon any concession by the Public Prosecutor. 16-17. The evidence of C.W.1 may be viewed in two lights. (After discussing the evidence and the question of non-production of accounts" books of the accused, the judgment proceeds as under:)

18. The learned Sessions Judge has also found that the trial was bad for misjoinder of charges and as such the conviction was liable to be set aside. He was of the view that the offences with which the accused were charged/ were distinct offences and that he should not be charged with and tried for more than three offences at a time. He has referred to some decisions without discussing them. But we do not think that they throw much light on this case. Section 235, Criminal P. C., provides that if in one series of acts so connected together as to form one transaction more offences than one are committed by the same person, he should be charged and tried in one trial for each such offence. The question whether the acts are connected together as to form the same transaction within the meaning of S.235, Cr.P.C., is more a question of fact than of law and such case has to be decided on its merits. "It is not possible to frame a comprehensive formula of universal application to determine whether two or more acts constitute the same transaction; but circumstances which must bear on the determination of the question in an individual case may be easily indicated; they are proximity of time, unity or proximity of place, continuity of action and community of purpose or design;" See - Amritalal Hazra v. Emperor, AIR 1916 Cal 188 at p.196 (E) and - Emperor v. Sheruf-alli Allibhoy, 27 Bom 135 at p.138 (F).

19. The word transaction in S.235 Cr.P.C., has a very wide connotation and covers a series of acts connected together; see - Emperor v. Nga Aung Gyan, AIR 1924 Rang 98 at p.99 (G), and also - Girimalla v. Govt. of Mysore, 3 Mys LJ 237 (H) and in re Subba Gowda, 10 Mys LJ 342 (I). Community of purpose and continuity of action hava been observed to be a test of the singleness of a transaction; see:- Sambasiva Mudali v. Emperor, AIR 1931 Mad 225 (J). The fact that offences are committed at different times does not necessarily show that they may not be so connected as to fall within S.235, Cr.P.C., (Act 5 of 1898). The occasions may be different, but there may be a continuity and a community of purpose. The real and substantial test by which to determine whether several offences are so connected as to form the same transaction depends on whether they are so related to one another in point of purpose, or as cause and effect, or as principal and subsidiary acts, as to constitute one continuous action see 27 Bom 135 (F). In - Emperor v. Balwant Kondo, 14 Bom LR 41 (K), the accused was charged with having caused grievous hurt to a person for the purpose of extorting from him confession of his guilt and having, after his death from the injuries, prepared false official records to conceal the cause of his death. He was tried at one trial for the offences under Ss.3S1, 192 and 212 and convicted on all the charges. It was argued that the trial was bad on the ground of misjoinder of charges. It was held that there was no misjoinder as the case fell under the plain words of S.235 and its illustration (f) of the Criminal Procedure Code 1922. The transaction of making a series of false entries so as to attribute another cause for the death was in continuation of and pursuant to the same transaction of voluntarily causing grievous hurt with the view of extorting confession. See 14 Bom LR 41 (K).

20. What one has to see therefore in this case is if the circumstances of this case disclose that all or how many of the offences were committed in the course of the same transaction. A retail kerosene dealer like the accused is selling kerosene oil to a single customer for excessive price on a solitary occasion may be committing several offences; (a) selling at excessive price; (b) not issuing a receipt as required to be done by him at the time of such sale; (c) not entering the same in his account-book as required under some rules and (d) selling it without insisting on a ration card. These are series of acts which in our view are so closely connected together as to form a single transaction. There might be some room for holding that the offence committed by the accused in not displaying a notice board outside his shop may not be connected with the transaction. But the rest are so inter-connected that it is difficult to hold that they are merely offences of the same kind committed within the space of 12 months and are distinct offences for which there should be a separate charge and a separate trial. If the accused had sold kerosene to several separate individuals who did act hold ration cards on the same day or even at the same time, it might be argued that those acts are not connected together as to form the same transaction. We are, therefore, of the opinion that the learned Sessions Judge was wrong in holding the trial was bad on account of misjoinder of charges.

21. The learned Sessions Judge disagreed with the learned City Magistrate who held that the notification issued by the Deputy Commissioner fixing the rates at which the kerosene oil was to be sold was defective and that the conviction based on such a defective notification could not be maintained. It is not contended for the accused that the Deputy Commissioner had no power to fix the rates at all under the Kerosene Control Order. Rule IX(b) authorises the Controller to fix from time to time prices at which kerosene may be sold by each wholesale dealer. Rule XV provides that a registered retail dealer shall comply with all the directions that may be given to him by the Controller or other officer authorised by him in regard to the purchase or the selling price and/or the storage of kerosene; and it is not and cannot be disputed that the directions that may be given to a registered retail dealer by a Controller may and ought to include a direction that he must sell kerosene at a particular price as one of the most important and main objects of the Control Order. The notification in question which is published in the Mysore Gazette of 22-7-1948 recites that in exercise of the powers conferred on him under R.IX(b) of the Kerosene Control Order, 1948, the Deputy Commissioner notifies that with immediate effect the wholesale and retail selling prices of kerosene in Bangalore City are revised and fixed as and in that notification and that any person selling kerosene oil at rates higher than those specified in the notification would render himself liable for punishment.

22. It Is contended by the learned Advocate-General that the mere mention of R.IX(b) in that notification does not take away the validity of the notification under powers which the Deputy Commissioner had undoubtedly possessed to fix the selling prices of kerosene; that the power of fixing wholesale selling prices is given in R.IX(b) and of fixing the retail selling prices is given under R.XV and that the notification fixes both the wholesale and retail selling prices and the accused who was a person licensed to sell kerosene oil and registered as a retail dealer if he sold kerosene oil at higher rates rendered himself liable for punishment under that notification. It was not necessary for purposes of finding him guilty of selling kerosene oil at higher rates to look into his mutchalika or agreement which merely reiterated certain other duties which were cast on him. He was bound to comply with all the directions that may be given to him by the Controller and one of those directions was in relation to the selling price and was conveyed to him as to all other retail dealers by the notification in question. That the mere mention even of a wrong section or provision of law is not a deciding factor and that the Courts always look to the substance and not form of the matter has been held by this Court in - Cr.A. No.43 of 1948-49 (L). Reference is made in that judgment to - In re Boothroyd, (1846) 153 ER 736 at p.740; Halsburys Laws of England, Vol.31, p.497, para.635 where it is pointed out that omission may be supplied in certain cases in interpreting a statute; Maxwells book on Interpretation of Statutes p.258 where it is Observed that clerical errors may be read as amended as where for instance, an Act refers to another by title and date and mistakes the latter; - Salmon v. Duncombe, (1886) 11 AC 627 at p.634 (N), where it has been held that where the main object and intention of a, statute are clear it must not be reduced to e nullity by the draftsmans unskilfulness or ignorance of law, except in the case of necessity or the absolute intractability of the language used; and - (1886) 13 Ch D 607 at p.615 (Sic) and - Knill v. Towse, (1889) 24 QBD 186 at p.195 (O). In that case the Government had delegated certain of their powers under the defence of india act to the Deputy Commissioners under a notification which purported to have been issued under sub-s.(5) of S.2, Defence of India Act. It was contended by the accused who had been punished under R.89(4) and (6), Defence of India Rules that sub-s.(5) of S.2 of that Act could only authorise the Government of Mysore to delegate their powers to persons not subordinate to that Government and that the Deputy Commissioner who has issued the notification concerned in that case was not properly authorised to do so by virtue of the mention of the wrong section in the notification by the Government. After a detailed examination of the law on the point this Court held that the delegation under the Government notification and the Deputy Commissioners notification consequent thereon were both valid and the former should be read so as not to make the delegation ineffective or invalid. We are bound by that decision and if we may say so with respect we fully agree with its reasoning and it covers the point now raised. In this connection Mr. Rangaswamy Iyengar has quoted a case reported in - Public Prosecutor v. Subba Rao, AIR 1945 Mad 331 (P). In that case as pointed out by the Learned Advocate-Genera! there has really been no discussion on this point and the mention of a wrong rule in the Defence of India Act to a notification appears to have been referred to merely as one of the several circumstances which would justify non-interference by the High Court with an order of acquittal.

23. Mr. Rangaswamy Iyengar has urged that this is not a case in which we ought to interfere with an order of acquittal. In - The State of Msyore v. Bassappa, AIR 1953 Mys 75 (Q). which was decided recently we have held following - Surajpal Singh v. The State, AIR 1952 SC 52 (R) and - Sheo Swarup v. Emperor, AIR 1934 PC 227 (S), that this Court has now ample power to review even in the case of an acquittal. We have also referred to - Emperor v. Mahomed Khan, AIR 1930 Lah 403 (T) and - Emperor v. Chattar Singh, AIR 1933 Pesh 27 (U), for holding that in the case of an acquittal by an appellate Court the usual rigour of the rule against interference with an order of acquittal does not apply. In the present case, the learned City Magistrate has carefully gone into the evidence. The learned Sessions Judge has not similarly appreciated and in fact has not discussed the evidence of the prosecution witnesses at all. His decision on the questions of law raised before him are clearly erroneous and is contrary to the decision of this Court in - Cr. A. No.43 of 1948-49 (L). The offence to our mind is a serious one and we therefore think that this is a proper case in which we should set aside the order of acquittal; and we order accordingly.

24. The next question is what are the offences with which the accused can be properly convicted. So far as the charges against him with regard to not having displayed a board in his premises or maintaining accounts we think that the evidence for the prosecution is not conclusive and that he must be acquitted of those charges. There is, however, no doubt that he has not issued a receipt and has sold the oil to P.W.8 who had no ration card with him. We, therefore, convict the accused in respect of charges (1), (2) and (3) framed by the learned City Magistrate.

25. As regards sentence it is represented for the accused that the Kerosene Control Order has since ceased to exist, that the offence took place a long time back and that this Court may treat his client leniently if it cannot confirm the order of acquittal. We do not think that this is a proper case in which the accuseds conduct could be viewed with such complacency. Kerosene oil is an article of daily consumption of the poor. There were times when it was very scarce and extremely hard to get and the Kerosene Oil Control Order was issued to meet that situation. In these days of short supply many of the control orders are still in force and there is no knowing when Kerosene Control Order may have to be re-enforced. The accused is not merely an ordinary merchant who sold his goods for higher prices in black market but a licensed dealer who was appointed by Government to conduct retail sales of an essential commodity. He has abused his position by selling the oil at the heavy rate of Rs.9-3-0 a tin as against the controlled rate of Rs.5-5-6 per tin; and but for the prompt and effective action taken by the Anti Corruption Measures Department and its officers P.Ws.3 and 4, and P.Ws.5 and 14 the accused might have continued to make excessive and unlawful gain from the consumers of kerosene oil. The circumstances disclose a flagrant case of black-marketing. The learned City Magistrate has sentenced the accused on the first count to undergo R.I. for three months and to pay a fine of Rs.1,000/-and in default to undergo R.I. for a further period of three months; and on the other counts he has sentenced him to pay a fine of Rs.250/- on each count and in default to R.I. for one month. That sentence is, in our opinion, not excessive. We accordingly sentence the accused to R.I. for three months and to pay a fine of Rs.1,000/- on the first count and in default of payment of fine to R.I. for further three months. On counts 2 and 3 he is sentenced to a fine of Rs.250/- on each count and in default of payment of those fines to undergo R.I. for one month. The accused will surrender himself and serve out the sentence. Appeal allowed. AIR 1953 MYSORE 84 (Vol. 40, C.N. 41) "Winifred Colaco v. Nanjappa" MYSORE HIGH COURT Coram : 1 MEDAPA, C.J. AND VASUDEVAMURTHY J. ( Single Bench ) Winifred Colaco and others, Appellants v. Nanjappa Gowda and others, Respondents. Appeal No.8 of 1949-50, D/- 13 -11 -1952. (A) Limitation Act (9 of 1908), Art.134 - LIMITATION - Starting point of limitation. In Art.134, col. 3, there is no reference to the majority or minority of the plaintiff. It cannot therefore be said that the plaintiffs knowledge of sale during his minority is no knowledge at all and that the computation of the time must be made, not from that date, but from the date of his attaining majority. Observations to the contrary in 11 Mys LJ 186, held to be obiter. (Para 4) Anno : Lim. Act, Art.134, N.16. (B) Limitation Act (9 of 1908), S.6 and S.8 - LIMITATION - Combined effect of sections. The combined effect of Ss.6 and 8 would be to enable a person, who has been dispossessed during his minority, to file a suit within three years of his attaining majority or within the usual period of time ordinarily allowable to a major whichever is longer. (Para 4) Anno : Lim. Act, S.8 N.4. (C) Limitation Act (9 of 1908), Art.134 - LIMITATION - "Transfer." Article 134 does not make any distinction between cases where property has been purchased by a person with knowledge of the trust or otherwise. (Para 5) Anno : Lim. Act, Art.134 N.8. (D) Limitation Act (9 of 1908), S.10 and Art.134 - LIMITATION - TRUST - Purchase with notice of trust. Section 10 does not, by reason of the fact that the property was to his knowledge trust property, prevent a purchaser from a trustee, who has paid valuable consideration and who comes therefore within its exception from pleading adverse possession and relying on Art.134. AIR 1923 PC 175, Foll. (Para 7) Anno : Lim. Act, S.10 N.21 Pt.3; Art.134 N.6 Pt.1. Cases Referred : Chronological Paras (A) (36) 15 Mys LJ 1 (B) 51 Mys HCR 140 (C) (06) 3 Cal LJ 306: 33 Cal 511 (D) (32) 11 Mys LJ 186 (E) (29) AIR 1929 All 302 : 1929 All LJ 324 (F) (23) AIR 1923 PC 175 : 46 Mad 751 S. Sreekantaiya, for Appellants; R.V. Srinivasaiya (for No.1) and H. Srinivasa Rao (for Nos.3 and 4), for Respondents. Judgement VASUDEVAMURTHY, J. :- The plaintiff whose age is given as 26 years in the plaint brought a suit in forma pauperis on 30-11-1946 against one Puttaswamygowda, defendant 1, who is now dead and whose legal representatives are defendants 1(a) to 1(c) and against defendants 2 to 4, the minor son and daughter and widow respectively, of one William Colaco, who is now dead. His case was that the suit properties which consist of some wet and dry lands and a coffee garden which belonged to him had been, wrongfully and without any legal necessity or benefit accruing to him, sold away during his minority, by defendant 1, to the deceased William Colaco; and that as that sale was not binding on him, he was entitled to recover their possession from defendants 2 to 4 with mesne profits. He had lost both his parents when he was only 7 or 8 years old and his paternal grand-mother one Kenchamma was bringing him up. As she was very old she had executed a deed of trust in favour of defendant 1, her son-in-law, who had alienated the plaintiffs properties as aforesaid in breach of his trust. The deceased defendant 1 filed a written statement wherein he justified the sale and repudiated the allegations the plaintiff had made against him of misappropriation and breach of trust. As he himself was very old and as the properties of the plaintiff were situated far off, he had found it impossible to manage the coffee estate which had deteriorated badly or to cultivate the lands so as even to pay their kandayam. He therefore sold them away and out of the price purchased other more useful and conveniently situated properties for the use and benefit of the plaintiff. The sale to Colaco was therefore binding on the minor. Defendants 2 to 4 pleaded similarly. For the reasons set out above, defendant 1 had on 4-5-1932 sold the properties which were useless and lving fallow for Rs.3.000/- to the deceased William Colaco. On the same day and for the same sum he purchased some wet and dry and coffee lands for and in the name of the plaintiff. Those were nearer and more conveniently situated. The deceased William Colaco had at great cost and personal exertion brought the lands under cultivation, cleared the forest lands and brought into existence a flourishing coffee estate. The plaintiff could not in any event recover possession without reimbursing them in respect of those improvements which they valued at Rs.10,000/-. They also pleaded that the plaintiffs suit was barred by time.

2. The Subordinate Judge of Hassan made a decree in favour of the plaintiff. He held that the sale in favour of William Colaco was not binding on the plaintiff and that he was entitled to recover possession of the suit properties conditional on his depositing Rs.1,000/- being the estimated value of the improvements. He also held that the suit was not barred by time. Defendants 2 to 4 have appealed.

3. It is contended by Sri S. Srikantiah, learned counsel for the appellants, that the plaintiffs suit is barred by time. The learned Subordinate Judge was of the view that Art.144, Limitation Act, would apply to a suit like the present. But he held that in the present case there was an earlier decision of this Court between the parties in C.R.P. 109/47-48 which required that those twelve years should be calculated from the date of plaintiff attaining majority which would be somewhere in 1938. That decision was by Paramasiviah, J., who was sitting alone and was, in our opinion, nothing more than a mere observation. The plaintiffs suit which had been brought in forma pauperis had been dismissed by the Subordinate Judge as being time barred on the face of it. In revision, that order was set aside and it was directed that the plaintiffs petition to sue in forma pauperis should be registered as an original suit and tried on its merits. In that connection, it was observed by Paramasiviah, J., that the plaintiff may have 12 years within which to bring the suit after attaining majority. It has been held in a case reported in - Mahomed Nooruddin Ali v. Chenniah, 15 Mys LJ 1 (A) that "The point to be considered by a Court, where a petition is presented to file a suit in forma pauperis is whether the allegations as stated in the plaint prima facie show a cause of action for the suit. The Court is not expected to go into the merits of the allegations in the plaint for the purpose of admitting or rejecting the petition to sue in forma pauperis. According to provisions of cl.(d) of R.5 of O.33, Civil P.C., an application has to be rejected only when the allegations made in it do not show a cause of action." In making the observation referred to earlier, Paramasiviah, J., must be taken to have had that limited scope in view. He did not consider the provisions of Ss. 8 and 10 and Art.134. Limitation Act, nor had he any evidence before him.

4. Sri R.V. Sreenivasaiya, learned counsel for the respondents, contends that Art.134. Limitation Act, applies to the suit as it is one to recover possession of immovable property conveyed in trust to defendant 1 and afterwards transferred by the trustee and that the plaintiff had 12 years, within which to bring a suit, from the date when the transfer became known to him. He urges that as in this case the plaintiff attained majority only in or about 1938. he must be deemed, to have come to know of the transfer only then and this suit brought in 1946 would therefore be within time. On the plaintiffs own admission, it is clear that he came to know of the sale by defendant 1 on or before 14-6-1932. This is clear from an application, signed by him, as per Ex.E, to the Deputy Commissioner, Hassan District, in that application he has complained to the Deputy Commissioner that defendant 1 has sold away his properties to Colaco and that the latter is disturbing his possession and he prays the Deputy Commissioner to take possession of his properties and manage them as his guardian. He was then about 14 years of age as mentioned in that application. The only explanation which the plaintiff has given about that application is that he filed it under instructions from defendant 1. It is urged for the plaintiff that as he was a minor on the date of Ex.E, the knowledge of the sale referred to in Ex.E was no knowledge at all and that the computation of the time must be made, not from that date, but from the date of his attaining majority. We think there is really no warrant for holding so. In Art.134, Col. 3, there is no reference to the majority or minority of the plaintiff. The combined effect of Ss. 6 and 8 would be to enable a person like the plaintiff, who has been dispossessed during his minority, to file a suit within three years of his attaining majority or within the usual period of time ordinarily allowable to a major whichever is longer.

5. Rustumji in his Law of Limitation, Vol. II (1938 Edn.), page 1192, observes: "Where a trustee improperly sells trust property and the cestui que trust is at the time of such sale under a disability the cestui que trust is entitled in computing the limitation under Art.134 to take advantage of the disability provisions i.e. Sec.6" (which is of course subject to S.8). In - 51 Mys HCR 140 (B), it has been held by this Court that: "It cannot be stated as a general proposition that there can be no adverse possession of property which belongs to a minor or lunatic during the continuance of the minority or lunacy. Where a person gets into possession of a minors property set with a view to protect the minor and manage his property either as a bailiff or an agent, or as a guardian, but on his own account, without recognising the rights of the minor, his possession of the property is adverse to the minor even during the minority." This case has been referred to and distinguished by Paramasiviah, J., in his order in the Civil Revision Petition on the ground that in the sale deed in favour of Colaco the deed of trust has been specifically referred to. But Art.134 does not make any distinction between cases where property has been purchased by a person with knowledge of the trust or otherwise. See - Shvama Charan v. Abhiram Goswami, 33 Cal 511, at p.527 (C), where it has been held that the language "assigns for valuable consideration" includes cases where the purchaser may have known that the property which is purchased had been originally conveyed in trust and that the suit to recover property from the alienee must be brought within 12 years from the date of the alienation. In this connection, the case in - Gurulingappa v. Dyaviah, 11 Mys LJ 186 (D) no doubt appears to be in favour of the plaintiff. It has been observed in that case that where on the date of commencement of exclusion the person excluded was a minor he could he held to have become aware of exclusion from the date of his attaining majority. That decision has, however, been refereed to in - 51 Mys HCR 140 (B) and at page 144 it has been observed by the Bench that those observations are mere obiter. We agree with respect with that view, as on the facts found in - 11 Mys LJ 186 (D) the plaintiff had not been shown to have been excluded from possession for 12 years and appears to have been a minor even on the date of suit. That observation in - 11 Mys LJ 186 (D) is based on a decision in - Niranjan Prasad v. Beharilal, AIR 1929 All 302 at p.305 (E) where a similar observation has been made without any discussion on the matter. Moreover that decision was with regard to Art.127 which prescribes a period of 12 years for a suit by a person excluded from joint family property to enforce a right to a share therein. Time begins to run for such a suit when the exclusion becomes known to the plaintiff. The question as to when and how a person is actually excluded by the other members of his joint family from his right to a share in joint family property or prevented from possessing, enjoying and exercising acts of ownership in respect of his share may probably not be so easy or capable of being known or realised by a minor who cannot legally claim to exercise all the usual acts attributable to ownership and possession. But the fact of a transfer by his trustee or guardian oftentimes to a stronger who has paid consideration may not stand on the same footing. In this context Art.126 which prescribes 12 years for a suit by a son to set aside his fathers alienation of ancestral property from the date when the alienee takes possession nay be compared with say, Art.44 winch prescribes three years for a suit by a ward from the date of his attaining majority to set aside a transfer of property made by his guardian which makes no reference to the date of his knowledge of the transfer.

6. The plaintiff followed up Ex.E by another application, Ex.G to the Deputy Commissioner on 25-2-1937 by which date he must have clearly attained majority according to the age given in Ex.E. It is not the ease of the plaintiff that he signed Ex.E without knowing its contents or that he was not then aware that his properties had been sold away by defendant 1. If Art.134 is held applicable to the suit, there is no doubt that the plaintiffs suit is bound to fail.

7. Sri Srinivasaiya has sought to rely on S.10, Limitation Act, to contend that for a suit like the present where the defendant has purchased the properties from the trustee with full knowledge of the trust there can be no bar of limitation. There is no doubt that Ex.III the sale deed in favour of Colaco expressly refers to the trust deed Ex.I. In fact, it is contended before us. and we think rightly, for the appellants that it must have been in pursuance of an authority or power given in the deed of trust to exchange the then existing properties of the minor cestui que trust for better ones or ones more advantageous or convenient to the minor, that Ex.III, the sale by defendant 1 to Colaco, and Ex.II, the sale by defendant 1 to the minor, were effected on the same day. Section 10, Limitation Act, provides that no suit against a person in whom property has become vested in trust for any specific purpose or against his legal representative or assigns (not being assigns for valuable consideration) for the purpose of following in his-or their hands such property or the proceeds thereof or for an account of such property or proceeds shall be barred by any length of time. In - Subbaiya Pandaram v. Mahomed Mustafa, AIR 1923 PC 175 (F), it has been held by their Lordships of the Privy Council that S.10, Limitation Act does not, by reason of the fact that the property was to his knowledge trust property, prevent a purchaser from a trustee, who has paid valuable consideration and who comes therefore within its exception from pleading adverse possession and relying on the provisions of the limitation act (i.e. Art.134 or 144) which limit the time within which a suit must be brought for its recovery. We have therefore to see if in this case Colaco is an assignee for consideration, and there can be no doubt at all that he is. The sale in his favour was for Rs.3,000/- and it was stipulated in the sale deed that the consideration was to be paid before the Sub-Registrar. Exhibit II the sale deed by which defendant 1 came to convey his properties in favour of the plaintiff was also executed and registered on the same day. The sum of Rs.3,000/- payable as consideration under Ex.III was got expressly recorded in Ext. If by the Sub-Registrar, as having been paid in cash to defendant 1 in his presence by William Colaco on behalf of the plaintiff Nanjappa. In pursuance of this recital Ex.III was suitably altered by the addition of a recital that the consideration for it would he paid under Ex.II. For the plaintiff-respondent it was urged that there was evidence in this case, on which the learned Subordinate Judge had found, that though Ex.II was executed by defendant 1 in favour of the plaintiff, possession of the properties conveyed under it continued to remain and is even now with defendant 1 and his legal representatives. But that could not render the sale under Ex.II nominal or a sham transaction, much less convert the sale under Ex.III into one without any consideration. Defendant 1 has denied in his written statement that he drove out the plaintiff from his house and ceased to protect him shortly after Ex.II as alleged in the plaint. He has further pleaded that he continued to live with him and under his roof till 2 years before suit. Defendant 1s eldest son, defendant 1(a) Mallegowda, has deposed that till four years ago he (plaintiff) was in their house; the witness was not aware that his father executed any sale deed of properties in favour of the plaintiff and his sister but he had been informed to that effect and he had no objection to give them away to the plaintiff. In the light of this evidence, it is idle for the plaintiff to contend that the sale in favour of Colaco was without valuable consideration, and in that view S.10 would in no. way help the plaintiff as against Colaco and his heirs, though it might aid him in a suit against defendant ls heirs in respect of the properties, or the proceeds of properties conveyed under Exs II and III respectively.

8. In the result, we think that the plaintiffs suit must be held to be out of time. In this view, there is no need to consider the merits of the plaintiffs case, though it may be observed that defendant 1 does not appear to have been imprudent or much less dishonest in bringing about the sales under Exs.II and III which really amount to an exchange. This appeal is allowed and the plaintiffs suit is dismissed with costs throughout as against defendants 2 to 4, defendants 1 (a) to 1 (e) bearing their own. The court-fee payable to the Government will be recovered from the plaintiff and the charge for the same against the suit properties is vacated. Appeal allowed. AIR 1953 MYSORE 87 (Vol. 40, C.N. 42) "Siddaveerappa v. Jalal Khan" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Siddaveerappa and another, Petitioners v. Jalal Khan and another, Respondents. Civil Revn. Petn. No.649 of 1951-52, D/- 6 -1 -1953. (A) Civil P.C. (5 of 1908), O.21, R.89(b) - SALE - Amount to be deposited. AIR 1934 Lah 790, Dissented. The amount to be deposited under R.89(b) is the amount mentioned in the sale proclamation and the solatium although the decretal amount may have been wrongly stated in the proclamation as being more or less than the original decree amount. (Paras 3, 4) Anno C.P.C., O.21, R.89 N.18. (B) Civil P.C. (5 of 1908), O.21, R.92 - SALE - LIMITATION - Confirmation before expiry of 30 days - Starting point. Limitation Act (9 of 1908), Art.166. Sale cannot be confirmed within 30 days from the date of acceptance of the bid which date must be deemed to be the date of the sale and not the actual date on which the sale was held. (Para 4) Anno : C.P.C., O.21, R.92 N.12; Lim Act, Art.166 N.21. Cases Referred : Chronological Paras (A) (34) AIR 1934 Lah 790: 154 Ind Cas 641 (B) 36 Mys HCR 284 M. Sadanadaswamy, for Petitioners; Nittoor Srinivasa Rao, for Respondent 1. Judgement This is a revision petition against the order in Misc. Appeal No.27/58-51 on the file of the Additional District Judge, Mysore, setting aside the order of the learned Munsift Nanjangud, in Execution Case No.1329/46-47 and confirming a sale held in that execution case.

2. The property concerned was brought to sale on 19-5-48. The decree-holder had applied for permission to bid and permission had been given for purchasing the property for a sum not less than Rs.700/-. A stranger purchaser however purchased the property for Rs.450/-. The Process Nazir who held the sale did not accept the bid and reserved the right of accepting the bid but placed the matter before the Court. The case came up before the Court on 28-5-48. On that date, the judgment-debtor stated that he would deposit the decree amount due to the decree-holder in case the acceptance of the bid was postponed. The case was thereafter brought up on a subsequent date. The judgment-debtor had not paid the money as promised. The bid was accepted and the sale was also confirmed on 21-6-48. On appeal, this order was confirmed but when the matter came up before this Court in revision against that order it was pointed out that "since there was no acceptance of the bid till 21-6-48, the sale is deemed to have been accepted on that date, and hence, the confirmation of the sale without giving time to the parties to file an application either under O.21, R.89 or R.90 is incorrect and untenable." The order of the learned Munsiff was therefore set aside. It was represented that the amount deposited was sufficient to satisfy the decree and it was felt that if it was so, there would be no need for further proceedings. As however it was not clear that the amount deposited subsequently was sufficient to satisfy the decree the case had to be remanded.

3. The Courts below proceeded to consider whether the amount deposited was sufficient to satisfy the requirements of a deposit under O.21, R.89. The learned Munsiff has held that the amount that has to be deposited under O.21, R.89 is the decree amount due to the decree-holder and as such he has cancelled the sale and ordered satisfaction of the decree in view of his finding that what had been deposited is sufficient to cover the decree amount. The learned Additional District Judge before whom this matter came up in appeal has held that what has been deposited is the amount mentioned in the sale proclamation and not the decree amount. The learned Additional District Judge is no doubt correct in holding that what has to be deposited under O.21, R.89 is the amount mentioned in the sale proclamation as mentioned in Cl.(b) of that rule. The learned Munsiff relies upon the wording of that rule which is as follows: "for payment to the decree-holder the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered less any amount which may since the date of such proclamation of sale, have been received by the decree-holder......". It is clear that the rule lays down that the amount that has to be deposited is that mentioned in the sale proclamation. In fact it will be found that the amount due under the decree on the date of an application under O.21, R.89 will be much more than the amount mentioned in the sale proclamation on the date of fee deposit under O.21, R.89 as subsequent interest and costs incurred subsequent to the drawing of the sale proclamation will have to be included. All the same the Code has purposely confined the amount to be deposited under O.21, R.89 to what is mentioned in the sale proclamation. There is evidently a good reason for the Code making a provision that the amount that has to be deposited is that mentioned in the sale proclamation rather than the decree amount and that the reason is that it may not be easy for the judgment-debtor to find out within limited time he has, the exact decree amount due to the decree-holder and it will be very much easier for the judgment-debtor to deposit what is mentioned in the sale proclamation as this is a definite amount while the decree-holder is in no way prejudiced as he can later on recover the balance. It may be in some cases that by mistake the amount mentioned in the sale proclamation is much more than what is really due to the decree-holder but in such cases nothing comes in the way of the judgment-debtor depositing the amount in the sale proclamation requesting the Court to pay the amount due towards the decree to the decree-holder and the balance to him. Though the learned Munsiff has rot relied on the decision reported in - Uda Bai v. Ram Autar Singh, AIR 1934 Lah 790 (A) he could have very well retted on it as it has been held in that case that: "Where the decretal amount is wrongly stated in the proclamation of sale through mistake as being less than the original decretal amount, the judgment-debtor cannot be allowed to take advantage of such a mistake. Therefore if he deposits the amount less than the decretal amount taking advantage of such a mistake he does not comply with the provisions of R.89." With very great respect, I would rather follow what is laid down in the Code itself rather than what has been laid down in this decision. In cases of this kind the amount to be deposited under O.21, R.89 (b) is the amount mentioned in the sale proclamation and the solatium and not the decree amount.

4. As has already been held in - 36 Mys HCR 284 (B) that the date on which the bid was accepted by the Court must be deemed to be the date of the sale and that the actual date on which the sale was held should not be taken as the starting point. As the amount deposited falls short of the amount mentioned in the sale proclamation the sale has to be confirmed though the amount is said to be sufficient for satisfying the decree. It is contended that the amount mentioned in the sale proclamation is more than the decree amount and is not the correct amount and the sale is liable to be set aside. That however is a matter that does not arise at this stage and no application for that purpose has been filed. There is however substance in the contention that no such application could have been filed as the sale was confirmed on the day the bid was accepted. The learned Munsiff should have after accepting the bid posted the case beyond 30 days from the date of confirmation to enable the judgment-debtor to file an application under O.21, R.89 depositing the amount mentioned in the sale proclamation and the solatium or to file an application to set aside the sale under O.21, R.90. The learned Munsiffs failure to do so has deprived the judgment-debtor an opportunity to file such applications as the sale was confirmed on the date of the acceptance of the bid. The right of the judgement debtor cannot be taken away by the Court confirming the sale within 30 days, from the date of acceptance of the bid. The orders of the Courts below are therefore set aside under the circumstances of the case. To avoid any further confusion the order accepting the bid along with the order confirming the sale is set aside; the learned Munsiff will take the execution case again on his file and after notice to the parties pass an order in the manner in which he ought to have done, that is he will accept the bid and post the case for confirmation, to some date beyond 30 days from the date on which he accepts file bid. It will follow that in case such an amount as is necessary to make up the amount mentioned in the sale proclamation is deposited within 30 days of the said order the sale will have to be set aside. If, however, the amount now in deposit is sufficient to satisfy the decree he will direct satisfaction of the decree and it is unnecessary for him to accept the bid at all and the sale held will stand cancelled. The parties will bear their own costs throughout subsequent to the previous order of remand and up to date. Order accordingly. AIR 1953 MYSORE 89 (Vol. 40, C.N. 43) "Khatoon Bee v. Ameena Bi" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) Khatoon Bee, Appellant v. Ameena Bi and others Respondents, Appeal No.288 of 1948-49, D/- 31 -8 -1951. (A) Civil P.C. (5 of 1908), O.5, R.2 and O.41, R.1 - ADVOCATE - APPEAL - Objection to authority of agent. Where the parties to a suit join issues, adduce evidence and the matters in controversy are adjudicated upon after a full trial witbast any objection as to the authority of the person to file the suit on plaintiffs behalf the objection as to the validity of the power of attorney cannot be entertained for the first time at the hearing of the appeal. (Para 2b) Anno :- C.P.C.,O.3, R.2, N.4; O.41 R.N 12 (B) BENAMI TRANSACTION - Husband and wife - Benami. Where a husband purchases certain property in the name of his wife, the consideration for the sale proceeding from the husband, it does not necessarily follow that the transaction is benami, since payment of the purchase money is not a conclusive but only a vital test to determine the nature of transaction. The surrounding circumstances, the position of the parties and their relation to one another, the motives which could govern their actions, and their subsequent conduct are all taken into account to decide whether the transaction is benami. Though there may be no presumption of advancement in such cases in India, very little evidence of intention would be sufficient to turn the scale. 35 IA 107; AIR 1932 PC 20 and AIR 1934 Mad 671, Rel on. (Paras 3a, 3b and 3c) Cases Referred : Chronological Paras (A) (08) 35 Ind App 104 : 30 All 258 (PC) (B) (32) AIR 1932 PC 13 : Luck 556 (PC) (C) (34) AIR 1934 Mad 671 : 153 Ind Cas 478 A. Sri Kankayya - for Appellant; A.V. Shankara Rao - (for Nos.1 to 6); W. Ekambaram (for No.9) and R. Narayanappa (for No.M) - for Respondents. Judgement The appellant is the 2nd wife of one Mohamad Sheriff Saheb who died in Civil Station on 7-7-1944 leaving besides the appellant and her two children, the third wife by name Amina Bee, children by her and some children by his deceased first wife. The third wife and her children sued "the children of Mohamad Sheriff by the first wife, the appellant and her children for partition and possession of the share due to them under the Mubammadan Law in the properties of Mohamad Sheriff set forth in two schedules, Sch.A relating to items of immoveable property and Sch.B movables. The value of the movables is stated to be more than a lakh. The appellant who was defendant 7 in the suit claimed item No.5 of the A schedule as her absolute property not liable for partition and pressed for an item not included in A schedule being added to the properties to be partitioned. The omitted item stands in file name of plaintiff 1. Both the pleas were negatived by the learned District Judge and this appeal is concerned only with item 5 of the A schedule. 2a. On behalf of the appellant the decree of the learned District Judge was attacked firstly on the ground that the suit itself is sot maintainable as it was filed not by plaintiff 1 but by her father without proper authority and secondly on the ground that the finding against the appellant in regard to item 5 is vitiated by mis-appreciation of the evidence and wrong inferences from proved facts. 2b. The first point is based on the terms of the power of attorney executed by plaintiff 1 in favour of her father to file and prosecute the suit. Though at first existence of the power of attorney itself was doubted as it is not available in the records of this case and copy of this though applied for could not be given to the appellant. Counsel for respondent has pointed out that it has been exhibited in another case between the parties. It was, however, contended that the power of attorney is to be strictly construed to determine the rights of the agent and so construed he can be deemed to have had authority to file the suit Only on behalf of plff.1 and not on behalf of plff.1 as next friend of her children plaintiffs 2 and 3. The construction is rather strained and the suit cannot be thrown out even if the rigid construction sought for by the appellant is adopted as plaintiff 1 is admittedly entitled to a share and the shares of plaintiffs 2 and 3 will have to be considered even if they were not the plaintiffs. No objection was taken either in the lower Court or in the grounds of appeal to the institution of the suit. The parties joined issues, adduced evidence and the matters in controversy are adjudicated upon after a full trial. In view of all this, the appellant cannot at this stage insist on a critical scrutiny of the terms of the power of attorney. The objection on this account is untenable. 3a. The finding on the question of title which is more important requires serious consideration. Admittedly the property was purchased in the name of the appellant as is seen from Ex.4 dated 25-4-1932. The consideration for sale is stated to be Rs.3000/-. Issue No.4, as it standi throws the burden of proving that it is not her property rightly on the plaintiffs as according to them the sale in favour of the appellant was benami. In arriving at a finding that the safe was benami the learned Judge seems to have largely been influenced by the endorsement on the sale deed and the recital in the prior agreement of sale that sale price was paid toy Mahomad Sheriff and has failed to examine whether there was any reason for Mohamad Sheriff to purchase one property in particular to the name of his wife under Ex.4. The only evidence with regard to Exhibit 4 is that of the scribe Nanjundiah. (After discussion of the evidence the judgment proceeds :) The evidence does not preclude the possibility of the appellant having paid the sale price through the agency of her husband and this is strengthened lay the absence of any reason for a benami purchase, the conduct of Mohamad Sheriff in allowing the khata to be made out in appellants name and not showing that he had any right to the property. Assuming for the moment that Mohamad Sheriff paid the consideration it does not necessarily follow that the transaction was benami since payment of the purchase-money is not a conclusive but only a vital test to determine the nature of the transaction. 3b. As observed in - Dalip Singh v. Nawal Kunwar, 35 Ind App 104 at p.107 (A) "the surrounding circumstances, the position of the parties and their relation to one another, the motives which could govern their actions, and their subsequent conduct are all taken into account to decide whether the transaction is benami". Seeing the number of the properties specified in the A schedule, it is curious that Mohamad Sheriff should have thought of purchasing only one property under a sale deed in favour of his wife. Apparently there is no reason why he particularly resorted to this mode of purchase for a single item. Nor is any suggested on behalf of the plaintiffs. Mohamad Sheriff does not seem to have had the custody of the original sale deed and did not obtain any document or voucher from the appellant acknowledging his title. The original agreement of sale was executed in his favour and if really he wanted to be or was the owner of the property why he is not mentioned as purchaser in the sale deed is a mystery. The probability is that after the date of Ex.Q he must have changed his intention or the wife must have desired to obtain the property to herself. The conduct of Mohamad Sheriff towards the third wife indicates a disposition on his part to make each of his wives absolute owner of certain items so that there may be no difficulty for each of them to be independent and separate and in the case of the appellant there was special cause for anxiety to make provision on account of her blindness. It is possible that Mohamad Sheriff may have paid the money but with the intention that it should be the absolute property of his wife i.e. the appellant. 3c. It was argued on behalf of the respondents that the theory of advancement according to English Law cannot be applied in India. As observed in - Mahomed Sadiq Ali Khan v. Fakr Jahan Begam, AIR 1932 PC 13 at P.20 (B) which relates to a case of gift in a Muhammadan family "though there may be no presumption of advancement in such cases in India, very little evidence of intention would be sufficient to turn the scale." The decision in - "Tulsi Ammal v. Official Receiver Coimbatore, AIR 1934 Mad 671 (C) may also be usefully referred to. The learned Judge states that "the source from which the money comes furnishes undoubtedly a valuable test, but to regard it as the sole or conclusive criterion, is clearly wrong. This is precisely the mistake which the lower Courts have made", and though the husband supplied the consideration for the documents in dispute in that case it was held "True, under the Indian Law there is no presumption of advancement, but still the relationship of the parties and the motives that operated are factors which must be taken into consideration." The question being mainly one of intention, we are of opinion that, in this case, having regard to tile situation and relationship of the parties, absence of clear evidence to show that Mohamad Sheriff paid out of his own funds the purchase money and gift of a house toy Mohamad Sheriff to his third wife, the appellant was intended to be and is the owner of tile property and not the benamidar.

4. The decree of the learned District Judge is, therefore, set aside and the suit dismissed so far as item 5 of the plaint A schedule is concerned. Parties will bear their own costs in relation to this item. The application for additional evidence dismissed as being belated. Decree modified AIR 1953 MYSORE 90 (Vol. 40, C.N. 44) "Kamesam, Dr. v. Rangaraju Naidu" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Dr. S. Kamesam, Plaintiff-Petitioner v. S. Rangaraju Naidu, Defendant-Respondent. Civil Revn. Petn. No.202 of 1951-52, D/- 31 -8 -1951. Civil P.C. (5 of 1908), S.151 - INHERENT POWERS - CIVIL PROCEDURE - Inherent power to stay suit. Mysore Civil P.C., S.10, S.151. Courts have power to stay suits under S.151, C.P.C. in proper cases when S.10 is not applicable. Thus the Court in Mysore State has inherent power under S.151 to stay the suit pending decision of a suit instituted in court outside Mysore in the ends of justice or to prevent abuse of the process of the Court. AIR 1947 Lah 28 and - AIR 1948 Nag 297, Rel on. (Para 2) Anno: C.P.C., S.151 N.2. Cases Referred : Chronological Paras (A) (47) AIR 1947 Lah 28 : 224 Ind Cas 532 (B) (48) AIR 1948 Nag 297 : ILR (1948) Nag 403 K. Nanjundayya, for Petitioner. Judgement This is a Revision Petition against the order in O.S. No.27/49-50 on the file of the principal District Judge, Bangalore, on I.A.I. directing a stay of the suit pending decision of O.S. No.8, of 1947, a suit filed in the Court of the Subordinate Judge, Salem. It will be noticed that a suit-was filed in the year 1947 by the plaintiff in Salem on the foot of a document, and another suit was-filed in respect of the same cause of action and. based on the same document, in O.S. No.27 of 1949-50 on the file of the District Judge, Bangalore. The point that the two suits are based on the same cause of action is not denied, though much more than what is claimed in this suit has been claimed in the suit filed in the Sub-Court, Salem. The question whether a suit could be filed at Salem is under consideration and the defendant in this case has filed an application for stay of the present suit till that case is disposed of, under Ss.10 and 151, C.P.C.

2. It is contended that the order was passed when S.10, Civil P.C., in Mysore was applicable, and according to that Section "No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim, litigating under the same title whether such suit is pending in the same or any other Court in Mysore having jurisdiction to grant the relief claimed. Before S.10, Civil P.C. in Mysore could apply, it was necessary to show that the two suite were pending in the Courts in Mysore. In fact, the pendency of a suit in a foreign Court, according to the explanation, did not preclude the Courts in Mysore from trying a suit founded on the same cause of action. It is clear that at the time the order was passed the Court could not have passed an order under S.10 staying the proceedings in the suit filed in that Court pending decision of a suit instituted at Salem. It was also contended that S.151, C.P.C., is not applicable to such cases : but all that could be said in such matters is that S.10, C.P.C., applies to a case where an application is filed for stay of a suit pending decision in another suit filed within Mysore State. When, however, an application was filed for stay of a suit filed in a Court in Mysore State pending decision of a Court outside Mysore, It cannot be said that the Court in Mysore State had no inherent power under S.151, C.P.C., to stay the suit in the ends of justice or to prevent abuse of the process of the Court. The cases reported in - Dwarka Das v. Governor General of India in Council, AIR 1947 Lah 28 (A) and - Laxmi Bank Ltd, Akola v. Harrkisan, AIR 1948 Nag 297 (B) clearly support the view, that Courts have power to stay suits under S.151, C.P.C., in proper cases when S.10 is not applicable. The lower Court rightly exercised its discretion under the powers it had under S.151, C.P.C., to stay the proceedings in a case of this kind.

3. This Revision Petition, therefore, stands dismissed. Revision dismissed. AIR 1953 MYSORE 91 (Vol. 40, C.N. 45) "Halappa v. State of Mysore" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Halappa Gowda, Petitioner v. State of Mysore and others, Respondents. Criminal Revn. Pete. No, 290 of 1951-52, D/- 26 -11 -1952. (A) Criminal P.C. (5 of 1898), S.256 - WARRANT CASE - POLICE OFFICERS - Order for compensation - Exemption of police officers - Village Patel. In Mysore village Patel is recognised as police officer: 27 Mys CCR 136, Rel. on - Report by Patel of commission of offence against Prohibition Act is one given by him not in his private capacity but as police officer - Fact that he did not make the report on information received does not affect matter - Compensation cannot be ordered from him when accused is discharged AIR 1947 Bom 36, Rel. on; 7 Mys LJ 377, Disting. (Paras 2, 3) Anno : Cr.P.C., S, 250 N.3. (B) Criminal P.C. (5 of 1898), S.250 - WARRANT CASE - "Call upon him to show cause". Awarding compensation without having all the evidence that the complainant wants to adduce is illegal though Magistrate is entitled at -any stage to discharge accused. AIR 1928 Mad 169 (1), Foll. (Para 4) Anno : Cr.P.C., S.250 N.10. Cases Referred : Chronological Paras (A) 27 Mys CCR 136 (B) (47) AIR 1947 Bom 36 : 48 Cri LJ 186 (C) 7 Mys LJ 377 (D) (28) AIR 1928 Mad 169 (1) : 29 Cri LJ 114 K.S. Puttaswamy, for B.S. Puttasiddiah, for Petitioner; Advocate-General, A.R. Somanath Iyer, for Respondents. Judgement The Special First Class Magistrate, Sagar, has made a order in Crl. Misc. 3/51-52 directing the petitioner to pay compensation to the two accused who were concerned in C.C. 754/51-52 on his file and whom be acquitted of a charge under S.4(1)(a)(3), Mysore Prohibition Act. The petitioner is a Patel of the village where the alleged offence is said to have taken place and it is not disputed that he gave information to the Police of Sagar who placed a charge-sheet against the accused persons and that the case ultimately ended in favour of the accused.

2. Mr. K. Puttaswamy, learned counsel for the petitioner, contends before me that the learned Magistrate erred in awarding compensation against the petitioner. The petitioner, it is urged, was a Police Patel and reliance is placed on Village Manual, Vol. 1, (1918 Edn.), pp.68 to 81, Chapter III, where his duties are defined by rules. Under R.15(b) it is his duty to report to nearest police station the commission within the limits of the village of all cognizable offences. There is no doubt that in Mysore a Patel like the petitioner has been recognized as being a Police Officer. It has been held by Miller, C.J., and Plumer, J., in - 27 Mys CCR 136 (A), that a village Patel who is made responsible for the duties of the village police under the Mysore Village Rules is a police Patel and that as village Patels in Mysore are not Magistrates the provisions of S.25, Evidence Act, will apply to them as being police officers within the meaning of that section. It has been held in a case in - Mahomed Meera v. Dattatraya Babaji, AIR 1947 Bom 36 (B), by Lokur and Rajadhyaksha, JJ., that S.250 read in conjunction with S.190, Criminal P.C., applies to information given by a police officer if that information can come as a complaint under S.190(1)(a) but not if it amounts to a report under S.190(1)(b) and that although a Police Patel may not be called a member of the Police force under the Bombay District Police Act, 1890, yet when considering the exemption from the operation of S.250 the term "police officer" should be construed, not in its strict technical sense, but according to its more comprehensive and popular meaning - and a Police Patel is to be deemed to be an officer of the Police quite as much as the members of the regular force. Hence the rule which is intended as a wholesome protection for the Police Officer carrying out the duty of reporting a cognizable offence must extend to a Police Patel performing the same duty imposed on him by the Village Police Act, 1867 and that therefore a Village Police Patel making a false and frivolous or vexatious report of a cognizable offence cannot be ordered to pay compensation under S.250, Criminal P.C., to the person or persons reported against. If I may say so with respect, this case lays down a salutary rute. It is possible that in a stray case the Paid, may misuse his powers while making complaints to the Police regarding cognizable offences but such cases can be dealt with by proceedings other than S.250, Criminal P.C.

3. It is contended by the learned Advocate-General that S.250, Criminal P.C., does not in terms apply to a ease like the present. He argues that if in any case instituted upon complaint or information given to a Police Officer or to a Magistrate, the trying Magistrate discharges or acquits all or any of the accused he can award compensation in suitable cases and that in the present case the prosecution was launched on the information given by the Patel and not on the information which the obtained in the course of his duties. I think that would be taking too narrow a view of the matter. If the Patel sees a cognizable offence committed in his presence it cannot be reasonably argued, I think, that an F.I.R. he may give to a Police Officer is not given by him as Patel but in his personal or private capacity. This is not a case where the Patel has made a complaint, say in respect of trespass on his private land or theft of his own private property but it is a complaint made of an offence concerning the public of the village. The learned Advocate-General has also relied upon a case in - 7 Mys U 377 (Q, where this Court has held that there can be no exemption under S.250, Criminal P.C., on the bare score that the Police investigated the case so long as it was done in consequence of the information which was originally furnished by the complainant and which he persisted in maintaining to the end. I do not think that case can have much of an application to the present as the complainant there was a private party and not a Patel. Here the complaint has not been made by the petitioner to the Police in his private or individual capacity but as Patel and it involved no complaint of his own private rights having been infringed but of an offence against public rights or morals, i.e. under the Prohibition Act. I think, therefore, the order of the learned Magistrate cannot be legally supported.

4. There is also another point on which the order cannot be sustained. It has to be observed that though 18 witnesses were cited for the prosecution only 6 witnesses were examined and the other 4 were not examined. I think the petitioner can reasonably complain that he should not be made to pay compensation in a case where all the witnesses for the prosecution have not been examined and over the trial of which he had really no control. It has been held in - Parthasarthi Naicker v. Krishnaswami Ayyar, AIR 1928 Mad 169 (1) (D), that the awarding of compensation under S.250 without having all the evidence that the complainant wants to adduce is illegal. No doubt the Magistrate is entitled at any stage to discharge the accused but that cannot be a ground for awarding compensation to the accused.

5. In the result, this petition is allowed and the order of the learned Magistrate is set aside. The compensation, if any, recovered from the petitioner will be refunded to him if it has not already been paid over to the accused persons. If it has been paid over to them it will be recovered from them and paid to the petitioner. Revision allowed. AIR 1953 MYSORE 92 (Vol. 40, C.N. 46) "Venkatiah v. Kalyanamma" MYSORE HIGH COURT FULL BENCH Coram : 5 MEDAPA, C.J., VENKATARAMAIYA, BALAKRISHNAIYA, MALLAPPA AND VASUDEVAMURTHY, JJ. ( Full Bench ) Venkatiah, Plaintiff-Appellant v. Kalyanamma and others, Defendants-Respondents. Second Appeal No.450 of 1947-48, D/- 15 -12 -1952. (A) Mysore High Court Act (1 of 1884), S.15(2) (as amended in 1952) - HIGH COURT - Competency of reference to Full Bench, Per Full Bench :- By reason of the amendment made in S.15(2) by Act 24 of 1952, any Bench can now refer to a Full Bench any question of law or usage having the force of law, the construction of any document or admissibility of any evidence in any proceeding pending before it even if there be a further appeal under the law for the time being in force. (Para 4) (B) HINDU LAW - ADOPTION - Hindu Law - Adoption - When takes effect. Per Mallappa J.:- If Gotra, Pinda and Riktha cannot be dissociated and the text of Manu EX-142 shows that the effect of adoption on these three should be same, the adopted sons right to what can be said to be his adoptive fathers properties arises, not on the date of his death but on the date of adoption. 54 Mys HCR 12, (FB), held requires reconsideration. (Para 14) (C) HINDU LAW - ADOPTION - Hindu Law - Adoption - Effect on property vested. Per Mallappa, J. :- There is no reason to connect the power of a widow to adopt a son to her husband with vesting or divesting of estates. While an adoption of boy by a widow may be valid it may not divest the estate vested in a person other than the person to whom he is adopted. (Para 17) (D) HINDU LAW - ADOPTION - Hindu Law - Adoption - Two incorrect assumptions. Per Mallappa J. :- The notion that an adoption by a widow must be deemed to have come into existence just before the death of her husband is wrong. Further, to extend the principle oppened to Hindu Law, by stating that a widow must be deemed to have been pregnant from the death of her husband till she takes the boy In adoption dozens of years later and to divest properties vested in the heirs of the last coparcener is opposed to equity and justice. It is neither based on Hindu Law nor on equity and justice. (Paras 22, 24) (E) HINDU LAW - ADOPTION - Hindu Law - Adoption - Divesting of property. Per Vasudevamurthy J. (Quaere) :- If a widow takes a share in a partition and subsequently makes an adoption, and her share cannot be divested by reason of S.9(2) of the Mysore Hindu Law Womens Rights Act, whether the same adoption can divest the property in the hands of the coparcener. (Para 33) Cases Referred : Chronological Paras (A) (48) 28 Mys LJ 271 : 54 Mys HCR 12 (FB) (B) (38) 16 Mys LJ 376 : 43 Mys HCR 415 (C) (12) 17 Mys CCR 145 (D) (38) 43 Mys HCR 438 : 16 Mys LJ 301 (E) (67-68) 4 Bom HC AC 191 (F) (09) 3 fed Cas 809 : 33 Bom 669 (G) (33) AIR 1933 PC 155 : 12 Pat 642 (PC) (H) (75) 3 Ind App 154 : 1 Mad 69 (PC)

(I) (06) 33 Ind App 145: 29 Mad 382 (PC) (J) (63-66) 10 Moo Ind App 279 (PC) (K) (80) 5 Cal 615

(L) (82) 8 Ind App 229 : 8 Cal 302 (PC) (M) (87) 14 Ind App 67 : 10 Mad 205 (PC) (N) (90) 16 Ind App 166 : 17 Cal 122 (PC) (O) (02) 3 Bom LR 738 : 26 Bom 206 (P) (02) 4 Bom LR 315 : 26 Bom 526 (Q) (18) AIR 1918 PC 74 : 41 Mad 855 (PC) (R) (18) AIR 1918 PC 192 : 43 Bom 778 (PC) (S) (37) AIR 1937 Bom 279 : ILR (1937) Bom 508 (FB) (T) (36) AIR 1936 Mad 642: 59 Mad 1064 (U) (35) AIR 1935 PC 95 : 59 Bom 360 (PC)

(V) (32) 39 Mys HCR 27 (W) (43) AIR 1943 PC 196 : 46 Bom LR 1 (PC)

(X) (52) AIR 1952 Mys 129 : ( SA No 322 of 1951-52) (Y) 51 Mys HCR 317 Nittoor Srinivasa Rao, for Appellant; A.S. omanatha Iyer, for Respondents. (Note :- The second appeal against the decree of the Additional Subordinate Judge of Mysore confirming that of the Second Munsiff of Mysore came for orders before a Division Bench of the High Court of Mysore. The Division Bench consisted of T.N. Mallappa and B. Vasudevmurthy, JJ. After the decision of the lower Courts and before the hearing of the arguments in the appeal before the High Court, the decisions relied on by the lower Courts, on the basis of which those Courts dismissed the suit brought by the adopted son for partition of the property, happened to be overruled by the Full Bench decision reported as - Chikkavva v. Chikkappa, 54 Mys HCR 12 (A). After hearing of the arguments in the appeal, the Division Bench thought the said Full Bench decision required reconsideration. The Bench therefore, on 5-1-1951 made an order of reference to a Full Bench. The reasons for reference were recorded by Mallappa, J., and Vasudevamurthy, J., agreed with him.The two questions of law that were referred to the Full Bench were:"(1) Whether the decision of the Full Bench reported in 54 Mys HCR 12 (A) is correct and (2) If it is correct what is the effect of adoptions on properties that have become Stridhana property on her getting a share at a partition or taken by inheritance from her son or acquired by her in a compromise in a dispute between her and the sole surviving coparcener of her husband."The reference came on for decision on 18-12-51, before the Fuller Bench consisting of P. Medapa, C.J., and R.Venkataramaiya, N. Balakrishaaiya, T.N. Mallappa and B. Vasudevamurthy, JJ. The Order of this Court was made lay Vasudevamurthy, J. Judgement ORDER OF FULL BENCH. . VASUDEVAMURTHY,J. :- I and my learned brother Mallappa J. referred to the Fall Bench two questions of law arising in this second appeal. The matter was heard by the Full Bench of all the Judges of this Court and orders were reserved.

2. Such a reference is governed by S.15(2), Mysore High Court Act, I of 1884. As that sub-section stood at the time of the reference any Bench could refer to a Full Bench any question of law or usage having the force of law, the construction of any document or admissibility of any evidence in any proceeding pending before it on which there was no further appeal under the law for the time being in force.

3. Under Arts. 133 and 134 of the Constitution of India appeals have now been provided to the Supreme Court against the decisions of this Court in civil and criminal cases though subject to certain limitations. A question has been raised as to whether a reference could have been made under S, 15(2) in view of this circumstances. There appears to be some force in that objection, though it may also be argued that as an appeal does not lie to the Supreme Court as a matter of course in this second appeal, the reference to the Full Bench may not be incompetent.

4. Recently in order to remove any doubt in this matter the Mysore High Court Act has been amended by act 24 of 1952 by omitting the words "on which there is no further appeal under the law for the time being in force" with the result that there can now be no objection to the making of a reference to the Full Bench in such cases. It is unnecessary to go into any discussion of the question about the legality or otherwise of the reference already made as the question has now become purely academic; and to avoid any possible objection. I am of opinion that the reference should be returned to the Bench which heard and made the reference so that it may either make a fresh reference under S.15(2) as amended, or otherwise deal with the second appeal in accordance with law, and it is ordered accordingly.

5. MEDAPA, C. J. :- I agree. VENKATARAMIAH, J. :- I agree. BALAKRISHNAIYA, J. :- I agree. MALLAPPA, J. :- I also agree. (Note-The Fuller Bench by its order dated 30-10-52, having referred the matter to the Division Bench which made the reference, the appeal came on for hearing on 12-11-52 and the Court delivered the following judgment :)

6. MALLAPPA, J. :- The property m dispute in this case belonged to one Marianna who died leaving two sons Dasanna and Kariyanna. Kariyanna died leaving a son by name Dasappa, who is defendant 1 in the case. Dasanna who survived his brother Kariyanna lived together with his son Chikkamariyappa and bis brothers son Dasappa, defendant 1, as members of a joint family. Thereafter Dasappa (Dasanna?) died, but his son Chikkamariyappa continued to live with defendant 1 as member of a joint family till the former died, leading his two widows Kalyanarnma, defendant 2 and Kempamma defendant 3. Thus the entire property came to the hands of defendant 1 Basappa the sole surviving coparcener.

7. As usually happens in cases of this kind disputes arose between defendant 1 Dasappa and the widows of his uncles son and criminal proceedings under S.145, Criminal P.C., ensued. The result was that defendant 1 was forced to file a suit for partition of all the joint family properties between himself and the present defendants 2 and 3 the widows of Chikkamariappa. Defendants 2 and 3 contended that their husband was divided from defendant 1 and they were entitled to a half share. They were, however, unable to prove the division with the result that they got 1/4 share, while defendant 1 got 3/4 share. An appeal was filed but was also dismissed, Thereafter in execution of the decree partition was effected. But one of the widows not being content with depriving defendant 1 of the share is said to have taken the plaintiff in this case in adoption under the registered deed dated 11-2-42.

8. Courts below have dismissed the suit on the ground that even if tile adoption is true the adoption cannot divest property vested in defendant 1 after partition between him and the widows of his uncles son. There is no longer any joint family property after the partition and the theory of the adoption relates back to the death of the adoptive father, was not accepted in - Sankaramma v. Krishna Rao, 43 Mys HCR 415 (B). Moreover it was pointed out that if the adoption must be deemed to have taken place at the time of the death of the adoptive father, the adopted boy. would be entitled to a share in the shares the widows got subsequent to their husbands death and the Hindu Law Womens Rights Act which states that an adoption does not divest the estate a widow gets in partition has recognized the correctness of the decisions such as - Rudramma v. Sangana Basappa, 17 Mys CCR 145 (C) followed in 43 Mys HCR 415 (B). The learned Munsiff also refers to the fact that when an attempt was made to refer the question to a Full Bench Abdul Ghani, J., and Nageswara Iyer, J., refused to do so on the ground that the law in Mysore as enumerated in 17 Mys CCR 145 (C) has prevailed in Mysore for over 30 years and that if any other view is to be adopted now, at least so far as the divesting of property is concerned, title based on the law as stated in - Rudramma v. Sangana Basappa, (C) would get unnsettled, These were some of the reasons which induced the Courts below to come to the conclusion that even it the adoption is true, the adopted son gets no title to the property which defendant 1 and the widows of his uncles son got in the partition effected in accordance with a Court decree.

9. After the lower Courts decided the case and before this appeal came up for arguments the decision relied on by the lower Courts has been overruled by the Full Bench decision in, 54 Mys HCR 12 (A) on the basis of which the lower Courts dismissed the suit. We, however, thought that the decision in 54 Mys HCR 12 (A) requires reconsideration for the following reasons:

10. The recent Full Bench decision, - Chik-kawa v. Oiikkappa, reported in 54 Mys HCR 12 (A) which holds that the law laid down in 43 Mys HCR 415 (B) and Dasappa v. Seshagiri Rao, 16 Mys LJ 301 (D) as regards the effect of adoption on the property is not correct and that an adoption divests estates vested in the heir of the last surviving coparcener has upset the law prevailing in the State for a very long time till the date of that decision is causing considerable hardship. Sometimes it happens that the husband dies when the wife is hardly 12 or 13 years old and it is not unusual for the widow living till she is 90 years old. Vyankatrav Anandrav v. Jayavantrao, 4 Bom HCAC 191 (E) is a case in which a boy was adopted by a widow 71 years after the death of her husband. In a recent case in this Court an adoption was claimed to have taken place by a widow 72 years after the death of her husband. In some Bombay cases the periods were twenty, twenty-five and fifty-two and even seventy-one years after the husbands death as observed by Mayne in his book on Hindu law. Cases in which a widow takes a boy in adoption three-fourths of a century after the death of the husband may not be common, but adoption a quarter of a century after the death of the husband is not unusual. By that time a dry land might have been converted into a wet land, a wilderness might have been converted to a coffee estate and a waste land might have become a cocoanut garden. If the adoption by a widow divests the estate vested in the heir of the last coparcener of a joint family, one fourth of a century or a half a century after the death of the husband, persons who have spent all their energy in improving the property would be ruined. Set up by mischievous persons, widows who had not thought of saving the souls of their deceased husbands for a score of years or more, suddenly get anxious about them and adoptions evidenced by registered documents come into existence. act 10 of 1934 raises a presumption of the widow having the permission of her husband for an adoption. Persons who have inherited property a good many years prior to the adoption and have improved the estates will be deprived of them Those who are careful would sell away the property and realise some money to avoid the widow taking any boy in adoption and depriving them of the property, as according to the Full Bench decision adoptions do not affect such alienations.

11. If the view taken by the Full Bench decision is the correct exposition of Hindu Law on the point, the only remedy is legislation. Fortunately it has to be stated with great respect that there is nothing in Hindu Law which supports the view that an adoption divests the estate vested in the heirs of the last coparcener of the joint family to which the property originally belonged. It is commonly believed that various methods of acquiring subsidiary sons when no son is born to a Hindu, were thought of, as it was believed that a son is needed for the salvation of the soul of the father. It is unnecessary at this stage to show that this statement is not quite correct, and that Hindu religion only recognized the prevailing practice of people without sons acquiring subsidiary-sons by adoption etc., but that it discouraged, the practice. It is, however, at the same time clear that, whatever the origin may be for acquisition of sons by these methods, Hindu religion recognized that the adopted son acquires the family name and the property of the adoptive father while he is under the obligation of offering Pinda to the deceased ancestors of the family into which he is adopted,

12. It has to be stated with respect that it is necessary to reconsider here the correctness of the following observation in the Full Bench decision as regards the time from which these rights and obligations arise : "To our mind, the learned Judges in 43 Mys HCR 415 (B) and 43 Mys HCR 438 (D) in taking the view that an adoption, so far as it affects property, cannot relate back to the death of the adoptive father though, for the continuance of the family line and the religious and secular consequences of that continuance, it must so relate back overlooked a very important featee of the Hindu Law of adoption that, according to Dharma Sastras the effect of an adoption as regards the Gotra the Riktha and the Pinda should be the same and the three things cannot be dissociated from each other. It is, therefore, impassible according to the Dharma Sastras to say that for ourposes of continuance of the family line and religious ceremonials or acts (Gotra and Pinda) the adoption must relate back to the death of the adoptive father, while as regards property (Eiktha) it cannot have that effect. In this connection, we may refer to verse 142 in Chapter 9 of Manu Smriti which runs thus : That verse is translated thus in the Sacred Books of the East edited by Max Muller, Vol.25: "An adopted son shall never fake the family (name) and the estate of his natural father; the funeral cake follows the family (name) and the estate, the funeral offerings of him who gives (his son in adoption) cease (as far as that son is concerned)."

13. A very important feature of Hindu Law of adoption that is stated to have been overlooked in the two decisions overruled is "that according to Dharma Sastras the effect of adoption as regards Sofas, Riktha and Pinda should be the same and the three things should not be dissociated from each other." It is not clear what Dharma Sastras lay down that these are invariably connected. As observed in - Tevanappa v. Somappa Tammungauda, 33 Bom 669 at p.691 (F) "It is not always necessary for funeral ceremonies that the person performing them should be of the same Gotra as the deceased. A sisters son and a son-in-law can perform those ceremonies and yet they are not of the Gotra." It will thus be seen that all that is stated in the text of Manu is that while the duty to offer funeral cake to the natural father ceases along with the right to has property if any and to his family name, the duty to offer funeral cake to the ancestors of the adoptive family arises along with his right to take the Gotra, i.e., family name of that family and Riktha, i.e., properties, if any, of that family. The duty to offer funeral cake in the natural family does not depend upon that family having some property. Similarly the duty to offer the funeral cake does not depend upon the adoptive family having some property at the time of adoption. The duty is independent of the right to take the property. An adopted son cannot shirk his liability to offer Pinda by his refusing to take the property. Similarly his right to the property is not affected by his failure to perform his duty. A Sudra has no Golxa; still adoption by a Sudra is recognized in Hindu Law. Vyavahara Mayukha states that a Sudra can take a boy in adoption but that he must get Datta Homa performed by a Brahmin. The adopted son of the Sudra gets the property of his father though he has no Gotra to give him. The above text of Manu does not say that the Gotra, Riktha and Pinda are invariably connected with each other. It only says that Pinda follows Gotra and Riktha and the reverse proposition is not laid down. As observed in - 33 Bom 669 at page 691 (F) : "Manus text says that the funeral oblation follows the inheritance, not the inheritance the funeral oblation. Nilakantha in the Vyavahara Mayukha makes this clearer. The funeral rites of the deceased, as far as the 10th day inclusive, should be performed by whoever takes his wealth, including the king himself. And Vishnu says the same: He who takes the wealth is declared (to be) the giver of the Pinda or funeral oblations (Mandliks Hindu Law P. 84 lines 15 to 20). And Balabhatta explains in his commentary on the Mitakshara that the right to offer funeral oblations and the right to take the deceaseds property by right of heirship are not always co-extensive but they may be opposed. The Viramitrodaya also states that "The capacity for presenting funeral oblations is not alone the criterion of the right to) heritage, since the younger brothers are entitled to the heritage although they are not competent to offer oblations, while there is the eldest brother".

14. It is clear from the above reasoning that it is not correct to say that according to Dharma Sastras the effect of an adoption on gotra; Riktha and Pinda should be the same and the three things cannot be dissociated. But assuming it is so, all that follows is that after adoption, Gotra, Riktha and Pinda are equally affected. It does not mean that these are affected from the date of the death of the person whose widow takes a boy in adoption. On the other hand, the Gotra of the adopted son changes only after the adoption. Similarly the duty of the boy to offer Pinda to the ancestors of his natural family does not cease from the date of the death of the man to whom he is adopted. It ceases only from the day at his adoption. Similarly the duty to offer Pinda to the person of whom he becomes an adopted son arises on the date of adoption and not from the date of his death. If Gotra, Pinda and Riktha cannot be dissociated and the text of Manu referred to above shows that the effect of adoption on these three should be same, the adopted sons right to what can be said to be his adoptive fathers properties arises, not on the date of his death but on the date of adoption. In fact the adoption ceremony itself makes it clear that he becomes the son of the adoptive parents from the date of adoption and it is incorrect to say that he must be deemed to have been conceived on the death of the person to whom he is given in adoption or that his rights and duties arise even before the adoption. This is made clear from the ceremony of adoption As stated in Vyavahara Mayukha, the vow of the person who gives the boy in adoption is as follows: The vow of the person who takes the boy in adoption is as follows : The vows taken by the giver and acceptor of the boy in adoption at the time of the adoption show that the boy is given and taken in adoption for the cessation of the several duties that were at the time of adoption existing between the procreator and his son as well as for bringing into existence the duties arising from the connection between the son and the adoptive father on account of the adoption. The word underlined (here in " ") in the above text emphasises the fact that the duties and rights of the adopted son in his natural family cease and the duties and rights in the family of adoption arise only with effect from the date of adoption and not earlier. It follows from the adoption ceremony itself that not only for the purpose of Gotra and Pinda which is treated in the Full Bench decision as equivalent to continuance of family line and religious ceremonials, but also as regards Riktha, i.e., property, it has to be said that the adoption is effective only from the date of adoption and not from the date of the death of the person to whom the boy is given in adoption. It is, therefore, necessary to reconsider the correctness of the following observations in the judgment of the Full Bench: "It is therefore impossible, according to the Dharma Sastras, to say that for purposes of continuance of the family line and religious ceremonials or acts (Gotra and Pinda) the adoption must relate back to the death of the adoptive father, while as regards property (Riktha) it cannot have that effect". The texts "relied on in the judgment on the Full Bench) merely support the Hindu notion that the father himself is born as the son and the wife is therefore known as "Jaya". Evidently the text of Manu Smriti that supports this is IX 8". The reference is clearly to the birth of a natural son and not an adopted son as is clear by the Bhashya of Bhatta Medhatiti There is nothing in this to support the contention that a widow must be deemed to have been pregnant for three fourths of a century or less after the death of her husband and before a boy is taken in adoption. No other text which supports such a contention is relied on or has been brought to our notice. There is much less authority in Hindu Law for holding that adoption divests the estate vested before adoption in a person other than the adoptive mother.

15. It is not correct to say that in Hindu Law an adopted son has been conceived exactly like a son born to the parents. In the Full Bench case itself, it is pointed out that if a son is born to the parents after they take a boy in adoption, the adopted son should only take one fourth share in the family property. Why is this difference made between an adopted son and a natural son if the conception in Hindu Law is that the adopted son must be regarded as if the adoptive mother became pregnant and gave birth to a child? Unlike the case of a natural son, the sapinda relationship of an adopted son extends only to three degrees in the adoptive family and determines prohibited degrees for marriage, the period of mourning, etc. An adopted son cannot marry a girl born in the family of his natural father. According to some authors an adopted son is polluted by impurity on the death of his natural parents though it is agreed that he is not polluted at all on the death of the other members of his natural family. In the case of a legitimate son the period of impurity in such cases is 10 to 30 days according to the caste of the persons concerned while in the case of an adopted son the period of impurity is only 3 days. If after the adoption another son is born to the adoptive father the adopted son cannot perform the sixteen shardh begining with Adya ending with Sapindikarma while these are to be performed by the legitimate sou. An adopted son unlike the legitimate son can be a Dwamushyavana or the son of two fathers by agreement at the time of adoption and in such a case he has to observe pollution in his natural family and offer funeral cakes to the ancestors in that family also. The adoptive father after adoption cannot give the boy in adoption as he could give a natural son even if another son is born to him. If Upanayana of the adopted son had been performed in his natural family it need not be performed again after adoption in the family of adoption. It is easy to add to these differences between the legitimate son and the adopted son but for the purpose of this case it would be unnecessary to proceed further on this aspect of the matter.

16. As regards the view taken by Courts in India outside Mysore, it has to be stated that the trend of the decisions of those Courts has been mostly against the view that adoption divests estates vested in heirs of the last coparcener of the joint family to which the property belonged before the death of the adoptive father but the Privy Council decisions by which they were guided have always forced them to give up that view. It has to be observed that the validity of an adoption depends upon its being made in accordance with rules of Hindu Law. If it is so made, the adopted son gets certain rights and is liable to perform certain duties. Its validity does not depend upon, on the estate of the father feeing vested in some one other than his widow or on the adoption divesting the estate vasted in that person. It was observed by their Lordships of the Privy Council in - Amarendra Mansingh v. Sanatan Singh, AIR 1933 PC 155 at p.158 (G) as follows: "It can, they think, hardly be doubted that in this doctrine the devolution of property, though recognised as the inherent right of the son, is altogether a secondary consideration. So Sir James Colvile, in delivering the judgment of the Board in - Raghunada v. Brozo Kishore, 1 Mad 69 (H) (a case to which further reference will be made later) observes: "a distinction which is founded on the nature of property seems to belong to the law of property, and to militate against the principle which Mr. Justice Holloway has himself strenuously insisted upon elsewhere, viz., that the validity of an adoption is to be determined by spiritual rather than temporal considerations; that the substitution of a son of the deceased for spiritual reasons is the essence of the thing, and the consequent devolution of property a mere accessory to it". "Having regard to this well-established doctrine as to the religious efficacy of son-ship, their Lordships feel that great caution should be observed in shutting the door upon any autherised adoption by the widow of a sonless man : see in this connection - Suryanarayana v. Venkataramana, 29 Mad 382 (I) The Hindu law itself sets no limit to the exercise of the power during the lifetime of the donee, and the validity of successive adoptions in continuance of the line is now well recognized. Nor do the authoritative texts appear to limit the exercise of the power by any considerations of property. But that there must be some limit to its exercise, or at all events some conditions in which it would be either contrary to the spirit of the Hindu doctrine to admit its continuance, or in-equitable in the face of other rights to allow it to take effect, has long been recognized both by the Courts in India and by this Board, and it is upon the difficult question of where the line should be drawn, and upon what principle, that the argument in the present case has mainly turned".

17. It is thus made clear by their Lordships that the limit they propose to put to the power of a Hindu widow to make an adoption is not what "the Hindu law itself sets". The first line of reasoning was that a limit must be put to the exercise of the right of a Hindu widow when the continuance of such a right is contrary to the spirit of Hindu law based upon the often-quoted judgment by Lord Kingsdown in - Bhoobun Moyee v. Ramkishore, 10 Moor Ind, App. 270 (PC) (J). The adoption was by a widow Chandrabala to her deceased husband Gour Kishore after the death of her son Bhowanee leaving his widow Bhooban Moyee. Lord Kingsdown observed that : "The question is whether the eastate of his son being unlimited, and that son having married and left a widow his heir, and that heir having acquired a vested estate in her husbands property as widow, a new heir can be substituted by adoption who is to defeat that estate". Referring to her power of adoption, their Lordships were of opinion, "that at the time when Chandrabala professed to exercise it, the power was incapable of execution". In - Puddo Kumaree Debee v. Juggut Kishore, 5 Cal 615 (K) it was held by their Lordships of the Privy Council in a case with reference to the same property that "Upon the vesting of the estate in the widow of Bhawanee, the power of adoption was at an end and incapable of execution". On the basis of this reasoning the adoption was held invalid and this is how it was understood in all the Courts of India as pointed out by their Lordships in - AIR 1933 PC 155 (G) after referring to - Padmakumari Debi v. Court of Wards, 8 Cal 302 (L) : - Thayammal v. Venkatarama, 10 Mad 305 (PC) (M); - Tarachurn Chatterji v. Suresh Chunder, 17 Cal 122 (PC) (N); - Sakrabhai v. Maganlal 26 Bom 206 (O), in the last of which it was observed by Ranade, J. : "The whole current of recent decisions has been to base the limitation solely on the question whether the widows act of adoption derogated from her own rights or the vested rights of others". It was held in - Ramkrishna v. Sham Rao, 26 Bom 526 (P) by a Pull Bench that "Where a Hindu dies leaving a widow and a son, and that son himself dies having natural born or adopted son or leaving no son but his own widow to continue the line by means of adoption, the power of the former widow is extinguished and can never afterwards be revived". This case was noticed in - AIR 1933 PC 155 (G) in a careful analysis of the older decisions of the Board. This Full Bench decision was approved by the Privy Council in - Madana Mohana v. Purushothama, AIR 1918 PC 74 (Q). In the Privy Council decision, - Pratapsingh Shivsingh v. Agar Singji Raisiaghji, AIR 1918 PC 192 (R) it was, however, held that, "The right of the widow to make an adoption is not dependent on her inheriting as a Hindu female owner her husbands estate". Their Lordships concurred with the observation of Wallace, J., that "the purpose of adoption is to perpetual the line and if the only son dies without leaving any one to perpetuate the line, there seems to be no good reason for restricting the power of his mother to perpetuate it in the only way she can, by adopting a son to her own husband". The limit to the widows power to take a boy in adoption based on the question of vesting or divesting the property, as recognized for a long time both in the Privy Council decisions and in the decisions of High Courts of India following the Privy Council decisions was held in - Amarendras case (G) to have not teem based on the true principle. Their Lordships thought "The true principle must be found upon the religious side of the Hindu doctrine?. It was there held: "That the true reason must be that where the duty of providing for the continuance of the line for spiritual purposes which was upon the father, and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the sons widow, the mothers power is gone. But if the son dies himself sonless and unmarried, the duty will still be upon the mother, and the power in her which was necessarily suspended during the sons lifetime will revive." In their Lordships opinion there is "nothing in Hindu Law contrary to this" but they have not, as already stated, based the limit they have set to widows power of adoption, on Hindu Law. In fact as observed in Mayne "The Hindu Law itself sets no limit to the ex ercise of her power". It may be stated with respect that there is no need to set any such limit to the widows power of adoption. There, was, as realised in the later Privy Council decisions, no reason to connect her power to adopt with vesting or divesting of estates. Sir James Colvile in 1 Mad 69 (H) agreed with the principle insisted upon by Holloway, J., viz., that "The validity of all adoptions is to be determined by spiritual rather than temporal considerations; that the substitution of a son of the deceased for the spiritual reasons is the essence of the thing, and the subsequent devolution of the property a mere accessory to it." This principle was accepted in - Amarendras case, (G). It is, therefore, clear that while an adoption of boy by a widow may be valid it may not divest the estate in a person other than the person to whom he is adopted. While the earlier cases which held that an adoption which has the effect of divesting an estate vested in a person other than the widow is invalid are incorrect on the reasoning on which the decision was based, the actual decision itself according to which the adoption had not the effect of divesting property vested in a person other than the adopting widow at the time of adoption, is correct. This in effect is the decision of the Full Bench case, - Balu Sakaram v. Lahu Sambhaji, AIR 1937 Bom 279 (S) in which it was held that "An adoption made by a widow of a predeceased coparcener after the termination of the coparcenary by the death of the surviving coparcener is a valid adoption but it would not have the effect of reviving the coparcenary and would not divest the property from the heir of the last surviving coparcener."

18. It has to be stated with respect that the reasoning of the eminent Judge Sir John Beaumont has not been met by the later decisions of the Privy Council which overruled his decision and the point cannot be better stressed than by giving the following extract of his reasoning: "In dealing with the law of adoption two aspects of the matter have to be borne in mind, first the right to adopt and secondly the effect of a valid adoption upon the vesting or divesting of property..... In the first place though the right of a Hindu widow to adopt may be based on considerations of religion and the paramount obligation of providing a son to her deceased husband so that there may be some one to perform the religious rites for the benefit of the souls of his ancestors, in actual practice, the very numerous cases of adoption which come before Court are all concerned with questions of property... The widow of a Hindu is frequently a girl of tender age, who may survive her husband by fifty or sixty years. She is usually subjected to much advice of an interested and often dishonest character which takes no account of her own interest. Nevertheless adoptions are often long delayed. If it be held that the effect of a valid adoption by a widow is generally to divest in favour of the adopted son, estates which have become vested in or through an heir of the last male holder, it must mean that so long as the possibility of adoption exists, no one can safely deal with property the title of which may be affected by such adoption. This practical aspect of the matter was recognised by the Privy Council as long ago as 1876 in 1 Mad 69 (II) in which their Lordships say (p.193). "It may he the duty of a Court of Justice administering the Hindu Law to consider the religious duty of adopting a ton as the essential foundation of the law of adoption; and the effect of an adoption upon the devolution of property as a mere legal consequence. But it is impossible not to see that there are grave social objections to making the succession of property - and it may be in the case of collateral succession as in the present instance, the rights of parties in actual possession - dependent on the caprice of a woman, subject to all the pernicious influences which interested advisers are too apt in India to exert over women possessed of, or capable of exercising dominion over, property. It seems, therefore, to be the duty of the Courts to keep the power strictly within the limits which the law has assigned to it........." That warning is, in my view, as appropriate now as it was in 1876."

19. The principle laid down in this case was accepted in 43 Mys HCR 438 (D). It also refers to - Subramanian Chettiar v. Somasunda-ram Chettiar, AIR 1936 Mad 642 (T) in which, "though the adoption was held valid, the daughter-in-law of the last holder was not divested of the estate and the adopted boy was treated only as a collecteral heir" It was shown that "even in Madras the trend of opinion though in favour of validity of adoption on religious grounds does not appear to definitely recognize that an adoption has the effect of divesting an estate which a collateral heir takes after the extinction of the coparcenary but before the adoption." The decisions of the Privy Council in Amarendras case (G) and - Vijaysingji v. Shivasangji, AIR 1935 P C 95 (U) were distinguished. The following portion of the judgment at p.319 deserves perusal: "In Mysore the effect of 17 Mys CCR 145 (C) is against the adoption having any retrospective effect, in regard to the property. So recently as in Gurulingappa v. Dyaviah, 39 Mys HCR 27 (V) on a question of limitation, it was held that the adoption had no retrospective effect. If an adopted son cannot question an arrangement regarding property made at his adoption, or an alienation made by the will of the adoptive father, or even certain alienations made by the adoptive mother for consideration to a third party, it may be argued that he may not also be permitted to question the devolution of property by inheritance prior to his adoption. The state of authority in British India is such that the last surviving coparcner before adoption can do as he likes and even a collateral heir who succeeds to the property may convey a good title to a third party which cannot be questioned by the adopted boy later on. If so, the collateral heir can easily defeat the consequences of a subsequent adoption or an attempt to make an adoption by disposing of the property as soon as the inheritance falls in. One way to avoid such subterfuges would be to lay down that the adoption is valid on religisas grounds but that it has not got the effect of divesting any estate which the heir to the last male holder has acquired before the adoption. This is the logical result if adoption has no relation back. It certainly appears to be desirable to accept the religions theory in relation to the validity of as adoption, not only on the ground that the adoption provides for the salvation of the souls of an ancestor, but also on the ground that the adoptive father may have left self-acquired property and the mother may have property of her own to endow the adopted son with. There may be cases where such an adoption though not affecting the rights in property at the time, would affect reversionary interest later on and the adopted boy may succeed to some other property as heir to a distant relation by adoption. It is not apparent why the adopted boy should be deprived of such rights by holding the adoption to be invalid, particularly when it has taken place." This decision was followed by 43 Mys HCR 415 (B) I need only refer to pages 388 and 391 containing the cogent reasoning of Reilly, C.J., in support of the judgment.

20. In the early cases before the Privy Council it may be stated with respect that it was rightly decided that properties vested in persons other than the adoptive mother prior to adoption were not divested though the reasoning that the adoption made after the property had been vested in others is invalid was wrong as shown by their Lordships of the Privy Council in - Pratab Singhjis case, (R) and - Amarendras case, (G). The pendulum swung from one wrong and to the other when they however, decided that such adoptions divest estates vested in others before the adoption. The Courts in India as in the Full Bench case of Bombay attempted to distinguish - Pratapsinghjis case, (R) and - Amarendras case, (G) by adopting the reasoning given in them and stating that the actual decisions were based on the peculiar facts of those cases and were not intended to lay down a general rule that the effect of adoption is to divest estates vested in persons other than the adopting widow before adoption. This was an attempt made. in the High Courts of India to construe the Privy Council decisions as consistent with the true principle of Hindu Law which does not contemplate adoptions divesting estates already vested. It is rather unfortunate that a later decision of the Privy Council in - Anant Bhikkepa v. Shaker Ramadnndra, AIR 1943 PC 196 (W), made it clear that what was intended by - Pratapsinghjis case, (H) and - Amarendras case, (G) is that the adaption has a retrospective effect and must be construed as if the boy was born on the date of the death of the person to whom he was given in adoption and that it divests estates vested in others after the death of that person.

21. The line of reasoning is that adopted in - Pratapsinghjis case, (R) and it is as follows: "Again it is to be remembered that the adopted son is the continuator of his adoptive fathers line exactly as an aurasa son, and that an adoption, so far as the continuity of the line is concerned, has a retrospective effect; whenever the adoption may be made there is no hiatus in the continuity of the line. In fact, as West and Buhler point out in their learned treatise on Hindu Law (3rd Edn. p.996, note (a)) the Hindu lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the continuation of the line by adoption impossible." The reason is based on two assumptions: An adopted son is like an Aurasa son and that so far as the continuity of the line is concerned an adoption has a retrospective effect. This is also the line of reasoning adopted in our recent Full Bench decision. It has already been, shown how the adoptive ceremony itself makes it clear that it has no retrospective effect. It is, however, necessary to state that Hindu Law abhors extinction of a family "Do not break the line of progeny" is the injunction given in Taittareya Upanishad to students in what may now be referred to as a convocation address of those times. It is equally correct to state that by adoption, the idea as recognized in Hindu Law is that there is no break in the continuity of the adoptive fathers line and this continuity is brought about by adoption though it has no retrospective effect. Though a son is not born to a married couple the line is not extinct as there is the possibility of a birth of a son or of a boy being taken in adoption. This is possible so long as one of them is alive as a widow could have continued the line by the method of Niyoga when that was in vogue and she can do so by adoption even now. Till the husband dies, it cannot be said that the line has come to an end. How can it be then said, it may be asked, that the line continues after his death and till the widow takes a boy in adoption unless the adoption has a retrospectve effect? As their Lordships of the Privy Council in Ainarendras case, (G) observed: "In Bhooban Moyees case (J) Lord Kingsdown evidently relied or the fact that Bhawanee had died at an age which enabled him to perform - and it has to be presumed that he had performed all the religious services which a son could perform for a father and he refers to the doctrine of Hindu Law that the husband and wife are one and in the widow a half of the husband survives." There is hardly any doubt that this is the Hindu conception of marriage. This in fact is the significance of the vow taken by the husband. As regards religion, the wealth and desires, the two are one is made clear from this vow: Religious rites are directed in the Vedas to be performed with the wife, says Manu in DC, 96 of his Smriti. It is because wife and husband are united in accordance with the rites prescribed for marriages It is said in Manu Smriti that the woman acquires the qualities of the .man whatever they may be. In fact even Akshamala a woman of the lowest birth is referred to as being thus united to Vasista and similarly Sarangi to Mandapala and thus it is said they acquired high honour. The commentary of Medahtithi on Manu Smriti on the point makes it clear that the wife quires tire qualities of her husband and the union is compared to a river becoming one with the sea and its sweet water becoming brine.

22. After stating that a man is perfect when he consists of three persons united, himself, his wife and son. Manu refers in IX-45 of his Smriti to the saying of Brahmins that the husband is one with her. The unity is so strong that he proceeds to add that a wife is not released from her husband either by sale or by desertion This is according to him the ancient law of Prajapati. Apastamba also says,

i.e., there is no division between husband and wife. It has already been shown how by adoption, the adopted boy loses the gotra of his natural father and gets that of the family of adoption. Similarly as stated by Bruhaspati The girl is deprived of her fathers gotra by marriage mantras. By chaturtha noma mantras she gets into the gotra of her husband; in fact the wife gets united with the husband by the skin, heart and organs. There can be no better conception of unity between wife and husband. So wonder that Privy Council recognized as already stated that "husband and wife are one and in the widow, a half of the husband survives". If that be so it cannot be said that the line of progeny is at an end when half of the husband survives in the widow merely because she has not taken a boy in adoption as she can do so at any time before her death just as it cannot be said to have become extinct when her husband was alive, as though they had no children, a boy could be taken by him in adoption. Even after the death of the husband the line is not extinct and it is continued by her taking a boy in adoption at any time before her death. It is only by the death of the husband and the death of his surviving half without the birth of a son or without taking a boy in adoption, it can be said that the line has become extinct. It is, therefore, clear that the notion that an adoption by a widow must be deemed to have come into existence just before the death of her husband is wrong.

23. It remains to show with respect how the other assumption is also incorrect. It is necessary to explain how the view that the adopted son resembles the real legitimate son has gained ground. The explanation is found at page 394 in Sirkars Hindu Law on Adoption, II Edition and it is as follows: "We have already seen that in all other respects the adopted sons status in the adoptive family is based upon express texts; and although he is represented as the substitute for the real legitimate son, yet none of the Sanskrit writers appear to lay it down that he is entitled to all the rights and privileges of the real legitimate son. There are, however, several passages in Sutherlands translation of the Dattaka-Chandfika, which appear to be of the effect; one of which is as follows: "Next, the funeral rites, performed by a son given, are determined. In, respect to these although the son given be first adopted yet the legitimate son existing, he is not competent, to officiate in the sixteen funeral repasts, ending with the Sapindi-karana; for, his superiority in rank is barred by Devala (who says) a teal legitimate son being subsequently born, superiority of rank from age does not vest in them. And a text of Yajnavalkya, recites - Amongst these, the next in order, is heir and presents funeral oblations, on failure of the proceeding. Otherwise, the adopted son, in every respect resembles the real legitimate one." The learned translator has erred in thinking that the original of the italicized words is a part of the text of Yagnavalkya, and also in translating it in the way he has done. Whereas the correct rendering is, - In all other (Sradhas, the Dattaka son is competent to officiate) like the real legitimate son. All that the author means to say is, that barring the sixteen Sradhas ending with the Sapindi-karana, the Dattaka son is competent to perform all other Sradhas like the aurasa son. Similarly the following passage in Sutherlands translation is misleading : "Thus the son of the wife, the son given, and the rest, receive the share prescribed for them, by the general law. For grounds for contracting the operation of the same are wanting." The expression general law has been taken to refer to the general law of inheritance, such as is contained in Chapter I of the Mitakshara or Chapter XI of the Dayabhaga; wheras the correct meaning of the original of the passage is the general rule relating to the inheritance of the subsidiary sons, such as is propounded by Narada and others. The above passages, however, have led to the modern doctrine that except as otherwise expressly provided, an adopted son does, in every respect, resemble the real legitimate son - a doctrine, which, considered from one point of view, appears to be perfectly consistent with the principles of equity and justice. The Modern law of adopted sons right of inheritance - The result of the decisions of our Courts of Justice is, that regards inheritance an adopted son holds the same position as a real legitimate son, unless his right in any respect has been expressly curtailed. The distinction based upon possession or otherwise of good qualities, has been ignored, or it is implied that every adopted son must be taken to be endowed with good qualities."

24. Now to insist on the condition laid down by Manu (IX-141), that an adopted son should be virtuous before he can claim the properties of his father may be in accordance with the principles of equity and justice. To extend the principle opposed to Hindu Law, by stating that a widow must be deemed to have been pregnant from the death of her husband till she takes the boy in adoption dozens of years later and to divest properties vested in tie hears of the last coparcener is opposed to equity and justice. It is neither based on Hindu Law nor on equity and justice.

25. Thus both the assumptions on which the decision of the recent Full Bench case and the decisions relied on it are based, are, it may be stated with respect, incorrect. That a widow must be deemed to have been pregnant from, the date of death of her husband for decades before adoption takes place, is a Action and no useful purpose is served by the fiction. The fiction is raised on the ground that to hold that adoption does not divest an estate vested in persons other than the adopting widow is to refuse to give effect to a valid adoption. This reasoning is based on the assumption that a valid adoption has the effect of divesting property vested in persons other than his parents. This is an incorrect assumption again. In the the case of a coparcenary no member of it has a vested right to any particular share. His interest fluctuates according to the addition of coparcener by birth or adoption or the death of one of the coparceners. If therefore a widow takes a boy in adoption, he becomes one of the members of the coparcenary according to the above rule. If on the other hand the coparcenary has come to an end by partition, his birth does not help him in respect of what was once coparcenary prsperty. If he has any separate property of his father he gets it. The argument that coparceners can defeat the widows right to take a boy in adoption by effecting a partition is correct but that is much better than to hold that a widow has, at any time she likes, the power to divest estates vested decades prior to adoption. Moreover, as pointed by Reilly, C.J., in one of the cases overruled by the Full Bench, an adoption by a widow is only valid on the rebuttable presumption that the consent of her husband had been given. At the time of giving permission a coparcener can, by issuing a notice get divided with the result that a son adopted is sure to get the share he should get. Hindu Law does not say that an adopted son divests estates vested in persons other than his parents prior to his adoption. If a posthumons son gets a right to property as it was at the time he was in the womb of his mother, it is so as he was in fact in existence in the womb and not because such a fiction is raised. Moreover the right of a posthumous son is laid down in the Smrities. On the other hand, there is absolutely no basis for imagining that a widow who was not pregnant was pregnant. The fact, that, while Smrities go to the length of holding that the right of a posthumous son must be recognized from the date of conception, they do not say that adoption should have similar retrospective effect is significant. If Courts are bound to raise such a fiction, it follows that adopted sons have the right to question alienations not made for legal necessity or with the consent of adult coparceners. The decisions are not prepared to go to this length. It is dear that the Smrities did not think of saying that a boy adopted by a widow must be deemed to have been conceived on the death of the husband as the logical effect of that would be that even persons who have purchased properties from heirs of the last coparcener of a joint family would be divested of the property. There are. therefore, very good reasons for reconsidering the Full Bench decision reported in 54 Mys HCR 12 (A).

26. The case out of which the point arises for consideration is typical of the mischief a widow is capable of doing, if the view of the Full Bench is allowed to prevail. In the suit for partition the widow got her share. Then she claims to have taken a boy in adoption and he has filed this suit for partition against her and her husbands brother. It is clear she was not thinking of saving her husbands soul at all when she fought for half a share in the suit for partition before taking a boy in adoption. It is doubtful whether she would have thought of adoption if she got half a share. It is a point for consideration whether she is thinking of the property which fell to the share of her husbands coparcener in taking a boy in adoption. "Property obtained by a female as her share at a partition" is stridhana as stated in S.10(2f), Hindu Law Womens Rights Act, 1933, while under S.9(2a) it is laid down that no adoption made by a widow shall divest her estate in any Stridhana property. The widow in this case feels sure that she is not divested of what she got from her husbands brother, and she is evidently thinking of taking a boy in adoption in order to deprive her husbands brother of some more property.

27. A second adoption by the widow after the death of a son or a boy adopted earlier by her and her husband or by her after his death is valid. The theory that an adoption should divest the estate vested in others as if -a. son had been born at the time the husband died is inconsistent with the Hindu Law Womens Rights Act (1933) which appears to have been enacted consistently with the earlier Mysore view that no divesting of estates takes place. As observed by Sreenivasan in his Hindu Law in Mysore: "In Mysore the position with respect to this subject has been radically altered by this Hindu Law Womens Rights Act, 1933, According to Sub-sec.2(a) no adoption made by a widow shall divest her of her estate in any Stridhana property other then such as she may have taken by inherltanee from her husband. It has been held by the Privy Council that on the death of the first adopted son the widow holds the property not as the heir of her late husband but as the heir of her adopted son, and whereas by the first adoption she establishes a direct succession to the estate of her husband, by the second adoption it is only to the estate of the first adopted son that she can possibly establish a succession. As Leach, C.J., observes: However much the widow may intend or even proclaim that she is holding the property as the property of her husband it will not alter its character. Neither intention, nor act can change back her first sons property into the estate of her deceased husband. Further, unlike in British India, in Mysore a widow takes the estate of her adopted son as her Stridhana property, and not being an estate taken by inheritance from her husband, she cannot be divested of that Stridhana by any adoption made by her. Hence in Mysore, by virtue of her adoption, the second (or any subsequent) adopted son cannot even divest her of the first adopted sons estate vested in her (it is her Stridhana), much less is he entitled to dispute any alienation made by her after she got the property as heir of her son." 28. The view taken by the Full Bench that an adoption should be considered as if the adopted boy was born to the adopting widow and her husband at the time of the latters death and that his property vested in others after his death should be divested by the adoption deserves reconsideration by a Full Bench of five Judges in view of the considerations mentioned above. The following questions were, therefore, referred to Full Bench of five Judges. (1) Whether the decision of the Full Bench reported in 54 Mys HCR 12 (A) is correct. (2) If it is correct what is the effect of adoptions on properties that have become Stridhana property on her getting a share at a partition or taken by inheritance from her son or acquired by her in a compromise in a dispute between her and the sole surviving coparcener of her husband.

29. The Full Bench of five Judges after considering that after appeals are allowed under the Constitution to the Supreme Court from the decisions of this Court felt that it was doubtful whether a reference can he made to a Full Bench by a Bench on any point of law under the Mysore High Court Act. It was considered unnecessary to go into any discussion on the question of the legality or otherwise of the reference as the question was capable of being answered either way but was academical in view of the fact that amendment of the Act enabling such a reference was then pending. To avoid any possible objection the reference has been returned to the Bench which heard and made the reference so that it may either make a fresh reference under S.15(2) after amendment or otherwise to deal with the second appeal in accordance with law.

30. The point now for consideration is whether it is desirable to make such a reference again to a Full Beach of five Judges, or to dispose of the case on its own merits. We are inclined to think that it is desirable to remand the case to the lower Court for disposal after recording evidence on the truth or otherwise of the adoption and dealing such other points that are in issue between the parties. The contention that parties have to adduce evidence on all the points at issue between them including the question of adoption and the case cannot be disposed of without evidence, merely on a point of law, in new of the recent Full Bench decision is not without substance. Then again though we do not like to express any definite opinion one way or the other on the question whether the partition between the sole-surviving coparcener and the widow or widows of the deceased coparcener puts an end to the coparcenary into which an adopted son can enter, in the sense it a said to put an end to by Reilly, C.J., in 43 Mys HCR 415 at p.429 (BY we think that the question of referring the point to a Full Bench of five Judges may be considered if the case comes up at a later stage to this Court or in some other proper case. In view of the fact that the decisions relied on by the lower Court have been overrated by a later Full Bench decision of this Court reported in 54 Mys HCR 12 (A), the judgments and decrees of the Courts below are set aside and the case is remanded to the trial Court for fresh disposal according to law after recording evidence on all the points at issue between the parties including the question at adoption. The costs of this appeal will be costs in the cause and will abide fee iinal result,

31. VASUDEVAMORTHY, J. :- I agree with my learned brother that this case should be remanded to the trial Court for the purpose of taking evidence about the factum and validity of the adoption before applying the law relating to the legal effect of the adoption On the title to the suit properties. I think that as long as 54 Mys HCR12 (FB) (A) is in force and is not set aside formally by another Full Bench, neither this Court, much less the lower Courts, can differ from it and in that view I do not feel called upon just now to express any opinion of my own about that decision.

32. Moreover I think the decision of this case may also involve certain other aspects of law which I would briefly indicate here as the decision on the same would have to be by the lower Courts and subject to an appeal to this Court.

33. In 54 Mys HCR 12 (FB) (A) it has been held that where, after the death of the last surviving coparcener in a joint Hindu family, the family property passes by inheritance to his heir and subsequently the widow of a predeceased coparcener makes an adoption in pursuance of an authority to adopt given to her by her husband, the adoption dates bade to the death of the adoptive father and will have the effect of divesting the estate vested in the heir of the last surviving coparcener or any persons claiming through such heir and vesting the property in the adopted son subject to lawful alienations made in the meantime by the person who was entitled to hold the estate until the adoption. The decisions of the lower Courts which, were based on 43 Mys HCR 415 (B) can no longer be supported on that ground. But in the later Full Bench case the .effect of a partition between the widow of a deceased coparcener and the taking by her of a share to which she is entitled by a suit provided under S.8(d), Hindu Law Womens Rights Act, did not arise for consideration. Moreover S.9(2) of that Act provides that no adoption made by a widow shall divest her of her estate in any stridhana property, other than such as she may have taken by inheritance from her husband; and under S.10(2) (f) property obtained by a female as her share at a partition would be stridhana property over which under S.11(1) she has absolute and unrestricted powers both of ejectment and disposition inter vivos and by will. Recently it has been held in - Gurunatha Bhatta v. Nadiga Nagesha Rao, AIR 1952 Mys 129 (X) that an alienation by a widow of such Stridhana property has preference over be rights of a subsequently adopted son, and Ss.9(2), 10, 10(g) and 11(1) were considered in that connection. The question, therefore, whether if a widow takes a share and subsequently makes as adoption, and her share cannot be divested by reason of S.9(2), Hindu Law Womens Rights Act, the same adoption can divest the property in the hands of the coparcener would still have to be considered by the lower Courts.

34. The widow of a predeceased coparcener is not a coparcener though she has a right to demand a partition and claim her share as against a single coparcener to whom the joint property has passed by survivorship. This has been held in 51 Mys HCR 317 (Y). The effect of this decision may also have to be considered by the lower Courts.

35. In view of the above the judgments of the lower Courts are set aside and the Munsiff will record evidence and dispose of the suit in accordance with law. The costs of this appeal will be costs in the cause and will abide the final result. Case remanded. AIR 1953 MYSORE 103 (Vol. 40, C.N. 47) "K. S. Vasanv. A. H. E. Taylor" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) K.S. Vasan, Petitioner v. Arthur H.E. Taylor, Managing Director, M/s. John Taylor and Sons (India) Ltd., Respondents. Contempt of Court Case No.3 of 1952-53, D/- 24 -10 -1952. Contempt of Courts Act (12 of 1926), S.3 - CONTEMPT OF COURT - OBJECT OF AN ACT - Scope. A criminal case was pending against the accused for having conspired and caused mischief by fire to a mine. The Managing Director of the mine while addressing the Annual General Meeting of the company stated "The regrettable outbreaks of Are which have occurred in the Mine since the close of the period under review have cast a shadow over this years working. These outbreaks were undoubtedly due to sabotage and have resulted in loss to the company, labour and Government and, though loss of life in fact did not take place, this might well have been the case. The police have instituted criminal proceedings against certain persons accused of being connected with these acts of sabotage". On the question whether this expression amounted to contempt of Court: Held, that there was no doubt some room for complaining that the respondent had, by saying that the incidents of fire were undoubtedly due to sabotage, given expression to an opinion on a matter which was sub judice and this might well have been avoided. But under the circumstances the statement did not prejudice the fair and impartial trial of the case and did not therefore amount to contempt of Court. 50 Mys HCR 129, Explained; (1896) 1 QB 577 : AIR 1944 Cal 69 (SB); AIR 1931 Cal 257; (1889) 58 LJQB 490 and 49 Mys HCR 22, Rel. on (Paras 3, 4, 7) Anno : Contempt of Courts Act, S.3 N.1. Cases Referred : Chronological Paras (A) 50 Mys HCR 129 (B) (1896) 65 LJQB 426 : 1896-1 QB 577 (C) (14) AIR 1914 Cal 69: 41 Cal 173 : 14 Cri LJ 321 (SB) (D) (31) AIR 1931 Cal 557: 58 Cal 884 : 32 Cri LJ 675 (E) (1889) 61 LT 343: 58 LJQB 490 (F) 49 Mys HCR 22: A. Shamanna, for Petitioner. Judgement This is an application under S.3, Contempt of Courts Act. In the affidavit filed along with the application the petitioner is stated to be an accused along with 25 others in C.C. No.1221/51-52 on the file of the Special First Class Magistrate, K.G.F., for alleged offences under Ss.34, 114, 120 and 436, I.P.C. The case against the accused in that case is said to be that A-1 to A-26 conspired together to cause mischief by fire in Nundydroog Mines and in pursuance of such conspiracy A-1 to A-4 and A-23 to A-26 caused such mischief by fire on 20-8-1951 resulting in damage to the mine and loss to the management of the value of about Rs.20,000/-. While the matter was thus sub judice Mr. Arthur H.E. Taylor who is the Managing Director of Messrs John Taylor and Sons, India Ltd., presiding over an Annual General Meeting of the Mining Companies held on 27th and 28-12-1951 is said to have stated as follows: "The regrettable outbreaks of fire which have occurred in the Mine since the dose of the-period under review have cast a shadow over this years working. These outbreaks were undoubtedly due to sabotage and have resulted in loss to the company, labour and Government and, though loss of life in fact did not take place, this might well have been the case. The police have instituted criminal proceedings against certain persons accused of being connected with these acts of sabotage." He is said to have also caused the same to be published in the Deccan Herlad and the Hindu There is no complaint against these newspapers and we have not been asked to take action against them.

2. The petitioner complains that the speech of the respondent and its publication in the newspapers characterising the fire in the mine as being undoubtedly due to sabotage and stating that the police have instituted criminal proceedings against certain persons accused of being connected with these acts of sabotage are misleading and prejudicial and are a vilification of the accused and amount to contempt of Court.

3. Mr. Shamanna, learned counsel for the petitioner has contended before us that the effect of such a statement and its publication amount to interference with the course of justice as the respondent has arrogated to himself the role of an investigator and usurped to himself the function of the Court of law by expressing an opinion on a matter which was sub judice. It was also an attempt to influence the public, the share-holders of the Mining Companies to be prejudiced against the accused in the criminal proceedings and would tend to prevent the Court from adjudicating and doing justice in the ease on the facts before it. There is no doubt some room for complaining that the respondent has, by saying that the incidents which are alleged to have taken place on 20-8-1951 were undoubtedly due to sabotage, given expression to an opinion on a matter which is sub judice and this might well have been avoided. But the circumstances under which that statement was made and whether it would tend to prejudice the fair and impartial trial of the case and would therefore amount to contempt is a matter for consideration. It appears to have been not merely proper to the Managing Director of the Mining Companies but even his duty to report to the shareholders at a General Body meeting what in the view of the management was the cause for those incidents. The reference is not to any of the accused personally nor has he said that the accused who are now being prosecuted are guilty. He has merely stated that the Police had instituted criminal proceedings against certain persons accused of being connected with these acts.

4. Those incidents could be due to either some unknown cause, or a result of some accident, or on account of sabotage the result of some wanton and deliberate act of some person or persons known or unknown. If the Managing Director, while reporting the Incident expressed his own view to the share holders of the company that it was not due to the first of the two causes but on account of the Third cause, it is difficult to hold that he had either the intention, which may not of course be conclusive in determining whether the same amounts to an offence of contempt or not, or much less, whether he considered, that it might tend to interfere with the course of justice, or whether in fact it would tend to do so. We have absolutely no doubt, and it is not even suggested before us to the contrary, that the Magistrate before whom the case is pending will try and decide the case without any reference to the opinion of the Managing Director. The case is not being heard by a Jury and therefore the fear that the speech might, prejudice the public against the accused and thereby cause them harm has not much real force.

5. Mr. Shamanna has relied on a case reported in - 50 Mys HCR 129 (A) where some references made to a pending criminal case by the then Minister for Revenue and Law were held to amount to a technical contempt of Court. In that case it was observed that the applicant in that case contended that he was aggrieved not so much by the fact of publication as by the fact that the answers amounted to a definite opinion on the part of Law Minister to government that he was guilty of the offence. Even in that case Venkataramana Rao, C.J., pointed out that the applicant did not come to Court immediately after the publication but waited for nearly a month before he moved the High Court and referred to - Reg. v. Payne, (1896) 1 QB 577 (B), as laying down a proper rule in the matter of interference by this Court in such cases as follows: "No doubt the power which the Court possesses in such cases is a salutary power, and it ought to be exercised in cases where there is real contempt, but only where there are serious grounds for its exercise." In - Governor of Bengal v. Motilal Ghosh, AIR 1914 Cal 69 at p.109 (SB) (C) Jenkins, C.J., has pointed out that it is not enough that there should be a technical contempt of Court; it must be shown that it was probable the publication would substantially interfere with the due administration of justice. In - Ananta Lal Singh v. A.H. Watson, AIR 1931 Cal 257 (D) fourteen persons belonging to the Congress Party were accused of various offences and were being tried at Chittagong By a Special Tribunal. The Editor of "Statesman" of Calcutta in the course of an editorial dealt with a controversy raised by another newspaper regarding the acts of violence alleged to have been committed by the Congress party at Chittagong and referred to the accused persons as "Chittagong Raiders. He had omitted the usual prefix alleged employed in such cases while referring to persons against whom the trial was pending though he made the correction later. Even in those circumstances Rankin, C.J., held that even the omission of the word alleged did not make any material difference and though there was a contempt of Court committed by the paper in question it did not call for serious interference at his hands.

6. In - Hunt v. Clarke, (1889) 58 LJQB 490 (E), Cotton L.J. observed : "And in my opinion although ..........there is here that which is technically a contempt, and may be such a contempt as to be of a serious nature, I cannot think there is any such interference, or any such fear of any such interference, with the due conduct of this action,...............as to justify the Court interfering by this summary and arbitrary process." In - 50 Mys HCR 129 (A), Venkataramana Rao, C.J., also ultimately concluded that no interference was called for for the exercise of the jurisdiction vested in him under the Contempt of Courts Act against respondent 1. He was, however, inclined to take a more serious view against the newspapers who had published the answers given by respondent 1 and even in that connection has observed at p.141 of the report as follows; "As I have already held, respondents 2, 3 and 4 are clearly guilty of contempt of Court in publishing the said report and they had far less excuse than that of respondent 1 who probably thought that he was obliged to give the answers after the ruling of the President But they slate that they did it bona fide and without any malice in the belief that they were merely publishing the report of the proceedings." As no allegations of mala fides or malice had been made by the applicant against them and as they had also published the subsequent proceedings which related to the expunging of the matter he directed dismissal of the application as against them also. That case is therefore really not in favour of the petitioner, and the words italicised (here in ) above really somewhat help the respondent.

7. In a recent case, Contempt of Court case of L.S. Raju, a Bench of this Court has held following - 49 Mys HCR 22 (F) that any writing published, which is not calculated to bring a Court or a Judge of the Court into contempt or to lower his authority or obstruct or interfere with due course of justice or the lawful process of the Courts, is not a contempt of Court within the meaning of the Contempt of Courts Act. It is very unlikely that the words in question which are merely at the most an expression of opinion of a person who is practically in the position of a complainant, is likely to be taken any serious notice of by any Court of law which is trying the offence and therefore is not likely to obstruct or interfere with the course of justice. Moreover there has been a very inordinate delay in making the application. It has been filed on 10-9-1952 though the speech complained of was made so far back as on 27th or 28-12-1951 and was published in the newspapers on 7-1-1952, There is absolutely no explanation offered for this long delay in the affidavit filed by the petitioner and is an additional and strong circumstance why this Court need not proceed further in the matter. In - 50 Mys HCR 129 (A) even one months delay in making the application was commented upon and was counted against the applicant.

8. In the result we see no reason to proceed further with this application and it is dismissed, Application dismissed. AIR 1953 MYSORE 105 (Vol. 40, C.N. 48) "Hayath Saheb v. B. Bharamanna" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) Hayath Saheb and others, Appellants v. B. Bharamanna and others, Respondents. Appeal No.207 of 1948-49, D/- 26 -11 -1951. Transfer of Property Act (4 of 1882), S.58, Proviso - MORTGAGE - SALE - Mortgage or sale with condition of recoveyance - Tests - Singleness of transaction is not conclusive test - Transaction held not mortgage but sale with condition of reconveyance. Proviso is no authority for holding that merely because the condition is embodied in the same document the transaction must be deemed to be a mortgage. AIR 1927 All 321 and 51 Mys HCR 187, Rel. on. (Para 2) Anno : T.P. Act, S.58 N.32. Cases Referred : Chronological Paras (A) 51 Mys HCR 187 (B) (37) 15 Mys LJ 64 (C) (27) AIR 1927 All 321 : 49 All 405 (D) (1858) 44 ER 924: 2 De G and J 97 (E) (50) AIR 1950 FC 38: 1949 FCR 537 Mir Iqbal Hussain, for Appellants; A.R. Somanatha Iyer and B.S. Puttasiddiah, for Respondents. Judgement The plaintiffs brought their suit in the Court of the Subordinate Judge at Chitaldrug for redemption and possession of the plaint schedule house and for mesne profits. Their case was that the plaintiffs and Ismail Sab, the deceased father of plaintiffs 1 to 3, executed in favour of the defendant a deed of mortgage by conditional sale dated 22-10-1936 for Rs.4,000/-. It was stipulated therein that if the plaintiffs paid Rs.4,000/- within the time fixed in it the defendant should reconvey the property to them; that though they had arranged for the payment and tendered the amount within time, the defendant had deliberately evaded to receive it. (1a) The defendant denied that the deed of 22-10-1936 was in the nature of a mortgage by conditional sale. It was really a deed" of sale with a condition for reconveyance and as the plaintiffs had not paid or tendered the amount in time as stipulated therein they were not entitled to any relief. The Subordinate Judge held that the deed question was really a sale deed and the transaction was really a sale with a condition for repurchase and not a mortgage and that the plaintiffs had failed to prove that they tendered the amount within the time stipulated. He, therefore, dismissed the suit. The plaintiffs have preferred this appeal.

2. In this Court, it is contended by Mr. Iqbal Hussain, learned Counsel for the Appellants, that the document Ex.A is in reality a deed of mortgage and not a sale deed. He urges that the value of the property at the time of its coming into existence, and the circumstance that the agreement to reconvey is embodied in the same document and not in two separate documents, are strongly in favour of his contention. He has referred to the proviso added to S.58, Transfer of Property Act by S.16 of the amending Act 16 of 1933 and relied on cases of this Court reported in 51 Mys HCR 187 (A) and - Puttasamiah v. Nagappa, 15 Mys LJ 64 (B). As observed by Sulaiman, J. in - Mathura Kurmi v. Jagdeo Singh, AIR 1927 All 321 (C) the singleness of the transaction though a strong test is not a conclusive one to hold that the transaction is a mortgage. The proviso merely declares that a transaction which is to be treated as a mortgage by conditional sale shall be deemed to be a mortgage only if the condition is embodied in the document which effects or purports to effect the sale. It is no authority for holding that merely because the condition is embodied in the same document the transaction must be deemed to be a mortgage. The same view has been affirmed in 51 Mys HCR 187 at p.201 (A).

3. The learned Subordinate Judge has found that the market value of the suit house at the time of Ex.A was not much in excess of Rs.4,000/- for which sum it was conveyed to the defendant. He has referred to the evidence of P.W.1 who has stated that its value was about Rs.8,000/- or 10,000/- when Ex.A was executed and that the plaintiffs agreed to sell it to him for Rs.8,000/- under Ex.B dated 20-10-1940 and has not accepted that evidence and that of P.W.2 who has attested Ex.B as that evidence relates only to the market value in October 1936. P.Ws.1 and 2 have given a grossly exaggerated value of the property as Rs.20,0007- at the time of their giving evidence and P.Ws 1 is clearly interested in supporting the plaintiffs; the learned Subordinate Judge has referred to the improbability that the plaintiffs could have agreed to sell it to him for Rs.8,000/-in 1940 if its value was Rs.10,000/- or more in 1936 and that prices could not have fallen since 1936. Apart from the evidence of the defendant and his witnesses on which the learned Subordinate Judge has relied for his finding on this question of market value, there is the circumstance that the plaintiffs have asked for mesne profits for the property at Rs.30/- per month which capitalized would give about Rs.5,000/-as the value of the house at the time of the suit in September 1946. In 1936, it must have been much less. The annual assessment on the house is also only about Rs.8/- and the house is described in the plaint as well as in Ext A as a country tiled house.

4. There are also some other strong circumstances which are against the plaintiffs contention that Ex.A evidences a mortgage and not a sale. It is termed a conditional sale deed. After referring to the earlier registered deed dated 27-2-1929 executed by the executants (other than plaintiff 5) for Rs.4,000/- mortgaging without possession the plaint schedule house at Davangere and another land in Igur village, it recites that as they were not in a position to discharge the debts due in cash they had agreed to sell the house, retaining the land for their own use out of the two hypothecated properties. It then provides that if Rs.4,000/- is paid by them before the end of the 4th year thereafter the defendant would have to reconvey the property to them, failing which the deed may be treated as an absolute sale deed and after the expiry of the period the defendant may enjoy the property as he liked. 4a. It has been held that one of the main tests to distinguish a mortgage by conditional sale from a sale with a condition for repurchase is whether the relation between the parties is that of a creditor and a debtor and whether what was described as purchase money in the deed was intended to be treated as a loan. The nature of the document is to be determined from its contents and from such extrinsic evidence afforded by the surrounding circumstances to show the relation of the written language to the existing facts, see 51 Mys HCR 187 (A). In this case, it is in evidence that, even the Interest on the previous mortgage (teed had soft been paid, regularly and a suit had been Sled by the defendant for its recovery. The debt was outstanding for more than 7 years. Admittedly the plaintiffs were not in a position to discharge the loan. The creditor released one item of property for their benefit in consideration of their executing Ex.A. The defendant has sworn that he was getting Rs.40/- per month as interest under the hypothecation bond and that the house could be leased for only Rs.290/- per year after he took possession.

5. P.W.1 Sha Veerachand has admitted that he used to tell the defendant that the plaintiffs were willing to sell the suit house to him but that the defendant told him that he wanted it for himself and that he nad conveyed this to the plaintiffs. It is most improbable that a creditor In the position of the defendant would give up a part of his security unless Ex.A was to be a conditional sale. He would really have derived no benefit by taking such a document and in fact would be prejudiced by it. This giving up of a part of the security and the taking of a fresh document like Ex.A is a conclusive circumstance, in favour of Ex.A being treated as a sale and not a mortgage. The intention to be gathered by this conduct is clearly that the relation of debtor and creditor should cease and that the parties should be governed by the new relationship created under the deed of conditional sale.

6. The short period of four years provided in Ext.A for repayment is another circumstance in favour of holding that it is a conditional sale and not a mortgage; see Gouts Transfer of Property Act, Vol.2, 1948 Edn., para 1404 and Mullas Transfer of Property Act, 1936 Edn., 330. If really the transaction was to be a mortgage with possession and that of a property which according to the plaintiffs was very valuable, there was no object in providing for such a short period for repayment. As observed in the extract at page 193 of 51 Mys HCR 187 (A) from Jones on Law of Mortgages, VIII Edition, Volume 1, paragraph 309: "........The Court is not restricted to any particular kind of evidence, but may consider almost any pertinent matter, including the preliminary negotiations and the statements of the parties at and after the execution of the instrument .........." The burden is always on the person who contends against the tenor of a document and unless there is clear evidence the Court ought not to hold that an instrument of conveyance is not what it purports to be; see -Alderson v. White, (1958) 44 ER 924 (D). The defendant, who has been examined on commission, has deposed about the preliminary negotiations before Ex.A was executed. According to him, it was decided between the parties that a sale deed should be executed in his favour and later on the plaintiffs requested him to give back the property to them if within four years they paid the sale amount and to that he agreed. This is supported by the evidence of his witnesses D.Ws.1 and 2 who have attested Ex.A. They nave stated that there was no intention at the the, of executing the deed of mortgage and that the parties really intended what is stipulated expressly in the document. We think therefore the Court below was right in holding that Ex.A evidences a conditional sale and not a mortgage.

7. Mr. Iqbal Hussain has contended that even so there is evidence in this case that the plaintiffs had arranged for payment of the amount due under Ex.A within the time stipulated therein and that the defendant evaded receiving that amount. The Court below has discussed-this evidence fully and has come to the conclusion that there is no merit in this contention. It does not seem to be necessary to refer in detail to the evidence, but it might be observed that if really the amount was available it is impossible to believe that the plaintiffs would have waited from the end of October 1940 when they are said to have made the offer till 7-9-46 to file a suit to enforce their rights. They could easily have had the amount deposited in Court under S.83, Transfer of Property Act or sent it by money order if the defendant refused to receive it personally. As has been held in - Shanmugam Pillai v. Annalakshmi Ammal, AIR 1950 PC 38 (E) a stipulation as to payment in an agreement to reconvey should be strictly fulfilled according to the terms of the contract as the reconveyance is in the nature of a privilege or concession.

8. In the result we see no reason to disturb the decision of the Court below and this appeal is dismissed with costs. Appeal dismissed. AIR 1953 MYSORE 106 (Vol. 40, C.N. 49) "Hanumantha v. Anantiah" MYSORE HIGH COURT Coram : 1 VENKATARAMAIYA, J. ( Single Bench ) A.B. Hanumantha Setty, Plaintiff, Petitioner v. H.S. Anantiah Setty, Defendant, Respondent. Civil Revn. Petn. No.461 of 1952-53, D/- 18 -2 -1953. Civil P.C. (5 of 1908), S.151 and S.152 - INHERENT POWERS - AMENDMENT - DECREE - ADVOCATE - Amenment of decree. Mysore Legal Practitioners Rules, R.20. Where the decree is in conformity with the judgment and there is no accidental slip or omission in the decree with regard to the award of pleaders fees, an application for amendment of the decree on ground that the award of pleaders fees is inadequate is not maintainable either under S.151 or S.152, Civil P.C., or under R.20, Mysore Legal Practioners Rules. The proper remedy of the applicant is to appeal against the decree. (Para 1) Anno : C.P.C., S.151 N.2, 4, S.152 N.2, 3, 6. Cases Referred : Chronological Paras (A) 39 Mys 825 (B) (41) 19 Mys LJ 286 (C) 39 Mys 1036 (D) (50) 1950 All LJ 587 : 54 Cal WN 568 (PC) Nittoor Srinivasa Rao, for Petitioner; P.R. Sreenivasan, for Respondent. Judgement On an application I.A. No.VII filed by the defendant under Rule 20 of the Rules under the Legal Practitioners Act in Original Suit No.8 of 1950-51 of the court of the Subordinate Judge, Chitaldroog, the sum of Rs.25/- mentioned in the decree as being payable to defendant towards lawyers fee is ordered to be amended by raising it to the ad valorem fee on Rs.4500/-. It is conceded that there is no variance between the judgment and the decree that Rs.25/- was definitely fixed as Advocates fee in the judgment by the predecessor of the Judge who has now made the order. The provision of law under which the application is filed cannot justify the amendment as it only refers to the mode in which the fee has to be assessed ordinarily, without affecting the power of the court to disallow or reduce the amount if it thinks fit. This as well as the conditions under which the decree once drawn up may be altered or amended are to be gathered from the provisions of the Code of Civil Procedure. There is no reference whatever to this in the order and it proceeds as if the fee has to be determined for the first time and the propriety of limiting the amount arose for consideration. If file defendant felt aggrieved by the small amount allowed as lawyers fee in the judgment it was open to him to challenge the same in appeal. The only ground on which amendment is sought in the application is that the fee awarded is inadequate haying regard to the value of the subject matter and nature of the contest. I do not think that this can be a valid reason for the decree being interfered with. Section 152, C.P.C., does not contemplate such errors, assuming it is so sufficient as to give jurisdiction to the Court for the purpose. The section refers only to arithmetical mistakes, clerical errors or those due to accidental slip or omission or inadvertence. None of these is alleged or even suggested to be existing in this instance. Sri Srinivasan on behalf of respondent argued that S.151, C.P.C. though not relied upon in the petition can be applied to the case. This would lead to the Court being required and competent to exercise the powers in appeal. The section cannot be pressed into service when the remedy otherwise is available but not sought for. In - 39 Mys 825 (A), a Division Bench of this Court has laid down that when the decree is in conformity with the judgment and there is no apparent error amendment is not permissible. See also - Hanuma Setty v. Mada Setty, 19 Mys LJ 286 (B). 39 Mys 1036 (C) cited for respondent is distinguishable as the omission to make any direction regarding costs was found to be due to inadvertence. The decision is that of a single Judge and related to an order in a claim case which is different from a decree in accordance with the judgment. In - Piyaratna v. Wahareke, 54 Cal WN 568 (PC) (D) with reference to a provision under the law in Ceylon similar to S.152 it was observed there; "The general rule relating to the amendment of an order of the Court is that once an order is passed and otherwise perfected in accordance with the practice of that Court, the Court which passed the order is functus officio and cannot set aside or alter the order, however wrong it may appear to he; that can only be done in appeal." The amendment is not warranted by the provision of law bearing on the petition and cannot be supported by the allegations contained therein. The order of the tower Court is set aside and the application I.A. No.VII is dismissed. Parties will bear their own costs. Order set aside. AIR 1953 MYSORE 107 (Vol. 40, C.N. 50) "Biligiri Naika v. Sidda Setty" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) Biligiri Naika and others, Petitioners v. Sidda Setty and another, Respondents. Criminal Revn. Petri. No.9 of 1951-52, D/- 16 -11 -1951. Criminal P.C. (5 of 1898), S.144 - NUISANCE - MAGISTRATE - Power of Magistrate to override private rights. Where the Magistrate came to the conclusion that one of the parties had established its rights, his clear duty was to enable the party having the right to exercise the same and, if need be, to restrain the other party by binding them over to keep peace by exercising powers vested in the Magistrate under the Code. The Magistrate should have exhausted other powers vested in him under the Code before resorting to S.144. (Paras 5b and 5a) Anno : Cr.P.C., S.144 N.3,15. Nittoor Srinivasa Rao, for Petitioners; V. Krishnamurthy, for Respondents. Judgement This petition arises from a final order under S.144, Criminal P.C., passed by the Special First Class Magistrate, Nanjangud. prohibiting absolutely the celebration of Konda (Fire-treading) festival connected with the annual observance of a feast to propitiate the Deity, known as Mari or Pattaladamma of Tagadur village. On the report of the police that party feelings and high tension between the Parivar and Ganigar communities did exist in respect of the celebration of the said festival and that there might be a likelihood of breach of public peace and tranquillity if the celebration is permitted, the learned Magistrate issued an order ex parte on 15-2-1951 prohibiting the function for a period of two months from that date.

2. The petitioners-first party belonging to the Parrvar community applied under S.144(5), Criminal P.C., to the Magistrate to rescind the ex parte order. The respondents representing the Ganigar community filed objections. No evidence was recorded. The learned Magistrate, however, heard arguments and made the preliminary order absolute on 22-3-1951. This petition is filed for revising the final order.

3. The case for the petitioners is that the Konda function is religious in nature and connected with the annual celebration of the feast to propitiate the Deity known as Mari or Pattaladamma, that it is their fundamental right to follow their own religious observances without any impediment, that the Parivar community people have been celebrating the -said feast year after year for the last many years and that they have absolately no objection to persons belonging to other communities taking part in the feast if they so desire. They have produced the licenses in original granted by the authorities for celebration during the years 1922, 1923, 1931, 1932, 1933 and 1950. The respondents pleaded that the Konda function is not a part of the religious ceremony. They characterised the function as only a harvest pastime or sport or amusement and that it was being performed on a co-operative basis by all the communities. They do not, however, deny the right of the Parivars but state that the function being a relic of the village community sport and the Parivar community having refused to co-operate with the bulk of the villagers as usual, there is no other alternative than to have as many Kondas as there are communities and, at any rate, another Konda function by them jointly by Ganigars and Uppaligars.

4. The Magistrate found that the first party members, Parivars, are the actual persons who have been obtaining licenses to celebrate the Mari festival and performing the incidental Konda function in the past years in Tagedur village in front of the temple of Sri Ankanatheswara and Pattaladamma and that people of other communities of the said village including Arasus, Ganigars and others participated in the performance of the said function on a co-operative basis. The second party members while admitting that they were not attempting to prevent the first party members from holding the Konda function stated that they would like to have their own Konda function since according to them, the first party have refused to co-operate with the second party. The Magistrate was, however, of opinion that the second party members have not come out with their real grievances and their attitude appeared as if they were itching for a quarrel by non-co-operating with the festival and observed that "every individual has a right to worship and equality before Law. But while in the act of observing that freedom of worship and equality, if the conduct of the parties happens to be riotous or leads to the disturbance of public peace, it is the duty of the Law Courts to safeguard the interest of the public at large by putting timely checks on the conduct and behaviour of the concerned parties......" He, however, concluded that there was an emergency on account of the high tension prevailing between the two parties which if the celebration is permitted may lead inevitably to the disturbance of public peace and hence, he rejected the application, made the ex parte order absolute and dismissed the petition of the first party in toto. 5a. It is contended by Sri Nittoor Srinivasa Rao that the final order of the Magistrate is illegal and ultra vires and the learned Magistrate has misconceived the scope of the section and misdirected himself in totally prohibiting the Konda function and that the Magistrate, having come to the conclusion that a long established right existed in the first party as confirmed by the documentary evidence, ought to have takes action to protect rather than suppress the right. It is urged for the respondent that the Magistrate has jurisdiction under S.144, Criminal P.C., to pass the order in question and that it should not ordinarily be interfered with in revision. 5b. I am unable to agree with the contention that the orders of the Magistrate are not revisable. The High Court has ample powers to revise the order and set aside if it is erroneous. The power conferred on the Magistrate under S.144 is of an extraordinary nature and it should be used to meet grave emergency. The maintenance of public peace being of paramount consideration, the Magistrate is the sole judge to determine the emergency and take action under that section. Indeed, he is perfectly justified in having passed an order ex parte when acting on the police report; but the function of the Magistrate does not cease with the ex parte order. Under Cls.4 and 5 of S.144, it is the duty of the Magistrate to investigate into the respective claims of the parties and alter or rescind the order already passed so as to give protection for the exercise of rights possessed by any person and for that purpose to take action against others likely to interfere with the exercise of such rights. Ordinarily, persons engaged in the exercise of lawful rights should have a right to the support of the authorities responsible for law and order. It is the obvious duty of the executive to give protection for exercise of the rights of any party. 5c. In the present case, the police have failed in their duty in giving such protection and appear to have followed the line of least resistance in applying to the Magistrate to prohibit the function from being celebrated on the ground that there existed tension between the parties which might lead to breach of public peace. After hearing the parties, the Magistrate has come to the conclusion that the first party has established a right by long usage to celebrate the function in question and the second party had no objection for such exercise and their attitude disclosed as if they were itching for a quarrel by non-co-operating with the festival. In such circumstances, the obvious duty of the Magistrate ought to be to exercise the powers in defence of the rights rather than in their suppression. In effect, the ex parte order which was in the nature of a temporary injunction when made absolute is rendered into a permanent injunction restraining for ever both the parties from celebrating the function. 5d. The function is an annual feature which cannot be stopped for ever. It was open to the Magistrate to have permitted both the parties to celebrate the festival for themselves in separate places, as requested by the second party members, or, in the alternative, when the Magistrate came to the conclusion that one of the parties has established its rights, his clear duty was to enable the party having the right to exercise the same and, if need be, to restrain the other party by binding them over to keep peace by exercising powers vested in the Magistrate under the Code. The Magistrate should have exhausted other powers vested in him under the Code before resorting to S.144. He has failed to do so. The final order is clearly beyond the scope of the section as it is not warranted by the circumstances. The order of the learned Magistrate is erroneous and unsustainable. Though the period covered by the order has long expired, the question will likely recur in the next season. I am of opinion that the order should not be allowed to remain on record.

6. The order under consideration is, therefore, set aside and this petition is allowed. Revision allowed. AIR 1953 MYSORE 108 (Vol. 40, C.N. 51) "Nagendriah v. Ramachandriah" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) M. Nagendriah, Plaintiff-Appellant v. M. Ramachandriah and another, Defendants-Respondents. Appeal No.201 of 1952-53, D/- 5 -12 -1952. (A) Court-fees Act (7 of 1870), S.7(iv)(b),Art.17(iii) - COURT-FEE - PARTITION - POSSESSION - Suit for partition by co-owner in possession. Mysore Court-fees Act (3 of 1900), Sch.2, Art.11B. Where a co-owner, co-sharer or co-tenant alleges that he is in joint possession of the property in suit and wants his share to be separated and put into his possession, a fixed court-fee under Art.17(iii) is sufficient. Even if he is in possession constructively, if not actually, a fixed court-fee would be sufficient. 44 Mys HCR 203, Foll. (Para 1) Anno : Court-fees Act, S.7 (iv)(b) N.2. (B) Court-fees Act (7 of 1870), S.7(iv)(b),Art.17(iii) - COURT-FEE - APPLICABILITY OF AN ACT - Applicability. Mysore Court-fees Act (3 of 1900), Sch.2, Art.11B. It is the allegation in the plaint that has to be looked into and the denial of that allegation by the defendant does not take the suit out of the scope of the section. 44 Mys HCR 203, Foil.; AIR 1950 Bom 4, Ref. (Para 4) Anno : Court-fees Act, S.7(iv)(b) N.2 Pt.14; S.7 (Gen), N.3. (C) Court-fees Act (7 of 1870), S.7(iv)(b) - COURT-FEE - APPEAL - Court-fee on appeal. Mysore Court-fees Act (3 of 1900), Sch.2, Art.11B. In an appeal arising from a suit for partition of joint properties, of which the plaintiff claimed to be in actual or constructive possession a fixed court-fee is payable on the memorandum of appeal, even though the trial Court had found the plaintiff not to be in possession of some or all such properties. The circumstances as to who is the appellant are not relevant. AIR 1950 Bom 4 and AIR 1941 Lah 123 (FB), Rel. on; Case law Referred; AIR 1937 Pat 514, Distinguished. (Para 4) Anno : Court-fees Act, S.7(iv)(b) N.9. Cases Referred : Chronological Paras (A) 44 Mys HCR 203 (B) (50) AIR 1950 Bom 4: 51 Bom LR 602 (C) (47) AIR 1947 Bom 259 : 49 Bom LR 72 (FB) (D) (28) AIR 1928 Cal 878 : 56 Cal 188 (E) (39) AIR 1939 Oudh 90 : 14 Luck 346 (F) (30) AIR 1330 All 443 : 52 All 756 (G) (41) AIR 1941 Lah 123 : ILR (1941) Iah 234 (FB) (H) (30) AIR 1930 Rang 164 : 126 Ind Cas 645

(I) (37) AIR 1937 Pat 514 : 16 Pat 491 (J) (50) AIR 1950 Mad 353 : ILR (1950) Mad 852 (K) (52) AIR 1952 Nag 350 (FB) H.V. Narayana Rao, for Appellant. Judgement VASUDEVAMURTHY, J. :- The plaintiff brought a suit in the Court of the District Judge, Bangalore for a declaration that he is entitled to a half share in the plaint schedule properties and for being put in possession of his half share after division. The defendant denied that he and the plaintiff were members of a joint family. He disclaimed interest in certain items which the plaintiff alleged belonged jointly to himself and the defendant and he claimed that he himself was the sole and absolute owner of the otter items described in the schedule to the plaint and was in exclusive possession of those items. The plaintiff paid a fixed court-fee of Rs.50/- on the plaint under Art.11(B) of Sch.II, Mysore Court-fees Act. This was at that stage proper and sufficient and the case reported in - 44 Mys HCR 203 (A) where it has been held that where a co-owner, co-sharer or co-tenant alleges that he is in joint possession of the property in suit and wants his share to be separated and put into his possession, a fixed court-fee under Art.11(B) is sufficient is fully in favour of the plaintiff in this matter. At p.213 it is observed that even if he is in possession constructively if not actually then a fixed court-fee would be sufficient. All the relevant cases in British India and in Mysore which had been decided by that date have been discussed in that judgment and we are bound by it. And if we may say so with respect, that decision appears to be correct and has not been questioned so far.

2. The learned District Judge who heard the present suit found on one of the issues that the plaintiff was not in joint possession of the properties except items 2, 9 and 10 and that he would have to pay court-fee in respect of the other items of properties and that the court-fee already paid by him was not sufficient. He made a decree in favour of the plaintiff declaring that he is entitled to a one-third share in item 2, and the entire items 9 and 10 of the plaint schedule properties and dismissed his suit in regard to the other items. The plaintiff has come up in appeal to this Court and has paid a similar court-fee of Rs.50/- as under Art.11 (B) of Sch.II.

3. The office has raised the question of the sufficiency of the court-fee and the point put against the appellant is that though the plaint may be deemed to have been properly and sufficiently stamped when it was filed, as there has now been a finding of the lower Court that the plaintiff is not in joint possession of certain items, whether he should not be required to pay court-fee ad valorem in respect of those items both in this Court and the Court below before his appeal is admitted and registered as a regular appeal.

4. We are inclined to think that the court-fee paid is correct. The decision in - 44 Mys HCR 203 (A) and the passage at p.209 to the effect that it is fairly well settled that it is the allegation in the plaint that has to be looked into and that the denial of that allegation by the defendant does not take the suit out of the scope of S.11(B) (which is the same as Art.17, Indian Court-fees Act) is in favour of the appellants contention. As also the case in - Vishnuprasad Narandas v. Narandas Mohanlal, AIR 1950 Bom 4 (B) where it has been held that a suit for partition falls under Sch.II, Art.17 and that it would be so whatever be the contentions urged by the defendant while resisting the plaintiffs claim. As observed at page 5 of the report: "In such a case if the plaintiff prefers an appeal against the decree dismissing a part of his claim it is not suggested that the proper court-fee on the memorandum of his appeal would not be the same as on his original plaint. If that is so, it is difficult to appreciate why an appeal preferred by the defendant against a decree based on a finding that the properties in suit are the properties of the undivided family and that they do not belong to the appellant-defendant as his exclusive properties should not similarly fall under Art.17, Cl.II of Sch.II." They point out that the nature of the suit would not change by reason of the contentions urged on behalf of the defendant and would depend on the plaint; it would still continue to be "on the whole" a partition suit and for the purposes of an appeal it would still be an appeal from a partition suit notwithstanding the nature of the findings recorded by the trial Court. The circumstance as to who is the appellant would not be relevant. They have followed - Shankar Maruti v. Bhagwant Gunaji, AIR 1947 Bom 259 (FB) (C) and relied for their decision on - Jyoti Prosad v. Jogendra Ram, AIR 1928 Cal 878 (D), - Parmeshur Din v. Hargobind Prasad, AIR 1939 Oudh 90 (E), - Jai Pratap Narain Singh v. Rabi Pratap Narain Singh, AIR 1930 All 443 (F) and on the Full Bench decision of the Lahore High Court in - Diwan Chand v. Dhani Ram, AIR 1941 Lah 123 (FB) (G) which also refers to and relies on those cases and - Abdul Rahman v. A.B. Crisp, AIR 1930 Rang 164 (H). In - AIR 1941 Lah 123 (FB) (G) it has been held that the wording of Art.17 shows clearly and indubitably that when a suit falls under any one of the clauses of Art.17, the plaint as well as the memorandum of appeal arising from such a suit is chargeable with a fixed court-fee of rupees ten only irrespective of whether the subject-matter in appeal is or is not capable of being estimated in money value. Therefore in an appeal arising from a suit for partition of joint properties, of which the plaintiff claimed to be in actual or constructive possession, a Court-fee of Rs.10/- is payable on the memorandum of appeal even though the trial Court had found the plaintiff not to be in possession of some or all such properties.

5. Except the Patna High Court which has been taking a somewhat different view - vide - Nand Kishore v. Achambit Kumar, AIR 1937 Pat 514 (1) based on some prevailing practice in that Court, all the other High Courts including our Court have taken the same view as the Bombay one as laid down in - AIR 1950 Bom 4 (B). In - Veluchami Pillai v. Sankaralingam Pillai, AIR 1950 Mad 353 (J) also relying on - AIR 1941 Lah 123 (FB) (G) and - AIR 1928 Cal 878 (D) and other cases it has been held that irrespective of the fact whether an appeal is against a preliminary or a final decree in a partition suit, the court-fee payable on such appeal will be under Art.17 (b) of Sch.II. In-Manohar v. Manoramabai, AIR 1952 Nag 350 (FB) (K) the opinion of the Full Bench was, relying on - AIR 1941 Lah 123 (FB) (G), that the court-fee payable on a memorandum of appeal in a suit for partition which falls under Art.17(vi) of Sch.II, Court-fees Act would be the same as that leviable on a plaint and is not to be assessed on the basis of the value of the subject-matter in appeal.

6. In the light of these decisions we direct that the court-fee now paid may be treated as sufficient. Order accordingly. AIR 1953 MYSORE 110 (Vol. 40, C.N. 52) "Brahmiah v. Narayanaswamy" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) C.N. Brahmiah and others, Accused-Petitioners v. B. Narayanaswamy, Complainant-Respondent. Criminal Revn. Petn. No.19 of 1952-53, D/- 27 -2 -1953. Trade Marks Act (1940, before amendment by Act 12 of 1946), S.68 - TRADE MARK - GENERAL CLAUSES - REPEAL AND SAVINGS - Commencement - Whole Act brought into force in whole of Mysore on and from 1-7-1948 by notification in Official Gaxette of 13-5-1948 - Civil Area, Bangalore, retroceded to Mysore in August 1948 - Act made applicable to Civil Area from Aug. 1948 by Retroceded Area (Application of Laws) Act. 1948 - No fresh notification under S.68 held was necessary. Mysore Trade Marks Act (12 of 1946), S.68. General Clauses Act (10 of 1897), S.5. (Para 4) Anno : Gen. Clauses Act, S.5 N.1. Cases Referred : Chronological Paras (A) (51) Cr R P No 6 of 1950-51 (Mys) (B) 24 Mys LJ 59

V. Krishnamurthy, for Petitioners; S.K. Venkatarangaiengar, for Respondent. Judgement BALAKRISHNAIYA, J. :- The petitioners are convicted under S.68, the Mysore Trade Marks Act, 1944 for having falsely published a Trade Mark as "registered" when it was not so registered, and sentenced to pay a line of Rs.10/- each, by the First Class Magistrate, Civil Area, Bangalore.

2. A concern run by the petitioners under the name and style of "Raja Soap Factory", manufacturing washing soaps in Mysore City put up goods in the market for sale. The complainant indented in August 1950 for the supply of soaps and found on the packages supplied trade labels of the pattern of Ex.P-3 displayed thus : "Raja Soap Factory Mysore Registered Trade 303 Mark Registered

303 Trade Mark" The goods with such representation are proved to have been delivered at the address of the complainant in the Civil Area on or about 4-9-1950. The case for the prosecution is that the representation of the said Trade Mark as registered is false and unauthorized and the petitioners by such publication have made themselves liable for punishment under S.68, Trade Marks Act. It is admitted that the Trade Mark used is not registered as claimed.

3. It is contended by Mr. V. Krishna Murthy for the petitioners that they are not liable to be convicted under the Trade Marks Act of 1944 as S.68 of the said Act cannot be said to have been in force in the Civil Area on the date of the offence as the operation of the said section could only commence by a notification issued not less than oneyear after the commencement of the Act in a particular area. There is no force in this contention.

4. The Trade Marks Act, 1944 (hereinafter referred to as the "ACT") which extends to the whole of Mysore received the assent of His Highness the Maharaja on 31-7-1944; some portions of the said Act came into force immediately; it was provided in S.68 of that Act that it would be applied from such date, not being earlier than one year from the commencement of the Act as the Government may by notification in the Official Gazette appoint in that behalf. In pursuance of the said requirement, a notification was duly published in the Official Gazette, dated 13-5-1948 appointing 1-7-1948, to be the date of its enforcement. The Act was thus brought into force in its entirety on and from 1-7-1948 in the whole State of Mysore and it is not denied that the petitioners would become liable for false representation in Mysore City, if prosecuted there.

5. The question that falls for determination is whether the act of publication by the petitioners on the relevant date would constitute an offence in the Civil Arafcjftrieh was retroceded to Mysore in August 1948. The laws in force in Mysore were applied to the Civil Area by the Retroceded Area (Application of Laws) Act of 1948 (hereinafter termed as the "Extending Act") under which 15-8-1948 was appointed as the date from which the said laws would become operative in the Retroceded Area. The "Extending Act" also declared that all the laws in force in the Retroceded Area immediately before the appointed day would cease to have force or validity on and subsequent to that day. The nature and the extent of operation of the laws applied depend essentially, on the exceptions, modifications and restrictions prescribed by the "Extending Act." There are also provisions in the "Extending Act" relating to the savings of some laws and modifications of others and these are set out in the several schedules appended to the "Extending Act." It is noteworthy that no exception is however made in the case of the Trade Marks Act, nor is its application otherwise limited or restricted- In the circumstances, the said Act should be deemed to have been applied in its entirety to the Civil Area as it stood in Mysore on the appointed day and to become operative and enforceable as and from that day. It is argued that the Trade Marks Act was made applicable to the Civil Area in the form as it stood in Mysore in 1944 with the power reserved under S.68 of that Act for issuing a further notification. This argument is untenable. What was introduced into the Civil Area to be operative from the appointed day was the entire Act as existed on that date in Mysore State. Surely the Act in existence in Mysore State was not one without the addition of the notification (for by that date, the Government had issued the notification under S.68 of the Act) but the law which was implemented by the notification. Speaking generally, a notification that brings any provision of an Act must be deemed to become a part of the law itself and in that sense after the issue of the notification, the provision of the law, contingent upon the issue of notificaiion, will become perfect and enforceable and it was this integrated Act that was made applicable to the Retroceded Area on and from the appointed day. Further, the powers vested under S.68 of the Act to issue a notification had become exhausted and no further power of making a fresh notification, lay. The section with the notification contemplated under it, had become indissolubly fused forming an integrated whole. What the Extending Act did was to apply the Trade Marks Act with S.68 in its integrated form to the Civil Area on and from 15-8-1948.

6. In almost similar circumstances, this Court has held in Cr.R.P. No.6 of 1950-51 (A) that the Mysore Explosives Act, which was one of the laws applied by the "Extending Act" to the Retroceded Area did not require iurtfeer formalities as a condition precedent to make it operative, as flie Act introduced was by then a full-fledged one.

7. It was next argued that the act complained of was not an offence before 15-8-1948, and it could not become an offence by the introduction of the Act into the Retroceded Area; and the learned Counsel invoked the decision reported in 24 Mys LJ 59 (B) relating to the construction of S.3-A of the Silk Control Order. It was laid down therein that the word "possession" which was made penal was intended to cover an unlawful possession and not innocent possession. This contention does not appear to be sound. The offence is alleged to have been committed in September 1950 more than two years after the "Extending Act." It is not disputed that any Act of Legislature would become operative from the date of its commencement, unless otherwise restricted; the argument thus implies that the Act could not have become enforceable on the date of its extension without a further notice, a contention which we have already rejected. The trial Court has thus rightly held that the petitioners are liable for the offence. In the circumstances, we see no reason to interfere with the conviction and sentence. This revision petition is therefore dismissed. Revision dismissed. AIR 1953 MYSORE 111 (Vol. 40, C.N. 53) "Doddarangappa v. Kenchegowda" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Doddarangappa, Plaintiff-Appellant v. Kenchegowda and others, Defendants-Respondents. Second Appeal No.351 of 1948-49, D/- 24 -6 -1952. (A) Civil P.C. (5 of 1908), S.11.RES JUDICATA - MORTGAGE - Mortgagor and mortgagee. A decision obtained against the mortgagor after the execution of a morteed cannot operate as res judicata against the mortgagee, if the mortgagee was not a party to that suit. Even where the matter directly and substantially in issue in the subsequent suit was directly and substantially in issue in the previous suit, still the mortgagee cannot be considered to be litigating under the same title in the subsequent suit as the mortgagor did in the earlier suit. Nor can he be said to be litigating under the same title as the transferee of the mortgagor, where be purchases the property in his suit on the mortgage. AIR 1916 Bom 204, 8 All 324; AIR 1935 All 351, Foll. (Para 3) Anno : Civil P.C., S.11 N.55. (B) Transfer of Property Act (4 of 1882), S.68 - MORTGAGE - Mortgagees right to recover mortgage-money. Mortgagees right to recover the mortgage-money by sale of the hypothecated property cannot in any way be affected by a mere decree obtained by a stranger against the hypothecator declaring that he is not the owner of the property. And the stranger does not, by such a decree, acquire the rights of the hypothecator. AIR 1935 All 351, Rel. on. (Para 6) Anno : T. P. Act, S.68 N.1. Cases Referred : Chronological Paras (A) (16) AIR 1916 Bom 204 : 40 Bom 679 (B) (86) 1886 All WN 101 : 8 All 324 (C) (35) AIR 1935 All 351 : 150 Ind Cas 868

V. Krishnamurthy, for Appellant; A.R. Somanatha Iyer, for Respondents. Judgement The property in dispute in this appeal originally belonged to Kenchegowda who, it is in evidence, died early in the year 1900 or in the early part of 1901. He left a widow by name Chikkamma and according to the case of the plaintiff, Mallegowda, father of Defendant 4 Karigowda is their adopted son. Karigowda hypothecated the property on 10-8-1927 to the plaintiff and the plaintiff obtained a decree against him and purchased the property in execution of that decree. Thelmsband of the second defendant claimed to be the reversioner of Chikkamma and obtained a decree against Defendant 4 in O.S. No.224 of 1935-36 on the file of the Munsiff, Madhugiri. The plaintiff-appellant has filed the suit now in appeal for a declaration of his title to the plaint schedule property and for possession of the same. Second defendant contends that Mallegowda, father of Defendant 4, was not the adopted son of Kenchegowda and Chikkamma and that alter the death of Chikkamma, her husband became entitled to the property as reversioner. Second defendant also pleads that the adoption was found to be sot true in the suit filed by her husband against ths 4th defendant.

2. The first and most important point for consideration in this case is whether the decree obtained against defendant 4 in which it was declared that his father Mallegowda was not the adopted son of Kenchegowda and Chikkamma is binding on the plaintiff and whether the plaintiff is precluded by principles of res judicata from reagitating the matter over again. It has to be noticed that the hypothecation in favour of the plaintiff was much earlier than the suit filed by the husband of the second defendant against 4th defendant. It cannot be said that defendant 4 could represent the interests of the plaintiff in that suit. If such a thing is possible, it is easy for a person to allow a decree to be passed against him declaring that he is not the owner of the property after hypothecating the property to the hilt with the result that the hypothecatee would be left without any remedy. The law, however, does not give room for the rights of a person like the plaintiff being defeated by a decree against the person who can under no circumstances be said to represent him in the previous suit. As observed in a similar case in - Ramachandra Dhondo v. Malkapa, AIR 1916 Bom 204 (A), "as a mere mortgagee, the plaintiff would not be bound by the earlier decision, because his title arose prior to the suit in which the decree against his mortgagor was obtained, and the mortgagor possessing only the equity of redemption had not in him any such estate as would enable him sufficiently to represent the mortgagee in the suit instituted after the mortgage." The question as to whether the plaintiff is bound by the previous decision to which his mortgagor was a party depends upon the construction of S.11, Civil P.C. which is as follows : "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court."

3. The matter directly and substantially in issue in this suit is the adoption set up by plaintiff. It was directly and substantially in issue in the previous suit and was heard and finally decided in a Court competent to try the present suit. The section would however not be applicable unless the plaintiff could be said to be claiming under the 4th defendant in the previous suit filed against the latter and it could be said that the plaintiff is litigating under the same title as that of 4th defendant in the previous suit. In a sense, it could be said that the plaintiff is a person claiming under 4th defendant since in execution of the decree against the latter, he has purchased all the interests he had. But as observed by Mahmood, J. in -Sita Ram v. Amir Begam, 8 All 324 (B). "The plaintiff in the present suit could not be treated as a party claiming under his mortgagor, within the meaning of Section. 13 of the Civil Procedure Code, and that section must be interpreted as if, after the words under whom they or any of them, claim, the words by a title arising subsequently to the commencement of the former suit had been inserted." Mahmood, J., relies on the observations of an American writer Mr. Bigelow. It is worthwhile referring to what that learned author says on this point. "Having ascertained the effect of judgment estoppels upon the actual parties to the record, let us now inquire into the effect and operation of personal judgments against those who were not strictly or nominally parties to the former suit, but whose interests were in some way affected by it. And first of privity, which, by Lord Coke, is divided into privity in law - i.e., by operation of law, as tenant by the courtesy; privity in blood, as in the case of ancestor and heir; and privity in estate - i.e., by the action of the parties, as in the case of feoffor and feoffee. These divisions are only important in defining the extent of the doctrine of privity; and as the rules of law are not different in questions at estoppel in these divisions, it will not be necessary to present them separately. But it should be noticed that the ground of privity is property and not personal relation. Thus an assignee is not estopped by judgment against his assignor in a suit by or against the assignor alone, instituted after the assignment was made, though if the judgment has preceded the assignment the case would have been different; hence privity in estoppel arises by virtue of succession. .Nor is a grantee of land affected by judgment concerning the property against his grantor in the suit of a third person begun after the grant. Judgment bars those only whose interest is acquired after the suit, excepting of course the parties." The decision in - AIR 1916 Bom 204 (A), has been followed in a later decision viz., - Mt. Katari v. Om Prekash. AIR 1935 All 351 (C) It has been held in -AIR 1935 All 351 (C), as follows : "Any decision obtained against a mortgagor after the execution of a mortgage-deed cannot operate as res judicata against the mortgagee, if he (the mortgagee) was not a party to the suit. Much less will a decision between a transferee of the mortgagor and a third person operate as res judicata between the mortgagee and such transferee when the same question arises in a subsecquent suit. The mortgagee cannot fee considered to be litigating under the same title in the subsequent suit as the mortgagor did in the earlier suit. Nor can he be said to be litigating under the same title as the transferee of the mortgagor." The plaintiff in this case can in no sense be said to have been represented by the 4th defendant in the suit filed by the second defendants husband against him as that suit was filed long after 4th defendant hypothecated the suit property in favour of plaintiffs. It cannot also be said that he is litigating under the same title as the 4th defendant did in the former suit. So the decision in the former suit against 4th defendant after the latter hypothecated the property to plaintiff cannot operate as res judicata against the latter. It is open in this suit to reconsider whether Mallegowda was the adopted son of Kenchegowda and Chikkamma, as contended for the plaintiff.

4. On this aspect of the matter, it is difficult to expect any direct evidence as the adoption took place about half a century ago. The oral evidence adduced on the side of the plaintiff amounts to the existence of reputation that Mallegowda was the adopted son of Kenchegowda and Chikkamma. There is hardly any doubt that Mallegowda was known to be the adopted son of Kenchegowda and Chikkamma in the village as some of the D.Ws., themselves refer to this as true and D.W.3 Kenchamma admits that Chikkamma wanted her husband to take Mallegowda in adoption. There is also the hard fact that Mallegowda, a man of totally a different village in Tumkur Taluk went and stayed with Kenchegowda and Chikkamma in Kotti village, Sira Taluk. He was in possession and enjoyment of the property. The khata of the land was changed to his name and he was described in the Revenue Records as the adopted son of Kenchegowda. It is also in evidence that Chikkamma made statements admitting the adoption and this is found from her statements made as late as 1927 in her petitions Exhibits P and Q to the Sub-Division Officer and the Deputy Commissioner respectively. Her statements are consistent with her earlier statement in Ex.F dated 18-2-1906 made to the Amildar referring to the fact that she had in an earlier application desired that the Khatha should be changed to the name of Mallegowda her adopted son.

5. It was urged before me as a ground of argument that in the year 1901 she made statements in Exts. VI and V that she had no children. It must be observed that the statement made in 1901 by Chikkamma that she had no children is not inconsistent with her later statement that Mallegowda is her adopted son, as Mallegowda might have been taken in adoption by Chikkamma after 1901. There is thus ample evidence to prove that Mallegowdas father, defendant 4 was the adopted son of Kenchegowda and Chikkamma, and the plaintiff who has obtained a decree against defendant 4 on the foot of a hypothecation deed executed by him and purchased the property in execution of the decree is therefore the rightful owner of the suit property.

6. It is contended that as husband of the second defendant had obtained a decree against the 4th defendant declaring that the former was the owner of the property and not the latter the former ought to have been made a party by the plaintiff in the suit filed by him on the hypothecation deed and that the decree obtained against the 4th defendant alone cannot affect the rights of the former. It is contended that if the 4th defendant had sold the property to the husband of second defendant, the decree obtained by plaintiff against the 4th defendant alone subsequent to the sale cannot bind the husband of the second defendant. This is no doubt so, but it cannot be said that the rights of the 4th defendant, whatever they might be were conveyed to the husband of the second defendant, in any manner. The plaintiff had the right to proceed against the property hypothecated by the 4th defendant who was the owner of the property and this right to recover his money by sale of the hypothecated property cannot in any way be affected by a mere decree obtained by a stranger against the hypothecator declaring that he is not the owner of the property. The following observations in - AIR 1935 All 351 (C), support this view. "Mt. Katoria did not acquire the rights of Ram Chandar by virtue of the decree in Dal Chands suit which merely created a bar against Dal Chand and those claiming under him." It is only necessary to state that the husband of the second defendant was in the position of Mt. Katori and that Ram Chandar was in. the position of 4th defendant. Second Defendants husband cannot be said to have acquired the rights of 4th defendant by virtue of a decree which declared that he had no rights. Second Defendants husband, was not a necessary party to plaintiffs suit as he had not acquired the rights of the hypothecator, i.e. of 4th defendant. Mallegowda the adopted son of Kenchegowda, was the rightful owner of the property. His son the 4th defendant became the owner after his death. 4th Deft. hypothecated the property to plaintiff and plaintiff has become the owner of the hypothecated property on his purchasing it in execution of the decree obtained by him against the 4th defendant. The suit filed against 4th defendant by second defendants husband after 4th defendant had hypothecated the property to plaintiff cannot bind the latter. Plaintiff is entitled to a declaration that he is the owner of the suit property and for possession of the same. The learned Subordinate Judge was therefore wrong in dismissing plaintiffs suit, and allowing the appeal filed against the decision of the learned Munsiff who had decreed the plaintiffs suit as prayed for. 7.The appeal is allowed with costs, the judgment and decree of the learned Subordinate Judge are set aside and those of the-learned Munsiff are restored. Appeal allwed. AIR 1953 MYSORE 113 (Vol. 40, C.N. 54) "Puttappa v. Basappa" MYSORE HIGH COURT Coram : 1 VENKATARAMAIYA, J. ( Single Bench ) Puttappa and another, Defendants-Appellants v. Basappa, Plaintiff-Respondent. Second Appeal No.595 of 1948-49, D/- 26 -6 -1952. HINDU LAW - Hindu Law - Alienation by sole surviving coparcener - Subsequent adoption. An adoption by a widow of a predeceased son does not affect alienation of the joint family property made by the father prior to the adoption, when the father was the sole surviving coparcener and the alienation was good at the time: AIR 1929 Mad 296, Relied on. (Paras 3, 4) Cases Referred : Chronological Paras (A) (48) 28 Mys LJ 271 : 54 Mys HCR 12 (FB) (B) (43) AIR 1943 PC 196 : ILR (1944) Bom 116 (PC) (C) (29) AIR 1929 Mad 296 : 52 Mad 398 (D) (46) AIR 1946 Mad 187 : ILR (1945) Mad 638 B.N. Puttasiddiah, for Appellants; V. Krishnamurthy, for Respondent. Judgement The question raised in this case is whether an adoption by a Hindu widow affects alienation of family properties prior to the adoption when the alienor was the sole surviving coparcener. The undisputed facts of the case are that the properties specified in plaint schedules belonged to a joint Hindu family consisting of Kolli Sanna Veerappa and his only son Hanumappa. The son died on or before 1934 leaving a widow Hanumavva and his father. On 9-8-1936, the suit properties were sold by the father Sanna Veerappa to one Subba Rao. The plaintiff relies on this sale to support his title. On 27-9-1937 Hanumavva the daughter-in-law of Sanna Veerappa sued him and his alienee for a share in the properties. The suit was dismissed. Defendant 2 is said to have given defendant 1, his son, in adoption to Hanumavva on 23-7-1936 and on the strength of this adoption the plaintiffs claim to the properties is challenged. The proceedings under s. 145, Criminal P.C, ended with an order under s. 146, Criminal P.C, to the effect that neither party was in possession of the properties. The suit from which this appeal arises was instituted by respondent for declaration of his right to the properties. The trial Court disbelieved the adoption and decreed the suit. In appeal, the adoption was held to be true and to have taken place not on 23-7-1936 but on 16-10-1936 the date of the deed of adoption. Nevertheless, the decree in favour of the respondent was confirmed as the adoption was of a date later than that of the alienation. This finding is questioned by means of a cross-objection, which has to be dismissed.

2. Sri Puttasiddiah the learned counsel for the Appellants contends that though the adoption was subsequent to the alienation, it is open to the adopted son to attack the alienation as if he was the son of Hanumappa when lie died. The theory of Betion which the argument proceeds has no doubt been accepted in some cases and adoption given the effect of divesting properties already vested in others. (See -Chikkawa v. Chikkappa, 54 Mys H.C.R 12 (FB) (A)). In applying the theory an exception is made in cases of alienations for lawful purposes and such alienations are held to be unaffected. In this case, the alienation is found to be valid at the time it was made and I see no reason to take a different view. On the date of the alienation, Sanna Veerappa was the sole and full owner of the properties and there was no restriction on his disposing of the properties. -Anant Bhikkapa v. Shankar Ramchandra, AIR 1943 P.C. 196 (B), which is the leading case in support of the view that adoption will divest persons of rights vested in them over properties, lays down that The sole surviving coparceners right to deal with the family property as his own would not be impaired by the mere probability of an adoption and for this - Veeranna v. Sayanna, AIR 1929 Mad 296 (C), is referred to. The facts of that ease are fairly similar to those in this. Defendant 1 in that case and his only son formed a joint Hindu family. The son died leaving the father and his wife and giving her authority to adopt. A few days after this the father, defendant 1, settled the family properties on his daughters. Subsequently his daughter-in-law adopted the plaintiff in that case and he sued the grandfather for partition of the family properties and possession of a half share. The question raised was whether the adoption can relate back to the date of the adoptive fathers death in order to defeat the grand-fathers settlement - Odgers, J., said "what authority there is with regard to alienations by a male holder is strongly and it seems to me conclusively against the contention argued for the appellant (the adopted son)." Venkatasubba Rao, J., observed "It is a normal incident of a joint family that a bare possibility of a concurrent interest coming into existence imposes no fetter on the alienation. A sonless father enjoys power of alienation without restraint, with the son the fetter comes into being and on his death the fathers full rights re-emerge." In spite of the settlement effected by the 1st defendant grandfather of the plaintiff being considered to be not for value and morally wrong, it was held that the plaintiff on the strength of adoption cannot challenge the settlement.

3. - Subramanian v. Muthiah Chettiar, AIR 1946 Mad 187 (D), relied upon by Sri Puttasidiah does not help the Appellant as it does not state anything to the contrary.

4. The decision of the Courts below decreeing the suit is correct. The appeal is dismissed with costs. Advocates fee Rs.20/-. Appeal dismissed. AIR 1953 MYSORE 114 (Vol. 40, C.N. 55) "Ramakrishnaiah v. Chandrasekhara Rao" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND BALAKRISHNAIYA, J. ( Division Bench ) B. Ramakrishnaiah, Plaintiff-Appellant v. T.S. Chandrasekhara Rao and another, Defendants-Respondents. Appeal No.73/1947-48, D/- 9 -3 -1951. (A) Civil P.C. (5 of 1908), S.11 - RES JUDICATA - APPEAL - Two suits tried together - Appeal from one. Where cross-suits between the same parties are tried together and decided by a single judgment, and an appeal is field against one of the decrees, the decree un-appealed does not operate as a bar so as to preclude the Court from dealing with the decree appealed against, as the very object of the appeal, in substance, if not in form, is to get rid of the decision which is pleaded as a bar. Case law discussed. (Para 8) Anno: Civil P.C., S.11 N.29. (B) Civil P.C. (5 of 1908), S.11 - RES JUDICATA - Co-defendants. The conditions necessary for a finding to operate as res judicata between co-defendants are that there should be a conflict of interest between co-defendants and that it should be necessary to resolve the conflict in order to give relief to the palntiff and the conflict or the issue must have been finally decided and the co-defendants must have been either necessary or at least proper parties in the former suit. AIR 1950 Assam 119, Rel. on. (Para 9) Anno : Civil P.C., S.11 N.46. (C) Civil P.C. (5 of 1908), O.32, R.7 - MINORITY AND GUARDIANSHIP - No record of sanction in express terms. There should be an express record of the sanction by the Court and such sanction cannot be presumed; otherwise the compromise is not binding on the minors. 44 Mys HCR 454 and 26 Mvs CCR 165, Rel. on. (Para 14) Anno : Civil P.C., O.32, R 7 N.3,5, (D) Transfer of Property Act (4 of 1882), S.72, S.25 - MORTGAGE - Payment of taxes. When the payment of the taxes is a duty on the part of the mortgagee he is like a trustee and he cannot affect the right of the mortgagor by his purchasing the property at a sale for such taxes. (Para 17) Anno : T.P. Act, S.72 N.3; S.76 N.8. (E) Transfer of Property Act (4 of 1882), S.72 - MORTGAGE - Payment of taxes. The mortgagee is in duty bound to safeguard the security mortgaged. If the arrears due on the suit property related to the period prior to his coming into possession of the property and if he has paid the arrears due to save the property he may claim the re-payment of that amount at the time of redemption. (Para 18) Anno : T.P. Act, S.72 N.3. (F) Transfer of Property Act (4 of 1882), S.72 - MORTGAGE - POSSESSION - Right of mortgagee to possession resisted and challenged - Mortgagee filing suit - Suit decreed and mesne profits and costs awarded - Mortgagee can only claim actual costs incurred by him in his salt - He is not entitled to add amount of mesne profits to mortgage debt. (Para 19) Anno : T.P. Act, S.72 N.3, 4, 5. Cases Referred : Chronological Paras (A) (06) 16 Mad LJ 63 : 29 Mad 333 (B) (16) AIR 1916 Mad 1133 : 29 Mad LJ 551 (C) (26) AIR 1926 Mad 378 : 92 Ind Cas 352 (D) (35) AIR 1935 Mad 214 : 152 Ind Cas 114 (E) (41) AIR 1941 Mad 524 : 200 Ind Cas 77 (F) (43) AIR 1943 Mad 139 : ILR (1943) Mad 235 (FB) (G) (43) AIR 1943 Mad 544 : 213 Ind Cas 225 (H) (26) AIR 1926 Lah 289 : 7 Lah 129

(I) (23) AIR 1923 All 490(2) : 45 All 506 (FB) (J) (42) AIR 1942 Oudh 335 : 200 Ind Cas 172 (K) (46) AIR 1946 Oudh 33 : 20 Luck 339 (FB)

(L) (47) AIR 1947 Nag 248 : ILR (1947) Nag 691 (M) (87) 1887 All WN 301 : 10 All 123 (N) (07) 4 All LJ 587 : 29 All 730 (O) (11) 7 Ind Cas 156 : 33 All 51 (P) (11) 7 Ind Cas 909 : 33 AU 151 (Q) (20) 18 All LJ 40 (R) (06) 4 Cal LJ 149 : 33 Cal 1101 (FB) (S) (14) AIR 1914 Cal 693 : 204 Ind Cas 243 (T) (21) AIR 1921 Cal 291 : 64 Ind Cas 574 (U) (23) AIR 1923 Cal 496 : 74 Ind Cas 591

(V) (31) AIR 1931 Cal 353 : 131 Ind Cas 562 (W) (48) AIR 1948 Pat 191

(X) (33) AIR 1933 Pat 78 : 12 Pat 139 (Y) (24) AIR 1924 Pat 823 : 75 Ind Cas 570 (Y-A) (38) AIR 1938 Rang 401 : 1938 Rang LR 594 (Z) 46 Mys HCR 287 (Z1) (16) AIR 1916 PC 78 : 43 Cal 694 (PC) (Z2) (50) AIR 1950 Ass 119 : ILR (1950) 2 Ass 225 (Z3) (32) AIR 1932 PC 161 : 10 Rang 322 (PC) (Z4) 26 Mys CCR 165 (Z5) 44 Mys HCR 454 (Z6) 28 Mys CCR 232

V. Krishnamurthy, for Appellant; Mirle N. Lakshminaranappa and S.R. Ramanathan, for Respondents. Judgement BALAKRISHNAIYA, J. :- This litigation relates to the redemption of a mortgage with possession of the property in dispute effected in the year 1905 more than four decades ago and ever since the rights to the property are fluctuating amongst different parties and their representatives whose respective claims will be discussed later.

2. The suits were filed in the Court of the District Judge, Mysore. Original Suit No.45 of 1945-46 is the earlier suit in which file appellant before this Court was impleaded as defendant 6 and the respondents to this appeal as defendants 4 and 5 respectively. The plaintiff in that suit sought for a declaration of title to the suit property in the character of the son and heir of one Hyath Bi who it is alleged was the previous owner of the property and also for a declaration that the sale by defendants 1 to 3 and their mother in favour of defendant 6 is null and void and that defendants 4 and 5 were in possession of the property as trustees for and on behalf of the plaintiff. The second suit, O.S. No.3 of 46-47, from which this appeal arises was filed by the appellant as plaintiff against the present respondents for redemption of the suit property and for damages. By consent of the parties, both the suits were consolidated and tried together. Common evidence was let in and a single judgment was given by the same Judge on the same day. The conclusions in the judgment were followed up in both the decrees, which however were drawn up separately. Both the suits were dismissed. The plaintiff in O.S. No.3 of 46-47 has filed this appeal against the judgment and decree in that suit; but no appeal has been filed by any of the parties in O.S. No.45 of 1945-46.

3. At the outset Sri Mirle Lakshminaranappa, on behalf of the respondents, raised a preliminary objection for the hearing of the appeal to the effect that the appeal is barred by the principles of res judicata. Arguments on the preliminary objection as also on the merits of the case were heard. Before discussing the nature of the objection set forth above, it is useful to set out the findings on the relevant issues in both the suits for a proper appreciation of the objection raised. The lower Court recorded its findings in O.S. No.45/45-46 regarding plaintiffs claims in that suit thus: "On the first issue, I hold that Hyath Bi was not the owner of the suit property. On the second issue, I hold that the plaintiff is not the legitimate son and heir of Hyath Bi as alleged by him". The findings on the other issues concerning the parties to this appeal were recorded as follows "On the 8th issue I hold that defendants 4 and 5 became the owners of the suit house as pleaded by them. On the 9h issue I hold that the title to the suit house has not passed on to defendant 6 by virtue of the sale held on 20-6-40 and 8-7-42 as pleaded by him. On the 10th issue I hold that defendant 6 has not a right of redemption as pleaded" In Original Suit No.3 of 1946-47 in which the appellant was the plaintiff, the findings on the issues were as under "On the 1st issue, I hold that the plaintiff has not acquired the equity of redemption and he is not entitled to redeem the suit property. On the second issue I hold that the defendants have become the absolute owners of the suit property and the suit property therefore is not liable for redemption". The first and second issues in the latter suit are the same as the 10th and 8th issues in the earlier suit.

4. It is contended that findings on Issues Nos.10 and 8 in O.S. No.45 of 45-46 have become final and operate as res judicata since no appeal was filed against the decree in that suit and the existence of a precious judgment is deemed to be a bar inasmuch as the matter has once already been fully canvassed and fairly and finally determined between the parties by a competent court of law.

5. It is a rule of law that no man shall be twice vexed for the same cause. This was expressed by the well known maxim res judicata pro veritate acceipitur which is understood to mean that the same question which has once been judicially decided should not again be reopened for consideration between the same parties in another action. Section 11, Civil P.C., provides that no Court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties or between parties under whom they claim to try such subsequent suit or a suit in which such issue has been subsequently raised has been heard and finally decided by such Court and Explanation (1) to the said section states that the expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. As is evident by the findings on the issues extracted above, there is, however, little or no doubt that the matter in the suit now under consideration was directly and substantially in issue in O.S. No.45 of 45-46 between the parties to this suit and was heard and finally decided.

6. Whether the term "former suit" means a distinct suit decided earlier between the same parties and extends to opposing parties inter se so as to attract the principles of res judicata, opinion differs. The expression "former suit" is generally interpreted to mean a suit previously decided and the same rule applies to appeals also. The previous decision becomes final in relation to the time when the subsequent suit is heard. Judicial opinion extending the bar of res judicata even between co-defendants inter se in a suit under certain circumstances is not wanting. The two suits under consideration have been between the same parties wherein common issues were raised and disposed of, the judgment being the common foundation of the two decrees. It is argued that the hearing of this appeal will reopen the decision so as to necessitate a re-examination of the grounds on which the decisions rest. There is again divergence of opinion whether a single judgment could form a final adjudication between the parties in the same manner as two independent and separate judgments governing two separate decrees between the same parties. Where cross-suits between the same parties are tried together and decided by a single judgment, and an appeal is filed against one of the decrees, the decree unappealed, it is held, does not operate as a bar so as to preclude the Court from dealing with the decree appealed against, as the very object of the appeal, in substance, if not in form, is to get rid of the decision which is pleaded as a bar. Some Courts hold that a single decision in two suits is not a final adjudication between the parties while others hold that the decision which forms the basis of a decree cannot be re-agitated, as one of the decrees under that decision which has never been directly challenged by way of an appeal would be collaterally attacked and imperilled. This conflict of decisions has mainly centred round the suits tried together on the same evidence and disposed of by the same Judge, the judgment passed in one case being followed up in the other, and an appeal filed against one of them, when no appeal was filed against the other decree though separate decrees were drawn up.

7. The Madras High Court is almost consistently in favour of holding that there is no bar of res judicata in such circumstances. (See Panchanda Velan v. Vaithinatha Sastrial, 29 Mad 333 (A). - Ramaswami Chetty v. Karuppan Chetty, AIR 1916 Mad 1133 (B); - Sumannakone v. Muthupalanichetty, AIR 1926 Mad 378 (C); - Lakshmi Ammal v. Official Receiver, AIR 1935 Mad 214 (D); -Govindayya v. Ramamurthi, AIR 1941 Mad 524 (E); - Pappammal v. Meena-mmal, AIR 1943 Mad 139 (F) and - Neelakandhan Nambudripad v. Krishna Ayyar, AIR 1943 Mad 544 (G). The same view is expressed laterly by the High Courts of Lahore, Allahabad, Lucknow, Oudh and Nagpur (Vide - Labh Singh v. Shah-bean Mir., AIR 1926 Lah 239 (H); - Ghansham Singh v. Bhola Singh, AIR 1923 All 490 (2) (I); - Behari Lal v. Ramchandra, AIR 1942 Oudh 335 (J); - Shankar Sahai v. Bhagwati Sahai, AIR 1946 Oudh 33 (K) and - Manohar Vinayak v. Laxman Anandrao, AIR 1947 Nag 248 (L). The Allahabad High Court has held different views at different times. (Vide - Chhajju v. Sheo Sahai, 10 All 123 (M); - Damodar v. Sheoram Das, 29 All 730 (N); - Zaharia v. Debi, 33 All 51 (O); - Dakhni Din v. Ali Asghar, 33 All 151 (P) and - Balhari v. Shiva, 18 All LJ 40 (Q). But, the Pull Bench decision in AIR 1923 All 490 (2) (I) is in consonance with the Madras view. In the case reported in - Mariam Nissa v. Joynab, 33 Cal 1101 (R), the majority opinion of the Pull Bench has been in favour of the Madras rule, though subsequently some Division Benches have taken a contrary view - Midnapore Zimindari Co. Ltd. v. Nitya Kali Dasi, AIR 1914 Cal 693 (S); - Gangadhar v. Sekali, AIR 1921 Cal 291 (T) and - Isup Ali v. Gourchandra, AIR 1923 Cal 496 (XX). The later view as expressed in - Manmohan v. Stub Chandra, AIR 1931 Cal 353 (V) is in agreement with the Full Bench decision in 33 Cal 1101 (R). The High Court of Patna in - Raghunandan v. Sowbagya Sundari, AIR 1948 Pat 191 (W) followed the earlier decision in - Gertrude Oates v. Millicent DSilva, AIR 1933 Pat 78 (X) which in turn relied upon AIR 1923 Cal 496 (U). - Dhani Singh v. Chandra choor, AIR 1924 Fat 823 (Y) follows 33 All 151 (P). The decision in - U Tun Maung v. Z. Ah Choy, AIR 1938 Rang 401 (YA) follows 33 All 151 (P). The Full Bench of Allahabad High Court in A1R 1923 All 490 (2) (I) which held that there is no such bar for hearing the appeal expressed the opinion that the decisions in 29 All 730 (N); 33 All 151 (P) and 18 All LJ 40 (Q) were so longer good law. The decisions of the Patna and Rangoon High Courts which followed the earlier decisions of Allahabad High Court and that of Calcutta, viz. 33 All 151, (P) and AIR 1923 Cal 496 (U) have been in effect disapproved in AIR 1923 All 490 (2) (I) and AIR 1931 Cal 353 (V). So the decisions of Patna and Rangoon High Courts are no longer authoritative. The Oudh Court follows the Full Bench decision in AIR 1923 All 490 (2) (I). The preponderance of judicial opinion has thus gravitated in favour of not raising a bar against hearing one of the appeals when two suits are disposed of by one and the same judgment and no appeal is filed against the other.

8. It only remains for us to consider the decision of this Court reported in 46 Mys HCR 287 (Z) where it is held that "a decree which has not been reversed or modified on appeal, review or revision or set aside in appropriate proceedings on the ground of fraud or for any other reason is declared to be not binding on any one of the parties, cannot be superseded by the result of any other suit". By the expression "cannot be superseded" Reilly, C.J., is understood to mean that the final adjudication of the decree under appeal should not have the effect of reversing or modifying altogether the decree, not appealed against in which case the provisions of S.11, Civil P.C. would inevitably be defeated. The circumstances in that case were probably such as to give room for disastrous consequences. If this appeal is allowed, it will not have the effect of either reversing or modifying the decree in O.S.45/45-46 dismissing the case of the plaintiff therein. We, therefore, fail to see how the judgment in the appeal before us could possibly have the effect of superseding the decree in the declaratory suit, O.S. No.45/45-46. If this should be a crucial test to be employed in cases of this type, we are clearly of the opinion that the test is wholly inapplicable to the facts of the case under consideration. As observed by Sir Lawrence Jenkins in - Sheo Person Singh v. Ram Nandan Prasad, AIR 1916 PC 78 (Z1), "the application of the rule by Courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law". Where a consolidated judgment forms the basis of two decrees in suits between the same parties and common issues are raised and disposed of and it is reopened so as to necessitate the re-examination of the grounds of that judgment, it could hardly be said that it represents a final adjudication between the parties. If the grounds for decision are common and are attacked as erroneous, its finality cannot be invoked for supporting the plea of res judicata till it has become really final The existence of two decrees is merely for the sake of complying with the barest formalities of law and it would indeed be the negation of the principle to say that a matter which is still res integra should operate nevertheless as res judicata. This statement of the law accepted by the majority of Indian Courts is, in our opinion, a correct and wholesome enunciation of the principle underlying the rule of res judicata and forms a proper guide for the application of the said principle.

9. The next point for consideration is whether in such circumstances there could be res judicata as between the co-defendants. The principle governing this aspect of the matter has been clearly enunciated in the decision reported in - Bhubindra Narayan v. Mt. Tarupriya Debya, AIR 1950 Assam 119 (Z2) which may with advantage be quoted. Their Lordships held "Under certain circumstances decision of issue between co-defendants, even though not incorporated in the decree, may operate as res judicata. The conditions necessary for a finding to operate as res judicata between co-defendants are that there should be a conflict of interest between co-defendants and that it should be necessary to resolve the conflict in order to give relief to the plaintiff. The conflict or the issue must have been finally decided and the co-defendants must have been either necessary or at least proper parties in the former suit". Whether the circumstances are such as to apply the principle of res judicata as between the co-defendants need an examination of the particular facts of each case. It has been urged that the finding in O.S. No.45 of 45-46 which has become final operates as res judicata against the parties in this suit as they were co-defendants in the former. The conditions necessary for a finding to operate as res judicata between co-defendants are that there should be a conflict of interest between co-defendants and that it should be necessary to resolve the conflict in order to give relief to plaintiff and the conflict or the issue must have been finally decided and the co-defendants must have been either necessary or at least proper parties in the former suit. Assuming that there is a final decision in this suit by reason of a decree in O.S. No.45 of 45-46 and also that there was a conflict of interest between the co-defendants, we have to find out whether it was necessary to resolve that Conflict to give relief to the plaintiff in O.S. No.45 of 45-46. "If the relief given to the plaintiff does not require or involve a decision of any dispute between the co-defendants, the co-defendants will not be bound as between each other" (Vide - Maung Seindone v. Ma Pan Nyun, AIR 1932 (PC 161 (Z3). The findings on the first two issues were that the suit property did not belong to Hyath Bi and the plaintiff was not the legitimate son and heir of the said Hyath Bi. The plaintiff in that suit did expressly claim the suit property in the character of his being the legitimate son of and heir to Hyath Bi. Both the issues were found against him. The claim of the plaintiff should have been defeated on the finding on either or both the issues referred to above even without recording any findings on Issues Nos.8, 9 and 10 in that suit. So, the relief given to the plaintiff did not involve any finding on the respective titles inter se of defendants 4 and 5 on the one hand and defendant 6 on the other. When the plaintiff in that suit was found to be not the legitimate son of Hyath Bi and not entitled to the suit property the suit ought to fail and should have been dismissed. The same issues were involved in the other suit which is now under consideration and findings were accordingly recorded; the findings on Issues Nos.8, 9 and 10 in O.S. No.45/45-46 were not at all necessary and indeed superfluous in order to give relief to the plaintiff. In the light of the above discussion, we are inclined to hold that the findings on issues 8, 9 and 10 in O.S. No.45/45-46 touching the parties to this suit who were arrayed as defendants in the other suit will not operate as res judicata for hearing this appeal.

10. Regarding the merits of the case, the fact is that the appellant who was the plaintiff in the Court below filed the suit, O.S. No.3/46-47, against the respondents for redemption oh the suit property. It is common case that Use property was mortgaged with possession to Davoodsab on 23-8-1905 for Rs.2000/-. The equity of redemption vested in Thayamma, the survivor of the mortgagor and the said Thayamma sold the equity of redemption in the property to one Rachamma alias Hyath Bi on 10-9-1929. Hyath Bi bequeathed her right to her daughter Choudi and her three sons, who in their turn sold the property to the plaintiff under a registered sale deed, Exhibit X, dated 26-8-1940. This is one of the documents on whiich the plaintiff in this suit rests his claim to redeem the property. One Ahmed Sab, the eldest son of Davood Sab, the original mortgagee, filed a suit for arrears of rent against Thayamma in O.S. No.299 of 1817-18 on the file of the First Munsiff, Mysore, and obtained a decree and in execution of the said decree in Execution Case No.135/28-29 got the right of redemption vested in Thayamma attached and sold and the same was purchased by his three minor sons represented by one Dastagir Sab as guardian in the court sale on 18-3-1930 who obtained possession of the property in the subsequent proceedings. These three sons of Ahmadsab, viz. Amirjan, Khalandar and Nabijan sold the suit property to one Pashupathiah under a registered sale deed dated 24-3-1940, who in turn sold the same to the plaintiff under a registered sale deed. Ex.13, dated 8-7-1942. The plaintiff thus claims to have perfected his title to redeem the property from the defendants-respondents who it is averred were in possession of the suit property as mortgagees.

11. The respondents disputed the claim of the plaintiff to redeem the suit property and contended that there was no right of redemption vested in Thayamma through whom the plaintiff and his predecessors-in-title claim as the said right of Thayamma had either been lost or extinguisned by reason of attachment and sale, in the execution proceedings, viz. in Execution Case No.135/28-29 arising out of the decree obtained by Ahmadsab against Thayamma for arrears of rent due from her. The respondents further allege that in respect of the arrears of tax payable on the suit property, the Mysore City Municipality filed a suit, O.S. No.80/31-32, on the file of the First Munsiff, Mysore, and obtained a decree therein and in execution of the said decree the property was purchased by the said Municipality in the Court sale. The defendants have next set up a claim of their own to the suit property on the ground that they have perfected their right and title to the property by purchasing the said property from the Municipality under a registered sale deed, dated 28-1-1943. The learned District Judge who tried the case upheld the contentions of the defendants and dismissed the plaintiffs suit with costs. It is against this judgment that the plaintiff has preferred this appeal.

12. The question for consideration before us is whether the right of redemption vested in Thayamma, the original owner of the suit schedule property, has passed on the plaintiff who claims the right to redeem the property under two documents, Exs.10 and 13, dated 26-8-1940 and 8-7-42 respectively and whether they are affected by the proceedings which will be adverted to presently so as to render either or both of them null and void as contended by the respondents. The question that win nave to be next considered is whether the claim of the respondents that they have perfected their title to the suit property as owners thereof holds good as against the appellant and if not, to what amount he would be entitled before he is directed to redeem the property.

13. It is admitted by both the parties that the right of redemption vested originally in Thayamma as the other mortgagors Chandrasani, Naga-sani and Kamalasani subsequently died without heirs leaving Thayamma alone as the sole heir to the property. As stated above, Thayamma sold her right in the property to one Rachamma alias Hyath Bi under a registered deed, Ex.23, dated 10-9-1929, subject, of course, to the usufructuary mortgage in favour of Davoodsab. One Ahmadsab, son of the said mortgagee Davoodsab filed a suit against Thayamma in O.S.299 of 1917-18 on the file of the Erst Munsiff, Mysore, for arrears of rent due from her and obtained a decree in respect thereof. It is also in evidence that the suit schedule property was got attached under Exhibit XX on 10-6-1929 in execution of the said decree in Ex. Case No.135 of 28-29 and that the said property was sold and purchased on 8-3-1930 in the court sale by the legal representatives of the said Ahmadsab, viz. his three minor sons Ameerjan, Khalander and Nabijan represented by their guardian, their paternal uncle, one Dastagirsab. Exhibit 21 is the sale certificate granted to them. The attachment of the suit property in execution of the money decree obtained by the said Ahmedsab having been effected long prior to the sale by Thayamma in favour of Hyath Bi under Exhibit 23, dated 10-9-1929, as admitted by tile appellant andl proved by the evidence in the case, the claim of the appellant Tinker tfae document, Ex.10, dated 28-8-1940, executed in his favour by Chowdi and her three sons who purported to have obtained a right to the suit property under a registered will, Ex.11, dated 28-9-1935, left by Hyath Bi, the vendee of the right of redemption from Thayamma, must be deemed to be imperfect. It, therefore, follows that the sale deed, Ex.10, is subject to the attachment and did not convey a perfect title to the appellant.

14. From the facts set forth in the preceding paragraphs it is seen that the right of redemption which originally vested in Thayamma passed on to the three minor sons of Ahmedsab viz. Amirjan, Khalander and Nabijan represented by their guardian Dastagirsab by reason of the proceedings taken up by them in Execution Case No.135/28-29. Exhibit 21, the sale certificate, issued to them by the Court shows that the property was sold to them on 8-3-1930 for Rs.347-7-0 subject to the prior mortgage in favour of Davoodsab. Thereafter, that is on 11-7-1930, the aforesaid minor sons of Ahemedsab represented by Dastagirsab obtained possession of the suit property through court. These three sons of Ahmedsab sold the property to one Pasupathaiya under a registered sale deed, dated 24-9-1940, who in turn sold the same to tlie plaintiff under a registered sale deed, Ex.13 dated 8-7-1942. The sale under Ex.10 subject to the prior attachment is, it is argued, perfected by the purchase of attachment rights. As by this time, it is clear beyond all reasonable doubt that Hyath Bi derived imperfect right in the suit property conveyed to her by Thayamma, it remains to be seen what hearing the proceedings in O.S.80 of 31-32 and the connected execution proceedings taken up by the Mysore Municipal Council have, on the rights of the appellant to the suit schedule property. The Mysore Municipality filed a suit, O.S. No.80/31-32, on the file of the First Munsiff, Mysore, for recovery of arrears of tax due on the suit schedule property against Hyath Bi as owner of the suit property and obtained a decree. In execution of the said decree in Execution Case No.693/31-32 the suit schedule property was got attached by the decree-holder on 31-7-1932. Exhibit 32 is the attachment list relating to the said execution proceedings. The minor three sons of Ahmedsab referred to above, represented by their guardian Dastagir Sab filed a claim petition, Miscellaneous Case No.195/32-33 under O.21, R.58, Civil P.C. stating that they had been in possession of the property as owners thereof and that the same was not liable to be attached and sold in execution of the decree obtained by the Municipality against Thayamma who had ceased to have any interest and prayed that the attachment may be raised. The claim petition was allowed and the Municipality subsequently preferred a revision petition before this Court in C.R.P. No.173/3334. At that stage, a compromise was entered into between the contesting parties and the same was recorded in the following terms : "Mr. Chinnaswami for opponents 1 to 3 represents that his clients are agreeable to pay the amount due to the Municipal Council in a months time from to-day and that in the event of their failure to do so, this petition may be allowed and the sale of the property may proceed. Mr. S. Sreekantian consents and it is ordered accordingly. There will be no order as to costs." The minor sons who were the respondents in the above revision petition failed to pay the amount in accordance with the terms of the compromise and consequently the property was sold in the execution proceedings and purchased by the Municipality. The minors took no further proceedings by instituting a regular suit as required under O.21, R.63, within a year from the date of the order. It is argued on behalf of the respondents that the right of redemption that was vested in them was lost to them by reason of their failure to institute a regular suit within a year therefrom to get rid of the order passed in the revision petition which was clearly binding On them, and that consequently the appellant has derived no right to redeem the suit property under Ex.13, execute in his favour by one Pasupathaiya who had purchased the right of redemption from the three sons, Amirjan, Khalandar and Nabijan, under Ex.9, dated 24-9-1940. That a rngular suit had to be filed within a year as provided for under O.21, R.63 to get rid of the order passed in the claim case, admits of no argument; but Sri Krishnamurthy has strenuously urged that the consent accorded in Civil Revn. Petn. No.173/33-34 and the order on it are void ab initio as against the minor sons of Ahmedsab, i.e., Amirjan, Khalander and Nabijan, for the reason that the mandatory provisions of O.32, R.7, Civil P.C. were not followed in according sanction to the said compromise. The respondents in the said revision petition were all minors represented by their guardian as is seen from the cause title of the revision petition, Ex.7, in the case. It was the duty of the counsel appearing for respondents in the case to have represented to the Court that the compromise was beneficial to the minors who were parties to the petition. That not having been done and the Court not having expressly accorded sanction for the compromise, it cannot, by any means, be said that the order in the said petition is binding on them to any extent. It has been held by this Court in 26 Mys CCR 165 (Z4) thus: "If it was not sanctioned by the Court or if the sanction granted is not entered on the record of the proceedings and that the petitioner having chosen to avoid it, he is entitled to do so if he was a minor ". That there should be an express record of the sanction by the Court and that such sanction could not be presumed, is laid down in a recent case reported in 44 Mys HCR 454 (Z5) thus : "In a compromise entered into by the guardian on behalf of the minor the Court did not expressly record his leave to enter into the compromise. Held that the compromise and the entering of satisfaction in accordance with it did not bind the minor judgment debtors to ................ To say that it was sufficient to presume or even to infer from other entries in the record that the Judge in such a case had complied with the rule, although he had not expressly recorded his leave, would be running against the plain words of the rule. The introduction in the rule of the words expressly recorded in the proceedings prohibits a Court from saying that a presumption or an inference that the Judge concerned gave, leave is equivalent to the express recording that he has done so." In this case, there is no indication of the Court having sanctioned the compromise as there is no such record in express terms. If the compromise is held to be not binding upon the minors, the original order passed in Mis. Case No.195/32-33 allowing the claim petition preferred by the three minor sons of Ahmedsab stands good so far as they are concerned and the execution proceedings by the Municipality culminating in the sale and delivery of possession of the ant schedule property cannot be said to be binding as against them. Consequently, the sale deed executed by them in favour of Pasupathaiya under Ex.9 and the one executed by the latter in favour of the present appellant under Ex.13 on the foot of which he seeks to redeem the suit schedule property must be held to be valid.

15. It is next submitted on behalf of the respondents that they having stepped into the shoes of the original mortgagee of the suit schedule property, viz. Davoodsab, by reason of the purchase of the mortgage right of the said property by their father in a court sale held in Execution Case No.527/27-28, of the decree obtained by one Gaffarsab against the legal representatives of the said Davoodsab in O.S. No.705/27-28 for recovery of the arrears of rent due to him under a registered lease deed, dated 14-6-1923. Exhibits 15 and 16 are the prohibitory orders served on Thayamma and the legal representatives of Davoodsab who were the judgment-debtors in the said execution case. Exhibit 17 is the sale certificate issued to the father of the respondents and it is seen from it that the sale of the mortgagees rights held on 30-1-1931 was duly confirmed on 27-11-1931. The respondents, it is represented, obtained symbolical possession of the property through Court. They subsequently Sled a suit in O.S.35 of 37-38 on the file of the Subordinate Judge, Mysore, to enforce their Tight of possession of the suit property impleading the legal representatives of Davoodsab, viz. the three minor sons of Ahmadsab who were the purchasers of the equity of redemption as mentioned in the preceding paragraphs and also the tenants of Hyath Bi, as each of them was adversely claiming to be the owner of the property for himself or herself. The said suit was decreed in their favour and in execution of the said decree, they also obtained possession of the property through Court on 14-8-1941 in Execution Case No.185/40-41. It is contended on behalf of the respondents that by virtue of the decree passed in their favour in O.S. No.35 of 37-38 and the proceedings thereunder they became absolutely entitled to the suit property. A scrutiny of these proceedings as admitted by the parties will show that there is no substance in that contention. The decree obtained by the said Gaffarsab against the legal representatives of Davoodsab was only a money decree. It must be observed here that Amirjan, Khalander and Nabijan, the sons of the deceased Ahmed sab, who had purchased the equity of redemption of the suit schedule property in execution of the decree obtained by their father against Thayamma were not made parties to that suit. The prohibitory orders show that what was attached in execution of the decree in O.S. No.705/27-28 was only the mortgage debt. The sale certificate, Ex.17, also shows that the sale was in respect of the mortgagees rights. The suit filed by the respondents in O.S. No.35/36-37 was for recovery of possession of the suit schedule property after declaring that they were entitled to possession of the same under the mortgage deed executed by Thayamma in favour of Davoodsab. It is thus clear beyond all reasonable doubt that what was attached and sold in execution of the decree obtained by Gaffarsab was only the mortgage debt due to Davoodsab and what the respondents secured under the decree in O.S. No.35 of 37-38 was only possession of the property in pursuance of the rights of a mortgage with possession. Neither the decree in O.S. No.705 of 27-23 nor the one in O.S. No.35 of 37-88 nor the proceedings thereunder affected in the least the equity of redemption vested in the three sons of Ahmedsab, firstly because they were not parties to the suit, O.S. No.705/27-28, and they are not bound by it and secondly because the dispute in O.S. No.35 of 37-38 was only in respect of possession of property as mortgagees and no dispute regarding the equity of redemption was involved in that suit. It, therefore, follows that the respondents have only stepped into the shoes of the original mortgagee, Davoodsab, and their right to the property has not by reason of these proceedings enlarged to any extent.

16. It is next contended for the respondents that even otherwise their mortgage right of the suit schedule property has fruitioned itself into an absolute right of ownership by reason of their purchase of the suit property under Ex.25, dated 28-1-1943. It has already been discussed above that the suit, O.S. No.80 of 31-32, filed by the Municipality against Hyath Bi for recovery of lax and the proceedings thereunder culminating in the purchase by the Municipality of the property in the Court helps them in no way to acquire any right to the suit property for the reason that the order passed by this Court in C.R.P. No.173/33-34 has been held to be vitiated for noncompliance with the mandatory provisions of O.32 R.7, Civil P.C.

17. Conceding that the respondents did clothe themselves with some right by purchase of the suit property from the Municipality under Ex.25, their position, at best, could be, as argued by the learned counsel for the appellant, no better than constructive trustees so far as the appellant is concerned. The appellant relied on the express stipulation embodied in the original mortgage deed, Ex.8 wherein it is specifically agreed that the tax due on the suit property was payable by the mortgagee himself. He draws our attention to a passage at page 714 in the book on Mortgages by Jones which runs as follows: "When the payment of the taxes is a duty on the part of the mortgagee he is like a trustee and cannot affect the right of the mortgagor by purchasing the property at a sale for such taxes. Such is his position when he has taken possession of the premises for the purpose of foreclosing his mortgage. He may pay the taxes and add the amount to the debt secured by the mortgage but he cannot acquire an adverse title by a purchase at a sale by the tax collector. Moreover, if the mortgagee has brought the tax title it is for the benefit of the mortgagor as well as lor his own benefit he cannot afterwards set up against the mortgagor to defeat a redemption by him. If a mortgagee standing in the relation of mortgagee in possession acquires a tax title and after sells the property under his power of sale and becomes the purchaser he cannot set up his tax title as against the right of mortgagor which was not released in the mortgage". The passage at page 276 in the Law of Mortgages, Vol.I by Ghose quoted by him is also to the same effect. He also relied on a decision of this Court reported in 28 Mys CCR 232 (Z6) which relates to "a suit for redemption where the mortgagee denied the rights of the plaintiff to redeem on the ground that the mortgaged property was sold to one N and the defendant purchased the same from N.(In default of defendant 1 - mortgagee who was liable to pay) .............. it was held that the principle of equity embodied in S.90, Indian Trusts Act, viz. that a man is not allowed to take advantage of his own wrong, should be applied to the case, and that as soon as the property came back to the possession of defendant 1 (mortgagee) the mortgage revived and the mortgagor or his heir gains a right to redeem it any time within 60 years being the statutary period".

18. It was on the other hand argued for the respondents that the arrears due on the suit property related to the period prior to his coming into possession of the property and that he was, therefore, not liable to pay the same and that his title conveyed by the sale deed. As 25, is not therefore affected. There is obviously no force in this contention. He was in duty bounfi io safeguard the security mortgaged. If he had paid the arrears due to save the property he may, at best, claim the re-payment of that amount at the time of redemption. This contention of the appellant must, therefore, be upheld though it may be unnecessary in view of our findings in the preceding paragraphs.

19. It now remains to be seen to what amounts besides the mortgage amount the respondents are entitled to before they are directed to be redeemed. They have claimed Rs.1522-2-0 towards costs incurred by them in the suit, O.S. No.35 of 37-38. But the execution petition marked as Ex.26 shows that the actual cost incurred by them is Rs.753-3-8. The respondants probably have added on to this sum the amount of mesne profits of Rs.720/- awarded to them in their suit as is seen from Ex.3, the judgment in the case. They are not entitled to add on this amount to the mortgage debt as S.72, T.P. Act only provides for recovery of moneys spent by the mortgagee for supporting the title of the mortgagor to fee property and also for making good his own title thereto against the mortgagor. The only amount that could, therefore, be allowed would be Rs.753-3-0 which, according to Ex.26, is the actual cost incurred in their suit which they were obliged to file as their right to possession of the suit property was not only resisted but also challenged. They next claim Rs.384-1-8 and Rs.77-7-0 in respect of taxes paid for the suit house. The first item represents the arrears and the latter amount the subsequent taxes as having accured due after suit till payment. It is no doubt true that there is an express stipulation in the mortgage deed that the mortgagee himself should pay the taxes payable on the property. But having regard to the fact that the Municipality had obtained a decree for arrears of taxes due on the property long prior to the respondents coming into the scene, it appears to us to be just and equitable to allow the amount of arrears, viz., Rs.384-1-8 to them as they were not in possession of the property during that period and derived no benefit therefrom. They are not, however, entitled to the other amount due for the subsequent period as they were obliged to pay after they got into possession, in regard to the remaining items claimed by the respondents, we are inclined to agree with the reasons and findings of the Court below in deallowing them.

20. In the result, the appeal is allowed. The plaintiff is entitled to redeem the property on payment of Rs.753-3-0 and Rs.384-1-8 with interest at six per cent per annum from the date of the decree in the former case and the date of payment in the latter in addition to the principal amount of Rs.2000/- secured by the mortgage. Time for payment is six months. In the circumstances of the case, we direct that the parties do bear their own costs of the suit throghout. Appeal allowed. AIR 1953 MYSORE 121 (Vol. 40, C.N. 56) "Thimmiah v. Nanjappa" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Thimmiah and others, Plaintiffs-AppellMfts v. Nanjappa and another, Defendants-Respondents. Second Appeal No.276 of 49-50, D/- 25 -6 -1952. Civil P.C. (5 of 1908), S.2(12), O.20, R.12 - DECREE - POSSESSION - DEBT RELIEF - Mesne profits. Debt Laws. Mysore Agriculturists Relief Act (18 of 1928), S.8. Suit for redemption - Court holding debt discharged and decreeing suit for redemption - Mortgagee held was not in wrongful possession till date of decree when relationship of mortgagor and mortgagee came to an end - Mesne profits could be allowed from, date of decree to date of delivery of possession and not from date of suit. 7 Bom 185; AIR 1915 Bom 131, Rel. on. AIR 1920 Bom 241 (1), Distinguished. (Para 5) Anno : Civil P.C., O.20 R.12 N.5. Cases Referred : Chronological Paras (A) (83) 7 Bom 185 (B) (15) AIR 1915 Bom 131 : 39 Bom 587 (C) (20) AIR 1920 Bom 241 (1) : 44 Bom 372 C.K. Narayana Rao, for K. Nanjundiah, for Appellants; C. Nagaraja Rao, for Respondents. Judgement The suit in respect of which this appeal arises was for redemption of a mortgage and was filed by the sons of the deceased mortgagor. The plaintiffs claimed to be agriculturists under the Agriculturists Relief Act. It was contended that if accounts were taken under the said Act, the mortgage debt would be found to have been discharged and they would be entitled to be put in" possession of the property mortgaged. They claimed mesne profits from the date of suit.

2. Both the Courts below have concurred in holding that the debt has been wiped out, on taking accounts under S.8, Agriculturists Belief Act, and as the debt was found discharged the suit for redemption was decreed. The learned Munsiff, however, allowed mesne profits from date of suit. But, on appeal, the learned Subordinate Judge held that the plaintiffs are not entitled to mesne profits from the date of suit. The plaintiffs have come up in appeal and entend that they are entitled to mesne profits from date of suit. A plaintiff is entitled to mesne profits only from a defendant who is in wrongful possession of his property. It has to be stated that the mortgagee is this case was not in wrongful possession a the property till the relationship of mortgagor and mortgagee was put an end to under the decree of the Court. Under the terms of the contract, the mortgage was subsisting and it is not possible to award mesne profits till it can "be said that the defendant is in wrongful possession.

3. The Mysore Agriculturists Relief Act is intended to give relief to the agriculturists from Indebtedness. It is not to get them any money which they have paid as per the terms of a contract but has been found to be in excess of what had to be paid on calculations being made under the Agriculturists Relief Act. Whatever may be the case with the Deccan Agriculturists Belief Act, Cl.(3) of S.8, Mysore Agriculturists Relief Act, which deals with the power of tile Court to enquire into the history of transactions between the patties clearly states : "Nothing contained in this section shall be deemed to empower the Court as the result of an investigation hereunder to grant relief by way of refund to an agriculturists, whether as plaintiff or as defendant, of any amount to which he is not otherwise entitled under any law for the time in force." Section 11(1) no doubt states that the Court may, in its discretion, in passing a decree for the Act direct that any amount payable by the mortgagor under that decree shall be payable in such instalments, on such dates and on such terms as to the payment of interest, and where the mortgagee is in possession as to the appropriation of the profits and accounting therefor, as it thinks fit. The accounting could only be in the manner referred to in S.8 of the said Act and it is made clear by Sub-S.(3) that no refund of any money realised by the mortgagee under the terms of the contract is to be made.

4. Sir Charles Sargent in - Janoji v. Janoji, 7 Bom 185 (A) observed that "In a suit for account and redemption, if the mortgagee, on taking the accounts, is found to have been overpaid, the general practice is to order the payment, by him, of the balance due to the mortgagor, with, interest from the date of the institution of the suit." In that case, the decree of the lower Court was varied by omitting the direction ordering the defendant to pay the plaintiff the balance due on taking accounts under the Agriculturists Relief Act on the ground that "There is no express provision in the statute either directing or enabling this to be done; and remembering that the Act encroaches on existing legal rights, it should, on general principle not be construed to extend beyond the particular object which the Legislature had in view in passing the Act and which in the preamble is said in express terms to be to relieve the agriculturist in the Deccan from indebtedness." The decision in 7 Bom 185 (A) was followed in - Ramchandra Venkaji v. Kallo Deyji. AIR 1915 Bom 131 (B) in which it has been held that : "Mesne profits from the date of suit could not be awarded as the enforcement of the provisions of Section 13 of the Dekhan Agriculturists Relief Act 1879, placed the mortgagor in a much more favourable position than he would be in, if he relied upon the terms of the contract, and no presumption could arise that the mortgagee was, apart from the provisions of the Act, not entitled to retain possession after the date of the institution of the suit."

5. A later decision in - Mahomed Ibrahim, v. Shaikh Mahomed, AIR 1920 Bom 241 (1) (C) was brought to my notice. In that ease it was held that under S.158(1), Dekhan Agriculturists Relief Act, the Court had power to allow interest to the mortgagee and to direct Mm to account for mesne profits from the date of suit till restoration of possession. That was however a case in which the debt had not been found to have been discharged even on taking accounts under the Agriculturists Relief Act, and no question of refund or allowing mesne profits after the date on which the debt was found to have been discharged arose for consideration. In fact the earlier decision in AIR 1915 Bom 131 (B) was referred to and distinguished in it. The lower appellate Court was therefore right in disalloving mesne profits from date of suit to the date of the decree in which date the relationship of the mortgagor and mortgagee came to an end by the direction of the Court and mesne profits could have been allowed from date of decree to date of recovery of possession.

6. In the result, the judgment and decree of be lower appellate Court is modified by allowing mesne profits from date of decree to date of delivery of possession which shall be ascertained after an enquiry on an application made therefor. The parties shall bear their own costs in this appeal. Decree modified. AIR 1953 MYSORE 122 (Vol. 40, C.N. 57) "Nanjundasetty v. Venkatachar" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA AND MALLAPPA, JJ. ( Division Bench ) S. Nanjundasetty, Plaintiff-Appellant v. Silpi Venkatachar and others, Defendants-Respondents. Second Appeal No.112 of 1949-50 and Civil Revn. Petn. No.45/49-50, D/- 9 -11 -1951. Transfer of Property Act (4 of 1882), S.101 - MORTGAGE - Mortgagee purchasing mortgaged property - Effect. The effect of the purchase is to bring about a merger of rights as mortgagee with those of purchaser except in relation to a puisne mortgagee under S.101. When the mortgagee purchases the equity of redemption and acquires ownership he may keep the mortgage alive for his own defence as against a puisne encumbrancer but the mortgage is nevertheless extinguished as between the mortgagor and mortgagee or as between the mortgagee and a stranger. The provision is intended for the benefit of the mortgagee. The mortgagee cannot be considered to be trustee in any sense by becoming the purchaser of the property. (Paras 2b, 3) Anno : T.P. Act, S.101 N.9. Cases Referred : Chronological Paras (A) (32) 10 Mys LJ 478 (B) (13) 40 Cal 89 : 39 Ind App 228 (PC) A.R. Somanatha Iyer, for Appellant (In No.112) and E. Kanakasabhapathy, for Petitioner (In No.45); H. Sreenivasa Murthy, for Respondent No.1. Judgement This is an appeal by the plaintiff in a suit for redemption of a mort-gage of a house situated in Bangalore City effected under a registered deed dated 15-8-1921 for a sum of Rs.3,000/- and prescribing a period of 26 years. Defendants 2 and 3 are plaintiffs sons and do not contest the suit. Defendant 1 while admitting the mortgage pleaded that the plaintiff has no right to redeem as the equity of redemption was purchased by defendant 1 in Ex. Case No.1121 of 1936-37 in execution of a decree of the Court of Small Causes for payment of money due on a bond, against the plaintiff and defendants 2 and 3. The suit was dismissed by the learned Munsiff and the decision is confirmed in appeal. It is contended that the sale has not the effect of extinguishing the mortgage and that plaintiff as a person having interest in the property is entitled to redeem. Prior to the present suit defendants 2 and 3 sued the presentplaintiff and defendant 1 in O.S.36 of 29-30 impeaching his rights under the purchase. The suit ended in a compromise terms of which are set forth in Exhibit 3 dated 1-12-1932. The compromise expressly recites at the beginning that the property now in dispute was acknowledged to be that of defendant 1 and that the others viz. defendants 2 and 3 and the plaintiff have no right to it. 2a. Sri Somanath Iyer, learned Advocate for the appellant, argued that since the present plaintiff was not a party to the compromise and according to the compromise the money due under the decree had to be paid, defendant must be deemed to have given up his rights under the Court sate. He also argued that the recitals in the sale proclamation and the sale certificate that the sale was. subject to the mortgage denotes that intention of defendant 1 at the time was to keep the mortgage alive and that even if the equity of redemption is deemed to have been acquired by the .1st defendant he was only a trustee for the plaintiff. Plaintiff cannot pick out a portion of the compromise and ignore the rest to support his claim. The terms are to be read as a whole and the understanding in substance was that out of two properties purchased by defendant 1 at the Court sale, viz. the suit property and the adjacant one both of which, were subject to mortgage, defendant 1 gave up his rights as purchaser in the adjacent item and perhaps in consideration of this the decree amount was to be paid.. If the plaintiff relies upon the compromise, he cannot seek redemption as the suit property is declared therein to belong absolutely to defendant 1. This is consistent with what is stated in the sale proclamation and sale certificate. Both these mention that the property was purchased by defendant 1 subject to the mortgage. The expression subject to the mortgage cannot be construed as limiting the rights of the purchaser to those of the mortgagee as that would amount to the sale conferring on the purchaser no rights at all. The sale implies that the rights of the mortgagor are acquired by the purchaser and these include the equity of redemption. 2b. There is no prohibition for a mortgagee being the purchaser of the property mortgaged to him see - Nimma Subba Rao v. Shame Gowda, 10 Mys LJ 478 (A) and the effect of the purchase is to bring about a merger of rights as mortgagee with those of purchaser except in relation to a puisne mortgagee under section 101, Transfer of Property Act. As stated in Mullas Transfer of Property Act at page 559 "When the mortgagee purchases the equity of redemption and acquires ownership he may keep the mortgage alive for his own defence as against a puisne encumbrancer but the mortgage is nevertheless extinguished as between the mortgagor and mortgagee or as between the mortgagee and a stranger." The provision is intended for the benefit of the mortgagee. Plaintiff is not either a puisne-mortgagee or a stranger and cannot in spite of the sale contend that the equity of redemption is not lost.

3. In - Bhawani Kumar v. Mathura Prasad Singh, 40 Cal 89 (PC) (B) it was held "When a charge-holder acquired the ownership of the property charged and there were no intermediate incumbrances and no other circumstances showing that it would be for his benefits to keep the charge alive, the charge was extinguished by merger." It is not apparent how the mortgagee can be considered to be trustee in any sense by becoming the purchaser of the property. No case or statutory provision in support of this was referred to. As the appellant is not shown to have any right or interest in the property which entitles him under law to seek redemption and the mortgage is extinguished by the mortgagee becoming owner of the property the suit was rightly dismissed. Consequently, the appeal fails and is dismissed with costs. Appeal dismissed. AIR 1953 MYSORE 123 (Vol. 40, C.N. 58) "Sadha Laxmi v. Dr. M. V. C. Sastri" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) Sadha Laxmi, Appellant v. Dr. M.V.C. Sastri, Respondent. Misc. Appeal No.32 of 1949-50 and Appeal No.179 of 1950-1951, D/- 28 -7 -1952. Mysore Guardians and Wards Act, S.16 - GUARDIANS AND WARDS - APPOINTMENT - Appointment of guardian - Matters for consideration. Guardians and Wards Act (8 of 1890), S.17. In appointing guardian personal law of parties should be considered and in the case of Hindu child father is primarily entitled to be guardian - Girl child Jiving with father ever since estrangement between him and mother - father in good circumstances and though married a second time taking proper care of child and giving it education and training to become accomplished - Mother not in possession of any means and dependant on others - Child expressing preference for father - It is not in interest of child to disturb stay with father and hand her over to care of mother: Case law ref. (Para 6) Anno : Guardians and Wards Act, S.17 N.2, 3, 6, 7, 10. Cases Referred : Chronological Paras (A) (1883) 53 LJ Ch 258: 25 Ch D 220 (B) 33 Mys HCR 226 (C) (41) AIR 1941 Bom 103 : ILR (1941) Bom 455 (D) (49) AIR 1949 Mad 608 : 1949 Mad WN 140 (E) (50) AIR 1950 Mys 8 (F) (22) AIR 1922 Bom 405 : 68 Ind Cas 518 (G) (48) AIR 1948 Oudh 266 : 1948 AWRCC 21 (H) (07) 4 All LJ 22: 29 All 210 Mirle Lakshminaranappa, for Appellant; V.V. Srinivasa Iyengar, for Respondent. Judgement VENKATA RAMAIYA, J. :- This is an appeal under the Guardians and Wards Act. The controversy is between parents, who are both Hindus, about the guardianship of the person and property of their only daughter. The child was born in February 1942, had the benefit of the care and company of both father and mother till 31-5-1944 and is separated from the mother since then, as she left the husbands house on that day and renewal of association between her and her husband has not been possible so far. After the mothers departure, the child was brought up for some time by the fathers mother in Bangalore and on the death of the grand-mother in December 1944, by a relation of the father, at Madras. The father married a second wife in June 1946 and the child has been living with the father from the time the second wife joined him.

2. The mother attempted at first to obtain custody of the child by saeazs of an application for writ of Habeas Corpus in the High Court at Madras. The application was dismissed on 5-8-46 with the observation "as respondent 2 its father is the lawful guardian of the infant and as it is not suggested that the child is not being properly cared for, we cannot grant the petition". Subsequently she filed the application under the Act in a Court at Bangalore for her being appointed guardian of the person and property of the minor alleging firstly that the child was not properly looked after especially because of the second wife of the father being occupied with the household work and in rearing up of her own child and secondly that the father attempted to kill the child on 23-5-1948 by administering chloroform with the object of rendering the guardianship proceedings infructuous. Both these allegations were repudiated by the respondent who is the father of the child. The learned District Judge on a consideration of the evidence and principles governing the case dismissed the application with costs. The mother has preferred this appeal.

3. Of the two grounds relied upon in the lower Court the one accusing the respondent of an attempt to kill the child is given up and we may add, very properly. The allegation is a very serious one and should not have been put forward without proper inquiries even though it was due to the information said to have been conveyed to appellant by others. What remains to see is whether the child is not properly taken care of in her present envirnments.

4. There can be no doubt that it is best for the well-being of the child to be under the protection of its parents and the child is entitled to joint care and affection of father and mother. As observed by Pearson J. in a similar case in - re Elderston, (1883) 25 Ch D 220 at p.229 (A), "persons who choose to enter the sacred bonds of marriage take upon themselves a responsibility ........ towards such children as they may have so to live that those children shall have that to which they are entitled, the benefit of the joint care and affection of both father, and mother and neither of them is entitled to so act as to deprive the children of that which they have thus guaranteed to them". Unfortunately in this case the child is deprived of this advantage on account of the estrangement between father and mother and even the consideration of the childs happiness has not served to bring about a reunion between them. It is, however, not disputed that in spite of the quarrels between the father and the mother both are interested in the child and are willing to do all that he or she can for the good of the child. The question is, when the father and mother have fallen out and live apart, is it necessary or proper to change the custody of the child from the hands of the father? Admittedly the mother went away leaving the child when it was about two years old and has failed in her efforts to come back. The father has reared it up all these years with the aid of his mother, relations and his second wife. The evidence shows that he has put the child in a school and arranged for tuition at borne. As regards means, the father as the earning member with a decent salary and holding a responsible post is in a better position than the mother who is apparently not possessed of any property to provide for the needs of the child and for her settlement in life.

5. Sri Lakshminaranappa, the learned counsel for the mother, argued that having regard to the fact that attachments and affections of the mother are higher than those of any other towards a child and that step-mothers as a, rule are not kindly to their step-children, the child should be allowed to live with the mother. He has also represented that the minor being her only child would receive from her undivided attention unlike the stepmother who has children of her own to be nursed. The sincerity of feelings and certainty of devotion of a mother towards an only child particularly when it happens to be a girl and that a stepmother however well-disposed is not an adequate substitute for a mother are beyond question. But these atone cannot be a determining factor for her being appointed guardian, the paramount consideration being the welfare of the minor. Welfare cannot mean merely physical comfort and must be taken in its widest sense to include amenities and arrangement required for the girl being educated and accomplished to be happy in the present as well as in. the future. It is doubtful whether the facilities now afforded to the child for these by the father will be available with the mother as she herself has to live with others.

6. As mentioned in the order of the learned District Judge, S.16, Guardians and Wards Act requires that the personal law applicable to the parties is to be taken into account while appointing a person as guardian. Under the Hindu Law the primary right to be the guardian of the children is that of the father. (See Colebrookes Digest, Volume 3, Chap.8). In 33 Mys HCR 226 (B) a Bench of this Court held "a father as the natural guardian is entitled to have the custody of the infant as against other relations inclusive of even the mother and his claim must be allowed to prevail unless ............the Court is judicially satisfied that the welfare of the child requires that the parental right should be superseded." Though it was a case in which the dispute was not between father and mother, as in this case, but between father and maternal grand-father after the death of the aether, toe principle enunciated in the decision is important. Sri Lakshminaranappa, learned counsel for the appellant cited some cases in support of his contention that the mother should be appointed guardian of the minor in preference to the father. Saraswathibai Shripad v. Shripad Vasanji, AIR 1941 Bom 103 (C) strongly relied upon was a case in which the minor was a boy of 21 years living with the mother when the father who had taken a second wife applied for being appointed guardian. The application was dismissed on the view that though the father was the natural guardian the interests of the boy did not justify his being taken away from the custody of the mother, with a significant remark by Wadia, J., "the father having married again may not be a ground for depriving aim of the custody of his minor child". - Kaliappa Goundan v. Valliammal, AIR 1949 Mad 608 (D) as a decision of a single Judge in which this case is referred to as laying down that the mothers daim shoaki be upheld in preference to that of the father. The decision cannot be taken to be that the father should be deprived of the custody of the ehild even though he is taking care of it well. -Narasimha Setty v. Chennamma, AIR 1950 Mys 8 (E) was also a case in which the application of the father was dismissed, the reason being that the minor was brought up by the maternal relations for years ever since it was left with them by the mother and father, the father evinced no interest in the minor for years and after the settlement of properties for the benefit of the minor by the maternal relations and on the death of the mother the father put forward the claim. - Bai Tara v. Mohan Lal Lallubhai, AIR 1923 Scan 405 (F) and - Shushila Ganju v. Kunwsr Krishna, AIR 1948 Oudh 266 (G) are other cases in which the application of the father who had taken a second wife was dismissed, In - Bindo v. Sham Lal, 29 All 210 (H) also his application against maternal relations was dismissed. What may be gathered from all these cases is that the welfare of the minor is the primary and paramount consideration for the appointment of any one as guardian and that subject to this, if the minor is and has been in custody of the mother or other relations at the time the application is made and well looked after by them the Court will be loath to interfere. This is not a case of attempting to take away the child from its mother but a case in which the question is whether a child who has been away from her mother for a long period shall be forced to go back to her against the inclinations of the minor as ascertained in the lower Court whatever value may be attached to it. It may look cruel to refuse the mothers request but no less painful would it be to snatch the child from the father who has been a de facto mother. Sympathy and sentiment apart, under the circumstances, we think that it is not in the interest of the minor to disturb her stay with the father.

7. The appeal is dismissed. Parties will bear their own costs. Appeal dismissed. AIR 1953 MYSORE 124 (Vol. 40, C.N. 59) "Venkatakrishna v. Venkataswamy" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Y. Venkatakrishna Jois, Petitioner v. T. Venkataswamy, Special II Magistrate, Shimoga, Respondent. House Kent Control Revn. Petn. No.534 of 1952-53, D/- 4 -3 -1953. Mysore House Rent and Accommodation Control Order (1948) - HOUSES AND RENTS - ACCOMMODATION CONTROL - Houses and Rents - Fair rent - Presumption. Where the landlord and the tenant have come to an agreement about the rent payable, the presumption is that what has been solemnly agreed to, may be taken as the fair rent unless it is shown that the landlord or the tenant has taken undue advantage of the need of the other. The presumption can no doubt be rebutted by placing materials for fixing the fair rent. (Para 2) Building with concrete roofing should be valued on plinth area at rate of Rs.10/- a sq. ft. (Para 2) E.S. Venkataramaiya, for Petitioner; B. Narayanappa, for Respondent. Judgement This revision petition is against the order dated 28-8-1952 passed by the District Judge, Shimoga (Camp: Chikmagalur) in H.R.C. Appeal No.2 of 1952-53 contemns the order dated 29-4-1952 of the Deputy Commissioner and Rent Controller, Shimoga in H.R.C. No.120 of 1851-52.

2. The house was let out to the respondent by the petitioner on 30-1-1952 and the rent agreed to was Rs.45/- a month. The Courts below are of opinion that the cost of the building is Rs.8000/- and have fixed the fair rent at Rs.37-8-0 per month. It is stated that, the built area of the house is about 1000 sq. ft. Both the learned District Judge and the learned Rent Controllerr have assessed the value of the house at the rate of Rs.48/- per sq. ft. according to which the value of the built area is assessed at Rs.8000/-. The building has got a cement concrete roofing. In eases of this kind it is more usual to yalue the building on plinth area at the rate at Rs.10/- a sq. ft. Even otherwise the Courts below have not taken into consideration the value of the site on which the building stands and this should have been taken into consideration in fixing the fair rent of the building. I also think in cases of this kind where the landlord and the tenant have come to an agreement about the rent payable, the presumption is that what has been solemnly agreed to may be taken as the fair rent unless it is shown that the landlord or the tenant has takes undue advantage of the need of the other. The presumption can no doubt be rebutted by placing materials for fixing the fair rent. The petitioner has not placed any materials worth the name to rebut the presumption.

3. The revision petition is allowed. The orders of the Courts below are set aside and fair rent is fixed at Rs.45/- a month. Parties will bear their own costs throughout. Revision allowed. AIR 1953 MYSORE 125 (Vol. 40, C.N. 60) "Padmanabha Rao v. State of Mysore" MYSORE HIGH COURT Coram : 2 MEDAPA, J. AND VASUDEVAMURTHY, J. ( Division Bench ) Padmanabha Rao and others, Appellants v. State of Mysore. Criminal Appeals Nos.39 and 42 of 1952-53 and Criminal Referred Case No.2 of 1952-53, D/- 5 -12 -1952. (A) Evidence Act (1 of 1872), S.1 - EVIDENCE - Evidence - Appreciation - iII will between party of accused and deceased - Much importance cannot be attached to the fact since it is a double edged weapon which can be pressed into service by both the parties. (Para 5) Anno : Evi. Act, S.1 N.12. (B) Evidence Act (1 of 1872), S.1 - EVIDENCE - WITNESS - PRINCIPLES - Evidence - Appreciation - Principle of falsus in uno falsus in omnibus, in proper cases can be applied in India - Witness found wholly un-reliable - It is unsafe to rely on any part of his testimony - Each - Each ease has to be judged on his own merits. (Para 8) Anno : Srid. Act, S.1 N.12. Cases Referred : Chronological Paras (A) (25) AIR 1925 Oudh 65 : 25 Cri LJ 1169 (B) (42) AIR 1942 Oudh 60 : 43 Cri LJ 115 (C) (44) AIR 1944 FC 1: 45 Cri LJ 413 A. Shamanna, for Appellants; Advocate-General, for the State. Judgement MEDAPA, C. J. :- The Special First Class Magistrate of Ramanagaram committed the appellants (accused 1 to 4 in Cr.A. No.39/52-53 and accused 5 in Cr.A. No.43/53-58) along with six others to take then trial before the Court of Session, Bangalore, accused 1 to 11 for an offence under S.143; accused 5, 6, 7, 9, 10 and 11 for offences under Ss.149 and 302; accused 2 and 3 for an offence under S.302; and accused 1, 4 and 8 for offences under Bs. 199 and 302, Penal Code. The case of the prosecution was that, on the night of 12-8-1951, the accused persons formed themselves into an unlawful assembly at Singarajapura village in Channapatna Taulk with the common object of murdering S.N. Narasimhamurthy Rao, Propritor of the "standard Motor Service", Singarapura, due to the ill will that existed between them, that in prosecution of that common object the accused armed themselves with deadly weapons, chased deceased Narasimhamurthy Rao when he was returning from Aniyur tank at about B.P.M., that accused 2 and 3 at the instigation of accused 1, 4 and 8 hit him with an axe and "betta katti with the intention of causing his death, that as a result the deceased Narasimhamurthy Rao died on the spot and that the accused thereby committed offences punishable under Ss.143, 144, 148, 149, 302 and 34, Penal Code, and are liable to be dealt with according to law. The assessors were unanimously of the opinion that accused 6 to 11 were not guilty of the offences with which they were charged and the learned Sessions Judge, agreeing with their opinion, acquitted those accused. All the assessors were also unanimous in their opinion that the appellant in Cr.A. No.42/52-53 was not guilty of the offence he was charged with, viz. of an offence under S.143, Penal Code but the learned Sessions Judge discarded their opinion and convicted the said appellant (accused 5 in the Sessions Court) for an offence under S.143, Penal Code and sentenced him to pay a fine of Rs.1000/- and in default to undergo rigorous imprisonment for one month. Hence Cr.A.42/52-53. The majority of the assessors were further of the opinion that the appellants in Cr.A. No.39/, 52-53 (accused 1 to 4) were not guilty of the offences with which they were charged tout one of the assessors was of the opinion that the said appellants were guilty of those offences. The learned Sessions Judge rejected the opinion of the majority and, agreeing with the opinion of the single assessor, convicted the appellants of the offence under S.109 read with S.302 Penal Code and sentenced each of them to death. The learned Judge further convicted them of an offence under S.143, Penal Code and sentenced each of them to a fine of Rs.1000/- and in default to undergo rigorous imprisonment for one month. Hence Cr.A. No.39/52-53 by accused 1 to 4. The learned Sessions Judge has also made a reference to this Court under S.374, Criminal P.C. for confirmation of the sentence of death passed on accused 1 to 4.

2. The learned Sessions Judge has reaed on the evidence of the eye-witnesses (P.Ws.15 and 16) and on the discovery of M.O.2 and M.O.3 in consequence of the information furnished by one or the other of the appellants and on the ill-will existing between the deceased and his partisans including the eye-witnesses on the one hand and appellant 1 and his partisans including the other appellants on the other, for his finding that the appellants are guilty of the offences of which they have been convicted.

3. The main contentions of the learned counsel for the appellants are - (1) that the learned Sessions Judge, while agreeing with the opinion of the assessors in discarding the production evidence as regards accused 6 to 11, was wrong in relying on the very same evidence and in rejecting the majority opinion of the assessors, as regards the appellants; (2) that the learned Sessions Judge was wrong in relying on the evidence of the alleged eye-witnesses to the occurrence (Viz. P.Ws.15 and 16) when he discarded the said evidence as regards accused 8 and that the inherent improbabilities in the version given by the eye-witnesses makes it quite unsafe to act on them; and (3) that the evidence of the eye-witnesses is not strictly consistent and definitely oppesed to the evidence of the doctor (P.W.17) and the defence witnesses examined in the case. The learned Advocate-General, on the other hand, submitted that there is no warrant in law to support the proposition that because the evidence of an eye-witness is discarded as regards one accused, the same should be discarded as against all the other accused and that the learned Sessions Judge was quite correct in acting on the evidence of the eye-witnesses. His argument is that the evidence of the two eye-witnesses has to be accepted and that their evidence leaves no room to doubt regarding the guilt of the appellants and that the benefit of doubt given by the learned Sessions Judge to accused 8 can have no bearing on the guilt of the appellants before Us or the credibility of the evidence of the eyewitnesses. He pointed out that the learned Sessions Judge has given good and valid reasons in his judgment for rejecting the opinion of the assessors regarding accused 3 and the majority opinion regarding accused 1 to 4. The learned Advocate-General also referred us to the other circumstances appearing in the case, viz. (1) the discovery of the weapons with which the deceased was said to have been injured, in consequence of the information furnished by the respective appellants; (2) the presence of bloodstains on the knicker, M.O.8, worn by accused 2; and (3) the admitted and established ill-will between the deceased and the appellants, in support of his contention that the evidence of the eye-witnesses is true and must be accepted.

4. It will be more appropriate to deal first with the circumstances relied upon by the learned Advocate-General in support of the prosecution case for circumstances, as has often been put, do not he though witnesses may. (His Lordship considered and valued the evidence of weapons which were devoid of blood stains and the evidence of the doctor and proceeded).

5. The faction in the village and the ill-will existing between the deceased and his party including the eye-witnesses in the one hand and the appellants and their party on the other, can be a double-edged weapon for just as it is possible to argue that the appellants on account of ill-will inflicted the injuries on the deceased and killed him, it can also be argued that the eyewitnesses, who belonged to the party of the deceased, are pressing into service the murder of the deceased of which they know nothing to involve their enemies, viz. the appellants in the crime. It, therefore, follows that much importance cannot be placed on the mere existence of ill-will between the parties. The learned counsel for the appellants contended that, though there is positive evidence to show that the prosecution witnesses bear ill-will towards the appellants, there is no positive evidence to show that the appellants bore ill-will towards the deceased.He argued that, though the deceased and his party had, even alter a settlement of the differences between the two parties regarding the Village Panchayati Ejection, been manoeuvring things against the appellants in the matter of the panchayat election and to secure and locus official frown on the appellants, there is no evidence on record to show that, poor to the incident and after the settlement embodied in Exhibit P-14, the appellants and their party men tried to steal a a march over the deceased and his party men or tried to hurt in any way the deceased or his party men. He submits that these circumstances warrant his contentions, first that the evidence of the eye-witnesses should not be taken at its face value and next that the motive for the crime, viz. enmity of the accused towards the deceased should not he taken as having been established. It, however, appears to us that if regard is had to the position and status of the accused, it win not be unsafe to presume that feeling of enmity on the one side would normally engender a similar feeling on the other side and that the reversal of the agreed settlement regarding the election must have evoked and revived bitter feelings. It will be clear from the above discussion that apart from the doubtful value to be attached to the proved enmity between the parties the other circumstances referred to and relied on by the learned Advocate-General do not give any point or enhance the probative value of the evidence of the eye-witnesses.

6. The learned Sessions Judge had relied mainly upon the evidence of the two eye-witnesses in the case, viz., P.Ws.15 and 16, for convicting the appellants. (His Lordship went through their evidence and proceeded). This evidence, if accepted, will fully support the conclusion of the learned Sessions Judge regarding the guilt of the appellants but it is pointed out by the learned counsel for the defence that the evidence of these eye-witnesses is inconsistent and discrepant. In support of his contention he refers to the evidence of the doctor, who conducted the post mortem examination (P.W.17) to the effect that the deceased could not have eased himself a short while before his death as stated by P.Ws.15 and 16, because the large intestines of the deceased was full of faecal matter. The learned Advocate-General submitted that it is not unusual to find faecal matter in the large intestines of a deceased person even though he had evacuted a short while before Ins death; but this submission is not supported by any evidence on record nor was the opinion of any well-known text-book writer cited to support this proposition or in apposition to the abovesaid opinion of the doctor.

7. The learned counsel for the defence next referred to the evidence of the doctor regarding the improbability of the injury found on the dead body having been inflicted with. M.Os. 2 and 3 mentioned above and argued that the evidence of the eye-witnesses contrary to the version of the doctor should be discarded. The learned Advocate-General characterised the discrepancy between the evidence of the doctor and the eye-witnesses referred to above as immaterial and of no consequence but the said discrepancies support the contention of the learned counsel for the appellants and to that extent cast a doubt on the veracity of the evidence of the eyewitnesses. Further, the said discrepancy can by no means be said to be so inconsequential ass the prosecution say for, if the story that the deceased went with P.Ws.15 and 16 to the tank to case himself is rejected, the basis of the story for the prosecution is destroyed. The prosecution will then have no explanation to offer regarding the circumstances which took the deceased and the eye-witnesses to the tank or for their presence at the scene of occurrence.

8. The learned counsel for the defence next stressed on the evidence of P.W.15 to the effect that he found accused 8 on the scene and heard him egging on appellants 2 and 3 to kill the deceased and on the evidence of the doctor (D.W.1) who states that at the time of the occurrence accused. 8 was an in-patient in his hospital suffering from pneumonia and running a temperature of 105 and therefor unable to leave his bed and submitted that this circumstance clearly established that P.W.15 had not hesistated to tell his so that he may involve an enemy of his, accused 8, in the crime and that his evidence should therefore be entirely discarded. The learned Sessions Judge has apparently accepted the evidence of the doctor, D.W.1, in preference to the evidence of P.Ws.15 and 16/ and acquitted the said accused. The learned Advocate-General submits, as already pointed out, that there is no warrant for the proposition that, because a witness has not been believed or has been shewn to have uttered a falsehood in one particular, his evidence should be entirely discarded. In support of his submission he relied on two decisions reported in - Prag v. Emperor, AIR 1925 Oudh 65 (A) and - Qamrul Hasan v. Emperor, AIR 1942 Oudh 60 (B) which set oat the proposition: "The principle "falsus in uno falsus in omnibus" cannot be universally applied in India." The qualification "cannot be universally applied in India" is not without significance and that it is so will be clear from the observations of their Lordships of the Federal Court in a decision reported in - Piare Dusadh v. Emperor, AIR 1944 PC 1, at P.17 (C) wherein it is set out : "Once a witness has been found to be wholly unreliable it is unsafe to place any reliance upon any part of his testimony. It should not be open to the prosecution to pick out a bit here and a bit there from the evidence of a witness whom they themselves are not willing to accept as a witness of truth, and to use these salvaged bits, from testimony which is otherwise contaminated, to bolster up their case against particular accused persons. The gist of the learned High Court Judges finding on the whole case is contained in the observation that there was really no explanation why anybody should have invented a false case against the appellants. This is not in our opinion a justifiable point of view to adopt in a case like the present ............". The decisions above referred to only go to illustrate the well accepted rule that each case must be judged on its merits with reference to the evidence and circumstances appearing in that case.

9. He further submits that even if the evidence of P.W.15 is discarded there is nothing on record In discredit the evidence of P.W.16 and submits that the said evidence fully warrants the conviction of the appellants. It has already been pointed out that the evidence of P.W.16 is inconsistent with the evidence of the doctor regarding the version that the deceased eased and washed himself immediately prior to the incidents to that extent at any rate the evidence of P.W.16 cannot be said to be devoid of an blemish. Further the evidence of P.W.16 in so far as it goes to corroborate the evidence of P.W.15 regarding the presence of accused 8 at the scene of occurrence and of his participation in the crime, is open to the same objections to which the evidence of P.W.15 is subject and to that extent cannot be said to be free from infirmity or suspicion. It is also in evidence that P.W.16 along with P.W.15 had deposed against the accused in another case and in that case the accused persons (appellants) had been acquitted. This circumstance is not without significance when the proved inimical disposition of P.Ws.15 and 16 towards the accused is remembered. The above circumstances necessitate a closer scrutiny of the evidence of the eye-witnesses than as usual with the other circumstances appearing in the case with a view to find out whether the evidence of the eye-witnesses could be accepted and acted upon. 10-11. There are several circumstances in this case which go to show that the prosecution version, as detailed by the eye-witnesses is not free from doubt. (After narrating these circumstances and discussing them his lordship continued).

12. It has also to be noted that in this case the patel has failed to send any report to the police. The patel, who has been examined as P.W.27 states specifically that though he was sent for and arrived at the scene at about 11 p.m., he did not send the report though he admits that he was aware that his duty as patel required him to inform the police or at least send a report about the occurrence to the police. This lapee of duty on the part of the patel and the eagerness evinced by P.W.16 which impelled him to go to the police and report the matter to them were commented on by the learned counsel for the defence as circumstances which necessitate the inference that all is not fair and square with the prosecution version and investigation. It must be conceded that the failure of the patel to send a report to the police is curious. The admitted absence of any marks of struggle at the scene of occurrence is also a circumstance which militates against the story that the occurrence was at the place alleged by the eyewitnesses. (His Lordship discussed this part of circumstance and continued).

13. The circumstances narrated above go a lone way to raise reasonable doubts about the veracity of the evidence of the eye-witnesses and we are therefore of the opinion that in this case the role of prudence will not only justify bat almost demand an acquittal. We accordingly allow these appeals (Criminal Appeals Nos.39 and 42/52-53), give the appellants (accused 1 to 4 in Cr.A.39/52-53 and the appellant (accused 5) in Cr.A.42/52-53 the benefit of doubt, set aside the convictions and sentences passed on them by the learned Sessions Judge and acquit them. The release forthwith of the appellants (accused 1 to 4) is ordered. The fine, if recovered from the appellants (accused 1 to 4 and accused 5), shall be refunded. The reference made by the learned Sessions Judge is rejected. Appeal allowed. AIR 1953 MYSORE 127 (Vol. 40 C.N. 61) "Ramgopal v. H. Misrilal and Sons" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) J. Ramgopal, Judgment-debtor-Petitioner v. H. Misrilal and Sons, Deeree-holders-Respondents. Civil Revn. Petn. No.635 of 1952-53, D/- 26 -2 -1953. Civil P.C. (5 of 1908), S.60, Expln.1; O.21, R.46 and R.48 - ATTACHMENT - SALARIES - Attachment of salary of private servant. Unlike the case of the Government servants, the salary of the servants in a private firm can only be attached as a debt under O.21, R.46 when it becomes actually payable. Order 21 R.48 does not-apply to attachment of salaries of private servants. Hence an order under O.21, R.48 attaching the salary of a private servant in advance cannot be sustained. AIR 1929 Nag 338, Rel. on. (Para 2) N.3, O.21 R.48 N.1 Pt.4. Anno : C.P.C., S.60. N.16 Pt. 9, O.21 R.46. Cases Referred : Chronological Paras (A) (29) AIR 1929 Nag 338 : 121 Ind Cas 54 S.R. Keshava Iyengar, for Petitioner; M.S. Janardhanam, for Respondents. Judgement The petitioner is employed as the Sales Manager in George Oakes Ltd., a private firm dealing in motors and other accessories in Bangalore City. In pursuance of a decree obtained against him, the respondent sought to attach the salary of the petitioner and the attachment warrant was served on his employer on 7-10-1952. It is contended that no pay was due on that date and that the salary that may become due on a future date to person in private employment cannot be attached in advance under Order 21, R.48, Civil P.C. This argument is not without force.

2. Order 21, R.48 refers to the attachments of salary or allowances of a servant of the Crown or of a Railway Company or of any Local Authority. Nowhere in that Rule is any reference made to the mode of attachment of the salary due from a private firm. It is undoubted that under S.60, Civil P.C. Cl.(i) the exemption from attachment of salary to the extent of first hundred rupees and one half of the remainder is common to all services, public or private; it is argued on that basis that salary due to a person from a private firm could be attached whether before or after it becomes payable. This contention appears to be unsound. Expln.(1) to S.60 declares that in the case of a salary other than the salary of the servant of the Crown, or of Railway Company or Local Authority, the attachable portion thereof is exempted from attachment until it is actually payable. The question therefore that falls for determination is whether wages were due to be payable on 7-10-52, the date of attachment. In the case of servants of the Crown etc., the mode of attachment is by service of a warrant on the disbursing officer who is directed to withhold the portion, directed to be attached at the time of disbursement, and hence the salaries of the servants of the Crown, Railway Company or Local Authority can thus be attached in advance. But whether such a procedure is available in the case of private firms is open to doubt. There is security of service under the Crown and a warrant of attachment is directed to be given effect to as and when the amount is payable on the grounds of public policy. But the salary that may become due from a private firm is contingent upon other considerations, and it cannot be said to be payable until it is actually earned. So unlike the case of the Government servants, the salary of the servants in a private firm can only be attached when it becomes actually payable. In that west R.46 of Order 21 which provides for attachment of debts becomes applicable to such cases. A similar question came up for consideration before the High Court of Nagpur, and it was held that O.21, R.48, has no application in the ease of persons who are in private service and that the issue of a prohibitory order against an employer of a person on the 23rd of a month attaching fee prospective pay is illegal as the pay that would fall due on the first of the subsequent month is not a debt on toe date of the order: vide - Nagoba v. V.A. Zinjarde, AIR 1929 Nag 338 (A). I am respectfully in agreement with the opinion expressed therein, and hold that the salary in a private company must be attached as a debt and can be so done only when it actually becomes payable. In this view, the order of the learned Judge purported to have been issued under O.21, R.48, Civil P.C., obliging the employer to withheld payments as and when they become due is untenable.

3. In the result, the order of the learned Judge of the Court of Small Causes is set aside and this petition is allowed, parties bearing their own costs. Petition allowed. AIR 1953 MYSORE 128 (Vol. 40,C.N. 62) "Deputy Commr. v. Krishna Rao" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) Deputy Commissioner, Mysore, Petition v. S.Krishna Rao, Respondent. Civil Petn. No.98 of 1951-52, D/- 24 -7 -1952. (A) Legal Practitioners Act (18 of 1879), S.13 - ADVOCATE - MISAPPROPRIATION - Misappropriation. Pleader delaying to render account and pay balance due to client when demanded and requesting client to entrust more cases so that balance may be adjusted - Amount payable by pleader subsequently settled but pleader defaulting to pay on agreed date: Held there was misappropriation and that the pleaders conduct was serious deviation from the well recognised principles of professional conduct : 1930 Mad WN 216, AIR 1946 Pat 357 (FB), Referred to. (Paras 2, 5) Anno: Leg. Pract. Act, S.13, N.14. (B) Legal Practitioners Act (18 of 1879), S.13 and S.14 - ADVOCATE - HIGH COURT - Nature of proceedings - Powers and duties of High Court. Act confers on High Court wide disciplinary powers over members of bar in larger interests of litigant public and administration of justice - Complaint by Deputy Commissioner on behalf of Municipality against pleader who was delaying to settle accounts in respect of money entrusted for litigation - Application by D.C. for withdrawal of proceedings pending enquiry rejected by High Court - Government on reference by D.C. forwarding correspondence to Advocate-General for withdrawal of proceedings - Held that procedure adopted by the D.C. and the Government was highly irregular. (Para 3) Anno: Leg. Pract. Act, S.13, N.2, 3; S.14, N.1. (C) Legal Practitioners Act (18 of 1879), S.13 - ADVOCATE - "Suspended or dismissed." Misappropriation and serious misconduct established against pleader - Facts that he had refunded amount or that he is an old man do not entitle him to lenient treatment - Pleader who was already once suspended was characterised as incorrigible and suspended from practice. (Para 6) Anno : Leg. Pract. Act, S.13, N.5. Cases Referred : Chronological Paras (A) (30) 1930 Mad WN 216 (B) (46) AIR 1946 Pat 357 : 47 Cri LJ 932 (FB) Advocate-General, for Petitioner; Srikantaiya, for Respondent. Judgement BALAKRISHNAIYA, J. :- This petition arises out of a reference made on 34-1-1951 by the Deputy Comisssioner, Mysore, to the Registrar of this Court, requesting that action may be taken against the respondent, under S.11, Legal Practitioners Act. It is stated in that reference that the respondent who is a pleader, failed to refund a sum of Rs.150/- entrusted to him by the Municipal Council of Mirle in Krishnarajanagar Taluk. The High Court forwarded the said reference to the District Judge, Mysore, for enquiry and report. The learned District Judge after recording evidence and taking the statement of the pleader, came to the conclusion that the pleader had failed to refund the balance of the amount due by him to the Municipal Council either at the time when the demand was made or within a reasonable time thereafter. The said, report is for consideration before us under S.13, Legal Practitioners Act.

2. It is seen from the records that the pleader was entrusted by the Municipal Council of Mirle with a sum of Rs.250/- in the year 1938 and 1939 for filing suits and when the Council required him to render accounts and refund the balance due, he took up the very unreasonable attitude of requesting the Council to entrust him with additional cases so that the balance due by him may be worked off against the moneys which he expected as his fee for such additional cases which he prayed to be entrusted with. With these opportunities, he nest on gaining time and occasioned an unreasonable delay in complying with the demand, It is further seen that the arrears due to the Municipal Cauncil were Rs.181/- and when the pleader disputed the actual figure, he was asked in February 1950 to deposit a sum of Rs.150/- and in his reply dated 8-2-1951 the pleader agreed to settle the account and deposit the amount within a month. In our opinion the pleader could not have expected a more lenient or generous attitude than was shown to him by the Council. But in spite of this the pleader did not deposit the amount till so late as 8-6-1951. On these materials the learned District Judge found that there was no excuse or justification for the delay of four months in making good the amount, which in fact is nothing start of misappropriation. This is essentially a petition of fact sad the High Court will not ordinarily interface interfere with the finding arrived at by an enquiring tribunal unless it is shown that that finding is manifestlt unreasonable or perverse.

3. Mr. S. Srikantaiya, the learned Counsel for the respondent here, was frankly unable to advance any convincing reasons to show that the finding of the learned District Judge (was erroneous or unreasonable, or point out any justifying circumstances he contented himself by making an appeal for mercy and lenient treatment of his client.

4. In the course of the arguments, it was brought to the notice of the Court, that the Deputy Commissioner has since made a request for the withdrawal of the case and that the Advocate-General has also been instructed by Government to request the Court to drop the proceedings against the respondent. A perusal of the records shows that the Deputy Commissioner had made an earlier reference on 5-7-1951 to the High Court for withdrawal of the proceedings, and that the High Court had declined to accede to that request, and had by an order dated 12-7-1S51 directed the continuance of the proceedings. Thereupon the Deputy Commissioner appears to have made yet another reference in like terms to the Advocate-General and also to the Government, who in their turn forwarded the entire correspondence to the Advocate-General, apparently endorsing the view of the Deputy Commissioner. All this is seen very clearly from the concerned papers which the learned Advocate-General has been good enough to place before us. We confess that we are not a little surprised at the curious procedure adopted by the Deputy Commissioner and the equally curious way in which the Government have apparently supported him. In our opinion, such a procedure is, to say the least, highly irregular and unwarranted, specially in proceedings under the Legal Practitioners Act which confers on the High Court wide disciplinary powers over the members of the Bar, in the larger interest of the litigant public and for the sound administration of justice.

5. Turning now to the reasons given by the Deputy Commissioner for seeking the proceedings withdrawn, we find them hollow and untenable. He states that it has since been reported by the Municipal Council that the pleader has made good the balance of the amount due by him and in view of that and also in consideration of his old age, the pleader deserves lenient treatment. If the mere recovery of the amount was the intention of the Deputy Commissioner, it was open to him to have launched proceedings under the ordinary law without resorting to the aid of the High Court and invoking its jurisdiction under the Legal Practitioners Act. The consideration on the ground of old age is hardly to the point since age should bring with it experience and maturity and a high standard of professional conduct and integrity. In our opinion the conduct of the petitioner is hardly consistent with that of a member of the honourable profession to which he belongs. Dealing with a similar case, Beasley, C.J., remarks in - In the matter of T.N.P an Advocate, 1930 Mad WN 216 (A) : "It is also incredible that an Advocate conducting several suits for a party should not keep any books or any record at all of the payments made by him on behalf of his clients. We are told that this practice is quite a common one and, if it is so, it cannot be condemned too strongly and I wish it, to be understood hereafter that it is the duty of every advocate who received money on behalf of his client to conduct litigation with, to keep an account of how that money has been applied." In a case reported in - A, a Mukhtar in the matter of, AIR 1946 Pat 357 (FB) (B) their Lordships of the Patna High Court observe that "A person who derogates from the high standard demanded of legal practitioner must not be permitted to be in a position wherein he compromises the interest of clients and the reputation of the profession to which he belongs and at the same time the reputation of the Court for the administration of justice. Lawyers are the officers of the Court and their misconduct cannot but affect the trust which litigants are entitled to place in the conduct of legal proceedings." These are well recognised principles and judging the conduct of the respondent by these standards, we are constrained to remark that it is far from satisfactory, and is of such a serious nature as cannot be allowed to pass unnoticed.

6. There is another circumstance which in our opinion shows the conduct of the respondent in an even worse light. The same pleader had been suspended from practice by the High Court, for a period of four months in the year 1948 (vide C.P. 54/47-48). Obviously the punishment has not had any salutary effect on the respondent. The word "incorrigible" may be a harsh word but in our opinion it appears to apply to the respondent with perfect propriety.

7. The question that remains for consideration is whether the respondent is fit to remain in the ranks of the honourable profession to which he is admitted. After some hesitation, we have decided not to take the extreme course of striking him off from the Rolls, but to give him one more chance of mending his conduct; but at the same time, we must deal severely with him and we consider that suspension from practice in any of the Courts for a period of six months will suffice, and we order accordingly. The pleader will pay Rs.50/-to Government being the costs of this petition. Order accordingly. AIR 1953 MYSORE 130 (Vol. 40, C.N. 63) "Bettegowda v. Dyavarasegowda" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Bettegowda and another, Defendants-Appellants v. Dyavarasegowda, Plaintiff and another, Defendant-Respondents. Second Appeals Nos.16 and 281 of 1949-50, D/- 16 -7 -1952. HINDU LAW - Hindu Law - Alienation - Alienation by de facto guardian. A de facto guardian has, in case of necessity or benefit to the minor, power to sell or mortgage the property of the minor. Generally it would be correct to uphold alienations in full only where the necessity for the alienation is established in respect of a very substantial portion of the consideration. It would however be hard to lay down any general rule as to what course Courts have to take in such eases. Each case depends upon the particular circumstances of that ease. (Paras 2 and 4) Cases Referred : Chronological Paras (A) (41) 19 Mys LJ 399 (B) (28) AIR 1928 Mad 226(2) : 108 Ind Cas 529 (C) (37) 15 Mys LJ 43 (D) 6 Mys LJ 595 In S.A. No.16 of 1949-50 - C.K. Narayana Rao, for Appellants; H.K. Sreenivasa Murthy, for Respondents. In S.A. No.281 of 194S-50 - H.K. Sreenivasa Murthy, for Appellants; V. Krishnamurthy, for Respondents. Judgement JUDGEMENT :- The suit in respect of which these appeals arise was filed by the plaintiff for recovery of possession of a house and a land alienated by his-maternal uncle as his guardian. As regards the house defendant 2 who has purchased it from the maternal uncle of the plaintiff pleaded that the sale is for the benefit of the plff. who was a minor at the time and it is therefore binding on him. The learned Munsiff upheld his contention and dismissed the suit. But this decision of tie learned Munsiff was set aside by the Additional Subordinate Judge, Mysore in R.A. 37/48-49. The learned Subordinate Judge was of opinion that there was no necessity to sell the home and he directed that possession of the property could be delivered to the plaintiff on his paying Rs.90/- to defendant 4 who had subsequently putchased the property from defendant 2 as, in his opinion, the plaintiff has been benefited to the extent of that sum.

2. As regards the alienation by a de facto guardian, it is settled law that he has, in case of necessity or benefit to the minor, power to sell or mortgage his property. It has been observed in - Chennappa v. Dumania Thippe Rudrappa, 19 Mys LJ 399 (A) that "Under the Hindu Law the acts of such a de facto guardian if beneficial to the minor or for necessity are recognised and held binding on the minor."

3. The point for consideration therefore is whether the maternal uncle of the plaintiff under whose care the plaintiff came after the death of his parents sold the second item of the plaint schedule property for the benefit of the minor. It must be remembered that it was in a village different from that in which the guardian and the minor lived. It was an old and dilapidated house and but for the fact that the plaintiffs maternal uncle was able to find a purchaser for it it is likely that it would have fallen down and the retention of that property would not have been of any help to the plaintiff. On the other hand, the property was sold for a sum of Rs.125/-. Out of this amount another house was purchased for a sum of of Rs.50/- and plaintiffs maternal uncle obtained a usufructuary mortage of a dry land for Rs.50/-. Considering the circumstances of the case, the sale of a small dilapidated house situated in a village in which neither the plaintiff nor the persons under whose care he came after he became an orphan lived, must be regarded as being beneficial to the plaintiff, and the learned Munsiff was right in dismissing plaintiffs suit with reference to this item of property. The appeal in S.A.16 of 1949-50 is therefore allowed. The judgment and decree of the learned Subordinate Judge are set aside and the plaintiffs suit in respect of the second item of the plaint, schedule is dismissed. In the circumstances of the case the parties will bear their own costs throughout.

4. The plaintiffs case as regards the first item of the plaint schedule is that the sale of this item by his maternal uncle is not binding on him. It is not disputed that the plaintiffs father and defendant 1 had hypothecated both the plaint schedule properties in favour of D.W.1. The latter filed a suit against the plaintiff and obtained a decree. This debt was outstanding. In order to discharge this debt the plaintiffs maternal uncle sold the first item of the plaint schedule property to the father of defendant 1 for Rs.400/- Out of this consideration a sum of Rs.150/- was paid for the discharge of the decree debt and fee balance of Rs, 250/- was retained by the vendee, who however hypothecated for that amount the very property purchased by him, along with other properties of his own for this sum and executed Ext.IV in favour of the plaintiff. The point again for consideration is whether this act of the maternal uncle of the plaintiff is for necessity or benefit of the minor. It has to be noticed that but for the prompt manner in which the maternal uncle of the plaintiff managed to discharge the decree debt, it might have ended in a court sale of not only the first item of the plaint schedule but also in the sale of the other item of the hypothecated properties and it is not unusual that in court sales valuable properties are knocked off by decree-holders for the decree amounts alone. The maternal uncle of the plaintiff who it has not been shown had anything but love towards the plaintiff acted for the benefit of the minor in selling away one of the two properties and in discharging the decree debt. It is contended that the other item of property which was a dilapidated house could have been sold. But there is nothing to show that at that time there was any prospect of his finding a purchaser for it. It is no doubt true that he had to sell away the first item of the plaint schedule for Rs.400/- though he had to discharge a debt of Rs.150/- only. It is contended that he could have secured the decree amount by hypothecating the property to some one, particularly when one of the D.Ws.says that there were people ready to advance money on the mortgage of that property. I am not sure that it is more advantageous to borrow money on the hypothecation of a property than to sell it for a fair price, as it is not unusual that the property hypothecated will ultimately have to be sold for the money due on the hypothecation bond and the interest thereon. To my mind, the maternal uncle of the plaintiff acted wisely and in the very best interest of the minor. It has to be remembered that out of the sale amount of Rs.400/- the amount necessary for the discharge of the debt binding on the minor was only Rs.150/-. It is therefore a case of an alienation by a de facts guardian for consideration. A good number of cases was cited before me to show what has to be done in cases of this kind. It has been observed in - Ramaswami Pillai v. Kasinatha Iyer, AIR 1928 Mad 226 (2) (B) which has been followed in - Kenchayya v. Subbiah, 15 Mys LJ 43 (C) that : "Where a Court finds that an alienation by de facto guardian is not wholly binding on minor plaintiffs, there are three courses open as regards granting relief. The first course is to set aside the sale altogether and direct the plaintiffs to pay the vendee the consideration which is binding on them (plaintiffs) with interest. The second course is to direct the purchasers to pay the plaintiffs the difference between the actual value of the land and the consideration which is binding on them with interest The third course is to divide the lands in proportion to the value of the lands and the actual consideration found payable." It may also be stated that generally it would be correct to uphold alienations in full only, where the necessity for the alienation is established In respect of a very substantial portion of the consideration. As pointed oat hi the case reported in - 6 Mys LJ 595 (D), if the amount found to be necessary to be raised as compared with the amount of the consideration the alienee may have to be compensated by a charge on the property to that extent and the plaintiff whose outstanding interest in the estate is larger may be allowed to get possession of the property on payment of the said sum. It would however be hard to lay down any general rule as to what course Courts have to take in such cases. Each case depends upon the particular circumstances of that case.

6 Mys LJ 595 (D), for instance was dealing with a case of a reversioner, who had filed a suit for recovery of possession of the property alienated by a widow, who had not accounted for the major portion of the consideration while the amount required by her for legal necessity was very much less. In this case as already, observed there is not even a suggestion in the plaint that the property was sold for anything less than what it was worth. It has not been shown that without selling the property it was possible to avoid the sale of the property in execution of the hypothecation decree. The maternal uncle who was no doubt his well-wisher got a hypothecation deed in favour of the plaintiff for the sum of Rs.250/- which is the balance out of Rs.400/- for which he had sold the property.

5. On the whole considering all the circumstances of the case, I am inclined to think that this is a case in which the alienation must be upheld in full. The appeal of the plaintiff in respect of this item No.1 of the plaint schedule concerning S.A. 281/49-50 stands dismissed. But considering the particular circumstances of the case, it is ordered that parties do bear their own costs throughout. Order accordingly. AIR 1953 MYSORE 131 (Vol. 40, C.N. 64) "Lingegowda v. Nilegowda" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Lingegowda and others, Petitioners v. Chikka Nilegowda, Respondent. Criminal Revn. Petn. No.67 of 1951-63, D/- 6 -11 -1952. Criminal P.C. (5 of 1898), S.145(6) - LAND DISPUTE - Identity of land in dispute. Report or other information not stating identity of land and also material not placed before Magistrate to ascertain its identity - Before passing any order under section he should ascertain exact boundaries; or before passing final order he should at least take evidence on the point. 4 Mys CCR 269, Rel. on. (Para 3) Anno : Cr.P.C., S.145 N.51. Cases Referred : Chronological Paras (A) 4 Mys CCR 269 A.C. Byrappa, for Petitioners; C.N. Rajan, for Respondent. Judgement This is a revision petition against the order of the learned First Class Magistrate, Mysore in Criminal Misc. 2 of 51-52 holding that the first party-respondent is in possession of the property in respect of which proceedings under S.145 Criminal P.C. had been instituted and directing the Receiver to put him in possession of the property so that he might be in possession till he is evicted therefrom in due course of law.

2. The property in select of which proceedings under S.145 were instituted by the Bannur Police at the instance of respondent 1 has been described as being bounded on the east by the lands belonging to the second party (petnrs.), West, land belonging to Hampapaur Maszid, on the north by a land of Lingappa and others and on the south by a Government lane. It will be noticed that the boundaries on three sides are clear, but on the eastern side it is difficult to say what the boundary line is, as to the east of the land in dispute is the land of the petitioners themselves. It is contended that the petitioners are in a fix as they do not know to what portion of the entire property the order prohibits them from being in possession of. It cannot but be said that there is real difficulty in giving effect to the order of the learned Magistrate, and the order therefore needs interference in revision,

3. Section 145, Cr.P.C. enables a District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class to pass an order under that Section only when they are satisfied from a perusal of the Police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction. This can only mean that a police report or other information from which the Magistrate has to be satisfied about the likelihood of a breach of peace must state that the dispute is in respect of a certain land within his jurisdiction. For instance, if the report or other information merely states that the dispute is with reference to a land within the jurisdiction of the Magistrate without stating what that land is, and no material is placed to ascertain what that land is, the Magistrate cannot pass any final order under S.145 (6), Cr.P.C. Though no exact case has been brought to my notice on the point I may refer to the decision in - 4 Mys CCR 269 (A) in which alias been observed as follows : "The Magistrates order is clearly wrong, in that it includes property not in dispute. The order to be passed under Chap.XI, Criminal P.C. must be limited to the property the subject of dispute. "The Magistrate must, in the first place ascertain which is the exact property the subject of dispute; and then take evidence as to actual possession." The learned Magistrate should have in this case ascertained the exact boundaries of the land before he proceeded to pass any order, or he could have at least taken evidence on the point before passing a final order. No such thing has been done. The orders of the learned Magistrate in Criminal Misc. 2 of 51-52 including the order appointing a Receiver are set aside leaving both the parties in the same position as if no proceedings under S.145, Criminal P.C. had been taken. Order set aside. AIR 1953 MYSORE 132 (Vol. 40, C.N. 65) "Hanumantha v. Govt. of Mysore" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) M. Hanumantha Reddy, Accused-Petitioner v. Govt. of Mysore, Complainant-Respandent. Criminal Petn. No.230 of 51-52, D/- 7 -4 -1952. (A) Criminal P.C. (5 of 1898), S.498, S.497BAIL - HIGH COURT - Power of High Court to grant bail. The High Court has unfettered discretion under 3. 498 and is not precluded from taking special circumstances into consideration for granting bail, regard being had to the rule of general law under S.497,Cr.P.C. The grant or refusal of bail depends upon the particular circumstances of each case. The mere fact that an offence is punishable by transportation for life is not by itself sufficient to refuse bail under S.498. AIR 1931 All 504 (FB) AIR 1927 Rang 205 (FB)and AIR 1927 Bom 492,Rel. on. Case law discussed. (Para 13) The policy of law is to grant bail rather than refuse it in cases of urial prisoners and the Court should be lenient till they are convicted. It is the glorious principle of criminal justice that a man is considered to be innocent till he is found guilty and when he is accused of an offence he must have freedom to defend himself. (Para 15) (Bail was granted in view of special circumstances and principally on the ground of health of the accused). Anno : Cr.P.C., S.498 N.7 Pts. S.10, S.497 N.4. (B) CRIMINAL TRIAL - EVIDENCE - Criminal Trial - Evidence - Medical certificate. A doctor must be presumed to be a disinterested person, interested only with the health of his patient; his certificate is therefore entitled to some weight. (Para 14) Cases Referred : Chronological Paras (A) (31) AIR 1931 All 356: 32 Cri LJ 1271 (B) (52) Cri Petns Nos 7 and 13 of 1951-52 (Mys) (C) (25) AIR 1925 Rang 129: 26 Cri LJ 427 : 2 Rang 546 (D) (52) Cri Petn No 121 of 1951-52 (Mys) (E) (31) AIR 1931 All 504: 54 All 115 : 33 Cri LJ 94 (FB) (F) (51) AIR 1951 Madh-B 104 : 5 Dom LR (Madh-B) 93 : 52 Cri LJ 656 (G) (33) AIR 1933 Bom 492: 35 Bom LR 1072 : 35 Cri LJ 539 (H) (15) AIR 1915 Cal 784 : 42 Cal 25 : 16 Cri LJ 215

(I) (40) AIR 1940 Oudh 8 : 40 Cri LJ 841 (J) (33) AIR 1933 Lah 925: 15 Lah 39 : 35 Cri LJ 294 (K) (51) AIR 1951 Pat 497 : 52 Cri LJ 657

(L) (28) AIR 1928 Sind 142: 29 Cri LJ 470 (M) (10) 11 Cri LJ 217 : 37 Cal 412 (N) (27) AIR 1927 Rang 205: 28 Cri LJ 773 (FB)

V.K. Govindarajulu, for Petitioner; A.R. Somanatha Iyer, Advocate-General, for Respondent. Judgement This petition was filed sader S.497, Cr.P.C. and another petition uader S.498 was filed on 4-4-52 in Court, supportud by an affidavit and a Doctors certificate. Both these petitions contain a prayer for enlarging the petitioner on bail. The Advocate-General stated that there was no objection to treat the earlier petition itself as having been filed under S.498.

2. For an alleged attempt made on 24-3-1952 to commit murder by strangulation, the petitioner was arrested and a case against him was registered under S.307, I. P.C. The applications for hail filed by him in the Court of the City Magistrate, Bangalore, before .whom he was produced in the course of investigation, have been rejected.

3. The offence under 307 I.P.C. is a non-bailable one. The Criminal Procedure Code under S.496 provides for granting ball in offences other than non-bailable, and S.497 regulates the admission to bail in non-bailable cases. While trader S.496 a person may be released on bail invariably on an application in that behalf, S.497 places a limitation on the powers of a Magistrate in that respect. A distinction is drawn under S.497 between non-bailable offences which are punishable with death or transportation for life and other non-bailable offences. A Magistrate is vested with discretion to release any person accused of a non-bailable offence on bail except in cases where there person reasonable grounds for believing that the person is guilty of an offence punishable with death or transportation for life. It is argued for the prosecution that the offence alleged to have been committed by the petitioner is of a grave and serious character punishable with transportation for life, that in the right of the evidence so far collected, the Magistrate has come to the reasonable belief that such an offence has been committed and refused to admit the petitioner to bail and that in such circumstances the High Court ought not to interfere with the discretion exercised by the Magistrate unless the order rejecting the bail is perverse or manifestly wrong. On the other hand, it is contended on behalf of the petitioner that no offence punishable with transportation for life has been committed and even so, the High Court has unfettered discretion under S.498, Cr.P.C. to grant bail if the circumstances of the case permit, irrespective of the limitations imposed by S.497 on the trial Magistrate.

4. The most important point for consideration is whether the High Court has extended powers under S.498, Cr.P.C. The latter part of S.498 runs thus: "......and the High Court or Court of Session may, in any case whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a police officer or Magistrate be reduced." The powers of the High Court and the Court of Session under S.498 are of a concurrent jurisdiction with that of a Magistrate. It is seen on a comparison of Ss.497 and 498 that the High Court is invested with power under S.498, Cr.P.C. as a Court of superior, appellate or revisional jurisdiction and has vast powers to direct that any person be admitted to bail any case. From the wording of 498, Cr.P.C.: "It is manifest that the discretion given to this Court and also to the Court of Session, is unrestricted in any way by the terms of the statute. Two things follow from this, firstly that the discretion is one which must be judicially exercised and secondly that the Court lias power if it does grant bail to grant it on such conditions as the circumstances of the case and the public interest may require." (Per Boys, J., in - Emperor v. H.L. Hutchinson, AIR 1931 All 356 at p.360 (A)).

5. It has been strenuously argued that the direction given by S.498 is limited by, or in practice limited by, the conditions found in S.497 and there is some support for the proposition in reported decisions but the preponderance of authority appears to be in favour of the view that under S.498 the High Court has unrestricted powers for directing bail in any case to any person. The discretion of the High Court is not limited to the consideration set out by S.497 but that consideration is to be considered along with all the circumstances of the ease. I am therefore of opinion that S.498 is not controlled by S.497 so as to preclude the consideration by the High Court of the other circumstances in order to entitle any person to bail. No reported decision of this Court, directly bearing on this point, was brought to my notice but two unreported decisions were cited by the learned Advocate-General as supporting the proposition that S.498 is controlled by S.497. I am inclined to think that those cases do not support that view. In - Cr. Petns. Nos.7 and 13 of 1951-52 (B), the learned Judge observed that "the High Court is bound to follow the general law as a rule and not depart from it except under special circumstances, especially so in the initial stages of a case; see - Boudville, H.M. v. Emperor, AIR 1925 Bang 129 (C)." In other petition - Cri. Petn. No.121 of 1951-52 (D) where the argument that the High Court has extended powers was advanced at the Bar his Lordship Vasudevamurthy, J. observed that : "While it may be that this Court has under S.498, Cr.P.C. some such larger powers, I am not prepared to say that in the present case there are any special grounds for so enlarging the petitioner on bail." It is seen that these decisions do recognise the extended powers of the High Court in the matter of granting bail under S.493, but such powers should be exercised only where there are special grounds or exceptional circumstances. The general trend of opinion as expressed in the several decisions of the High Courts in India is also the same. Thus in - AIR 1931 All 356 (A) Mukerji, J., observed: "The High Courts power of granting bail is conferred on it by S.498 and is entirely unfettered by any conditions." Boys, J. the other Judge constituting the Bench in the same case observed that : "the Legislature has given the High Court and the Court of Session discretion (to act under S.497) unfettered by any limitation other than that which controls all discretionary powers vested in a Judge viz., that the discretion must be exercised judicially."

6. A later Pull Bench decision of the same Court reported in - Joglekar, K.N. v. Emperor AIR 1931 All 504 (E) has in fact approved and reiterated the opinion of the Division Bench; Sir Sulaiman Ag. C.J., Young and King, JJ., held that : "Section 498, Cr.P.C. gives an unfettered discretion to the High Court or the Court of Session to admit an accused person on bail. It is a mistake to imagine that S.498 is controlled by the limitations of S.497 except when there are not reasonable grounds for believing that the accused committed the offence, or there are seasonable grounds for believing that he is not guilty, in which cases it becomes a duty to release him. Magistrates can proceed under S.497 only and their discretion is regulated by the provisions of that section; but S.498 confers upon a Sessions Judge or the High Court wide powers to grant bail which are not handicapped by the restrictions in the preceding section. The discretion is unfettered, but of course it cannot be exercised arbitrarily but must be exercised judicially. There is no hard and fast rule and no inflexible principle governing such discretion. The only principle that is established is that there should be a judicial exercise of that discretion. It is net any one single circumstance which necessarily concludes the decision, but it is the cumulative effect of all the combined circumstances that must weigh with the Court. The considerations are too numerous to be classified or catalogued exhaustively." This, if I may say so with great respect, is a correct statement of the present position of the law on the point. This decision has been followed by a recent case of the High Court of Madhya Bharat reported in - Vasant v. State, AIR 1951 Madh-B. 104 (F), Rege, J., observed that : "The wide powers conferred by S.498, Cr.P.C. are not intended to be exercised in an arbitrary manner, but judicially and so as not to make a violent departure from the provisions of S.497 of the Code. This, I may add with respect is the ratio decidendi of decisions of High Courts in India of which I would refer to - Joglekar, K.N.v. Emperor, AIR 1931 All 504 (FB) (E); - Keshav Vasudeo v. Emperor, AIR 1933 Bom 492 (G); - Ashraf Ali v. Emperor, AIR 1915 Cal 784 (H); - Boudville, H.M. v. Emperor, AIR 1925 Rang 129 (C). Section 498 as I look at it provides for cases in which considerations other than the gravity of the case make it expedient that the accused should have freedom during the trial."

7. A substantially similar view was taken by Thomas C.J. in - Emperor v. Abhairaj Kunwar, AIR 1940 Oudh 8 (I) in connection with an application for bail in a case where the offence was under S.307, I.P.C., as in the present case. The learned Judge held that "under S.498 the High Court has power to release a person on bail in any case, that is to say the power in granting bail in non-bailable offence is unrestricted, but that power has to be used judicially and not in an arbitrary manner." The High Court of Lahore in - Emperor v. Krishnagopal, AIR 1933 Lah 925 (J) has followed the Pull Bench decision of Allahabad cited above and expressed that "under S.498, Cr.P.C. the High Court and the Court of Session have an unfettered discretion in the matter of granting bail, but the discretion must be exercised judicially and not arbitrarily and that in the exercise of the powers under that section the limitations imposed by S.497 on the power of other authorities to grant bail should ordinarily be taken into consideration." A similar interpretation has been put in a recent case of Patna High Court reported in - Sagri Bhagat v. State of Bihar, AIR 1951 Pat 497 (K). At page 500 the learned Judge observed thus: "Lastly I must point out that S.498, Cr.P.C. under which a High Court passes an order for bail has given an unfettered discretion to the High Court or the Court of Session to admit an accused person to bail and as was pointed out by a P.B. of the High Court in - AIR 1931 All 504 (FB) (E)."

8. I shall now proceed to examine some of the decisions which have been cited in favour of the view that the powers under S.498, Cr.P.C. are limited and controlled by the conditions laid down by S.497. In - AIR 1915 Cal 784 (H) it was held that: "We think that the rule laid down in S.497 for the guidance of Courts other than the High Court is a rule founded upon justice and equity and one which should be followed by us as well as by every other Court unless anything appears to the contrary. The extended powers given to the High Court under S.498 are certainly not to be used to get rid of this very reasonable and proper provision of the law."

9. This case is followed by - Gul v. Emperor, AIR 1928 Sind 142 (L), in which the learned Judges lay down that "both on priaciple and authority S.498 must be interpreted as being controlled by the provisions of S.497; - Emperor v. Sowrindra Mohan, 37 Cal 412 (M) sod - AIR 1915 Cal 784 (H) followed."

10. It is seen that the extended powers vested in the High Coort under S.498 is recognised by the Calcutta case which is followed by the High Court of Sind. These cases do not very much further the view advanced by the prosecution. Duckworth, J., in - AIR 1925 Rang 129 (C) held thus : "but a High Court is not limited within the bounds of S.497 and it has absolute discretion in the matter. As however, the legislature has placed the initial stage of dealing with crimes with Magistrates and having, in effect, enacted that persons accused of non-bailable offences shall be detained in custody except when there are, in the opinion of the Magistrate dealing with the case, no reasonable grounds for believing that the accused has committed the offence charged against him, a High Court is bound to follow the general law as a rule and not to depart from it except under very special circumstances especially so in the initial stages of a case." It may be mentioned in passing that this case has been noticed in one of the unreported cases of this Court referred to above. The question sub-sequenty came up for decision before the Full Bench of the same Court - "Emperor v. Nga San, Htwa, AIR 1927 Rang 205 (FB) (N), which reads thus : "With regard to the decision in - AIR 1925 Rang 129 (C) while I agree that the learned Judge exercised his discretion properly in that case certain of his dicta are not happily worded. I do not think that the amended S.497 limits the powers of Magistrates in granting bail in case of non-bailable offences except in eases punshable with transportation for life or with death." The learned Judge goes on to say : "But a High Court is not limited within the bounds of that S.497. It has absolute discretion in the matter." This, of course, is quite accurate. That absolute discretion is given by S.498. In the subsequent passage the learned Judge states : "A High Court is bound to follow the general law as a rule". The word "bound" is not happy and would seem to negative the absolute discretion given by S.498. The more accurate method of stating the principle seems to be this. Though the discretion is absolute the High Court must exercise it judicially, and since the Legislature has chosen to entrust the initial stage of dealing with questions of bail to Magistrates and while giving Magistrates an unfettered discretion of granting of bail in all cases except two classes, i.e., cases punishable with death and cases punishable with transportation for life, the High Court ought not to grant bail in such cases except for exceptional and very speeal seasons."

11. The same question and substantially in the same form came up for decision before the Bombay High Court reported in - AIR 1333 Bom 492 (G) where Broomfleld and Divatia, JJ., held: "Having regard to S.498 it is dear that the power of the Sessions Judge like the power of the High Court, is unlimited and not fettered, as the discretion of the Magistrate is by the provisions of sub-S.(1), S.497 except of course in this case that the Sessions Judge like the High Court will naturally not grant bail in a case which comes under the clause in question unless there are some good grounds for doing so."

12. It is thus seen that the earlier view of the single Judge has been modified and the general view of the majority has been accepted. The principles deducible from a consideration of these decisions are that mater S.498 the High Court and the Court of Session are vested with extended jurisdiction and that such extended jurisdiction should only be used in exceptional circumstances. I therefore hold that the High Court has unfettered discretion under S.498 and is not precluded from taking special circumstances into consideration for granting bail regard being had to the rule of general law under S.497, Cr.P.C.

13. The grant or refusal of bail depends upon the particular circumstances of each case. The mere fact that an offence is punishable by transportation for life is not by itself sufficient to refuse bail under S.498. There is abundant, authority for the view that even in cases punishable with death or trsansportation for life Courts have granted bail in view of the special circumstances in those cases. To illustrate from the cases considered herein bail is granted for offences under S.121-A in - AIR 1331 All 356 (A) and - AIR 1931 All 504 (E); so also for an alleged offence under Ss. 307 and 302 read with S.109, I.P.C. in - AIR 1940 Oudh 8 (I) and - AIR 1933 Lah 925 (J) respectively. In AIR 1933 Bom 492 (G) the offence was under S.409 and bail was granted. All these cases at any rate are punishable with transportation for life.

14. Considering the circumstances of the present case I am of opinion that there exist special circumstances which make it just and proper to release the accused on bail. On behalf of the petitioner in affidavit has been first countersigned by the father of the petitioner who is a responsible officer in Government service (but who happens to be at present disabled by an accident and undergoing treatment as an In-patient in the hospital) and in that affidavit it is affirmed that the petitioner is mentally very much depressed showing tendencies to commit suicide and otherwise subject to delusions, that the petitioner was under the treatment of one Dr. K. Subba Rao in December 1951 and was later obtaining prescriptions from the Victoria Hospital and that he still continues to be in a depressed state of health requiring treatment. Dr. Subba Rao referred to therein has issued a certificate to the effect that he was treating the petitioner for neurasthenia associated with mental delusions and a suicidal frame of mind. The doctor must be presumed to be a disinterested person, interested only with the health of his patient; his certificate is therefore entitled to some weight. As against this, the Investigating officer in an affidavit filed by him avers that the story of sickness is merely an afterthought and that the petitioner pleaded unsoundness of mind only in his second petition for bail and this fact presumably may go to indicate that the sickness is a mere fake and set up to concoct false defence. I am not inclined to express any opinion on the merits of the case nor about the alleged sickness. The affidavit on behalf of the petitioner supported by the Doctors certificate indicates prima facie that the petitioner is sick and in a bad state of health. The trial Magistrate at the conclusion of his order has stated that "the police will be instructed to afford all medical facilities to the accused till he is produced before Court on 31-3-52." The prosecution frankly admitted that they have neither got the petitioner examined by a Doctor nor afforded any facility for his treatment, the explanation being that in the opinion of the Investigating Officer the petitioner is not apparently sick. It is rather difficult to proffer the diagnosis of the Investing Officer to the certificate of a qualified doctor. To a suggestion by the Court that the prosecution may arrange at the cost of the petitioner to get him examined by an expert doctor, and if need be, to admit him into the-Mental Hospital the prosecution expressed its unwillingness to do so. If a person is sick and is suffering from neurasthenia, associated with mental delusion as the certificate of the Doctor testifies, I think it is but just and reasonable to afford facilities for treatment by enlarging him on bail. It is stated that the investigation is now complete and consequently no question of any danger of the evidence of the prosecution being tampered with arises.

15. In the affidavit filed by the Investigating Officer two objections are raised viz. that it is apprehended that if the petitioner is released on bail he is likely to get up a false defence in his favour and that the petition will escape the ends-of justice by not attending the Court and making himself scarce. If it is intended that the petitioner should be locked up so as to hamper in his defence I am unable to subscribe to that view. The policy of law is to grant bail rather than refuse it in cases of under-trial prisoners and the Court should be lenient till they are convicted. It is the glorious principle of criminal Justice that a man is considered to be innocent till he is found guilty and when he is accused of an offence he must, have freedom to defend himself. I am supported in this view by the observations of Mukherji, J., in the case reported in - AIR 1931 All 356 (A). The learned Judge states thus: "The principle to be deduced from Ss. 496 and 497 is that grant of bail is the rule and refusal is the exception. An accused person is presumed under law to be innocent till his guilt is proved. As a presumably innocent person he is entitled to every freedom and every opportunity to look after his case. An accused person if he enjoys freedom will be in a much better position to look after his case and to properly defend himself than if he were in custody." The next objection that the petitioner will escape the ends of justice by not attending to the Court and making himself scarce is really an important one. The only legitimate purpose to be served by keeping a person under trial in detention is to secure attendance at the trial. The circumstances as gathered from the affidavits in this case are that the petitioner is a Law Graduate and an Advocate; his father is one of the Deputy Commissioners in the State service and that the petitioner is willing to furnish adequate security to appear whenever called upon. It appears to me that in the circumstances there are no reasonable grounds for apprehension of the prosecution that the petitioner is likely to abscond or otherwise make himself scarce.

16. What remains for consideration is regarding the terms of security upon which the petitioner may be enlarged. Taking all the aspects of the case into consideration I direct that the petitioner shall furnish two sureties for Rs.10,080/- (ten thousand) each and in addition execute a personal bond for a like sum to the satisfaction of the trial Court. The special circumstances existing in this case as can be gathered from the affidavits and other papers filed do justify the petitioner to be released on bail at present and I order accordingly on the terms indicated above. It must of course be specifically understood that the principal ground upon which the bail is granted is the consideration of health and when the deterioration of health vanishes and the petitioner regains his normal state, nothing prevents the prosecution from applying for as cancellation of the bail If such a step is leased necessary in the interests of justice. Order accordingly. AIR 1953 MYSORE 136 (Vol. 40, C.N. 66) "Chennamma v. Dyana Setty" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) Chennamma, Petitioner v. Dyana Setty, Respondent. Civil Referred Case No.3 of 1951-52, D/- 11 -6 -1952. (A) Mysore Hindu Law Womens Rights Act (10 of 1933), S.23 - HINDU LAW - CONSTITUTIONALITY OF AN ACT - EQUALITY - MAINTENANCE - Validity. Constitution of India, Art.15. Hindu Law - Schools. Hindu Law - Maintenance. The inequality between Hindu women governed by the Mitakshara system and other women as regards circumstances under which maintenance may be claimed from their husbands is not sufficient to treat S.23 of the Act as offending Art.15 of the Constitution. AIR 1952 Mad 193; AIR 1952 Bom 84; AIR 1951 Bom 470, Ref. AIR 1951 SC 318; AIB 1951 SC 41, Foll. (Para 3) (B) HINDU LAW - APPLICABILITY OF AN ACT - Hindu Law - Applicability. Universal application is not the test or criterion to brand the law with discrimination. Citizens of India are governed by-personal laws and when the law applies to one and all of a class alike, the criticism of its being discriminatory cannot stand. (Para 3) Cases Referred : Chronological Paras (A) (52) AIR 1952 Mad 193: 1351-2 Mad LJ 649 : 1S52 Cri LJ 434 (B) (52) AIR 1952 Bom 84 : 1952 Cri LJ 354 (C) (51) AIR 1951 Bom 470 : 53 Bom LR 738 : 1952 Cri LJ 23 (D) (51) AIR 1951 SC 316 : 1951 SCJ 478 : 52 Cri LJ 1361 (SC) (E) (51) AIR 1951 SC 41 : 1951 SCJ 29 (SC) Judgement This is a reference under the Proviso to S.113, Civil P.C. by the Munsiff of Nanjangud seeking opinion of this Court on the following question: "Whether S.23(b) and (c) of the Act to amend the Hindu Law as to the rights of women and in certain other respects (act 10 of 1933) is invalid or inoperative by virtue of Art.15 of the Indian Constitution?"

2. The reference is said to have become necessary as the learned Judge while dealing with a suit for maintenance by a Hindu woman against her husband on the ground that he has kept a concubine, considered that S.23 of the Act relied upon is repugnant to Art.15 of the Constitution of India which forbids discrimination against any citizen grounds only of religion, race, caste, sex, place of birth or any of them. The reason given for this view is that the Act in which the section appears is applicable only to a section of people who follow the Mitakshara school of Hindu Law and not to all persons such as, Hindus subject to Dayabhaga etc, Muslims, Christians or Parsees. The parties to the suit in which the question is raised have net appeared though served with notices. The point or examination is whether the ground en which the Act is held to be invalid in the order of reference is correct.

3. The citizens of India are not governed by the same laws in all matters. There are personal laws governing marriage, succession etc., amongst Hindus which are different from those of others. Likewise the Muslims, Christians and many others have laws of their own. Custom which varies from place to place has in some cases attained the force of law. If universal application is the test of a law not being discriminatory, then personal should all be regarded as invalid on account of these being applicable only to persons of particular class. This is not however the criterion to brand a law with discrimination. If between one person of the same class and another there is scope for making arbitrary difference in the application of the law, then it may be open to attack; but when the law applies to one and all of a class alike and the Act in question does not provide for or permit any distinction being made in its application to all persons subject to Mitakshara system of Hindu Law and everyone of such persons is bound by it, the criticism of its being discriminatory cannot stand. With respect to legislation prohibiting bigamy in Madras and Bombay amongst Hindus similar contentions were raised but negatived : See the Madras Hindu Bigamy Prevention and Divorce Act (6 of 1449) and the Bombay Prevention of Hindu Bigamous Marriages Act (25 of 1946) which are applicable only to Hindus in those respective States as the Mysore Act is in Mysore and yet these are held to be valid: See - Srinivasa Aiyar v. Saraswathi Ammal, AIR 1952 Mad 193 (A) and - State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84 (b). section 497, penal code was also impugned as being invalid in - Yusuf Abdul Aziz v. State, AIR 1951 Bom 470 (C) on the score of discrimination between man and woman in regard to the offence of adultery but the Court held it was valid. As observed in - State of Bombay v. F.N. Balsara, AIR 1951 SC 318 at p.320 (D) the "classification is bound to produce some inequality to a certain degree but that would not be enough to iavalidate a law so long as the law deals equally with the members of a well defined class." So, the inequality between Hindu women governed by the Mitakshara system and other women as regards circumstances under which maintenance may be claimed from their husbands is not sufficient to treat S.23 of the Act as offending Art.15 of the Constitution. The following statement in - Charanjit Lal v. Union of India, AIR 1951 SC 41 (E) though made with reference to Art.14 is also pertinent. "If the law deals equally with all of a certain class it is not obnoxious and it is not open to the charge of a denial of equal protection on the ground that it has no application to other persons, for the class for whom the law is made is different from other persons and therefore there is no discrimination amongst equals."

4. The answer to the question therefore is that S.23 of Act 10 of 1933 is quite valid and operative and that it does not offend Art.15 of the Constitution of India. Reference answered. AIR 1953 MYSORE 137 (Vol. 40, C.N. 67) "AdI Lakshamma v. Subbarayappa" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Smt. AdI Lakshamma, Defendant-Appellant v. Subbarayappa, Plaintiff-Respondent. Second Appeal No.52 of 1949-50, D/- 17 -7 -1952. (A) Limitation Act (9 of 1908), S.5 - LIMITATION - APPEAL - Exercise of discretion if binding: on appeal. Civil P.C. (5 of 1908), O.41, R.3. When the discretion u/s.5, is exercised by the lower Court the appellate Court does not ordinarily interfere with that decision. 10 Mysore LJ 117, Rel on. (Para 3) Anno : Limitation Act, S.5 N.38; Civil P.C., Order 41, Rule 3 N.7 Pt.2. (B) Limitation Act (9 of 1908), S.5 - LIMITATION - Exercise of discretion when sufficient cause shown - General principles The fact that the delay is short is certainly one of the circumstances that will have to be taken into consideration in using the discretion. That does not however mean that the fact that the delay is short is by itself sufficient in all cases for condoning the delay, since the respondent gets a right by the appeal being not filed within the period allowed by law. Where the delay could have been avoided by due care and attention the delay though short would not fall within the meaning of S.5. (1894) 1 QB 742 ; 30 Bom 329; and AIR 1919 Pat 503, Relied on. (Paras 4, 5) Anno : Limitation Act,S.5 N.7, 8. Cases Referred : Chronological Paras (A) (31) 10 Mys LJ 117 (B) (1894) 63 LJQB 265 : (1894) 1 QB 742 (C) (06) 7 Bom LR 965 : 30 Bom 329 (D) (19) AIR 1919 Pat 503 : 4 Pat LJ 381

V. Krishnamurthy, for Appellant; D. Shama Rao, for Respondent. Judgement This is an appeal against the order of the lower appellate Court dismissing the regular appeal on the ground that it is barred by time and refusing to condone the delay of one day in filing the appeal. The appeal ought to have been filed on 20-12-48, but was filed on the next day.

2. According to the affidavit filed by the appellant, she started from Manchenahalli en 28-42-1948, the last day on which she could have filed the appeal, to go to Kolar for that purpose. She could not faywever catch the first bus as there was already some rush of passengers bound for Bangalore, viz., Chick-ballapur on account of the visit of Pandit Nehru a few days later. She caught the next bus and came to Chickballapur. By the time she went to Chickballapur, all the buses that go to Kolar from that place had already left; as such she had to go to Kolar on the next day and file the appeal. The learned Subordinate Judge refused to condone the delay of one day and dismissed the application filed for condonation of the delay. The appeal was dismissed as barred by time.

3. It must be remembered that when discretion is exercised by the lower Court the appellate Court does not ordinarily interfere with the decision of the lower Court. As observed in - Thimme Gowda v. Kemparasa, 10 Mys LJ 117 (A). "While the High Court is not precluded from interfering with the first appellate Courts decision under S.5 of the Limitation Act, it should net ordinarily upset the decision of the lower appellate Court fl it is based on a proper exercise of discretion, whatever inferences the High Court, itself sitting as a first appellate Court, might draw regarding the causes urged for delay in presenting the appeal."

4. The point for consideration is whether this is a fit case in which this Court has to interfere with the order of the learned Subordinate Judge who has refused to condone the delay particularly when it was a case of a delay of only one day. The learned Subordinate Judge had the discretion not to accept the reasons given by the appellant. But it has to be remembered that the discretion must be exercised not in any arbitrary manner but strictly on judicial principles. It is not easy to state definitely when it could be said that the discretion is used in a proper manner and each case has to be decided on the circumstances of that case. It is sometimes urged that the delay of a day or two is very short and that itself is sufficient for condoning the delay. The fact that the delay is short is certainly one of the circumstances that will have to be taken into consideration in using the discretion. That does not mean that the fact that the delay is short is by itself sufficient in all cases for condoning the delay. Under S.5, Limitation Act, the delay can be condoned "when the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within the period allowed by law." The cause for the delay in filing the appeal cannot be said to be sufficient unless it is a bona fide cause. Nothing shall be deemed to be done bona fide or in good faith which is not done with due care and caution. In this case the appeal had to be filed on the 20-12-1948. The appellant was in a village near Chickballapur. She had to catch two buses in order to go to Kolar and file the appeal. Even if she had caught the very first bus which leaves Manchanahalli, it is difficult to expect that she would have reached Kolar so as to be able to contact her lawyer and get the appeal filed within time on that very day. She must be expected to have known that she may not get a seat in one or the other buses, by which she had to travel to Kolar. Considering these circumstances it cannot be said that what she did was done with due care and caution. It is a clear case in which delay could have been avoided by due care and attention and in spite of the fact that in this case the delay is short it cannot be said that there is sufficient cause within the meaning of Section 5 of the Limitation Act.

5. One should not easily be led away by the fact that the time of delay is short, as it must be remembered that the respondent gets a right by the appeal being not filed within the period allowed by Law. As observed by Davey, L.J., in - In re : Helsby; Trustee, Ex parte, (1894) 1 QB 742 (B): "Upon the question whether time ought to be extended, speaking for myself, I am inclined to adopt the view of the late James, L.J., that a party has a vested right in an order of the Court in, Ms favour and ought not to be deprived of an advantage given him by the rules, unless there has been on his part, some conduct raising an equity against him."

6. Again it has been observed by Sir Lawrence Jenkins C.J. in - Karsondas Dhurmsey v. Bai Gungabai, 30 Bom 329 (C) : "When the time for appealing is once past, a very valuable right is securred to the successful litigant and the Court must therefore be fully satisfied of the justice of the grounds on which it is sought to obtain an extension of the time for attaching the decree and thus perhaps depriving the successful litigant of the advantages which he has obtained." The following observations of Dawson-Miller, C.J. in - Jahar Mal v. Pritchard, AIR 1919 Pat 503 (D) are also useful in considering whether delay in filing the appeal can be condoned in cases of this kind. "Sufficient time in all these cases is granted to the parties for doing whatever may be necessary for furthering their suit, and if they choose to put off until the very last minute either the filing of the appeal or the taking of any other steps which are a necessary part of the prosecution of their case, they run a very great risk and it does not seem to me that it is sufficient for a party to come to Court and say that if everything had gone absolutely smoothly and if no unexpected accident had happened, he would have been in time in taking the steps required for his appeal. One is not entitled to put things off to the last moment, and hope that nothing will occur which will prevent them from being in time. There is always the chapter of accidents to be considered, and it seems to me that one ought to consider that some accident or other might happen which will delay them in carrying out that part of their duties for which the Court prescribes a time limit, and if they choose to rely upon everything going absolutely smoothly and wait till the very last moment, I think they have only themselves to blame if they should find that something has happened which was unexpected but which ought to be reckoned with, and are net entitled in such circumstances to the indulgence of the Court."

7. Considering the particular circumstances of this case, I do not think that the learned Subordinate Judge was wrong in dismissing the appeal as barred by time and in refusing to condone the delay as prayed for in the application. This appeal stands dismissed. No order as to costs. Appeal dismissed. AIR 1953 MYSORE 138 (Vol. 40, C.N. 68) "Nanjundegowda v. Rangegowda" MYSORE HIGH COURT Coram : 2 BALAKRISHNAIYA AND MALLAPPA, JJ. ( Division Bench ) Nanjundegowda, Plaintiff-Appellant v. Rangegowda and others, Defendants-Respondents. Second Appeal No.474 of 1948-49, D/- 17 -1 -1952. (A) HINDU LAW - Hindu Law - Debts - Legal necessity - Benefit. A debt incurred for defraying the expenses at adoption of a son and for the purchase of bullocks as well as a subsequent mortgage of family property to raise money for the discharge of that debt are debts contracted for legal necessity. (Para 2) (B) HINDU LAW - Hindu Law - Alienation - Manager - Binding nature of; on non-consenting adult coparceners - Alienation for discharge of antecedent debt - Conditions upon which non-consenting co-parcener can recover his share.

54 Mys HCR 371 (FB), Followed. (Para 3) Cases Referred : Chronological Paras (A) (49) 54 Mys HCS 371 (FB) Judgement MALLAPPA, J. :- This appeal arises out of a suit for declaration of plaintiffs title in respect of 4 items of properties mentioned in the plaint schedule. The plaintiff has succeeded in both, the Courts below to the extent that there has been a declaration of his half right to items 1, 2 and 4 as he is the adopted son of the first defendant.

2. The short point for consideration in this appeal is whether the sale of item 3 for Rs.450/- under Exhibit IV on 5-5-35 by the first defendant is binding on his adopted son, the plaintiff. The sale-deed was executed for a consideration of Rs.450/- as already stated, out of which a sum of Rs.48/- was paid in cash and the balance was utilised for discharging the debt due under Ext.I. Ext.I is a hypothecation-deed executed by the first defendant himself for clearing a debt due under the original of Ext.V executed on 5-4-22. According to the recital in Ext.V, the debt was contracted for the expenses of taking the plaintiff in adoption and for purposes of buying bullocks, and that it is to discharge such a debt that the debt under Ext. I was contracted has been sworn to by Kfaivananjegowda, D.W.1. Considering that there are recitals in the old document to support the evidence there is hardly any doubt that the debt due under Ext.V was contracted for legal necessity. It need hardly be said that the debt due under Ext.I must also be construed as having been contracted for legal necessity and it may be stated also that the plaintiff has attested that document. It cannot however be said that while there is absolutely no doubt that the 3rd item was sold for discharging a debt due by the family, there is any evidence of any pressing necessity to sell the property or any evidence of the plaintiff having consented to the alienation by sale. As is clear by the Full Bench decision of this Court in - Thammayya v. Ramalingan, 54 Mys HCR 371 (A) unless the adult co-parcener gives consent to the alientation expressly or implicitely he cannot be bound by the alienation.

3. The right which a member of joint family gets by birth cannot be defeated except by his consent express or implied to an alienation made by the manager of the family. Legal necessity is a substitute for such a consent only when on account of minority or other reason the co-parcener is unable to give such a consent as stated by Mitakshara. An alienation by the manager of a joint family for legal necessity without the express or implied consent of adult coparceners does not affect their rights. As regards the reasons see- 54 Mys HCR 371 (A). In this case there is nothing to show that the plaintiff gave his consent expressly or impliedly to the alienation of item 3 by sale and it cannot be binding on him. At the same time, he cannot get possession of half the property unless he deposits half the consideration passed under Ext.IV. In the result, the appeal is allowed, the judgments and decrees of the lower -Courts against the plaintiff are set aside and in addition to the decree passed by the lower Courts in his favour, there will be a decree for partition of item 3 of the plaint schedule property in case he deposits in Court the sum of Rs.225/-within six months from this date. Otherwise, the judgments and decrees of the lower Courts will stand and the appeal will be deemed to have been dtonissed. Mesne profits will be allowed in respect of Item 3 only from the date on which the sura of Rs.225/- will be deposited and this will be enquired into on an application under Order 20, Rule 12, C.P.C. In the circumstances of the case, the parties will bear their own costs. Appeal allowed. AIR 1953 MYSORE 139 (Vol. 40, C.N. 69) "R. S. Ramakrishna v. K. Rajagopal" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) R. S. Ramakrishna and others, Defendants-Appellants v. K. Rajagopal and others, Plaintiffs-Respondents. Regular Appeal Mo. 86 of 1949-50 and C.R.P. No.33L of 1950-51, D/- 8 -8 -1952. (A) Civil P.C. (5 of 1908), S.11, Expln.5 - RES JUDICATA - Relief claimed but not granted. "Previous suit by A against members of family for declaration of his title to property purchased in execution of decree against Manager and that it was binding on family, with alternative prayer for declaration of a charge in respect of amount which A had paid to discharge an earlier mortgage on that property - Trial Court refusing both reliefs and dismissing suit - In appeal trial Courts decree confirmed without reference to alternative claim - Subsequent suit by members for partition and possession against A - A setting up claim for reimbursement of amount paid by him to discharge earlier-mortgage on property - S.11, Expl.v. applies and alternative claim made in previous suit must be deemed to have been refused by appellate Court and hence operates as res judicata in subsequent suit. Case law referred. (Paras 10, 16) Anno : C.P.C., S.11 N.123. (B) Limitation Act (9 of 1908), Art.109 and Art.120 - LIMITATION - APPLICABILITY OF AN ACT - Applicability. A Court auction-purchaser of joint family property who has merely purchased the interest of the judgment-debtor in the property is in the position of a tenant-in-common. A suit for recovery of mesne profits by the other members against him would be governed by Art.120 and not by Act.109. The receipt of profits by such auction purchaser cannot be held to be wrongful especially when the Court has ordered the other members to be put in joint possession with him. 10 Mys CCR 49, Distinguished. Case law discussed. (Paras 24, 25) Anno : Lim. Act, Art.109 N.3, 4; Art.120 N.28. (C) Evidence Act (1 of 1872), S.106 - EVIDENCE - DECREE - POSSESSION - Mesne profits. Civil P.C. (5 of 1908), O.20, R.12. Suit by one co-owner against another who is in exclusive possession of joint property, for his share of mesne profits - Burden of proving quantum of mesne profits actually realised by defendant lies on defendant. AIR 1925 Mad 145 and AIR 1925 Mad 297, Rel. on. (Para 26) Anno : Evi. Act, S.106 N.9; C.P.C., O.20, R.12 N.5 Pts.56 to 58. Cases Referred : Chronological Paras (A) (81-82) 6 Bom 110 (B) (21) AIR 1921 Mad 21 : 57 Ind Cas 725 (FB) (C) (26) AIR 1926 Cal 179 : 90 Ind Cas 480 (D) (25) AIR 1925 All 243 : 86 Ind Cas 295 (E) (14) AIR 1914 UB 43 (1) : 27 Ind Cas 959 (F) (31) AIR 1931 Lah 335 : 133 Ind Cas 641 (G) (37) AIR 1937 Mad 114 : 168 Ind Cas 306 (H) 17 Mys CCR 217

(I) 13 Mys CCR 145 (J) (43) AIR 1943 Bom 278 : 211 Ind Cas 379 (K) (14) AIR 1914 Mad 582 : 37 Mad 435

(L) (16) AIR 1916 Bom 130 : 41 Bom 347 (M) (47) 53 Mys HCR 438 (N) 19 Mys CCR 67 (O) 22 Mys CCR 293 (P) (35) AIR 1935 Mad 731: 156 Ind Cas 643 (Q) (22) AIR 1922 Mad 150 : 45 Mad 648 (FB) (R) (36) AIR 1936 Mad 654 : 162 Ind Cas 771 (S) (51) AIR 1951 Mad 234 : 1950-2 Mad LJ 459 (T) (25) AIR 1925 PC 93(1) : 29 Cal WN 270 (PC) (U) (24) AIR 1924 PC 144 : 51 Cal 631 (PC)

(V) (36) AIR 1936 All 706 : 164 Ind Cas 668 (W) 10 Mys CCR 52

(X) (89) 12 Mad 292 (Y) 45 Mys HCR 450 (Z) 10 Mys CCR 49 (Z1) (31) AIR 1931 Rang 150: 131 Ind Cas 511 (Z2) (45) 23 Mys LJ 179 (Z3) (25) AIR 1925 Mad 145: 47 Mad 800 (Z4) (25) AIR 1925 Mad 297: 92 Ind Cas 139 B.T. Ramaswamy (for Nos.1 to 3); Mirle N. Lakshminaranappa and S.R.Ramanathan (for No.2), for Appellants; U. Subramanyam and M.N. Nanjundaiah, for Respondents. Judgement VASUDEVAMURTHY, J. :- Plaintiffs 1 to 6 are the sons and plaintiff 7 is a daughter of defendant 4 and plaintiff 8 is his brother. The plaintiffs 1 to 7 have brought a suit for partition and separate possession of their 13/15th share in the plaint schedule four items of property consisting of about 172 acres of wet and dry lands situate in Gundulpet Taluk, for mesne profits for four years before suit aggregating Rs.20,000/- and for recovery of Rs.2000/- claimed as compensation in respect of some anecuts which are the source of irrigation for the suit lands and which the defendants wantonly neglected to repair.

2. The facts leading to the present litigation are briefly as follows: Defendant 1 filed a summary suit under the provisions of O.37 K.T, Civil P.C., in the Court of the Subordinate Judge, Mysore, on the foot of a pronote executed by defendant 4 in his favour. Defendant 4 was allowed to contest that suit only on his furnishing security, which he did, by executing in favour of the Court on -31-3-1938 a mortgage bond whereby the plaint schedule properties and a house were given as security towards the satisfaction of any decree that may be passed in that suit. That suit was subsequently decreed and in Ex. Case No.66/39-40 those properties were sold through Court and the right, title and interest of defendant 4 as on 31-3-1938 was purchased by defendant 1 and the sale was duly confirmed. He then applied for and obtained possession of the plaint schedule properties on 18-2-44 and subsequently sold the said properties to the father of defendants 2 and 3. On behalf of the family of plaintiffs 1 to 6, plaintiff 8 filed an application protesting against their wrongful dispossession in Mis. Case No.124/41-42 when it was ordered that plaintiff 8 be put in possession jointly with defendant 1 and the fattier of defendants 2 and 3 which decision was confirmed in C.R.P. No.238/42-43 by the High Court. Defendant 1 and the father of defendants 2 and 3 then brought a suit in C.S. No.26/42-43 on the file of the District Judge, Mysore, against defendant 4 and plaintiffs 1 to 6 and to set aside the order of the Subordinate Judge in the said miscellaneous case and to declare that they were entitled to exclusive possession of the entire schedule property. That suit was dismissed and that decision was confirmed in H.A. No.101/44-15 by the High Court which held that only the interest of the father of the plaintiffs had passed to defendant 1 as a result of the execution sale and not the right, title and interest of his sons therein. Plaintiff 8 then applied for re-delivery of the property and he was put in symbolical possession of the property on 31-6-46. The plaintiffs have now brought the present suit for partition and possession of their share and for mesne profits as stated above.

3. Defendants 1 to 3 did not deny that the plaint schedule properties are the joint-family properties of plaintiffs 1 to 7 and defendant 4 or that as a result of the decision of the High Court the plaintiffs are not entitled to a share therein. But they contended that plaintiffs 6 and 7 were not born on 31-3-38, the date of the mortgage by defendant 4 in favour of the Court. They also pleaded that plaintiff 7 cannot in any event claim a share in the suit properties as she had no rights by birth in them; that the plaintiffs have not included in this suit a house referred to above and that, therefore, the suit is not maintainable as it amounts to one for partial partition. They also pleaded that defendant 4 had mortgaged all his properties which he got in a family partition to the Bangalore Central Co-operative Bank Ltd. for Rs.8000/- on 16-4-37. That loan had been incurred to discharge certain ancestral debts binding on the family. Some payments had been made towards that debt and a sum of Rs.3462-12-0 was still outstanding. The father of defendants 2 and 3 who had purchased the suit properties from defendant 1 had paid this sum to the Bank on 4-3-42 and was entitled to be reimbursed the said sum by the plaintiffs before they could claim possession of their snare. The defendants also denied that they were liable to pay any damages or mesne profits and that these claims were very heavy.

4. The learned District Judge held that plaintiff 7, the unmarried daughter of defendant 4, was not entitled to claim any share as against defendants 1 to 3. He held that plaintiff 6 had been born and was in existence on 31-3-38 and that he was entitled to a share. He also held that the suit was maintainable and directed that defendants 2 and 3 may be paid some amounts as representing the value of their share in the house. He refused the plaintiffs claim for damages in respect of the anecuts as well as the claim of the defendants for reimbursement. He found that the plaintiffs were entitled to mesne profits only for three years before suit and at a lesser rate than that claimed in the plaint. He accordingly made a decree in favour of the plaintiffs declaring that plaintiffs 1 to 7 are entitled to 6/7th share of the plaint schedule properties, for partition and possession of that snare and for Rs.2285/- as past mesne profits; and is directed enquiry under O.20, R.12, C.P.C., in respect of the future mesne profits. Defendants 1 to 3 have appealed against that judgment only as regards the 6th plaintiffs share, mesne profits, a share in the house itself and the claim for reimbursement. They have not asked now for a dismissal of the plaintiffs suit nor paid Court fee for such relief. The plaintifs .have filed a memo of cross-objections regarding the quantum of mesne profits and the share awarded to the appellants in the house.

5. Mr. Lakshminaranappa, learned counsel for the Appellants, contends that the learned District Judges finding that K. Suryanaraysna, plaintiff S, was born before 30-8-1938 is not correct. He urges that in Ex.II the application made by defendant 4 for a loan to the General Co-operative Bank as well as in Ex.I, the mortgage deed dated 18-4-1937 executed by him in favour of that Bank, defendant 4 has clearly mentioned that he had only four sons and has not set out the name of plaintiff 6. (He has so omitted to mention the names of plaintiff 1 and plaintiff 7). He argues that so far as plaintiff 7 is concerned, as she was not entitled to claim a share as of right in the family properties except at a division. Tier name was rightly omitted. The name plaintiff 1 was omitted probably because he was a major at the time and was employed outside Mysore on some Military duty and as his consent to the mortgage was difficult to obtain the father might have suppressed his existence from the Bank. No such reason is available to explain why the name of plaintiff 6 was not mentioned. The absence of such mention, it is urged by Mr. Lakshminaranappa, shows clearly that he could riot have been in existence on that date. This aspect of the matter has been considered fully by the learned District Judge and we are inclined to agree with him. It appears quite probable, as contended by Mr. U. Subrahmanyam, learned Counsel for the Respondents, that defendant 4 did not want to inform the Bank of the existence of plaintiffs 6 and 7 as the Bank might feel that there were too many minor sons and daughters who might either claim a share or whose upbringing would make it difficult for defendant 4 to discharge his debt. The name of a married daughter was mentioned in the application though clearly she had no interest in the properties. This probabilizes that defendant 4 did not want to mention his unmarried daughters name as she was at least a kind of charge or present liability on the family.

6. Mr. Subramanyam strongly relies on the circumstance that in Ex.B, the plaint in O.S. No.56 of 42-43, by defendants 1 and 2 filed on 22-3-1943, plaintiff 6 has been impleaded as defendant 7 and his age is given as about 11 years. This would mean that he must have been born in or about 1932. Mr. Lakshminaranappa contends that his elder brother Ganeshans age his been given in that plaint as about 17 years while in the present plaint which is filed in January 1947 his age is given as about 18 years showing thereby that the ages that were put down in that plaint would have been only very approximate. But it is admitted by defendant 1, who has been examined as D.W.4 in this case, that he knew defendant 4, that before he filed the suit O.S. No.18/37-38 in the Sub Court against defendant 4 on his pronote he had been on friendly terms with him and was also going to his house, that he gave instructions to his Counsel regarding the ages of the defendants in O.S. No.26/42-43 and that before giving such instructions he made enquiries about their ages, of defendant 4s brothers wife. After the present suit was filed he says he has not made enquiry about their ages. A person like defendant 1 who was a creditor of the family from quite a long time and who was trying to enforce the mortgage deed executed by the father and who was moving on friendly terms with the family and who admittedly made enquiries from a close relation, of the family, who had no reason to mislead him cannot so easily escape responsibility for his statement under Ex.B.

7. There are also some other very significant circumstances which show that plaintiff 6 could not have been bom only after 1938 as claimed by the defendants. In the written statement, the detendants merely put the plaintiff to strict proof of the ages as given in the plaint and said that plaintiffs 6 and 7 were not bom on 31-3-38. In the reply, which was filed in May 1947, it was stated for the plaintiffs that plaintiff 5 was studying in the Seshadripuram High School, Bangalore, and had been promoted to the Vlth Form, that plaintiff 6 was studying in the Malleshwaram High School and had been promoted to the Vth Form and that the ages of plaintiffs 6 and 7 could not possibly be under 9 years on 31-3-38. These facts which have been sworn to by plaintiff 8 have not been seriously controverted. II plaintiff 6 was in Vth Form in 1947 it is almost impossible that he would be less than 9 years of age. During the course of the suit the learned District Judge saw plaintiffs 6 and 7 in Court and on 18-2-48 he made a note as follows: "The plaintiffs 5, 6 and 7 are now in Court, (the "5th plaintiff appears to be about 16 years of age, the 6th plaintiff is aged about 14 years and the 7th plaintiff is aged about 12 years)". Mr. Ranganadhan, learned Counsel for the defendants, appears to have been absent that day and it is argued before us that the note was made behind his back and cannot take the place of legal evidence. In fact it is contended that the learned District Judge could not have made a note of such observations at all. We have not been shown any authority for that extreme position. We see no reason why the teamed District Judge should sot mate a record of the ages of the plaintiffs according to their appearance. Such a note is made about the age of witnesses, and the tearned District Judge lias on the next date been careful to record that the ages he has noted were toy no means conclusive and were really a matter for proof in the suit. That estimate of the learned District Judge taken with the rest of the evidence greatly probabilises the truth of the plaintiffs case regarding the age of plaintiff 6. The difference in age between 9 years and 14 years would have been quite obvious and there could hardly be much room for doubt that anyone could easily say the difference in appearance between a boy of 9 and a boy of 14 or 15.

8. It is contended for the Appellants that the burden of proving the age of plaintiff 6 lay heavily on the plaintiffs and that they could have given better evidence. It is represented for the respondents that they did make some attempt to produce sense extracts from school registers but the same were not admitted as being not in proper form. The admission of defendant 1 in Ex.B, and the evidence of plaintiff 8 and the probabilities leave no room for doubt that the learned District Judges finding that plaintiff 6 was in existence on 31-3-1938 is correct. There is much force in the learned Judges observation that in a case like the present where defendant 1 had made an admission as per Ex.B, the burden was at least as much on him to show that the admission was made by mistake and to produce some evidence to prove the ages of plaintiffs 8 and 7; and this he has entirely failed to do.

9. It is next contended for the appellants that the Court below was in error in not allowing in favour of the defendants a sum of Rs.3462-12-0. The main grounds on which it had been refused by the Court below is that such a claim had been made by defendant 1 and Ameerjan the father of defendants 2 and 3 in the previous suit O.S. No.26 of 42-43 and was not granted and that the effect of the same would operate as a bar to the present claim and that that payment even if true was not shown to have been for purposes binding on the plaintiff. In para.19 of Ex.B, the plaint in that suit, it was pleaded that Ammerjan had paid the Central Co-operative Bank this sum and was therefore subrogated to the rights of the Bank both in law and in fact; and in para.23(c) a relief in the alternative to the effect that if for any reason the Court did not grant the plaintiffs the relief for declaration that the Court sale in favour of the plaintiff was binding on the plaintiffs herein then the Court may order the sale of the plaint schedule properties for the realization of the amounts paid by Ameerjan to the Bank or to such part as may be found to be a proper charge on the properties with interest thereon at 9 per cent, per annum, was asked for. This claim for alternative relief was disputed and issues were framed both with regard to the factum of payment and the liability of the present plaintiffs to pay the same to defendant 1 and Ameerjan. The then learned District Judge of Mysore, who tried the suit, held on a consideration of the evidence that Ameerjan was not shown to have paid the concerned amount to the Bank and he, therefore, refused to grant to the plaintiffs therein the alternative relief while dismissing their entire suit. On appeal to this Court the decision of the teamed District Judge was confirmed by Venkataramana Rao, C.J., and Paramasiviah, J. They held that the decree obtained on the foot of the pronote executed by defendant 4 and the execution proceedings consequent thereon was not binding on the minor sons interests and refused to make a declaration in favour of the plaintiffs is prayed for. They did not also grant the alternative claim. In the appeal memo defendant 1 and Ameerjan had expressly raised this question. It is contended that their Lordships have not even referred to this alternative claim in their judgment and therefore their judgment cannot operate as res judicata. The argument is that when an appeal was filed against the decision of the District Judge it ceased to be res judicata between the parties and that in the absence of a decision by the High Court for or against the plaintiffs in that suit, there is now no decision which bars their present claim for reimbursement. The findings of fact of the learned District Judge who tried O.S. No.26 of 42-43 (and of the Court below in respect of the factum and binding nature of the payment) has also been canvassed before us; but it is unnecessary for us to go into that question now in the view of the law which we have taken.

10. Section 11, Civil P.C., bars a Court from trying any issue which has been directly and substantially in issue in a former suit between the same parties and which has been heard and finally decided. Explanation V to that section lays down that any relief claimed in the plaint which is not expressly granted by the decree shall for purposes of that section be deemed to have been refused. It is urged that the relief claimed in the former suit was merely to declare a charge on the salt properties and to direct their sale while the present claim for reimbursement is for payment to defendants 1 to 3 of a specific sum of money and are therefore different. The claim in the former suit was also in money. The sale of the properties was to be made only for the purpose of recovering the amount by the plaintiffs in that suit. Even now the defendants want that they should be allowed to remain in possession till ithey are paid off the said amount. In our opinion the wording of explanation V to S.11 bars the grant of any such relief to the defendants.

11. In support of his contention "Mr. Laksaminaranappa has relied on some decisions which may be examined. In - Nilvaru v. Nilvaru, 6 Bom 110 (A), the plaintiff brought a suit for damages caused by the defendants cutting and removing certain trees on a piece of land which he alleged belonged to him. In the trial Court two issues were raised, viz., whether the land belonged to the plaintiff and whether the act of trespass alleged had been committed by the defendant. The trial Court found both those issues against the plaintiff and dismissed the suit. On appeal, the appellate Court did not decide the question of title but upheld the decree of the trial Court on the ground that the defendants had not committed trespass. In a later suit where the plaintiff sought to recover possession of the piece of land, the decision in previous case regarding title was not held to be res judicata, it being held that the appellate Court had declined to decide the issue. It was clearly unnecessary to decide that issue as if no trespass had been committed the plaintiff would be clearly entitled to no relief. This case has no bearing on the present question.

12. In - Venkataratnama v. M. Krishnamma, AIR 1921 Mad 21 (PB) (B), a suit was brought for declaring a will to be a forgery. It was also contended that it operated as authority to adopt. The trial Court gave a decision on both the questions. The High Court, however, decided only on the question of the genuineness of the will. Subsequently in a suit brought for a declaration that an adoption made in pursuance of the will was invalid, it was contended that the consideration of that question was barred. It was held that the question as to the will being operative as an authority to adopt was not so barred and that the doctrine of constructive res judicata enunciated in Explanation IV to S.11 did not apply. Abdur Rahim, Offg. C.J. observed that "by the plaint in the earlier suit, all that was asked for was a declaration that the alleged sale was not genuine. It did not contain any alternative prayer that even if the docimiesit was found to be genuine the Court shosid hold that it was not a will but an authority to adopt and as such invalid for non-registration. The issue framed was also confined to the question of genuineness of the document. But at a later stage of the trial the other question oi the construction and operation of the document was allowed to be raised and determined by the trial Court." Seshagiri Ayyar, J., observed that "the mere ground of attack relating to the main relief should not be regarded as a separate relief and the refusal to entertain a ground which related to the relief which was adjudicated upon by the judgment cannot be regarded as a refusal to relieve. Therefore the constructive res judicata referred to in Explanation V had also no application to that case". This decision therefore does not really help the appellants.

13. In - Karuna Chaxan Das v. Krishna Sun-dar, AIR 1926 Cal 179 (C), - 6 Bom 110 (A), was applied and it was held that when the judgment upon a particular issue by a Court of first instance is appealed against that judgment ceased to be res judicata and becomes re sub judice and if the appellate Court declines to decide that issue and disposes of the case on other grounds, the judgment of the first Court upon that issue is no more a bar to the future suit. Neither in this case nor in-Gulab Rai v. Sundar Lal, AIR 1925 All 243 (D), nor in - Nga Ti v. Nga Pan, AIR 1914 UB 43 (1) (E), was the applicability of the explanation to S.11 involved.

14. Mr. Subrahmaayam has relied on - Wadhava Singh v. Ladha Singh, AIR 1931 Lah 335 (P) for contending that if there are two issues which had been determined in a suit and the decision of either was potent enough to defeat the plaintiffs whole suit then it is open to the defendant in a subsequent suit to rely upon the previous decision on the one or the other of the issues and to ask the Curat to throw out the plaintiffs case as barred by res judicata; and on - Kotayya v. Subbaya, AIR 1937 Mad 114 (G), where it was held that though a finding on an issue may not be necessary for the disposal of the suit yet if a party invites the decision of the Court on that issue and the Court also considers it necessary to go into it and give a finding thereon, the decision on that issue will constitute res judicata in the subsequent suit provided the party against whom there was a finding on that issue would be in a position to carry the matter in appeal.

15. In this Court in - 17 Mys CCR 217 (H), following an earlier decision in - 13 Mys CCR 145 (I), it has been held that where a decision is, as a matter of fact, based on two grounds either of which would by itself be sufficient to support the decree, the decision upon each such ground is conclusive between the parties and is res judicata in a subsequent suit.

16. We do not think that the above rulings are applicable to the circumstances of the present case. Explanation V to S.11 C.P.C. declares unequivocally that any relief claimed in the plaint which is not expressly granted by the decree shall for purposes of S.11 be deemed to nave been refused. Stress is laid in that explanation on the relief claimed in the suit. Mulla in his Code of Civil Procedure, 11th Edition, has pointed out that Explanation V does not apply unless the relief claimed is (1) a substantial relief and (2) it is such as it is obligatory on a Court to grant. In O.S. No.26 of 42-43 defendant 1 and Ameerjan expressly prayed for the altenative relief to enable them to recover this sum. They reffered in para 10 of their plaint to the borrowing by the father of the pliantiffs from the Central Co-operative Bank and in para.19 to Ameerjan paying that Bank a sum of Rs.3462-12-0 and having become therfore subrogated to the rights of the Bank both in law and in fact; and in para 23(c) they stated that if for any reason the Court was not prepared to grant to the plaintiffs a declaration that the Court sale in favour of defendant 1 was fully binding on the plaintiffs in this suit then to order the sale of the schedule property for the realization of the amounts paid by Ameerjan to the Bank or such part of it as the present plaintiiffs could be held liable to contribute towards the same with interest thereon. That alternative claim of theirs also was rejected by the learned District Judge who held that they had not made out that they had paid off the Bank. The appeal to this Court in - R.A. No.101 of 44-45 expressly included the grievance that they had not been granted this alternative relief. The same could have been granted by the District Judge or by this Court on appeal in O.S. No.26/42-43; and while it was refused by the District Judge it was certainly not granted by this Court. In these circumstances we fail to see how the appellants can escape the clear provisions of S.11, Explanation V.

17. It has been contended for the appellants that if it is found that Ameerjan had properly paid this sum to the Bank and that that debt was incurred for legal necessity binding on the minors, defendants 3 and 3 are entitled to remain in possession till tbe same is paid off and that a decree in favour of the plaintiffs can only be made conditional upon their paying this amount to defendants 2 and 3. In this view it is urged that the plaintiffs would not be entitled to recover any mesne profits until they have deposited that sum in Court. In support of this contention reliance is placed on - Madhavrao Ganpat v. Shankar Hari, AIR 1943 Bom 278 (J). That was a case of an alienation by a manager of a joint Hindu family accompanied by delivery of possession for a declaration that the sale of the joint property by a manager was not binding on him. Part of the consideration was found to be not for legal necessity and the sale was set aside. It was held that the plaintiiff could recover possession of his share only on the condition of his paying to the defendant alienee a proportionate share of the consideration found binding on the family. The plaintiff in such a case was not entitled to mesne profits from the date of suit but only from the date of deposit of the money on which recovery of possession was made conditional. In - Vadivelam Pillai v. Natesam Pillai, AIR 1914 Mad 582 (K), where the managing member of a joint Hindu family had sold the family property for consideration of which a part was found to be binding on the family, it was held that the proper decree to be made in favour of the plaintiff was conditional one on his paying the defendant a proportionate share of the consideration found binding on him together with mesne profits from the date that he deposits the amount into Court and gives notice thereof to the defendant. We do not think that that principle would apply to the present case. The present is not a case of an alienation by a manager which the minor members are seeking to set aside. It is a case of a compulsory sale through Court.

18. The debt in favour of the Central Co-operative Bank was a simple mortgage debt and not accompanied with possession. It is not even alleged that the Bank was pressing for payment or was about to file a suit. It was not entitled to possession under the mortgage and if Ameerjan paid the amount due to the Bank he could at the mast claim to be subrogated to the position of that Bank, see S.92, T.P. Act. He could have asked for the amount being realised by the sale of the hypothecated properties. This he has already done, and failed in the previous suit. Ameerjan could not improve his position vis-a-vis the minors by paying some debt which may even be found binding on the minors for the purpose of denying mesne profits to them. If the contention of the Appellants is to be accepted even a stranger wrongful purchaser may pay off some small debt binding on the minor members of a family without any valid justification or pressure and claim that he should remain in possession until the amount he has paid is recouped to him. The amount apparently need not have any relation even to the quantum of mesne profits according to the appellants. The principle enunciated in the decisions relied on for the appellants is not based on any statutory rule but is one of equity, and we think that the Court is entitled to mould the application of such equitable principles in accordance with the circumstances of each case.

19. In this connection it was contended for the appellants that the above view worked a serious hardship on them. It is difficult to see where the hardship comes in. According to the law in Mysore it was quite clear that in a suit on a pronote only the right, title and interest of the father who was the executant could be proceeded against irrespective of whether the amount was borrowed for legal necessity or not. In spite of it defendant 1 chose to bring to sale the entirety of the very considerable and valuable properties in which the minor sons of the executant had shares and purchased them himself and sold them to Ameerjan who obviously knew or ought to have known that he was purchasing litigation. We have no evidence in this case for what price Ameerjan purchased these properties. It was mentioned at the time of arguments that the purchase was for only Rs.12,000/-. They managed to dispossess the plaintiffs of all their valuable lands and till very recently have successfully kept them out of possession by filing the suit O.S. No.26/42-43 and later on by taking it up in appeal not satisfied with the decision of the District Judge. In these circumstances the appellants cannot be seriously heard to complain of any hardship.

20. The next contention raised for the appellants is with regard to mesne profits. The Court below has awarded mesne profits for only three years before suit at the rate of Rs.1000/- per year. While the appellants contend that no mesne profits should have been awarded at all, the respondents have filed a memo of cross-objections complaining that the amount awarded is much too low and that they should have been awarded mesne profits for four years at Rs.5000/- per year as claimed in the plaint; but in their cross-objections they have restricted their claim at Rs.3500/-per year as they are unable to pay the requisite Court-fee on any higher claim.

21. We think that the award of mesne profits for only three years before suit is not correct. Mr. Subrahmanyam has contended that the position of a purchaser in Court auction like defendant 1 is that of a tenant in common with the other-coparceners, and for that position he has relied on cases reported in - Naro Gopal v. Para Gowda Basagowda, AIR 1916 Bom 130 at p.131 (D) - Veerappa v. Anantharaman, 53 Mys HCR 438 (M) - 19 Mys CCR 67 at p.69 (N) - 22 Mys CCR 293 at page 295 (O). He urges that if the purchaser is treated as a tenant in common the claim for mesne profits by a coparcener against him falls under Article 120 and not under Art.109, Limitation Act. (Art.109 prescribes a period of 3 years for a suit to recover the profits of immoveable property belonging to the plaintiff which have been wrongfully received by the defendant). For this position he has strongly relied on the cases in - Siddalingana Gowd v. Bhimana Gowd, AIR 1935 Mad 731 (P) and - Yerukola v. Yerukola, AIR 1922 Mad 150 (PB) (Q).

22. In - AIR 1922 Mad 150 (PB) (Q) the parties were members of a joint Hindu family who had become divided in status but the properties had not been divided and apportioned among tham. Subsequently one of them brought a suit tor partition by metes and bounds claiming also for an account being taken of the moveable properties outstanding and collections made by the various members in respect of the properties. It was held by a Full Bench of five Judges that the proper article to be applied in such a case was Art.120. The period of limitation would run from the date of demand of the share by the plaintiff or refusal by the defendant. If the rents and profits were received by one of them with the consent of the others Art.89 may apply as he might be deemed to be an agent of the others; but neither Art.62, nor Article 127, nor Art.109 were applicable. Dealing with the applicability of Art.109, which the District Judge had applied Schwabe C.J., said that the same "was not is terms applicable." He observed: "that it appeared to be well settled that a receipt of profits by one of several tenants-in-common was not wrongful." Kumaraswami Sastry, J., dealing with the same contention observed: "It seems to be clear that the receipt of profits by one of several tenants in common cannot be said to be wrongful. The receipt of rents or profits from tenants or persons in occupation of lands held in common is one of the ordinary modes of enjoyment of property and it cannot be said that a tenant in common is not entitled to receive the rents due." In - AIR 1935 Mad 731 (P) this case was referred to and followed with approval. In that case the plaintiffs were members of a joint Hindu family. The defendant held a mortgage over certain joint family properties but that mortgage had been executed only by a step-brother of the plaintiffs. In execution of the decree obtained on that mortgage, the defendant himself became the purchaser of the properties. As the plaintiffs and another deceased brother of theirs were not parties to the suit on the mortgage they resisted the defendant when he attempted to take possession as execution purchaser. The Court ordered their obstruction to be removed, and the plaintiffs brought a suit for mere declaration which later on was amended by the addition of a prayer for possession of the properties. The plaintiffs suit was ultimately decreed for partition and possession of a 5/7th share of the suit properties and to a 5/7th share of the profits received from those properties. The question arose whether they would be entitled to such profits for 4 years before suit or for only 3 years. Varadachariar, J., as he then was, after a discussion of ail the relevant previous case-law on the subject, held that the principle of the Full Bench ruling in - AIR 1922 Mad 150 (Q) was clearly applicable and the suit for mesne profits must be held, to be governed by the 6 years rule of limitation prescribed by Article 120. He observed that the parties were clearly in the position of co-owners. He referred to Col.(1), Article 109, and pointed out that neither of the conditions assumed by Col.(1) can apply as between co-owners because in such a case the property cannot be said to belong to the plaintiffs alone nor could profits derived by the other co-owners be held to have been wrongfully received by them. That is why it had been held in several cases that the proper conception even in respect of a claim in the nature of damages as between co-owners is that he has claimed for compensation and not made a claim for mesne profits. This case has been followed in - Sundararaja Ayyangar v. Eaghava Reddi, AIR 1936 Mad 654 (R). See also - Naganna Naidu v. Venkatarayulu Naidu, AIR 1951 Mad 234 (S). In - Midna-pore Zamindari Co. v. Naresh Narayan Roy, AIR 1925 PC 93 (1) (T) see - Midnapore Zamindari Co. v. Naresh Narayan Roy, AIR 1924 PC 144 (U) where a co-sharer had been given symbolical possession in execution of a decree for joint possession in a suit for partition and separate possession, it was held that he should be allowed mesne profits for only 6 years previous to suit. There is no discussion in that judgment, but it is instructive as showing that apparently that position was not seriously controverted. In - Rangayya Naidu v. Subbayya Naidu, ATR 1936 All 706 (V) it has been held that where the suit is between co-sharers for share of profits realised by a co-sharer in possession, Article 120 and not Art.89 applies. Where some of the co-sharers have been deprived of the use and occupation of the land and of the use of the profits they have derived from the land since the other co-sharers had appropriated them, the former should be compensated for the loss suffered due to non-use of the money by them.

23. In - 53 Mys HCR 438 (M) it has been held that the legal possession of a purchaser at Court sale of the right, title aad interest of a coparcener in an item of joint family property is that of a tenant-in-common with that of the other coparceners, that mere non-participation in profits by a tenant-in-common would not amount to ouster and that a suit brought by such a purchaser of a coparceners share for partition and possession is governed by Article 144, Limitation Act. In that case the Court did not award to the purchaser mesne profits prior to suit and the question of limitation in a suit for such recovery did not, therefore, arise for consideration. - 10 Mys CCR 52 (W) was referred to in that decision and it was pointed out that an observation in that decision ibased on - Muttusami v. Ramakrishna, 12 Mad 292 (X) that "The possession of one coparcener is the possession of all for purposes of imitation does not apply as between a purchaser from one of the coparceners and another coparcener" was merely an obiter dictum of the learned Judges and did not arise for consideration in that case. In - 45 Mys HCR 450 (Y) which was a suit for partition and accounts of rents and profits as between co-owners who had becomedivided in status but had not actually divided the immoveable properties by metes and bounds, Article 89 was applied as a relationship of principal and agent was established between the person who had collected such rents and mesne profits and the plaintiff, as the former was found to have been managing the properties. - 10 Mys CCR 49 (Z) was relied on for the contention that a claim for an account of mesne profits was subject to a limitation of 3 years. Their Lordships, however, considered that "that case could be easily distinguished inasmuch as the joint owners in that case ware not members of a joint Hindu family. The parties there were holders of specific and definite, though undivided, shapes and were not living as members of a joint family. Each of the persons interested had been taking out of the property, which consisted of some jungle and other land, whatever he liked" and those circumstances were considered as justifying the application of Article 109, Limitation Act. A suit by one co-sharer against another who is in exclusive possession of the joint property for compensation for use and occupation, or for his share of the rents and produce of the joint family property would, it was observed in that case, fall within Article 120. - AIR 1922 Mad 150 (FB) (Q) - Po Nyun Maung v. Ma Saw Tin, AIR 1931 Rang 150 (Z1) and - AIR 1936 Mad 654 (R) were referred to and relied on for holding that a suit by one co-sharer against another for the share of the rents collected by the latter is within Article 120 and Art.109 could not apply because the defendant could not be said to have received the rents wrongfully so as to attract its operation.

24. In - Sreenivasachar v. Rama Rao, 23 Mys LJ 179 (Z2) the Courts below had concurrently found that the plaintiff and the defendant who had once been members of a joint Hindu family had become divided in status before the suit was filed and that they were co-sharers owning definite shares without having effected a division of the family properties by metes and bounds. It was pointed out that the receipt of the family income by one of the members could not be wrongful and Article 169 must therefore be excluded from consideration. - 45 Mys HCR 450 (Y) was relied upon to apply Article 120. - AIR 1922 Mad 150 (Q) - AIR 1936 All 706 (V) and - AIR 1925 PC 93 (1) (T) were referred to in support of that position. - 10 Mys CCR 49 (Z) which was relied on even on that occasion was distinguished, their Lordships adopting the reasons given in - 45 Mys HCR 450 (Y) for so doing. - 10 Mys CCR 49 (Z) relied on for the appellants has, therefore, no application and the respondents are entitled to mesne profits for four years before suit.

25. In the present case there is a further circumstance in favour of the plaintiffs. By an order in Mis. Case No.124/41-42 which was confirmed in C.R.P. No.238/42-43 by the High Court it was directed that plaintiff 8 who was and is acting for plaintiffs 1 to 7 should be put in possession jointly with defendant 1 and the father of defendants 2 and 3. In the face of that order it is difficult for the appellants to contend that they must be deemed to have been in such wrongful and exclusive possession of the properties as would bring their case under Col. (1) of Article 109, Limitation Act. We must, therefore, hold that the plaintiffs are entitled to four years mesne profits and not only for 3 years as held by the Court below.

26. As regards the quantum of mesne profits, the burden of proving the actual mense profits which the persons like defendants 2 and 3 who are in actual possession of the lands realized from them is on them while if the plaintiffs claim any mesne profits on the basis that with due diligence the person in possession could have realized more profits from the lands would be on the plaintiffs; see - Ramakka v. Nagesam, AIR 1925 Mad 145 (Z3) and - Abdul Gaffur Rowther v. M. Samsuddin Rowther, AIR 1925 Mad 297 (Z4). The present claim of the plaintiff is only on the former basis and the onus of proof is clearly on the defendants to make out what they had realized from the properties during the years in question. In O.S. No.25 of 42-43 defendant 1 and Ameerjan had claimed Rs.1500/- per year as mesne profits. The reason given by the learned District Judge to reduce the present plaintiffs claim even to a figure lower than that is clearly unconvincing. Indeed the learned District Judge has not discussed the evidence the case relating to the actual yield from the lands and has awarded more or less an arbitrary figure as mesne profits. After discussion of evidence with regard to mesne profits and determining the amount the judgment proceeds as follows):

27. It was next contended for the appellants that the direction given in the concluding portion of para 19 of the judgment of the. learned District Judge that instead of dividing the tiled house in Panjanahalii and giving the defendants their 1/7th share they may be paid Rs.285/- as being the approximate value of the 1/7th share due to them in respect of the house was not proper. It is urged that the Court was bound to have determined the present value of the house and allowed 1/7th share of the same to defendants 1 to 3 instead of fixing its value without any evidence. We think there is some force in that contention. That provision in the judgment will, therefore, be modified by directing that the Court below will determine the value of the house and allow defendants 2 and 3 to recover 1/7th share of its value. Mr. Lakshminaranappa has urged that they might be given a share in the house by actual partition but we are inclined to think that the District Judge has decided correctly in holding that the house which is apparently a small one in a village cannot and need not be partitioned by metes and bounds.

28. In the result, subject to the slight modification indicated above the appeal is dismissed with costs. The memorandum of cross-objections is allowed with costs. The connected C.R.P. No.331 of 50-51 is not pressed. It is dismissed. There will be no order as to costs. Order accordingly. AIR 1953 MYSORE 145 (Vol. 40, C.N. 70) "A. Dastagir Sab v. N. Shariffunnisa" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) A. Dastagir Sab, Defendant-Appellant v. N. Shariffunnisa Plaintiff and another, Respondents. Second Appeal No.511 of 1948-49, D/- 27 -3 -1952. Dissolution of Muslim Marriages Act (8 of 1939), S.2(ii) - MARRIAGE - DECREE - RESTITUTION OF CONJUGAL RIGHTS - Decree for restitution of conjugal rights in favour of husband - Decree conditional on his paying prompt portion of dower and furnishing security for properly looking after his wife - Conditions not fulfilled - Wife held might refuse to live with him and he was bound to maintain her - Husband neglecting to do so for over two years. Wife held was entitled to decree for divorce: AIR 1946 Pat 467, Foll. Mysore Dissolution of Muslim Marriages Act (1943), S.2(ii). (Para 2) Anno : Dissolution of Muslim Marriages Act, S.2 N.2. Cases Referred : Chronological Paras (A) (46) AIR 1946 Pat 467: 228 Ind Cas 198

V. Krishna Murthy, for Appellant; D.M. Chandrasekhar, for Plaintiff-Respondent; A.R. Somanatha Iyer, Advocate-General, for Deputy Commissioner. Judgement Respondent 1 is the legally wedded wife of the appellant. She filed a suit for the recovery of Rs.525/- being the amount of dower, for the maintenance amount of Rs.540/- for three years previous to the suit; for directing the defendant to fulfil conditions of the decree in favour of the appellant (O.S.310 of 39-40 on the file of the Munsiff, Shimoga) or in the alternative for a decree granting divorce to the plaintiff by the dissolution of the marriage between herself and the appellant. The appellant denied his liability to pay either the dower or the amount of maintenance claimed; regarding the relief of fulfilment of the conditions in O.S.310 of 39-40, he pleaded that the conditions were too onerous to be complied with and that respondent 1 is not entitled to the dissolution of the marriage as the requirements for the grant of the relief are not existing. The trial Court decreed the suit for Rs.250/- being the prompt portion of the dower and the rest of respondent ls claim was dismissed. On appeal the Subordinate Judge gave a further relief by way of dissolution of marriage and directed the appellant to pay the institution fee due to the Government on the appeal memo. The defendant (appellant) has preferred the second appeal against the said decree.

2. The main question that is argued is about the decree granting divorce. The decree in O.S.310/39-40 was for the restitution of conjugal rights filed by the defendant against the plaintiff on fulfilment of five conditions of which the first condition is that the defendant should deposit Rs.250/- being the prompt portion of the dower and the fifth condition is that the defendant should give security of two respectable persons to the effect that he would properly look after the plaintiff. Admittedly neither condition has yet been fulfilled. In - Najiman Nissa Begum v. Serajuddin Ahmed Xhan, AIR 1946 Pat 467 (A) it is laid down thus: "Where the husband refuses to pay the prompt dower and takes the defence, when a suit has been instituted to recover it, that there was no prompt dower payable by him, that the wife has relinquished a portion of that dower debt and that the balance has been converted into deferred dower, but the Court decides that the wife is entitled to the payment of her dower debt which, however, remains still unpaid, the wife can refuse to go and stay with the husband and the husband is bound to maintain such a wife. Consequently, where, before the institution of a suit by the wife for dissolution of marriage, the wife has not been paid any maintenance for over two years and is not paid any maintenance since the institution of the suit and the attitude of the husband is that he is not bound to pay maintenance unless and until the wife comes and stays with him, the facts come within the mischief of S.2(ii) and the wife is entitled to dissolution of her marriage." The circumstances of the present case are similar to that in the Patna case and attract the principles laid down therein. Section 2 (ii), (Mysore) Dissolution of Muslim Marriages Act, 1943, corresponding to the Indian Act, 1939 runs thus: "A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds namely:- x x x x

(ii) that the husband has neglected or has failed to preside for her maintenance for a period of two years;" Where the prompt dower yet remains unpaid, and the condition of protection is not fulfilled, the wife may refuse to live with her husband. Besides, it was the duty of the husband to maintain his wife, but he has not only neglected to do so for a period of three years prior to suit but has denied his liability to maintain. In consequence, the wife is entitled to a decree for divorce. In this view the decision arrived at by the learned Subordinate Judge is perfectly justified.

3. Regarding the direction that the appellant should pay the court-fee, due on appeal memo to Government, such order is fully within the jurisdiction of the appellate Judge, and in the peculiar circumstances of the case, I see no reason to disagree with the direction. In confirming therefore the judgment and decree of the learned Subordinate Judge, this appeal fails and is dismissed, parties bearing their own costs in this Court. Appeal dismissed. AIR 1953 MYSORE 146 (Vol. 40, C.N. 71) "State of Mysore v. Mahadevappa" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) State of Mysore v. Mahadevappa, Accused-Respondent. Criminal Anpeal No.51 of 1952-53, D/- 15 -1 -1953. (A) Criminal P.C. (5 of 1898), S.247 - SUMMONS CASE - APPEARANCE - ADJOURNMENTS - Acquittal under, for non-appearance of complainant - Jurisdiction to be exercised only when case cannot be adjourned - It is misuse of discretion if circumstances indicate that Magistrate clutched at jurisdiction merely to dispose of case - Records with District Magistrate in connection with reference u/S.438 - Case adjourned by trial Court from time to time, for non-arrival of records - Prosecution unaware of return of records - Case called and accused acquitted for non-appearance of prosecution - Discretion, held not properly exercised. (Para 2) Anno : Cr.P.C., S.247 N.2, 5, 7. (B) Criminal P.C. (5 of 1898), S.247 - SUMMONS CASE - APPEARANCE - MAGISTRATE - Whether section applies when Magistrate takes cognizance of case on police report. Quaere. (Para 2) Anno : Cr.P.C., S.247 N.5, 2. (C) Criminal P.C. (5 of 1898), S.247 - SUMMONS CASE - APPEARANCE - Court should not hastily dispose of case u/S.247, at early stage when days work begins. (Para 2) Anno: Cr.P.C., S.247 N.2. (D) Criminal P.C. (5 of 1898), S.247, S.423 - SUMMONS CASE - APPEARANCE - APPEAL - Acquittal u/S.247 not proper - High Court will set aside acquittal in appeal. (Para 2) Anno: Cr.P.C., S.247 N.12 S.423 N.17. Cases Referred : Chronological Paras (A) 19 Mys CCR 47 (B) 25 Mys HCR 380 (C) 27 Mys HCR 88 C.S. Venkataswamy Naidu, Public Prosecutor, Bangalore, for the State; B. Basavalingappa, for Respondent. Judgement The Chitaldrug Police placed a charge-sheet against the respondent before the Second Magistrate, Chitaldrug, under S.4(i)(a), Mysore Prohibition Act. When the case was pending, the prosecution applied to the Magistrate for amending the provision of the charge by the substitution of S.4(1)(c) of the same Act for S.4(i)(a). The Magistrate having refused the prayer, the prosecution approached the District Magistrate to - refer the matter under S.438, Criminal P.C., to the High Court. The District Magistrate declined to make a reference and rejected the petition on 12-3-52. As the records were called for by the District Magistrate, the trial Court went on adjourning the case to several dates of hearing intervening the disposal, and the order sheet of 13-3-1952 reads thus: "Accused absent, await orders 24-3-52." On 24-3-52, the Magistrate dismissed the case at 11-30 A.M. acquitting the accused under S.247, Criminal P.C., on the ground that the Prosecuting Inspector was pot present. The present appeal is filed under S.417, Criminal P.C., by the State of Mysore against that order.

2. The learned Public Prosecutor on behalf of the State urged that the discretion vested in the Magistrate under S.247 is used erroneously and in the circumstances of the case the acquittal was unwarranted. These contentions are not without force. Section 247 empowers the Magistrate to acquit the accused for non-appearance of the complainant unless for reasons he thinks proper to adjourn the case to some other date. The discretion vested will, however, amount to misuse if the circumstances indicate that the Magistrate has attempted to clutch at the jurisdiction for merely disposing of the case. The affidavit filed in this case by the Prosecuting Inspector discloses that the prosecution, was unaware of the receipt of the records from the District Magistrate, and moreover, that that usual time at which the Court was sitting being 11-30 A.M. he went into the Court at that hour and found that the case had been disposed of ex parte. In the present case, the enquiry had reached some stage before the records were called for by the District Magistrate and the date 24-3-52 was fixed, not for trial but for awaiting the orders of the District Magistrate. Obviously, the prosecution was not expected to be ready for trial or to do any other thing on that date. The records are said to have been received on 13-3-52, and ordinarily the Magistrate should have, on 24-3-52, directed the parties to be ready on a Anther date to which the case might have fceen posted. Instead, he has improperly clutched at the jurisdiction under S.247, Criminal P.C., and acquitted the accused. Further, the case was taken cognizance of by the Magistrate on the Police report and there was indeed no "complainant" as such in the case, and in that view, it is highly doubtful whether S.247, Criminal P.C., could at all be made applicable, vide 19 Mys CCR 47 (A). The case was disposed of at 11-30 A.M. It is not denied that the Court had other work for the day. It has been laid down by this Court that the application of S.247, Criminal P.C. to effect a hasty disposal at the early stage when the days work begins, amounts to misuse of discretion vested in the Magistrate. Vide 25 Mys HCR 380 (B) and 27 Mys HCR 88 (C). The High Court has powers to set aside the order of acquittal when such order is not passed on merits or when circumstances of the case indicate that the Magistrate has improperly exercised the jurisdiction vested in him to dispose of the case. The order of the acquittal by the learned Magistrate cannot therefore be sustained.

3. In the result, the appeal is allowed and the order of acquittal of the accused is set aside with a direction that the case C.C. 194 of 1951-52 may be taken on file and further proceedings conducted with a view to dispose of the case according to law. Appeal allowed. AIR 1953 MYSORE 147 (Vol. 40, C.N. 72) "M. V. C. Sastri, Dr. v. Radhalakshmi" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) Dr. M.V.C. Sastri, Defendant-Appellant v. Sm. Radhalakshmi, Plaintiff-Respondent. Appeal No.179 of 1950-51, D/- 28 -7 -1952. (A) Mysore Hindu Law Womens Rights Act (10 of 1933), S.1 - HINDU LAW - APPLICABILITY OF AN ACT - Applicability - Consent of non-domiciles. Parties to suit for maintenance staying in Mysore State during period of husbands employment cannot be said to have migrated or settled down there. Applicability or otherwise of Act to them does not depend on their inclination or option to be bound or not bound by it. AIR 1939 Mad 595, Rel. on; 51 Mys HCR 301, Referred to. (Para 3) (B) HINDU LAW - MAINTENANCE - Hindu Law - Maintenance - Wife - Arrears of, and future maintenance. Husband remarrying for no serious fault of wife - In fixing maintenance of discarded wife the expenses of protecting second wife and her children is no consideration on which amount can be reduced. AIR 1934 Mad 401, Rel. on. (Para 7) Delay in filing suit after date of marriage - Husband not alleging waiver or inconvenience or difficulty caused by delay - No need arises for Court to exercise discretion and reduce amount payable as arrears or limit period for which it is payable. AIR 1942 Bom 260, Referred to. (Para 7) Salary and prospects of husband becoming better after decree - Appellate Court can take the change into consideration and increase the rate at which lower Court decreed maintenance. (Para 8) (C) Civil P.C. (5 of 1908), S.9 and O.7, R.1 - CIVIL COURT - PLAINT - TORT - Wrong alleged not constituting one of recognised forms of action. Tort - Detinue or trover. Relief cannot be denied even if wrong complained of does not fall within any of the recognised forms of action. Suit by wife for return of articles - Plaint not alleging entrustment but stating that they "remained" with husband should not be rejected in limine - Trust should be implied from the relationship of parties and husband must be regarded bailee, as delivery is to be inferred from articles "remaining" with him - Action is one in detinue or trover. Case law Relied on. (Paras 12, 13, 14) Anno : Civil P.C., O.7, R.1, N.6; S.9 N.41. (D) TORT - Tort - Conversion - Notice of demand before suit. Notice of demand is not condition precedent to suits for recovery of movables - Demand and refusal do not in themselves constitute conversion but are only evidence - Conversion proved otherwise to have taken place long before suit - Absence of notice of demand cannot defeat claim. (1813) 4 Taunt 799, (1911) 2 KB 1031, Referred to. 35 Mad 636, Distinguished. (Para 15) (E) TORT - Tort - Detinue - Value of property. Suit by wife for articles presented during marriage and, on occasions, subsequently - Value set out by her, when not high and there is no contrary evidence, should be accepted - Principles of valuation in actions for detinue stated. (Paras 17-18) Cases Referred : Chronological Paras (A) 51 Mys HCR 301 (B) (39) AIR 1939 Mad 595 : 188 Ind Cas 826 (C) (34) AIR 1934 Mad 401 : 57 Mad 1003 (D) (42) AIR 1942 Bom 260 : ILR (1941) Bom 584 (E) (38) AIR 1938 Mad 32 : 175 Ind Cas 343 (F) (1911) 81 LJKB 49 : (1911) 2 KB 1031 (G) (46) AIR 1946 Mad 147 : 224 Ind Cas 523 (H) (1885) 52 LT 583 : 15 QBD 323

(I) (1813) 14 RR 668 : 4 Taunt 799 (J) (12) 12 Ind Cas 207 : 35 Mad 636

V.V. Srinivasa Iyengar and S.K. Venkataranga Iyengar, for Appellant; Mirle N. Lakshminaranappa and S.R. Ramanathan, for Respondent. Judgement VENKATA RAMAIYA, J. :- This is a regrettable case in which the dispute is between husband and wife, about the amount of maintenance and certain articles claimed by her. The parties are Hindus belonging to respectable families of the same community. They were married in 1938 at Salem where the plaintiffs father was practising as a Vakil. The plaintiff joined the defendant in 1940 after the consummation ceremony at Bangalore by which time her father had died and continued to be with him till the end of May 1944, except during intervals of absence on account of her confinement in her mothers place and occasional visits. Barring differences of the usual type between an individualistic daughter-in-law and an imperious mother-in-law in a Hindu home, the family consisting of plaintiff, her husband, a child and mother-in-law normally and the father-in-law too, off and on, seems to have got on well enough, on the whole, without any apparent discomfort or discord. The incident which broke up or led to the breaking up of the plaintiffs association with the defendant (at least for the time being) was, her leaving away the house alone at an early hour in the morning of 31-5-1944 to her sisters house in Bangalore and then proceeding with her to Salem, contrary to the defendants injunctions on the previous night, and failure to return home, though sent for. The subsequent conduct of the plaintiff in staying away for months and that of her relations in accusing the defendant and his parents of subjecting her to ill-treatment, intensified the indignation against her to such an extent as to make her own belated entreaties and piteous appeals and the earnest solicitations of her mother, other relations and well-wishers - all to be of no avail. Besides being relentless to the plaintiff, the defendant married another girl in June 1946 and this seems to have precipitated and widened the breach between the two.

2. The estrangement led at first to an application for a writ of Habeas Corpus being filed by the plaintiff in the High Court at Madras against the defendant and his father for custody of the child - the only offspring of the marriage, on the ground that it was about to be removed to Rangoan. On the assurance that there was no such possibility the application was dismissed on 5-8-1946. In January 1947, a notice was issued and another in the following month through a Vakil at Salem to the defendant demanding maintenance to the plaintiff and delivery of her jewels and articles. The notices were returned unserved and shortly after, the suit from which this appeal arises was filed for recovery of the same. The claim for maintenance was disputed in the beginning but later conceded, the determination of the amount being left to the Court, without offer of any particular sum. The plaintiff-claimed Rs.100/- per month from the date of the defendants second marriage and has obtained a decree for payment at Rs.75/- per month. Of the moveables claimed, only a few which were admitted to be plaintiffs are returned, the right to the rest being repudiated. The claim to some of the articles in dispute has been upheld and with respect to others disallowed or rejected. The defendant has, in the appeal preferred by him, objected to the award of any maintenance for the period prior to suit, to the award of Rs.40/- in excess of Rs.35/- he now agrees to pay for future maintenance and, to the direction for payment of any amount whatever to the plaintiff as value of articles. The plaintiff, on the other hand, seeks enhancement of the sum now awarded for maintenance to Rs.100/- and payment of the value of the disallowed items in the cross-objections filed by her.

3. The suit was filed in a Court at Bangalore as the defendant was living and employed then and for some time before, within its jurisdiction and as the movables claimed by the plaintiff were said to be with him. As regards maintenance, the claim was based in the plaint, on defendants alleged cruelty and re-marriage. At the trial no evidence about cruelty was adduced or allowed, as the defendants re-marriage alone was. considered to be sufficient wader the provisions of the Mysore Hindu Law Womens Rights Act (No.10 of 1933) to entitle the plaintiff to maintenance. In view of the statement at the end of the written statement that "the parties to the suit are not domiciled Mysoreans, they are governed1 by the existing British Indian Laws" and the statement of the defendant at page 183 of the printed record and of his father at page 98 "that defendant could not get a job here as he was a British subject domiciled in Burma", the applicability of the Act to the case raised a doubt, as it has been held in - 51 Mys HCR 301 (A), that the Act cannot apply to a person unless he is a subject of Mysore. Though the plea is not given up or found to be untrue, the learned Judge has relied upon the Act and made a decree in plaintiffs favour treating the defendants agreeableness to the maintenance being fixed as enough for the, purpose. The applicability of the Act does not depend on the inclination or option of a party to be bound or not bound by it; nor can it be applied because the parties want or wish it to be applied. As stated in - Venkataraman v. A.C. Janaki, AIR 1939 Mad 595 (B). "in every case where the question arises what is the law by which a person is governed, regard should be had to the law of the class or family to which he belonged............in effect, the personal law by which a person is governed can only be renounced or changed in one of the modes recognized by law. One such is a change of religion, the other is by migration from one province to another so far as India is concerned or by going and settling oneself in another country. Excepting by those modes it is not open to a person to renounce by a mere declaration the personal law to which he is subject." It would be too much to assume that the parties in this case whose parents are natives and owners of properties in Madras, who were married at Salem and lived in Rangoon far some time, migrated to Bangalore or settled down here merely because of their stay during the period of the defendants employment. That would mean that a person by shifting from one place to another can change the personal law to which he is subject and it may be Mitakshara system at one time and Dayabagha, Mayukha, or Mithila at other times. These considerations do not affect the claim, as, fortunately for the plaintiff Sri Venkataranga Iyengar, the learned counsel for the appellant, has fairly pointed out that Act 19 of 1946 (Hindu Married Womens Right to Separate Residence and Maintenance Act) which would be otherwise applicable to the case contains similar provisions as in the Mysore Act for maintenance being claimed on the husbands re-marriage and that the result would be the same if either Act is applied. 4-5. The right to maintenance being clear and admitted, what has to be considered is the quantum taking into account the status, means and resources of the parties. (His Lordship, after considering the facts and holding that the estimate of defendants monthly income at Rs.500/- in the plaint and the judgment did not seem too high, stated:)

6. The Plaintiff as the senior wife, being accustomed to a fairly high standard of comfort, before and after she joined the defendant, is entitled to get what is necessarv for an independent and decent living at least approximate to that of the second wife. The amount of maintenance has to include not merely the expenses of sustenance but also the cost of clothes, vessels and rent for her residence. The defendant says that for clothes of his second wife Rs.100/- to Rs.150/- per year are required, Rs.25/- for vessels necessary to a person living alone and Rs.175/- for monthly boarding expenses of 2 or 3 who live with him. He is said to have employed a servant to help his second wife.

7. The expenses necessary for protecting the (2nd wife and children by her, cannot in the circumstances of this case fee legitimately urged as a ground to lessen the amount payable to the plaintiff, as re-marriage was resorted to in spite of the plaintiffs apologies for her past faults, re-monstrances of her mother and in utter disregard of its consequences to the plaintiff and her daughter. The defendant knew or must he deemed to have known that re-marriage would entail a liability on him for plaintiffs maintenance if she did not choose to live with him and by shutting her out left her no choice. Even before the re-marriage, the father in a fetter of 12-3-1946 while negotiating a fresh match, wrote that "she (plaintiff) will never again be allowed to step into our (defendants) house" although he admits in his evidence that her character, behaviour and conduct are quite good. Defendant too does not impute any defect of character to the plaintiff. If re-marriage with its possibilities of enlarging the family, irrespective of its propriety, is to limit the amount of maintenance due to the first wife, it will have to fee reduced lower and lower as the husband chooses to take wife after wife, which is tantamount to penalising the wife for the husbands acts and allowing him to take advantage of the wrong done to her. As observed in - Sobhanadramma v. Varaha Lakshmi Narasimhaswami, AIR 1934 Mad 401 (C), in a case similar to this at page 404 "The position of a young Brahmin wife reduced by no fault of hers (which in this case may be qualified by the word serious) to the condition of a widow in her husbands life-time needs no elaboration and it must not be made profitable for husbands deserting their wives and marrying again so to say, in revenge in order to spite their former wives to do so." It was also observed in that case that unless the defendant discharges the burden of proving waiver, abandonment or of such conduct of the plaintiff as to lead to estoppel he cannot escape liability for arrears of maintenance. Considering the defendants means from all sources, we think that the amount awarded by the tower Court cannot be said to be excessive. The arrears of maintenance relate to a short period of 10 months from the date of re-marriage when the right accrued, and there is no justification to disallow or reduce it, since there is no allegation of waiver or defendant being put to difficulty or disadvantage on account of the short delay in filing the suit which was preceded by two notices. - Dattatraya Maruti v. Laxman Jattappa, AIR 1942 Bom 260 (D), cited for the appellant, only states that in regard to granting arrears the Court has a discretion to reduce the amount and limit the period for which it has to be allowed. We do not think that there is need for either in this case.

8. It has been brought to our notice that subsequent to the decree of the lower Court the salary and prospects of the defendant have materially improved, as a result of his being appointed at Kharagpur near Calcutta on a salary of Rs.500/- per month which within a few years will rise to Rs.850/-. Though ordinarily the circumstances at the time of the suit govern the decision in the case, there is no hindrance to this being taken now into account, since the decision as regards the amount payable, is liable to be altered by change of circumstances of the parties. On the whole we feel that it would be just to direct payment at Rs.100/- per month for the maintenance of the plaintiff leaving the direction for payment of the arrears at Rs.75/- per month undisturbed.

9. The main contest in the case relates to the moveables in regard to which the allegations in the plaint are, that those were given to the plaintiff by her parents, that those are with the defendant and he has refused to deliver them to the plaintiff notwithstanding demands. The pleas put forward are varied: Denial of the existence of some, want of knowledge about the plaintiff having ever possessed some others, claim to a few as defendants own, with story of loss of some in Rangoon while returning to India, a theory of exchange concerning one or two and generally that the defendant was not in possession or custody of any of the articles and that he was not entrusted with the same. Only the questions of ownership, possession, exchange and value of the articles were raised in issue so far as the moveables are concerned and a volume of evidence was let in about these. At the stage of arguments the question of "entrustment" seems to have been urged; but the learned Judge has expressed in the judgment that it does not arise between parties who are husband and wife and no entrustment need be proved when the husband could have access to the property kept by the wife.

10. On behalf of the appellant it was strenuously argued by Sri V.V. Srinivasa Iyengar at the commencement and Sri. S.K. Venkataranga Iyengar in the course of the hearing that this view of the learned Judge is wrong, that the only material word in the plaint to impute liability to the defendant was "remained" and this was insufficient to make out a case of bailment, detinue, trover or replevin, which are recognised forms of action. It was argued that the allegations in the plaint ex facie do not disclose a cause of action and that as such, the claim had to be rejected in limine. Want of proof of demand and refusal prior to the suit was mentioned as another reason for the claim being untenable. - Kaliaperumal Pillai v. Visalakshmi Achi, AIR 1938 Mad 32 (E), was cited to show that in the absence of entrustment and delivery of the articles to the defendant the claim has to fail. - Clayton v. Le Roy, (1911) 2 KB 1031 (F), was relied upon for the contention about the necessity of demand and refusal.

11. As the objections are said to be such as would go to the rest of the case affecting its maintainability, irrespective of the merits, it is necessary to examine these before discussing the evidence. In spite of such alleged importance, that, these should not have been pressed seriously or at all at the very outset or at least included in the issues is surprising. The proceedings indicate that the claim as presented was deemed to be a fit one to be enquired into and for the defendant to meet it. The criticism now advanced though in this view technical and belated, may he considered.

12. As already mentioned, there are allegations in para.10 of the plaint to the effect that the goods belonged to the plaintiff having been given to her by her parents, that these remained with the defendant and that he has refused to deliver them after demand. The meaning of the word "remained" given in the dictionary is "be left behind - continue to exist etc." Adopting either of these, what is alleged is that the plaintiffs articles were and are with the defendant. If articles belonging to one person are with another, the latter is prima facie bound to hand them over to the owner when asked to do so. The Court has to look more to the substance than the form of the action and whatever be the name given to it the rule that there is a remedy for a wrong must apply. Belief cannot be denied to the plaintiff even though the wrong complained of does not strictly fall under any of the four categories stated by learned counsel as "it is perhaps impossible, to frame a definition which shall cover every conceivable case." (See - p.426 Clerk and Lindsells Law of Torts 10th Edition,) In Punnalal v. Kasturichand Ramaii, AIR 1946 Mad 147 (G), Chandrasekhara Iyer, J., observed "There is however nothing like an exhaustive classification of torts beyond which Courts should not proceed. New invasion of rights devised by the brain of man might give rise to new classes of torts." The present case affords an illustration of this as there are few instances at any rate none is brought to our notice, where a wifes claim to saries, soap box, bangles etc., is resisted by the husband on a plea of lack of "entrustment".

13. - AIR 1938 Mad 32 (E), referred to is distinguishable as the facts in that case were that certain jewels were given by a woman to goldsmiths working in defendants house for making ornaments and the half prepared ornaments were being taken at the end of each day by the woman, put in a box, looked and kept by her in a room of the defendants house. It was held that there was no bailment as the key was retained by the owner of the jewels and the keeping of the box in the defendants house was not sufficient to constitute delivery under S.149. Contract Act, so as to render the defendant liable for the loss of the box on account of theft. There is no admission or finding that the key was with the plaintiff in this case. Nor is it suggested that there was any theft or interference by any third person. Further, the decision in that case seems to have turned on the application of the provisions of the contract act and" the question of liability on the ground of tort is not dealt with. As pointed out by Pollock and Mulla in the Commentary of S.148 "Bailment is necessarily dealt with by the Contract Act only so far as it is a kind of contract. It is not to be assumed that without an enforceable contract there cannot in any case be a bailment." In - Reg v. Mc Donald, (1885) 15 QBD 323 at p. 326 (H), Lord Coleridge C.J. expressed. "It is perfectly true that in almost all cases, a contract either express or implied by law - accompanies a bailment but it seems to me that there may be a complete bailment without the contract." At page 163, Pollock and Wright in their book Possession in the Common Law state: "Upon the whole it is conceived that in general any person is to be considered as a bailee who, otherwise than as a servant either receives possession of a thing from another or consents to receive or hold possession of a thing for another upon an undertaking with the other person either to keep and return or deliver to him the specific thing or to (convey and) apply the specific tiling according to the directions antecedent or future of the other person." If as stated by Lord Coleridge, bailment is "Delivery on trust or condition", defendant has to be regarded as bailee as delivery is to be inferred from the articles "remaining" with the defendant and "trust" implied from the very relationship of the parties as husband and wife. The obligation to return the articles is a condition necessarily arising from this and default in doing so, will afford cause of action for the suit.

14. As regards form of action, different names are given according to the modes in which a person is deprived of his property. If it is wrongfully taken away, it is called trespass, if it is wrongfully detained it is "detinue"; if it is wrongfully converted, it is "trover". In any case, the essence of the matter is that" the person entitled to the chattel is deprived of the use and possession of it by the acts or interference of another without jurisdiction. Sri Lakshminaranappa, learned counsel for the respondent, said that this is a case of trespass but I do not think so as the goods were left with the defendant with consent of plaintiff and the wrong, if at all, can only consist in withholding the articles so as to justify an action in detinue or trover (see possession in Common Law by Pollock and Wright at page 132). In Halsburys Laws of England, Volume 33 page 86 it is stated "Detinue is the form of action which lies when one person wrongfully detains the goods of another. The gist of the action is unlawful failure to deliver when demanded. Trover lies when one person is guilty of the conversion at the goods of another by wrongfully appropriating them to his own use or to the use of another or wrongfully depriving the owner of the use or possession of them permanently." Replevin is described as a summary process which a man out of whose possession goods have been taken may obtain their return until the right to the goods can be determined by a court of Law. (Clerk and Lindsell, Law of Torts, p.436). This may be left out of account as it is admitted that the case does not fall under it so that it is either one for detinue or trover. It is stated by Clerk and Lindsell at page 435 "Detinue considered as a tort does not substantially differ from conversion" and at page 415 "Any one who without authority takes possession of another mans goods with the intention of asserting some right or dominion over them is prima facie guilty of a conversion."

15. It was argued that if the suit is treated as one for relief on the ground of conversion the action is premature, as there was no demand and refusal prior to it, in other words, that there can be no conversion without demand and refusal. Besides the passage in Halsbury, - (1911) 2 KB 1031 (F), was relied upon to support this. The plaint at any rate cannot be said to be defective on this ground as there is an allegation of demand and non-delivery. The objection can be of force therefore if this allegation is not proved and if in law the want of it is a bar to the action. That a notice Exhibit C addressed to the defendant making the demand on behalf of the plaintiff was despatched admits of no doubt. It was-returned undelivered though the name of the addressee, the City and office in which he was working were all correct, on account of alleged absence of defendant. When questioned as to how the requirement of demand is to be satisfied if the addressee does not receive the letter at shuts his ears to demands, Sri Venkataranga Iyengar said that the demand should be repeated. This would be an idle formality. Other reasons to hold it so are: in the first place there is no statutory provision that a notice should be served as in suits for ejectment, against Government Railways etc., on the defendant before he can be sued for recovery of moveables and secondly demand and refusal do not in themselves constitute conversion. They are evidence of conversion at previous period as stated in Addison on Tort at page 587. Conversion is "commonly" proved by demand and refusal, as Underhill puts it in his book on Torts tout may be proved otherwise. If it is clear that there was conversion before any demand was or could be made and the demand is futile as for example when the articles appear to be sweet or edible stuff consumed by the defendant or goods destroyed to the knowledge of the plaintiff the demand will be a needless formality. Necessity or justification for a demand would arise if there is a possibility of its being useful to obtain delivery to signify the plaintiffs wishes, to satisfy the defendant about plaintiffs title and facilitate the fulfilment of the obligation. There is abundant proof, in this case, to show conversion long before the suit and the pleas set up and the evidence let in by the defendant bear it out. - Lovell v. Martin, (1813) 4 Taunt 799 (I), was a case of conversion in which it was held that thee plaintiff may recover in trover without a previous demand of the bill. In the very case - (1911) 2 KB 1031 (F), referred to by the Appellants counsel, there are observations sufficient to support this view though it was ultimately held that plaintiff has no cause of action in detinue or in trover on the particular facts of that case. At page 1045 of the report Scrutton, J., deals with the question in the following words : "There remains the technical point taken by Mr. Atkin that as the demand and refusal were after the issue of the writ the action failed. This point has no merits at all. If..........the defendant had said "I hear of your claim for the first time; I cannot deliver up goods entrusted to me by another without investigation; give me a reasonable time to investigate; I have new had it and I am ready to give you the watch, I could Save understood the point. But after investigation he now says "I refused and I was right; it is not your watch". The only result, therefore, of determining this point in the defendants favour would be another writ and more costs. But though the point is technical and has no merits, it must be decided according to law; and according to law I am glad to be able to decide it against the defendant." In appeal, Vaughan-Williams, L.J., agreed with this conclusion. Fletcher-Moulton, L.J., expressed at page 1051 thus : "If there be any evidence of a conversion before writ, it is possible that there may be acts and admission afterwards which it would be proper to take into consideration when determining whether there had been in fact a conversion." and Farewell LJ states at page 1052: "..........There may be cases in which subsequent letters may throw light on the antecedent intention but that is not so here." Attention was drawn to provisions in the limitation act under which time begins to run from the date of demand for recovery of goods and to - Gopalasami Iyer v. Snbramania Sastri, 35 Mad 636 (J). These are not of use or relevancy as the point raised is not one of Imitation but of the existence and enforceability of the right. The technical objections to the suit therefore fail.

16. It has to be next seen whether the findings of the learned Judge by which the defendants pleas were negatived are incorrect as contended for the appellant and whether claim for all the items in dispute should have been allowed as urged for the respondent. The moveables claimed are specified in four schedules appended to the plaint of which schedule I is a list of 10 ornaments of gold and precious stones, schedule 2 of 39 silver articles, schedule 3, of 12 saries and schedule four of 4 miscellaneous things. The almirah No.4 of the fourth schedule, four saries which are Nos.1, 4, 8 and 11 of the 3rd schedule and Nos.12, 24, 25 and 26 of the second schedule were admitted; by the defendant to be plaintiffs and Nos.6, 22, 3S and 39 of the second schedule were given up in lower Court and Nos.37 and 38 subsequently, by the plaintiff. In the course of the suit these saries and the admitted articles of the second schedule besides item 1 of the 4th schedule were received by the plaintiff. There is a sari and a silver article disclaimed by both the plaintiff and the defendant. Some of the articles not in contest have been wrongly included in the decree among those to be delivered to the plaintiff. Learned counsel represent that the liability in regard to items 1, 2 and 10 of the first schedule and for all the items of the second schedule except Nos.6, 12, 22, 24, 25, 36 to 39 both inclusive is questioned by the defendant in the appeal and in the cross-objections filed by the plaintiff items 3 to 9 of the first schedule, 7 saries of the third schedule and Nos.2 and 3 of the 4th schedule (veena and violin) are claimed by her. 17-18. The claim to the saries and two-musical instruments may be first disposed of, as. there is not much about these to be considered. (His Lordship after holding on the evidence that the number of saries of the value claimed and" the musical instruments remained with the husband when the wife left formers house, constinued). Stay of the daughter at present with the father cannot be a ground to refuse delivery of the instruments to the plaintiff who is the owner, particularly in view of the fact that there is no plea on behalf of or for the benefit of the daughter. The value given by the plaintiff cannot be said to be high and in the absence of evidence to the contrary, should be accented. The principle governing valuation of these and other articles, which the defendant has to deliver in the case, is, as stated in Addisons Law of Torts at page 602: "The value of the thing detained should be assessed at the highest price it bore in the market at any time during the period of its detention and where the value is doubtful and the defendant might have returned it if he thought fit every fair presumption and inference should be made in favour of the owner of the property seeking its restitution and against the wrong doer who has detained it from him." The plaintiff is, therefore, entitled to the amount claimed as the value of the two articles. 19-22. (His Lordship then examined the evidence relating to the items in first schedule and held that all these items belonged to the plaintiff and there was no reason to disallow the claim to any of the items. Then after examining the evidence relating to the second schedule and the value of those items and holding that the decree of the lower Court did not require interference his Lordship proceeded:)

23. In the result, the appeal is dismissed. The Cross-objections are allowed. In modification of the decree of the lower Court, there will be a decree in favour of the plaintiff for payment of Rs.750/- towards maintenance, Rs.100/- per month for future maintenance and for delivery of all the articles in the four schedules. The defendant will pay the plaintiff her costs and bear his own throughout. Appeal dismissed; Cross-objections allowed. AIR 1953 MYSORE 152 (Vol. 40, C.N. 73) "Venkatappa v. Hanumanthappa" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) Venkatappa and others, Defendants-Appellants v. Hanumanthappa, Plaintiff-Respondent. Second Appeal No.360 of 1949-56, D/- 9 -9 -1952. Civil P.C. (5 of 1908), S.11 - RES JUDICATA - Suit by or against manager of Hindu family. Where in a suit against the father as manager of a joint Hindu family a decree is passed against him without fraud or collusion, the decree would be binding on the other members of the family and would operate as res judicata so as to preclude the sons from raising the same pleas over again in a subsequent suit against them. AIR 1927 PC 56, Applied. (Paras 2, 3) Anno : Civil P.C., S.11 N.61. Cases Referred : Chronological Paras (A) 39 Mys HCR 875 (B) (27) AIR 1927 PC 56 : 51 Bom 450 (PC) Komanur Shamanna, for Appellants; V. Krishnamurthy, for Respondent. Judgement The facts relevant to the consideration of the dispute in this appeal are briefly these: The schedule lands in the Khayamgutta Madihala village, Kolar belonged to the vritti of one Lakshmana Sastry, who had mortgaged it to one Kempanna. Lakshmana Sastry filed a suit for redemption against Kempanna in O.S. No.246 of 1917-18 and obtained a decree. The plaintiff, the assignee of the decree sued out execution and obtained symbolical possession of the property as one Ramiah (defendant 1) in the present suit set up kadim or permanent tenancy rights in the land under Lakshmana Sastry. The plaintiff then filed a suit, O.S. No.505/33-34 for declaration that Ramiah is a common tenant and for share of the produce, by way of mesne profits. The Court granted a decree negativing the right of permanent tenancy pleaded by Ramiah. Three subsequent suits (O.S. No.335/40-41, O.S.471/41-42 and O.S. No.212/45-46) filed by the plaintiff against Ramiah for the recovery of the share of produce were decreed. The present suit was filed originally against Ramiah for ejectment and on his plea that the suit lands were in the possession of his sons, they were brought on record as defendants 2 to 6. Prior to the present suit Ramiah (defendant 1) had filed a suit of his own against the plaintiff in O.S.280/45-46 for cancellation of the decree in O.S.505/33-34 on the ground that the decree in the former suit was obtained by fraud; the said suit was dismissed, later Venkatappa, his son (defendant 2) has filed another suit against the plaintiff for establishing his rights to a share in the property on the ground that his family possessed rights of permanent tenancy, sad that, suit was also dismissed. On a consideration of all the previous proceedings and the evidence adduced, the trial Court decreed the suit for possession against all the defendants. On appeal, the learned Subordinate Judge modified the decision by setting aside the decree against defendants 2 to 6 as they were said to be not the tenants of the plaintiff. The defendants 2 to 6 have preferred this second appeal; and the plaintiff has also filed cross-objections.

2. The decision under this appeal is in favour of the appellants; they are aggrieved for the finding of the Courts that proceedings in O.5. 595/33-34 are binding and operate as res judicate to their defence. Mr. Shamanna, on their behalf contested that as they were not parties to the earlier preceedings, those decisions should not be held to be binding on them and that the appellants should have perfect liberty to advance their independent right in obstructing possession of the property in the suit filed by defendant 2. In this suit defendants 2 to 6 have asserted a similar right as put forward by defendant 1 in the previous proceedings that they hold the rights of permanent tenancy from the time of their ancestors. They have not shown any independent right. Defendant 1 has been finally declared to be a common tenant without any right of permanent tenancy and the similar right put forward by defendant 2 has also been negatived; the other minor members of the joint family have now raised the same plea. Each member of the joint family cannot be allowed to agitate the same point over again and keep the rightful owner indefinitely out of possession on highly technical pleas which if allowed would surely carry the law to absurdity. It is a well established principle of law that a decree obtained without collusion or fraud against a person representing the estate must be binding on his heirs and a manager of the joint family effectively represents the interest of other family members and the decree obtained against him binds the entire family members.

3. In the present suit, it has been concluded by the decision in O.S. No.280 of 45-46 that the decree for possession passed to O.S. No.505 of 33-34 was not obtained by fraud. There is no reason to doubt that defendant 1 the father W. defendants 2 to 6 was the manager of the joint family at the time when the decision in O.S. No.585/33-34 was passed. The Courts below are right in holding that the principles laid down in - 39 Mys HCR 875 (A) and - Lingangowda Dod-Basangowda v. Basangowda-Bistangowda. AIR 1927 PC 56 (B) applied to the circumstances of the present case. The possession claimed by the appellants has no independent existence and is only attributable to the possession of defendant 1 and as members of the family of defendant 1 they derive the claim through and from lam. The appellants are therefore bound by the decree against defendant 1 in O.S. No.505 of 33-34 and cannot resist possession of the property. The other point urged about the sufficiency of notice needs no serious consideration as defendant 1 is found to have denied the titte of the plaintiff in a previous case (O.S. No.212 of 45-46). In any view of the case, the defendants must fail. This appeal is dismissed: the decision of the learned Subordinate Judge is set aside and the cross-objection allowed restoring the judgment and decree of the trial Judge, parties to bear their own costs in this Court. Appeal dismissed AIR 1953 MYSORE 153 (Vol. 40, C.N. 74) "Naranappa v. P. D. Khurana" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND BALAKRISHNAIYA, J. ( Division Bench ) Madam Naranappa, (Judgment-debtor) Appellant v. P.D. Khurana, (Decree-holder) Respondent. Appeal No.38 of 1949-50, D/- 29 -8 -1952. (A) Civil P.C. (5 of 1908), O.23, R.3 and S.38 - COMPROMISE - DECREE - EXECUTION - Execution of consent decree. Terms of compromise annexed to decree as Schedule-decree is executable as if terms are incorporated into the decree. AIR 1929 Lah 527, Foll. (Para 4) Executing court cannot refuse to execute decree on ground that it is not properly drawn up. AIR 1944 Oudh 111, Foll. (Para 4) Anno : Civil P.C., O.23, R.3, N.27; S.38, N.8. (B) Civil P.C. (5 of 1908), S.47 - EXECUTION - "Party to the suit" - Objection to execution in different capacity. Person impleaded in suit as legal representative of deceased defendant and decree passed against him - He cannot, under S.47, raise pleas open to him in his personal capacity against execution. Case law relied on. (Para 8) Anno : Civ. P.C., S.47, N.7. (C) Civil P.C. (5 of 1908), O.23, R.3 and S.47 and S.11 - COMPROMISE - DECREE - RES JUDICATA - ESTOPPEL - Execution of consent decree. Evidence Act (1 of 1872), S.115. Suit against A for recovery of money - His interest in joint family properties attached before judgment - As death before disposal of suit and B, his father, impleaded as his legal representative - Bs voluntary compromise with plaintiff agreeing to take personal liability and continuation of attachment until payment of smaller sum which latter had agreed to take - Decree passed in terms of compromise is legal and enforceable - B not objecting to term relating to personal liability or continuation of attachment, on the ground that attachment cannot continue so as to affect his right of survivorship, at the time compromise was recorded - No appeal also filed against order - B must be deemed to have waived objections and would be estopped from pleading in execution that the decree should be construed as one not seating personal liability against him or that the properties which have come to him by survivorship could not be attached and sold. Case law referred to. (Paras 6, 7, 8, 9) Anno : Civ. P.C., O.23. R.3, N.27; S.47, N.46; Evi. Act, S.115, N.17. (D) Civil P.C. (5 of 1908), S.38 - EXECUTION - DECREE - Powers of executing Court to go behind decree. Executing Court cannot permit objections about validity of decree except on the ground of its being nullity for want of jurisdiction of Court which passed it. Consent decree - Court cannot enquire whether agreement on which decree was passed was binding on parties. AIR 1951 SC 189 and Case law relied on. (Para 10) Anno : Civ. P.C., S.38, N.8. Cases Referred : Chronological Paras (A) (29) AIR 1929 Lah 527 : 118 Ind Cas 395 (B) (44) AIR 1944 Oudh 111 : 217 Ind Cas 208 (C) (33) AIR 1933 Bom 298 : 145 Ind Cas 582 (D) (32) AIR 1932 Mad 557 : 138 Ind Cas 786 (E) (94) 17 Mad 144 (F) (26) AIR 1926 Mad 72 : 49 Mad LJ 616 (G) (43) AIR 1943 Mad 149 : ILR (1943) Mad 397 (H) (47) AIR 1947 All 143 : ILR (1946) All 843

(I) (35) AIR 1935 PC 79 : 13 Rang 256 (PC) (J) (40) AIR 1940 Pat 406 : 189 Ind Cas 739 (K) (21) 2 Pat LT 396 : 65 Ind Cas 224

(L) (25) AIR 1925 Oudh 113 : 80 Ind Cas 608 (M) (47) AIR 1947 Bom 307 : 49 Bom LR 174 (N) (35) AIR 1935 Mad 52 : 154 Ind Cas 659 (O) (40) AIR 1940 All 99 : ILR (1940) All 153 (FB) (P) (48) 55 Mys HCR 1 (Q) (37) AIR 1937 Sind 177 : 171 Ind Cas 127 (R) (33) AIR 1933 All 649 : 55 All 775 (FB) (S) (32) AIR 1932 Pat 184 : 136 Ind Cas 447 (T) (37) AIR 1937 Pat 618 : 172 Ind Cas 125 (U) (43) AIR 1943 Nag 325 : ILR (1943) Nag 757

(V) (37) 15 Mys LJ 435 (W) (36) 14 Mys LJ 226

(X) (51) AIR 1951 SC 189 : 1951 SCR 292 (SC) K.P. Maddarma, for Appellant; H.V. Narayana Rao, for Respondent. Judgement BALAKRISHNAIYA, J. :- This appeal arises out of the execution proceedings in Ex. 274/47-48 before the District Judge, Bangalore. The facts of the case (as gathered from the pleadings and the arguments) are as under : The respondent filed a suit for the recovery of about Rs.25,000/- against the son since deceased of the present judgment debtor and attached before judgment the interest of the original defendant in the joint family properties. The original defendant having died during the pendency of the suit, the present judgment debtor was impleaded as legal representative under O.22, Civil P.C. The latter, after contesting the suit, finally entered into terms with the plaintiff, and the then parties to the suit filed a rajinama that the present defendant should pay to the plaintiff Rs.15,000/- in two instalments and that the attachment originally effected on the interest of the deceased defendant should continue till payment. The Court accordingly passed a decree incorporating the terms which were appended am an annexure to the decree. The terms of the compromise are as follows : 1(a) "Defendant will pay to the plaintiff Rs.6000/- with interest at 9 per cent, per annum from 11-4-1946 upto this date (17-2-48) and interest at six per cent per annum from this date onward till date of realization. (b) Defendant will also pay to the plaintiff Rupees 9000-0-0 with interest at 9 per cent per annum from 13-5-1946 upto this date (17-2-48) and interest at six per cent per annum from this date onward till date of realization.

2. Defendant will also pay the entire costs (including court-fee. Pleader fee, cost for attachment, witness batta, etc. publication in news papers) incurred by the plaintiff in the suit with interest, thereon at six per cent per annum from the date of suit till the date of realization.

3. Two months are allowed for payment by the defendant from this date; attachment will continue till payment.

4. Defendant will bear his own costs." The present judgment-debtor having defaulted to pay the decretal amount in accordance with the terms of the consent decree, the execution proceedings under consideration were instituted for file recovery of the decree amount from the share of the properties attached and continued by consent under the decree.

2. The judgment-debtor objected to the execution of the decree on the ground that it is un-executable as the compromise petition does not form part of the decree, that the attachment is Invalid, that the compromise decree is illegal as the deceased defendant died leaving no properties and that the properties in attachment are the self-acquisitions of the judgment-debtor. The decree-holder in reply stated that the decree is self-contained, valid and legal, that the Judgment-debtor not having raised any objection to the attachment, and the attachment being continued by consent in the decree against the judgment-debtor, the decree is enforceable. He further stated that the decree passed by consent is a personal decree against the judgment-debtor and not against the assets of the deceased and that no question, therefore, of ascertaining the assets will arise, as the judgment-debtor consented to the decree against himself and for the continuance of the attachment effected earlier. The learned District Judge overruled the objections of the judgment-debtor on the ground that the executing Court cannot question the validity, legality or correctness of the decree and that the Court has to execute the decree as it stands, and that since the judgment-debtor had consented to the decree, he is estopped from denying his liability. Hence the appeal by the judgment-debtor.

3. The first objection that "the execution petition is not in keeping with the provisions of O.21, R.11, Civil P.C. and that the attachment effected in the case is invalid as there was no beat of tom-tom" was neither pressed nor do we find any substance in that contention.

4. The second objection relates to the executability of the decree; it is contended that the decree is not self-contained as the terms of the compromise are not incorporated therein and that the compromise petition does not form part of tie decree. The learned counsel for the appellant was unable to sustain this contention. In - Malik Chand v. Jiwan Mal, AIR 1929 Lah 527 (A), a question was raised that as the decree did not contain the terms of the compromise verbatim, it was not executable; it was held therein that as the decree was passed in terms of the compromise, a copy of which was attached as schedule to the decree, the compromise should be held to have been incorporated in the decree. Bennet, J., while considering whether the Court could refuse execution of a decree on the ground that it was not properly drawn up observed in - Bansidhar v. Mt. Sitala, AIR 1944 Oudh 111, at p.113 (B), that file executing Court cannot refuse to execute a decree and hold it as invalid on the ground that it is not properly drawn up. A decree drawn up with the terms of the compromise annexed to it, as schedule is executable as if the terms of compromise are incorporated into the decree. Hence the contention that the decree is inexecutable fails sad cannot be upheld.

5. It was next argued by the learned counsel far the appellant that the compromise decree is illegal as there was no mention made therein that She deceased died possessed of any property, and that the compromise decree should necessarily be against the assets and not against the legal representative and in that view is inexecutable against the appellant. These objections are untenable as it will be presently seen. The decree need not be made after enquiry about the existence of assets or otherwise and the decree if passed against the deceased, the amount will be recoverable from the assets of the deceased admits of no doubt. That question too does not arise in this case. Upon the reading of the decree, it is found that the decree passed is by consent personally against the legal representative who is the only judgment-debtor and consequently it is executable against the judgment-debtor personally and the properties possessed by him, will be-come liable. Where however no objection is raised when a compromise is presented for being recorded and no appeal is filed from the recording of the compromise or the decree passed in pursuance thereof, the legality of the compromise decree cannot be questioned at the time of the execution as observed by Rangnekar, J., in - Manekchand Ramchand v. Ganeshlal Goverdhan, AIR 1933 Bom 298 (G).

6. Before considering the next objection, it must be stated here, that the contention that the property attached is the self-acquisition of the legal representative is abandoned. The only argument seriously canvassed before us is that the attached property which formed the share of the deceased defendant passed, on his death, by survivorship to the legal representative and nothing remained at the time of the decree for the recovery of the decretal amount. The decree under execution is one passed by consent of the parties, and it is not attached on the ground of fraud or want of jurisdiction of the Court that passed the same. The compromise is essentially a contract, which was adopted by the Court and solemnised into a judicial adjudication. The parties having settled the disputes amongst themselves and entered into terms embodied in the compromise, the Court has only put its imprimatur upon those terms and made the terms a rule of the Court. Assuming that the parties did by mistake or ignorance of law give by their own judgment, a finality to their dispute, which ended in a decree, it is not open to either party to rescind from the same. The judgment not having been appealed from became final and the parties are estopped from disputing its correctness, or executability. "The terms of the compromise, even-though they are beyond the scope of the suit, if embodied in a decree are executable. The executing Court cannot question the decree" Vide - Govinda Nattar v. Murugesa Mudaliar, AIR 1932 Mad 557 (D).

7. It is an established proposition of law that if the undivided interest in specific property of a coparcener is attached during his lifetime, for his personal debt, it can be sold after his death for the recovery of the debt but the Madras view is, that an attachment before judgment of the interest of an undivided member in the family property effected during the lifetime, will not enure to the benefit of the creditor, if the defendant dies before the decree is passed. It is the decree that makes it effectual for the purpose of execution according to that view and if the defendant dies before the decree, the attachment before judgment which is intended to protect the property from alienation by the defendant, will not affect the right of survivorship of the coparcener. Vide - Ramanayya v. Rangapayya, 17 Mad 144 (E), - Sankaralinga Mudaliar v. Official Receiver of Tinnevelly, AIR 1926 Mad 72 (P) and - Kalianna Goundan v. Masayappa Goundan, AIR 1943 Mad 149 (G). These cases, however, are distinguishable from the circumstances of the present case as the legal representative by consent has created a lien to the extent of the original attachment on the family property; and the right of survivorship being a personal right, it was open to the judgment-debtor to have asserted it; and if the Court had overruled his objection, he would then have had a cause for complaint. The attachment before judgment quo-attachment will continue and might, ordinarily not have prevailed against the right of survivorship, but the question of attachment was, in fact, taken into consideration by the parties and agreed to between themselves and the Court in accordance therewith set its seal by accepting the terms of the compromise that "the attachment shall continue till payment". The parties having definitely fixed their rights and liabilities under the agreement, they are clearly estopped from contending that the decree passed thereon is not binding or not enforceable. This view is supported by a decision of the Allahabad High Court in - Nizam Uddin v. Ikramul Haq. AIR 1947 All 143 (H), which lays down that if the Court has passed an order, which is for the benefit of the decree-holder and to the detriment of the judgment-debtor and which the Court would not have passed, if a certain point had been raised by the judgment-debtor, the hearing of such a point would be barred by the principles of res judicata. It is also possible that the right of an individual can be construed to have been waived. "Waiver is contractual and may constitute a cause of action : It is an agreement to release or not to assert a right" as laid down in - Dawsons Bank, Ltd. v. Nippon Menkwakabushihi Kaish, AIR 1935 PC 79 (I). If the judgment-debtor waives his right and takes the liability by consenting to a personal decree against himself enforceable in case of default against the estate in which he had gained interest, in consideration of a decree for a smaller sum than what was claimed in the suit, it is not open to him to assert his right which he has given up, even though subsequently, it is found that he had done so in contravention of his rights vide - Central Co-operative Bank Ltd., Barh v. Dasrath Pandey, AIR 1940 Pat 406 (J).

8. It is further contended by the appellant that the decree having been passed against the legal representative for a personal debt due by the original deceased defendant, the execution against the separate property of the legal representative could not be allowed to proceed. In support of that contention, reliannce is placed on - Bhujawan Prasad Singh v. Ram Narayan, 65 Ind Cas 224 (Pat) (K) which is followed in - Jung Bahadur v. Gur Prasad, AIR 1925 Oudh 113 (L). In the former case, the Patna High Court held that when the legal representative is sued and a decree is passed by the Court, the legal representative is evidently liable to the extent of the deceaseds assets in his hands. In the latter case, it was laid down thus "Decree passed against a legal representative is not a personal decree and consequently only the property of the deceased in the hands of the legal representative and not his separate property is to be proceeded against in execution." In the present case, the Court has not forced the decree on the parties, but has adjudicated upon the compromise filed by them. In a voluntary compromise the party is not precluded from agreeing to take a personal liability in consideration for a small sum and allow a charge to be created on his property. Even if the grievance is that the terms are beyond the scope of the suit, it will still be perfectly legal and enforceable vide - AIR 1932 Mad 557 (D). Assuming that the decree is act passed personally against the legal representative but only against the family assets, it is held that "it is not open to the legal representative of the deceased defendant impleaded under O.22, R.4 to assert his own individual or hostile title to the suit........If a legal representative wants to raise any point which the deceased party could not have raised, he must get himself impleaded in his personal capacity or challenge the decree in a separate suit" as observed by Lokur J. in - Dareppa v. Mailappa, AIR 1947 Bom 307 (M) following - Thavazhi Karnavan v. Sankunni, AIR 1935 Mad 52 (N) and - Ram Ugrah Ojha v. Ganesh Singh, AIR 1940 All 99 (O). Somewhat of a feeble attempt was made to maintain that the appellant has raised the objection in his individual capacity and not as legal representative in which capacity he was a party to the suit. There is no reference to show that that position was ever raised or asserted by the appellant in the Court below. If that is so, he cannot successfully oppose the application under S.47, Civil P.C., or maintain this appeal. It is undoubted that the appellant was impleaded in one capacity in the suit; he cannot raise an objection in another capacity on the execution side. This proposition is fairly settled by this Court in - Sooriah Setty v. Bhagyalakshmamma, 55 Mys HCR 1 (P) which lays down thus: "In order to determine that a person is a party to the suit within the meaning of S.47, Civil P.C. the capacity in which he or she was impleaded and in which the claim or right was put forward must be the same. Where the impleading of a party in a suit was in one capacity and the suit against that person was dismissed and objections are raised by him or her in execution in another capacity, they are not matters falling under S.47 of the Code and should be decided in a regular suit as that person cannot be deemed to be a party to the suit within the meaning of the section and no appeal lies against the order in execution."

9. In - Mulchand Hazarimal v. Hassomal Bachomal, AIR 1937 Sind 177 (Q), Davis, J., observed that where a compromise decree subsists between the parties no contention could be raised that the declaration in the decree is otherwise than the terms indicate, which, if at all must be done in a separate suit; but so long as the decree is in force, the defendant cannot escape its provisions. In - Shyam Lal v. Shyamlal, AIR 1933 All 649 (R) it is laid down that where a part of the compromise is decided by the Court and incorporated in the operative portion of the decree, it is binding upon the parties to the decree and its validity cannot be questioned by the executing Court. The trend of the decisions are all against the proposition put forward by the learned counsel for the appellant and it must, in conclusion, be said that the appellant has with open eyes entered into compromise with the respondent and he is precluded from going behind the said decree and plead that the decree cannot be executed against him personally or against the properties which have come to him by reason of survivorship.

10. The last point urged before us is the scope of the executing Court to decide matters affecting the decree. It is well established that an executing Court is bound to execute the decree as its stands, whether right or wrong unless it be that the decree is one passed without jurisdiction See - Dalip Narayan Singh v. Raghunandan Prasad, AIR 1932 Pat 134 (S) and - Chunni Lal v. Sia Chaudhury, AIR 1937 Pat 618 (T). The decree cannot be questioned at the time of execution as laid down in - AIR 1933 Bom 298 (C); nor is it open to the executing Court to go into the question whether the agreement on which the decree is passed is binding on the parties (see - Bhagsingh Barayam Singh v. Govindaram Haradattarai, AIR 1943 Nag 325 (U)). Shankara Narayana Rao, J., at page 442 in - Pundaleekappa v. Govindappa, 15 Mys LJ 435 (V) observed thus: "In - Veera Madhava Thirtha Swamigalu v. Subramaniah, 14 Mys LJ 226 (W) it is laid down that a Court executing a decree cannot go behind the decree, that it has to take the decree as it stands, and that it has no power ordinarily to permit an objection being raised as to the validity, legality or correctness of the decree." An executing Court cannot go behind the decree. In a recent case the Supreme Court has also affirmed that "the duty of an executing Court is to give effect to the terms of the decree. It has no power to go beyond its terms. Though it has power to interpret the decree, it cannot make a new decree for the parties under the guise of interpretation" vide - Ramaswami Aiyengar v. Kailash Thevar, AIR 1951 SC 189 (X). We are, therefore, of opinion that the executing Court cannot thus permit objections to be raised about the validity of the decree sought to be executed except on ground of its being a nullity for want of jurisdiction of the Court that passed it, and the Court is bound to execute the decree as it stands. This contention of the appellant also fails. In the result the order of the learned District Judge rejecting the objections of the judgment-debtor, is confirmed.

11. This appeal, therefore, fails and is dismissed, parties bearing their own costs. Appeal dismissed. AIR 1953 MYSORE 156 (Vol. 40, C.N. 75) "Sampu Gowda v. State of Mysore" MYSORE HIGH COURT FULL BENCH Coram : 3 VENKATA RAMAIYA, BALAKRISHNAIYA AND VASUDEVAMURTHY, JJ. ( Full Bench ) Sampu Gowda Hanume Gowda and others, Petitioners v. State of Mysore and others. Civil Petns. Nos.98 of 1950-51; 155 and 163 of 1951-52, D/- 30 -3 -1953. (A) Civil P.C. (5 of 1908), S.114, O.47, R.1 - REVIEW - Review - Nature of remedy - Power to review. Review - Nature of remedy. Review is a remedy to be sought for and applied under special circumstances. The jurisdiction or power to review cannot be assumed or imported in the absence of any specific provision therefor or of even indication of the conditions for the exercise of it. Case law referred. (Para 7) Anno : C.P.C., O.47 R.1 N.2. (B) Mysore Land Revenue Code (4 of 1888), S.60, S.233 - LAND REVENUE - WORDS AND PHRASES - "Subject to such orders - Government - Meaning. Section 60 has to be enderstood as requiring the Deputy Commissioners to be guided in making the grant by orders of Government in similar instances, treating them as precedents or by the order of Government if any in the particular case and in any event the orders are those passed prior to or at the time the grant is determined. The section cannot be taken to contemplate a series of orders concerning a grant during an indefinite future period of time. Such orders would be repugnant to S.233 as it warrants only those which are not inconsistent with the Act and cannot serve to extend the provisions of the Code. (Para 12) Per Vasudevamurthy, J. :- Under S.233 the rules and orders cannot be inconsistent with the Land Revenue Code and if the Code does not authorise or permit the review of any order already passed by Government any rule or order to the contrary will be null and void. 50 Mys HCR 8, Rel. on. (Para 34) (C) Mysore General Clauses Act (3 of 1899), S.21 - Mysore Land Revenue Code (4 of 1888), S.233 - GENERAL CLAUSES - LAND REVENUE - Power to rescind or modify orders - Extent of. Though S.21 of the Mysore General Clauses Act gives Government power to rescind or modify orders which it has power to make, the power is confined under S.233 of the Land Revenue Code to passing orders in keeping with codal provisions. Section 21 does not therefore enlarge the scope or degree of such a power so as include the power to review as order already passed. (Para 13) (D) Mysore Land Revenue Code (4 of 1888), S.233 - LAND REVENUE - OBJECT OF AN ACT - Rules under - R.102 - Scope - Review not a detail of procedure. Rule 102 cannot be construed as conferring on Government the powers of review available under the Code of Civil Procedure as it is only in regard to details such as issue of processes, the regulation of hearing, examination of witnesses, adjournments and formalities incidental to the conduct of the case the procedure prescribed therein is to be adopted and review cannot be considered to be a detail of procedure but stands almost on the footing of an appeal, which is a substantive right. (Para 7) (E) Mysore Land Revenue Code (4 of 1888), S.58 - LAND REVENUE - Order regarding grant of land - Power of review to Government. There is no inherent power or statutory authority vested in Government to review orders passed for grant of land under the Land Revenue Code. Successive applications for review are not allowed even under the Code of Civil Procedure and it is difficult to see how the grant completed by issue of the saguvali chit and acceptance of payment can be stayed or reviewed at all. (Para 16) Per Vasudevamurthy, J. :- The Mysore Land Revenue Code is a complete Code in itself and embodies the whole of the Revenue Law in force in Mysore. It makes express and elaborate provision for appeals and revisions against orders made by the subordinate Revenue Officer in administering the Act and it makes no provision for a review. The Legislature has nowhere either in chapter 13 or elsewhere provided for any appeal or review or revision against any orders passed previously by Government itself. (Para 36) (F) Constitution of India, Art.226 - WRITS - Conditions for grant of writs. The exact conditions necessary to be satisfied for granting a writ are not defined in the Constitution but are laid down, to be : a body of persons (1) having legal authority (2) to determine questions affecting legal rights of subjects and (3) having the duty to act judicially (4) act in excess of their legal authority. AIR 1950 SC 222, Rel. on. (Para 18) (G) Constitution of India, Art.226 - WRITS - Writ of certiorari - Existence of other remedy. The existence of an adequate specific legal remedy would affect a writ of mandamus but not of certiorari. AIR 1952 All S9, Rel. on. (Para 19) An alternative remedy is not considered to be always an absolute bar to the issue of a writ, though it may be a ground for reluctance to issue it. AIR 1952 All 753 (FB), ReL on. (Para 19) (H) Constitution of India, Art.226, Art.227 - WRITS - HIGH COURT - Issue of writ against Government. Article 226 does not forbid the issue of writs against Government but only limits it to appropriate cases. Even administrative orders of Government could be interfered with under Art.226 if these were in defiance of mandatory provisions of law. (Paras 19, 20) Per Vasudevamurthy, J. :- So long as, and whenever it exercises judicial and quasi-judicial power!; and gives final judgments between two parties which has legal sanction by its own force, the Government or any tribunal within the jurisdiction of the High Court, is subject to the writs which may be issued under Art.226 and to the superintendence contemplated under Art.227. (Para 39) Where, therefore, the State Government set aside the orders as regards the grant of land under S.58, Mysore Revenue Code, purporting to exercise of a power of review which the Code did not confer upon the Government and persons concerned applied to the High Court under Art.226: Held that in those circumstances and in order to safeguard stability and security of title to property against interference by means of orders based on consideration shifting from time to time it was appropriate that the orders passed in the application for review should be quashed as being without jurisdiction. (Paras 20, 44)

(I) Constitution of India, Art.226 - WRITS - OBJECT OF AN ACT - Scope of. Per Vasudevamurthy, J. :- The powers of the Indian Courts under the Constitution are much wider and are not confined to issuing prerogative writs only. Article 226 empowers the High Court to issue to any person or authority any directions, orders or writs. The High Court therefore has power to interfere even in the case of administrative orders which are made in defiance of the articles of the Constitution or the mandatory provisions of law and without ally jurisdiction. The words "any person or authority" include Courts and tribunals whether under the appellate jurisdiction of the High Court or not. Case law referred. (Para 41) (J) Constitution of India, Art.226 - WRITS - Executive acts - Issue of writs against. The issue of a writ of certiorari or any other suitable writ which the High Court can issue under Art.226 or order that it can make under Art.227 cannot be avoided by merely calling a particular order or action as in the nature of an executive order or action. (Para 42) Though the acts which are purely executive in their nature, that is depending upon the discretion of the authority making it, may not be amenable to correction by the High Court, where the orders are passed or action is taken under a statute or an Act of the legislature by a Court -or tribunal which is vested with the power to take and enforce decisions regarding the rights between rival parties who appear before the tribunal or between them and the State, their proceedings, orders and actions cannot be said to be "executive". They would really be in the nature of judicial or quasi-judicial proceedings and orders and where it is shown that the authority or tribunal has acted contrary to or has not observed the provisions of such Act or statute or has during the course of so doing not observed the rules of natural justice, the High Court has ample jurisdiction to issue the necessary writs. (Para 42) (K) Constitution of India, Art.226 - WRITS - Nature of jurisdiction under. Article 226 does not mean that any party who thinks that a wrong order has been passed under any of the statutes can come up to the High Court and ask that it should convert itself into a Court of appeal sitting in judgment over such orders. If the authority had jurisdiction to pass those orders and those orders fell within the ambit of such jurisdiction and powers, the mere fact that the order is wrong in the opinion of the Court would not justify the High Court to issue writs. But where jurisdiction is totally wanting or is not exercised or is exercised without reference to contrary to the statute under which such jurisdiction is given the High Court can and ought to interfere. (Para 42) Cases Referred : Chronological Paras (A) 35 Mys CCR 396 (B) 30 Mys CCR 221 (C) 40 Mys HCR 198 (D) 39 Mys HCR 942 (E) (19) AIR 1919 Mad 244 : 37 Mad LJ 162 (F) (95) 22 Cal 419 (G) (07) 11 Cal WN 803 : 34 Cal 677 (H) (1891) 60 LJQB 264 : (1891) 1 QB 450 (I and J) (95) 19 Bom 113 (K) (95) 19 Bom 116 (FB)

(L) (10) 3 Ind Cas 463 : 33 Mad 35 (M) (51) AIR 1951 SC 41 : 1950 SCR 869 (SC) (N) (50) AIR 1950 SC 222 : 1950 SCR 621 (SC) (O) (1878) 2 LR Iris 371 (P) (1931) 100 LJKB 760 : (1931) 2 KB 215 Mys 157 (Q) 48 Mys 96 (E) (1938) 107 LJPC 43 : (1938) AC 415 (S) 14 Mys CCR 225 (T) (52) AIR 1952 AH 99 : ILR (1952) 2 All 949 (U) (52) AIR 1952 AU 753 : 1952 AU LJ 505 (FB)

(V) (52) AIR 1952 All 752 : 1952 AU LJ 319 (W) (70-72) 7 Beng LR 186 : 14 Moo Ind App 40 (PC)

(X) 39 Mys HCR 217 (Y) (30) AIR 1930 Lah 657 : 125 Ind Cas 637 (Z) 41 Mys HCR 414 (Z1) 28 Mys CCR 60 (Z2) 35 Mys CCR 434 (Z3) 50 Mys HCR 8 (Z4) (36) AIR 1936 Mad 531: 59 Mad 825 (FB) (Z5) (13) 40 Ind App 54 : 40 Cal 552 (PC) (Z6) (1904) 72 LJKB 921 : (1904) 1 KB 6 (Z7) (22) AIR 1922 Lah 395 (Z8) (42) AIR 1942 Nag 8 : ILR (1941) Nag 588 (Z9) (3D AIR 1931 All 244 : 53 All 535 (FB) (Z10) (29) 1929 Mad WN 140 (Z11) (41) AIR 1941 Mad 272: 1940-2 Mad LJ 780 (Z12) 11 Mys LJ 26: 38 Mys HCR 467 (Z13) (53) AIR 1953 Mad 235 : 65 Mad LW 454 (Z14) (03) 12 Mad LJ 453: 26 Mad 268 (Z15) (52) AIR 1952 Nag 330 : ILR (1952) Nag 409 (Z16) (50) AIR 1950 SC 163 : 1950 SCR 566 (SC) (Z17) (52) AIR 1952 All 63 : 1952 All LJ 342 (Z18) (52) AIR 1952 All 963 : 1952 Cri LJ 1695 (Z19) (52) AIR 1952 Hyd 10 : ILR (1951) Hyd 845 (Z20) (51) AIR 1951 Cal 430 : 87 Cal LJ 109 (Z21) (52) AIR 1952 Cal 601 : 1951-20 ITR 400 (Z22) (53) AIR 1953 Nag 1 : ILR (1953) Nag 305 (Z23) (1924) 93 LJKB 390 : (1924) 1 KB 171 (Z24) (49) AIR 1949 Bom 277 : ILR (1950) Bom 1 In C.P., 98 of 1950-51: M.P. Somasekhara Rao, for Petitioner; Advocate-General in Mysore, for Respondent; In C.P., 155 of 1951-52: S.K. Venkatarangiengar, for Petitioner; Advocate-General, for Respondent No. 1. In C.P. 163 of 1951-52: C. Nagappa and C.K. Narayana Rao, for Petitioners; Advocate-General in Mysore (for No.1); A. C. Nanjappa (for No.2), for Respondents. Judgement ORDER OF REFERENCE. Points of considerable importance involving construction and application of constitutional provisions and the determination of the scope, nature and effect of the provisions of the Land Revenue Code arise in these cases. The opinions to be given are such as may affect persons other than the parties. There are no decisions of this Court or any other which have a direct bearing on the matters for decision. We therefore refer these cases to a Full Bench for disposal under section 15 of the High Court Act. The papers will be placed before the Chief Justice for necessary orders. OPINION. . VENKATARAMAIYA, J. :- These are three petitions filed ander Article 226 of the Constitution of India for issue of writs in the nature of Mandamus, certiorari or appropriate directions to the Government of Mysore on grounds which are substantially the same. These were heard together and may be conveniently disposed of by one order as the principal question raised in it whether Government can review orders regarding grant of agricultural lands. The facts which may be taken as undisputed are that the Petitioner in C.P. 155 of 51-52 was granted 3 acres in S.No.24 in Narsipur village, Arsikara Taluk, Hassan District on payment of Rs.75/-, the appeal preferred by some persons to the Revenue Commissioner objecting to the grant was dismissed on 27-11-1944, that Government also dismissed on 22-2-1946 the appeal filed against the order of the Revenue Commissioner, that the application filed subsequently for review of the order was rejected by -Government on 21-12-1949 but on a second petition for review, Government passed on 20-9-1951 an order setting aside the grant of the land to the petitioner and it is alleged that this order was passed without hearing the petitioner.

2. In the other two cases the petitioners were in the first instance permitted to eultivate certain lands under the rules framed for the "Grow more food" scheme and later on these were given to the petitioners for upset prices. The petitioners in C.P. 98 of 50-51 were required to pay Rs.100/- per acre by an order of Government dated 8-2-1951 and the amount payable for 5 acres in S. No.109 Naga-nahally village, Malur Taluk, Kolar District, at this rate was deposited by him in Malur Taluk Treasury on 2-3-1950. A saguvali chit dated 25-3-1959 was thereupon issued to him. The grant of 5 Acres has been since modified by an order of Government on 9-9-1950 restricting it to only 2 Acres and directing the sale of remaining 3 Acres in public auction.

3. The lands at first in the temporary cultivation of petitioners in C.P. 163 of 51-52 were on 29-4-1949 ordered to be granted to them on payment at Rs.375/- an acre. The amount was accordingly paid on 24-5-1949. On a petition presented to the Chief Minister subsequently an order purporting to prevent the grantee from entering on the lands is said to have been served on them. The petition is treated as one for review of the previous order by which the grant was made and is still pending.

4. The contention of the petitioners is that as Government has no power to review orders once made for grant of lands, the orders which rescind or modify the grant are ultra vires and further offend Article 31 of the Constitution of India. The learned Advocate General on the other hand urged that the petitions should be dismissed as the conditions necessary for issue of any of the writs are not made out; that the orders in question are quite valid, just and in the interests of the public.

5. The grants in favour of the petitioners are evidenced by documents, terms of which asset forth in Appendix E of the Rules under the Land Revenue Code which bears the heading certificate of grant are "Whereas under the rules for disposal of unoccupied Government land for cultivation and the grant of occupancy rights the land specified in the schedule hereunder written has been sold and A has purchased it in open auction or for upset price and the sale has been duly confirmed and A declared the purchaser thereof and whereas A has paid into the Government treasury the full amount of the purchase money Rs. Now I, Amildar - Taluk Assistant Commissioner - Sub Division Deputy Commissioner - District do permit A to enter into occupations the said land and hereby grant and confirm subject to cancellation or modification in appear or revision under the provisions of the Land Revenue Code the said land to the said A, his heirs, personal representatives and assigns under the terms of the Survey Guarantee Rule and subject to the regular payment of the Land Revenue Assessment".

6. It then provides for recovery of the dues in the manner prescribed by the Land Revenue Code in the event of default, for enforcement of other obligations such as maintenance of boundary marks and tank, for existing rights of way being unaffected and for reservation of rights to minerals, sandal trees. It concludes with the statements "that the grant shall be subject further generally to the provisions of the Land Revenue Code and the Rules thereunder or any other law for the time being in force" and is followed by the schedule of the land with date and designation of the office whose signature is affixed at the end.

7. Section 210, Land Revenue Code allows appeals to Government against orders regarding grants of land and under S.217 these may be revised by it. In view of the absence of a specific provision in the Code for review of such orders and of anything in the certificate to suggest the possibility of the grant being disturbed except in appeal or revision, the petitioners have reason to complain, on the analogy of what has been held in cases under similar enactments that the orders of review are without jurisdiction. Thus, in criminal cases, judgments once delivered cannot be altered or modified except to the extent of rectifying clerical errors or minor omissions as allowed by the Criminal Procedure Code see 35 Mys CCR 395 (A). Review of orders made on a reference under the Income Tax Act was considered to be not permissible in - 30 Mys CCR 221 (B), and a similar view with respect to orders under the Workmens Compensation Act was expressed in - 40 Mys HCR 198 (C), as these laws do not provide for it. On the same ground an application for review of an order passed on a reference made under the Land Revenue Code, was rejected in - 39 Mys HCR 942 (D). Rule 102 of the Rules under Land Revenue Code which states: As regards the details in conducting the investigation of cases, framing of plaints and petitions of appeal and other matters not provided for by the Code or Rules, the provisions of the Code of Civil Procedure in force for the time being shall be followed as far as possible", cannot be construed as conferring on Government the powers of review available under the Code of Civil Procedure as it is only in regard to details such as issue of processes, the regulation of hearing, examination of witnesses, adjournments and formalities incidental to the conduct of the case the procedure prescribed therein is to be adopted and review cannot be considered to be a detail of procedure but stands almost on the footing of an appeal, which is a substantive right. Review is a remedy to be sought for and applied under special circumstances. It may involve the rehearing of the appeal when, without a statutory provision a right of appeal cannot be claimed and appeal is definitely provided for in the Code, the jurisdiction or power to review cannot be assumed or imported in the absence of any specific provision therefor or of even indication of the conditions for the exercise of it.

8. In Anantharaju Shetty v. Appu Hegade, AIR 1919 Mad 244 (E), dealing with powers of a District Judge in a case under the Religious Endowments Act, it was observed that he is not competent to review his own order and S.141, Civil P.C., does not confer on Courts acting under special enacts ments power to review. In - Pryag Lal v. Jai Narayan Singh, 22 Cal 419 (P), also it was pointed out "Provisions of the C.P.C. relating to review of judgments have not been extended to proceedings under the Bengal Acts and so the orders passed on review are ultra vires and of no effect" with a further significant remark "I cannot admit that such a power of review is inherent in every judicial or Revenue Officer. It is a power expressly given to judicial officers under certain conditions and therefore it cannot be assumed that when not so given it is inherent in every officer. If this had been so there need not have been any legislation on the subject". See also - Baijnath Ram Goenka v. Nand Kumar Singh, 34 Cal 677 (G). Lord Esher M.R. in - Drew v. Wills, (1891) 1 QB 450 (H), expressed "This is not an appeal against the granting of the charging order but it was an application to rescind the order..............No court has such a power of setting aside an order which has been properly made unless it is given by statute".

14 Ind App 44 (PC) (Sic.), cited on behalf of fee Government may be taken to lay down that if proceedings authorised by a Court are found to be void it may not give effect to those. The proceedings in these cases cannot be said to have been vitiated by lack of authority on the part of Government to make the orders in favour of petitioners as the grants are cancelled or modified not on account of any doubt about power of Government in this behalf but on consideration of desirability, expediency or suitability. These are vague considerations varying from time to time, and between person and person without any standard of test and if in spite of the absence of express or explicit provision either in the Code or the certificate of grant, Government can at their will, deprive the holders of lands which are paid for and in their possession, regardless of lapse of time there will be neither finality nor security in regard to any grant under the Code. The Court is not concerned with the reasonableness of the order or the consequences entailed by it but it is necessary to see whether the power is vested in Government under any law to reopen proceedings concluded by previous orders and deprive persons of properties held by them on the faith of such orders. The fact that the existence of such power has been assumed and unquestioned so far cannot afford justification for the continuance of the practice unless it stands the test of strict scrutiny.

9. Relying on some sections of the Land Revenue Code and the General Clauses Act the learned Advocate General argued that Government as the guardian of public interest has unfettered creation to take away the lands given whenever it is deemed fit and however long it is after the grant. The sections in the Code on which emphasis was laid are 58, 60 and 233. Section 58 requires : "Any person desirous of taking up unoccupied land which has not been alienated, must previously to entering upon occupation obtain the permission in writing of the Amildar or Deputy Amildar or as may be provided under Rules made in this behalf under Section 233". Section 60 states: "It shall be competent to the Deputy Commissioner subject to such orders as may from time to time be made by the Government to require the payment of certain price for the occupancy, or to sell that right by auction and to appex such conditions to the occupancy as he may deem fit before permission to occupy is granted under Section 58". Under S. 233, the Government may from time to time, make and from time to time vary or rescind rules or orders not inconsistent with this Act : "............................................. (h) regulating the grant of permission to occupy unoccupied land under Section 58" ............................................ Rules made under any of the above clauses..... (h)........may be made either "generally or in any particular instance."

10. While Rules and Orders are both mentioned in S.233, only Rules are referred to in S.58 b orders in S.60. On the basis of the relative signification of Rules and Orders, the generality of the former and the application of the latter to particular cases, it was contended that the order for the grant in any case is by virtue of the words "subject to such orders as may be made from time to time by Government" in S.60 liable to be withdrawn or modified and this must be deemed to be implicit in the grant. This would mean that no order of Government passed at any time can be treated as final and that the grantee can never claim to have acquired a full title to the land, since it is exposed to the risk of being impaired by fresh orders of Government. But S.66 states: "An occupant is entitled to the use and occupation of his land for the period if any to which his occupancy is limited or if the period is unlimited, in perpetuity conditionally on the payment of the amounts due on account of the land Revenue for the same according to the provisions of this Act or if any rules made under this Act or of any other law for the time being In force and in the fulfilment of any other terms lawfully annexed to his occupancy."

11. Section 70 declares: "The right of occupancy shall be deemed an inheritable and transferable property subject to the provisions of section 54 or otherwise prescribed by law and shall immediately pass to the person whose agreement to become an occupant shall have been accepted by the Deputy Commissioner". Section 54 only provides for arrears of land Revenue being a first charge on the holding and recovery thereof.

12. In consonance with these, Section 60 has to be understood as requiring the Deputy Commissioner to be guided in making the grant by orders of Government in similar instances, treating them as precedents or by the order of Government if any in the particular case and in any event the orders are those passed prior to or at the time the grant is determined. The section cannot be taken to contemplate a series of orders concerning a grant during an indefinite future period of time. Such orders would be repugnant to S.233 as it warrants only those which are not inconsistent with the Act and cannot serve to extend the provisions of the Code. In 48 Mysore HCR cited by the learned Advocate General to show that Government can-net be deemed to be a "court", it was held that a rule which enables Government to purchase property in proceedings governed by Chapter XI of the Code is ultra vires and beyond the powers conferred under S.233. The sale set up by Government was therefore treated as a nullity. What applies to Rules applies to Orders and for similar persons the orders now in question must be considered invalid.

13. Section 21 of the General Clauses Act gives Government power to rescind or modify orders which it has power to make. The power is confined under S.233 to passing orders in keeping with codal provisions and S.21 does not enlarge the scope or degree of such a power.

14. The decisions at page 113 (J) and at page 116 (K) of 19 Bombay - Badaricharia v. Ramchandra Gopal and - Ramsing v. Babu Kisansmgh, to which our attention was drawn are not authorities to show that orders can be reviewed though the law governing the case does not provide for it. Both these were cases under the Dekkan Agriculturists Relief Act in which orders concerning status of defendant as an agriculturist were reviewed. The legality of the review was not doubted but the competency of the Judge who did it was raised in the light of S.74 of that Act which is in the following terms: "Except in so far as it is inconsistent with this. Act the Civil Procedure Code shall apply in all suits and proceedings before the subordinate Judges under this Act". The Mysore Code does not contain a similar provision.

15. In - David Nadar v. Pandara Sannadhi 33 Mad 65 (L), the point for determination was "whether the Collector after declining to interfere with the sale was entitled to review his own order". It was held "The power of review ..............is not granted by any statute and we are not aware of any principle on which it can be held he has power to review his own order".

16. A consideration of all this leads to the conclusion that there is no inherent power or statutory authority vested in Government to review orders passed for grant of land under the land Revenue Code. The order in one case purports to be a review of dismissal of an earlier application for review and in another the Chief Minister is said to have passed "stay order". Successive applications for review are not allowed even under the Code of Civil Procedure and it is difficult to see how the grant completed by issue of the saguvali chit and acceptance of payment can be stayed at all.

17. The orders are attached also on the ground of being repugnant to sub-S.(1) of Article 31 of the Constitution of India which enunciates that no person shall be deprived of his property except by authority of law. Though the criticism seems at first sight to be well-founded and the observations in - Charanjitlal v. Union of India, AIR 1951 SC 41 (M), seem to lend support to it, doubt is raised in later cases about its applicability to-cases other than those of acquisition of property without invoking the aid of the article, what has been said is enough to hold that the orders are passed without jurisdiction.

18. The next and more important point is whether this is sufficient for the issue of a writ. Of the writs specified in Art.226, the suitability of certiorari in the circumstances disclosed was canvassed. The exact conditions necessary to be satisfied for granting the writ are not defined in the Constitution but are analysed by Kania, C.J., in - Province of Bombay v. Khushaldas S. Advani, AIR 1950 SC 222 (N), to be: a body of persons (1) having legal authority (2) to determine questions affecting legal rights of subjects and (3) having the duty to act judicially (4) act in excess of their legal authority. As regards the duty to act judicially it is said "Prescribed forms of procedure are not necessary to make an inquiry judicial provided in coming to the conclusion the well recognised principles of approach are required to be followed" after referring to the observations of May, C.J., in - Regina (John M. Evoy) v. Dublin Corporation, (1878) 2 LR Iris 371 (O). "The term judicial does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority upon consideration of facts and circumstances and imposing liability or affecting the rights of others" and of Scrutton, L.J., in - The King v. London County Council, (1931) 2 KB 215 (P): "It is not necessary that it should be a Court in the sense that this Court is a Court if it is a tribunal which has to decide rights after hearing evidence and opposition it is amenable to the writ of certiorari". The opinion expressed in - 48 Mysore 96 (Q), that proceedings under Chap. 11 of the Land Revenue Code are not those of a Court and referred to on behalf of the Government does not affect the present case as the question now is not whether Government is to be regarded as a Court but whether its acts are of judicial character and also because the proceedings relating to the grants are governed by provisions in other chapters of the Code. The decision does not affect the issue of a writ and in a way helps the petitioner in showing that rights claimed by Government on the strength of a rule which is ultra vires are to be negatived. In - Toronto City Corporation v. York Township Corporation, (1938) AC 415 (R), it was held that though a Municipal Board may be primarily an administrative body there may be provisions in the Act by which it was constituted which clothe it with the functions of a Court and vest in it judicial power. Rule 102(A) makes notice to the party whose interest would be affected, obligatory, before an order of a subordinate officer is modified or reversed. section 96 of the code provides for appeals to this Court against orders of a revenue officer in certain cases and inquiries of a summary or formal character are required by S. 200 to be in accordance with the provisions of the Civil Procedure Code. To evict a person from a land given to him temporarily a summary enquiry is necessary under S.66A. All these are some of the important features of a judicial proceeding and cannot be disregarded when title to and possession of lands are sought to be disturbed.

19. It was argued that even if the conditions laid down by Kania, C.J., are made out, the granting of the writ is discretionary and these are not fit cases for the exercise of discretion in favour of petitioners as the objections must be taken to be only technical without any substance on the merits. The possibility of having a remedy by other means and the authority whose act is questioned being Government were urged as additional factors against the granting of the writ. For the purpose of these proceedings, it is not pertinent to find out what led the Government at one time to order the grant and at another to withdraw or modify it, as the question now for decision is not the reasonableness but only the legality of the orders. It is highly doubtful whether a writ which is the only other remedy suggested, will lie at all for adjudication of petitioners rights under the original grants, in view of S.221 of the Code by which "No Civil Court shall exercise jurisdiction as to (f) claims against Government ............ respecting the occupation of waste or vacant land belonging to Government". (See also - 14 Mys CCR 225 (S).) A Full Bench of the Allahabad High Court has in - Ravi Pratap Narain Singh v. State of Uttar Pradesh, AIR 1952 All 99 (T) expressed that the existence of an adequate specific legal remedy would affect a writ of mandamus but not of certiorari. An alternative remedy is not considered to be always an absolute bar to the issue of a writ, though it may be a ground for reluctance to issue it, (see - Buddhu v. Municipal Board, Allahabad, AIR 1952 All 753 (FB) (U). Article 226 does not forbid the issue of writ against Government but t only limits it to appropriate cases. Whatever may be the effect of the provisions of the Land Revenue Code or other law as regards maintainability of suits, the power conferred by Art.226 for issue of writs does not admit of any doubt.

20. In - Ramcharan Lal v. State of Uttar Pradesh, AIR 1952 All 752 (V), a Division Bench held that even administrative orders could be interfered with under Art.220 if these were in defiance of mandatory provisions of law and quashed a declaration by Government that property was to be acquired for a public purpose. The grants, viewed as sales or contracts, can be set aside under the ordinary law only on certain defined grounds and the party who seeks to get rid of the transaction has to establish the facts necessary for it. Resort to the Land Acquisition Act will also enable the Government to acquire the lands if it serves a public purpose. The position, therefore, so far as petitioners are concerned is that the availability of an alternative remedy against deprivation of lands is at best doubtful but there are other courses open to Government for resuming the lands. In these circumstances and in order to safeguard stability and security of title to property against interference by means of orders based on consideration shifting from time to time it is appropriate that the orders passed in the applications for review should be quashed as being without jurisdiction.

21. BALAKRISHNAIYA, J. :- I agree.

22. VASUDEVAMURTHY, J. :- The first point that arises for consideration is whether the Government had power to review and alter their earlier decision in the cases concerned. A large number of reported cases have been cited before us by counsel for the petitioners and the Advocate-General.

23. In the earliest Mysore Case, - 30 Mys CCR 221 (B), which was a case of a reference under the Mysore Income-tax Act an application for the review of an earlier order of the High Court was held not maintainable. Plumer, C.J., then observed that the decision of the High Court under S.66(2) of the then Income-tax Act was not an order which could be reviewed under the provisions of the Code of Civil Procedure. He pointed out relying on - AIR 1919 Mad 244 at p.246 (E), that very special circumstances are needed to justify the invoking of any inherent power to review its own order and that such special circumstances must be of a nature similar to those which existed in the case in - Syud Tuffuzzool Hossain Khan v. Rughoonath Pershad, 14 Moo Ind App 40 (PC) (W), where it was necessary in the ends of justice and equity that a Court "should cancel its own invalid order," or where a fraud has been committed upon the Court. Subbanna, J., pointed out that the Income-tax Regulation under which the reference was made to the High Court does not lay down that the provisions of the Code of Civil Procedure are applicable to the proceedings before that Court, or that a review can be had of any order passed by the Chief Court and that the High Court was not at liberty to manufacture any procedure which does not exist under the law. 35 Mys CCR 396 (A), lays down that the High Court had no power to review its former judgment in a criminal case by virtue of S.369, Criminal P.C. as amended by Act 6 of 1927. As there is a clear bar to review provided by that section that decision may not be useful. - 39 Mys HCR 217 (X), was a case under the Legal Practitioners Act. The petitioner who had been suspended by the High Court for professional misconduct applied for a review of the order, Mahadevayya, C.J., held that the review petition was not maintainable. He said that: "The question whether a Court has or has not a right to interfere as a Court of appeal, review, reference or revision in any given instance must be determined, not by invoking the aid of inherent power or general principles but by the express provisions contained in the particular enactment of law applicable to the matter. A right of review like that of appeal is a creature of Statute. In the absence of a specific provision allowing a review in the Legal Practitioners Regulation which is a consolidated law relating to legal practitioners, a review petition does not lie."

24. In - 40 Mys HCR 198 (C), Reilly, C.J., and A.S.R. Chari, J., held that a Commissioner for Workmens Compensation has no power, to review his own order made under S.8(1) of the Workmens Compensation Act; see In re, Karim Dad, AIR 1930 Lah 657 (Y). In - 39 Mys HCR 942 (D), the question arose in connection with certain proceedings under the Mysore Land Revenue Code. Section 226 of that Code provides reference by the Government to the High Court for its decision any question which might have been tried or investigated by a Civil Court but for the bar contained in S.221 in respect of some matters referred to therein. The High Court had, in the exercise of their jurisdiction under S.226, Land Revenue Code, given a decision on the question referred to it. A review was sought of that decision by one of the parties affected before Mahadevayya C.J. and Ramachandra Rao J. who held, following - 30 Mys CCR 221 (B), and - 39 Mys HCR 217 (X), that such an application for review did not lie. The learned Chief Justice then observed : "It is conceded that the Land Revenue Code under which the Government made the reference does not contain any provisions empowering this Court to grant a review to a party affected by a decision of this Court on the reference. Nor is there anything in the Code of Civil Procedure to support the petitioners claim for a review in such cases."

25. In - 41 Mys HCR 414 (Z), it was urged that Sec.561-A, Criminal P.C. conferred an inherent power on a Court to alter or review its own judgment in a criminal case and that the earlier cases of this Court in - 28 Mys CCR 60 (Z1) and - 35 Mys CCR 434 (Z2), the latter based on S.369, Criminal P.C., which were decided before the enactment of S.561-A needed reconsideration. This contention was negatived and it was observed that the High Court had no power even under that section to review its own judgment once it has "been pronounced and signed, except in cases where it was passed without jurisdiction or in default of appearance without an adjudication on merits or to correct a clerical error.

26. 50 Mys HCR 8 (Z3), was a case arising under the Mysore Co-operative Societies Act. It was held there by Nagesvara Iyer and Singaravelu Mudaliar, JJ., that the power of a tribunal or Court to review its own order is a substantive right. This could be conferred only by the legislature and as R.25(h) of the Mysore Co-operative Societies Rules 1920 which purported to empower a liquidator appointed under S.43, Co-operative Societies Act to review from time to time his own order determining the amount of contribution was ultra vires of the Governments rule making powers. They pointed out that it could not be disputed that a right of revision like the right of appeal is a substantive right and relied on the observation of Venkataramana Rao, J., in - Ramchandra Masadaraj Deo Gom v. Beero Pollai, AIR 1938 Mad 531 PB (Z4), that "Generally no Court has got the power of revising its own appellate orders nor has a Court the power of review unless specially conferred on it."

27. In - AIR 1919 Mad 244 (E), Oldfield and Seshagiri Iyer JJ., held that as there was no explicit provision in the Religious Endowments Act for a review, a District Judge who had passed an order under S.10 of that Act had no power to review an order passed by him; nor had he any such power under S.141, Civil P.C. The power to review was not inherent in a Court and could only be exercised if it is permitted by statute. Oldfield J. observed at page 245 : "..........the rule that a Court cannot review its own decision except so far as it is permitted to do so by Statute, is of general authority, since it is recognised alike in England, for instance in - (1891) 1 QB 450 (H) and in India in - 33 Mad 65 (L), - 22 Cal 419 (F), and - Baijnath Ram v. Nand Kumar Singh 40 Cal 552 (PC) XZ5)." Sesnagiri Iyer, J., observed at page 245 : "It is settled law that a case is not open to appeal unless the Statute gives such a right. The power to review must also be given by the Statute. Prima facie a party who has obtained a decision is entitled to keep it unassailed, unless the Legislature has indicated the mode by which it can be set aside. A review is practically the hearing of an appeal by the same officer who decided the same. There is at least as good reason for saying that such power should not be exercised unless the Statute gives it, as for saying that another tribunal should not hear an appeal from the trial Court unless such a power is given to it by Statute." He has referred in addition to - Charles Bright and Co. Ltd. v. Sellar, (1904) 1 KB 6 CZ6) and - 34 Cal 677 (G), in which Atkinson, L.J., had declared that the power to review is not inhereny in a Court. He has referred to and distinguished certain cases which "sound the other way" as being cases wherein the original order was invalid and which the Court had no jurisdiction to pass or to corrects errors caused by inadvertence or deliberate misrepresentation or fraud.

28. In - Mt. Sharfon v. Mt. Bholi, AIR 1922 Lah 395 (Z7), which was a case under the Guardians and Wards Act and - District Judge, Hoshangabad v. Shri Kisan Das, AIR 1942 Nag 8 (Z8), which was a case under the Debt Relief Act, a power to review has been negatived on the ground that there was no such power given under those Acts. In - Mt. Abhilakhi v. Sada Nand, AIR 1931 All 244 (PB) (Z9), the Full Bench of the Allahabad High Court have held that no review lies in a case decided by a Bench in an appeal under the Letters Patent as there is no provision for the same in the Letters Patent. The Code of Civil Procedure could not supply the power they said as "procedure was one thing and jurisdiction another; There is a clear distinction between the two".

29. In - 33 Mad 65 (L), some lands were purchased by the plaintiff at an auction for arrears of revenue. The sale was confirmed in August 1901 by the Deputy Collector and the plaintiff was put in possession. An application was made in 1902 to set aside the sale, but the Collector declined to interfere. Subsequently on a review petition he passed an order cancelling the sale and the defendant applied for and obtained restitution of possession. The plaintiff then sued to recover possession of the lands. Munro and Shankaranayar, JJ., held that the Collector had no power to review his own order refusing to interfere with an order passed by his subordinate confirming a a sale for arrears of land revenue. They observed "is not granted by any Statute and we are not aware of any principle on which it can be held that he has powers to review his own order."

30. In - K. Sreeramulu v. K. Ramireddy, 1929 Mad WN 140 (Z10), a District Munsiff had passed an order rejecting a plaint under O.7, R.11, Civil P.C. On a subsequent application to his successor in office the order of rejection was set aside and the plaint was admitted to be registered as a suit, the second District Munsiff purporting to do so under S.151, Civil P.C., On revision it was held that neither under that section nor under the provisions relating to review he had jurisdiction to override orders passed by his predecessor-in-office, and as it was an order passed without jurisdiction it must be set aside.

31. In - M.J. Kutinha v. Mrs. Natlal Pinto Bai, AIR 1941 Mad 272 (PB) (Z11), a Panchayat Court acting under the Madras Village Courts Act dismissed a suit on its merits though as the plaintiff was absent, it should have dismissed it for default. The successor of the Panchayat Court on the plaintiffs application set aside the decree and restored the suit on the ground that the plaintiff had good cause for non-appearance. On appeal this last order was quashed lay the District Munsiff. It was held by the High Court on a revision against his order that the order restoring the suit was without jurisdiction and could not be treated as an order passed in review of the first order inasmuch as the Madras Village Courts Act made no provision for reviews. It was pointed out that it has been made clear in many. decisions (- AIR 1919 Mad 244 (E)", is one of them) that unless a Statute provides a remedy by way of review a Court could not review its own judgment except in any exceptional circumstances such as for example where it passed an order inadvertently or on accounts of some false representation by the officers of the Court.

32. In - (1891) 1 QB 450 (H), Lord Esher M.R. has pointed out at page 452 that no Court has a power of setting aside an order which has been properly made unless it is given by Statute.

33. The learned Advocate-General has relied strongly on cases in - 19 Bom 113 (J), and - 19 Bom 116 (PB) (K), In these cases an Assistant Sessions Judge had passed an order holding that the defendant in a suit pending before him was an agriculturist under the Deccan Agriculturists Relief Act. On review his successor reversed that order. There is no discussion there on the principles involved. The learned Judge merely held that the Code of Civil Procedure was not applicable and as the Assistant Sessions Judge had granted the review on grounds of mistake and had exercised his discretion reasonably, the High Court which was approached to exercise what they have styled as its extraordinary jurisdiction refused to interfere with the order. These cases are therefore of no help to the Government.

34. The learned Advocate-General has in this context put forward another argument in support of the power of the Government to review its own order and for effect being given to such subsequent order. He represents that the subsequent order of the Government is really not passed on a review strictly so called, hut merely in the nature of a fresh order which the Government can pass from time to time as contemplated by S.61, Mysore Land Revenue Code and according to which the Deputy Commissioner has to act. That section provides that when it appears to the Deputy Commissioner, that the occupancy of any alluvial land which vests under any law for the time being in force in Government, may with due regard to the interests of the public revenue be disposed of in perpetuity or otherwise as the Government may direct by rules or orders made in this behalf under S.233. Section 233 provides for Government making from time to time rules or orders not inconsistent with the Act regulating the grant of permission to occupy unoccupied land under S.58 and for the disposal of occupancy of alluvial land under S.61. Section 234 provides for all general rules or orders made by the Government under S.233 being published and when published having the force of law till they are cancelled or amended. It is urged by the learned Advocate-General that the order contemplated by Sections 233 and 234 is such order as is sought to be impugned in this case and that the effect of those sections is that the Government can always and at any time lawfully cancel, alter or amend its previous orders. It is to be observed that under S.233 the rules and orders cannot be inconsistent with the Land Revenue Code and if the Code does not authorise or permit the review of any order already passed by Government any rule or order to the contrary will be null and void as decided in - 50 Mys HCR 8 (Z3). Moreover it is difficult to follow much less accept this contention. Such disposal can obviously, govern only prior orders and not the orders which may be passed in future. It would also mean that the Government can keep on altering or cancelling its previous orders at any time and every subsequent order passed in the same or any other case after, however long a period, would have to be given effect to by the Deputy Commissioner under S.61. There would then be hopeless confusion and absolute lack of finality to Government orders. The proper meaning and construction to be placed on the word orders occurring in S.233 is that they can only mean orders of a general application which are to be in the nature of precedents or guides and are to be followed as such in subsequent cases. Such orders would be laying down standards or directions for the guidance of the lower Revenue Officers, and explain or interpret the provisions of the Land Revenue Code. They would be analogous to case-law or precedents with which Courts are so familiar. Obviously such a direction as is contained in S.61 is necessary to ensure that the lower Revenue Courts or Officers carry out all lawful directions of Government laid down either in the form of rules or published by Government Orders as provided by S.233 and if there is to be certainty and consistency in the working of the Land Revenue Regulation or Act.

35. The learned Advocate-General has in this connection referred to some passages in - 38 Mys HCR 467 (Z12), in the judgment of Mahadevayya, J., to urge that an order which is illegal in its inception cannot become valid by mere lapse of time and that there is nothing to prevent the Government from reconsidering the question in all its aspects. The decision of this Court in that case really rests on the finding that the duty of regulating the supply of water to wet lands from a Government source in Mysore rests exclusively in Executive Officers of Government and owners of lands classified as dry in the settlement have no preferential right over holders of wet lands under the source, and that a grantee of nirasardi rights which was in the nature of a licence for the use of the water subject to payment of water rate could not claim any indefeasible right as against Government, to the use of the water, by his enjoyment. I do not think that that bservation by Mahadevayya, J., is anything mora Khan mere obiter and in any event has no application to the facts of the present cases where nobody has even suggested that the previous orders of the Government were illegal and therefore absolutely null and void.

36. On the other side it has been strenuously contended for the petitioners that if the word "orders" in S.60 is to be interpreted in the way suggested by the learned Advocate-General it would lead to "injustice" and "absurdity" as every order passed either by the Deputy Commissioner or Government would never be final but would remain and be uncertain for all time and reliance has been placed on Maxwells Interpretation of Statutes 1946 Edit pp.207-208 where that learned author says : A sense of the possible injustice of an interpretation ought not to induce Judges to do violence to well-settled rules of construction, but it may properly lead to the selection of one rather than the other of two reasonable interpretations. Whenever the language of the Legislature admits of two constructions, and if construed in one way would lead to obvious injustice, the Courts act upon the view that such a result could not have been intended, unless the intention had been manifested in express words...........In Ss.112 and 198 Bankruptcy Act, 1849 (c. 106), which protected a bankrupt from arrest by his "creditors", this word was construed as limited to those creditors who had debts provable under the bankruptcy, for it would have been obviously unjust and was therefore presumably not intended, that his certificate should protect a bankrupt not only against those creditors who had or might have proved under the bankruptcy, but also against creditors whose claims were not barred by it and at pages 212-215 where he says : "The same argument (the presumption against injustice or absurdity) applies where the consequence of adopting one of two interpretations would be to lead to an absurdity. Thus S.3 (now repealed) of the Newspaper Libel Act, 1881 (c.60), which enacted that no criminal prosecution should be commenced against a newspaper for libel without the fiat of the Director of Public prosecutions, was held not to apply to a criminal information, for to hold otherwise would lead to the absurd and scandalous result that that officer, who was to act under the superintendence of the Attorney-General, might not only overrule the latter, but also the Queens Bench Division in the exercise of their power to give leave to file such information." There is considerable force in this contention. If we accept the argument on behalf of the State then there would be no ascertained or final rights to property in alluvial lands which have already been granted by the duly authorised and empowered officers of Government and even after confirmation on appeal to Government. This is............ directly opposed to S.70 of the Act which declares that the right of occupancy is a heritable and transferable right subject to the payment of lend revenue to Government. The learned Advocate-General when pressed to say if this would not he the result if we accepted the interpretation canvassed for by him had to admit that it may be so and suggested that if that was the policy of the Land Revenue Code the Courts were bound to accept such a construction. But I do not think-that the policy of the Act which was enacted so far back as 1888 with a view to codify and place on an efficient, clear and solid statutory foundation the rights both of the State and its subjects was to render by Ss.61 and 233 its operation so nebulous, ambulatory, uncertain and arbitrary. Doreswami Iyer, C.J., has pointed out in - 38 Mys HCR 467 (at p.472) (Z12), that the Mysore Land Revenue Code is a complete Code in itself and embodies the whole of the Revenue Law in force in Mysore. It makes express and elaborate provision for appeals and revisions against orders made by the subordinate Revenue Officer in administering the Act and it makes no provision for a review. Indeed in Chap.13 of the Land Revenue Code which provides an elaborate and detailed machinery for correction of wrong orders through appeals and revision, it has expressly provided that no appeal shall lie to Government from an appellate decision or order passed by the Revenue Commissioner except on a point of law or usage having the force of law. Short periods of limitation are prescribed for such appeals and power expressly granted to admit belated appeals only if the appellant satisfies the appellate authority he had sufficient cause for not preferring an appeal in time. The Legislature has nowhere either in that chapter or elsewhere provided for any appeal or review or revision against any orders passed previously by Government itself.

37. The petitioners have in this connection relied on a case reported in - State of Madras v. Subbaraju, AIR 1953 Mad 235 (Z13) a decision of a single Judge of the Madras High Court where following - Secy. of State v. Kasturi Reddi, 26 Mad 268 (Z14), it has been held that where a valid assignment is made under darkhast rules and patta granted to the applicant the title becomes complete and vested in such assignee, and the Government cannot revoke or change it, that it is as if the Government through its agent the Collector or the Revenue Divisional Officer or the Tahsildar has sold away or assigned the rights in certain lands and that the Collector has no power to cancel an earlier order, nor has the Government got any such power to set aside -an. order of a lower authority when it has become final, or any all-pervading or supervening power to interfere in the orders passed by the subordinate revenue authority, in accordance with the Boards Standing Orders in the grant of Darkhast. In - 26 Mad 268 (Z14), Bhashyam Iyengar, J., has observed at page 283 that when there is a, valid contract and disposal of a land by an officer duly authorised under the darkhast rules, unless the grant was procured by fraud, misrepresentation or mutual mistake the grant cannot be annulled or revoked by the officer who made the grant or by his successor-in-office or even by the Governor in Council. It must therefore be held that the Government had no powers to review their previous orders in those cases and that if they did so it is wholly without jurisdiction.

38. The powers of this Court to issue writs against the Government in a matter like this and the propriety of doing so next falls for consideration. A large number of decisions have been cited by the learned Counsel on either side in this matter. I think, however, it is unnecessary to refer to most of them as the broad principles governing the issue of such writs are now fairly settled or known.

39. It is contended by the learned Advocate-General that this Court can issue writs only to inferior tribunals and that Government is not such, an inferior tribunal and not even a tribunal. Whatever may have been the room for difference as regards the question of Government being an inferior tribunal, in respect of whose orders and actions a High Court as a Court of Record could issue writs before the Constitution, I think Art.226 of the Constitution makes it clear that a High Court has now power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any Government within those territories directions, orders or writs, including writs in the nature of habeas corpus mandamus, prohibition quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. It has been held by the other High Courts in the Indian Union that the words "for any other purpose" should not be read as ejusdem generis with the earlier kinds of writs and that such writs can be issued for the enforcement of any of the rights not only conferred by Part III but also in suitable cases for the protection and enforcement of other rights of the citizens in relation to the State. Neither in that article nor in Art.227 which provides that every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction is any distinction mentioned about superior and inferior tribunals, and I think it unnecessary for the purpose of deciding this matter to hold that the Government is an inferior tribunal. So long as, and whenever it exercises judicial and quasi-judicial powers and gives final judgments between two parties which has legal sanction by its own force, the Government or any tribunal within the jurisdiction of the High Court, is in my view, subject to the writs which may be issued under Art.226 and to the superintendence contemplated under Art.227.

40. The learned Advocate-General has argued that because Art.227 (2) contains certain provisions for calling for returns and making of rules and prescribing forms and books only from Courts the word "tribunal" cannot include Government from whom such returns etc., cannot be called for. I do not think that any such construction can be placed on the circumstances that the High Court may have power to call for certain returns from Courts alone and not from tribunals as being in any way indicative that they have no power of superintendence over tribunals from whom they cannot and need not call for any such returns. As pointed out in - G.D. Karkare v. T.L. Shevde, AIR 1952 Nag 330 (Z15), the power under Art.226 is given not only for the enforcement of the fundamental rights conferred by Part III of the Constitution but also for any other purpose; and the words "for any other purpose" must receive their plain and natural meaning, viz., for any other object which the Court considers appropriate and calls for the exercise of the powers conferred upon it.

41. The powers of the Indian Courts under the Constitution are much wider and are not confined to issuing prerogative writs only. Article 226 empowers the High Court to issue to any person or authority any directions, orders or writs. The High Court therefore has power to interfere even in the case of administrative orders which are made in defiance of the articles of the Constitution or the mandatory provisions of law and without any jurisdiction; see - Rashid Ahmed v. Municipal Board, Kairana., Kairana, AIR 1950 SC 163 (Z16); - AIR 1952 All 752 (V) and - Avadhesh Pratap Singh v. State of Uttar Pradesh, AIR 1952 All 63 (Z17). The words "any person or authority" include Courts and tribunals whether under the appellate jurisdiction of the High Court or not; see - Motilal v State, AIR 1952 All 963 (Z1S). In - Trimbak Prasad v. State of Hyderabad, AIR 1952 Hyd It (Z19), a writ was issued against a Revenue Minister. In that case the Revenue Minister had cancelled a patta which had been duly granted over 30 years ago. The Hyderabad High Court held that the order of the Minister was not a Ministerial Act. It affected rights of property. The Revenue Minister had no jurisdiction to decide the matter in dispute and pass the order referred to. Even assuming he had jurisdiction it was not competent for him in law or natural justice to deal with the matter since he should not sit in judgment and overrule the previous orders and action by high senior officers and the President in Council in respect of the same dispute. In - Elbridge Watson v. R.K. Das, AIR 1951 Cal 430 (Z20), Das Gupta J. has pointed out that the High Court can interfere with the action of the executive if the act complained of does not come within the four corners of the authority given him by the Act though the Court cannot question the Tightness or wrongness of the order complained of. That was a case arising under the Income-tax Act. That decision has no doubt been reversed on another point, vide - Union of India v. Elbridge Watson, AIR 1952 Cal 601 (Z21). In - Gabdoo v. S. Rajan, AIR 1953 Nag 1 (Z22), a writ was applied for in respect of an order passed by a member of the Board of Revenue in respect of proceedings taken under S.40, C.P. Tenancy Act. It was found that he had given way to extraneous considerations and exercised jurisdiction not vested in him by law under S.40, C.P. Tenancy Act. It was held that the High Court could issue a writ quashing the order not only because the order passed by hint was not in accordance with law laid down in S.40 but also because he had exceeded the limited powers of second appeal conferred by S.33, Land Revenue Act. The last ground may probably be not fully acceptable but it shows how thin sometimes the line is between want of jurisdiction and the irregular exercise of it.

42. It is a well-known proposition of law that before a writ of certiorari can issue it must be shown that the authority which passed the order without jurisdiction or in excess of it or to violation of the principles of natural justice. The issue of such a writ or any other suitable writ which this Court can issue under Art.226 or order that it can make under Art.227 cannot, I think, be avoided by merely calling a particular order or action as in the nature of an executive order or action. Though some of the High Courts have expressed themselves to the contrary, acts which are purely executive in their nature that is depending upon the discretion of the authority making it, may not be amenable to correction by this Court. But I have no doubt that where the orders are passed or action is taken under a statute or an Act of the legislature by a Court or tribunal which is vested with the power to take and enforce decisions regarding the rights between rival parties who appear before the tribunal or between them and the State, their proceedings, orders and actions cannot be said to be "executive". They would really be in the nature of judicial or quasi-judicial proceedings and orders and where it is shown that the authority or tribunal has acted contrary to or has not observed the provisions of such Act or statute or has during the course of so doing not observed the rules of natural justice, I think this Court has ample jurisdiction to issue the necessary writs. There are various Acts under which the Government and Officers thereof who exercise executive acts also are called upon to decide rights between the parties and between the party and the State; e.g., under the Workmens Compensation Act, the Land Acquisition Act, the Religious Endowments Act, Motor Vehicles Act etc. While administering these Acts the members of Government and their officers are bound to observe and carry out the terms of the Acts governing these matters. This would not of course mean that any party who thinks that a wrong order has been passed under any of those statutes can come up to this Court and ask that it should convert itself into a Court of appeal sitting in judgment over such orders. If the authority had jurisdiction to pass those orders and those orders fell within the ambit of such jurisdiction and powers, the mere fact that the order is wrong in the opinion of this Court may not justify this Court to issue writs. But where jurisdiction is totally wanting or is not exercised or is exercised without reference or contrary to the statutes under which such jurisdiction is given I think this Court can and ought to interfere. The Constitution has, I think, laid onerous and responsible duty on this Court as on the Supreme Court under Arts. 226 and 227 and this Court is bound to take action in suitable cases under those Articles.

43. It has been pointed out in - Rex v. Electricity Commissioners, (1924) 1 KB 171 (204) (Z23), that the operation of writs which in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a Court of Justice has extended to control the proceedings of bodies which do not claim to be and would not be recognised as Courts of Justice; and that wherever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the Kings Bench Division exercised in these writs. The conditions laid down by Atkin, L.J., in - (1924) 1 KB 171 (Z23), are : (1) that the tribunal or body of persons should be vested with legal authority; (2) that the authority should determine questions affecting rights of persons; (3) that in determining these questions the tribunal should be under a duty to act judicially and (4) that in determining those questions there should be excess of jurisdiction. I do not think it can be denied that a Minister of Government is, while exercising powers under the Land Revenue Code, vested with legal authority to determine questions affecting the rights of other persons; that while determining those questions that the Government is under a duty to act judicially also admits of no doubt. In - P. V. Rao v. Khushaldas S. Advani, AIR 1949 Bom 277 (Z24), Chagla, C.J., has stated what in his opinion was a judicial or quasi-judicial act as distinguished from a purely administrative or executive act thus: "In the first place, a duty must be cast by the Legislature upon the person or persons who is empowered to act to determine or decide some fact or facts. There must also be some lis or dispute resulting from there being two sides to the question he has to decide. There must be a proposal and an opposition. It must be necessary that he should have to weigh the pros and cons before he can come to a conclusion. He would also have to consider facts and circumstances bearing upon the subject. In other words, the duty cast must not only be to determine and decide a question, but there must also be a dirty to determine or decide that fact Judicially." That case went up in appeal to the Supreme Court and in - AIR 1950 SC 222 (N), Kania, C.J., defined judicial act as: "When the law under which the authority is making a decision, itself requires a judicial approach the decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an enquiry judicial, provided in coming to the decision the well-recognised principles of approach are required to be followed," and Fazl Ali, J., observed: "To act as a Court or a Judge necessarily involves giving an opportunity to the party who is to be affected by an order to make a representation, making some kind of inquiry, hearing and weighing evidence if any, and considering all the facts and circumstances bearing on the merits of a controversy, before any decision affecting the rights of one or more parties is arrived at. The procedure to be followed may not be as elaborate as in a Court of Law and it may be very summary, but it must contain the essential elements of judicial procedure as indicated by me." Dass, J., said that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other there is a lis and prima facie, and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially sad fee decision of the authority is a quasi-judicial act. This is so even if there are no two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it.

44. I fully agree with my learned brother Venkata Ramaiya, J. that these are cases in which this Court ought to issue a writ, writ of certiorari pointing out that the Government has or had no power to review its own order, and that any orders which they may have passed contrary to the same must be quashed.

45. A small piece of land was granted to the petitioner, who has filed C.P. No.155/51-52, for consideration by way of a darkhast sale in 1942 by the Revenue Commissioner and a seguvali chic was also issued. An appeal to the Revenue Commissioner by respondent 2 for himself and on behalf of the other villagers was dismissed. Respondent 2 and others appealed to Government and the Government by an order dated 22-2-1946 rejected their appeal. Three years later they filed a petition to Government for reviewing their order. That review petition was dismissed after hearing both parties and holding that the order already passed by Government was correct and there were no valid grounds to interfere with the same. Subsequently a second review application was filed and this was allowed and the grant was cancelled in September 1951. These earlier proceedings were all under the provisions of the Land Revenue Code conducted a long time back and the grant had become final. In the other two cases the grants were properly made under solemn agreements and in pursuance of the powers vested in Government and its responsible Revenue Officers under the Mysore Land Revenue Code and the rules thereunder and duly confirmed by the Government. Now they are sought to be cancelled on applications for review.

46. I think Art.33(1) of the Constitution of India also which lays (down that so person Shall be deprived of his property save by authority of law and that no property moveable or immoveable shall be taken possession of or acquired even for public purposes, without paying compensation, are clearly against the Government resuming the lands or disposing of them contrary to the original grants except in accordance with law. Order quashed. AIR 1953 MYSORE 167 (Vol. 40, C.N. 76) "Channegowda v. Nageshappa" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Channegowda, Plaintiff-Petitioner v. Nageshappa and others, Defendants-Respondents. Civil Revn. Petn. No.228 of 1952-53, D/- 17 -12 -1952. Civil P.C. (5 of 1908), S.35 and S.152 - COSTS - AMENDMENT - DECREE - Amendment of accidental slip or omission as to costs in decree. High Court in second appeal remanding case to trial Court, for fresh disposal with direction that costs of the appeal will abide the result - Trial Court decreeing plaintiffs suit with costs after remand - Decree not including costs of second appeal in the costs awarded in favour of plaintiff, though he was entitled to recover the same according to High Courts order - Failure to include such costs is an error arising from accidental slip or omission which may at any time be corrected by the Court either of its own motion or on fee application of any of the parties under S.152. (Paras 7, 8) Anno : C.P.C., S.35 N.7; S.152 N.3. Cases Referred : Chronological Paras (A) (16) AIR 1916 Mad 621 (1) : 39 Mad 476 (B) (01) 2 Bom LR 623: 25 Bom 230 (C) (24) AIR 1924 Bom 398 : 80 Ind Cas 263 (D) (26) AIR 1926 Bom 596 : 50 Bom 430 (E) (1900) 4 Cal WN 343 M.A. Gopalaswamy Iyengar, for Petitioner. Judgement The petitioner brought a suit in O.S. No.212 of 1944-45 for setting aside an order passed in an earlier miscellaneous case in the Court of the First Munsiff of Mysore who decreed it with costs. On appeal in R.A. No.84 of 1946-47 by the defendant the Subordinate Judge set-aside that decision and dismissed the plaintiffs suit with costs throughout. A second appeal was filed against that decision m S.A. No.23 of 47-48 and was heard by Venkata Ramaiya and Puttaraj Urs, JJ., They were of the opinion that the suit was to be disposed of afresh after passing orders on an application which had been made by the plaintiff for amendment of his plaint and after giving an opportunity to any other creditor to intervene in the suit. They therefore set aside the decrees of the Courts below and remanded the case to the trial Court for disposal. As regards costs they made a direction as follows "the costs of this appeal will abide the result". The suit ultimately ended in favour of the plaintiff and the Munsiff decreed it as prayed for with costs. That decision was confirmed in R.A. 21 of 49-50 by the Subordinate Judge who dismissed the appeal with costs and a second appeal thereon in S.A. 178/50-51 was dismissed without being admitted.

2. The plaintiff who found that the costs of the Second Appeal No.23 of 47-48 had not been included in his favour in the decree of the Munsiff applied under S.152, Civil P.C. for amendment of the same. That application was rejected by the present Munsiff of Mysore who held that the Munsiff whs tried and decided the suit was at liberty to award those costs or not to the plaintiff, and as he had not expressly directed in his judgment that the same should be included in the plaintiffs costs, the plaintiff could not claim that relief through an application for amendment. The plaintiff has come up in revision.

3. For the petitioner, it is contended by Sri M.A. Gopalaswamy Iyengar, his learned Counsel, that the learned Munsiff who tried the suit and passed a decree had awarded costs to the plaintiff; those costs must be deemed to mean and to include the costs incurred by the plaintiff in the second appeal which were directed by the High Court to abide the result. It was open to the learned Munsiff not to have awarded any costs at all to the plaintiff in which case the present, question would not have arisen but as he has not chosen to do so they must be taken to have been granted to him as a part and parcel of his costs.

4. It has been held in - Godavarthi Peria v. Godavarthi Lakshmidevamma, AIR 1916 Mad 621 (1) (A) that the words "abide the result" only connote that the order as to costs is to await the passing of the final decision in the case and have-not the effect of fettering the discretion of the trying Judge. The facts of that case were similar to the present case. There also the High Court had while remanding a civil miscellaneous appeal ordered "that the costs shall abide the result". On. the rehearing the trying Court refused to award costs to the appellant who had succeeded before him. In a revision petition against that order it was contended before the High Court that the trial Judge was bound to award those costs to the successful party and had no jurisdiction to decide otherwise. It was held by the High Court that construction would have been correct only if the words had been "to abide and follow the event or follow the events" as in - Templeton v. Laurie, 25 Bom 230 (237) (B) and that the words abide the result only meant that the order as to costs is to await the passing of the final decision in the case. They observed that those words-broadly speaking were equivalent to the words "costs in the cause".

5. In - Jiwabhai Pitamberdas v. Tej Sama, AIR 1924 Bom 398 (C), while remanding the case to the lower Court for fresh disposal the High Court had directed that the costs of the proceeding in revision should be costs in the cause. The successful plaintiff to whom costs of the suit were ultimately awarded sought to include these costs also in his execution petition. The same were disallowed by the executing Court on the ground apparently that his predecessor who had passed the decree had refused to allow this item. It was held by Macleod, C.J. and Shah, J., that when an order had been made in the interlocutory proceeding that the costs will be costs in the cause and a decree was passed in favour of one side or the other for costs then those costs also must be taken as being included in the final order unless the Judge expressly excluded them. - 25 Bom 230 (B), merely lays down that the words will be costs in the cause in that context did not mean that the costs would inevitably follow the event but that those costs remained to be dealt with by the trying Court who had power to grant or refuse it to the successful party, a proposition which is not disputed in this case.

6. In - American Trading Co. v. Bird and Co., AIR 1926 Bom 595 (D) an order had been passed in the earlier stage of a suit while dealing with two applications one for examining a witness on commission and the other to examine another witness de bene esse that the costs incidental to those applications should be costs in the cause. The Judge who finally tried and disposed of the suit held that these costs should be borne not by the plaintiffs who had failed but by the defendants who he thought had raised some unreasonable pleas and in support of those pleas had examined the two witnesses in question. It was held by Macleod, C.J., and Coyajee, J., that the trial Judge had no power to do so thereby interfering with the effect of the earlier order whereby those costs became a part of the general costs of the action to which the successful defendants were held entitled. They observed that if he had, for any special reason, disallowed the defendants the whole costs of the action altogether they could have been properly deprived of this item also; but as matters stood those costs must be taken to be included in the general costs of the action and the defendants were entitled to recover them. In - Fani Bhusan v. Bama Sundari Debi, 4 Cal WN 343 (E) the appellate Court after setting aside the decree of the lower Court remanded the case and the order as to costs was "costs will abide the result". The amount of the costs were specified in the decree of the appellate Court but the decree necessarily left it undetermined as to which of the parties was to pay it and to whom. It was contended that it could not therefore be executed by the party who had ultimately succeeded after and as a result of the remand; it was held that if the result of the remand was entirely in favour of the successful party he was entitled as a matter of course to the costs in question, even if the decree of the lower Courts after remand did not contain any such direction. This case strongly supports the petitioner.

7. In the present case also there is a memorandum of costs attached to the judgment of this Court in the second appeal and the petitioner who was the appellant is shown to have incurred Rs.160-15-0 and the respondent Rs.14-0-0. The incidence of those costs were to abide the result and according to the result the plaintiff would be entitled to recover them with the rest of the costs of the suit which have been awarded to him as a result of his success in the suit.

8. Any other construction would deprive the petitioner needlessly of the costs lie is clearly entitled to recover from the respondent in the circumstances of this litigation. I see no reason why any such unreasonable effect should be given to an omission by a mere oversight to refer to this item in the judgment and decree of the trial Court and which is capable of being corrected under S.152, Civil P.C., as an error arising from an accidental slip or omission which may at any time be corrected by the Court either of its own motion or on the application of any of the parties.

9. In the result this petition is allowed. The decree of the learned Munsiff will be amended as prayed for. The respondents win pay petitioners costs (Advocates fee Rs.15/-). Petition allowed. 1952 AIR (39) 1952 MYSORE 1 (C. N. 1) "Basave Gowda v. Basave Gowda" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND MALLAPPA, JJ. ( Division Bench ) Basave Gowda, Appellant v. Basave Gowda and others, Respondents. Second Appeal No. 295 of 1950-51, D/- 3 -7 -1951. Limitation Act (9 of 1908), Art.126, Art.44 - LIMITATION - Alienation by father as guardian of his sons - Suit by sons to set aside alienation - Art.126 applies and not Art.44. To a suit brought by the sons to set aside alienation by the father, who has executed the sale deed for himself and as guardian of his minor sons, Art. 126 applies and not Art. 44 on the principle that a general article does not govern when there is a particular article which covers the case. AIR (2)1915 Cal 681; AIR (5) 1918 Mad 178; AIR (12) 1925 Mad 793, Rel. on. AIR (22) 1935 Mad 1 Disting. (Para 1) Anno : Lim. Act, Art. 44, N. 6; Art. 126, N. 5. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases). (15) 42 Cal 85 : (AIR (2) 1915 Cal 681) 1 (18) 44 Ind Cas 605 : (AIR (5) 1918 Mad 178) 1 (25) AIR (12) 1925 Mad 793 : (86 Ind Cas 234) 1 (35) AIR (22) 1935 Mad 1 : (154 Ind Cas 616) 1 E. Kanakasabhapathy, for Appellant, Maloor Subba Rao, for Respondents Nos. 1 and 2. Judgement VENKATA RAMAIYA, J. :- This appeal was admitted to consider only a question of limitation which, though not advanced in the pleadings or the Courts below, is said to arise from facts about which there is no dispute and to be a manifest bar to the suit. The suit was to set aside alienations by the father in favour of a stranger, the date of the sale being 17-8-1936 more than 3 years prior to suit but within 12 years therefrom. The trial Court granted a decree to Plaintiffs and the decree is confirmed in appeal. The contention on behalf of the Appellant who is the alienee is that the suit is barred by virtue of Art. 44 of the Limitation Act as it prescribes a period of only 3 years from the date the ward attains majority for suits by wards to set aside transfers of property by the guardian. Sri Kanakasabhapathy argues that inasmuch as the sale deed in favour of the Appellant purports to be executed by the father not merely on his behalf but as guardian of the minor sons, who are now the plaintiffs, and they want the sale to be set aside Art. 44 applies to the case. The sale deed no doubt recites that it was so executed by the father but it is not clear whether the father admitted execution of the document in the capacity of a guardian before the Sub-Registrar. This is not, however, of any consequence as the Article properly applicable to the case is Art. 128 even if the sale is held to be effected by the father as guardian of the plaintiffs. That Article provides a period of 12 years from the date the alienee takes possession of the property for a suit by a Hindu governed by the law of Mitakshara to set aside alienation by the father of ancestral property. The suit in the present case is exactly of the kind mentioned in that Article and the words in columns thereof clearly apply to it. Comparatively the words in Art. 44 are general as the guardian whose transfer is to be set aside may be the parent or any other but Art. 126 refers in particular only to alienation by the father. It is an established rule as observed by Jenkins, C.J., in Madras Steam Navigation Co. Ltd. v. Shalimar Works, Ltd., 42 Cal 85 "that a general article does not govern when there is a particular article which covers the case". Even if Art. 44 is construed as being wide enough to include the present case, the Plaintiffs are entitled to the benefit of Art. 126 as according to the terms thereof the case directly falls under it and the article which keeps alive the right to sue has to be preferred to that which bars it. Ankamma v. Kameswaramma, AIR (22) 1935 Mad 1 cited by the Appellants counsel is distinguishable as the alienation sought to be set aside was that of the mother acting as guardian of the plaintiff and not as in this case that of the father who besides having an interest of his own, has power of a manager with respect to ancestral property. The cases directly in point are Ganesa Aiyar v. Amirthasami Odayar, 44 Ind Cas 605 (Mad), and Veerasami Naidu v. Sivagurunatha Pillai, AIR (12) 1925 Mad 793. In the latter case Devadoss, J., observed as follows : "The next point sought to be raised by the vakil for the appellants is that the suit is governed by Art. 44 of the Limitation Act. This is rather a novel contention inasmuch as the plaintiff and defendants 1 to 4 were members of a joint Hindu family and the plaintiffs suit is a suit for partition and in the course of the partition he asked for setting aside the alienation of some properties which had been alienated by the managing member of the family. The argument for the appellants is that document IV purports to have been executed on behalf of the plaintiff as well and mere description as guardian of the plaintiff would not at all make him a guardian within the meaning of Article 44 of the Limitation Act.......The Plaintiff as a member of a joint family has got a period of 12 years for challenging any alienation made by the managing member of the family whether he lived with him or not is immaterial". The other case decided by a Division Bench (Sir John Wallace, C.J. and Kumaraswami Sastry, J.) has the following head note : "The fact that a Hindu father executes a sale-deed as guardian of his son will not take the case out of Art. 126 of the Limitation Act and bring it under Art. 44 which applies to cases where property belonging to a minor is transferred by his guardian". The objection to the suit on the ground of limitation fails as it is in our opinion governed by Art. 126, Limitation Act, and filed within the period of time prescribed therein. No other point was pressed for consideration. The appeal is dismissed but without costs. Appeal dismissed. AIR (39) 1952 MYSORE 2 (C. N. 2) "Madhu Rao v. Subbaraya" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Madhu Rao, Plaintiff-Petitioner v. Subbaraya, Defendant-Respondent. Civil Revn. Petn. No. 468 of 1950-51, D/- 4 -10 -1951. Mysore Agriculturists Relief Act (18 of 1928), S.1(2) - DEBT RELIEF - Debt Laws - Defendant residing in village outside Mysore - Village becoming part of Mysore under Provinces and States (Absorption of Enclaves) Order, 1950 - Defendant whether entitled to claim relief under the Act. The village in which the defendant was residing was outside Mysore State, though it became part of the Mysore State before the suit was filed, under the provisions of the Provinces and States (Absorption of Enclaves) Order, 1950. The suit transaction took place within six years from the date on which the Agriculturists Relief Act was extended to the village in which the defendant ordinarily engaged himself in agriculture. It was admitted that the defendant was a person ordinarily engaged in agriculture and that his income was about Rs. 500/- to Rs. 600/- per year. The lower Court held that the defendant was entitled to claim the reliefs under the Mysore Agriculturists Relief Act. it was argued in revision before High Court that it cannot be said that the Agriculturists Relief Act was applicable to the defendant as in the first place, the Agriculturists Relief Act had not been extended by notification in official gazette by the Government to the village in which the defendant resided though it formed part of Mysore State, and secondly that before a person could be said to be an agriculturist within the meaning of the Agriculturists Relief Act, he should not only be a person who ordinarily engages in agriculture in the area to which the Act had been extended at the time of the suit transaction, but also should be an agriculturist as defined in the Act at the time of the suit transaction. Held (1) that the Mysore Agriculturists Relief Act was in force in the absorbing unit and as such under S. 8 of the Provinces and States (Absorption of Enclaves) Order, 1950, it was extended to and had been in force in the village in question. (Para 3) (2) that in certain cases the second condition laid down in explanation (b) of the definition of the word "Agriculturist" need not be applied before a person could be said to be an agriculturist. The lower Court was, therefore, right in holding that the defendant was an agriculturist entitled to reliefs under the Mysore Agriculturists Relief Act. (Paras 4, 5) Nittoor Srinivasa Rao, for Petitioner; M.P. Somasekhara Rao, for Respondent. Judgement This is a revision petition against the order of the Munsiff, Sagar, in O.S. No. 121 of 50-51 on the file of his Court holding that the defendant is entitled to claim the reliefs under the Mysore Agriculturists Relief Act.

2. It was admitted that the defendant was a person ordinarily engaged in agriculture and that his income is about Rs. 500/- to Rs. 600/- per year. But it was contended that he cannot be said to be a person ordinarily engaged in agriculture in the area to which this regulation applies for the time being or at the time of the suit transaction, as the village in which the defendant was residing was outside Mysore State, though it became part of the Mysore State before the suit was filed, under the provisions of the Provinces and States (Absorption of Enclaves) Order 1950.

3. It was argued that it cannot be said that the Agriculturists Relief Act is applicable to the defendant as in the first place, the Agriculturists Relief Act has not been extended by notification in the official gazette by the Government to the village in which the defendant resides though now it forms part of Mysore State, and secondly that even otherwise he cannot be said to be a person engaged in agriculture in the area to which this Act applies for the time being or at the time of the suit transaction. As regards the first point it is no doubt true that the Agriculturists Relief Act can only come into operation after it is extended by notification of Government in the Official Gazette as stated in para 2 of S. 1 of the Agriculturist Relief Act. The Act, however, had been extended to the whole of Mysore State by notification of Government in the Official Gazette by the time the village in question became part of Mysore. Under Section 8 of the Provinces and States (Absorption of Enclaves) Order 1950, "All laws in force in an enclave immediately before the appointed day shall, as from that day, cease to be in force in that enclave, and all laws in force in the absorbing unit shall, as from that day, extend to, and be in force in, that enclave :" It will be noticed that the Mysore Agriculturists Relief Act was in force in the absorbing unit and as such under S. 8 of the Provinces and States (Absorption of Enclaves) Order, 1950, it was extended to and has been in force in the village in question. This was published in the Mysore Gazette for general information by order of His Highness the Maharaja of Mysore. There is, therefore, no substance in the contention that the Agriculturists Relief Act has not been extended to the area within which the defendant has been residing.

4. As regards the contention of the Petitioner that before a person could be said to be an agriculturist within the meaning of the Agriculturists Relief Act, he should not only be a person who ordinarily engages in agriculture in the area to which the Act has been extended at the time of the suit transaction, but also should be an agriculturist as defined in the Act at the time of the suit transaction. Though at first sight it looks as if no exception could be made in respect of the two requirements referred to above, it is clear that in certain cases the second condition laid down in explanation (b) of the definition of the word "Agriculturist" need not be applied before a person could be said to be an agriculturist. For instance under Section 5 of the Agriculturists Relief Act, it has been provided that "Whenever it is alleged at any stage of any suit or proceeding to which an agriculturist is a party that any transaction in issue entered into, at any time within a period of six years before this Act is extended to the local area concerned, by such agriculturist or the person, if any, through whom he claims was a transaction of such a nature that the rights and liabilities of the parties thereunder......the Court shall, notwithstanding anything contained in S. 92, Indian Evidence Act, 1872, or in any other law for the time being in force......admit evidence of any oral agreement....". It will be noticed that this section refers to transaction which took place six years prior to the extension of the Agriculturists Relief Act. There is a similar provision in Section 8 of the Agriculturists Relief Act. It is thus clear that in some cases the Agriculturists Relief Act could not have been extended to the area in which at the time of the suit transaction the defendant was residing ordinarily engaged in agriculture. There is no conflict between Ss. 5 and 8, Agriculturists Relief Act and the definition as given in S. 2 of that Act, since S. 2 begins by stating that "In construing this Act unless there is something repugnant in the subject or context". In this case the suit transaction took place within six years from the date on which the Agriculturists Relief Act was extended to the village in which the defendant ordinarily engages himself in agriculture by virtue of Section 8 of the Enclaves Order referred to above.

5. The lower Court was, therefore, right in holding that the defendant is an agriculturist entitled to reliefs under the Mysore Agriculturists Relief Act. The revision petition stands, therefore, dismissed. No order as to costs. Revision dismissed. AIR (39) 1952 MYSORE 3 (C. N. 3) "Venkategowda v. Basavagowda" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND MALLAPPA, JJ. ( Division Bench ) Venkategowda, Appellant v. Basavagowda and others, Respondents. Second Appeal No. 88 of 1948-49, D/- 14 -9 -1951. Civil P.C. (5 of 1908), S.47 and S.38 - EXECUTION - MORTGAGE - DECREE - Mortgage decree against elder brother as manager of joint family - Question as to binding character of decree on younger brother, not party to suit, if can be gone into in execution - Powers of executing Court. Where in a suit on the basis of a hypothecation bond ft decree for recovery of the money by sale of the hypothecated property is passed against the elder brother as manager of a joint family and the decree is sought to be executed by sale of the property in the hands of the younger brother who was not a party to the suit, after the death of the elder brother, the executing Court has no power to entertain an objection of the younger brother that the decree is not binding on his share of the property for want of legal necessity for the debt. Such a question is not one relating to execution, discharge or satisfaction of the decree and must be decided by way of a separate suit. The executing Court has to execute the decree as it stands and has no power to vary or alter it. Where the decree is unambiguous, valid and executable the executing Court cannot start an enquiry as to the liability of persons not parties to the decree as it is beyond the province of the executing Court to determine the scope of the decree. (Paras 4, 5) Anno : C. P. C., S. 38, N. 8; S. 47, N. 47a. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases). (34) AIR (21) 1934 Lah 438 : (15 Lah 772) 4 (39) AIR (26) 1939 Mad 867 : (ILR (1940) Mad 123) 4 (41) AIR (28) 1941 Mad 898 : (ILR (1942) Mad 271 FB) 4 S.P. Shamanna, for Appellant; V. Krishnamurthi, for Respondents. Judgement This appeal arises from an application filed by Appellant under Section 47, Civil Procedure Code, for an order that he is not liable and his properties should not be proceeded against for recovery of money due under a decree passed against his brother on the fact of a hypothecation bond. Subsequent to the decree, the Appellants brother died and thereupon his sons and the appellant were brought on record as legal representatives in Execution Case No. 666 of 1934-35. The Appellant objected to his being treated as a legal representative but the objection was overruled by the Executing Court and the order of the Executing Court was confirmed in appeal with a remark that the binding nature of the debt should be established in order to render Appellants share in the mortgaged properties liable. In the application filed by Appellant it is alleged that the decree is not binding on him as it related to a debt which was not for family benefit or legal necessity. The decree-holder contended that the application is not maintainable, that Appellant is bound by the decree as it was passed in a suit filed against his brother as manager and representative of the family and the debt was incurred for the needs of the family.

2. On a consideration of the evidence adduced by the parties, the learned Munsiff held that to the extent of Rs. 616 the debt is binding on Appellant and that his half share in the properties is liable for payment of this sum with interest at 9 per cent from 25-1-1928 (the date of the hypothecation deed) up to 19-5-1932 when the suit was filed, with proportionate costs and current interest. The appeal against this order proved unsuccessful. Hence this second appeal.

3. It is not now disputed that the Appellant and his deceased brother were members of a joint family to which the properties subject to the hypothecation belonged and that Appellant is entitled to a half share in the said properties. The decree under which the properties are to be sold for realisation of the amount due to respondent was passed ex parte as seen from the copy, Exhibit II.

4. Both the Courts have assumed that the executing Court has jurisdiction to determine that the Appellant though not a party to the suit is bound by the decree passed thereon to a certain extent. The objection raised by the decree-holder in his statement that the petition is not maintainable and the matters referred to are such as should be decided in a regular suit, is ignored and the circumstances bearing on the element of necessity or binding nature of the debt are alone noticed in disposing of the application. The correctness or otherwise of the finding about Appellants liability would arise for consideration if the Court executing the decree has power to decide it and not otherwise. Section 47 of the Code of Civil Procedure under which the application is filed and under which it can, if at all, be sustained states : "All questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit..........." (the rest of the section is not material.) Obviously the question whether the Appellants share in the mortgaged properties can be proceeded against for recovery of the amount due under the decree is not one relating to discharge or satisfaction of the decree and the doubt can arise only about its being one relating to execution. The Appellant has been treated by an order of the Court as a representative of the judgment-debtor. Section 50 provides that where the judgment-debtor dies before the decree has been fully satisfied, the decree may be executed against the legal representative of the deceased and limits the liability of the legal representative to the extent of the property of the deceased which has come to his hands. According to S. 53 property in the hands of a son or other descendant which is liable under Hindu Law for the payment of the debt of a deceased ancestor in respect of which a decree has been passed shall be deemed to be the property of the deceased which has come to the hands of the son or other descendant as his legal representative. These sections do not apply as the decree is one passed under O. 34, C.P.C., specifying the properties by sale of which the amount is to be realised and execution of the decree does not require or depend upon the ascertainment of the property of the deceased in the hands of the Appellant. The Appellant not being a son or descendant of the deceased is not liable under Hindu Law for payment of his debts and as such property in his possession cannot be deemed to be the property of the deceased. It is well settled that the executing Court has to execute the decree as it stands and has no power to vary or alter it. There is no ambiguity in the decree and no suggestion of its being a nullity or inexecutable as it stands. The liability of Appellants share in the properties which is in contest would depend on the factum and nature of the debt which are to be made out by the Respondent to be such as to bind the Appellant. The Appellant could have been made a party to the suit and the question of his liability adjudicated upon. The ownership of the property is not in controversy as it is admitted that it is all joint family property. When this was not done, for whatever reason it be, and there is no difficulty to execute the decree as it is the executing Court cannot start an inquiry into these matters only because the judgment-debtor died subsequent to the decree and decide the contentions of persons who were not parties to the suit as regards their liability as it is beyond the province of the executing Court to determine the scope of the decree. As observed in Lakshmadu v. Ramudu, AIR (26) 1939 Mad 867 : "Section 47, C.P.C., applies to matters which arise after a decree has been passed and not to those which were in existence even at the time when the suit was instituted." That was a case in which the sons impeached the mortgage effected by their father in a suit instituted by them after the mortgage was sued upon and decree obtained by the mortgagee in proceedings to which the sons were not parties. In Shiv Das Singh v. Karam Chand and Sons, AIR (21) 1934 Lah 438 on the death of the mortgagor after the decree was passed the son as legal representative raised the objection that the mortgage by the father was not supported by legal necessity. The objection was held to be untenable as it related not to the executability but propriety of the decree itself which has to be determined by a separate suit. In Hamid Gani v. Amma Sahib, AIR (28) 1941 Mad 898 (FB) the question whether a person brought on record in execution proceedings as legal representative of the judgment-debtor can establish his rights by a separate suit or whether he should have his claims to the property decided in execution proceedings was referred to a Full Bench. It was held that the claim has to be decided in a separate suit and not in execution proceedings.

5. The objection of the decree-holder to the maintainability of the petition has therefore to prevail and the Appellant has to seek the relief claimed in a separate suit. The orders of the Courts below are reversed and the application filed by the Appellant is dismissed. Parties will bear their own costs throughout. Order accordingly. AIR (39) 1952 MYSORE 4 (C. N. 4) "Venkategowda v. Appajigowda" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Venkategowda and others, Petitioners v. Appajigowda and others, Respondents. Criminal Revn. Petn. No. 423 of 1950-51, D/- 20 -9 -1951. (A) Criminal P.C. (5 of 1898), S.145(5) - LAND DISPUTE - Absence of parties - Cancellation of preliminary order - Validity. Under Section 145 (5) a Magistrate has power to drop the proceedings only when any of the parties show that no such dispute as is contemplated in S. 145 (1) exists or has existed. Hence, a magistrate acts illegally in dropping the proceedings on the mere ground that both the parties are absent when there is no material for him to hold that no such dispute as is mentioned in S. 145 (1) exists or existed. Where both the parties are absent the proper order to be passed would be one under S. 146 and not under S. 145 (5). 18 My CCR 104, Ref. (Para 6) Anno : Criminal P.C., S. 145, N. 48. (B) Criminal P.C. (5 of 1898), S.145 and S.146 - LAND DISPUTE - ATTACHMENT - MAGISTRATE - Procedure at inquiry - Powers and duties of magistrate. In a proceeding under Section 145, Criminal P.C., a Magistrate has no jurisdiction to issue a warrant to compel the attendance of a party in such proceeding. Similarly the section does not enable him to compel the parties to file written statements. He is, however, bound to issue a notice calling upon them to appear before Court and to file statements within time fixed by him. He may in proper cases give more time to file statements. The discretion to extend time must be exercised judicially. The parties however have no right under the section to obtain time, and to hold that the Magistrate cannot pass any order unless statements are filed would place the Magistrate under the mercy of the parties. If the parties do not appear or if they appear and do not file written statements within the time fixed or within such time as the Court in its discretion extends, nothing comes in the way of a Court passing an order straightaway under S. 146, Criminal P.C., as in such a case he is unable to satisfy himself as to which of the parties was in possession of the subject-matter of the dispute. He cannot, however, pass an order under S. 145, Criminal P.C., unless he has material to come to the conclusion that one of the parties is in possession on evidence taken by him, if such a course is found possible and feasible, though the parties have failed to file any statements and to adduce evidence. The proper procedure for a Magistrate, therefore, is to post the case for evidence and to record the evidence of all witnesses present on that day and in case all the witnesses are not examined to take up the case on the very next day and proceed to orders. It does not mean that no adjournment could be given to enable the parties to adduce evidence in proper cases. But considering the nature of the proceedings the Magistrate would do well to exercise the discretion in granting adjournments only in proper cases. If parties or any one of them do not appear before Court and adduce evidence even after having one or two chances, the Magistrate is at liberty to consider the evidence available and to pass an order under S. 145, Criminal P.C. However, if no evidence is forthcoming even after one or two chances are given, nothing comes in his way of passing an order under S. 146, Criminal P.C., since he is in such cases unable to satisfy himself as to which of the parties was in possession of the property in dispute. (Para 3) Anno : Criminal P. C., S. 145, N. 32 to 38; S. 146, N. 5. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases). (01) 5 Cal WN 71 3 (04) 31 Cal 685 3 (10) 5 Ind Cas 40 (2) : (14 Cal WN 80) 3, 5 (13) 40 Cal 105 : (13 Cri L Jour 486) 5

11 Mys L Jour 361 5

18 Mys CCR 104 6 (23) AIR (10) 1923 Pat 369 : (24 Cri L Jour 557) 3 C. Nagaraja Rao, for Petitioners. Gopivallabha Iyengar, for Respondents. (Nos. 1, 2, 5 and 16.) Judgement This is a revision petition against the order in Miscellaneous No. 16 of 47-48 dropping the proceedings under Section 145 Criminal Procedure Code, on the ground that both the parties are absent.

2. The proceedings were instituted on 18-11-1947 and it is in March 1951 that the proceedings were dropped on the ground referred to above. A perusal of the order sheet shows that the case was not taken up as the Judge was busy with other cases or for the reason that one or the other of the lawyers wanted an adjournment. It Is unfortunate that these proceedings were allowed to be dragged on for about three years and it is equally unfortunate that the learned Magistrate should have found a way of disposing of the case in a summary manner, particularly when the learned Magistrate had no jurisdiction to drop the proceedings under Section 145, Criminal P.C., as he has done.

3. This case is typical of a good number of cases under Section 145, Criminal P.C., that are pending for a number of years after preliminary orders under that section. Though the provision of law under this section is intended for quick disposal of such cases, the reason for the pendency of such cases for an unduly long time is partly due to the lack of understanding as to what the Court has to do when parties do not help in the quick disposal of cases of this nature. The decisions on the point are sometimes conflicting as can be seen in any commentary on the Code of Criminal Procedure under Section 145. Some decisions go to the length of holding that the Magistrate is bound to manage to record some evidence before any final order under Section 145, Criminal P.C., or under Section 146 could be passed though the parties may not have adduced any evidence. It is desirable to analyse Sections 145 and 146, Criminal P.C., and consider how the Magistrate has to proceed in case the parties fail to co-operate in the speedy disposal of cases of this nature. Section 145 is as follows : "(1) Whenever .......... a Magistrate of the First Class is satisfied ........that a dispute likely to cause a breach of the peace exists concerning any land ...... within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by Pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. (4) The Magistrate shall then........peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties at the date of the order before mentioned in such possession of the said subject : (5) Nothing in this section shall preclude any party...... from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order. (9) The Magistrate may, if he thinks fit,........ issue a summons to any witness directing him to attend or to produce any document or thing." Section 146 states that "If the Magistrate .... is unable to satisfy himself as to which of them was then in possession of the subject-matter of dispute he may attach it. In the first place it will be noticed that the Magistrate shall in the preliminary order in writing state the grounds for being satisfied that a dispute is likely to cause a breach of the peace exists and shall require the parties concerned in such dispute to attend his Court in person or by Pleader, within a time to be fixed by him and to put in written statements of their respective claims. Supposing the parties do not appear before the Court at all, has the Magistrate power to compel the attendance of parties? As observed in the case reported in Kefatullah v. Feruzuddin, 5 Cal WN 71, the Magistrate has no jurisdiction to issue a warrant to compel the attendance of a party in such proceeding. Similarly the section does not enable him to compel the parties to file written statements. He is, however, bound to issue a notice calling upon them to appear before Court and to file statements within a time fixed by him. He may in proper cases give more time to file statements. The discretion to extend time must be exercised judicially. The parties however have no right under the section to obtain time and to hold that the Magistrate cannot pass any order unless statements are filed would place the Magistrate under the mercy of the parties. If the parties do not appear or if they appear and do not file written statements within time fixed or within such time as the Court in its discretion extends, nothing comes in the way of a Court passing an order straightaway under Section 146, Criminal P.C., as in such a case he is unable to satisfy himself as to which of the parties was in possession of the subject-matter of the dispute. He cannot, however, pass an order under Section 145, Criminal P.C., unless he has material to come to the conclusion that one of the parties is in possession on evidence taken by him, if such a course is found possible and feasible, though the parties have failed to file any statements and to adduce evidence. However, as observed in Bejoy Madhub v. Chandranath, 5 Ind Cas 40 (2) (Cal) : "In a case under Section 145 of the Criminal Procedure Code, neither party filed written statements or adduced any evidence, and an interval of more than two months had elapsed from the date of the initiation of the proceedings, and the Magistrate attached the land in dispute under Section 146 : Held : that the order was not without jurisdiction." But if only one of the parties files a written statement and the other does not within the time fixed by the Magistrate and the parties or at least one of them are ready to adduce evidence nothing comes in the way of the Magistrate in proceeding with the case on the material available. All the Magistrate is bound to do is to issue a notice requiring the parties to appear before Court, to file their written statement and to adduce evidence. While he cannot refuse to take any written statements that may be filed by the parties, he is not bound to extend time for that purpose to enable them to do so. As observed in Ramjharia v. Piar Koeri, AIR (10) 1923 Pat 369 : "If a party fails to put in a written statement that would not take away the jurisdiction of the Magistrate to proceed with the case. The proceeding being properly initiated it was incumbent on the Magistrate to make the enquiry and to take such evidence as the parties offered irrespective of the fact that one or other of the party failed to put in a written statement. The Magistrate would not be justified in refusing to proceed with the case because the parties neglected to file a written statement on the date fixed; he has to take evidence, if offered by any of the parties and to decide the case upon such evidence." According to Section 145, Criminal P.C., if parties appeared and filed their written statements, the Magistrate shall then peruse the statement so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take further evidence, if any, as he thinks necessary and proceed to orders. It may be noticed that under Clause (1) of Section 145, Criminal P.C., the Magistrate may, if he thinks fit, issue summons to any witness directing him to produce any document. It is clear that while the Magistrate was bound to receive all such evidence as may be produced he cannot compel the paries to adduce evidence. While he can give reasonable adjournments, he is not bound to go on adjourning the case till both the parties close their cases. After all the proceedings under Section 145, Criminal P.C., are not intended to finally settle the disputes between the parties. This could be done only by the Civil Courts. In fact very often the order that is passed in the proceedings under Section 145, Criminal P.C., is by a Magistrate of the grade of a Subordinate Judge, while a suit concerning the dispute may be filed in the Court of a Munsiff. It is essential therefore that the case is intended to be disposed off quickly. It has been held in Manmatha Nath v. Baroda Prasad, 31 Cal 685 : "Where in a proceeding under Section 145, Criminal P.C., the trying Magistrate refused to examine certain witnesses on behalf of one of the parties, who were present in Court, held Magistrates refusal is in direct contravention of the provision of law contained in Clause (?) Section 145 of the Criminal P.C., which says that the Magistrate shall receive the evidence produced." But in that decision it was equally observed : "This is not a case in which the Magistrate in the exercise of his discretion declined to grant an adjournment to enable a party to produce evidence after he has already had an opportunity of doing so." The proper procedure for a Magistrate, therefore. is to post the case for evidence and to record the evidence of all witnesses present on that day and in case all the witnesses are not examined to take up the case on the very next day and proceed to orders. It does not mean that no adjournment could be given to enable the parties to adduce evidence in proper cases. But considering the nature of the proceedings the Magistrate would do well to exercise the discretion in granting adjournments only in proper cases. If parties or any one of them do not appear before Court and adduce evidence even after having one or two chances, the Magistrate is at liberty to consider the evidence available and to pass an order under Section 145 Criminal P.C. However, if no evidence is forthcoming even after one or two chances are given, nothing comes in his way of passing an order under Section 146, Criminal P. C., since he is in such cases unable to satisfy himself as to which of the parties was in possession of the property in dispute.

4. It is no doubt open to a Magistrate to examine some Court witnesses, if he has any material to think that any particular person is able to help him to decide who is in possession of the property. I do not think, there is anything in the section which compels the Magistrate to do so when he has no material to think that any particular person can help him. Section 145, Criminal P.C., Clause (4) enables the Magistrate to take such evidence as he thinks necessary, or but it does not cast an obligation on him to investigate the matter and get some kind of evidence even when the parties fail to do so. It will be noticed that Cl. (4) of Section 145, Criminal P.C., merely refers to his taking "further evidence (if any) as he thinks necessary." The words (if any) make it clear that he might do so in such cases in which he has material to say that it is necessary to do so.

5. At the same time it must be remembered that unless there is material for the Magistrate "if possible, to decide whether any or which of the parties was at the date of the order before mentioned in such possession of the said subject" he cannot pass an order under Section 145, Criminal P. C., merely because the parties are absent and have failed to adduce evidence. As observed by Ramachandra Rao, J., in 11 Mys L Jour 361 : "Where on the date on which a case has been posted for evidence, neither party appeared in Court, the Magistrate on perusal of the written statements filed by both the parties, declared the first party to be in possession; Held, that the Magistrate had no jurisdiction to pass an order under Section 145, Criminal P.C., without any evidence." The learned Judge has referred to a number of cases to support that an order under Section 145, Criminal P.C., cannot be passed without evidence. There can hardly be any doubt that it is so. It may however, be mentioned, that the decision in Sheobalak Rai v. Bhagwat Pandey, 40 Cal 105, referred to in that decision is not a case of an order passed under Section 145, Criminal P.C., which was under consideration in 11 Mys L Jour 361. In 40 Cal 105, Holmwood and Imam, JJ., were considering the propriety of a Magistrate having passed an order under Section 146, Criminal P.C., in a case where no evidence had been adduced by either of the parties. It was observed as follows : "The law lays that it is only if the Magistrate decides that none of the parties was then in such possession or is unable to satisfy himself as to which of them was in such possession, he can attach the property, and it is perfectly clear that he cannot say he is unable to satisfy himself if he has never made the slightest effort to do so. He had only to send a Kanungoe out to the spot and take his report, or send for the headman of the village and ask him what the facts were, he would have then fully armed himself with jurisdiction, but he did nothing of the kind, and the case can be clearly distinguished from Bejoy Madhub v. Chandranath, 14 Cal WN 80, where the Magistrate said that he was unable to satisfy himself. (2) He does not even say that he has had the slightest difficulty. His order is as follows : No evidence produced by either side, lands attached under Section 146. Whatever view, therefore, be taken of the rulings, that order is clearly incompetent and without jurisdiction." With great respect, I am inclined to think that the judicial officers are not bound to investigate and find out who is in possession of the property if the parties interested in doing so do not care to adduce evidence. In fact very often the Patels and the Shanbogues side one party or the other and to take the evidence of these witnesses without the cross-examination of the parties, might possibly be dangerous and no useful purpose could be served. As has already been pointed out, the words if any in Clause (4) of Section 145, Criminal P.C., make it clear that it is not obligatory on the part of the Magistrate to record evidence of witnesses that could be thought of by him. Clause 4 of Section 145 Criminal P.C., refers to his taking further evidence which makes it clear that the necessity to such evidence as might be suggested by him might arise only after the parties adduce some evidence. Judges are not prevented from examining Court witnesses in proper cases and the provisions made in Clause (4) of Section 145 Criminal P.C., is only analogous to this. It may be said here that I am inclined to think that it is with the idea of preventing Magistrates from holding roving enquiries in proceedings of this kind, that it is stated in Sections 145 and 146 Criminal P.C., that the Magistrate may, if possible, decide who is in possession of the property and if this is not possible, to attach the property under Section 146, Criminal P.C.

6. It is clear that in this case it was open to the learned Magistrate to have passed an order under Section 146, Criminal P.C. Considering that both the parties were absent that would have been a proper order which he had jurisdiction to pass, but the Magistrate acted illegally in dropping the proceedings on the ground that the parties were absent. This he can only do under Clause (5) of Section 145, Criminal P.C., that is, when any of the parties show that no such dispute as contemplated in Clause (1) of Section 145, Criminal P.C., exists or has existed. The observations of Rao Bahadur Krishna Rao, C.J., and Chandrasekhara Aiyar, J., in the case reported in 18 Mys CCR 104 are applicable to this case. "It is obvious from the particulars set forth above that none of the Magistrates through whose hands the case passed seems to have realised the gravity of the matter, and that in particular the Magistrate who handled it in its earlier stages showed an utter absence of a sense of his responsibility and a rooted unwillingness to tackle a matter, however grave, which might entail personal trouble and effort, that very seriously detract from his efficiency as a Magistrate. We are aware that Magistrates are as a rule somewhat dilatory in regard to proceedings under Chapter XII of the Criminal Procedure Code; and, as observed by the Sessions Judge, instances are not wanting where the lack of promptness on their part has led to bloodshed and other serious disorders. That no such untoward result has so far happened in the present case is a matter for which certainly neither of the Magistrates before whom it was pending can take any manner of credit. We take this opportunity of impressing upon all Magistrates competent to take action under Chapter XII the great importance of promptitude and decision in dealing with a class of cases in regard to which, as affecting the public security, the law has framed a special set of provisions.................................... But it is one thing to allow that a Magistrate is competent to stay proceedings if he has information from any source justifying such stay, and quite another thing to say that in the absence of adequate data of any kind a Magistrate may suspend an inquiry duly started with the passing of his preliminary order under Sub-section (1) and go about seeking to elicit information as to the chances of a possible cessation of the original state of things. Such a course is opposed to the spirit of Sub-section (5), which makes the preliminary order final unless the parties concerned or any other persons interested succeed in showing that no such dispute as aforesaid exists or has existed; and it will merely unduly protract the inquiry and defeat its real object, as illustrated by the facts of this case." It is clear that in this case the Magistrate was wrong in dropping the proceedings on the ground that both parties were absent, there being no material for him to hold that no such dispute as is mentioned in Section 145 Clause (1) exists or existed. The Revision Petition is allowed and the order of the learned Magistrate is set aside. The case will be restored to file and the learned Magistrate will dispose of the case very early in the light of the observations made above. Revision allowed. AIR (39) 1952 MYSORE 7 (C. N. 5) "Kapinipathi Rao v. Abdul Aziz Khan" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) R. Kapinipathi Rao, Plaintiff-Petitioner v. Abdul Aziz Khan, Defendant-Respondent. Civil Revn. Petn. No. 82 of 1951-52, D/- 4 -10 -1951. Civil P.C. (5 of 1908), O.9, R.4 - CIVIL PROCEDURE - REVISION - Notice to defendant - If necessary - Refusal to restore without notice - Revision. Unlike in the case of an application to set aside the dismissal of a suit under O. 9, R. 9, notice to the defendant is unnecessary for restoration of a suit under O. 9, R. 4. If the Court refuses to restore the suit under O. 9, R. 4, unless notice is sent to the defendant, the order will be set aside in revision. (Paras 3 and 5) Anno : C. P. C., O. 9, R. 4, N. 7, 9. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts, chronologically. List of foreign cases referred to comes after the Indian Cases).

15 Mys L Jour 20 4 (23) AIR (10) 1923 Oudh 55 (1) : (64 Ind Cas 767) 4 P.S. Deva Das, for Petitioner. Judgement This is a revision petition against the order passed by the District Judge, Bangalore, in Miscellaneous Case No. 144 of 50-51, on the file of his Court directing summons to be issued to the respondent in the case, before setting aside the order of dismissal.

2. Order IX, Civil Procedure Code contemplates dismissal of suits for four different reasons. In the first place under Rule 2 of Order IX, a suit may be dismissed on the day fixed in the summons for the appearance of the defendant where summons has not been served on the defendant in consequence of the failure of the plaintiff to pay Court-fee or postal charges chargeable for such service. Then a suit may be dismissed under Rule 3, when both plaintiff and defendant are absent. A suit may be dismissed under Rule 5 where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails for a period of three months fixed in such summons for the defendant to appear to apply for the issue of fresh summons. Lastly the suit may be dismissed under Rule 8, where the defendant appears and not the plaintiff on the date of hearing. As regards the remedy for the plaintiff in case of dismissal of a suit under the above provisions, it will be noticed that where a suit is dismissed under Rule 2 or 3, the plaintiff has the option of either filing a fresh suit within the period of limitation or apply for an order under Rule 4. Where the dismissal is under Rule 5 after a period of three months from the date fixed in the summons for the appearance of the defendant that the plaintiff has failed without good cause to apply for the issue of a fresh summons, the only remedy provided under this rule is the filing of a fresh suit subject to the law of limitation. Where, however, the dismissal is under Rule (8) when the defendant appears and not the plaintiff, unlike a dismissal of a suit under Rule 2 or 3 or 5, the plaintiff is precluded from filing a fresh suit in respect of the same cause of action. But he is entitled to file an application under Rule (9) for getting the ex parte decree set aside on the ground that he had sufficient cause for his non-appearance on the date of hearing.

3. There is however one distinction between cases in which an application is filed for setting aside the order of dismissal under Rules 2 and 3 and the order under Rule (8). It will be noticed that in the case of a dismissal under Rule (2) the defendant has not been served with summons at ail and in the case of Rule (3) the defendant like the plaintiff is absent. That is why, it is not provided that a notice should go to the defendant before the dismissal order passed either under Rule 2 or 3 is set aside. On the other hand, it will be noticed that when an application is filed under Rule (9) of Order IX for setting aside an order of dismissal passed under Rule (8) for the absence of the plaintiff when the defendant is present, it is provided under Sub-rule (2) of Rule (9) that no order shall be made under this rule unless notice of application has been served on the defendant. As against the absence of provisions for issue of notice before an ex parte order is set aside under Rule (4), it will also be noticed that an application to set aside the ex parte decree under Rule 13 cannot be set aside unless notice of the application has been served on the opposite party. The contrast in the two sets of provisions is significant. The learned District Judge is therefore wrong in insisting on the issue of a notice to the respondent when an application under Rule 4 of Order IX, Miscellaneous No. 144/50-51 was filed. The learned District Judge may if he is satisfied that there was sufficient cause for the petitioner not paying the Court-fee and the postal charges (if any) required within the time fixed before issue of summons, set aside his order, without notice to Respondent.

4. It is surprising that in spite of the fact that the decision in 15 Mys Law Jour 20 was cited before him, the learned District Judge has insisted upon the issue of a notice to the respondent. In Ramji Lal v. Kesheo Ram, AIR (10) 1923 Oudh 55 (1), relied on in the above case is also clear on the point that in the case of an application under Order IX, Rule 4, notice to the defendant is unnecessary. The learned District Judge has observed that the decision in 15 Mys L Jour 20", is not applicable to this case as it is a decision dealing with the disposal of a case under Order IX, Rule (3), while the disposal in this case is one under Order IX, Rule 2. It will be noticed that the provision of law under which an application to set aside an order under Rules 2 and 3 is to be filed is the same and the learned District Judge was wrong in making a distinction.

5. In the result the revision petition is allowed and the order of the learned District Judge directing that summons should be issued to the respondent in the case, before setting aside the order of dismissal is set aside. He has to set aside the ex parte order of dismissal, without notice to the respondent if he is satisfied that there was sufficient cause for the petitioner not paying the Court-fee and the postal charges (if any) required within the time fixed before issue of summons. Revision allowed. AIR (39) 1952 MYSORE 8 (C. N. 6) "Subbaraya v. Govt. of Mysore" MYSORE HIGH COURT Coram : 1 VENKATA RAMAIYA, J. ( Single Bench ) K. Subbaraya and another; Accused-Petitioners v. Government of Mysore. Criminal Revn. Petn. No. 282 of 1950-51, D/- 21 -2 -1951. (A) Mysore Movement of Timber (Control) Order (1948), Cl.5 - POSSESSION - WORDS AND PHRASES - EVIDENCE - "Possession" - Meaning of. Evidence Act (1 of 1872), S.106. To justify a charge and conviction under Cl. 5, the prosecution has to establish that not merely timber was found in the house of the accused but that it was in the possession of the accused and that such possession commenced more than 24 hours prior to the discovery. The burden of proof lies on the prosecution and S. 106, Evidence Act cannot be availed of against the accused. AIR (23) 1936 PC 169 and AIR (23) 1936 PC 289, Foll. (Para 3) If the timber is in possession of the accused even prior to the date of the Control Order the clause cannot apply as possession innocent and lawful at the time the Order came into force was not meant to be affected. 50 Mys HCR 368, Rel. on. (Para 3) If the timber was meant for the construction of a hospital and was merely placed in the house of the accused it cannot be said that the accused was in possession under Cl. 5. (Para 4) The mere existence of articles in a house occupied by some persons is not enough by itself to impute possession to all of them. Case law Rel. on. (Para 2) Anno : Evidence Act, S. 106, N. 1, 2. (B) Criminal P.C. (5 of 1898), S.439 - REVISION - Revn. against finding of fact. Though it is not the practice in revn. to disturb convictions based on appreciation of evidence when there has been a wrong approach to the case the accused are entitled to seek interference by H. C. for redress. (Para 2) Anno : Cr. P. C., S. 439, N. 15. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases). (36) AIR (23) 1936 PC 169 : (37 Cri L Jour 628) 3 (36) AIR (23) 1936 PC 289 : (37 Cri L Jour 963) 3 (33) AIR (20) 1933 All 437 : (34 Cri L Jour 930) 2 (44) AIR (31) 1944 Lah 339 : (46 Cri L Jour 1 FB) 2

50 Mys HCR 368 3 (41) AIR (28) 1941 Pat 383 : (42 Cri L Jour 293) 2 H.V. Narayana Rao, for Petitioners; Advocate-General, for the Govt. Judgement The two petnrs. and their nephew were tried by the Special First Class Mag. Sagar, on charges framed under Clauses 3, 5 and 6, Movement of Timber (Control) Order 1948, for having transported timber from the Soppinabetta forest for being in possession of the said timber and for having established a saw-pit without a permit for any of these on 30-10-1949. The petnrs. and their nephew, the 3rd accused, were all acquitted of the charge relating to the establishment of the saw-pit without a permit but convicted for contravention of Cl. 3 relating to unauthorised transport and sentenced to pay a fine of Rs. 200/-. They were also found guilty of being in possession of timber without a permit necessary under Cl. 5 and sentenced to pay a fine of Rs. 50/-. On appeal the nephew was acquitted of the offences under Cls. 3 and 5 but the conviction of petnrs. under Cl. 3 alone was set aside and that under Cl. 5 confirmed. It is contended that this is erroneous. Clause 5 of the Order which alone is now relevant for consideration reads as follows : "Any person who comes into possession of any timber hereafter mentioned (teak, rosewood, honne, nandi, habbahalasu) shall within twenty-four hours of coming into such possession, furnish to the D. F. O., concerned, the particulars required of the stock of which and the manner in which he has come into such possession." The case for the prosecution is that on 30-10-1949 timber of the total quantity of 166.51 C. Ft. was found in the house in which the petnrs. reside and that neither of the petnrs. had a permit to be in possession of the same. Since Cl. 5 expressly mentions that a permit was necessary only for timber of the specified kind or class and not for all timber the order of confiscation of the entire quantity is manifestly erroneous as a large portion of it is not governed by the Clause and to that extent the judgments of the Cts. below require modification.

2. From the evidence adduced by the prosecution and the petnrs. own statements, there can be no doubt some timber for possession of which permit was necessary but not obtained was found in the house on 30-10-1949. But this alone is not enough to justify a conviction. The prosecution has to establish that it was in the possession of the petnrs. and that such possession commenced more than 24 hours prior to the discovery. The learned Ses J., has referred to cases such as Ram Charan v. Emperor, AIR (20) 1933 All 437; Jay Mahto v. Emperor, AIR (28) 1941 Pat 383 and Queen Empress v. Sangam Lal, 15 All 129, to hold that mere existence of articles in a house occupied by some persons is not enough by itself to impute possession to all of them and on this view he acquitted the nephew of the petnrs. As regards the time at which petnrs. got possession of the timber he has observed that the burden of proof lies on the petnrs. under S. 106, Evidence Act. Though it is not the practice in revn. to disturb convictions based on appreciation of evidence, when there has been a wrong approach to the case and failure to apply to 2nd petnr. the considerations on which the 3rd accused was acquitted, I think that petnrs. are entitled to seek interference by this Ct. for redress. To the cases quoted by the learned Judge in support of his finding about the 3rd accused, I may add Emperor v. Santa Singh, AIR (31) 1944 Lah 339. That was a decision in a case under the Explosive Substances Act in which it is stated that "Section 106, Evidence Act, applies to cases similar to the cases given in the illustrations to that section and does not affect the onus of proving the guilt of an accused. That onus rests on the prosecution and is not shifted on to the accused by reason of that section. Section 106 cannot be used to strengthen the evidence for the prosecution. The prosecution must stand or fall on the evidence adduced by it and until a prima facie case is established by such evidence, the onus does not shift on to the accused." It was further held in that case that "the mere proof that an incriminating article is found in premises occupied by a number of persons does not in itself establish prima facie the guilt of any particular person or all of them jointly. That being so they cannot be called upon after such evidence to establish their innoncence." According to the evidence of the prosecution witnesses, it is only the 1st petnr. who produced the key of the room in which the timber was found and it is he and he alone who pointed out the place from which the timber is said to have been brought. There is nothing to show that petnr. 2 had any hand or part in this. He pleaded not guilty and alleged that the hospital Committee was in possession of the timber. Whether it is true or not, an inference that he was in possession of it cannot be drawn from his statement. There is thus nothing to warrant a distinction being made between accused 2 and accused 3. When an appreciable quantity of timber was stocked in a room every man living in the house must have known it. If that alone is the test, all including the ladies and servants would be liable. I do not think that the word "possession" can have such an extended application. In view of this petnr. 2 cannot be deemed to have been in possession of the timber although it was found in the house in which he happens to be a member.

3. To justify a charge under Cl. 5, it is necessary for the prosecution to make out that not merely that timber was found in the house of the petnrs. on 30-10-1949 but also that the petnrs. were in possession of it for more than 24 hours prior to it. The learned Ses. J., has observed that the evidence on this point is not clear, as according to some of the witnesses it was lying there for more than a year, some say that it was placed on the 29th and some others mentioned it to be on 30th. If it be on the 30th that the timber was kept in the room of the petnrs., they cannot be considered to have contravened the orders on that very day before the expiration of 24 hours. If, on the other hand, the version of some of the witnesses is believed, the timber must have been there even prior to the date of the Control Order, in which event also the Clause cannot apply as possession innocent and lawful at the time it came to force was not meant to be affected. A similar provision on the Silk Control Order was, in 50 Mys HCR 368 held to be inapplicable to cases in which a person was in possession of silk prior to the date of the order. The charge is not properly framed in the case as noticed by the Ses. J., as it merely states that accused were found in possession of timber on the 30th. What is forbidden is possession for more than 24 hours and since this is neither alleged nor proved satisfactorily, the conviction cannot be justified. It is a fundamental rule of Criminal Law that the burden of proof lies on the prosecution to establish the charge against the accused beyond reasonable doubt and no provision to apply a different principle to this case was referred to by the learned Advocate-General. I am unable to see how S. 106, Evidence Act can, as expressed by the learned Judge, be availed of against the accused. While no authority is cited in support of it, two cases reported in Atygalle v. The King, AIR (23) 1936 PC 169; and Stephen v. The King, AIR (23) 1936 PC 289 : are against such a view and these emphasize that the law does not cast on the accused the burden of proving that no crime is committed : statement of a Judge in the charge to the jury that the burden of proving certain facts which are within special knowledge of the accused (sic) does not correctly state the law and amounts to a misdirection. The Ses. J., was wrong in making use of S. 106, Evidence Act to hold the petnrs. guilty. The absence of definite evidence on the point must if at all enure to the benefit of the accused and cannot be of help to the prosecution. The Control Order places restrictions on the rights ordinarily exercised by persons in dealing with timber and it is incumbent on the prosecution to clearly show that there has been a violation of the conditions imposed therein. The provisions have to be interpreted strictly and if possible favourably to the accused.

4. Another circumstance which has not been appreciated is that there is enough evidence to probabilise the accuseds theory of the timber being kept in the house of the petnrs. for being used to construct a hospital. The prosecution witnesses 3 and 4 as well as the defence witnesses have testified to the formation of a committee to arrange for the construction of a hospital and the timber being collected by the residents of the locality. The evidence of P.Ws. 3 and 4 cannot be rejected because it was not even alleged in the trial Ct. that they had turned hostile. P.W. 4 has stated that the room was in possession of the hospital committee, the committee had asked the neighbouring villagers to give timber free of cost to the hospital, that on the day previous to the incident two persons brought some of the logs and put the same in the room. PW 3 has also said that there was no timber at all in the room on 29-10-50 and that the room wherefrom M. O. 1 and the other timber was got was being made use of by the hospital committee of Heggodu. D.W. 1, says that the 1st accused did not get the timber and that it belonged to the hospital committee. The evidence of the other D. Ws. also supports this version. The petnrs. disclaim any right of their own to the timber and their Counsel expressed consent to the entire quantity of timber seized in the case including that not liable to confiscation under Cl. 5 of the Order being given away for the construction of the hospital. If the timber was meant for the construction of the hospital and merely placed in the house of the accused for that purpose, it cannot be said that the petnrs. were in possession under Cl. 5 of the Order.

5. I, therefore, set aside the conviction and sentence of the petnrs. and acquit them. The fine, if paid, will be refunded. The timber seized in the case, however, will not be returned to them but be made available for construction of the hospital at Heggodu. Conviction set aside. AIR (39) 1952 MYSORE 10 (C. N. 7) "T. Alibi v. Govt. of Mysore" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) T. Alibi, Accused-Appellant v. Government of Mysore. Criminal Appeal No. 35 of 1950-51, D/- 7 -6 -1951. (A) Criminal P.C. (5 of 1898), S.423 - APPEAL - PLEA - PRIVATE DEFENCE - New plea - Plea of private defence. Penal Code (45 of 1860), S.96. Though the plea of private defence is not put forward by the accused in the lower Court there is nothing to prevent the High Court in appeal from giving the benefit of such a defence to the accused if the evidence supports it. Case law discussed. (Para 5) Anno : Cr. P.C., S. 423, N. 13, Penal Code, S. 96, N. 3. (B) Penal Code (45 of 1860), S.96, S.99 - PRIVATE DEFENCE - Extent of the right of private defence. The right of private defence under S. 96 is clearly qualified under S. 99 which lays down that right of private defence in no case extends to the inflicting of more harm than it is necessary for the purpose of defence. If merely during the course of a slight hand to hand scuffle with an unarmed person the accused pulled out his knife and stabbed the deceased it is very difficult to accept that he did so in the exercise of his right of private defence so as afford him the benefit of S. 96. (Paras 7, 8) Anno : Penal Code, S. 96, N. 1, 2, S. 99, N. 6. (C) Penal Code (45 of 1860), S.304 - CULPABLE HOMICIDE - SENTENCE REDUCTION - Sentence - Deceased with one more person going to accused to pick a quarrel and to teach him a lesson - Accused when attacked by deceased and the other person losing his power of calm reasoning and hitting out deceased with knife in his belt - Accused having neither intention to cause death nor such bodily injury as was likely to cause death - Attack by accused neither cruel nor brutal, much less pre-meditated - Sentence of five years rigorous imprisonment held severe and reduced to two years. (Para 9) Anno : Penal Code, S. 304, N. 6, 7, 8. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases). (24) AIR (11) 1924 All 645 : (26 Cri L Jour 501) 5 (19) AIR (6) 1919 Cal 439 : (20 Cri L Jour 661) 5 (22) AIR (9) 1922 Lah 314 : (22 Cri L Jour 507) 5 (38) 39 Cri L Jour 7 : (171 Ind Cas 906-Lah) 5 (15) AIR (2) 1915 Mad 532 : (15 Cri L Jour 710) 5 (27) AIR (14) 1927 Mad 97 : (27 Cri L Jour 1198) 5

9 Mys CCR 334 6

25 Mys CCR 161 6 Maloor Subba Rao, for Appellant, M.K. Srinivasa, Iyengar for Advocate-General, for the Govt. of Mysore. Judgement VASUDEVAMURTHY, J. :- The Appellant (accused) has been convicted by the Sessions Judge, Shimoga Division, in Shimoga Sessions Case No. 4/50-51 under Section 304 (2), I.P.C., and sentenced to rigorous imprisonment for five years. The charge against him was that he committed murder by intentionally or knowingly causing the death of one Mahomed, a brother-in-law of the accuseds brother. P.W. 1 and the deceased are said to have gone to Bhadravati on the night of 1-5-1950 to collect some debts said to be due to them by the accused, and when they demanded the same the accused is said to have got enraged; and consequently there was a quarrel between the deceased and the accused when the latter is said to have stabbed the deceased in the back with the knife M. O. 1 as a result of which Mahomed died very shortly thereafter.

2. That the accused was responsible for the knife injury on the deceased and for his death admits of very little doubt. In his statement both before the Committing Court and in the Sessions Court the accused has admitted his presence at the scene of occurrence and has stated that though P.W. 1 and the deceased beat him, he did not stab the deceased. P.W. 1 has given a detailed version of the occurrence. He has deposed that the accused remonstrated why both P.W. 1 and the deceased had gone to collect money from him, that after heated words there was a hand to hand fight between the deceased and the accused, that the deceased fell down and the accused took out a knife from the left side of his waist and hit the deceased in the back, that the deceased then got up and snatched the knife from the accused, that he himself went to separate them when the accused also hit him and kicked him, that two of his caste people took away the accused, that the deceased said he had lost much blood and asked the witness to take him to the hospital and inform the police and that after walking a few steps he passed away. It was suggested rather weakly that P. W. 1 himself might have killed the deceased, and some reliance was placed on some casual admission during the cross-examination of P.W. 6, wife of Mahomed, that P.W. 1 and her husband were not on cordial terms. It is possible that she merely meant thereby that they were not very friendly and that does not indicate any ill-feeling between them. It is very improbable that P.W. 1 and the deceased would have gone together on bicycle from Shimoga to Bhadravati between 8 and 11 p.m., that night if they were not friendly, and there is absolutely no motive suggested why P.W. 1 should kill his own brother-in-law.

3. P.Ws. 2, 3, 4 and 5 have corroborated P.W. 1 as regards the scuffle between the accused, and P.W. 2 has deposed that he also saw the accused stabbing the deceased on his back. P.W. 19, who was a resident of Bhadravati at the time of the occurrence, has stated that P.W. 1 and the deceased came to his shop at about 10 p.m., and asked for accused Alibi and that late in the evening he saw the deceased and the accused conversing and that subsequently Mahomed said that Alibi had stabbed him with a dagger. He has identified M. O. 1 and has stated that he had seen a knife similar to it in the accuseds shop though he cannot swear that it is the same as M. O. 1 and that it was being used to cut ropes.

4. All the three assessors have pronounced the accused guilty though the third has added that the accused might have done the act out of anger. We think, therefore, that the conclusion of the learned Sessions Judge that the accused was responsible for the death of Mahomed is correct.

5. Mr. Maloor Subba Rao, learned Counsel for the Appellant, contended that even if it is found that the accused was responsible for the death of Mahomed, the evidence clearly discloses that he must have acted in the exercise of his right of private defence and that he is therefore entitled to an acquittal. Such a plea was not put forward by the accused in the lower Court; but there is nothing to prevent this Court from giving the benefit of such a defence to the accused if the evidence supports it. In In re, Pachai Gounden, AIR (2) 1915 Mad 532 and In re Jogali Bhaigo AIR (14) 1927 Mad 97, the Madras High Court held that even if the accused does not specifically plead the right of private defence it is open to the Court to consider such plea if the prosecution evidence would support it. In Afiruddin Chakdar v. Emperor, AIR (6) 1919 Cal 439, the Calcutta High Court has held that it is open to an accused person to adopt a defence in the alternative such as that he was not present at the occurrence and did not strike the complainant but that if he did strike him he acted in self-defence. It was observed by Richardson, J., in that case that a plea in that form may not be very convincing, but nevertheless it was open to a prisoner to adopt such a defence in the alternative and if he cannot satisfy the jury that he did not strike the complainant but can satisfy them either by the cross-examination of the complainants witnesses or by adducing evidence on his own behalf, that in striking the complainant he acted in self-defence, then he is entitled to an acquittal. The Allahabad High Court has held in Kishenlal v. Emperor, AIR (11) 1924 All 645, that if the Court finds on the evidence before it that the accused acted in the exercise of his right of private defence, it is bound to take cognizance of that fact though such a right has not been pleaded. The Lahore High Court has also held that when there is evidence proving that a person accused of killing or injuring another acted in the exercise of the right of private defence, the Court ought not to ignore that evidence and convict the accused merely because the latter set up a different defence and denied having committed the assault. See Ghulam Rasul v. Emperor, AIR (9) 1922 Lah 314 and Ghulam Rasul v. Emperor, 39 Cri L Jour 7 (Lah). In 39 Cri L Jour 7 (Lah), the plea of the right of self-defence had apparently not been pleaded but nevertheless, Young, C.J., and Monroe, J., accepted the argument for the defence that the evidence for the prosecution itself supported such a claim and gave the benefit of it to the accused. See also Batanlals Law of Crimes, 16th Edition, pages 198-199.

6. The learned Advocate-General relied on a case reported in 25 Mys CCR 161, and contended that in Mysore the law in this matter has been laid down differently. But when we come to examine that case we, however, see that it does not lay down any such proposition. In that case it was found that the accused had stabbed P.W. 3 in his throat with a knife. The accused had totally denied the occurrence and urged in the alternative that he was himself being attacked by P. W. 3 and others and that in order to escape from his assailants he may have whipped out his pen-knife and slashed out indiscriminately with it and the blow may have fallen on P.W. 3. Their Lordships pointed out that the appellant did not set up any such defence but had put forward a plea entirely inconsistent with such a defence and denied having stabbed P.W. 3, and that being the case it was not open to a trial Court, much less to an appellate Court, to assume such a set of circumstances in accuseds defence. They refer to Section 105 of the Indian Evidence Act which lays down that the burden of proving that the case of an accuseds person comes within any of the exceptions in the Indian Penal Code or other law is upon him; and they go on to point out that "though of course if on the evidence for the prosecution it is clear that the accused acted in self-defence he will be entitled to an acquittal even without pleading self-defence." In their judgment their Lordships refer to an earlier case reported in 9 Mys CCR 334, where it was held that as the accused had neither pleaded nor proved before the Magistrate that he was acting in self-defence such a plea could not be admitted in revision. In the course of his judgment in 9 Mys CCR 334, Stanley, C.J., has, however, observed that We may, therefore, examine the evidence in this defence, his conviction should not be supported though he did not plead that he acted in self-defence. But in the present case, the petitioner, it is apparent, not only did not plead that he acted in self-defence but adduced false evidence to prove an alibi and no witnesses for prosecution or defence gave any evidence to prove that the petitioner acted in self-defence." We may, therefore, examine the evidence in this case to see how far it supports the accuseds plea of private defence under Section 96, IPC.

7. It must also be borne in mind that the right of private defence under Section 96 is clearly qualified under section 99, I.P.C., which lays down that right of private defence in no case extends to the inflicting of more harm than it is necessary for the purpose of defence. In the present case P.W. 1 has sought to make out that there was a scuffle between Mahomed and the accused and that when the deceased fell down the accused took out a knife and stabbed him. It may be that this witness is minimising the aggressiveness of Mahomed and of himself. P.W. 2 has deposed that the accused and the deceased were fighting with each other, the accused and the deceased falling down alternatively that the deceased cried out "Ayayyo" when the accused stabbed him with the knife. He has admitted in cross-examination that P.W. 1 and the deceased both fisted the accused and threw him down. P. W. 3 has stated that P.W. 1, the accused and another had "Guddat" that the accused had a "Chaku", that the deceased held out his own hand to seize the knife from the accused and that he saw blood on the back of the deceased. P.W. 4, has deposed that P.W. 1 and the accused and the deceased had Guddat or a fight and that at one time the accused was down and the deceased above and vice versa; P.W. 5 whose evidence is most favourable to the accused in this matter, has deposed that Alibi the accused had fallen down, that Mahomed was sitting above him, that Mahomed held the neck of the accused, that the accused cried out "Ayayyo" that P.W. 1 was kicking the accused, that no one rescued him and that P.W. 1 kicked on the head of the accused with his booted leg when the accused was lying down face upwards.

8. It is urged by Mr. Subba Rao that the accused has also been hurt showing that Mahomed himself also used violence on the accused and that when his throat was being pressed by the deceased who was sitting on him and he was being kicked by P.W. 1, the accused was justified in hitting out against the deceased in order to save himself. But when we come to see the evidence of P.W. 18, the Doctor who examined the accused shortly after the occurrence, we find that the accused had sustained no serious hurt at all. P.W. 18 has stated that the accused showed by signs that he had pain in the neck on account of squeezing and pain in the abdomen, that he saw merely a superficial abrasion irregular in shape " x " on the back of the upper part of the left forearm and that he did not see any external injury on the person of the accused. There were no wounds either on the head or on the neck to indicate that the deceased used any considerable violence against the accused. If merely during the course of a slight hand to hand scuffle with an unarmed person the accused pulled out his knife and stabbed the deceased it is very difficult to accept that he did so in the exercise of his right of private defence so as to afford him the benefit of Section 96 of the Indian Penal Code. Under Section 100, IPC., the right of private defence of the body extends under the restrictions mentioned in Section 99 to the voluntary causing of death only if the accused is the victim of an assault as may reasonably cause the apprehension in his mind that death or grievous hurt will otherwise be the consequence of such assault; and under Section 99 it is clear that the right of private defence in no case extends to the inflicting of more harm than it is necessary for the purpose of defence. Judging by these tests we think that it is impossible to hold that the accused is entitled to the benefit of Section 96, IPC., to enable him to escape the conviction under the latter part of Section 304, IPC.

9. Mr. Subba Rao has argued that the sentence of five years rigorous imprisonment imposed on the Appellant is very severe. We are inclined to agree with him. The circumstances under which the accused stabbed the deceased are rather peculiar. P.W. 1 and the deceased went and accosted the accused at 11 p.m., to repay some debt which he is said to have borrowed from them. It is very doubtful if really any money was owing to them or at least such as it is sought to be made out. The entries in Ex. P-1, P.W. 1s note book are not made in the regular course of business and appear to have been inserted subsequently. Though the amounts involved are fairly considerable, there is no document to evidence the loan and even the signature of the accused has not been taken in Ex. P-1. The deceased himself appears to have been convicted previously and was undergoing a term of imprisonment for 18 months, though it is not stated for what offence, and had been recently released from jail; and it is doubtful if such a man as the deceased would have made large advances. It looks therefore more probable that they went there to pick a quarrel with the accused and to teach him a lesson on account of some real or imaginary grievance. When he was attacked in the very late hour of the night by two persons who were quite young and equally vigorous as himself, it is possible that the accused lost his powers of calm reasoning and hit out against the deceased with a knife which he was apparently in the habit of carrying in his belt. The learned Sessions Judge himself has held in convicting the accused under the latter part of section 304, I.P.C., that he could not have had either the intention to cause death or such bodily injury as was likely to cause death. There was only a single wound on the deceased and the attack was neither cruel nor brutal much less premeditated. We are, therefore, inclined to reduce the sentence to two years rigorous imprisonment and we order accordingly.

10. Subject to the above modification in regard to sentence this appeal is dismissed. Sentence reduced. AIR (39) 1952 MYSORE 12 (C. N. 8) "Chaluvegowda v. Chennegowda" MYSORE HIGH COURT Coram : 2 BALAKRISHNAIYA AND B. VASUDEVAMURTHY, JJ. ( Division Bench ) Chaluvegowda, Plaintiff-Appellant v. Chennegowda and another, Defendants-Respondents. Second Appeal No. 587 of 1947-48, D/- 22 -12 -1950. (A) DEED - EXECUTION - Deed - Construction - Admission of execution before Sub-Registrar. Registration Act (16 of 1908), S.35. Where in the opening lines of a sale-deed executed by a lady to discharge a mortgage created by her she was described as executing the deed as guardian of her minor son but her signature was put in at the end without any such qualification and she admitted execution of the document before the Sub-Registrar. Held (i) that she could not question the sale-deed and say that it did not convey any of her title in the property. (Paras 4, 5, 6)

(ii) the legal effect of the admission before the Sub-Registrar was that the executant entered into obligation under the deed. (Para 8) Anno : Reg. Act, S. 35, N. 4. (B) Transfer of Property Act (4 of 1882), S.91, S.92 - MORTGAGE - Redemption by person not entitled to do so. A mortgagee cannot absolve himself from liability as mortgagee to the person who has the right to redeem having acquired that right by purchase from the mortgagor by allowing the mortgagor to redeem. In such a case decree for redemption against both the mortgagee and the mortgagor can be passed. (Para 9) Anno : T. P. Act, S. 91, N. 8, 32, S. 92, N. 16, 17 18. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases). (28) 55 Cal 532 : (AIR (15) 1928 PC 38) 8 (37) AIR (24) 1937 Mad 451 : (172 Ind Cas 47) 9

19 Mys HCR 255 6

16 Mys LJ 249 8 (1909) 25 TLR 478 7

V. Krishna Murthy, for Appellant; M.A. Gopalaswamy Iyengar, for Respondents. Judgement VASUDEVAMURTHY, J. :- The plaintiff sued for a declaration that he is the owner of the plaint schedule property and for possession and mesne profits after redemption from the mortgage with possession in favour of defendant 1. The learned Munsiff of Hunsur who tried the suit passed a decree in favour of the plaintiff. On appeal the learned Subordinate Judge of Mysore reversed the same; and hence this second appeal by the plaintiff.

2. It is the case of both the parties that the property in suit belonged to Chikkamma, mother of defendant 2. She alone mortgaged it with possession for a period of 10 years to defendant 1 for Rs. 100/- under Ex. I, dated 8-5-1933. Subsequently, according to the plaintiff, she and defendant 1 sold it to one Nanjappa Gowda along with some other properties under a sale-deed, dated 4-10-1943. Afterwards the latter sold the said properties to plaintiff under a registered sale-deed, dated 28-2-1945. After the expiry of the period fixed in the mortgage deed the plaintiff issued a notice on 6-7-1945 to defendant 1 offering to redeem and sent a money order for Rs. 100/- but defendant 1 refused to receive the amount and deliver up possession. The main plea of the defendants was that the property had not been validly conveyed by Chickkamma to Nanjappa Gowda and by him to the plaintiff, that defendant 2 had already paid the amount due to defendant 1 and redeemed him and that the plaintiff could not therefore seek to redeem him again as the mortgage had been satisfied. The defendants also questioned the genuineness of the sale-deed Ex. A. by Chikamma and defendant 1 in favour of Nanjappa Gowda and Ex. B. executed by the latter in favour of the plaintiff. Both the Courts have found against the defendants in this matter and those findings have become final.

3. The sale-deed Ex. A purports to be executed by defendant 1 and Chikkamma as guardian and mother of Chikkegowda, her minor second son (who is now reported to have died during his minority) for Rs. 400/- out of which Rs. 50/- was paid in cash and Rs. 350/- was to be retained by the purchaser to discharge three prior mortgage debts including the one due to defendant 1 and obtain possession of the suit property. The vendors declare that after the sale they have no right, title or interest whatever in the properties sold and agree to indemnify the purchaser in case of any disputes. The properties are described as having been got by Chikkamma through a will from her brother Javare Gowda and in the possession and enjoyment of the vendors. The deed, however, bears the L. T. mark of defendant 2 and the L. T. mark of Chikkamma. Both of them have appeared before the Sub-Registrar of Hunsur and admitted execution and the document has been duly registered.

4. It was contended for the defendants that Ex. A., has not been executed by Chikkamma for herself but only as guardian of her minor son and did not convey any of her title in favour of the purchaser. It is seen from Ex. A., that though in the opening lines of the document Chikkamma is described as executing the deed as guardian of her minor son, her L. T. Mark or signature is put in without any such qualification. There can be no doubt, the intention of the parties to Ex. A was to convey the properties to Nanjappa Gowda and not to execute a nominal or sham or illusory document with any ulterior motive. The title of Chikkamma, who in fact was their real and sole owner, was fully disclosed in the deed itself and there was an express representation by the executants including Chikkamma that they had no further right, title or interest in the properties sold. Chikkammas title was not reserved and indeed the document would have been probably worth nothing if it did not intend to convey all of Chikkammas rights. Chikkamma was throughout present and it is nobodys case that she was either unable or unwilling to execute the deed for herself also when she unreservedly put her L. T. mark to the document and afterwards admitted execution before the Sub-Registrar. In the circumstances it would be more reasonable to assume that Chikkamma executed Ex. A, for herself alone and that defendant 1 and her minor sons name were included in the deed merely by way of caution, to avoid any future claims by them. The previous mortgage deed, Ex. I, had been executed by Chikkamma alone and in the sale-deed Ex. A, the purchaser Nanjappa Gowda was asked to discharge that mortgage and therefore Chikkamma was necessarily bound to execute the sale-deed also. Even if in the opening portion of the sale-deed Chikkamma was not described as one of the executants, but if she did as a matter of fact execute it and admit execution, the legal consequences would follow and all her rights would be conveyed unless it was shown that she did so not in her individual capacity but only as guardian of her minor son.

5. Defendant 2 has duly executed the sale-deed and it does not lie in his mouth to impeach it when Chikkamma herself has not done so in any proceeding of her own. She could not do so either. She would be clearly estopped from setting up any title of her own so as to defeat the sale-deed which she has executed. She would in any event be deemed to have chosen to waive her own rights in the property in favour of Lakke Gowda and her second minor son by representing and dealing with the property as theirs exclusively while executing Ex. I. Her minor second son is also since dead and she would be his nearest heir in accordance with Hindu Law and as such she would be bound by the alienation she may have effected as his guardian. On that ground also she would not be entitled to question the sale-deed Ex. A.

6. It was argued that she was a necessary party to this suit. It is difficult to see how it is so as she had sold away the properties under Ex. A. The legal effect of such execution may also be considered. Mr. V. Krishnamurthi, the learned Advocate for the appellant, has referred to a case reported in 19 Mys HCR 255. In that case a sale-deed was executed by the mother and grandmother of two plaintiffs who were minors at the time. The deed recited that the land was in the possession and enjoyment of the two executants. The purpose of the sale was found to be for legal necessity and benefit binding on the minors. In a suit by the minors after attaining majority to recover possession of the property it was contended that the sale-deed could not bind them because it was not executed by the executants in their capacity as guardians. That contention was rejected by this Court. Wallace, J., in the course of his judgment observes that the sale-deed evidenced an alienation which could legally have been made by the actual executants only as guardian of the minors. "It is clear" he points out "that the parties to the document knew that they were dealing with the minors property and had no right to deal with it otherwise." And it was held "that the document must be interpreted in the light of those facts" and was binding on the minors though the document did not expressly purport to deal with the minors estate. That principle is clearly applicable to the present case even with greater force for, we are here dealing with a sale by a adult of her own property to discharge an earlier mortgage created by her and by giving effect to such an interpretation we are not likely to prejudice the rights of any one else.

7. In Landes v. Marques, (1909) 25 TLR 478, where a cheque drawn in favour of the plaintiff was stamped near the top with the words "B. Marques and Co., Ltd." and signed - B. Marques, Director, H.S. Davis, Director, it was held that the two Directors were personally liable on the cheque, the reason being that though the directors described themselves as directors they did not promise to pay on behalf of the company, and had merely signed the notes as directors without any addition to their signatures indicating that they signed for and on behalf of the company.

8. The legal effect of Chikkammas admission of execution before the Sub-Registrar may also be considered. In 16 Mys LJ 249, it has been held that the legal effect of the admission of execution before a Sub-Registrar is that the executant enters into obligation under it. In that case Puranchand v. Monmotho Nath, 55 Cal 532, has been referred to and relied on. In the latter case it was contended that the word "executing" in S. 35. Registration Act only meant actually signing. Their Lordships of the Privy Council rejected the contention observing : "Their Lordships cannot accept this. A document is executed when those who take benefits and obligations under it have put or have caused to be put their names to it. Hence the words "person executing" in the Act cannot be read merely as "person signing." They mean something more namely, the person who by a valid execution enters into obligation under the instrument. When the appearance referred to is for the purpose of admitting the execution already accomplished, there is nothing to prevent the executing person appearing either in person or by any authorised and competent attorney in order to make a valid admission. Their Lordships have failed to find in the scheme of the Act anything repugnant to this construction. Any other would involve risk of confusion and might even defeat the statutory procedure, etc."

9. It had also been contended for the respondents that the mortgage under Ex. 1 having been discharged by payment by defendant 2, there is now no mortgage in existence which the plaintiff can redeem and that his present suit for that purpose is infructuous. It must be remembered that the plaintiff has brought this suit not only for redemption but also for a declaration of his title and possession. He has impleaded as defendants both defendant 1, the mortgagee, and defendant 2, the person who is said to have redeemed him. In the view we have taken of the legal effect of Ex. A the plaintiff is the proper person who has the right to redeem having acquired the right by purchase from the owner and mortgagor Chikkamma. Defendant 2 had no right to do so and defendant 1 cannot absolve himself from liability as mortgagee if he allowed himself to be paid off and redeemed by some one who was not entitled to do so. The effect on the mortgage of such payment has been discussed fully Mootha Chettiam Veetilkelu v. Chekkara Cheppan, AIR (24) 1937 Mad 451 where it has been held : "that if a person believes in good faith that he is entitled to redeem the mortgage either under the belief that he is the mortgagor or that he has some other right in the property which would entitle him to redeem, he would be entitled to the rights of the mortgagee by way of subrogation or a like equitable principle. When a person who is not a mortgagor, under a mistaken claim, pays off a mortgage debt, he cannot extinguish it; for he has no right to do so. The only person who can extinguish the mortgage is the person who is entitled to redeem that mortgage and merge the mortgage in his own rights of mortgagor or mortgagee." In that case the parson who paid off the mortgage was held entitled to be surrogated to the rights of the mortgagee and to be redeemed by the plaintiff before he gave up possession. In the present case there are really no bona fides in the contact of defendant 2 and there is strong reason to think that he and defendant 1 are acting in collusion and we may be justified in refusing the benefit of such redemption to defendant 2. Defendant 1 has deposed that defendant 2 paid the mortgage-amount to him about 2 years ago. But he admits only after he is confronted with the postal acknowledgment Ex. F that he received a notice from the plaintiff on 17-3-44 and that he did not send any reply to it, that he informed defendant 2 and Chikkamma of the notice and that they offered to redeem the mortgage only afterwards and that he did not care to trouble himself about the rival claims and was content to receive the amount from any one. A mortgagee with possession could not so casually discharge himself from his duties and liabilities to the real owner. It is therefore, very doubtful if he has been redeemed at all and if he is not playing up defendant 2 against the plaintiff in order to remain in possession as long as possible. But as the plaintiff himself has offered to redeem by paying Rs. 100 and the learned Munsiff has passed a decree for redemption and possession against both the defendants, there is no need to consider that aspect of the matter.

10. We therefore, allow this appeal, set aside the judgment and decree of the subordinate Judge and restore those of the Munsiff with costs throughout. Appeal allowed. AIR (39) 1952 MYSORE 14 (C. N. 9) "Narayan v. Anjuman E. Islamia" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. and VASUDEVAMURTHY, J. ( Division Bench ) Narayan Krishnaji v. Anjuman E. Islamia. Regular Appeal No. 15 of 1948-49, D/- 7 -8 -1951. (A) Civil P.C. (5 of 1908), S.92 - CHARITABLE TRUST - TRUST - Suit for accounts and proper management - Defendants admitting themselves to be trustees of suit property - Defendants whether can deny right of public to ask Court to frame scheme. Where in a suit brought in a representative capacity after obtaining permission under S. 92 the defendants admit that the gymnasium and its properties are a public trust and that they are merely the managers of the institution, then they cannot plead adverse possession in respect of such properties or of such management and deny the right of the public to ask the Court to frame a scheme for a change in that management or for calling them to account in respect of such management. (Para 8) The primary duty of the civil Court in such a case is to consider the interest of the public for whose benefit the trust is created. The Courts have got large powers to frame schemes and appoint proper trustees in cases where trust property has been diverted from its proper purpose and the objects of the trust are not being carried out and the trustees or persons in management are not properly accounting for the realisations from the trust property : Case law referred. (Para 17) Anno : Civil P. C., S. 92, N. 21. (B) Limitation Act (9 of 1908), S.10 - LIMITATION - TRUST - Express trust - Defendants admitting themselves to be trustees whether can plead bar of limitation. In the absence of the Indian Trusts Act or some statutory provision corresponding to it in Mysore, the rules of equity which hold that a person who received money while in a fiduciary capacity to the person for whom he received it was to be treated as an express trustee in Mysore apply. Therefore, in a suit brought in a representative capacity under S. 92, Civil P. C., if the defendants admit that they are trustees and claim no beneficial ownership of the trust property, then either as express trustees or as trustees de son tort the defendants are liable to account and cannot set up the bar of limitation. To such a case S. 10, Limitation Act, applies as that section merely requires for its application that a property should have been vested in the defendant in trust for an express purpose : Case law referred. (Paras 11, 14, 16) Anno : Limitation Act, S. 10, N. 7, 17. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign oases referred to comes after the Indian Cases). (84) 6 All 1 : (10 Ind App 90 PC) 15 (11) 34 Mad 257 : (38 Ind App 129 PC) 17 (16) 43 Cal 1085 : (AIR (3) 1916 PC 132) 17 (22) AIR (9) 1922 PC 212 : (49 Ind App 37 PC) 18 (31) AIR (18) 1931 PC 9 : (8 Rang 645) 18 (34) AIR (21) 1934 PC 53 : (147 IC 882 PC) 17 (48) AIR (35) 1948 PC 214 : (51 Bom LR 1) 17 (48) AIR (35) 1948 PC 168 : (Pak LR (1949) Lah 1) 13 (05) 27 All 513 : (1905 All WN 69) 15 (24) 84 Ind Cas 631 : 47 All 17 : (AIR (11) 1924 All 884) 10, 12 (05) 29 Bom 267 : (7 Bom LR 45) 11 (08) 32 Bom 394 : (10 Bom LR 540) 16 (18) 46 Ind Cas 19 : (AIR (5) 1918 Bom 183) 10 (20) AIR (7) 1920 Cal 558 : (57 Ind Cas 805) 12 (24) AIR (11) 1924 Cal 160 : (74 IC 373) 12 (91) 14 Mad 153 15 (16) 39 Mad 700 : (AIR (4) 1917 Mad 551) 17 (21) AIR (8) 1921 Mad 125 : (44 Mad 277) 10 (22) AIR (9) 1922 Mad 57 : (45 Mad 415) 10 (22) AIR (9) 1922 Mad 394 : (69 Ind Cas 15) 13 (23) AIR (10) 1923 Mad 578 : (72 IC 842) 16 (41) AIR (28) 1941 Mad 841 : (200 IC 357) 16 (43) AIR (30) 1943 Mad 691 : (ILR (1944) Mad 284) 16 (37) 168 IC 593 : (AIR (24) 1937 Oudh 373) 12

53 Mys HCR 133 17

53 Mys HCR 167 17 (1849) 50 ER 1003 : (12 Beav 113) 17 (1893) 2 QB 390 : (69 LT 585) 16 A.R. Somanath Iyer, for Appellants; Mirle N. Lakshminaranappa, for Respondents. Judgement Vasudevamurthy, J. :- The suit out of which this appeal arises was filed by the plaintiffs in two capacities- (1) one under S. 92, Civil P. C., after obtaining the sanction of the Deputy Commissioner, Shimoga District, and (2) in a representative character under O. 1, R. 8, Civil P. C. After the suit was filed, the plaintiffs made an application to the Court under O. 1, R. 8, Civil P. C., and the Court ordered the publication of usual notices inviting the inhabitants of Shimoga town to join in the suit either as plaintiffs or as defendants.

2. The property involved in this litigation is a large piece of land situated in Shimoga Town in which there is a gymnasium or talimkhana and some shops on the edge of the open space abutting the road which belonged to the institution of Talimkhana. The property is apparently of considerable value as the land is situate in a prominent part of the Town of Shimoga and is capable of being largely developed for the benefit of the persons who may be interested in the growth of sports generally and of wrestling in particular. This property has been the subject of a longstanding litigation.

3. Though there are as many as nine defendants in the ease the suit was contested practically by defendants 1 and 9. Defendant 1 is the Anjuman E. Islamia, Shimoga, and is represented by its President and Secretary, defendants 2 and 9. Defendant 9 is said to be the present President of that institution. It has been stated before us that the Anjuman E. Islamia is a registered Association having a membership of some Muslims in Shimoga Town. It may be mentioned here that Plaintiff 6 is a Muslim while defendant 6 is a Hindu to avoid any suggestion that the suit is brought only by the Hindus of Shimoga town as was put forward somewhat weakly daring the course of the arguments. In fact, as already stated, the suit has been brought on behalf of the entire public of Shimoga town, both Hindus and Muslims, and the public of Shimoga town were allowed to support either the plaintiffs or the defendants by joining in the suit. The Muslims of Shimoga have not applied to join the suit as such.

4. The plaintiffs case is that the suit property forms a public charitable trust from time immemorial and was being used by the public of Shimoga, that the object of the institution was to train wrestlers and impart education in physical culture and for advancing the physical well being of all the inhabitants of Shimoga town, that the public of Shimoga town have therefore a right to manage the institution and to see to the proper application of its funds so that the management of the institution and the administration of its funds may be conducted properly. The shops attached to the gymnasium are said to be realising good rents and the plaintiffs complain that the defendants have not been maintaining proper accounts of the rent they collect that they are in fact not accounting to anybody, that they have been asserting rights contrary to the rights of the public institution by claiming an absolute right of management in themselves for and on behalf of only the Muslims of Shimoga, that they have allowed the gymnasium to fall into disrepair so that the buildings have become dilapidated and that they have stood in the way having a modern and upto date gymnasium erected on the spot so that it might be useful to the entire public of Shimoga.

5. The plea of the contesting defendants 1, 3 4, 5 and 7 to 9 is that the Muslims of Shimoga are the rightful managers of the institution and its properties in pursuance of the wishes of the founder of the institution, that ever since the formation of the Anjuman E. Islamia in 1919 the management of the institution and its property has been with defendant 1 exclusively and in their right, that the Muslims of Shimoga to start with and the Anjuman E Islamia since 1919 have been properly managing the institution and its properties keeping regular accounts, that no action was called for under S. 92, Civil P. C., and the suit is not competent under that section and is barred by time, that it is the plaintiffs and their party who prevented the defendants attempt to have the gymnasium properly constructed in its place, that defendant l was always ready and willing to keep the institution open for the use of the public, that it is not true that defendant 1 prevented such public use of the gymnasium, that in fact it was the plaintiffs who wanted to restrict its use to the people of Poddapet only in a prior litigation and that they have been in open and exclusive possession and enjoyment of the schedule properties in their own right from long prior to 1919.

6. The District Judge who heard this case held that it was "almost an admitted fact" that the institution was a public trust. He also held that there was considerable force in the allegations made by the plaintiffs regarding the mismanagement of the institution by defendant 1. He found that defendant 1 has mixed up the funds of the institution with the funds of the Anjuman E. Islamia which was irregular and unwarranted, that they have not accounted for the rents they have collected or how the sum was appropriated during the course of the management of the institution; that they have not also shown how much they have spent for the construction of the shops and whether the rents were being properly collected. The accounts were not subjected to audit and do not appear to have been placed before the members at a meeting and though the rents of the shops had gone up very high in recent times, the old tenants were being continued on the same old rents and therefore it could not be said that the institution was being managed for its benefit. In brief he held that the management appeared to have forgotten the main purpose of the trust, viz., that it was a gymnasium meant for the physical development of the public of Shimoga and were treating it more as private property rather than as that of a charitable or public institution and were more interested in allowing "some people of their own ilk to enjoy the properties of the institution" without any check or control. He also found that by a judicious management the income of the institution could have been increased by threefold or fourfold. He, however, thought that the talimkhana appeared to have been started by a Muslim, that the management of the talimkhana happened to be all along with certain Muslims of Shimoga town and that from 1919 defendant 1 Anjuman E Islamia was in management, though they were in such possession not in their own private right but as trustees; and though he held that there was no question of adverse possession in the case of trust property and the defendants could not plead such right he came to the conclusion that by reason of such managements for long over 12 years defendant 1s management could not be disturbed. But curiously enough he added that though they could not claim possession of the properties, they could still ask for accounts and for better management which is obviously unintelligible. In the result be dismissed the suit but directed the parties to bear their own costs as according to him the plaintiffs had successfully proved that the defendants had not properly managed the suit properties and had failed only on the point of limitation. The plaintiffs have appealed to this Court and the respondents-defendants have preferred cross-objections.

7. The main facts as found by the learned District Judge admits of little doubt and are not even seriously challenged in this Court. The present litigation was preceded by an earlier one. Certain members of the public residing in Doddapet which is a small part in Shimoga town brought two suits for declaration regarding the shops attached to the gymnasium, for possession of the same and for arrears of rent. In these suits it was claimed that the gymnasium and the shops belonged to the residents of that locality. Those suits were resisted among others by the then Secretary and President of the association though in their personal capacity. Ex. H is a written statement filed in O.S. No. 353 of 1924-25 by the supplemental defendants among whom were included the office-bearers of defendant 1 at that time. It was then pleaded that the gymnasium was originally constructed and made a charitable institution for the benefit of the public at large by one Allikhan, that the shops involved in the two suits were constructed on the site belonging to the gymnasium for the benefit of the gymnasium and the public at large, that in conformity with the wishes of the founder the management of the institution was left to the Muslims and had later on, come to be vested in the Anjuman who were described as the original trustees in possession of the property. It was also pleaded that a free reading room was located in the premises for the benefit of the public at large and that the institution was getting a grant of Rs. 15 from the Shimoga Municipality in due recognition of the public utility of the institution. These suits were dismissed by the Munsiff of Shimoga on the ground that the property in suit and the gyamasium did not belong to the people of Doddapet only and that of the plaintiffs who had brought that suit (O.S. 353/24-25) viz. two Hindus and a Muslim, were not managing them on behalf of the people of Doddapet. He also held that the gymnasium was constructed and made a charitable institution for the benefit of all communities without any restriction of community or locality and that it was not proved to have been in the exclusive possession and enjoyment of the Muslims. That decision was reversed by the Subordinate Judge of Shimoga who was of the opinion that the plaintiffs suit should be decreed as the same was brought on behalf of the persons of Doddapet though, as a matter of fact, the suit shops belonged to the entire public of Shimoga, and he decreed the suit in favour of the public of Shimoga as represented by those plaintiffs. On Second Appeal to this Court it was held by Abdul Ghani and Singaravelu Mudaliar, JJ., that though it happened that the people of Doddapet formed a portion of the inhabitants of Shimoga it did not justify a decree in favour of the people of Shimoga who are not the plaintiffs and that the plaintiffs could not represent the people of Shimoga. They therefore set aside the decree of the Subordinate Judge and restored that of the learned Mansiff. They observed that though they thought it unnecessary in the circumstances to go into the other questions raised by the appellants in that appeal, the Anjuman E. Islamia had not been brought on record as a defendant in spite of having been pleaded that they were in management by the other defendants. The appeal was therefore disposed of on the point that the people of Doddapet alone were not the owners of the institution or the properties thereof and that they were not entitled to the rights claimed to the exclusion of the other inhabitants of the town. It is after this decision that the present suit was brought and it shows that even in the previous litigation it was not accepted that the Muslims of Shimoga had any exclusive right to manage this institution.

8. Defendant 3 who is examined as D. W. 1 and who is said to be the Secretary of the association for the last 12 years, has deposed that he does not know who actually built the garadi or gymnasium that there are no reference in this matter or as to whom this gymnasium belonged, that the gymnasium is meant for the public, that anybody with the permission of the vastad (who apparently is the instructor) may go and take exercises, that there is no such thing that it was entirely for Muslims and that anybody and everybody in Shimoga Town may make use of it and that the maliges belong to the garadi. It has been clearly admitted by the defendants that the public have a right to use this institution. It has also been admitted that defendant 1 are merely managers though it is not very clear whether it is on behalf of the public or on behalf of the Muslims of Shimoga Town. The Anjuman E. Islamia has not claimed any proprietary or beneficial interest in itself. There is no documentary evidence transferring the right of management and control permanently in favour of the institution. The Islamia is said to be a registered association capable of holding property but it has not been shown that it was one of the objects of that association to manage the gymnasium and its properties, much less has there been any conveyance in its favour of the properties of the gymnasium by anybody claiming a right to it. If the institution had claimed that the public of Shimoga had no right to make use of the gymnasium that would have been a different matter. The question of adverse possession, or ownership of the suit properties in themselves, might then have arisen. When the defendants have admitted that the gymnasium and its properties are a public trust and that they are merely the managers of the institution, we have not been shown any authority for holding that they can plead adverse possession in respect of such properties or of such management and to deny the right of the public to ask the Court to frame a scheme for a change in that management or for calling them to account in respect of such management. In fact from the stand taken by defendant 1 it appears doubtful if even the Muslims can call them to account though they seem to plead that they have their authority to manage from the Muslim public and this can certainly be not a legally tenable position.

9. The learned District Judge has, on the evidence on record, held that the institution is a public trust belonging to all classes of people in Shimoga Town, that it has been in the management of Muslims only all along, that the plaintiffs cannot claim possession of the properties or any right in the management of the institution and that what they can ask for is only for accounts and better management of the institution as beneficiaries; and in the light of this finding he has proceeded to consider the question of limitation. He has held thai the defendants are not express trustees but trustees de son tort that S. 10, Limitation Act, does not apply to save the plaintiffs suit from the bar of limitation and that the suit is, therefore, not in time. He has referred to certain authorities and observed that there is a conflict of decisions on the point of limitation against trustees de son tort and has chosen to follow what he considers is the view of the Allahabad and Bombay High Courts and the Chief Court of Oudh in preference to the views held by the Madras and Calcutta High Courts. But even the cases he has referred to in his judgment do not seem to support the entire dismissal of the suit like the present.

10. Behari Lal v. Shiv Narain, 84 Ind Cas 631 : AIR (11) 1924 All 884, which is a case decided by the Allahabad High Court, has merely applied Art. 120 of Sch. I, Limitation Act, for a suit for accounts against a defendant who was held to be a trustee de son tort and observed that S. 10 will not apply as it applies to cases of express trustee only. They have followed Rajeshwara v. Ponnusami, AIR (8) 1921 Mad 125 and Krishnan v. Lakshmi, AIR (9) 1922 Mad 57. They have, however, held in the same case that there is no limitation for suits for the recovery of property from trustees and given the benefit of S. 10 to the plaintiffs though one of the defendants was only a trustee de son tort with reference to a part of the property which was in his possession. They made a distinction between the period of limitation for which he could be called upon to account but did not dismiss the suit with regard to possession of the property; and though they held that the latter was appointed a manager and not a trustee, they did not hold that the suit for possession was barred by time as against him. Ramacharya v. Shrinivasacharya, 46 Ind Cas 19 (Bom) was a case in which the managers of a temple had made a gift of the temple property to the predecessors of the defendants in consideration of the latter performing certain religious service at the temple. The suit was brought half a century after the date of the gift by the doners successors alleging that they were no longer to accept the services of the defendants in connection with the temple. It was held that the defendants were transferees for valuable consideration, the consideration being the performance of certain services and that, therefore, S. 10, Limitation Act, was not applicable to the case but Art. 134 of Sch. I. Bachelor, Ag. G. J. observed in that case that S. 10, Limitation Act, is in the main designed to meet a suit brought for the purpose of valuing misapplied trust funds for the benefit of the trust and does not apply to assigns for valuable consideration from the express trustees. That case does not help the defendants.

11. The next case referred to by the learned District Judge is Moosabhoy v. Yakubbhoy, 29 Bom 267. It was held in that case that if express trusts are created by a deed or will and some third party takes upon himself the administration of the trust property he becomes a trustee de son tort and as such is bound to account as if he were the rightful trustee and limitation does not run in his favour under S. 10, Limitation Act. At p. 280 of the reports their Lordships refer to S. 10, Limitation Act, and consider the question when a property is said to vest in a person as an express trustee. They observe with reference to the facts of that case : "It is true the will does not appoint him trustee of the deed but it appoints him executor of the will and directs him to see that the provisions of the trust deed are carried out .... The provisions of the will show that he was to perform certain duties and functions in regard to the trustee estate .... Therefore, he was an express trustee so constituted under the will. They go on to point out that by taking upon himself the administration of the trust property and taking possession of the trust property, the defendant became an express trustee by his own act. They further point out : "It seems to be established clearly that if express trusts are created and some outside trespasser who has no business to interfere does interfere then he becomes a trustee de son tort and as such the Court will make him account as if he were the rightful trustee." It is observed that no man should assume the administration and function of a trustee and when called upon to account for his administration say that he acted wrongfully and that he would be always treated as if his acts were lawful and not unlawful. In support of that position they refer to a passage in Lewin on Trusts. This case fully supports the plaintiffs contention that either as express trustees or as trustees de son tort the defendants are liable to account and cannot set up the bar of limitation.

12. In Peary Mohan v. Manohar, AIR (11) 1921 Cal 160 Mukerjea and Rankin, JJ., held that if a person by mistake or otherwise assumes the character of a trustee when it really does not belong to him and so becomes a trustee de son tort, he may be called to account by the cestui que trust for the monies he received under the colour of trust and such a person cannot be heard to say for his own benefit that he had no right to act as a trustee. Chandrika Bakhsh v. Bhola Singh, 168 Ind Cas 593 : (AIR (24) 1937 Oudh 373) was a case of a suit for possession of properties from a shebait who had been appointed by the founder of a religious endowment to manage the property in trust for such endowment. The suit was brought by the heirs of the founder on the death of the latter for possession of the trust property against the heirs of the shebait then in possession. It was held that the suit was governed by Art. 144, Limitation Act, or Art. 124, and not by Art. 120, and was, therefore, in time and the application of S. 10, Limitation Act, to assist the plaintiffs to get a decree for possession was not required. It is only in connection with the period during which the defendants were liable to account S. 10 was considered and it was observed that S. 10 applies only to express trustees and their representatives and not to trustees de son tort. Their Lordships did not choose to follow the case in Dhanpat v. Mohesh, AIR (7) 1920 Cal 558 in which the opinion was expressed that a trustee de son tort stands in the same position as an express trustee but preferred to follow the contrary opinion expressed in 47 All 17. That case is no authority for the position that the suit of the plaintiffs ought to be dismissed as barred by time.

13. As against those cases Gopu Nataraja v. Rajammal, AIR (9) 1922 Mad 394 is clearly in favour of the plaintiffs. It has been held in that case that where the plaintiffs bring a suit not to assert their own individual rights but on behalf of the general public who are interested in the institution for the settlement of a proper scheme for the management of the charities and other reliefs there is no limitation against such a suit. In that case there was a plea that the defendant was a hereditary trustee and that was found against by the Courts. The suit was under S. 92, Civil P. C. and their Lordships observed that it was a representative suit and the interest of the plaintiffs to enable them to bring such a suit is that interest which will enable them to be benefited if so minded by the proper maintenance of the charities. In Beli Ram and Brothers v. Mahomed Afzal, AIR (35) 1948 PC 163 their Lordships observe while dealing with a wakf that time never runs in favour of a trustee so as to enable him to claim the trust property for himself. Even if they purport to deal with such property as owners, they say, the trustees are committing breaches of trust and not setting up title adverse to the trust.

14. It was contended before us for the respondents that there was no registered document by which defendant 1 was appointed as a trustee and that being one of the modes by which a trust could be created defendant 1 could not be said to be a trustee within the meaning of the Indian Trusts Act. The Indian Trusts Act was not in force in Mysore till the year 1949 and there was no specific statutory way in which a trust could be created. Even otherwise we do not think that is a very germane consideration. Section 10, Limitation Act, merely requires for its application that a property should have been vested in the defendant in trust for an express purpose. As pointed out already the defendants have admitted that they are trustees and have claimed no beneficial ownership of this institution. It was also contended that a mere manager is not a trustee within the meaning of S. 10, Mysore Limitation Act, prior to its amendment in 1938 when the provisions of the Indian Limitation Act in this matter were introduced here. It was urged that the Anjuman had acquired the right to exclusive possession and management under the 12 year rule before the amendment. In the first place the association has at no time put forward their own private rights to the property. They have always been claiming merely as trustees or managers on behalf of the Muslim section of the public. The Muslim section of the public has at no time claimed that they are solely entitled to possession and management. There has been no rival claims to the management of the Association put forward by or on behalf of the public of Shimoga even to start adverse possession in respect of such management even if it could happen.

15. On behalf of the respondents reliance has been placed on cases reported in Balwant Rao v. Puran Mal, 6 All 1 (PC), Jadunath v. Girdhar, 27 All 513 and Nilakandan v. Padmanaba, 14 Mad 153. They were, however, cases where suits were brought not for the purpose of recovering trust property for the benefit of the trust but for the individual plaintiffs own benefit. In fact in 6 All 1 the Privy Council held that a suit in order to fall under S. 10 which save suits against trustees from limitation must be brought for that purpose, and that section meant that when trust property is used for some purpose other than that of the trust it may be recovered without any bar of time from the hands of those in whom it has been vested in trust and not where the plaintiff sued to enforce his personal rights to manage an endowment there being no question whether or not the property was being applied to such purpose by the manager in possession. 27 All 513 which refers to 6 All 1 also lays down that where a plaintiff claimed possession of certain trust property as manager by right of inheritance from the founders of the trust, there being no allegation of misappropriation of trust property, S. 10 had no application and the suit was governed by Art. 124 or 144, Limitation Act. Their Lordships pointed out that S. 10 is inapplicable, inasmuch as the defendants did not deny the endowment but on the contrary asserted their own right as managers of the endowment, and it is not the plaintiffs case that the property has been applied to purposes other than the purpose of the trust or endowment. In that case the decision of both the lower Courts holding that the suit was barred by limitation was, however, set aside and the case was remanded to the lower Court to consider if the suit was not within time even by the application of Art. 124 or 144, 14 Mad 153 was also a case of an individual suing the defendants for a declaration that their family were entitled to exclusive management of the affairs of devasom. It appeared that the plaintiffs and defendants families had been in joint management since 45 years before suit in accordance with the provisions of a deed of compromise. To such a suit naturally the ordinary 12 years rule of limitation will apply.

16. Sri Silambani Chidambara Vinayagar Devasthanam Devakottai v. Chidambaram Chettiar, AIR (30) 1943 Mad 691 relied on for the respondents was a case of a suit brought by a manager for the recovery of monies collected by various members of a family who were managing the affaire of a temple. It was held in that case that the plaintiff could not avail himself of the provisions of S. 10, Limitation Act to save the suit from the bar of limitation and has no application to the facts of the present case. Moreover, it was conceded in that case that Dharmakarta of a temple is not a trustee of its property. But even that case lends some support to the observations made above that in the absence of the Indian Trusts Act or some statutory provision corresponding to it in Mysore, the rules of equity which hold that a person who received money while in a fiduciary capacity to the person for whom he received it was to be treated as an express trustee may have better scope for application in Mysore than in British India. Moreover, as observed in Kishtappa v. Lakshmi Ammal, AIR (10) 1923 Mad 578 the phrase "Trust for a specific purpose" under S. 10, Limitation Act is merely an expanded mode of expressing the same idea as "Express Trust" in English Law as pointed out in Soar v. Ashwell, (1893) 2 QB 390. Palaniappa v. Nachiappa, AIR (28) 1941 Mad 841 was a case where there was a custom among the Natukoti Chetties to which caste the parties belonged to treat presents given to the bride at the time of her marriage as a fund or property for the benefit of the children of the marriage and to entrust the fund with some solvent man of their community for investment and augmentation in the name of the bridegroom subject to certain modes of ultimate disposal of the amount. It was held following AIR (19) 1923 Mad 678 and Bhurabhai v. Bai Ruxmani, 32 Bom 394, that the defendant, a person with whom such presents had been deposited and who well knew that the purpose of the deposit was that the same should earn interest and be augmented for the benefit of the children of the bride and the bridegroom, had the control of the fund for a specific purpose and was an express trustee coming within the meaning of S. 10, Limitation Act.

17. For the appellants reliance has been placed on Mahomed Admji Peerbhoy v. Akbar Ally Abdul Hussain Admji Peerbhoy, AIR (21) 1934 PC 53, Mahomed Ismail Ariff v. Ahmed Mulla, Dawood, 43 Cal 1085 (PC) and Gurunatharudhaswami v. Bhimappa Gangadharappa, AIR (35) 1948 PC 214 and a case of our Court in 53 Mys HCR 133 at p. 187 which lay down very clearly that the primary duty of the Civil Court in cases like the present is to consider the interest of the public for whose benefit the trust is created and that the Courts have got large powers to frame schemes and appoint proper trustees in cases where trust property has been diverted from its proper purpose and the objects of the trust are not being carried out and the trustees or persons in management are not properly accounting for the realisations from the trust property. In 53 Mys HCR 167 it was held referring to Sitharam Chetty v. Subramania Aiyar, 39 Mad 700 and Attorney-General v. Wyggeston Hospital, (1849) 60 ER 1003, that even the fact that there is a statutory body or committee which governs a charitable institution does not bar the jurisdiction of a Court to frame a scheme, because the Court is the ultimate protector of the charity and it is the inherent right of the Court always to intervene to safeguard and preserve the charity whenever it is necessary to do so, that the fact that the trustee is not guilty of breach of trust does not preclude the Court from framing a scheme and that if the affairs of a charity are managed in such a matter which is not beneficial to the institution, the Court can interfere and frame a scheme by giving direction as to its proper administration. Reliance has also been placed by the appellants counsel on a decision in Srinivasamoorthy v. Venkatavarada, 34 Mad 257 (PC), which lays down that there can be no claim of adverse possession in such cases.

18. We think, therefore, that even without any help from the amendment made to the Limitation Act in 1937 the plaintiffs are entitled not only to have a scheme made but also an account from defendant 1 from 1919 as the property became vested in them for a specific purpose, viz., to look after and administer the gymnasium and its properties within the meaning of that section from that time. See Khaw Sim Tek v. Chuah Hooi Gnoh Neoh, AIR (9) 1922 PC 212 and Annamalai Chettiar v. Muthukaruppan, AIR (18) 1931 PC 9 where a specific purpose has been described by the Privy Council as being a purpose which is either actually and specifically defined in the deed of trust or a purpose which from the specified terms (or as admitted in this case) can be certainly affirmed. The decision of the lower Court cannot therefore be supported and must be set aside.

19. There can be absolutely no doubt that this is a proper case in which a scheme should be framed by the Court. The matter in controversy in this litigation can only be set at rest by such a scheme and if it is not so done, may degenerate into a communal quarrel. The Muslims of Shimoga have not at any time adopted the attitude that it is their exclusive property. It is only the association which officiously or otherwise has chosen to question the rights of the public to call for accounts. The Muslims are as much a part of the public as any other community and will enjoy the benefit of the development and better management of the institution. One of the best ways by which better understanding and concord can be fostered between the members of all communities would be their participation in common games and sports and if an upto date stadium or gymnasium can be erected on the spot and if its could be managed by an impartial, honest and non-partisan committee of trustees under the Presidentship of either the President of the Municipality who is already helping the institution, or the Superintendent of Police or the Distriat Magistrate, it could be made a very desirable addition to the amenities of an important and growing town like Shimoga. Unless it is absolutely as a matter of law legally impossible there is no reason why the management of this institution should not be entrusted to such a committee for the benefit of everybody concerned and why the association in which a few Muslims and not even the entire muslim public of Shimoga should be allowed to continue in management without any check or control. In such a scheme provision could be made for due representation even of the Muslim section of the public if the Court considers the same necessary for some time and the Court could always give directions from time to time with regard to the administration of the trust.

20. In the result, this appeal is allowed the judgment and decree of the learned District Judge are set aside and there will be a decree in favour of the plaintiffs as prayed for with costs both here and in the Court below (Advocates fee in this Court Rs. 100.) The records will now go back to the District Judge and he will frame a scheme in consultation with both the parties and their counsel, call for accounts and proceed further with the suit in accordance with law. In the light of the above decision the memorandum of cross-objections is also dismissed but without costs. Appeal allowed. AIR (39) 1952 MYSORE 20 (C. N. 10) "Gopalappa v. Shivananda Rice and Flour Mills" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) B. Gopalappa, Deft. No. 2, Petitioner v. Shivananda Rice and Flour Mills, Pltf. and another Deft. No. 1, Respondents. Civil Revn. Petn. No. 397 of 1950-51, D/- 7 -8 -1951. Mysore Court-fees Act (3 of 1900), S.10 - Mysore Civil P.C. (3 of 1911), S.158, O.41, R.23 - COURT-FEE - APPEAL - REMAND OF MATTER - Remand of suit in the interest of justice - Refund of court fee on memo of appeal. Court-fees Act (7 of 1870), S.13. Under S. 158, Mysore Civil P. C. 1911, S. 562, Civil P. C., mentioned in S. 10, Court-fees Act, has to be read as O. 41, R. 23, Civil P. C., and as that Rule as it now stands enables the appellate Court to remand a suit on the ground that it is necessary to do so in the interests of justice, it follows that a refund of the court-fee paid on the memo of appeal could be made when a suit is remanded for disposal by the lower Court in the interests of justice. This view is also in accordance with the practice of the Court : R. A. No. 226 of 1942-43 and R. A. No. 224 of 1946-47, Ref. (Para 1) Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign eases referred to comes after the Indian Cases). R. A. No. 226 of 1942-43 (Mys) 1 R. A. No. 224 of 1946-47 (Mys) 1 M.K. Sreenivasa Iyengar, for Petitioner; A.R. Somanatha Iyer, Advocate-General, for Respondents. Judgement Order :- This is a revision petition against the order of the learned District Judge, Shimoga, in R. A. No. 24 of 50-51 refusing to pass an order of refund of the court-fee paid on the memo of appeal after having, in the interest of justice, remanded the suit to the trial Court for fresh disposal. The portion of S. 10, Court fees Act, relevant to this case is : "If an appeal or plaint, which has been rejected by the lower Court on any of the grounds mentioned in the Code of Civil Procedure, is ordered to be received, or if a suit is remanded in appeal, on any of the grounds mentioned in S. 562 of the same Code, for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate authorising him to receive back from the Deputy Commissioner the full amount of fee paid on the memorandum of appeal." * * * * It has to be said that according to S. 562, Civil P. C., as it stood at the time the Court-fees Act was enacted, the grounds mentioned in it to enable an appellate Court remanding a suit did not include a remand in the interests of justice. It is equally so according to the provisions of O. 41, R. 23 as it stood before amendment. Since the reference in S. 10, Court-fees Act, is to a remand on any of the grounds mentioned in S. 562, Civil P. C., according to the reasoning of the learned District Judge, there cannot be a refund of the court fee paid on the memo of appeal when the appellate Court remands the suit for fresh disposal by the lower Court in the interests of justice. It has, however, to be remembered that in case R. 23 of O. 41, cannot be read in S. 10 of Court-fees Act in place of S. 562 of the old Civil P. C., no refund of the court-fee paid can be made after the new Civil Procedure Code came into force in 1911. But S. 158 of the new Civil P. C., runs as follows : "In every enactment or notification passed or issued before the commencement of this Code in which reference is made to or to any chapter or section of Act VIII (8) of 1859 or any Code of Civil Procedure or any Regulation amending the same or any other enactment hereby repealed, such reference shall, so far as may be practicable, be taken to be made to this Code or to its corresponding part, order, section or rule." It will thus be seen that S. 562 mentioned in S. 10, Court-fees Act, his to be read as R. 23, O. 41 and if that is so R. 23, O. 41, as it stands amended has to be read in place of S. 562 of the old Code in S. 10, Court-fees Act. As R. 23, O. 41, Civil P. C., as it now stands enables the Appellate Court to remand the suit on the ground that it is necessary to do so in the interests of justice, it follows that a refund of the court-fee paid on the memo of appeal could be made when a suit is remanded for disposal by the lower Court in the interests of justice. I may add here that this view is in accordance with the practice of this Court as could be seen from the orders passed in P. A. No. 226/42-43 and R. A. No. 224/46 47.

2. In the result the order of the learned District Judge is set aside and it is directed that he shall grant to the appellant a certificate authorising him to receive back from the Deputy Commissioner the full amount of fee paid on the memorandum of appeal. Revision allowed. AIR (39) 1952 MYSORE 21 (C. N. 11) "Labour Commr. v. Mysore I. and S. W. L. Assocn." MYSORE HIGH COURT (FULL BENCH) Coram : 3 VENKATA RAMAIYA, BALAKRISHNAIYA AND MALLAPPA, JJ. ( Full Bench ) The Commissioner of Labour in Mysore, Banglore, Appellant v. The Mysore Iron and Steel Works Labour Association by its President Ramaswamy Iyengar, Respondent. Regular Appeal No. 134 of 1949-50, D/- 21 -9 -1951. (A) Specific Relief Act (1 of 1877), S.45 - WRITS - Writ of mandamus when can be issued. Mysore Labour Act (13 of 1942), S.10(3). Where the law casts a duty upon the authority to do something and the performance thereof is demanded and denied, then a writ of mandamus will lie. Thus, a failure on the part of the Labour Commissioner to comply with the terms of S. 10 (3), Mysore Labour Act, may be a good ground for issuing such a writ : (1897) 1 QB 498, Ref. (Para 4) Anno : Sp. R. Act, S. 45, N. 3. (B) INTERPRETATION OF STATUTES - Interpretation of Statutes - General and special Act how determined. Generalia specialibus non derogant (General provisions do not derogate from special provisions.) What is a general statute and what is a special statute is often a question of difficulty to solve in most cases; but the classification has to be made with reference to the context in each case and the subject-matter dealt with by each statute. For, most Acts can be classed as general Acts from one point of view and Special Acts from another. Thus, looking at the preambles to the two Acts, namely, the Mysore Labour Act and the Mysore Essential Services (Maintenance), Act, it may be said with justification that in the particular context the Labour Act is a general Act and the Essential Services (Maintenance) Act is a special Act : AIR (17) 1930 Mad 963, Ref. (Para 6) Anno : Lim. Act, S. 29, N. 6, Pt. 5. (C) Mysore Essential Services (Maintenance) Act (1942), S.6 - ESSENTIAL COMMODITIES - "Other conditions of service" whether include "industrial matter" - Application of Essential Services (Maintenance) Act whether excludes application of Mysore Labour Act (1942). @page-Mys22 The expression "other conditions of service" mentioned in S. 6, Mysore Essential Services (Maintenance) Act, is comprehensive enough not to exclude most of the matters falling within the definition of "Industrial matter" given in S. 3(ii), Mysore Labour Act. A special Act on the same subject passed subsequently (such as the Mysore Essential Services (Maintenance) Act) where an earlier general Act (such as the Mysore Labour Act) deals with the same matter, the special Act constitutes an exception to the general enacement. The Essential Services (Maintenance) Act gives exclusive jurisdiction to the Government and clearly indicates the intention of the Legislature that the special questions which are made the subject of a particular legislation shall be tried according to the procedure established by the Act and in no other manner. Hence, the provisions of the Mysore Labour Act cannot be made applicable where the Mysore Essential Services (Maintenance) Act contain similar provisions and is applied to a particular concern. AIR (18) 1931 Mad 152; 9 Cal 711, Rel. on. (Para 7) (D) Mysore Labour Act (13 of 1942), S.10(3) - WRITS - Nine months delay from refusal to perform duty by Labour Commissioner - Writ of mandamus if can be issued. Specific Relief Act (1 of 1877), S.45. The issue of a writ is a matter of discretion. Long delay in the filing of an application for a writ is a good reason for refusing to exercise the discretion in favour of the applicant. Thus, where for performing the duty by a Labour Commissioner a period of only fifteen days is prescribed by an Act from the date of notice of demand of that duty, a delay of nearly nine months from the date of refusal to perform that duty being very inordinate, the High Court will in its discretion refuse to issue a writ of mandamus. Foreign Case Law Ref. (Paras 8, 15) Per Mallappa, J.: "The duty if any had to be performed within 15 days. The question that arises is whether a writ can be issued even after the time fixed for its performance. The answer is that ordinarily the expiration of the time fixed for performance does not come in the way of the issue of a writ. In this case the time of 15 days fixed is merely directory and not peremptory. 15 days time is fixed in order that the Labour Commissioner might give relief within a short time. This would be a fit case for issuing a writ in spite of the fact that 15 days time fixed is over, unless the writ cannot be issued for other reasons." (Paras 12, 13) Anno : Sp. R. Act, S. 45, N. 4. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases). (83) 9 Cal 711 : (12 Cal L Rep 318) 7 (98) 21 Mad 141 : (7 Mad L Jour 275) 7 (30) AIR (17) 1930 Mad 963 : (54 Mad 92) 6 (31) AIR (18) 1931 Mad 152 : (54 Mad 364) 7 (1934) AC 365 : (103 LJKB 380) 8, 12

17 Cal A 705; 121 P 714 at p. 719 14 (1858) El Bl and El 1024 : (27 LJQB 434) 12

17 Fla 238 12 (1912) 3 KB 518 : (81 LJKB 1152) 12

98 Mo 570 at p. 573 : 10 SW 182 12

44 Mont 51 : 118 P 804 12 (1897) 1 QB 498 : (66 LJQB 403) 4 (1877) 94 US 248 : (24 Law Ed 123) 4 The Advocate General, for Appellant; M.L. Venkatanarasimhaiah, for Respondent. Judgement BALAKRISHNAIYA, J. (delivered judgment for himself and Venkata Ramaiya, J.) :- This appeal arises out of a civil petition No. 61/48-49 filed before this Court by the respondent under S. 45, Specific Relief Act, praying for the issue of a Writ in the nature of Mandamus directing the Commissioner of Labour in Mysore to ascertain from the Mysore Iron and Steel works, Bhadravathi, whether certain demands of the respondent made under S. 10(3) of the Mysore Labour Act 1942 would be agreed to by the said Iron and Steel works. The learned Judge of this Court who heard the petition passed an order directing the issue of a writ as prayed for. It is against that order that this appeal has been preferred.

2. The respondent in this case is the Mysore Iron and Steel Works Labour Association. It is a registered body that came into existence under the provisions of S. 3, Mysore Labour Act which came into force in January 1942. In pursuance of S. 9(2) of the Labour Act, the standing orders of the Mysore Iron and Steel Works were settled by the Commissioner of Labour on 14-11-1942. In the meantime, the State Legislature passed another Act known as the Mysore Essential Services (Maintenance) Act in July 1942 making provision for the maintenance of certain essential services. This act is made applicable to all employment under the Government and power is reserved under S. 3 of the said Act to make it applicable to any employment or class of employment which the Government being of opinion that such employment or class of employment is essential for securing the Defence of India, the public safety, the maintenance of public order or the efficient prosecution of war or for maintaining supplies or services necessary to the life of the community. By a notification dated 17-9-42 the Government have made the Essential Services Act applicable to the Mysore Iron and Steel Works which is a Government concern under S. 3 of the said Act. Subsequently on 5-1-1945, the Government directed that for purposes of regulating the wages and conditions of service of persons employed in the said Works, the standing orders as settled by the Commissioner of Labour under S. 9, Mysore Labour Act 1942 be treated as rules framed under S. 6, Essential Services Maintenance Act. The said rules continued to be in force for some years and the respondent-Association is deemed to have acquiesced in the same.

3. On 24-3-1948 the respondent-Association gave notice through its President to the General Manager, Mysore Iron and Steel Works, Bhadravathi, under the provisions of sub-s. (2) of S. 10, Mysore Labour Act, desiring a change in the existing standing orders and other industrial matters in accordance with the statement appended in the annexure thereto. Copies of notice of change were also sent to the Commissioner of Labour in Mysore and the Registrar of Associations in Mysore. The Labour Commissioner who is the appellant in this case is said to have sent a reply dated 30-3-1948 inviting the attention of the petitioner therein to Government Order No. S. R. 2971-78 LW 124-47-3 dated 28-2-1948 and stating that in the circumstances mentioned in the said Government Order the notice of change could not be negotiated by the Commissioner of Labour in accordance with the provisions contained in the Mysore Labour Act. The petitioner thereupon wrote to the Secretary to Government, General Department, and sent copies thereof to the Chairman, Mysore Iron and Steel Works, Bhadravathi, and the Minister for Law and Labour in Mysore, Bangalore. As he did not get the relief he sought for, he filed the petition on 20-12-1948 as stated above.

4. At the outset, the learned Advocate-General on behalf of the appellant urged that a petition to enforce a writ does not lie as the provisions of the labour act do not invest the petitioner with any legal right, the performance of which he could demand. This contention does not appear to have much force. It is undoubted that "The prosecutor must be clothed with a clear legal and equitable right to something which is properly the subject of the Writ, as a legal right by virtue of an Act of Parliament". (Vide The Queen v. Guardians of The Lewisham Union, (1897) 1 QB 498) But if the law casts a duty upon the authority to do something and the performance thereof is demanded and denied, such "a mandatory duty may be enforced although the relator will not be benefited (Vide Ex parte Jordon (1877) 94 US 248 Cyclopedia of Law and Procedure, Vol. 26, page 149). In the present case, there has been a clear demand and a failure on the part of the Labour Commissioner to comply with the terms of it, for S. 10(3), Mysore Labour Act lays down "The Commissioner shall ascertain within 15 days after the receipt of such notice whether the proposed change is mutually agreed to between the employer and the Association and if agreed to, send a copy relating to the change to the Registrar for registering it in the Register of Agreements and inform both parties. In case of agreement not being reached within 15 days, he shall report to the Chief Conciliator for initiating conciliatory proceedings under this Act". The Labour Commissioner has failed to comply with what in effect is a mandatory duty cast upon him.

5. The next and the most important question for consideration in this appeal is whether the provisions of the Mysore Labour Act could be invoked by the respondent in view of the express application of the Essential Services (Maintenance) Act to the Bhadravathi Iron Works. The latter Act is a subsequent piece of legislation but it does not repeal the Labour Act. It is undisputed that if both the Acts are in force, the provisions contained in the subsequent Act gain in precedence and importance over similar provisions contained in the earlier Act.

6. At this stage it is somewhat strenuously urged by the learned Counsel for the respondent that the Mysore Labour Act is a Special Act and that the subsequent enactment viz., the Essential Services Maintenance Act is a General Act and that the provisions of the Special Act will control the general provisions according to the general maxim generalia specialibus non derogant (General provisions do not derogate from special provisions). What is a general statute and what a special statute is often a question of difficulty to solve in most cases; but the classification has to be made with reference to the context in each case and the subject-matter dealt with by each statute. As Justice Ramesam has pointed out in Gunpally Thammayya v. Viswanatha Mallapuraj, AIR (17) 1930 Mad 963, most Acts can be classed as General Acts from one point of view and Special Acts from another.For example, it may be argued as he says that the Contract Act which is applicable to all is general in relation to the Labour Act which is limited to the relationship of the employer and the employee; and in another sense the Labour Act which applies to all concerns will be general in relation to the Labour employed in concerns engaged in supplies as essentials. In this case looking at the preambles to the two Acts, it may be said with more justification that in the particular context the Labour Act is a general Act and the Essential Services Act is a Special Act. The preamble to the Labour Act seeks to make provision for the organization of the employees and the promotion of their welfare and is broadly concerned with labour problems in all departments and concerns, and in this sense the Act may be called a General Act. On the other hand, the Essential Services Act as its very title signifies and in this sense is more narrowed and restricted as compared with the other Act may be properly considered to be a Special Act. It is contended that these provisions provide only for making rules to regulate the wages and that what was claimed in the notice of change by the respondent-Association is the inclusion of demands other than wages. At any rate, it is not denied that some of the demands touch the question of wages also. Regarding the other demands, it is urged that they fall under "Industrial matter" which includes not merely the regulation of wages but all other matters concerning the interest and welfare of the labour community as a whole; the expression "Industrial matter" is defined by S. 3(ii) as under "3 (ii) Industrial matter means any matter relating to work, pay, wages, reward, hours of work, privileges, rights or duties of employers and employees or the mode, terms and conditions of employment or non-employment and includes (a) all matters pertaining to the relationship between employers and employees or to the dismissal or non-employment of any person : (b) all matters as to the demarcation of functions of any employees or classes of employees : (c) all matters pertaining to any right or claim or under or in respect of or concerning an agreement, settlement or award made under this Act; and (d) all questions of what is fair and right in relation to any industrial matter, having regard to the interest of the person immediately concerned and of the community as a whole".

7. The crux of the question is whether these matters could or could not be regulated under the provisions of S. 6, Essential Services (Maintenance) Act. Looking at the clear provisions of the Act and in the light of the above discussion, we have no hesitation in holding that the expression "other conditions of service" mentioned in S. 6, Essential Services (Maintenance) Act, is comprehensive enough not to exclude most of the matters falling, within the definition of "Industrial matter". In this view, the provisions of the labour act cannot be made applicable where the Essential Services Maintenance Act contained similar provisions : "As a rule, general provisions do not derogate from special provisions, but that the latter do derogate from the former". (Vide Natesan Chetty v. Soundararaja, 21 Mad 141). Where a Special Act is made after the General Act, the resulting position will be as observed by Reilly, J., in Corporation of Madras v. Madras Electric Tramways Ltd., AIR (18) 1931 Mad 152 "Having made the general Act if the Legislature afterwards makes a special Act in conflict with it, we must assume that the Legislature had in mind its own general Act when it made the special Act and made the special Act, which is in conflict with the general Act, as an exception to the general act." a special act on the same subject passed subsequently where an earlier general Act deals with the same matter the special Act constitutes an exception to the general enactment. The Essential Services (Maintenance) Act gives exclusive jurisdiction to the Government and clearly indicates the intention of the Legislature that the special questions which are made the subject of a particular legislation shall be tried according to the procedure established by the Act and in no other manner. In Mamtazul Huq v. Nirbhai Singh, 9 Cal 711, it has been held that an express provision in a special Act overrides any provision of a general Act incorporated or introduced into the former Act, even if the effect be to render the provision of the latter Act wholly inoperative. The provisions of the labour act cannot be made applicable where the Essential Services (Maintenance) Act contain similar provisions.

8. It is next urged by the learned Counsel for the appellant that no Writ could be issued after the expiration of the time prescribed for performance. The writ does not lie before but only after default in the performance of a ministerial duty. If it is considered a good defence to allege that the time fixed for performance of such a duty has passed, then it may be tantamount to holding that a public official could by merely delaying to take action within the time prescribed by law, defeat the intention of the legislature; but, ordinarily the rule is applicable unless the mala fides of the authority regarding the delay being intentional is otherwise established. In this case, the refusal to comply with the terms of the demand was notified by the Labour Commissioner on 30-3-1948 within the prescribed period of fifteen days. Yet, no action was taken by the petitioner till as late as 20-12-1948 when he filed the petition. The delay of nearly nine months must be considered to be very inordinate, specially when it is viewed in the light of the fact that for performing the duty a period of only fifteen days is prescribed from the date of notice. In Corpus Juris (Vol. 38, para 26, page 555) under the Chapter Mandamus, it is stated as follows : "Ordinarily, it is no objection to the issuance of the writ that the time for the performance of the duty is past, since it is only in case of default in performance at this time that the writ can issue. However, although the opposite view has been taken in some cases, generally it has been held that, where the time within which performance may be lawfully had is fixed by statute, mandamus will not lie to compel the performance of such act after the expiration of the time so limited. In any event mandamus will not issue after the time for performance has passed where the issuance of the writ would be nugatory and unavailing." In Stepney (Borough of) v. John Walker and Sons Ltd. 1934 AC 365 at p. 395, Lord Wright makes similar remarks and observes that the time fixed for performance is peremptory and not directory and that the matter cannot be decided on the basis of retroactive effect, of any final order. In this view also, the petition should fail, though it is unnecessary for the purpose of this case to base the decision upon that point.

9. A number of Acts like the Trade Union Act, The Industrial Standing Orders Act and the Industrial Disputes Act of the Central Government touching questions of labour and other allied matters as throwing light on the question in dispute were brought to our notice. These Acts which were recently applied to this State are not of much avail as the matter in dispute arose in 1948 and is essentially governed by the then Acts of local legislation.

10. In the result, we hold that the petitioner should look to and be governed by the Essential Services Act and the similar provisions in the Labour Act cannot have any force. The appeal is accordingly allowed and the petition is dismissed. (Advocates fee Rs. 100/-).

11. MALLAPPA, J. :- I agree. There is hardly any doubt that if the provisions of the labour act had not been superseded by Essential Services (Maintenance) Act made applicable to the Mysore Iron and Steel Works, the appellant i.e. the Labour Commissioner in Mysore can be said to have failed in his duty in not ascertaining within 15 days after the notice issued by the Respondent whether the proposed change is mutually agreed to between the employer and the employees. But it is equally clear that the Essential Services (Maintenance) Act enacted later than the labour Act has superseded the latter Act. It is so as the Essential Services (Maintenance) Act is a special enactment compared to the Labour Act which is comparatively speaking a general enactment. Essential Services (Maintenance) Act is a special enactment intended to enable the Government to secure employment essential for the defence of India and other purposes mentioned in the enactment, unless the Government made it applicable to such essential services as in their opinion is essential for defence of India etc., the Labour Act would be applicable. The Government made the Essential Services (Maintenance) Act applicable to the Mysore Iron and Steel Works and it must be said that with reference to the employer and employees the Essential Services (Maintenance) Act superseded the provisions of the Labour Act and as such the Labour Commissioner was not bound to ascertain within 15 days after the notice issued by the Respondent whether the mutual change proposed was agreed to between the employer and employees.

12. The duty if any had to be performed within 15 days. The question that arises is whether a writ can be issued even after the time fixed for its performance. The answer is that ordinarily the expiration of the time fixed for performance does not come in the way of the issue of a writ. The reason is that "The writ does not lie before, but only after default in the performance of a ministerial duty.... if it be a good defence to allege that the time fixed for its performance has passed, it is evident that the very ground upon which you must base your application for the writ becomes a sufficient reply to the alternative writ when granted". McConihe v. State, 17 Fla 238. Again as observed in State v. Chouteau County, 44 Mont 51, 70 : 118 P. 804, "To say that the Courts are helpless to compel performance of such a duty, merely because the time within which the duty should have been performed has elapsed, is tantamount to holding that a public official, by delaying action until the time designated by law for action ha s expired, may defeat the will of the people as expressed by the legislature, and that there is not any redress for those who are injured by such non-action". This is not a case in which it can be said that the expiration of 15 days time after the issue of notice fixed for the performance of the duty comes in the way of the issue of a writ as it cannot be said that issuance of the writ would be nugatory and unavailing. Even if the Labour Commissioner now takes steps which he was bound to take within 15 days, the respondents will get relief. It is true that the time of 15 days within which it had to be performed is past but as observed in State v. Philips, 96 Mo 570, 573 : 10 SW 182, "The supreme Court has power to command the performance of a neglected duty, and although your neglect has rendered you powerless to do it upon your own motion, its command carries with it the power to do the act required. The constitution has placed no such restriction of time upon the exercise of its power to command the performance of neglected duty, and when that duty is performed, under its mandate, it is by virtue of and in obedience to the power of that mandate and not sua sponte, by virtue of the power given by the constitution which created the duty which has been neglected. The provisions of the constitution enacted for the purpose of securing a prompt performance of a duty by prescribing a period of time within which it must be done, cannot be defeated by delay to perform that duty until the allotted time has expired. .. ..............." It is true that as observed by Lord Wright in Stepney (Borough of) v. John Walker and Sons, Ltd., 1934 AC 365 at pages 398 and 399, "........It was contended that when in April, 1932, the appellants refused to do so, they were guilty by relation back of a breach of duty, which the Court ought to enforce by mandamus, though toe time for performance has passed. I think the argument is fallacious. "It is true that in certain cases a writ of mandamus may issue to perform a duty for which the time of performance fixed by law has passed." What difficulties may be involved in such a course is shown by the judgment in the Mayor of Rochester v. The King, (1858) El Bl and El 1024, where the successor of the delinquent Mayor was ordered to revise the burgess list of the previous year; in the Exchequer Chamber, Crowder and Williams, JJ., thought the writ should not go, the Lord Chief Baron and Martin B. thought it should; with these latter Willes, J., only agreed with grave doubts. But the same course has been taken in other cases, for instance, in Rex v. Hanley Revising Barrister, (1912) 3 KB 518, where by inadvertence voters had been left on the lists whose names the revising barrister had ordered to be struck off. In these and similar cases the duty had not been fulfilled and the Court has held, it may be with justification, that the statutory times are merely directory and that it is more in accordance with the intent of the statutes that the act should be done, though out of time, than not be done at all. I cannot, however, apply this way of looking at things to such a case as the present, because the retroactive revision of the Valuation List, save as the statute provides, would in my judgment be contrary to the whole purpose and effect of the legislation. "Times are here peremptory, not directory........."

13. In this case, however, the time of 15 days axed is merely directory and not peremptory. 15 days time is fixed in order that the Labour Commissioner might give relief within a short time. This would be a fit case for issuing a writ in spite of the fact that 15 days time fixed is over, unless the writ cannot be issued for other reasons.

14. As already observed, one such reason is that the labour Act itself has ceased to be applicable as the Essential Services (Maintenance) Act is made applicable. Other reasons may also be given. As observed in Conn v. Richmond, 17 Cal A 705, 121 P 714, 719, "A limitation of this rule has been recognized to the effect that mandamus may issue, notwithstanding the expiration of the time within which performance may be had where the requirements and purposes of the law have been disregarded and defeated of their own volition by respondent." In this case, however, all that could be said is that it was possible for the respondents to apply for a writ within the expiration of 15 days time within which the Labour Commissioner had to take action. It is not a case, however, in which the respondent was not informed within 15 days that the Labour Commissioner would not take action under S. 10(3) of the Labour Act. Notice was sent on 24-3-48. A reply refusing to take action was sent to Respondent on 30-3-48. He failed to apply for a writ within 15 days time within which alone the Labour Commissioner had to take action under S. 10(3) of the Labour Act and is thus responsible for the lapse of time within which the Labour Commissioner could have been directed to take action.

15. The issue of a writ is a matter of discretion. Long delay in the filing of an application for a writ is a good reason for refusing to exercise the discretion in favour of the applicant. In this case the applicant not only failed to apply for a writ within 15 days time within which the Labour Commissioner had to take action under S. 10(3) of the Labour Act but also waited to apply for a writ for about 9 months more. It was contended that a number of other enactments have since come into force, and the Labour Act is no longer applicable. This, however, does not require any consideration in view of the fact that there are sufficient other circumstances to justify the refusal of a writ in this case. The appeal is therefore allowed and the order directing a writ is set aside. AIR (39) 1952 MYSORE 25 (C. N. 12) "Ramachandra Rao v. Subba Rao" MYSORE HIGH COURT Coram : 2 MALLAPPA AND VASUDEVAMURTHY, JJ. ( Division Bench ) H. K. Ramachandra Rao, Plaintiff-Appellant; v. H. K. Subba Rao, Defendant 1; Respondent. Second Appeal No. 152 of 1948-49, D/- 23 -8 -1951. Limitation Act (9 of 1908), Art.11A - LIMITATION - POSSESSION - APPLICABILITY OF AN ACT - Application made under Civil P.C., O.21, R.97, dismissed for default - Suit to establish right to possession brought beyond one year - Applicability of Art.11-A. The contention that an order under O. 21, R. 99, Civil P. C., is an order passed on merits as the rule states that the Court should be satisfied that the resistance or obstruction is that of a bona fide claimant before it could pass such an order and an order of dismissal passed ex parte cannot be said to be one passed under that rule and hence O. 21, R. 103, does not apply to such a case is not acceptable. The reason is that under O. 21, R. 103, even ex parte orders passed under Rule 98, 99 or 101 of Order 21, without investigation in the sense that no evidence is adduced, become conclusive subject to the result of a suit if any filed within one year from the date of the orders. Hence, it follows that an order dismissing for default, an application under O. 21, R. 97, becomes conclusive subject to the result of a suit to be filed within one year. Therefore, a suit filed more than one year after the dismissal of such an application for default of the petitioner to adduce evidence in the case is barred by time under Art. 11-A, Limitation Act : 3 Mys LJ 222, 18 Mys LJ 166, Foll; Case law Ref. (Paras 5, 11) Per Vasudevamurthy, J. : If an application under O. 21, Rules 97, 98 or 99 is posted for enquiry or trial and the parties are given an opportunity to establish their claims but the petitioner or his opponent chooses to remain absent or fails or refuses to adduce evidence in support of his contention and the Court therefore proceeds to pass an order either allowing or dismissing the claim because the party on whom the burden and the duty lay to produce evidence failed to do so it is difficult to see how there was no investigation so as to entitle the unsuccessful applicant to say that no order which he was bound to have set aside under Order 21, Rule 103 within one year has been made against him. (Para 19) Editorial Note : It will be noticed that the view taken in this case is contrary to the trend of decisions in other High Courts in India. (See AIR Limitation Act. Art. 11-A, N. 8 Pt. 4 and AIR C. P. C., O. 21, R. 103, N. 3, Pt. 1; Mallappa, Js view that Art. 11-A will apply also to cases where the order under O. 21, R. 99, is not passed after investigation is mainly based on the presence of the words after investigation in Mysore Limitation Act, Art. 11 (as it existed originally) and their absence in Art. 11-A of that Act. Anno : C P. C., O. 21, R. 103, N. 1, Pts. 8, 9; Lim. Act, Art. 11-A, N. 8, Pt. 4. Cases Referred : Chronological Paras (11) 8 All L Jour 626 : (10 Ind Cas 401) 17, 18 (18) 40 All 325 : (AIR (5) 1918 All 72) 18 (19) 41 All 623 : (AIR (6) 1919 All 247) 18 (88) 15 Cal 521 : (15 Ind App 123 PC) 16, 18 (13) 20 Ind Cas 369 (All) 17, 18 (07) 34 Cal 491 : (11 Cal WN 487) 16, 17 (07) 6 Cal L Jour 362 17 (10) 7 Ind Cas 241 : (12 Cal L Jour 6) 16 (17) 41 Ind Cas 446 : (AIR (4) 1917 Cal 9 (2)) 16 (22) 26 Cal WN 853 : (AIR (9) 1922 Cal 229) 17 (85) AIR (22) 1935 Cal 267 : (155 Ind Cas 702) 18

15 Mys CCR 223 16

18 Mys CCR 116 16

3 Mys LJ 7 6

3 Mys LJ 218 16

3 Mys LJ 222 6, 7, 8, 15, 16, 19

4 Mys LJ 161 6

7 Mys L Jour 268 16

18 Mys LJ 166 6, 8, 15

22 Mys LJ 166 8

22 Mys LJ 233 6, 7

22 Mys LJ 237 8 (26) AIR (13) 1926 Nag 423 : 97 Ind Cas 178 17

V. Krishnamurthy, for Appellant, M.P. Somasekhara Rao, for Respondent. Judgement MALLAPPA, J. :- This is an appeal against the judgment in R. A. No. ,138 of 46-47 on the file of the Additional Subordinate Judge, Mysore, confirming the judgment and decree in O. S. No. 84 of 45-46 on the file of the Munsiff, Hunsur, who had dismissed the suit.

2. The plaintiff-appellant filed the suit under appeal for declaration of title to, and possession of the entire suit property which his deceased father had purchased in execution of a decree obtained against the father of first defendant alone. This was filed more than a year after a miscellaneous petition, filed by him under O. 21, R. 97 for removal of obstruction of defendants to his obtaining possession, was dismissed on his failure to appear before Court with his witnesses to adduce evidence in support of his case. Order 21, Rule 99 states that where the Court is satisfied that the resistance or obstruction was occasioned by any person other than the judgment-debtor claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application. Order 21, Rule 103, says that any party not being a judgment-debtor against whom an order is made under Rule 99, may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit, if any, the order shall be conclusive, Article 11-A of Schedule II of the Limitation Act presences a period of one year for a suit contemplated by Order 21, Rule 103, C.P.C., being filed. It is contended on behalf of Respondents-defendants that the order passed dismissing the miscellaneous petition filed by plaintiffs father under Order 21, Rule 97 is one that was passed under Order 21, Rule 99, and it has become final as no suit was filed within one year after the date of the dismissal of the petition. According to them the present suit is barred by time as it was filed more than a year after the miscellaneous case. On the other hand, it is contended on behalf of the appellant that the miscellaneous petition was dismissed for default of the petitioner to appear before Court and adduce evidence and it was not therefore decided on merits. The order that becomes conclusive under Order 21, Rule 103 on a suit being not filed within one years time, is an order that is passed under Order 21, Rule 99. An order under Order 21, Rule 99, it is contended is an order passed on merits, as the rule states that the Court should be satisfied that the resistance or obstruction is that of a bona fide claimant before it could pass such an order. An order of dismissal passed Ex parte, according to the contention of the appellant, cannot be said to be one passed under Order 21, Rule 99 as the Court cannot be said to have been satisfied that the claim is bona fide and Order 21, Rule 103 is not attracted to such a case.

3. Before analysing the provisions dealing with obstructions to possession of immovable properties purchased in Court sales, it is useful to compare them with the provisions dealing with claims to properties attached in execution of a decree as the wording in the two provisions is similar but not the same. Decisions in respect of one set of provisions are often quoted when a similar question arises in respect of the other set of provisions and in fact in this case decisions dealing with claim cases were relied on. The comparison of the two sets of provisions is very useful and they are here given below side by side for purposes of comparison :

58 (1) Where any claim is preferred to or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim. Provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed. 97 (1) Where the holder of a decree for the possession of immoveable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

59. The claimant must adduce evidence. 97 (2) The Court shall fix a day for investigating the matter.

60. Where upon the said investigation the Court is satisfied that ........ suit property was not, when attached, in the possession of judgment-debtor .......... the Court shall make an order releasing the property, wholly or to such extent as it thinks fit, from attachment. 98. Where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his investigation, it shall direct that the applicant be put into possession of the property.

61. Where the Court is satisfied that the property was ........ in the possession of the judgment-debtor ............ the Court shall dismiss the claim. 99. Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor the Court shall make an order dismissing the application.

4. The first thing that strikes one when these two sets of provisions are read together is the close similarity of the wording in them. It is clear that the similarity of words used in the two sets of provisions is intentional and not accidental. It is equally clear, that if there is any substantial difference that difference is also intentional. The similarity is apparent and a little scrutiny discloses the difference. It will be noticed, in the first place that the investigation in respect of a claim to attach property may be refused in certain cases under the proviso to Rule 59 (1). On the other hand the Court is bound to direct an investigation in respect of claims of persons who obstruct delivery of possession. The mere fact that a Court directs an investigation does not mean that an investigation is made in the sense that evidence is adduced or that other material is made available by the petitioner. The petition may be dismissed in case the petitioner does not adduce any evidence or place other material or it may be dismissed on merits on considering the evidence in the case. Anyway, a very important point to be noticed on reading together Rules 60 and 61 of Order 21, is that the order contemplated in this set of rules can only be passed where the Court is satisfied one way or the other after investigation. On the other hand, the words "whereupon the said investigation" found in Rule 60 before the word "the Court is satisfied" are not used before those words in Rules 98 or 99 of Order 21. The omission of the words is as already stated not accidental. It follows therefore that the orders contemplated under Rules 98 and 99 of Order 21 can be passed even if there is no investigation. How can it then be said that the Court is satisfied about the existence of the circumstances mentioned to Rules 98 or 99 of Order 21, unless the matter is investigated? When a person files a petition and an objection statement is filed and the petitioner does not care to come to Court to adduce evidence on the date to which the case stands posted for that purpose, the court can feel satisfied that there is no substance in his case. Thus, even an ex parte dismissal of a petition filed by a person complaining of obstruction can be construed as an order passed under Order 21, Rule 98 or 99 as an order under these rules can be passed after investigation or without investigation. To hold otherwise would be to ignore the significance of the absence of the words "whereupon the said investigation" before the words "the Court is satisfied" in Rules 98 and 99 of Order 21, as compared with these words found in Order 21, Rule 60. In this case, the Miscellaneous Petition filed by plaintiffs father complaining of obstruction was dismissed as he failed to appear before Court and adduce evidence on the day fixed for that purpose. All the same the order dismissing his petition is one failing under Order 21, Rule 99. Under Order 21, Rule 103, this order made under Rule 99 became final as no suit was filed within a period of one year as contemplated under Article 11-A of Limitation Act.

5. It is to emphasis this distinction between the provisions of Order 21, Rules 58 to 63 and the provisions of Order 21, Rules 97 to 103 that the words "after investigation" were inserted in Rule 63 by amendment on 11th September 1937 while no such amendment was made in Rule 103. Rule 63 after this amendment and Rule 103 are given below for purposes of comparison : O. 21, R. 63 : Where a claim or an objection is preferred, the party against whom an order is made after investigation may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive. O. 21, R. 103 : Any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit, if any, the order shall be conclusive. It is therefore clear that even ex parte orders passed under Rule 98, Rule 99 or Rule 101 of Order 21, without investigation in the sense that no evidence is adduced, become conclusive subject to the result of a suit if any filed within one year from the date of the orders. But in the case of orders passed under Order 21, Rules 60 or 61 at any rate after the amendment in 1937 inserting the words "after investigation" in Rule 63 till the words were deleted again by another amendment of that rule, ex parte orders passed under Rules 59 and 60 did not become final under Rule 63.

6. Then again compare Article 11 of Mysore Limitation Act which is applicable to suits to set aside orders on application filed under Order 21 Rule 58 with Article 11-A applicable to suits filed to set aside orders under Rules 98, 99 and 101 of Order 21 and notice the absence of the words "after investigation" in Article 11-A. The two articles are given below side by side for purpose of comparison : ARTICLE 11. By a person against whom an order has been made under the Code of Civil Procedure after an investigation of a claim preferred to, or an objection made to the attachment of, property attached in execution of a decree, to establish the right which he claims to the property comprised in the order. ARTICLE 11-A. By a person against whom an order has been made under the Code of Civil Procedure, upon an application by the holder of a decree for the possession of immoveable property or by the purchaser of such property sold in execution of a decree, complaining of resistance or obstruction to the delivery of possession thereof, or upon an application by any person dispossessed of such property in the delivery of possession thereof to the decree-holder or purchaser, to establish the right which he claims to the present possession of the property comprised in the order. It is in view of this difference, it was observed in 3 Mys LJ 7 as follows : "Where a claim preferred under Order 21, Rule 58, C.P.C., is dismissed for default of claimant who on the date fixed for hearing was neither himself present nor had his witnesses in attendance, a suit to establish the claim is not barred by Art. 11 of the Limitation Act in force in Mysore, because in terms that article only applies "where an order has been made .... after investigation of a claim." The view expressed in this case was followed in Hussain Veli v. Nanjappa Setty, 4 Mys LJ 161, which also deals with a suit filed to set aside an order dismissing a claim petition ex parte. On the other hand the decision reported in Khasim Sali v. Dilawar Khan, 3 Mys LJ 222, refers to a case of a plaintiff who has filed a suit of the kind now under consideration. "In execution of this partition decree he applied for delivery of possession of his share........As the respondent-defendant resisted him in obtaining possession of the property an application under Order 21, Rule 97 was filed for the removal of obstruction and delivery of property. That application was dismissed for default of prosecution without any investigation on 22-7-1915. The present suit was filed ........ on 17-6-1919 for the recovery of the same property." It was held in that case : "On the clear wording of Article 11-A of the Lim Regn. which must be read with O. 21, R. 103, C.P.C., there could be no exception in the case of orders passed without investigation and the suit filed after the lapse of one year from the date of dismissal of the miscellaneous application under O. 21, R. 97, was barred by time." The decision has been followed in 18 Mys LJ 166 in which Abdul Ghani, Officiating, C.J., observed as follows : at page 175. "It is immaterial whether Miscellaneous Case No. 42 of 1924-25, to remove obstruction was dismissed after investigation or without it, because as pointed out in Khasim Sab v. Dilawar Khan, 3 Mys LJ 222, the words after an investigation are not to be found in Article 11-A of the Limitation Act, unlike Article 11, where they are found. So, according to that decision, even if an application to remove obstruction is dismissed for default, a suit under Order 21, Rule 103, should be filed within one year." The only other decision that needs our consideration is that reported in 22 Mys LJ 233. Venkataramana Rao, C.J., and Venkataranga Iyengar, J., agreed with the decision Hussain Vali v. Nanjappa Setty, 4 Mys LJ 161, and it was observed that : "the ratio of that decision is that where a claim was dismissed for default, the order of dismissal was one not made after investigation and therefore Order 21, Rule 63 would not apply and there was no obligation on the part of the claimant to file a suit within one year to set aside that order......Order 21, Rule 63 was later amended in our state by the insertion of words after investigation after the words order is made to avoid the conflict similar to that prevailing in British India and also to make it conform with the view taken in Hussain Vali v. Nanjappa Setty, 4 Mys LJ 161." The learned Judges were dealing with a case under Order 21, Rule 63, and the decision of their Lordships on this aspect of the matter is an authority on the point.

7. The learned Judges have, however, expressed their opinion in respect of cases arising under Order 21, Rule 103 and Article 11-A in which the words "after investigation" are not found as a contrast to Article 11 in which those words were found. As pointed out by the learned Judges the decision reported in 3 Mys LJ 222, referred to this distinction in the wording of Article 11 and 11-A of Limitation Act with reference to the words and "after investigation" as a moot point for consideration. An unequivocal answer to that question was however given in 3 Mys LJ case. That was a case in which a suit was filed more than a year after an application filed under Order 21, Rule 97 was dismissed for default and it was observed : "It is not for us to state why on principle an investigation is essential under Art. 11 and not Under Art. 11-A for the application of one year rule. The difference in language and scope may or may not be intentional. We have to interpret them as we find them. We are therefore of opinion that the present suit is barred under Art. 11-A also." It is no doubt true that the learned Judges also found that the suit was also barred under Article 144 of the Limitation Act. The fact that a decision on one of the two points raised in a case is sufficient to dispose of the case does not make either of the decision on the two points not authoritative. If at all, it may be said that when a suit filed to set aside an order dismissing an application under Order 21, Rule 97 could be said to be barred after one year after the date of that order, the question whether it is barred under another article also as it was filed after 12 years may not strictly speaking arise, but that cannot be said of the bar under Article 11 of Sch. II of the Limitation Act. It has to be stated with the utmost respect that the authority of the decision in 3 Mys LJ 222 cannot be said to have been affected by what has been said with reference to it in 22 Mys LJ 233.

8. A similar observation has been made in 22 Mys LJ 237, with reference to 18 Mys LJ 166 The learned Judges observe : "That the case was not one of dismissal for default and the actual decision was that the application under Order 21, Rule 97 was barred by time, having been preferred more than 30 days from the date of alleged obstruction. So the observations so far as they related to the case of a dismissal for default were only obiter." The point for consideration in cases of suits filed to set aside orders dismissing applications under Order 21, Rule 97, 98 or 101, more than a year after the passing of the orders is whether the application was dismissed "after an investigation" or without it. This matters as the words "after an investigation" found in Order 21, Rule 63, C.P.C., and Article 11 of Schedule II, Limitation Act are not found in Order 21, Rule 103 and Article 11-A of the Limitation Act. Whether an application was dismissed as barred by time or for default it cannot be said that it was dismissed after an investigation is held. A decision holding that a suit filed more than a year after the dismissal of an application under Order 21 Rule 97, on the ground of Limitation, is barred by time in spite of the fact that it was dismissed without investigation is an authority for holding that a suit filed more than a year after an application under Order 21, Rule 97, is dismissed for default is barred by time as in both the cases the only ground that can be raised against such a view is that the dismissal was without investigation. Moreover, the point for consideration in the case reported in "22 Mys LJ 237, was one falling under Order 21, Rule 63, C.P.C., and Art. 11 of Schedule II of the Limitation Act and whatever necessity there might have been to compare these provisions of law with those in Order 21, Rule 103, C.P.C., and Art. 11-A, it cannot be said that the opinion expressed in respect of the provisions that did not arise in the case, has to be treated only with the respect we usually give to obiter dicta of learned Judges that give ex pression to them. It has to be stated with the utmost respect that the decisions in 3 Mys LJ 222 and 18 Mys LJ 166, where the matter under consideration in this case directly arose for consideration are binding on us in spite of the observations made with reference to them in "22 Mys LJ 166, a case where the point did not arise directly for a decision.

9. It has to be observed that the Legislature in Mysore, which had placed applicants under Order 21, Rule 58, who had failed to take steps to have their claims investigated, in a better position than those who failed to prove their case after investigation, has now done away with that unnecessary distinction by dropping the words "after an investigation" in the first column of Article 11 of the first schedule of Limitation Act. The object is stated as follows : "A claimant or objector who puts forward his claim or objection and interferes with execution proceedings and then does not take step to have his claim investigated is in a better position than the one who gets his claim investigated. Very often the Claimants will be acting on behalf of the judgment-debtor to impede the progress in the realisation of the decree amount. There is no reason to treat the two claimants differently." It will follow that the amendment is intended to raise a bar under Art. 11 to a suit filed more than a year after the dismissal of a claim petition for default, to set aside the order. This also clarifies the view of the Legislature with reference to Art. 11-A of the Limitation Act in which the words after an investigation now deleted in Art. 11, never existed. It may be however observed here that it is desirable also to drop the words after an investigation in Order 21, Rule 63 to avoid any doubt in the matter.

10. It may be added that the words after an investigation are generally understood to be equivalent to the words "after an investigation is actually held." What, however, was possibly intended is to make a distinction between claim cases dismissed after refusing investigation under Order 21, Rule 58 (1) Proviso corresponding to old Section 278 Civil Procedure Code and orders passed under Order 21, Rule 60 or 61 corresponding to old Sections 280 and 281 Civil P. C. after an investigation was ordered whether the claimant failed to appear to adduce evidence or actually adduced evidence. It has to be remembered that under the old Section 283, C.P.C., corresponding to Order 21, Rule 63 it is only an order passed after the Court ordered investigation whether there was investigation or not that became conclusive, subject to the results of suits filed within one year from the date of the order and not an order dismissing a claim petition after refusing investigation. No such distinction was made under the old Section corresponding to Order 21, Rules 97 to 103 as there was no provision there for refusing investigation in such cases. When Order 21, Rules 57 to 63 replaced the corresponding sections of the old C.P.C., in 1908 in what was British India Order, 21, Rule 63 was framed without retaining the distinctions between orders made after directing investigation and orders made refusing investigation. It is evidentally to prevent orders dismissing claim petitions after refusing investigation becoming conclusive subject to the result of a suit within one year, that the words after an investigation were added to Art. 11 of Schedule II of our Limitation Act when the new C.P.C., was introduced in Mysore in 1911. This is particularly so as there was difference of opinion in the Courts outside Mysore as is clear from the following passage by Chitaley and Annaji Raos Commentaries on the Code of Civil Procedure at page 2213, Vol. II, IV Edition : "Section 283 of the Old Code applied only to orders passed under Ss. 280, 281 and 282 and consequently it was held that an order passed without investigation rejecting a claim on the ground of delay was not an order contemplated by the section and hence, the one years rule of limitation would not apply to such a case. Under the present rule, it has been held that orders passed, against the claimant or decree-holder, whether with or without investigation, are placed on the same footing, with the result that, if the party against whom the order of rejection is made under the proviso to Rule 58 does not file a suit within one year, the order becomes conclusive against him. The test is whether the order is against the claimaint or decree-holder This does not mean that the order must involve an adjudication on the merits after investigation. Thus, an order passed on a claim, that the allegation of the claimant will be notified to the bidders as the petition was put in too late, has been held by a Full Bench of the High Court of Madras to be a conclusive order against the claimant within the meaning of this rule. But in several decisions, even under the present Code, it has been held that an order passes without investigation is not within this rule."

11. The words "after an investigation" are not found in the provisions of Order 21, Rules 97 to 193. No distinction was even made in those provisions between cases decided after investigation or before investigation. It follows that an order dismissing for default, an application under Order 21, Rule 97, C.P.C., becomes conclusive subject to the result of a suit to be filed within one year. The lower Courts are right in holding that the suit filed more than one year after the dismissal of such an application for default of the petitioner to adduce evidence in the case is barred by time. The appeal stands, therefore, dismissed with costs.

12. VASUDEVAMURTHY, J. :- The plaintiffs father filed a suit for the recovery of a debt due to him on the foot of a mortgage-deed executed by one Hebbaruvaiahs son Krishnappa in O. S. No. 321 of 1931-32 in the Court of the Munsiff at Hunsur. That suit was filed only against Krishnappa, father of defendant 1 and grandfather of defendants 2, 3 and 4. After obtaining a decree the plaintiffs father brought the mortgaged property to sale and purchased it himself in Court auction. When he sought for delivery of possession in Misc. Case No. 168/37-38, he was obstructed by the defendants on 24-3-1938. He then applied in Misc. Case No. 195/37-38 on 2-4-38 under Order 21, Rule 97 of the code of Civil Procedure for removal of obstruction and delivery of possession. That application was originally made against one Boriah and the present defendants. Boriah alone was served with notice of the application and filed his objections. The others apparently could not be served for want of correct address and on 14-10-38 the plaintiffs father gave up all the opponents except Boriah and elected to proceed only against him. When the application came up finally for trial on 6-1-1939 the petitioner as well as his lawyer were absent. The petitioner had not taken steps to summon his witnesses and his lawyer who earlier in the day had offered to address arguments failed to appear when the case was called on later and the petition was dismissed with costs.

13. On 2-2-1940 the plaintiffs father then made another application in Misc. 141/39-40 under Section 151 and Order 21, Rule 95 of the Code of Civil Procedure praying for delivery of possession of the property. To that application he impleaded only the original judgment-debtor Krishnappa; and neither Boriah nor the defendants were included as opponents. He referred in it casually to an obstruction by the judgment-debtors, sons under instructions from the judgment-debtor. He carefully chose to avoid making any reference in that application to his earlier application Misc. 195 of 1937-38 for removal of obstruction and its dismissal for default but referred only to the initial application for delivery made in Misc. 168/37-38. On that application it was noted by the Court (office) that the date of obstruction had not been furnished; but it was also further stated that an application under Order 21, Rule 97 of the code was made within 30 days from date of obstruction without disclosing its dismissal which was obviously misleading. The Munsiff thereupon passed orders calling for records in Misc. 168/37-38 to verify the portion not obstructed but later even before these records were received, he directed delivery of possession by 17-5-1940. The property was accordingly delivered to the petitioner and the application was ordered to be filed.

14. Subsequently, on 29-1-1943 the respondents made an application which was numbered as Misc. 157 of 1942-43 under Section 151 and Section 47 of the Code of Civil Procedure wherein they set out the above circumstances and complained that they had been dispossessed wrongfully by an order for delivery which has been obtained by the decree-holder by suppressing the previous unsuccesion proceedings for removal of obstruction; and they asked for me property being restored to their possession. This application was dismissed by the Munsiff, but in revision in C.R.P. No. 356/ 43-44 the High Court set aside the order of the Munsiff and directed that possession of the property be restored to the respondents. Nagesvara Iyer, J., who heard the C.R.P., found that an order for delivery had been obtained in a fraudulent and "clandestine" way by paying a trick on the Court. That order was passed on 30-8-44. The plaintiff has now brought the present suit alleging that the property concerned in the above proceedings is a self-acquisition of the deceased father of defendant 1 and that the hypothecation dent and decree and the sale proceedings consequent thereon were all binding on the defendants as the debt was incurred by the deceased for purposes of legal necessity and for the benefit of the family. He has prayed for a declaration that the order passed by the High Court was not binding on him and was liable to be set aside, and for delivery of possession of the property and mesne profits. That suit has been resisted mainly on the ground that it is barred by virtue of the provisions of O. 21, R. 103, C.P.C., as the plaintiff had failed to bring a suit to establish his right to claim possession within one year of the dismissal of his application in Misc. 195/37-38. The defendants also pleaded that the properties were not the self-acquisitions of the deceased and that the hypothecation debt, decree and other sale proceedings were not binding on them. The learned Munsiff upheld the former objection and dismissed the suit without going into evidence. That judgment was confirmed on appeal by the Subordinate Judge of Mysore; and the plaintiff has now come up in second appeal.

15. Mr. V. Krishnamurthy, learned counsel for the appellant, contends that as Misc. 195/37-38 was dismissed for default and was not decided on merits after investigation, the appellant was not bound to bring a suit within one year of such dismissal and that Order 21, Rule 103, C.P.C., read with Article 11-A of the Limitation Act is not a bar to his suit. The matter is clearly covered by a ruling of this Court in 3 Mys LJ 222 where Doraswami Iyer and Rama Rao, JJ., have held that, on the wording of Article 11-A of the Limitation Regulation which must be read with Order 21, Rule 103 of the Code of Civil Procedure, even in the case of orders passed without investigation a suit filed after the lapse of one year from the date of dismissal of an application under Order 21, Rule 97 would be barred by time. This case has been referred to with approval and followed in 18 Mys LJ 166 The latter was a case some what similar to the present one. Defendant 4 in that case had purchased a property in Court sale to execution of a decree obtained by him against defendants 2 to 3. The plaintiffs vendor had, however, purchased the property earlier also in execution of a decree. When the plaintiff sued for recovery of possession of that property alleging that he had obtained possession through Court from the judgment-debtors and that he had subsequently been deprived of possession by defendant 4 by winning over his tenant, it was found that defendant 4 had applied to Court for delivery of possession earner but was unsuccessful as the plaintiff and his tenant had offered obstruction. Thereupon defendant 4 had applied for removal of obstruction and delivery of possession. That application was opposed by the plaintiff and was dismissed on the ground that it was barred by time having been preferred more than 30 days after the date of the alleged obstruction. Defendant 4 did not then the a suit under Order 21, Rule 103, of the Code of Civil Procedure for getting the order in the miscellaneous case set aside and to establish his right to present possession of the property, but some time later he again applied under Order 21, Rule 95, C.P.C., and managed to secure delivery of possession of the property. It was held by this Court that by reason of the dismissal of defendant 4s application under Order 21, Rule 97 and his failure to the a suit within one year to set aside that order, his claim to present possession was concluded and even as a defendant he could not resist recovery of possession by the plaintiff. Their Lordships observed that according to the decision in 3 Mys LJ 222 even if an application to remove obstruction is dismissed for default, a suit under Order 21, Rule 103 should have been filed within one year. They go on to say : "whether defendant 4 obtained possession later through Court or by getting round the tenant or by force or by any other way, it is quite clear on the state of the law as it stands and on the authority that as between the plaintiff and D.W. 4, there is a bar provided under Order 21, Rule 103 of the Code and the later has lost his right to possession, and is precluded from either suing as plaintiff to recover possession or to retain possession as defendant."

16. Mr. Krishnamurthy has, however, urged that the decision in 3 Mys LJ 222 may be reconsidered in the right of certain subsequent amendments of the concerned provisions in the Code of Civil Procedure and in the Limitation Act. He represents that, in Mysore, Article 11 of the Limitation Act was amended by Act II of 1939 by deleting the words "after an investigation of a claim" which were originally found in that article, that it was the existence of those words in Article 11 when the 3 Mys LJ 222 case, was decided that impeded Doraswami Iyer, J., to decide that certain rulings under Rule 63 and Article 11 of the corresponding British Indian enactments even though inapplicable to Rule 63 read with Article 11 of the Mysore Limitation Regulation may apply to Rule 103 read with Article 11-A and that now Article 11 of the Mysore Limitation Regulation has been amended the ground on which Doraswami Iyer, J., based his decision may not be applicable with the same force. But it is seen that Doraswami Iyer, J., has observed in 3 Mys LJ 222, that it is not for the Court to state why on principle an investigation is essential under Article 11 and not under Article 11-A for the application of the one years rule and that the Court had to interpret these articles as it found then. Those observations still continue to apply with equal force, if not with greater force. In Mysore Article 11 in the Limitation Act of 1911 has since been amended by Act II of 1939 by omitting the words after an investigation of a claim. And though the object or reason for such amendment may not be legally binding on the Court, it is interesting to notice that the amendment was sought to be made by the legislature because it was felt that a defaulting claimant who applies to the Court for an adjudication under Order 21, Rule 58 and who either by withdrawing it or being in default gets his claim dismissed should not be placed in a better position than an honest or deligent claimant who produced his evidence and contains a decision on the merits of his claim (see Objects and Reasons for the amendment in the note in the Mysore Gazette, dated 17-11-1938 publishing the Bill.) It must also be remembered that it is of great importance that the questions raised in connection with execution of decrees and the cloud cast on a title by reason of an attachment or by dispossession or obstruction should be investigated and disposed of as early as possible and Order 21, Rules 58 to 63 and Order 21, Rules 97 to 103 are designed for that purpose. Articles 11 and 11-A prescribe a comparatively short period of limitation for bringing a suit which is made compulsory by virtue of the provisions in Order 21, Rule 103 with the same object. As observed by the Privy Council in Sardharilal v. Ambika Pershad, 15 Cal 521 : "The policy of the (Limitation) Act evidently is to secure speedy settlement of questions of title raised at execution sales and for that reason a year is fixed as the time within which the suit must be brought." It is of course not incumbent on a stranger to the litigation whose property has been attached or whose possession is disturbed or for the auction purchaser who is obstructed when he seeks to obtain possession always to file an application invoking the summary jurisdiction of the Court under those provisions but if he does so there can be no hardship, much less grievance to him, if he is compelled to bring a suit early to have any adverse order passed in those proceedings as a result of his own negligence of default set aside by a regular suit so that the realisation of the fruits of the decree may not be delayed or deferred unnecessarily. He has also in addition a remedy to have the dismissal order set aside and the application re-heard by filing a miscellaneous application within 30 days and by showing proper cause for his default; See Safdar Ali v. Kishun Lal, 7 Ind Cas 241 (Cal); 3 Mys L Jour 218 and 7 Mys L Jour 263. It has also to be noticed that Sarat Chandra v. Tarini Prasad, 34 Cal 491 which was decided in 1907 and Surendra Nath v. Rajani Kanta, 41 Ind Cas 446 (Cal) now relied on by Mr. Krishnamurthy have been referred to in 3 Mys L Jour 218 and have not been followed, the former on the ground that it was no longer good law after the passing of the new Code of Civil Procedure and the Limitation Act in 1911. The earlier cases of this Court in 15 Mys OCR 223 and 18 Mys CCR 116 were also not followed for the same reason.

17. Two more recent cases in Nirode Borani Dasi v. Moindra Narayan. 26 CWN 853; AIR (9) 1922 Cal 229 and Wamandhar v. Kampta Prasad, AIR (13) 1926 Nag 423 : 97 IC 178 have also been cited for the appellant. In the latter case the claim was really one under Order 21, Rule 16 and that decision is not of any use to him. The learned Judges who decided 26 CWN 853 observed : "It is difficult to reconcile all these decisions. It may be said as was urged in some of the cases that there is no reason why the limitation should apply where the party appears and is unable or does not adduce evidence and that the limitation should not apply where the party takes care not to come to Court on the day fixed for hearing." But they considered that a distinction has been drawn in the Code of Civil Procedure between a case where it is dismissed for default and a case wnere a party appears and falls to adduce evidence and me case is in consequence dismissed in which event the dismissal is not one for default, They chose to follow the line or decisions like Kunj Beharilal v. Kandh Prasad Narain Singh, 6 Cal L Jour 362, 34 Cal 491 and distinguished Shagun Chand v. Shibbi, 8 All L Jour 626 and Chand Prasad v. Nand Kishore, 20 Ind Cas 369 (All), on the ground that in the first of these cases the pleader for the petitioner had appeared and stated that his client did not with to adduce any evidence and the application was therefore dismissed and that in the second case counsel for from parties were present and no evidence was adduced. With great respect it is rather difficult to follow this reasoning. The difference in the Code between an ex parte decision and a decision given in the presence of a party appears mainly it not wholly to lie in whether he can have it reopened by an application.

18. Mr. M.P. Somasekhara Rao, learned counsel for the Respondents, contends that there is no hard and fast rule as to what extent the investigation in the case of an application under Order 21, Rule 97, 98 or 99 should go as pointed out by the Judicial Committee in Sardhari Lal v. Ambika Pershad, 15 Cal 621. He urges that merely because the claimant does not appear to adduce evidence in support of his claim it cannot be said that there has been no investigation and he has relied on Gokul v. Mohori Bibi, 40 All 325, and to 20 Ind Cas 369 (All) and 6 Cal L Jour 362 which have been referred to with approval in that case and a case reported in Gulab v. Mutasaddi Lal, 41 All 623. In the last case which was a case of a claim under Order 21, Rule 58 the claimant failed to appear on the date fixed for the hearing of his petition and an order was made disallowing his claim on account of his absence. In second appeal the High Court held that a suit brought by a purchaser from him more than one year after that order was barred by limitation under Article 11 as the order disallowing the objection was an order against the objector within the meaning of Rule 63 of Order 21, which word is the same as is used in Rule 103. At page 625 the learned Judges observe : "We find it impossible to hold that where an objector comes forward and says that he cannot sustain the objection the article applies, while if he takes care to remain absent the article will not apply. It is quite clear that the policy of the law is that these objections should be speedily decided and that there should be a short period of limitation allowed for the party against whom the order was made." and refer to the clear policy of the law that such objections should be speedily decided and that there should be a short period of limitation allowed for the party against whom the order is made. In Shagunchand v. Shibbi, 10 Ind Cas 401 (All), a suit brought beyond one year after the dismissal of the plaintiffs earlier application which had been dismissed as the applicant had not adduced any evidence "as he did not wish to do so", was held to be barred under Section 335 of the Old Code of Civil Procedure corresponding to Order 21, Rule 103 of the present Code. In Hari Sadey Saha v. Mahendra Narain Raj, AIR (22) 1935 Cal 267, it has been held relying on 15 Cal 521, that in proceedings under Order 21, Rule 97 when the auction-purchaser is present but does not adduce evidence and the Court passes an order on the basis of some evidence let in by the opposite there was sufficient investigation so as to it under Article 11-A of the Limitation Act.

19. If an application under Order 21, Rules 97, 98 or 99 is posted for enquiry or trial and the parties are given an opportunity to establish their claims but the petitioner or his opponent chooses to remain absent or fails or refuses to adduce evidence in support of his contention and the Court therefore proceeds to pass an order either allowing or dismissing the claim because the party whom the burden and the duty lay to produce evidence failed to do so it is difficult to see how there was no investigation so as to entitle the unsuccessful applicant to say that no order which be was bound to have set aside under Order 21, Rule 103 within one year has been made against him. Instead of trying to reconcile this conflict of decisions again, it appears safer to follow the case reported in 3 Mys LJ 222 which was decided so far back as 1925 and has apparently been accepted and followed by our Courts and litigants as a safe rule of procedural law and to hold that it has not now been shown why that decision should be disturbed.

20. In the result this appeal fails and is dismissed with costs. Appeal dismissed. AIR (39) 1952 MYSORE 32 (C. N. 13) "Shivaramiah v. Rangamma" MYSORE HIGH COURT Coram : 2 BALAKRISHNAIYA AND MALLAPPA, JJ. ( Division Bench ) B. Shivaramiah, Plaintiff-Appellant v. Rangamma and others, Defendants-Respondents. Second Appeal No. 95 of 1948-49, D/- 12 -9 -1951. (A) Succession Act (39 of 1925), S.87 - SUCCESSION - Request in favour of husband and wife - Intention of testator - Legatees whether take property as joint tenants. Where a gift or bequest is made in favour of more than one person, then whether the donees or the legatees take the property as joint tenants or tenants-in-common depends upon the intention of the donor or testator as could be gathered from the gift deed or the will and the other surrounding circumstances. No such question of finding out the intention of the donor or testator arises where the intention is apparent on the face of the document. (Note : In this case, after considering the relevant portion from the will of the testator, it was held that what was intended by the testator was that both the wife and husband in whose favour the property was bequeathed should take the property as joint tenants, the survivor becoming the owner of the entire property. After the death of the husband the wife became the absolute owner of the entire property and the plaintiff even if he was her adopted son could not divest her of her sthridhana property.) 32 Mys CCR 164, Foll. Opinion expressed in 6 Mys L Jour 301, held obiter. Case law Ref. (Paras 5, 6) Anno : Succession Act, S. 87, N. 1. (B) Specific Relief Act (1 of 1877), S.39 - DEED - Deed containing admission obtained fraudulently - Necessity of cancellation of deed. Nothing comes in the way of a person who has made an admission in a document from showing that that admission is not true and that it was taken fraudulently. It is unnecessary to get a deed contending an admission cancelled to enable the person who has made that admission to plead and to prove that what is admitted is not really true. (Para 7) Anno : Specific R. Act, S. 39, N. 1. (C) Civil P.C. (5 of 1908), S.11 - RES JUDICATA - ADOPTION - Ground of defence - Plea of adoption not set up as defence in previous suit - Res judicata. Where an adoptive son fails to set up the plea of adoption in the previous suit filed by the widow of the person who is alleged to have adopted the son for declaration of her title to suit property denying his title, and that suit is decreed, the subsequent suit by the son to establish his title to the property on the same ground is barred by principles of res judicata. (Para 7) Anno : C. P. C., S. 11, N. 39. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases). (1854-57) 6 Moo Ind App 526 : (4 WR 114 PC) 4 (74-75) 2 Ind App 7 : (14 Beng LR 226 PC) 4 (96) 23 Cal 670 : (23 Ind App 37 PC) 4 (02) 25 Mad 678 : (29 Ind App 156 PC) 4 (13) 20 Ind Cas 756 (All) 4 (21) 63 Ind Cas 301 : (AIR (8) 1921 All 50) 4 (11) 34 Mad 80 : (6 Ind Cas 7) 4 (25) 49 Mad LJ 358 : (AIR (13) 1926 Mad 33) 4

21 Mys CCR 114 5

32 Mys CCR 164 3, 4, 6

48 Mys HCR 368 5

55 Mys HCR 67 5

6 Mys LJ 301 3, 6

9 Mys LJ 436 5 Nittoor Srinivasa Rao, for Appellant. A.R. Somanatha Iyer, for Respondents. Judgement MALLAPPA, J. :- This is an appeal against the judgment in R. A. 66 of 1946-47 on the file of the Additional Subordinate Judge, Bangalore, dismissing the appeal and confirming the judgment in O. S. No. 168 of 1945-46 on the file of the Second Munsiff, Bangalore.

2. The suit was for declaration of plaintiffs title to and for possession of the suit property with mesne profits. It is not disputed that Venkatappa was the original owner of the property and that he under a will bequeathed the suit property to his grand daughter the first defendant and her husband deceased Ramiah, with a life estate to Thimmi the mother of the first defendant. Thimmi and Ramiah are dead. The plaintiff claims the properties as the adopted son of Ramiah. The learned Munsifl held that the adoption was not true and dismissed plaintiffs suit. The learned Subordinate Judge holds that under the will the first defendant and her husband took a joint tenancy and as she was the survivor of the whole property, the adoption even if true did not divest her of the suit property which is her sthridhana property. On the other hand it is contended that the first defendant and her husband took the property under the will as tenants in common and that after the death of Ramiah his heir acquired his interest.

3. The main point, therefore, for consideration in this case is, whether, when a property is bequeathed under a will to more than one person, they take the property as joint tenants or tenants in common. The question has often come up before this Court for consideration when properties had been bequeathed or gifted to more than one person. In some of the cases they were members of a joint family and in some other cases they were, as in this case, husband and wife, but the principle well recognisea in all cases of this kind is the same and it is to find out from the document and the surrounding circumstances the intentions cf the donor or testator. There is, however, it is urged some conflict of opinion in the decision reported in 32 Mys CCR 164 and 6 Mys LJ 301. It was observed in the latter case, in a case of a gift to a daughter and son-in-law by a person who had no sons : "that the daughter and the son-in-law took the bequest as tenants in common and not as joint tenants and that on the death of either of them the interest of the deceased would pass to his or her heirs." A contrary view is taken in 32 Mys CCR 164 and that is why the matter needs some consideration.

4. As observed in the case reported in 32 Mys CCR 164 at p. 172 after considering a number of decisions : "It is very hard therefore to import from the decisions any general rule to suit cases of all documents, Bitti Bibi v. Jai Gopal Singh, 20 Ind Cas 756 (All), nor can there be in the absence of rules for deviation any distinction in the matter between wills and gifts, Arakal Joseph Gariel v. Domingo Inas, 34 Mad 80. The only rule of construction is to find out the meaning of the testator or settlor taking the whole of the document together, with special care however not to judge the language used by the Hindu solely according to the technical rules of English law which are applicable to a different state of society : Maynes Hindu Law, 9th Edition, page 605 and Ram Piari v. Krishna Piari, 63 Ind Cas 301. In Mahomed Shumsool Hooda v. Shewukram, 2 Ind App 7, their Lordships of the Privy Council say : "In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu generally desires that an estate........shall be retained in his family." Again in Soorgeemoney Dossee v. Denobundoo Mullik, 6 Moo IA 526 the Judicial Committee observe, The Hindu Law no less than the English Law points to the intention as the element by which we are to be guided in determining the effect of a testamentary disposition. Primarily, the words of the will are to be considered. They convey the expression of the testators wishes, but the meaning to be attached to them may be affected by surrounding circumstances." It is no doubt true that their Lordships of the Privy Council in Jogeswar Narain Deo v. Ramachandra, 23 Cal 670, pointed out that the principle of joint tenancy appears to be unknown to Hindu Law, except in the case of coparcenary between the members of an undivided family. Phillips, J., has pointed out in Muthukaruppa Muthirian v. Sivabhagyathammal, 49 Mad LJ 358, that the dictum in Jogeshwar Narain Deo v. Ramachandra, 23 Cal 670, was too broadly stated and not strictly accurate and in fact in a later case of the Privy Council Venkayyammagaru v. Venkataramanayyamma Bahadur. 25 Mad 678, instances of persons other than coparceners taking property jointly according to Hindu Law have been recognised as observed in 32 Mys CCR 164.

5. In considering the nature of a gift or a will it is unnecessary to begin with an idea that under no circumstances the donees or legatees take the property as joint tenants. The question has to be decided after finding out the intention of the donor or testator as could be gathered from the gift deed or the will and the surrounding circumstances, though in the case reported in 48 Mys HCR 368 it was observed that the principle of joint tenancy is unknown to Hindu Law which governs the parties except in the case of the joint property of an undivided Hindu family governed by the Mitakshara Law, and that where a gift is made to two or more donees prima facie they will take the property as tenants in common, the decision makes it clear that the Courts have to depend upon the intention of the donor, to decide whether the donees take the property as joint tenants or tenants in common. As observed in that case : "Where a gift is made to the members of a joint family by a paternal ancestor, whether they take the property as joint family property or self-acquired property would depend on the question whether the ancestor intended that the property should be taken by them as members of a joint family on behalf of the family. If the gift is to the family, the members take the property and hold it as joint family property. Where the gift is only to some members of a joint family, they must be deemed to take the property as tenants-in-common in the absende of anything to the contrary." The same principle has been recognised in the full Bench Decision of this Court reported in Abdul Wazid v. Viswanath, 55 Mys HCR 67. Though, when a property is gifted to all the members of a joint family by one of the ancestors it may be said that it would be correct to presume that the property was intended to be taken as joint family property of all the members, the gift deed may show that the reverse is the case. It may be clear from the gift deed that different portions of the property was intended to be taken by each of the donees separately as laid down in the decision reported in 9 Mys LJ 435. On the whole it will be seen that the trend of all the decisions makes it clear that whether the donees or the legatees take the property as joint tenants or tenants in common depends upon the intention of the donor or testator as could be gathered from the gift deed or the will and the other surrounding circumstances. No such question of finding out the intention of the donor or testator arises where the intention is apparent on the face of the document as in the case reported in 21 Mys OCR 114.

6. Whether it is a case of a gift or a will in favour of the members of a joint family or of a will or gift in favour of a husband and his wife, the same principle is applicable. The case on hand is exactly similar to the one considered in the decisions reported in 32 Mys OCR 164. In that case under a gift deed some properties were bequeathed to Chikkaparvathamma and her husband Basappa, daughter and son-in-law of the donor. Basappa died earlier and Chickaparvathamma later. It was observed as follows : "Now considering the facts in the present instance we have no doubt that it is a case of joint tenancy. If Chicka Parvathamma had only died before her husband, in all probability the plaintiff himself would have been foremost in settling up a joint tenancy; yet the deaths of Basappa and Lingappa before Chickaparvathamma were due to bare chances, and it is absurd to make the construction of the deed depend upon any such contingencies; We must look at the question from a laymans point of view putting ourselves in the position of Lingegowda an aged person who being sonless and having only a daughter presumably wanted to provide for those nearest and dearest to him and could not have intended that the property should in any event pass to the cousins of his son-in-law Basappa. The feelings that actuated Lingegowda in making the settlement, as in the case of all fathers and grandfathers and is also deposed to by witness Gopalakrishnayya an old man of sixty who wrote the deed of settlement must naturally have been to make provision for his daughter and her offspring. In fact it might not be unreasonable even to hold that the document created a joint tenancy in favour of the married couple and their offspring; it would be a gift to "A and B who could marry, and the heirs of their bodies", A and B enjoy the property during their lives the survivor takes the whole and it descends on the children born of their marriage - See Nelsons Law of property, page 242." The above observations are applicable to the present case as both the caees are exaclSy similar According to the will in this case the testators intention is clear from the following extract : "My son Veukatarangu died five or six years ago since then his widow Thimmi with her daughters Rangi aged about ten years and Thimmi, aged about 8 years are with me and under my protection. After considering the question of the future conduct of my family I celebrated the marriage of my grand-daughter Rangi with my daughter-in-law Thimmis brother Rama, aged about 18 years and am having this boy with me after this marriage. Therefore the house in my patta and the wet and dry lands in my daughter-in-law Thimmis patta more fully described here-under, shall be enjoyed after my and my daughter-in-law Thimmis death by my grand-daughter Rangi and her husband Rama. No portion of my properties shall go to any of my dayadees." The extract of the gift deed considered in Basavayya v. Lingiah, 32 Mys CCR 164 is as follows : "I have no sons and I have grown old. I have enjoined on you to protect me and my wife as long as we live, perform our obsequies after our death, and enjoy the properties. Our Gnathies have no kind of right or interest in the said properties. I have executed this document in favour of my daughter Parvathamma and my son-in-law Basavegowda out of my free will so that henceforward they and their posterity may enjoy all the properties herein mentioned with all rights and benefits appertaining thereto." In both the cases it is clearly stated that no portion of the properties should go to any of the Dayadees. It is clear that what was intended by the testator is that both the wife and husband should take the property as joint tenants, the survivor becoming the owner of the entire property. After the death of Ramiah, the husband of the Respondent Rangamma alias Ve.nkatarangamma, she became the absolute owner of, the entire property and the Plaintiff appellant even if he is her adopted son cannot divest her of her Sthridhana property. It is no doubt true that the decision in 6 Mys LJ 301 lays down in almost a similar case that the daughter and son-in-law took the bequest as tenants in common and not as joint tenants and that consequently upon the death of the wife her half share in the properties passed to the heir of her Sthridhana property, namely, her husband. There is no discussion on the point now under consideration as in that case it did not arise for consideration at all. In that case the daughter died first leaving her husband as her heir to her Sthridhana property. He would have got the property even if they took the property as joint tenants he being the survivor of the two. The opinion expressed in 6 Mys LJ 301, is therefore, it must be stated with respect, an obiter dictum and the decision in 32 Mys OCR 164 has to be followed.

7. The opinion of the learned Subordinate Judge that the adoption must be held to be true is not correct. He is also wrong in holding that the suit is not barred by res judicata. Respondent Rangamma alias Venkatarangamma had executed Ex. A dated 2-2-1931 in favour of Byrappa father of the plaintiff enabling him to look after the management of the property. At the same time a mention had been made in the document that the plaintiff had been taken by her in adoption. She filed a suit in O.S. 373 of 1939-40 on the file of the Second Munsiff, Banaglore, against Byrappa as well as the present plaintiff. It was alleged in that case, as is clear from the copy of the plaint Exhibit I. that the plaint Schedule properties are the Sthridhana properties of Rangamma the plaintiff in that case. It is also stated that she executed only an agreement for management of the properties and that the plaintiff (defendant?) is wrongly setting up the second defendant as the owner of the schedule properties. As against both the defendants a declaration was sought for that the plaintiff in that suit as the owner of the properties and that both, of them had no manner of interest or title to the property. That suit was decreed. Therefore both the plaintiff and his father are barred by the principles of res judicata from thing a suit like the present one to establish their the to the paint schedule property. As regards the question of adaption the learned Subordinate judge was of opinion that the adoption is binding on the respondents Rangamma as sue did not get Ex. A cancelled, it must be remembered that Ex. A is not a deed of adoption. It contains only an admission of the respondent Rangamma that the boy was taken in adoption by her. Nothing comes in the way of a person who has made an admission in a document. From showing that that admission is not true and that it was taken fraudulently. It is unnecessary to get a deed containing an admission canceled to enable the person who has made that admission to plead and to prove that what is admitted is not really true. Considering that the only reason that induced the learned Subordinate Judge to reverse the finding of the learned Munsiff on the question of adoption is the wrong view that Ex. A should be got cancelled by the respondent before she could deny the adoption, it has to be stated that on this aspect of the matter, the view of the learned Munsiff has to be accepted. The plaintiff has not only failed to make out that he is the adopted son of Ramiah, but also to show that he has any interest in the properties. Since he failed to set up the plea of adoption in the previous suit filed by Rangamma for declaration of her title to suit property denying his title, and since that suit was decreed, the present, suit by plaintiff is barred by principles of res judicata. The power Courts are right in deciding the case against him. The appeal stands dismissed with costs.

8. BALAKRISHNAIYA, J. :- I agree. Appeal dismissed. AIR (39) 1952 MYSORE 34 (C. N. 14) "Venkataramana v. Govt. of Mysore" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) Venkataramana, Accused-Petitioner v. Government of Mysore. Criminal Revn. Petn. No. 333 of 1950-51, D/- 17 -8 -1951. (A) Penal Code (45 of 1860), S.495 - MARRIAGE - EVIDENCE - Conviction on uncorroborated evidence of woman enticed. Evidence regarding the actual enticing away of the woman enticed though uncorroborated may be sufficient to found a conviction when the woman is neither of a bad character nor is of a depraved nature. AIR (26) 1939 Pat 536, Dist. (Para 5) Anno : Penal Code., S. 498, N. 10. (B) Penal Code (45 of 1860), S.49 - MARRIAGE - Intention. In the prosecution for an offence under S. 498, the evidence about the intention has to be gathered from the surrounding circumstances. AIR (22) 1335 Cal 677 Foll. (Para 6) Anno : Penal Code, S. 498, N. 2. (C) Criminal P.C. (5 of 1898), S.199 - MARRIAGE - MAGISTRATE - Offence under Penal Code, S.498 - Complaint by husband - Magistrate referring complaint to police - Process issued after receipt of police report - Jurisdiction of Magistrate to enquire into offence. The complainant presented a complaint petition to the Magistrate for taking action against the accused and his father for offences under Ss. 379, 497 and 498 Penal Code, for having enticed away his wife with jewels and money. After recording the sworn statement of the complainant the Magistrate referred the petition to the police. The police after investigation, placed a charge-sheet when process was issued to the accused. It was argued that since the Magistrate referred the petition to the police tinder Ss. 155 and 156, Criminal P. C., he did not take cognisance of the offence upon the complaint by the husband but must be deemed to have taken cognizance of the same on the report of the police when process was issued to the accused, and that the conviction under S. 498, Penal Code, was illegal as the Court had no jurisdiction to enquire into the offence except on the complaint of the husband as required under S. 199, Criminal P. C. Held that before making the reference to the police the Magistrate had taken the sworn statement of the complainant which must necessarily have been done under S. 200, Criminal P. C. The action under S. 200 implied that the Magistrate had taken cognizance of the complaint. The procedure thus adopted by the Magistrate in having referred the matter to the police for investigation after recording the sworn statement should in effect be taken to be under S. 202, Criminal P. C. and not under Ss. 155 and 156. The complaint which remained on the file and formed the basis for initiating the proceedings satisfied the requirements of S. 199, Criminal P. C. AIR (38) 1951 SC 207, AIR (37) 1950 Cal 437, Ref. (Para 9) Anno : Penal Code, S. 498, N. 7; Cr. P. C., S. 199, N. 4. (D) Penal Code (45 of 1860), S.498 - MARRIAGE - OBJECT OF AN ACT - Object of. The object of S. 498, Penal Code, is not so much to protect the husband as to inflict punishment on those who interfere with the sacred relation of marriage. AIR (4) 1917 Mad 220 Rel. on. (Para 10) Anno : Penal Code, S. 498, N. 14. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes alter the Indian Cases). (51) AIR (38) 1951 SC 207 : (52 Cri L Jour 775) 9 (87) 14 Cal 707 (FB) 8 (35) 39 Cal WN 1280 : (AIR (22) 1935 Cal 677 : 37 Cri LJour 28) 6 (47) 82 Cai LJour 222 9 (49) 53 Cal WN 653 9 (50) AIR (37) 1950 Cal 437 : (52 Cri LJour 806) 9 (16) 17 Cri LJour 363 : (AIR (4) 1917 Mad 220) 10 (39) AIR (26) 1939 Pat 536 : (41 Cri LJour 1) 5 P.S. Devadas, for Petitioner; A.R. Somanatha Iyer, Advocate General, for Govt. of Mysore. Judgement The petitioner has been convicted for an offence under S. 498, Penal Code, by the First Class Magistrate, Ramanagaram, and sentenced to undergo rigorous imprisonment for a period of six months. On appeal, the conviction and sentence have been confirmed. It is against that judgment, the revision to this Court is preferred by the petitioner.

2. Both the lower Courts have considered the evidence in detail and reached the conclusion. A few salient features relating to the case may be stated in order to test the appreciation of evidence. Shivalingappa, the petitioner, is alleged to have enticed away one Nanjamma, the wife of the complainant, and detained her at Bangalore with Intent to have illicit intercourse with her. The complainant, the husband of the said Nanjamma, who is examined as P. W. 8 has sworn to the fact that the accused was frequenting his house and talking to his wife in familiar terms; in consequence thereof he had expressly prohibited him from visiting his house. In the complaint petition, marked Exhibit P-2, a detailed account of the relationship that existed previously between the accused and the complainants wife has been recounted and, it is stated that, he (the complainant) straight- way suspected the accused soon after he found his wife missing.

3. The principal witness in the case is Nanjamma herself who is examined as P. W. 1. Her account of the incident is clear and convincing. She deposes that the accused was visiting her now and then and chatting rather intimately with her. She further gives a detailed history as to how she was tempted by the offer of jewels and lands which ultimately induced her to leave her husbands house and follow the accused. She has also spoken to the fact of the accused having removed her in a car to Bangalore and kept in a house near the Mental Hospital for about 20 days. P. W. 2 deposes that the accused and P. W. 1 were living in particular rooms at Bangalore and this fact is fully supported by the evidence of P. W. 6. There is, thus, clear and cogent evidence to show that the accused has enticed away P. W. 1 and that with intent to have illicit intercourse. This is proved beyond doubt by the fact that they lived as man and wife at Bangalore for a number of days.

4. The defence evidence is only directed to prove some ill will between the complainant and the father of the accused. One defence witness is examined to show that the husband and wife were constantly querrelling and P. W. 1 left the house of her own accord after one such quarrel. The evidence is not only inconclusive but also insufficient to rebut the convincing case made out by the prosecution evidence.

5. Sri Deva Doss, the learned Counsel for the accused, contended that the evidence regarding the actual enticing away of P. W. 1 is that of P. W. 1 herself which stands uncorroborated and is insufficient to base a conviction upon. In support of this position, he relied upon a decision in Sachinder Rai v. Emperor, AIR (26) 1939 Pat 536 wherein it has been held that in sexual offences, the failure of the Judge to warn the jury of the danger of convicting the accused on uncorroborated testimony of a girl amounts to misdirection "particularly when the girl has made hopelessly inconsistent statements and shown herself to be an unscrupulous liar". The qualification extracted from the decision is very significant and there is nothing on record in this case to show that P. W. 1 is "an unscrupulous liar" or a woman of either a bad character or of a depraved nature. This decision does not appear to support the argument of the learned Counsel.

6. The next contention is that the intention of the accused is not clearly proved. The evidence about the intention has to be gathered from the surrounding circumstances. In Jnanendra Nath v. Kshitish Chandra, 39 Cal WN 1280, it has been observed thus "The fact that Janendra and the girl stayed together at night at Surobalas house is sufficient to show that there was criminal intent within the meaning of the section". In the same case, it hap also been held that the fact that the girl went away of her own accord is immaterial to constitute an offence under S. 498, Penal Code. I am of opinion that the lower Courts are amply justified in holding that the accused is guilty as it is proved beyond doubt that he enticed away the wife of the complainant who was under her husbands protection and detained her with intent to have illicit intercourse.

7. The learned Advocate for the accused next urged that the conviction in this case under S. 498, Penal Code, is illegal as the Court had no jurisdiction to enquire into the offence except on the complaint of a specified person as required under S. 199, Criminal P. C. This objection takes us to the history of the complaint. One Shivalingappa presented a complaint petition to the Magistrate on 8-11-1949 for taking action against the accused, and his father for offences under Ss. 379, 497 and 498, Penal Code, for having enticed away his wife Nanjamma with jewels and money. After recording the sworn statement of the complainant the Magistrate endorsed upon the petition as follows : "As petition allegations disclose offence cognizable in nature, I refer the petition under Ss. 155 and 156, Criminal P. C., to concerned police to investigate and submit report in respect of all offences alleged. Await report by 24/11." The police, after investigation, placed a charge-sheet on 13-1-1950 when process was issued to the accused. S. 199 embodies one of the exceptions to the general rule that a prosecution could be initiated by any person for, it provides that no Court shall take cognizance of an offence under S. 497 or 498, except upon a complaint made by the husband of the woman.

8. It is argued that since the Magistrate referredthe petition to the police under Ss. 155 and 156, Criminal P. C., he did not take cognizance of the offence upon the complaint by the husband but must be deemed to have taken cognizance of the same on the report of the police when process was issued to the accused. The word Complaint is defined in S. 4(1) (h), Criminal P. C., as an allegation made to a Magistrate with a view to his taking action that some person has committed an offence but it does not include the report of a police officer. The requirements of a valid complaint are therefore that (1) the facts alleged should prima facie constitute an offence and (2) the facts should be brought to the notice of the Magistrate with a view to his taking action Queen Empress v. Sham Lall, Vide 14 Cal 707 (FB) It is not doubted that the allegations in the complaint petition presented to the Court disclose an offence and, in fact, in the complaint itself a specific mention is made that one of the offences alleged to have been committed is punishable under S. 498. The Magistrate may take cognizance of an offence in either of the three specified cases mentioned in S. 190 of the Code. It is true that the expression to take cognizance has not been defined anywhere in the Code; but the expression taking cognizance is interpreted to mean taking legal notice of the matter and the Magistrate applying his mind to the suspected commission of the offence". The question raised for consideration is whether the Magistrate by referring the petition before him to the police has failed to take cognizance of the complaint.

9. Chapter XIV, Criminal P.C., deals with information to the police and their powers to investigate. Section 155 relates to the information in non-cognizable cases and prohibits the police officer from investigating into a non-cognizable case without the orders of a Magistrate. Section 156 deals with investigation into cognizable cases and Cl. (3) enables the Magistrate, empowered under S. 190, to order such investigation. The complaint in the present case comprises allegations constituting both cognizable and non-cognizable offences and the Magistrate has evidently referred the petition for investigation as it disclosed a cognizable offence also. In such a case, the reference to the police to do what independently of the Magistrates they have the power to do but which they might not have done i.e. to investigate a cognizable offence, has only reference to a stage previous to that of taking cognizance of the offence. On the other hand a Magistrate may take cognizance under S. 190 (1) (a), Criminal P. C. of an offence upon receiving complaint of facts which constituted an offence; Chapter XVI of the Code provides the procedure regarding complaints to Magistrate. Under S. 200 of the Code, a Magistrate taking cognizance of an offence, shall at once examine the complainant on oath, and the terms of S. 200 imply that the Magistrate should have taken cognizance of an offence before he proceeds to examine the complainant on oath. In a recent decision of the Supreme Court R.R. R.R Chari v. State Of Uttar Pradesh, AIR (38) 1951 SC 207 Kania, C.J., referred with the approval to the statement of Das Gupta, J., in Supdt. and Remembrancer of Legal Affairs West Bengal v. Abani Kumar Banerjee, AIR (37) 1950 Cal 437 thus. "When a Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter (Chapter XVI) but for taking action of some other kind e.g. ordering investigation under S. 156(3) or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence." Das Gupta, J., observes in the Calcutta case following the decisions in Dr. Robiul Hossain v. K.K. Ram, 82 Cal L Jour 222 and Pulin Behari Ghosh v. The King, 53 Cal WN 653 that "When a petition of complaint is field before a Magistrate, the Magistrate may take cognizance under S. 190(1) (a), Criminal P. C., and proceed to examine the complainant under S. 200 and thereafter proceed according to the subsequent sections of the Code, or in the alternative, may not take cognizance and may instead send it to the police for investigation under the provisions of S. 156(3), Criminal P. C." It is undisputed that the Magistrate is not bound to take cognizance of an offence merely because a petition of complaint is filed before him; he may straightway dismiss the complaint or send it to the police for investigation. But when he applies his mind and proceeds to examine the complainant under S. 200, Criminal P.C., he is deemed to have taken cognizance of the complaint. In such a case he must proceed further as indicated in the subsequent sections of Chapter XVI. In the present case, the fact that the Magistrate has taken judicial notice of, and applied his mind to, the contents of the complaint, is reflected in the reason he has recorded for making a reference to the police to the effect that the complaint discloses an offence of a cognizable nature. Before making the reference he has taken the sworn statement of the complainant which must necessarily have been done under S. 200, Criminal P.C. The action under S. 200 implies that the Magistrate had taken cognizance of the complaint. The procedure thus adopted by the Magistrate in having referred the matter to the police for investigation after recording the sworn statement should in effect be taken; to be under S. 202, Criminal P. C., and not under Ss. 155 and 158 which reference is undoubtedly irregular. The complaint which remained on the file and formed the basis for initiating the proceedings satisfies the requirements of S. 199, Criminal P.C. In view of the circumstances of this case under which the Magistrate has examined the complaint, I feel no doubt that he has taken cognizance of the complaint and initiated the proceedings on the complaint of the husband himself. The point, therefore, raised by the learned Advocate is without substance.

10. There remains the question of sentence. The object of S. 498, Penal Code, is not so much to protect the husband as to inflict punishment on those who interfere with the sacred relation of marriage vide In re, Rathana Padayachi, 17 Cr. LJ 363 at p. 364 (Mad.) In the present case, there are no extenuating circumstances to consider the rigorous imprisonment for six months as being severe or excessive.

11. In the result, I see no reason to interfere with the conviction and sentence passed by the learned trial Magistrate and upheld by the learned Sessions Judge. The revision petition is accordingly dismissed. The petitioner will surrender to bail and undergo the sentence. Revision dismissed. AIR (39) 1952 MYSORE 37 (C. N. 15) "Chikkathimma Reddi v. State of Mysore" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) N. B. Chikkathimma Reddi and another, Accused Nos. 1 and 2 Petitioners, v. The State of Mysore. Criminal Revn. Petn. No. 32 of 1951-52, D/- 7 -8 -1951. Criminal P.C. (5 of 1898), S.344 - ADJOURNMENTS - MAGISTRATE - Stay of Criminal proceedings during pendency of civil suit - Power of Magistrate. A Magistrate has every power under S. 344, Cr. P. C. to postpone the commencement of the criminal case or to adjourn it pending decision of the civil case, in case he finds that the point in dispute is one which the criminal Court cannot finally adjudicate upon and it is much better that it is decided by the civil Court . 46 Mys HCR 639 Foll 40 Mys HCR 149 held overruled. Thus when the parties are the same or substantially the same, and the subject-matter in issue both in the criminal case and the civil suit is substantially the same, the proceedings in the criminal case should be stayed till there is an adjudication on the point in the civil Court. Held, that as both conditions existed in the case the Magistrate did not use his discretion properly in not having stayed the criminal case pending decision of the civil suit. (Para 3) Anno : Cr. P. C, S. 344, N. 11. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Cases.) comes after the Indian Cases).

39 Mys HCR 544 1

40 Mys HCR 149 1

46 Mys HCR 639 1, 2

V.L. Narasimhamurthy, for Petitioners; M.K. Sreenivasa Iyengar; for A.R. Somanatha Iyer, Advocate-General, for the State. Judgement This is a revision petition against the order of the learned Special First Class Magistrate, Chickballapur, refusing to stay proceedings in C. C. No. 1536 of 50-51 on the file of Ms Court pending decision of the matter in dispute between the complainant before the Police and the accused, in O. S. 263 of 50-51 on the file of the Munsiff of Doddaballapur. According to the criminal case the accused have committed theft by cutting and removing some timber. The case of the complainant before the Police is that he purchased them from one Hanumantha Reddy. One of the accused has filed a suit claiming the timber as his having purchased the same from not only Hanumantha Reddy but also his two brothers. The complainant before the police has in the civil suit denied the genuineness of the document in favour of the principal accused and claims to have purchased the timber from Hanumantha Reddy. Thus it has to be stated that the principal accused in his plaint admits his cutting and removing the trees and has claimed relief in respect of the obstruction caused by the complainant before the police. The main point of dispute in both the cases is who the owner of the trees is. The point for consideration to whether the learned Magistrate used his discretion properly in refusing to stay the proceedings in his Court pending decision of the same matter in the civil Court. As stated in Section 344 (1) of the Code of Criminal Procedure : "If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor, from time to time, postpone or adjourn the same." The learned Magistrate had every power to postpone the commencement of the criminal case or to adjourn it pending decision of the civil case under this section, in case he found that the point in dispute is one which fee criminal Court cannot finally adjudicate upon and it is much better that it was decided by the civil Court. Though it was held by this Court in a case reported in 40 Mys HCR 149 that Section 344 of the Code of Criminal Procedure confers no authority on a trial Court to adjourn a case sine die pending the decision of a civil suit, it had been held in 39 Mys HCR 544 that the Magistrate had such a power. These are decisions of single Judges and the matter was referred to a Bench and the point was decided in the case reported in 46 Mys HCR 639. The view taken up in 39 Mys HCR 544 was upheld.

2. It is unnecessary to refer to the case law of the High Courts outside Mysore as this has been done in the case reported in 48 Mys HC Reports 639 at page 649. The main point for consideration in a case where the criminal Court is asked to stay a criminal case pending decision in a civil suit is whether the point for consideration in the criminal case is also substantially in issue in the civil case. The Court has to apply its mind and see whether a conviction is possible if a finding of the civil Court is in favour of the accused. The Court has then to see whether the parties in the two cases are substantially the same. Then again the possibility of the criminal case having been filed to coerce the accused to a compromise in the civil suit has to be examined. Though these are some of the questions that might arise, it is for the Magistrate in each case to see whether on the whole it is desirable to postpone the criminal case pending decisions in the civil case.

3. In this case it will be noticed that the civil suit between fee complainant before the police and the principal accused in the case is in respect of the matter in dispute in the criminal case. The subject-matter of the dispute in both the cases is the timber referred to above. As observed in the case reported in 46 Mys HCR 639, most Courts in British India have recognised that when the parties are the same, or substantially the same, and the subject-matter in issue both in the criminal case and fee civil suit is substantially the same, the proceedings in the criminal case should be stayed till there is an adjudication on the point in the civil Court. In fact both these conditions exist in the present case. It is, therefore, clear that the learned Magistrate did not use his discretion properly in not having stayed the criminal case pending decision of the civil suit. It may be added that fee proceedings in the two Courts if carried on at fee same time may be embarrassing to the parties. In fact a receiver has been appointed by the civil Court to take care of the timber which has been cut. In an affidavit filed by the complainant, in Miscellaneous Appeal No. 103/ 50-51 on the file of fee District Judge, Bangalore, he says : "under fee circumstances I beg to submit that this is very embarrassing to me and I have to face two orders of two different Courts which are in conflict with each other." If fee miscellaneous proceedings are embarrassing to the complainant before the police it must be more so to the accused. The order of the lower Court is set aside and it is ordered that fee Criminal Case No. 1536 of 50-51 be stayed pending decision in O. S. No. 263 of 1950-51. Revision allowed. AIR (39) 1952 MYSORE 38 (C. N. 16) "Madegowda v. Narayana Rao" MYSORE HIGH COURT Coram : 2 BALAKRISHNAIYA AND MALLAPPA, JJ. ( Division Bench ) Madegowda, Defendant No. 1, Appellant v. R. L. Narayana Rao, Plaintiff-Respondent. Second Appeal No. 123 of 1948-49, D/- 18 -7 -1951. Civil P.C. (5 of 1908), O.33, R.10 - FORMA PAUPERISM - "Subject-matter of the suit." The expression "subject-matter of the suit", considering the context in which it is used in the rule, is clearly the interest of the plaintiff to the extent he has been able to establish in that suit and not all the property that is involved in the suit which the plaintiff attempted to get : 21 Mys L Jour 217, Foil. (Para 4) Anno : C. P. C., O. 33, R. 10, N. 1. Cases Referred : Chronological Paras

21 Mys L Jour 217 4 M. Chinnaswamy and M. Venkatakrishnaiya, for Appellant; M.P. Somasekhara Rao, for Respondent. Judgement MALLAPPA, J. :- This is an appeal against the judgment and decree in R. A. No. 7 of 47-48 on the file of the Additional Subordinate Judge of Mysore passing a decree in favour of the plaintiff in reversal of the judgment and decree in O. S. No. 230/45-46 on the file of the Second Munsiff, Mysore, who had dismissed the suit.

2. One Siddegowda filed a suit in O. S. No. 67 of 34-35 on the file of the Subordinate Judge, Mysore, for a declaration that the properties mentioned in Schedules A and B of the plaint filed by him belonged to his adoptive father and that while Schedule A, properties were in possession of his adoptive mother, the B Schedule properties were in possession of one Madegowda who was 2nd defendant in that case and who is 1st defendant in this case. Madegowda contended that the A Schedule properties were in possession of Siddegowdas natural father Kempegowda, while the B Schedule properties were in his possession. The adoption was found to be true, but the contention of Madegowda, the 2nd defendant in that case, prevailed, that is, it was found that the plaintiff Siddegowda was not the owner of either of the two properties but that the plaint A Schedule properties of that case belonged to his natural father, while the plaint B Schedule properties belonged to Madegowda, the contesting defendant.

3. The learned Subordinate Judge dismissed the suit of Siddegowda, but at the same time he created a charge for recovery of the institution fee due by Siddegowda as he had filed the suit in forma pauperis on A Schedule properties stating that Siddegowda was saying that he was in possession of those properties. Half of the suit property in this case was in the A Schedule and the other half of it was in B Schedule in execution proceedings instituted by Government, the suit property was purchased by the plaintiff in this suit. As he, however, was not able to obtain possession of it, he filed the suit in O. S. No. 230/45-46 on the file of the Second Munsiff, Mysore, against the appellant Madegowda and another who is not a party to this appeal. As half of the plaint schedule property in the present suit was in the A Schedule of the plaint in the previous suit and it is only that portion that the plaintiff purchased, he could not file a suit for possession and had to file the suit for partition and possession of half the property that belonged to his predecessor in title, i.e., Siddegowda, plaintiff in the previous suit. The appellant 1st defendant contended that Siddegowda plaintiff in the previous suit had no interest in the property and as such the purchaser in the execution sale does not get any interest. He also contended that he had purchased the property in a revenue sale. The learned Munsiff upheld the contention of the 1st Defendant and dismissed the suit and as already observed the learned Subordinate Judge in reversal of the judgment and decree of the learned Munsiff who had dismissed the suit, decreed the suit as prayed for, and it is against the decision of the learned Subordinate Judge that the appeuant who is 1st defendant in the case has come up in appeal to this Court.

4. Under Order 33, Rule 10 of the Code of Civil Procedure where the plaintiff succeeds in the suit filed in forma pauperis, the Court-fee shall be recoverable by the Government from any party ordered by the decree to pay the same and shall be a first charge on the subject-matter of the suit. Before a charge is created under this rule, it has to be remembered that in the first place, the Plaintiff must have succeeded in the suit. This is not a case in which the plaintiff succeeded, in the second place the charge created under Order 33, Rule 10 has to be on subject-matter of the suit. The expression "subject-matter of the suit," considering the context in which it is used in the rule, is clearly the interest of the plaintiff to the extent he has been able to establish in that suit. As observed by Abdul Ghani, J., with whom Venkataranga Iyengar, J., concurred in the case reported in 21 Mys LJ 217 : "the statutory charge provided under Order 33, Rule 10 of the Court of Civil Procedure can only be in respect of a property which a suitor in forma pauperis has succeeded in getting in the suit and the subject-matter in that provision of law must be considered to mean subject-matter in so far as he succeeds in the suit and not all the property that is involved in the suit which the plaintiff attempted to get." In this case as already observed the suit filed by Siddegowda was dismissed. The plaintiff did not succeed in the case. Moreover since it was held in that suit that half the property belonged to his natural father and the other half to the 2nd deft., it cannot be said that he succeeded to any extent in respect of the property involved in the suit. It is clear, therefore, that no statutory charge was created under Order 33, Rule 10, CPC.

5. It must however be said that the Court did create a charge for recovery of the Court-fee due by the plaintiff in that suit on plaint A Schedule property. It is equally clear that this order is binding on the appellant Madegowda in this suit as he did not file an appeal against that portion of the judgment. All the same the point for consideration is whether the interest of the appellant in the plaint schedule property is in any way affected by the sale in favour of the plaintiff on account of his having purchased the plaint A schedule property in the execution proceedings against Siddegowda who was the plaintiff in the previous suit. If for instance the plaintiff in the previous suit was only interested in suit property to the extent of a small fraction, say 1/5th interest, the utmost that could be said is that in the execution proceedings his 1/5th share has become the property of the purchaser, that is, the right, title and interest of the judgment-debtor in the execution case has passed to the purchaser. If the plaintiff in that suit who was proceeded against as the judgment-debtor in the execution case, had no interest at all by no stretch of imagination can it be said that any interest can pass to the purchaser. Moreover, it has to be observed that the appellant was not a party to the execution proceedings. The plaintiff Siddesowda alone was impleaded as the judgment-debtor and any order passed in the execution case cannot be binding on the appellant Madesowda. The learned Subordinate Judge was therefore right in dismissing the suit of the plaintiff. The appeal is, therefore, allowed. The judgment and decree of the learned Subordinate Judge are reversed and those of the learned Munsiff restored.

6. The parties will bear their own costs in this appeal.

7. BALAKRISHNAIYA, J. :- I agree. Appeal allowed. AIR (39) 1952 MYSORE 39 (C. N. 17) "Hassankhan v. Govt. of Mysore" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) C. N. Hassankhan, Claimant-Petitioner v. Government of Mysore. Criminal Revn. Petn. No. 356 of 1950-51, D/- 28 -8 -1951. Mysore Prohibition Act (37 of 1948), S.14 - PROHIBITION - CONFISCATION - WORDS AND PHRASES - Confiscation of conveyance - "Liable to confiscation" meaning of. Criminal P.C. (5 of 1898), S.517. Words and Phrases. An order confiscating a conveyance under S. 14 should not be passed without giving an opportunity to the alleged owner to prove that he did not know and had no reason to believe that the conveyance was likely to be used for transporting liquor illicitly : AIR (8) 1921 Pat 232, AIR (29) 1942 Mad 724 (2) and 9 Ind Cas 587 (Cal) Rel. on. 7 Mys LJour 99 Dist. (Para 3) Anno : Cr. P. C. S., S. 517, N. 9. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases). (98) 25 Cal 54 3 (11) 12 Cri L Jour 103 : 9 Ind Cas 587 : 15 Cal WN 296 3 (42) AIR (29) 1942 Mad 724 (2) : (44 Cri L Jour 136) 3

7 Mys LJour 99 1, 4

16 Mys LJour 6 1 (21) AIR (8) 1921 Pat 232 : (69 Ind Cas 635) 3 S.R. Ramanathan, for Petitioner. Judgement One Babasab was coming on a bicycle when he was stopped by the Police near the Municipal Toll Gate at Chikmagalur and was found to be carrying six brandy bottles in a cloth bag tied to the handle bar. He was thereupon prosecuted for an offence under Section 4-1 (a), Cls. (2) and (3) of the Mysore Prohibition Act XXXVII of 1948 before the Munsiff-Magistrate, Chickmagalur. He was convicted on a plea of guilty and ordered to pay a fine of Rs. 30/-. The Munsiff-Magistrate further ordered that the bottles of brandy and the cycle which had been marked as M.O. 1 should be confiscated to Government. This order was passed on 6-11-1950. On the same day the Petitioner one C.N. Hassan Khan presented in Court an application in which he stated that the cycle M.O. 1 belonged to him alone, that he had merely entrusted it to the accused to be delivered at his house, that in the evening when he returned home he learnt on enquiry that the accused was being prosecuted and that the bicycle had been produced before the Court and that the bicycle might be returned to him. That application bears a note that it was presented in Court, with the learned Magistrates initials with the date 6-11-50. But curiously no reference has been made to it either in the order sheet or in the judgment of the Magistrate which was pronounced the same day. The Petitioner thereupon preferred an appeal under Section 520 of the Code of Criminal Procedure, which however has been described and numbered as Criminal Revision Petition No. 12 of 1950-51, to the District Magistrate, Chikmagalur. He dismissed the appeal holding that the bicycle had been rightly confiscated as authorised under Section 14 of the Mysore Prohibition Act and that he failed to see any point at all in the contention to the contrary, in support of his order he relied on a case in 7 Mys LJour 99, where it has been held that a person who was not a party to a criminal case before the trial Magistrate cannot be heard to complain against an order relating to disposal of property concerned in that case and also on 16 Mys LJour 6 where it has been laid down that a Court of Appeal or Revision should not lightly interfere with an order passed by a subordinate Court in the matter of disposal of such property. He also observed that such an order confiscating the vehicle which was used for transporting liquor illicitly would be a deterrent and was desirable in view of the rising number of prohibition offences by "curtailing the facilities for movement of liquor." This revision petition is preferred against that order of the District Magistrate.

2. It is difficult to support the order of the learned District Magistrate or accept as proper or correct the rather wide and drastic remedy of confiscation of anybodys vehicle under all circumstances and hope thereby that the offences against prohibition law would be reduced. One can easily realize the enormous hardship, injustice and loss which may be visited on innocent persons if that reasoning were to be adopted. A car or a carriage which is borrowed casually from a friend, or hired from a hirer of vehicles, for a perfectly legitimate purpose may be used for transporting a bottle of whisky or brandy clandestinely and if seized in that process should entail the loss of the car or the vehicle to the unfortunate owner who may be thoroughly innocent of the use to which it was subsequently put. The motor driver of a most respectable citizen who would not dream of touching liquor may be tempted to try to smuggle on his own account or may be induced or bribed to smuggle a few bottles of brandy or whisky for some friend of his own in the luggage compartment, when the owner may be even absent from the town and yet the car can and ought to be forfeited. This uncertainty and hardship are all the greater in a place like Mysore where there are adjoining dry and wet areas and where, while it would be perfectly legitimate for a vehicle to be used in transporting liquor in any quantity in a particular area, it would be employing it in an illegal venture quite a short distance away or if it travelled beyond a line. In some places in the rest of the Indian Union where if one of a class of persons like the Military carries in his car some liquor for his own consumption the car would be perfectly safe while if his civilian driver carried a bottle for his own benefit in the same car, his masters car could, according to the learned District Magistrates reasoning, be very properly confiscated without any thing more being found against the master. I, however, think that is not what Section 14 contemplates nor is it supported by any authority. Section 14 merely declares what things are liable to confiscation and no doubt includes the animals, vessels, carts or other vehicles used to hold or carry the same. There is a very similar section. - Section 11 - in the Opium Act which also lays down that the animals and conveyances used in carrying contraband opium are liable to confiscation. These sections do not however say that confiscation is imperative in all cases. How and when such confiscation can be ordered is provided under Sections 15 and 16 of the Prohibition Act. Under Section 15 when the offender is convicted or sometimes even when the person charged with an offence against the Act is acquitted, the Court may order such confiscation.

3. Mr. Ramanathan, learned Counsel for the Petitioner, has relied on some cases which may be referred to. The words shall be liable to pay have been interpreted in Omrita Nath Mitter v. Administrator-General of Bengal, 25 Cal 54. In that case it was contended that by virtue of S. 35 of the Administrator-Generals Act which provided that if any suit be brought by a creditor against the Administrator-General, the plaintiff shall be liable to pay the costs of the suit unless he had registered his claim with him a month earlier the plaintiff could never be relieved from such payment. It was held that those words did not impose on the creditor and absolute obligation to pay, but the Court had still the discretion to relieve him of the obligation if the circumstances of the case required it. It was observed that what the section said merely amounted to saying that the creditor is under certain circumstances liable to pay the costs of the suit and not that he shall pay the costs. In Manghan Das v. Rahim Bux, AIR (8) 1921 Pat 232 it has been held that an order confiscating a conveyance under Section 11 of the Opium Act should not be passed without giving an opportunity to the alleged owner to prove that he did not know and had no reason to believe that, opium was transported in the conveyance in question In G.N. Chakrapany Chettiar and Sons, In re, AIR (29) 1942 Mad 724 (2) it has been held similarly that a conveyance ought not to be confiscated unless the owner knew or had reason to believe that his vehicle was likely to be used for transporting opium. In that case the owner had left the car under a hire purchase agreement with the accused who used it for transporting large quantities of contraband opium and ganja. In Parma Singh v. Emepror, 12 Cri LJour 103 : 9 IC 587 : 15 Cal WN 295 an order had been made under Section 11 of the Opium Act confiscating a boat in which some opium had been found. The boat had been hired out by the owner for plying on the river. The lessee was arrested; and while convicting the accused under Section 5 of the Opium Act for being in possession of some opium, the Magistrate directed the confiscation of the boat without even hearing the owner, as in the present case. In revision the High Court set aside the order of confiscation on the ground that the same had been made without giving the owner of the boat an opportunity of being heard. It was pointed out in that case that every receptacle or carriage in which a small quantity of opium may be found was not liable to confiscation unless the owner of the conveyance was shown to be using it for the purpose of transporting opium.

4. The case in 7 Mys LJour 99 on which reliance is placed for the State could easily be distinguished. In that case there was no application by a person other than the accused claiming the articles as his own. He filed a revision petition directly to the High Court and it was rightly held that as he was not a party in the criminal case in the trial Court he could not move the High Court in revision. He was, as pointed out by Ramachandra Rao, J. : "a person who was not present before the trial Magistrate and of whose title the trial Magistrate had not even notice." The word party in the context of that case does not mean the Government or the complainant and the accused, but would include persons like the petitioner who intervene and seek to have their own claims heard and even witnesses who may be summoned to produce articles during the trial. The Court is bound in those cases to pass orders on their claims to any property produced before it under Sections 517, 518 and 519 of the Code of Criminal Procedure (whose ambit is considerably enlarged by the amendment in 1927) and these orders would be subject to correction by a higher Court, in appeal or revision under Section 520.

5. In the light of the above discussion the order of confiscation cannot be supported. The accused has not claimed the bicycle as his own and neither in the charge nor in the evidence of the P.Ws is it even suggested that the bicycle M.O. 1, belongs to him. The Petitioner has produced with his appeal memo before the District Magistrate a sale note dated 27-9-46 under which he claims to have purchased the bicycle as well as receipts for having paid taxes for the same for the years 48-49, 49-50 and 50-51. No one else has claimed the bicycle and I do not think that any further enquiry is called for with regard to its ownership.

6. In the result this revision petition is allowed, the orders of the Courts below are set aside and the bicycle M. O. 1 will be delivered to the Petitioner. Revision allowed. AIR (39) 1952 MYSORE 40 (C. N. 18) "Nanjegowda v. Channamma" MYSORE HIGH COURT Coram : 2 MALLAPPA AND VASUDEVAMURTHY, JJ. ( Division Bench ) Nanjegowda, Defendant No. 2, Appellant v. Channamma, Plaintiff and another, Defendant No. 1, Respondents. Second Appeal No. 37 of 1948-49, D/- 18 -7 -1951. HINDU LAW - ADOPTION - Hindu Law - Adoption - Sudras in Mysore. In the State of Mysore, among sudras the adoption of a person after his marriage is invalid. AIR (23) 1936 PC 18; AIR (36) 1949 PC 18; 10 Mys HCR 711, 2 Mys LJour 157, Rel. on. (Para 2) Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases). (36) AIR (23) 1936 PC 18 : (159 Ind Cas 1079) 2 (49) AIR (36) 1949 PC 18 : (ILR (1949) Mad 604) 2

10 Mys HCR 711 2

2 Mys LJour 157 2 R.V. Sreenivasaiah, for Appellant. M.P. Somasekhara Rao, for Respondent No. 1. Judgement VASUDEVAMURTHY, J. :- The plaintiff, who is the widow of one Marigowda, sued for a declaration that the plaint schedule properties belong to her and are in her possession and for a permanent injunction to restrain defendants 1 and 2 from interfering with her possession. She claims to have succeeded to those properties as heir to her husband. Defendant 1 claimed to have been adopted by the deceased Marigowda about 8 years before the suit which would be somewhere in 1938 and as such the adopted son was a nearer heir of the deceased. As such heir he is said to have sold the suit properties to defendant 2. The learned Munsiff of Holenarasipur before whom the suit was filed held that the adoption relied on by defendant 1 was true and valid and dismissed the suit. On appeal, the Subordinate Judge of Hassan reversed that decision. He held that the alleged adoption did not take place and was not true. He also held that as the said adoption was said to have taken place after defendant 1 was married it was invalid in law. He therefore, decreed the plaintiffs suit. Defendant 2 has preferred this second appeal.

2. It is not disputed that defendant 1 was a married man when this adoption is stated to have taken place. In fact in Ex. I which is a registered hypothecation deed dated 25-1-1938 admittedly executed by Marigowda and defendant 1, the latter is described as Marigowdas younger brother Dyave Gowdas son and the purpose of the loan is given out as the marriage of the latter. Defendant 1 himself has admitted that it was 2 or 3 months after his marriage that he was given in adoption by his natural parents to Marigowda. In 10 Mys CCR 711, it has been held that among sudras, to which community the parties in this case belong, the circumstance that the boy who was adopted was already married was a bar to a valid adoption in spite of the fact that he was at the time of adoption a widower. It is now settled in all the Provinces except Bombay that in the case of three regenerate classes the adoption of a person is valid if made before upanayanam and if he belongs to the sudra caste before marriage though in Western India, however a man belonging to any of the four castes may be adopted at any age though he may have been married and has children; see Mynes Hindu Law, 1950 Edition, page 235. In Mysore it has been held in 2 Mys L Jour 157, that the course of thought and tenets of Hindu Law followed in Mysore are more akin to those of the Madras school than any other. In that case the High Court was called upon to consider about the necessity for a widow to seek the consent of her husbands sapindas in order to make a valid adoption which has been recognized by the Madras School. In this matter their Lordships preferred to follow the Madras School of thought, in Somasekhara Royal v. Mahadeva Royal, AIR (23) 1936 PC 18 and Muthuswami Thevar v. Chidambaru Thevar, AIR (36) 1949 PC 18, which were appeals from Madras, the Privy Council were dealling with cases of adoption by sudras and while doing so they have laid down that even among sudras the adoption of a person after his marriage is altogether invalid. In AIR (36) 1949 PC 18, their Lordships observed : "According to the Dattaka Chandrika, which is regarded as authoritative in the Province of Madras, marriage concludes the period within which a Sudra may be adopted." In this view of the law which has been recognized and acted upon in Mysore from the date of the decision in 10 Mys CCR 711, the alleged adoption of defendant 1 by Marigowda would be invalid even if true; and it is unnecessary to go into the question whether he was as a matter of fact adopted at all.

3. In the result the judgment and decree of the Subordinate Judge are confirmed and this appeal is dismissed with costs (Advocates fee Rs. 30/-). Appeal dismissed. AIR (39) 1952 MYSORE 41 (C. N. 19) "Velliamma v. Mysore G. M. Co." MYSORE HIGH COURT Coram : 3 MEDAPA, C.J., AND VASUDEVAMURTHY, J. ( Full Bench ) Velliamma and another, Appellants v. The Supdt. Mysore Gold Mining Co., K.G.F. and another, Respondents. Miscellaneous Appeals Nos. 111 and 112 of 1950-51, D/- 24 -8 -1951. (A) Workmens Compensation Act (8 of 1923), S.10(1), Proviso 32 - WORKMENS COMPENSATION - Rules u/S.32, conflict with Act - Effect. Mysore Workmens Compensation Act, S.10(1), Proviso 31. If any rule framed by Government to carry out the purposes of the act under section 31 is contrary to the terms of the Act, it would to that extent be ultra vires and without force. Under Rule 8 (1) a dependant of a deceased workman may apply to the Commissioner for the issue of an order to deposit compensation in respect of the death of the workman. He is no doubt required to certify in it that he has requested the employer to deposit the compensation and that the employer has refused or omitted to do so. The penalty for not making such a declaration, however, is not that the application should be rejected forthwith. If it is so held in spite of the power given to the Commissioner to entertain a claim even if no notice of it has been given, or even if there is any defect or irregularity in such notice, it would be directly contrary to the provisos contained in the Sub-clause to Section 10. (Para 3) Anno : Workmens Compensation Act, S. 10, N. 2, S. 32, N. 1. (B) Workmens Compensation Act (8 of 1923), S.8 - WORKMENS COMPENSATION - Order behind back of a claimant - Effect. If a defendant had been made a party and had been notified and had not pressed her claim, she might not be entitled to re-open the proceedings by means of a fresh application of her own. But an order passed behind the back of a clamant and without her being a party in the earlier proceedings cannot bar her from making an application. (Para 2) Anno : W. C. Act, S. 8, N. 1, 2.

V.L. Narasimhamurthy (in No. 111) and P.S. Devadas, (in No. 112) for Appellants. E. Kanakasabhapathy (in Nos. 111 and 112) and D. Puttaswamy and K. Rajagopala Rao (in No. 111), for Respondents. Judgement VASUDEVAMURTHY, J. :- In Miscellaneous Appeal 111/50-51 : This is an appeal against the order of the Commissioner for Workmens Compensation, K.G.P., rejecting the Appellants application for payment of compensation in F. C. No. 21/50-51 on his file. It appears that one Kongerapalli Munisami who was in the employ of the Mysore Gold Mining Company., died on account of a rock burst on 28-5-1950 while working in the Mines. The Company purporting to act under Section 8 (1) of the Mysore Workmens Compensation Act deposited with the Commissioner the amount of compensation payable by them accoding to the Act together with an application under Form A as prescribed by Rule 6 (1) of the rules framed under that Act for the purpose of arranging payment of such compensation. Two persons, one claiming to be a younger brother and the other Chikkakka claiming to be a widow of the deceased, applied to the Commissioner for compensation. The Commissioner found that neither of them was a dependant entitled to compensation within the meaning of Section 2 (d) of the Act and he therefore rejected both their claims. And he directed that the compensation amount may be paid back to the employer as there were no other dependants to whom it could be paid. Subsequently the appellant claiming to be a dependant as being the widowed sister of the deceased filed an application in the present case for payment to her of compensation. That application was made on 12-9-1950, i-e., within one year of the accident. The Respondent Company, notified and opposed her application on the ground that as the claims to the compensation amount had already been duly heard and finally disposed of in the prior case No. 8/50-51 the present application was not maintainable in law. They also did not admit the relationship of the applicant to the deceased or that she was a dependant. The learned Commissioner held, that in the previous case an order had been passed dismissing all the claims preferred before him after he had published a notification duly in his office. The existence of the present claimant was not at all disclosed it that time when she should have applied to be impleaded as a party in those proceedings in answer to that notification, and if that case could be re-opened, it would "lead to fresh dependants coming up and similar proceedings being taken interminably on each of such claims." The Act did not provide for such a possibility. He therefore rejected the claim of the Appellant.

2. Before us Mr. K. Rajagopala Rao, learned Counsel for the Respondent Company, has sought to support the order of the learned Commissioner. It is not shown how the order passed behind the back of the present claimant and without her being a party in the earlier proceedings, could bar her from making an application like the present; if she had been made a party and had been notified and had not pressed her claim, she might not be entitled to re-open those proceedings by means of a fresh application of her own. No authority has been quoted before us in support of the grounds on which the order of the Commissioner is based. But Mr. Rajagopala Rao contends that there is something in the rules framed under Section 31 of the Mysore Workmens Compensation Act which disentitles the Appellant from making the present application to the Commissioner. Under Clause (2) (c) of that section the Government may make rules prescribing the procedure to be followed by the Commissioners in the disposal of cases under the Act and by the parties in such cases. Under Rule 8 (1) of the rules so framed it is provided that a dependant of a deceased workman may apply to the Commissioner for the issue of an order to deposit compensation in respect of the death of the workman. Such application is to be made in Form G annexed to the rules; and it is provided in that rule that no such application shall be entertained, unless the applicant certifies therein that he has requested the employer to deposit compensation and that the employer had refused or omitted to do so. It is not disputed that the claimant has not done so or that his application is not otherwise in order. This ground has not been taken expressly among the grounds urged in the written statement tiled by the Company. But we have, however, permitted Mr. Rajagopala Rao to address arguments on this matter also as he represents that it raises a question of law which may be of somewhat frequent occurrence.

3. Under Section 8 of the Mysore Workmens Compensation Act no payment of compensation in respect of a workman whose injury has resulted in death, shall be made otherwise than by deposit with the Commissioner, and no payment made directly by an employer shall be deemed to be payment of compensation. On the deposit of any money as compensation in respect of a deceased workman the Commissioner shall, if he thinks necessary, cause notice to be published on each dependant in such manner as he thinks tit, calling upon the dependants to appear before him on such dates as he may fix for determining the distribution of compensation. If the Commissioner is satisfied after such enquiry as he thinks necessary, that no dependant exists, he shall re-pay the balance of the money to the employer by whom it was paid. Rule 6 of the rules framed under the Act eals with the procedure to be followed in the matter of deposit of compensation. Under Rule 6 (1) an employer depositing compensation with the Commissioner under Sub-section (1) of Section 8 shall furnish therewith a statement in Form A and also indicate whether he desires to be made a party to the distribution proceedings. That form does not provide for the furnishing of a list of dependants. Under Rule 7 the Commissioner shall cause to be displayed in a prominent position outside his office an accurate list of deposits received by him under Sub-section (1) of Section 8 together with the names and addresses of the depositors and of the workmen in respect of whose death or injury the deposits have been made. These two rules seem to apply where the employer deposits the compensation with the Commissioner. Rule 8 applies to applications by dependants to require the deposit by the employer of the compensation amount. Under Rule 8 (1) a dependant of a deceased workman may apply to the Commissioner for the issue of an order to "deposit compensation in respect of the death of the workman. He is no doubt required to certify in it that he has requested the employer to deposit the compensation and that the employer has refused or omitted to do so. According to the Respondent the penalty for not making such a declaration is that the application should be rejected forthwith. Section 10 (1) of the Act, no doubt provides that no claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner provided in that Act, as soon as practicable after the happenings of the accident, and unless the claim is preferred within one year of the occurrence of the accident or, in the case of death, within one year from the date of death. It is also provided in that section the want of or any defect or irregularity in a notice shall not be a bar to the entertainment of an application if the claim is preferred in respect of the death of a workman if the workman died on the premises during the course of the employment, or if the employer had knowledge of the accident from any other source at or about the time when it occurred; and it is further provided in that section that the Commissioner may also entertain and decide any claim to compensation in any case notwithstanding that notice has not been given or the claim has not been preferred as provided in that sub-section if he is satisfied that the failure so to give notice or prefer the claim, as the case may be, was due to sufficient cause. If any rule framed by Government to carry out the purposes of the act under section 31 is contrary to the terms of the Act it would to that extent be ultra vires and without force. If we are to accept the contention of the Respondent it would mean that in spite of the power given to the Commissioner to entertain a claim even if no notice of it has been given, or if there is any defect or irregularity in such notice, it would be directly contrary to the provisos contained in the sub-clause to Section 10. We think, therefore, that there is no substance in this contention also and the order of the Commissioner cannot be supported.

4. We allow this appeal, set aside the order of the learned Commissioner and remand the case for fresh disposal in accordance with law. The Respondent will pay the costs of the Appellant in it is appeal (Advocates fee Rs. 25/-).

5. In Miscellaneous Appeal 112/50-51: For the reasons given above in Miscellaneous Appeal No. 111/50-51, this appeal is allowed, the order of the learned Commissioner is set aside and the case is remanded for fresh disposal in accordance with law. The Respondent will pay the costs of the Appellant in this appeal (Advocates fee Rs. 25/-). Appeals allowed. AIR (39) 1952 MYSORE 42 (C. N. 20) "Basheeruddin Ahmed v. Govt. of Mysore" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA AND MALLAPPA, JJ. ( Division Bench ) T. A. Basheeruddin Ahmed, and another accused. Appellants v. Government of Mysore. Criminal Appeals Nos. 12 and 20 of 1950-51, D/- 3 -10 -1951. (A) Criminal P.C. (5 of 1898), S.197 - SANCTION FOR PROSECUTION - MAGISTRATE - Sanction not containing facts constituting offence but referring to report of District Magistrate - Report containing facts and admission of guilt - Mention of admission of guilt, held did not make sanction invalid, since sanction was not based on it. Order sanctioning the prosecution of the accused did not contain facts constituting the offence charged, but referred to the report of the District Magistrate. The report contained the admission of guilt by the accused. It was contended that the sanction was not valid, inasmuch as it contained no facts constituting the offence and that if the report of the District Magistrate was deemed to have furnished the facts, the sanction was illegal inasmuch as the report contained an admission which, was inadmissible : Held that the sanction was valid; that it was not based upon the alleged admission contained in the report and that the mention of the alleged admission did not invalidate the sanction as its purpose was to inform the Government of what the accused said at the time along with other facts for determining whether the prosecution was called for. The rules governing reception of evidence or those for recording confessions could not apply as the statements were not sought to be used as either. (Para 5) Anno : Cr. P. C., S. 197, N. 9. (B) Criminal P.C. (5 of 1898), S.197(1) and S.297(2) - SANCTION FOR PROSECUTION - CORRUPTION - ILLEGAL GRATIFICATION - Mysore Prevention of Corruption Act (1948), S.12 - Sanction for prosecution of accused u/S.161, Penal Code and S.5(2), S.5(1)(a), Prevention of Corruption Act - No sanction is required u/S.197(1) - Specification of Court of trial is unnecessary - Sanction does not take away ordinary jurisdiction of Court to commit accused to Sessions - Sanction is required u/S.12 Prevention of Corruption Act but no specification of Court is necessary. Prevention of Corruption Act (2 of 1947), S.6. Penal Code (45 of 1860), S.161. The act of receiving illegal gratification by a public servant is not an act done or purporting to be done in execution of duty. 37 Mys HCR 514 Dissented: AIR (34) 1947 FC 9 affirmed in AIR (35) 1948 PC 128, Relied. Hence to such a case Section 197 (1) Criminal P. C., has no application and sanction for prosecution of the accused is not necessary. Specification of Court under Section 197 (2) where the accused should be tried, in an unnecessary sanction will not have the effect of invalidating the trial in a Court having ordinary jurisdiction, but other than the one specified in the sanction. AIR (37) 1950 PC 19, Relied. But sanction will be required under Section 12, Mysore Prevention of Corruption Act, 1948 (corresponding to S. 6 Prevention of Corruption Act, 1947.) But there is no provision in S. 12, like S. 197 (2) Criminal P. C. for Specification of Court for trial. Where sanction is granted under S. 197, Criminal P. C., as well as S. 12, Mysore Prevention of Corruption Act for the prosecution of the accused under S. 161, Penal Code and S. 5 (2), S.1 (a) Mysore Prevention of Corruption Act and S. 197, Criminal P. C. does not apply, the specification under S. 197 (2) of the Court of the City Magistrate, for trial, does not affect the ordinary jurisdiction of the City Magistrate to commit the accused to sessions. After the institution of proceedings is sanctioned, the subsequent course of the same is governed by the relevant provisions of the Code. AIR (34) 1947 FC 9, Relied. (Paras 5, 7) Anno : Criminal P. C., S. 197, N. 6; Penal Code, S. 161, N. 13. (C) Evidence Act (1 of 1872), S.133 - ACCOMPLICE - WITNESS - ILLEGAL GRATIFICATION - Spy witnesses are not accomplices - Offence u/S.161, Penal Code - Evidence of trap witness though not like that of accomplice, requires corroboration. The evidence of persons concerned in laying the trap cannot be regarded as that of accomplices in the sense that they are participants in the commission of the offence, though the detection of crimes by means of such a practice as a rule is not deemed commendable and justified by the peculiar difficulties in getting proper proof of the commission of offences in particular cases. The mere possibility of an improper use of the device cannot be ground for its rejection outright. So long as there is no prohibition under the law, the Courts cannot shut out such evidence and have accepted such evidence to support convictions under Section 161, I.P.C., but required corroboration in some instances to be satisfied about the truth of the version and not because of any necessity for it under the law. AIR (31) 1944 Cal 374; AIR (38) 1951 Punj 424, Relied, Case law referred. The Prevention of Corruption Act contains special provisions by which the burden of proof ordinarily imposed on the prosecution in a criminal case is placed on the accused and the accused are allowed to give evidence if they choose. When the prosecution evidence is that of persons who provided and paid the bribe after arranging for the time and place therefor on a previous consultation, all that the accused may ask for is that the evidence should be scrutinised with care and accepted with caution. Receipt of a bribe by an officer being an act in accordance with a highly personal and confidential arrangement with the giver in the house of the officer himself where the utmost precaution for secrecy is naturally taken, the absence of evidence of any other, in support of the bribe-givers statement about the payment to the accused is no ground to disbelieve him. Even if corroboration as in the case of an accomplice is necessary, it is enough if there is independent evidence in support of his version in certain material particulars and such evidence on every point of detail spoken to by the witness is not required. (Paras 9 and 10) Anno : Evidence Act, S. 133, N. 2. (D) Evidence Act (1 of 1872), S.1 - EVIDENCE - Appreciation of evidence. Criticism of a witness, or comments made on his conduct in one case cannot afford a proper basis for estimating his evidence in another case as the opinion to be formed depends on the particular facts and materials placed before the Court for consideration. (Para 10) Anno : Evidence Act, S. 1, N. 9. (E) Penal Code (45 of 1860), S.161 - Mysore Prevention of Corruption Act (1948), S.5(1)(d) - ILLEGAL GRATIFICATION - CORRUPTION - SENTENCE CONCURRENT - Sentence - Facts constituting offence under both - Similar sentences of imprisonment and fine under each - Sentences to run concurrently - Propriety. Where the sentences awarded against the accused are two years rigorous imprisonment and fine of Rs. 1,000/- for the offence u/S.161, IPC., and a similar sentence for the offence under section 5 (1) (d) of the Mysore Prevention of Corruption Act, the direction that these are to run concurrently cannot relieve the accused of the liability for payment of the fine in each case. But when the act constituting the offence and facts relating to it are the same for the purpose of conviction under both the sections, a double sentence of fine is not proper. Held on facts that as regards the sentence of imprisonment though in view of the consideration that corruption was a grave and growing evil to be nipped in the bud and when a case was made out against a person holding a responsible position in service, the sentence should be deterrent, the consequences of the conviction on his career at the late stage of his life could not be overlooked. (Period of rigorous imprisonment was limited for each offence to six months, sentences to run concurrently. Sentence of fine of Rs. 1,000/- with respect to offence under S. 161, IPC., alone was maintained.) (Para 11) Anno : Penal Code, S. 161, N. 10. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases). (48) AIR (35) 1948 PC 82 : (49 Cri LJ 261) 5 (48) AIR (35) 1948 PC 128 : (49 Cri LJ 503) 6 (50) AIR (37) 1950 PC 10 : (51 Cri LJour 630) 7 (50) AIR (37) 1950 PC 19 : (51 Cri LJour 638) 6 (44) AIR (31) 1944 FC 66 : (45 Cri LJour 755) 6, 10 (47) AIR (34) 1947 FC 9 : (48 Cri LJour 155) 6, 7 (11) 33 Cal 96 : (8 Ind Cas 119) 9 (44) AIR (31) 1944 Cal 374 : (46 Cri LJour 94) 9 (17) 1917 Mad WN 831 : (AIR (5) 1918 Mad 738 : 19 Cri LJour 29) 8 (45) 1945 Mad WN 114 : (AIR (32) 1945 Mad 358 : 47 Cri LJour 113) 8 (51) 1 Mad LJ (Notes) 45 8

37 Mys HCR 514 6 (50) AIR (37) 1950 Nag 1 : (51 Cri LJour 235) 8 (50) 6 DLR (Cut) 26 : (AIR (37) 1950 Ori 220) 8 (27) AIR (14) 1927 Pat 61 : (5 Pat 777) 10 (51) 52 Cri L Jour 944 : (AIR (38) 1951 Punj 424) 9 (1911) 1 KB 70 : (80 LJKB 76) 8 (1947) 2 KB 372 8 Jayarama Iyer for V.L. Ethiraj and S.K. Venkataranga Iyengar (in No. 12) and Jayarama Iyer and V.L. Ethiraj (in No. 20), for Appellants. A.R. Somanatha Iyer, Advocate-General, for the Govt. of Mysore. Judgement VENKATARAMAIYA, J. :- These appeals are preferred by the 1st and 2nd accused respectively against their convictions in Bangalore Sessions Case No. 6 of 1950-51. Accused 1 was charged with committing offences under Section 161, IPC and Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1948, for having received on the night of 13th October 1948 from one Sanjivappa Rs. 400/- as illegal gratification in order to show favour to him in four cases pending before him (1st Accused) as House Rent Controller. The 2nd accused was charged with the abetment of the said offences. The learned Sessions Judge found both the accused guilty and sentenced Accused 1 to rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- for each of the said offences with a direction that the sentences do ran concurrently. As regards the 2nd accused he ordered under Section 562 of the Code of Criminal Procedure that he should be released on bail on his executing a bond in a sum of Rs. 1,000/- with one surety for a like sum to appear and receive sentence when called upon within a period of one year and in the meantime to keep the peace and be of good behaviour.

2. Accused 2 is the son of the 1st accused aged about 15 years and a student in the High School. He is living with the 1st accused and said to have been in contract with some of the persons whose cases are pending before the 1st accused. The 1st accused is a Senior Assistant Commissioner in the service of the Government of Mysore and was appointed as House Rent Controller in Bangalore City in about the year 1947. One B.H. Sanjivappa who is a contractor and owns some houses in Bangalore City applied to the 1st accused for eviction of his tenants and enhancement of rent payable by the tenants in some cases. One of these cases was filed in 1948. In the month of September 1943 the said Sanjivappa who is examined as P.W. 14 complained to the Deputy Commissioner, P.W. 15, about the delay on the part of the 1st accused in disposing of his cases and that the 1st accused was said to be in the habit of receiving bribes from parties. P.W. 15 sent him away saying that unless a case is made out no action can be taken. Subsequently on one of the dates to which she petition of P.W. 14 was posted, he saw the 2nd accused moving about at the office of the 1st accused and on being told by some of the parties in other cases then present that the 2nd accused would be of help to obtain favourable results in the cases spoke to him about his own affair. The meeting between P.W. 14 and the 2nd accused was renewed and finally led to an understanding on 12th September 1948 that P.W. 14 should pay Rs. 500/- to the 1st accused at his house as consideration for disposal of his cases in the manner favourable to him. P.W. 14 communicated this to P.W. 15 and the night of 13th October 1948 was fixed by P.W. 14 with the 2nd accused for payment of the prescribed amount to the 1st accused. Meanwhile the Director of the Efficiency Audit and Anti Corruption Department was apprised of this arrangement and with the assistance of the police officers and the officers of his Department, Rs. 400/- provided by him in the form of forty ten rupee currency notes were taken to a Magistrate, got marked by him, given to P.W. 14, the officers themselves lying in wait near the house of the 1st accused. P.W. 14 in pursuance of the engagement went to the house of the 1st accused at 8-30 p.m. but returned without paying the money as the 1st accused was absent and said to have gone to attend a picture. At the second visit about an hour later P.W. 14 met the 1st accused in his house and paid him Rs. 400/- promising to give the balance of Rs. 100/- later on. The payment was announced by a signal of waving the umbrella after he came out and immediately an Inspector of the Anti-Corruption Department got in and kept the 1st accused engaged in a talk so that the amount may not be removed by the 1st accused before the arrival of the officers. P.W. 15 dropped in within a few minutes with others and questioned the 1st accused if he had received from P.W. 14 any money. The 1st accused denied the payment at first but on being confronted with P.W. 14 admitted it, looked at the 2nd accused who hereupon took out the notes from his shirt pocket and handed them over. A mahazar was prepared for the seizure of the amount, two registers and a note book at the time and after the investigation proceedings were completed and sanction was obtained from the Government, a charge-sheet was presented in the Court of the City Magistrate, Bangalore. This in brief is the case for the prosecution.

3. Though 18 witnesses in all were examined on behalf of the prosecution and none on behalf of the accused in the committing Court and in the Court of Sessions, the evidence of many of the prosecution witnesses is not now material in view of the accused having in their statements admitted some of the facts sought to be proved by it. The accused admit that P. W. 14 visited them on the 13th October 1948, that he left Rs. 400/- then in the house of the accused, that of the books then seized two were got prepared by the 1st accused by his clerks and one contains the writing of the 2nd accused. These facts were not disputed during the arguments and so there is no need to discuss the evidence of P.W. 1, the Magistrate, who marked the currency notes, P.Ws. 3, 5 and 6 three clerks of the 1st accused who copied the registers, Exhibits 17 and 18, P.W. 4 the teacher who identified the writing of the 2nd accused in the book, Exhibit P. 22 and P.W. 9 the Handwriting Expert who speaks to the writing in Exhibit P. 22 being that of the 2nd accused. P.Ws. 2 and 18 are the officers of the Secretariat examined for the purpose of proving the sanction of Government for the prosecution of the accused. P.Ws. 12 and 13 are witnesses to the mahazar Exhibit P. 24. P.W. 16 is the Director of the Anti-Corruption Department and P. Ws. 10 and 11 are the Daffedar and the Assistant Superintendent of Police respectively working under him. P.W. 8 is the Police Inspector who kept the 1st accused engaged in conversation in the interval between P.W. 14 coming out of the house of the 1st accused and the arrival of the other officers and P.W. 17 is the Superintendent of Police who investigated the case. P.W. 15 is the Deputy Commissioner who reported the incident to the Government and on whose report sanction was accorded and P.W. 14 is the person who has given direct evidence of the payment and matters connected with it. The main plea of the accused is that the money was not accepted by the 1st accused and that P.W. 14 left it and went away abruptly, that the 1st accused immediately asked his son to take it out for being returned to P.W. 14 and in case he was not found, deliver it to the Police. It is also stated that while the 2nd accused had gone out in quest of P.W. 14 with the money, he was detained by the police officers waiting outside and brought back inside the house. The prosecution is alleged to be the outcome of ill-will on the part of P.W. 15 on account of differences between him and the 1st accused as regards the authority of the 1st accused to function as the Rent Controller independently of P.W. 15. The learned Sessions Judge found that these pleas are not tenable and that the evidence let in by the prosecution is sufficient to establish the guilt.

4. The contentions raised against the convictions during the arguments addressed at first by Sri Jayarama Iyer and followed by Sri S.K. Venkataranga Iyengar relate mainly to the propriety of relying on the evidence of persons who set a trap to catch another and the kind of corroboration necessary if at all it has to be acted upon. The sanction of Government for the initiation of the proceedings was commented upon as not being in accordance with law and may be first examined. Ex. P. 5, the order of sanction, is as follows : Proceedings of the Government of His Highness the Maharaja of Mysore. Read : "The report of the District Magistrate, Bangalore District (Urban), that Janab T.A. Bashruddin Ahmad, Assistant Commissioner doing duty as House Rent Controller, Bangalore City, received illegal gratification on 13-10-1948 from Sri B.H. Sanjeevappa, Contractor, Anchapet, Bangalore City, promising to do him official favours. Order No. 4696-4701/Cts. 64-48-2, dated Bangalore the 11-12-1948.

1. Under Sub-section (1) of S. 197 of the Code of Criminal Procedure 1904, and Section 12 of the Prevention of Corruption Act 1948, sanction is accorded for the prosecution of Janab T.A. Bashiruddin Ahmad Assistant Commissioner, doing duty as House Rent Controller, Bangalore City, for offences under Section 161 of the Indian Penal Code and Section 5 (2) read with 5 (1) (d) of the Prevention of Corruption Act 1949 (1948?) or such other offences as may be made..... Under Sub-section (2) of Section 197 of the same Code, Government are pleased to direct that the trial of Janab Bashiruddin Ahmad be held in the Court of the City Magistrate, Bangalore. Secretary to Govt., Law Department.

5. The report of the District Magistrate referred to is Exhibit P-25, dated 14-10-1948, which is next to the date of the occurrence. Relying on Gokulchand Dwarkadas v. The King, AIR (35) 1948 PC 82 which states "that the facts constituting the offence charged should be shown on the face of the sanction or the prosecution must prove by extraneous evidence that these facts were placed before the sanctioning authority" it was urged that the facts are not set forth in Exhibit P. 5 and if Exhibit P. 25 is deemed to have furnished the facts required, the sanction is not valid as Exhibit P. 25 contains admission of guilt by accused which is in-admissible. I do not think that the mention of the alleged admission will invalidate the sanction as its purpose was to inform the Government of what accused said at the time along with other facts for determining whether a prosecution is called for. The rules governing reception of evidence or those for recording confessions cannot apply as the statements are not sought to be used as either. It may be mentioned that Exhibit P. 25 was called for by the accused and the sanction is not based on the alleged admission of accused.

6. The legality of the trial in the Court of Sessions when there is a direction in Exhibit P. 25 that the accused should be tried in the Court of the City Magistrate, Bangalore, was a point of some discussion. The question whether a trial by a Court different from the one specified in the order of sanction is legal arose in Menon v. The King, AIR, (37) 1950 PC 19. After pointing out that no sanction is necessary for the institution of proceedings against a public servant for an offence under Section 120 B read with Section 161, Indian P.C., their Lordships stated : "A Governor cannot specify a Court under Section 197 (2) Criminal Procedure Code unless he has given a sanction under Section 197 (1). He has no power to specify a Court in any other case............. A Governor cannot acquire power to specify a Court in a case to which Section 197 (1) does not apply by combining the specification with an unnecessary sanction. As the sanction in the case was unnecessary the specification of Court could not have the effect which the Appellant seeks to attribute to it and therefore the argument must fail." These observations may be well applied to the present case as we are of opinion that a sanction under Section 197 was not necessary notwithstanding the view of a single judge to the contrary in "37 Mys HCR 514. As expressed in H.T. Huntley v. Emperor, AIR (31) 1944 FC 66 : "The act of receiving illegal gratification by a public servant cannot be regarded as an act done or purporting to be done in execution of duty." This was affirmed in H.H.B Gill v. Emperor AIR 1947 PC 9 and upheld by the Privy Council in H.H.B Gill v. The King, AIR (35) 1948 PC 1281 This is not sufficient to dispense with the need for sanction altogether as there is Section 12 of the Prevention of Corruption Act which though different from Section 197 Criminal P. C. states : "No Court shall take cognizance of an offence punishable under Section 161, Section 164 or Section 165 of the Indian Penal Code or other Section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction of : (a) the Government in the case of a public servant removable from his office by or with the sanction of Government; (b) the officer or officers specially empowered in this behalf by Government in the case of all other Public Servants". There is no provision in this section as in S. 197(2) Cr. P. C. for the Government specifying the Court by which the accused is to be tried.

7. Exhibit P-5 states that sanction is accorded under S. 197 Criminal P. C. as well as S. 12 Prevention of Corruption Act. If as held in B.G. Lerotholi v. The King, AIR (37) 1950 PC 10, S. 197 does not apply, the order made thereunder does not affect the ordinary jurisdiction of the City Magistrate to commit the accused and this is obligatory as regards the offence under S. 5 of Prevention of Corruption Act which, being punishable with imprisonment of seven years, is triable exclusively by the Court of Session under Sch. II of the Code of Criminal Procedure. Even otherwise the words in S. 347 of the Code enable him to exercise his powers to commit, at any stage of the proceedings, the accused to the Court of Session. In AIR (34). 1947 FC 9 it was observed that after the institution of proceedings is sanctioned the subsequent course of the same is governed by the relevant provisions of the Code. There is no reason to hold that the sanction of Government for the initiation of the proceedings was defective or that the trial of the accused in the Court of Session was invalid.

8. As regards the merits of the case the contention was two-fold; that the entire evidence is to be discarded as it consists of persons who engineered a plan to foist a case on the accused and in any case it is untrustworthy for want of necessary corroboration. Sri Jayarama Iyer cited 1947-2 KB 372 in which dealing with a "case under the Betting Act Lord Guddard, C.J., remarked "The Court observes with concern and disapproval, the fact that the police authority at Derby thought it right to send a police officer into a public house to commit an offence. It cannot be too strongly emphasised that unless an Act of Parliament provides for such a course of conduct and I do not think any Act of Parliament does so provide it is wholly wrong for a police officer or any other person to be sent to commit an offence in order that an offence by another person may be detected. It is not right that police authorities should instruct, allow or permit detective officers or plain clothes constables to commit an offence so that they can prove that another person has committed an offence. It would have been just as much an offence for the police constable in the present case to make the bet in the public house as it would have been for the bookmaker to take the bet if in doing so he had committed an offence. I hope the day is far distant when it will become a common practice in this country for police officers to be told to commit an offence themselves for the purpose of getting evidence against some one; if they do commit offences they ought also to be convicted and punished for the order of their superior would afford no defence." The decision in the case was not based on the view that such evidence cannot be acted upon as was made clear by the statement "I decide this case entirely on the ground that a public house is not a public place within the meaning of the strict Betting Act". The decision of a single Judge abstract of which is given in In re. Chandrasekhara Iyer, (1951) 1 Mad LJ (Notes) 45 merely states that where officials laid a trap and incited bribery such officials and bribe-givers would be in the position of accomplices and their evidence requires corroboration in material particulars to establish the crime of bribe taking. In re, Jesudas Appadurai Pillai, 1945 Mad WN 114 is also the decision of a single Judge concerning an offence under S. 161, IPC in which testimony of the person giving the bribe is subjected to the test of corroboration. In re, Lakshmi Narayana Aiyar, 1917 Mad N 831 was also cited for the appellants to show that the person offering the bribe would be guilty though the offer was made as a pretence and not accepted by the person to whom it is offered. This case has not much bearing on the appellants contention as the question now is not whether P. W. 14 who paid the amount to the 1st accused is guilty and as the decision in that case was based on other grounds. Pandita Gangaram v. The Crown, AIR (37) 1950 Nag 1 and Province of Orissa v. Venkata Rangamma, 1950 DLR (Cut) 26 relied upon do not lay down in effect anything more than the need of corroboration. In none of the cases was the evidence excluded as being that of decoys or spies and the judgment in the last case quotes with approval the observations of Lord Alverstone in The King v. Mortimer, (1911) 1 KB 70. "The particular transaction of which evidence given is the result of police trap and though I do not like police traps any more than any one else still it is only fair to remember that it is almost impossible to detect this class of offences in any other way".

9. In Russells book on Crimes and Misdemeanors Vol. 2 page 2136 (1923 Edn.) it is stated "Government are justified in employing spies and a person so employed does not deserve to be blamed if he instigates offences no further than by pretending to concur with the perpetrators. Under such circumstances they are entirely distinguished in fact and in principle from accomplices". In Halsburys Laws of England, Vol. 9, page 222 there is the statement "A Police spy, for example a woman who visits a suspected abortionist and pretends that she wishes him to procure her abortion is not an accomplice. Taylor also in his book on evidence at page 970, Vol. I, (1920) Edn. says "To one class of persons apparently accomplices the rule requiring corroborative evidence does not apply namely persons who have entered into communications with conspirators but who in consequence of either a subsequent repentance or an original determination to further the enterprise have disclosed the conspiracy to the public authorities under whose direction they continue to act with their guilty confederates till the matter can be so far matured as to ensure their conviction. The early disclosure is considered as binding the party to his duty and though a great degree of disfavour may affect him for the part he has acted as an informer yet his case is not treated as that of an accomplice". In Vol. XVI Corpus Juris, page 673 it is stated that "A detective who is engaged in attempts to discover violations of the law is not an accomplice of one charged with such a violation." The question as to what is the test of a person being an accomplice is considered in Emperor v. Chaturbhuj Sahu, 38 Cal 96 at p. 105 in detail and answered thus : "It may sometimes be difficult to draw the line of discrimination between an accomplice and a pretended confederate such as a detective, spy or decoy, but we think the line may be drawn this way. If the witness has made himself an agent for the prosecution before associating with the wrong doers or before the actual perpetration of the offence he is not an accomplice; but he may be an accomplice if he extends no aid to the prosecution until after the offence has been committed". It is evident from a consideration of these that the evidence of persons concerned in laying the trap cannot be regarded as that of accomplices in the sense that they are participants in the commission of the offence, though the detection of crimes by means of such a practice as a rule is not deemed commendable and justified by the peculiar difficulties in getting proper proof of the commission of offences in particular cases. Opinions may vary about methods to be employed for exposing wrongful acts by holding out temptations or baits to persons suspected of abusing their official position for selfish gains. It was said that such practices, if allowed, may lead to cases being trumped up against innocent men. The mere possibility of an improper use of the device cannot be a ground for its rejection out-right. Experience shows that this is not usually or frequently resorted to in cases coming before Court for decision. The secrecy and subtlety with which certain offences are ingeniously committed, the novelty of tactics and maneuvers indulged in call for a course different from that adopted in other cases to apprehend wrong doers. So long as there is no prohibition under the law, the Courts cannot shut out such evidence and have accepted such evidence to support convictions under S. 161 IPC but required corroboration in some instances to be satisfied about the truth of the version and not because of any necessity for it under the law. (See K.H. Bhattacharjee v. Emperor, AIR (31) 1944 Cal 374, Mahabir Prasad v. State, 52 Cri LJ 944 (Punj). The Prevention of Corruption Act contains special provisions by which the burden of proof ordinarily imposed on the prosecution in a criminal case is placed on the accused and the accused are allowed to give evidence if they choose. When as in this case the prosecution evidence is that of persons who provided and paid the bribe after arranging for the time and place therefor on a previous consultation, all that the accused may ask for is that the evidence should be scrutinised with care and accepted with caution.

10. Learned counsel for appellants after refering to the remarks in AIR (31) 1944 FC 66 at p. 68 that a charge under S. 161 IPC is often lightly made and however strong the suspicion, the accused is entitled to an acquittal unless every reasonable possibility of innocence is exhausted, argued that in this case the receipt of the amount by the 1st accused which is an essential requisite of the offence is not established as the only evidence about it is that of P. W. 14 who has been regarded as unreliable in certain other cases. Criticism of a person or comments made on his conduct in one case cannot afford a proper basis for estimating his evidence in another case as the opinion to be formed depends on the particular facts and materials placed before the Court for consideration (See Chandreshwar Prasad v. Bisheshwar Pratab, AIR (14) 1927 Pat 61. The veracity of the witness has to be judged from the facts elicited during his examination and the support these receive by the other evidence and probabilities. The witness cannot be disbelieved because he set up in a suit for partition pleas which were characterised as or because he compounded a case of defamation by tendering an apology. He was a contractor and while carrying on some works had to make payments to some officers. This is not a detracting factor as he may have been a victim to compelling circumstances and not an accomplice. The lengthy cross-examination to which the witness was subjected has not elicited anything to show that he had any motive to incriminate the accused falsely or that he had expectations of a gain from his fall. Apparently he is well to do, possessed of a number of houses fetching substantial rents in the City. Receipt of a bribe by an officer being an act in accordance with a highly personal and confidential arrangement with the giver in the house of the officer himself where the utmost precaution for secrecy is naturally taken, the absence of evidence of any other in support of P. W. 14s statement about the payment to accused 1 is no ground to disbelieve him. Even if corroboration as in the case of an accomplice is necessary, it is enough if there is independent evidence in support of his version in certain material particulars and such evidence on every point of detail spoken to by the witness is not required. As already mentioned many of the facts about which evidence is let in are admitted. (His Lordship reviewed the evidence and continued. Though there are a few minor discrepancies in the evidence of the witnesses, in the main it is reliable and satisfactory. We would therefore uphold the convictions.

11. The question of sentence needs a little consideration. So far as accused 1 is concerned, the sentences awarded according to the judgment are two years rigorous imprisonment and fine of Rs. 1,000/- for the offence under S. 161 IPC and a similar sentence for the offence under S. 5(1) (d) of Prevention of Corruption Act. The direction that these are to run concurrently cannot relieve the 1st accused of the liability for payment of the fine in each case. When, the act constituting the offence and facts relating to it are the same for the purpose of conviction under both the sections, we do not think a double sentence of fine is proper. As regards the sentence of imprisonment though in view of the consideration that corruption is a grave and growing evil to be nipped in the bud and when a case is made out against a person such as the 1st accused holding a responsible position in service, the sentence should be deterrent, the consequences of the conviction on his career at this stage of his life cannot be overlooked. It is sufficient we think to limit the period of rigorous imprisonment for each offence to six months and direct the sentences to run concurrently. The sentence of fine with respect to the offence under S. 5(1)(d) read with S. 5(2) of Prevention of Corruption Act is set, aside but with respect to the offence under S. 161 IPC is confirmed as also the sentence to be under gone in default of payment. The case of 2nd accused does not call for any interference. His appeal is dismissed. The appeal of accused 1 is dismissed with the above modification in the sentences. The 1st accused must surrender to the bail and undergo this sentences. Appeal dismissed but sentences modified. AIR (39) 1952 MYSORE 37 (C. N. 21) "Kala v. Javaramma" MYSORE HIGH COURT Coram : 2 MALLAPPA AND VASUDEVAMURTHY, JJ. ( Division Bench ) Kala, Judgment-Debtor No. 1, Appellant v. Javaramma, Decree-Holder and others, Respondents. Second Appeal No. 22 of 1950-51, D/- 21 -9 -1951. (A) Civil P.C. (5 of 1908), O.21, R.90 - ADJOURNMENTS - Fraud in publishing and conducting sale - Ill-will between judgment-debtor and person looking after execution on behalf of legal representative of deceased decree-holder - Notice of execution sale to judgment debtor suppressed by deliberate contrivance - No sale proclamation by beat of tom tom - Property grossly undervalued - Case held clear for setting aside sale provided application was within time. (Per Mallappa, J.) (Para 2) Anno : Civil P. C., O. 21, R. 90, N. 14, 17, 21. (B) Civil P.C. (5 of 1908), O.21, R.90 - APPEAL - CONCURRENT FINDINGS - SALE - Setting aside sale on ground of fraud - Auction purchaser not a party to fraud - Benefit of S.18, Limitation Act can be claimed. Limitation Act (9 of 1908), S.18, Art.166. S, 18, Limitation Act is applicable to cases of applications filed by judgment-debtors under O. 21, R. 90, Civil P. C. The two provisions of law read together make it clear that the fraud that is complained of as having kept the applicant from knowledge of his right to file the application is the fraud of decree-holder rather than that of the purchaser. S. 18, of the Limitation Act postpones the starting point of limitation. W ceases to be applicable the moment limitation begins to run. The fraud that keeps the applicant from knowledge of his right to apply, as stated in S. 18, Limitation Act is not one practised after the sale is held but anterior to it. Hence even in cases where the purchaser in a Court sale is a bona fide purchaser for valuable consideration limitation for an application to set aside a sale runs under S. 18, of the Limitation Act from the date on which the applicant came to know of the fraud practised by the decree-holder preventing the Judgment-debtor from becoming aware of the sale and consequently of his right to get it set aside. AIR (20) 1933 Mad 626; applied, 46 Mys HCR 592, Distinguished. (Paras 3, 4, 5,and 6) The fraud that has to be alleged for setting aside a sale in an application under O. 21, R. 90, C.P.C., is not the same as the fraud that S.18, Limitation Act, contemplates, though by the same act of the Decree-holder or other person the two kinds of fraud might have been committed. Even in respect of fraud that has to be alleged under O. 21, R. 90, before a sale can be set aside, the purchaser, need not be shown to have been a party to it. AIR (9) 1022 PC 3S3, Relied. (Para 8) Hence, where in an application for setting aside a sale under O. 21, R. 90, Civil P. C., filed beyond limitations prescribed by Art. 166, Limitation Act the judgment-debtor proves that he had been kept from the knowledge of sale by the fraud of the decree-holder, he would be entitled to the benefit of S. 18, Limitation Act notwithstanding the fact that the auction purchaser is not a party to the fraud practised by the decree-holder. Per Vasudevamurthi, J. :- It may be that in cases where such an application is made long after the sale and the auction-purchaser is found to be thoroughly innocent of the fraud and has further improved the property or spent monies on it, or it has passed on to other bona fide purchasers for value without notice, the Court may consider whether the judgment-debtor who is guilty of laches may sit by and acquiesce in such improvements and can succeed against the auction-purchaser. But in a case where no such considerations arise at all there can be no reason why if the fraud in publishing or conducting the sale is proved as against the auction-purchaser, the result of that finding should not be held to affect the auction-purchaser also. (Para 17) Anno : Civil P. C., O. 21, R. 90, N. 37, O. 21, R. 92, N. 4; Lim. Act, S. 18, N. 8, 10, Art. 166, N. 21. (C) Civil P.C. (5 of 1908), S.100 - LIMITATION - Concurrent findings of fact that execution sale is vitiated by fraud and material irregularity are binding and cannot be questioned in second appeal. (Per Mallappa, J.) (Paras 3 and 13) Anno : Civil P. C., S. 100, N. 54. (D) Limitation Act (9 of 1908), S.18 - APPEAL - Initial onus of proving fraud in order to obtain protection u/S.18 lies on person seeking exemption from law of limitation - Burden shifts on the opposite party to show circumstances which would nullify the effect of such fraud (Per Vasudevamurthi, J.) Case law Ref. (Para 15) Anno : Limitation Act, S. 18, N. 7. (E) Civil P.C. (5 of 1908), S.100 - LIMITATION - Finding of fact - Interference when warranted. Per Vasudevamurthi, J. :- Where the findings of the lower Courts are not so much findings of facts on the evidence as findings on inferences which they conceive that evidence supports and if their conceptions as to that evidence in effect amounts to misconceptions which make the inferences quite in supportable, then in second appeal those findings can be interfered with and set right. (Para 15) Anno : Civil P. C. S. 100, N. 53. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases). (93) 17 Bom 341 : (20 Ind App 1 PC) 16 (93) 20 Cal 93 (PC) 15 (05) 29 Bom 1 : (31 Ind App 154 PC) 15 (23) 71 Ind Cas 625 : (AIR (9) 1922 PC 393) 8 (28) AIR (15) 1928 All 354 : (108 Ind Cas 899) 16, 17 (75) 24 WR 260 8 (93) 20 Cal 93 15 (13) 18 Ind Cas 715 (Cal) 8 (14) AIR (1) 1914 Cal 728 : (24 Ind Cas 249) 16 (21) 48 Cal 119 : (AIR (8) 1921 Cal 251) 5 (26) 44 Cal LJ 565 16 (42) 46 Cal WN 403 16 (48) AIR (35) 1948 Cal 63 : (82 Cal LJ 9) 16 (49) AIR (36) 1949 Cal 212 : (53 Cal WN 587) 16, 17 (15) 38 Mad 1076 : (AIR (3) 1916 Mad 33) 17 (33) 56 Mad 734 : (AIR (20) 1933 Mad 626) 4 (50) 1950-1 Mad LJ 432 : ( AIR (37) 1950 Mad 460) 17 (26) 31 Mys CCR 229 15

46 Mys HCR 592 13

12 Mys LJ 482 15

14 Mys LJ 305 15 (23) AIR (10) 1923 Pat 435 : (72 Ind Cas 625) 16, 17 (25) AIR (12) 1925 Pat 521 : (85 Ind Cas 622) 15 R.V. Srinivasaiya, for Appellant; V. Krishnamurthi, for Respondent No. 2. Judgement MALLAPPA, J. :- This is an appeal against the order in R. A. 120/48-49 on the file of the Additional Subordinate Judge, Hassan, confirming the order of the learned Munsiff, Holenarasipur, in Execution Case No. 93 of 1944-45.

2. The Judgment-debtor in Exn. 93/44-45 filed an application I. A. No. I, under Order 21, Rule 90 and Section 151, Civil Procedure Code to set aside a sale on the ground of irregularity and fraud in the publication and conduct of the sale held in that case. He filed also an application under S. 18 of the Limitation Act alleging that he was fraudulently kept out from the knowledge of the sale and that he came to know of the property having been sold only when the purchaser attempted to take delivery of the property about three days prior to the filing of the application. Both the Courts below have found that there was fraud in the publication and conduct of the sale with the result that a valuable property was knocked off for a nominal sum and that on account of the fraud practised on the Judgment-debtor, he was not aware of the sale till the auction-purchaser went to take possession of the property. But the Courts below dismissed the application on the ground that the purchaser was not a party to the fraud and the application is barred by time, S. 18 of the Limitation Act not being of any help to the judgment-debtor as against him. It is not seriously disputed in this Court that fraud was practised against the judgment-debtor in getting the property sold without his knowledge with the result that it was sold for a nominal value. Time -had been granted for payment of the decree amount in instalments. The original decree-holder died and on behalf of his L.R., her son-in-law Kalegowda was responsible for the conduct of the execution case. In fact even in this case it is he who has been examined and not the L.R., of the decree-holder. It will, be noticed that there was a good deal of ill-will between Kalegowda the son-in-law of the decree-holder and the first applicant-judgment-debtor, Kalappa. There were even criminal cases between them. Kalegowda filed two execution applications for the full decree amount but it was found that they were both premature as the instalments due by then had been paid. As observed by the learned Subordinate Judge, Kalegowda alias Thimmiah had these two execution applications filed with the intention of getting the property sold though money due under the decree up to that time had been paid and that in case the judgment-debtors had not chosen to appear and contest the execution cases at that stage, possibly the execution would have been pushed through and the property sold. Then the execution case now under consideration was filed. Sale notice was not served, except for its being returned with a shara of service on the house of the first judgment-debtor. Considering all the circumstances of the case including the way in which the previous execution applications had been filed, it is clear that the notice was returned with such an endorsement of service, to avoid the fact of the execution being brought to the notice of the judgment-debtor, as pointed out by the learned Munsiff. Both the Courts have rightly believed the evidence that the sale proclamation was not published by beat of tom tom. The conduct of the process-server D.W. 1, Nanjappa in not having made a shara on the assurance of the Patel that he would get the torn torn made at the village deserves enquiry. Copies of sale proclamations were not affixed in the lands sold. The properties which had been hypothecated for Rs. 400/- and must have been worth at least double that amount were valued at Rs. 100/-. The only bidder present at the time of the sale was Lingegowda who purchased all the properties for Rs. 100/- only. None of the villagers evidently knew anything about the sale and even the purchaser Lingiah admits that he accidentally came to the place where the sale was being held. There is hardly any doubt that notices were suppressed by deliberate contrivance; there was wilful mis-statement in the value of the property sold in the sale proclamation and it is clear that all this was due to the ill-will between Kalegowda and the judgment-debtor, Kallappa, It is a clear case in which the sale should be set aside, in case the application of the judgment-debtor under Order 21, Rule 90, is in time.

3. The real point, however, that has troubled the Courts below is that the application has been filed more than 30 days after the date of sale. It is true that the applicant judgment-debtor has been kept out of knowledge of the sale by fraud but according to the lower Courts this cannot be said to be a case in which the purchaser could be said to be a party to the fraud and as such, the Courts below dismissed the application to set aside the sale. It must however, be stated that fraud cannot usually be proved by direct evidence. It must be remembered that there was a murder case against Lingappa, who has purchased the property and it is in evidence that Kalegowda who was decree-holders agent and was responsible for the conduct of the execution case, is not only closely related to Lingegowda, but was also helping him in the criminal case against him. Lingegowda had no lands in the village in which the lands sold are situated. He was not aware of the fact that the properties were brought to sale on account of any sale proclamation. According to him, he had come to Holenarasipur to buy bullocks in the shandy, the usual way in which witnesses of his kind explain their presence in places where they are not likely to be present. It was by sheer accident, according to him, that he came to know of the sale near the Court and purchased the property. All these circumstances are materials more than sufficient for the lower Courts to have come to the conclusion that the purchaser was a party to the fraud. It is, however, not necessary to differ from the concurrent findings of the Courts below on a question of fact; but in our opinion even in cases where the purchaser in a Court sale is a bona fide purchaser for valuable consideration limitation for an application to set aside a sale runs under Section 18 of the Limitation Act from the date on which the applicant came to know of the fraud practised by the decree-holder preventing the judgment-debtor from becoming aware of the sale and consequently of his right to get it set aside. My learned brother whose judgment I had the advantage of perusing has considered the views expressed in different cases and I have nothing useful to add. It is however desirable to analyse Section 18, Limitation Act and consider what is intended by the Section,

4. The first thing one has to remember is that Section 18 of the Limitation Act does not prescribe any period of limitation by itself. It is an enabling section which postpones the starting point of limitation for suits and applications when by means of fraud a person has been kept out of knowledge of such right or title on which the application is founded. It is no doubt true that Section 18 states that the suit or application to which Section 18 applies must be one against a person guilty of the fraud or accessory thereto or against a person claiming through him otherwise than in good faith and for a valuable consideration. But can it be said that an application to set aside a sale on account of fraud practised by a decree-holder cannot be said to be an application against a person guilty of fraud, merely because a purchaser has to be made a party as he is interested in the setting aside of the sale? There is authority in Pulla Reddi v. Pattabhirama Reddi, 56 Mad 734 for a case in which purchaser is guilty of fraud and not decree-holder. Beasley, C.J., with whom Bardswell, J., agreed observed : "The question before us now is whether S. 18 of the Limitation Act applies to the case when a person alleges the fraud, not of a decree-holder but of some other person, a party to the sale such as the auction purchaser here ....If the words of the section are to be followed, then any person whose fraud has kept from another person the knowledge of his right to institute a suit or make an application is within the provision of the section......If the appellant here is able to show that the auction-purchaser in this case committed such a fraud as in the first part of the section, then his application to have the confirmation of the sale set aside is not barred because time would run only from discovery of such fraud." In 56 Mad 734 the decree-holders are parties and they are referred to as respondents 1 and 2. The above extract shows that it is a case in which "a person alleges the fraud not of a decree-holder." It is thus clear from 56 Mad 734, that though only some of the persons against whom the application is filed are guilty of fraud which kept the applicant from knowledge of his right to file the application and the others are not guilty of such fraud, limitation runs in respect of that application only from the date of which the applicant discovered the fraud.

5. It has however to be observed that if Section 18 is applicable to cases of applications filed by judgment-debtors under Order 21, Rule 90, as undoubtedly it is, the two provisions of law read together make it clear that the fraud that is complained of as having kept the applicant from knowledge of his right to file the application is the fraud of decree-holder rather than that of the purchaser. It has to be remembered that, as already stated, Section 18 of the Limitation Act postpones the starting point of limitation. It ceases to be applicable the moment limitation begins to run. Is the fraud that keeps the applicant from knowledge of his right to apply, as stated in Section 18, Limitation Act one practised after the sale is held? It cannot be : in such a case limitation begins to run from date of sale and once it begins to run, Section 18, which postpones the starting point of limitation is not applicable. In fact if judgment-debtor is aware of the sale being held, he knows he has to file an application to set it aside, within 30 days from the date of sale. The fraud that keeps him from knowledge of his right to file the application to set aside the sale, must therefore be fraud that has kept the applicant from knowledge of the sale, even prior to the sale. Auction purchaser comes into the picture after the date of sale and hence the fraud contemplated under Section 18 of the Limitation Act read with Order 21, Rule 90, is the fraud practised by decree-holder and not the purchaser. Usually the fraud practised by decree-holder in the publication and conduct of sale is also the fraud that keeps the judgment-debtor from knowledge of his right to file an application to set aside the sale though decree-holder is a bona fide purchaser for value and it is to protect persons like Judgment-debtors defrauded by persons like decree-holders that Section 18 of the Limitation Act Is intended to help. In fact as observed in Bhusan Mani Dasi v. Profulla Kristo Deb, 48 Cal 119 : "In a case to set aside sale under O. XXI, Rule 90, Civil Procedure Code, the applicant must have knowledge not merely of the factum of the sale but a clear and definite knowledge of the facts which constitute the fraud before time can run against him or her. When by a fraud involving suppression of processes and submission of false returns, the applicant is kept out of knowledge of the sale of his property, such fraud must be held to have a continuing influence. Indeed in such a case it is for the other side to show that the injured party had clear and definite knowledge of the facts which constitute the fraud at a time from which taken as a starting point the suit is barred by limitation,"

6. To sum up, in order that an applicant under Order 21, Rule 90, C.P.C., might succeed in getting a sale set aside under that provision, it is unnecessary to allege or prove that the auction purchaser is guilty of fraud, if the fraud that has to be proved is to enable the Court to set aside the sale - whether that fraud was committed in the publication or conduct of the sale or whether that fraud has kept the judgment-debtor who has filed the application from knowing his right to file the application. This is so, as the application to set aside a sale is principally against the decree-holder himself. The auction purchaser purchases property subject to its being set aside on an application under Order 21, Rule 90 filed within 30 days from the date of sale or within 30 days from the date he comes to know off his right to file such an application when by fraud he has been kept from the knowledge of his right to file the application. He is only an unnecessary party in the sense that he can prevent the decree-holder and the judgment-debtor from colluding and getting the sale set aside even in a case where there are no grounds for doing so.

7. In this case the fact that the auction-purchaser who was not a party to the fraud which kept the judgment-debtor from the knowledge of his right to file the application under Order 21, Rule 90, cannot therefore affect the applicants right to get the sale set aside.

8. As already pointed out the fraud that has to be alleged for setting aside a sale in an application under O. 21, R. 90, C. P. C., is not the same as fraud that Section 18, Limitation Act, contemplates, though by the same act of the decree-holder or other person the two kinds of frauds might have been committed. Even in respect of fraud that has to be alleged under O. 21, R. 90, it was at one time considered that before a sale can be set aside, the purchaser must be shown to have been a party to it. This is now not considered to be correct law and in the numerous cases of this Court dealing with the point no such condition is even mentioned as fit for consideration before setting aside sales. As observed in Nur Mahomed Peerbhoy v. Dinshaw Hormasji, 71 Ind Cas 625 (PC) : "Two points are urged in support of the application. The first is that, as there is no allegation of fraud against the auction-purchaser, the sale cannot be set aside. Reference is made to the decision in Mohesh Chunder v. Dwarka Nath, 24 WR 260. All that was said in that case was that, however fraudulent the conduct of the plaintiff may have been, if the purchaser is not implicated in the fraud, the validity of the sale would not be affected by the badness of the decree under which the sale took place. There is no question of the decree being vacated in the present instance. We are now concerned with the question of setting aside the sale under O. XXI, R. 90, Civil Procedure Code. Now, it is plain from the terms of that rule which empowers the Court to set aside, a sale on the ground of material irregularity or fraud in publishing or conducting it, that it is not necessary that fraud should be alleged against the auction purchaser who had no existence at the time of publishing or conducting the sale, and it will seldom be possible. There is also direct authority in the decision in Bipin Bihari v. Kanti Chandra, 18 Ind Cas 715 (Cal), that a sale in execution may be annulled on the ground of fraud even if it were not proved that the auctions-purchaser had been a party to the fraud."

9. It would be useful to refer to the rest of the judgment as a case is similar to the one now under consideration. But I think enough has been said to show that in this case the lower Courts were not right an having failed to give relief under the impression that Section 18, Limitation Act is not applicable. The appeal is therefore allowed; the orders of the Courts below are set aside. The application under Order 21, Rule 90, Civil Procedure Code, is allowed and the sale set aside. The appellant is entitled to costs throughout.

10. VASUDEVAMURTHY, J. :- This Second Appeal has been filed by the 1st Judgment-debtor against the order of the Subordinate Judge at Hassan confirming the order of the Munsiff of Holenarasipur refusing to set aside a sale held in Ex. Case No. 93/44-45 on his file.

11. Respondent 1, claiming as heir of her grandson who obtained the decree, is the present decree-holder, and Respondent 2 is the auction-purchaser. The decree which was passed on 12-12-1938 for Rs. 580/- costs and current interest provided for payment of the same in six annual instalments. Respondent 1 filed her first execution application in Ex. Case No. 886/40-41 for the full amount of the decree when the judgment-debtors pleaded that they had paid several sums into Court and that the execution was premature. That execution petition was dismissed on 4-12-1941. The decree-holder then filed on 27-5-43 a next application in Ex. 831/42-43. In this application also he claimed the entire decree amount, but later, on 23-12-43 her Counsel admitted he would give reduction to the extent of Rs. 568/- and accordingly amended the claim. Then that execution petition was also dismissed. The judgment-debtors had by then deposited a further sum of Rs. 100/- and this was drawn by the decree-holder on 13-6-44. For the balance of Rs. 228-10-0 said to be still due she took out the present execution on 29-7-44 and four items of property consisting of a house and three lands were brought to sale on 18-12-44 and purchased by Respondent 2 for Rs. 238/. That sale was confirmed on 25-1-1945.

12. Subsequently on 12-3-1945 the judgment-debtors filed the present application I.A. No. 1 in that execution case under Sections 47 and 151 and Order 21, Rules 66 and 90 read with Section 18 of the Limitation Act stating that they came to know of the Court sale on 9-3-45, i.e., just three days earlier when delivery of possession of the house was sought to be taken. They said that the decree-holder, her son-in-law Kalegowda who was managing her affairs, Respondent 2 the auction-purchaser, and the Patel of the village had made common cause and had colluded together and got their properties sold and knocked down nominally in the name of Respondent 2 who was a relation and close friend of Kalegowda, for a very low price even which they themselves had paid; that though they had made substantial payments of amounts aggregating more than 5 out of 6 instalments and had not committed any default the decree-holder had taken out execution more than once claiming sums far in excess of her dues and had got the properties sold without proper notice to the judgment-debtors; that there was great ill-will on account of various reasons which they alleged in extenso, between them and Kalegowda and the Patel and that if they had been aware of the execution proceedings they would have readily paid up the small balance and would not have allowed their valuable properties to be sold away for a paltry sum. They further pleaded that they had been fraudulently kept out of the knowledge of the execution proceedings and of the sale and relied on various grounds of irregularities and fraud to have the sale set aside.

13. Both the Munsiff and the Subordinate Judge were satisfied that the sale was vitiated by serious irregularities and fraud. Neither the sale notice nor the sale proclamation had been served on the judgment-debtors. There was no due publication of the sale proclamation by beat of torn torn and the same had not been affixed on the properties sold. The Amin had made a false report in this matter. The properties had been very grossly under-valued at Rs. 25/- per item or at Rs. 100/- in all though they had admittedly been mortgaged for a much larger sum and were quite valuable, and they had been purchased for a grossly inadequate value by Respondent 2 who was the only solitary bidder at the Court sale. The decree-holder had more than once claimed wrongly a larger sum than was due. The judgment-debtors had been put off the knowledge of the execution proceedings by fraud and they would have paid up the small balance still due if they had known earlier about them. The sale was therefore, according to them, vitiated by fraud and material irregularity as a result of which the judgment-debtors had sustained substantial injury and it was therefore liable to be set aside. These concurrent findings are binding on the Respondents 1 and 2 and cannot be questioned by them. Indeed no serious attempt was made to do so either. But both the learned Munsiff and the learned Subordinate Judge, however, hold that they were unable to give any relief to the judgment-debtors as their application to set aside the sale was made beyond 30 days after the sale. According to them, the ground that the judgment-debtors were kept out of the knowledge of their right to make that application earlier by the fraud of the decree-holder could not avail them as against the stranger auction-purchaser. They have mainly relied on a decision in 46 Mys HCR 592, for arriving at this conclusion.

14. Mr. R.V. Srinivasaiya, learned Counsel for the Appellant, strenuously contends, and rightly, that that decision has no application. In that case it was held that a bona fide purchaser at a Court auction who is a stranger to the decree does not lose his title to the property by the subsequent reversal or modification of the decree and as a rule all that he need look to is the decree and order for sale. He urges that even this principle has been held to apply only in favour of a third party purchasing bona fide at a Court sale but not where the decree-holder himself is the purchaser as the latter is deemed to have had notice of all the facts relating to the suit and execution proceedings. Respondent 2 in this case, he argues, is merely a name lender for the decree-holder and is a close relation and friend of Kalegowda who was acting throughout as her agent. He bid for the properties with full knowledge of the fraud sought to be played on the judgment-debtors and merely to oblige the former. He has referred to the evidence of Respondent 2 where he has admitted that he had no lands in that village, that he went and bid at the sale most casually, that he had not even seen the properties and that he made no enquiry of any kind about them before bidding. And he relies on the evidence of D.W. 1 Kala and D.W. 4 Thimma to show that Respondent 2 is a relation though somewhat distant of Kalegowda and a very close friend of his. The relationship is denied by Respondent 2 but is apparently true; and there is not much doubt that he is a close friend and was acting in league with Respondent 1s son-in-law Kalegowda. But these circumstances by themselves, it is contended, by Respondent 2 may not be sufficient to enable the Appellant to get over the finding of both the lower Courts that it has not been shown in this case that Respondent 2 was merely a name lender for Respondent 1 or was a party to the fraud played by or on behalf of the decree-holder.

15. The initial onus of proving fraud in order to obtain the protection of Section 18 would lie on the person seeking such exemption from the ordinary law of limitation. But the burden of then proving that he is a bona fide purchaser without any knowledge of the fraud played by the decree-holder would then shift to some extent at least on the person who wishes to rely on any special circumstance to escape the effect of such fraud. Compare in this connection 12 Mys LJ 482, where it has been held following Bajrang Prasad v. Mt. Sonejhari Kuer, AIR (12) 1925 Pat 521, and other cases that the burden of proof shifts on the decree-holder once the petitioner establishes that fraud has been practised, to prove that he had knowledge earlier so as to exclude the operation of Section 18. It has been held in numerous cases of suits for specific performance that the burden of proving that he is a bona fide purchaser for value without notice of the earlier contract within the meaning of S. 27 (b) of the Sp. R. Act is on the subsequent purchaser and not on the plaintiff to prove that he has such notice; see Pollock and Mullas Indian Contract and Special Relief Acts 7th Edition, page 719. The argument urged in such cases that the defendant should not be compelled to prove a negative has not met with acceptance. In the present case the Courts below have assumed that no part of the burden lay on Respondent 2 to show that he was such a bona fide purchaser and that he had paid consideration out of his own monies when both had been denied by the judgment-debtors and they had let in some considerable evidence in support of such a charge. It has been held by this Court in L.A. Pourwall and Co. v. Aswathanarayana Setty, 31 Mys CCR 229 following Ramgopal v. Shamskhaton, 20 Cal 93 and 42 Bom 252*. Shivabasava v. Sangappa, 29 Bom 1 at p. 12 and in 14 Mys LJ 305 that where the findings of the lower Courts are not so much findings of facts on the evidence as findings on inferences which they conceive that evidence supports and if their conceptions as to that evidence in effect amounts to misconceptions which make the inferences quite unsupportable, then in second appeal those findings can be interfered with and set right. It cannot, therefore, be said that the lower Courts are right under these circumstances in assuming even without any evidence in rebuttal that Respondent 2 is such a bona fide purchaser for consideration without any notice of the fraud practised by the decree-holder. *The citation of 42 Bom 252 seems to be wrong - Ed.

16. Mr. Srinivasiya has also urged that the benefit of Section 18 of the Limitation Act can be availed of by the judgment-debtors as against the auction-purchaser even if he is not shown to be privy to or have had notice of the fraud. For that position, he has relied on a case reported in Mahipati Haldar v. Atul Krishna, AIR (36) 1949 Cal 212 in which the facts were similar. There an application was made by the judgment-debtor for setting aside a sale on grounds of fraud and material irregularity in publishing and conducting the sale which had resulted in the property being sold at grossly inadequate price. The application was dismissed by the District Judge on the sole ground that it was presented more than 30 days after the date of sale and although the decree-holder was guilty of fraud the auction purchaser who was a stranger, not being a party or accessory to such fraud, the provisions of Section 18 of the Limitation Act could not be invoked against him. In revision this order was set aside and it was held by Mukherjea, J : "It is clear from the language of O. 21, R. 90, Civil Procedure Code, that for setting aside a sale under that rule on the ground of fraud in publishing and conducting the sale it is not necessary to prove that the auction purchaser was a party to the fraud. It is also well settled that the fraud contemplated by Section 18, Limitation Act, is not confined to fraud committed at the inception of the cause of action but may include fraud committed before that date. Where fraud has been committed by the decree-holder in bringing the property of the judgment-debtor to sale, the fraud though committed during execution proceedings would have a continuing influence and would retain its power of mischief so long as that influence is not ended and the party affected has not clear knowledge of the fact constituting the fraud." In support of that position he relied on the observations of the Judicial Committee in Rahimbhoy Habibbhoy v. Charles Agnew Turner, 17 Bom 341; Jotindra Mohun v. Brojendra Kumar, AIR (1) 1914 Cal 728, and on Kedar Hura v. Ashutosh Roy, 44 Cal LJ 565, Jagdeo v. Ujiyani Kunwar, AIR (15) 1928 All 354 and Mahabir Ram v. Rambahadur Dubey, AIR (10) 1923 Pat 435, and differed from the cases reported in Jagiswar Das v. Debnarain Roy, 46 CWN 403 and Sailabala Dasi v. Atul Krishna, AIR (35) 1948 Cal 63. He was of the view that the intention of the legislature could not be that the judgment-debtor should have absolutely no remedy under Order 21, Rule 90, Civil Procedure Code if the auction-purchaser was a third party who could not normally be a party to the fraud committed by the decree-holder prior to the sale.

17. As against this case Mr. Siddappa, learned Counsel for the decree-holder, has relied on a case reported in Ghulam Kadir v. Municipal Council, Negapattinam, (1960) 1 Mad LJ 432, where it has been held that though in such cases the decree-holders fraud may have a continuing influence so as to keep the applicant in ignorance of his right to file a petition for setting aside a sale, when the sale has been confirmed in favour of a bona fide auction-purchaser, the ignorance of the applicant of his right to file an application must also be established as due to the fraud of the auction-purchaser. Panchapagesa Sastri, J., who decided that case felt that the policy of the Legislature appeared to be that judicial sales should be challenged very early and that except in cases where there was no jurisdiction to sell and the sale was therefore a nullity, bona fide auction-purchasers must not be deprived of the benefit of the provisions of the Limitation Act under Article 166 and Article 12 and that it was inconsistent with the policy of the Act to apply Section 18 against them where they were not shown to be parties to the continuing influence of the fraud of the decree-holder. In support of that view he relied on a case reported in Payidamma v. Lakshmi Narasamma, 38 Mad 1076 and to observations of Sadasiva Ayyar, J., in that case. Those observations no doubt fully support Panchapagesa Sastri, J. With great respect, the point does not appear to have arisen directly for consideration in that decision and was really in the nature of an obiter as the plaintiff had filed a suit in that case which was held by both the learned Judges who heard that case as perfectly competent and within time. Even Sadasiva Ayyar, J., does not appear to have been happy at the result which would be reached by accepting the contention that the judgment-debtor could only sue a decree-holder for damages for fraud after the expiry of 30 days and could not get back the property which had been sold in Court auction through fraud both of the decree-holder and the purchaser. He felt bound, however, to come to the conclusion that the judgment-debtor even in such a case cannot apply under Order 21, Rule 90 after the expiry of 30 days for setting aside the sale and thought that there may be other appropriate reliefs which in justice were due to the judgment-debtors to get rid of the effects of the fraud practised by the Court auction-purchaser by instituting a suit praying for such other reliefs. He did not wish to hold that the Courts were powerless to imagine, invent and grant other appropriate reliefs in such cases" and suggested that the Court without setting aside the sale may possibly even grant an injunction to the Court auction-purchaser to reconvey the property to the judgment-debtor which would have the effect similar to a decree for specific performance of a contract of sale. He observed : "The hands of Courts of Justice are not tied in these matters simply because, to support the grant of a particular appropriate relief, no exact precedent could be quoted." Panchapagesa Sastri, J., referred to AIR (36) 1949 Cal 212 and the earlier cases on which it was based but chose to follow the earlier Madras decision. If it is the rule of Stare decisis which prompted the learned Judge who decided the later Madras case, we in this Court are free to follow either of the views; and it appears to me that we would be doing substantial justice and committing no breach of any express rule of the law if we adopt the Calcutta, Allahabad, and Patna view as expressed in AIR (36) 1949 Cal 212, AIR (15) 1928 All 354 and AIR (10) 1923 Pat 435. It may be that in cases where such an application is made long after the sale and the auction-purchaser is found to be thoroughly innocent of the fraud and has further improved the property or spent monies on it, or it has passed on to other bona fide purchasers for value without notice, the Court may consider whether the judgment-debtor who is guilty of laches may sit by and acquiesce in such improvements and can succeed against the auction-purchaser. But in a case like the present where no such considerations arise at all there can be no reason why if the fraud in publishing or conducting the sale is proved as against the auction-purchaser, the result of that finding should not be held to affect the auction-purchaser also.

18. In the result, this appeal is allowed and the orders of the Courts below are set aside with costs throughout, and consequently the sale is set aside.

19. Before leaving this case reference must be made to the observations of the learned Munsiff in paras 10, 11 and 12 of his judgment about the conduct of P.W. 1, a Process Server of his Court. He appears to have made a false report or given false evidence. If confidence in proceedings of Court is to be maintained, it is very necessary that instances of this nature, should be promptly investigated and, if proved, should be severely dealt with. The Munsiff will hold an enquiry into the conduct of the Process Server and forward the result of the same to this Court through the District Judge very early. Appeal allowed. AIR (39) 1952 MYSORE 53 (C. N. 22) "Sampangiramaiah v. Govt. of Mysore" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench )

V. Sampangiramaiah, Accused-Petitioner v. Govt. of Mysore. Criminal Revn. Petn. No. 303 of 1950-51, D/- 31 -3 -1951. (A) Criminal P.C. (5 of 1898), S.428, S.439 - REVISION - EVIDENCE - Grounds for admitting additional evidence - Expert examined as Court witness - "Wobbling" nature of his evidence - If ground for admitting further evidence. S. 428 forms an exception to the general rule and the powers under the section must always be exercised with great care, especially on behalf of the prosecution, lest the admission of additional evidence for the prosecution should operate in a manner prejudicial to the defence of the accused. The accused was a retail dealer in kerosene oil. The accused was said to have sold two tins of kerosene oil at black market rate. Soon after the sale the police seised the articles. The accused while admitting the sale protested that the tins contained diesel oil and not kerosene oil. There was thus dispute about the nature of the contents of the tins. The articles were sent to the Chemical Examiner who issued a certificate that they contained kerosene oil. After evidence on both sides was closed, the learned Magistrate was of opinion that it was necessary in the interest of justice to examine the Chemical Examiner who had issued the certificate, as a Court witness. He was accordingly examined as a Court witness and the case was reserved for judgment. The Court suo motu conducted what is known as a smell-and-taste test and convicted the accused holding that the articles contained kerosene oil. After the accused filed the appeal, the prosecution preferred an interlocutory application for permission to adduce additional evidence on the ground that there would be miscarriage of justice if there should be an acquittal an account of the "wobbling nature" of the evidence of the Court witness. The prayer for additional evidence, was to the effect that "the Court would be pleased to draw samples from the articles and get the report of the Chemical Examiner thereon and also direct the Court witness to carry out all the tests referred to by him in the evidence." The appellate Court granted the application. Held that the prosecution was never prevented from letting in evidence, nor was it their case that the additional evidence was not available or could not have been produced during the course of the trial. They had thus ample opportunity at each stage when the case was reopened by the Magistrate. Further it was rather unsafe that after the lapse of a long period, further tests of the contents of the tins should be allowed. Thus the appellate Court had exceeded the jurisdiction under S. 428, which called for interference by the revision Court. AIR (22) 1935 Mad 325 and AIR (24) 1937 Mad 181, Rel. on; AIR (12) 1925 Pat 326 and AIR (15) 1928 Bom 241, Dist. (Paras 3, 4, 7, 8) Anno : Cr. P. C., S.428, N. 2, 4, 10, S. 439, N. 17 (B) Criminal P.C. (5 of 1898), S.439 - REVISION - Inference based on erroneous facts. The inference of the appellate Court based on erroneous facts is a point of law which calls for interference by the revision Court. (Para 6) Anno : Cr. P. C., S. 439, N. 16. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases). (28) AIR (15) 1928 Bom 541 : (29 Cri LJ 990) 3 (35) AIR (22) 1935 Mad 325 : (37 Cri LJ 99) 5 (37) AIR (24) 1937 Mad 181 : (38 Cri LJ 257) 5 (25) AIR (12) 1925 Pat 326 : (78 Ind Cas 565) 3 S. Gundappa, for Petitioner; The Advocate General, for the State. Judgement This revision petition is filed by the accused in C.C. No. 583 of 49-50 on the file of the City Magistrate, Bangalore, against the order of the learned Sessions Judge in the appeal case permitting the prosecution to adduce additional evidence as per particulars to be furnished by them.

2. The undisputed facts from which this revision arises are as follows.- The accused is a retail dealer in kerosene oil having his shop in New Tharagupet, Bangalore City. The police attached to the Anti Corruption Department having obtained information that the accused was selling kerosene oil at black-market rates, arranged a trap-purchase by sending P. W. 8 with two ten rupee marked currency notes. The accused is said to have sold two tins of kerosene oil for Rs. 19/- while the control rate is only Rs. 7/-. Soon after the purchase, the police seized the articles. The accused while admitting the sale protested that the tins contained diesel oil and not kerosene oil. There was thus dispute about the nature of the contents of the tins which are marked M.Os. 1 and 2 in the case. The articles M.Os. 1 and 2 which were seized on 18-8-1949 were sent to the Chemical Examiner who issued a certificate that they contained kerosene oil. After evidence on both sides was closed, the learned Magistrate was of opinion that it was necessary in the interest of justice to examine the Chemical Examiner who had issued the certificate as a Court witness. On 23-3-1950, he was accordingly examined as a Court witness and the case was reserved for judgment. The Court suo motu conducted what is known as a smell-and-taste test and convicted the accused holding that M.Os. 1 and 2 contained kerosene oil. After the accused filed the appeal, the prosecution preferred an interlocutory application (which is incorrectly marked and denominated as I.A. No. I which is a bail application) on 4-11-1950 for permission to adduce additional evidence. The reasons given are that "there will be serious miscarriage of justice if the case should result in acquittal, on account of the wobbling nature of the Court witness, particularly when the trial Court is definitely of the opinion that the oil in the tins M. Os. 1 and 2 is kerosene oil". The additional evidence according to the prayer contained therein is that "the Court would be pleased to draw samples from M. O. 1 and M. O. 2 and get the report of the Chemical Examiner thereon and also direct, C. W. 1 to carry out all the tests referred to by him in the evidence". The accused opposed the application on the ground that the application is too belated, that the prosecution cannot be allowed to fill up the lacuna and improve the case and that miscarriage of justice will result to the prejudice of the accused. The learned Sessions Judge held that in the interest of justice additional evidence is necessary and granted the application.

3. The crucial point for consideration is whether the grant of the application for additional evidence is justified under the circumstances of the case. It is argued for the prosecution that the grant of the relief is purely within the discretion of the appellate Judge and "to justify an interference in revision, the Court must be satisfied that the appellate Court committed an error of law to the prejudice of the accused on the merits", relying upon the observation of Macpherson, J., in Debi Bakchand v. Barabatunnissa, AIR (12) 1925 Pat 326. In that case when the appeal came up for hearing, the Sessions Judge found that some of the connecting links in the evidence to prove the identity of the packet (containing cocaine) examined by the Chemical Examiner were missing. Considering that evidence was defective to that extent, he recorded his reasons and directed the Magistrate to take the necessary further evidence on that point. The other case relied upon by the prosecution is reported in Bansilal Ganga Ram v. Emperor, AIR (15) 1928 Bom 241, where in a case concerning an offence under the Bombay Abkari Act, the question was as to whether certain bottles contained cocaine, the report of the Excise Analyst was objected to and held inadmissible with the result that no evidence of an expert was available and therefore the appellate Court proposed to have the Excise Analyst examined, on the ground that legal evidence as to the contents of the bottles was wanting. The two decisions referred to above are not applicable to the circumstances of the present case. No evidence is alleged to be missing as in the Patna case, nor is the certificate of the expert refused admission which obtained in the Bombay case. On the other hand, the certificate was admitted into evidence without protest, after the prosecution voluntarily closed the case, the Court took the initiative in examining the Chemical Examiner as a Court witness and not being satisfied with the expert evidence, a small-and-taste test was employed by the Court itself. The articles were seized on 18-8-1949 and were examined by the expert on 21-8-49 and the expert was examined on 23-3-1950. The prosecution was never prevented from letting in evidence, nor is it their case that the additional evidence was not available or could not have been produced during the course of the trial. They had thus ample opportunity at each stage when the case was reopened by the Magistrate.

4. Section 428, Criminal P. C., is undoubtedly general in character and invests the appellate Court with wide powers in allowing additional evidence, subject only to the condition that it should record its reason for exercising that jurisdiction. But it cannot be denied that it forms an exception to the general rule and the powers under the section must always be exercised with great care, especially on behalf of the prosecution, lest the admission of additional evidence for the prosecution, should operate as prejudicial to the defence of the accused.

5. The petitioner relies upon In re United Motor Finance Co. AIR (22) 1935 Mad 325, where Cornish, J., observes : "that the power under S. 428 should not be exercised for the purpose of filling up a gap in the prosecution when the necessary evidence was easily available to the prosecution at the hearing and not to have been then produced". A similar view has been expressed by Mocket, J., in In re Hanumanthappa, AIR (24) 1937 Mad 181. I agree with the scope of the jurisdiction laid down in those cases.

6. The learned Sessions Judge has written an elaborate Order touching upon some portions of the evidence, but I am not inclined to comment upon it at this stage lest it should prejudice either party in the conduct of the appeal. Nevertheless, I am compelled to notice one of the reasons adduced by the learned Judge to arrive at the justification to allow the application. It is mentioned in the order that C.W. 1 stated that some more tests ought to have been conducted to give a more definite opinion. On a persual of the evidence of C.W. 1, it is seen that though the witness says that there are many tests, he does not state that unless the other tests are carried out, it is impossible for him to give a more definite opinion. On the other hand, he avers that he has conducted the standard test, implying thereby that other tests were unnecessary. The test employed by him is what is known as the flash-point test, and the result was confirmed by employing the smell-and-taste test also. The inference of the, learned Judge based on erroneous facts is a point of law which calls for interference by the revision Court.

7. The application for additional evidence was filed more than six months after the appeal was preferred and by this date it will be nearly twenty months since the articles were seized and in my opinion, it is rather unsafe that after the lapse of such a long period, further tests of the contents of M.O. 1 and M.O. 2, should be allowed.

8. Viewed from any point, I am of opinion that the learned Sessions Judge has exceeded the jurisdiction under S. 428, which calls for interference by the revision Court. I therefore set aside the order on the application for additional evidence with a direction that the appeal may be disposed of according to law. Revision allowed. AIR (39) 1952 MYSORE 55 (C. N. 23) "Paliah v. Govt. of Mysore" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) Paliah, Accused-Petitioner v. Govt. of Mysore. Criminal Revn. Petn No. 396 of 1950-51, D/- 31 -3 -1951. Mysore Food Acquisition (Harvest) Order (1949), R.19(2) - CONFISCATION - DISPOSAL OF PROPERTY - Contravention of Order - Confiscation of articles seised and bullock cart used for conveyance. Criminal P.C. (5 of 1898), S.517(1). Where the petitioner was convicted under the Food Acquisition (Harvest) Order, 1949, for driving a bullock cart with paddy bags without a permit the paddy is the property in respect of which the Order was contravened and is liable to forfeiture under R. 19(2). The fact that it was converted into money does not render it less the property, the subject-matter of the offence. So the price of paddy seised is liable to forfeiture. But R. 19 restricts the power of confiscation to the specific property in respect of which the Order has been contravened. It cannot be said that the vehicle with the bullocks used to convey the property in respect of which the order is contravened forms the property for the purpose of contravention of the order. Hence, the cart and the bullocks cannot be forfeited under the Rule. (Para 3) The Harvest Order under consideration is a special law framed under the defence of india rules for meeting a particular emergency. If a special law provides a specific penalty for the contravention of any order contained therein, the operation of the general law (e.g. S. 517(1), Cr. P. C.) to that extent is rendered inapplicable : AIR (31) 1944 Bom 292 (FB); AIR (32) 1945 Lah 149 (FB) and AIR (37) 1950 Assam 132, Rel. on. (Para 3) Anno : Cr. P. C., S. 517, N. 1. Cases Referred : Chronological Paras (50) AIR (37) 1950 Assam 132 : (51 Cri LJ 432) 3 (44) AIR (31) 1944 Bom 292 : (46 Cri LJ 482 FB) 3 (45) AIR (32) 1945 Lah 149 : (47 Cri LJ 130 FB) 3 B.S. Puttasiddiah, for Petitioner. Judgement The Police of Parasurampur, Chitaldrug District, prosecuted the petitioner under R. 17(1) read with R. 19 of the Articles of Food Acquisition (Harvest) Order 1949 framed under Rr. 75 and 81 of the defence of india rules as applied to Mysore and continued by the Supplies, Services and Miscellaneous provisions act xx of 1947 for securing and maintaining food supplies. On 20-1-1950, the petitioner (accused) is said to have been driving a double bullock cart with seven bags of paddy in it without a permit to transport the paddy. The paddy was seized and delivered to the Government Depot at the control rate and the price fetched was deposited; the cart and bullocks were also taken possession of by the Police. A charge-sheet was placed before the Special First Class Magistrate, Chitaldrug. The accused admitted the circumstances and pleaded guilty to the charge and was convicted to pay a fine of Rs. 25/-. In addition, the learned Magistrate made an order directing that the price of paddy seized and the cart and bullocks should be forfeited to Government.

2. Sri B.S. Puttasiddiah, the learned Counsel for the petitioner, contended that the law under which the petitioner was convicted does not permit the Magistrate to order forfeiture of the money as also the cart and bullocks. Rule 19, Cl. (2) provides that - "Any property in respect of which the order has been contravened shall be forfeited to Government". The paddy is the property in respect of which the order was contravened and is liable to forfeiture; the fact that it was converted into money does not render it less the property, the subject-matter of the offence. So, I agree with the view of the learned Magistrate that the price of paddy seized is liable to forfeiture. But in respect of the order of forfeiture of the cart and bullocks, the contention of the learned Advocate for the petitioner is not without force. On behalf of the respondent it was argued that the Magistrate has jurisdiction to order forfeiture of the cart and bullocks under the general law empowering the disposal of the property. This contention is obviously rested upon the expression found in Cl. (1) of S. 517 of the Code of Criminal Procedure that the Court may make such order as it thinks fit for the disposal........of any property ........ "which has been used for the commission of any offence", implying thereby that the cart and bullocks were used as a vehicle for the commission of the offence.

3. From the order, it appears to me that it is more in the nature of penalty imposed under R. 19 of the Harvest Order rather than one made for the disposal of the property concerned in the offence. The Harvest Order under consideration is a special law framed under the defence of india rules for meeting a particular emergency. If a special law provides a specific penalty for the contravention of any order contained therein, the operation of the general law to that extent is rendered inapplicable. In a Full Bench case reported in Hansraj v. Emperor, AIR (31) 1944 Bom 292, it is laid down that "The provision in R. 81(4), the Defence of India Rules, is that the order of confiscation may be made if the order so provides. That shows a clear intention of the Legislature that no order for confiscation can be made if the order did not provide for it. The words if the order so provides limit the Courts power to order confiscation under the general provisions of S. 517, Criminal P. C." Harries, C.J., in the Full Bench case of the Lahore High Court Abdul Majid v. Emperor, AIR (32) 1945 Lah 149 observed thus : "It appears to me clear that R. 81, Sub-r. (4), Defence of India Rules, impliedly limits the operation of S. 517, Criminal P. C. To hold otherwise would be to hold that the words if the order so provides in R. 81, Sub-r. (4), Defence of India Rules, are redundant and absolutely meaningless". The said two decisions have been recently followed with approval by Thadani, C.J., while interpreting S. 7 of the Essential Supplies Act Vide Pad Kumar v. Rex, AIR (37) 1950 Assam 132. The view expressed in the latter case is "under S. 7, the vehicle in which the articles are carried cannot be one of the items of property in respect of which an order made under the Act has been contravened and having regard to the restricted scope of the section, the general provisions of S. 517, Criminal P. C., cannot override the specific provisions in S. 7". The portion of S. 7(1) of that Act relating to forfeiture runs thus. "Any Court.....may direct that any property in respect of which the Court is satisfied that the order has been contravened, shall be forfeited to His Majesty" and the direction for forfeiture in that section la similar to that contained in R. 19 of the Order under consideration. I am, therefore, in respectful agreement with the view expressed by the learned Judges in all those cases. Applying the principles, I am of opinion that R. 19 of the Harvest Order restricts the power of confiscation to the specific property in respect of which the Order has been contravened. It cannot be said that the vehicle with the bullocks used to convey the property in respect of which the order is contravened forms the property for the purpose of contravention of the order.

4. In the result, I set aside the order of forfeiture relating to the cart and bullocks; the conviction and sentence together with the forfeiture of the price of the paddy are confirmed. With the modification indicated above, the petition is dismissed. Order accordingly. AIR (39) 1952 MYSORE 56 (C. N. 24) "Muniswamappa v. Nanjundachari" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND MALLAPPA, JJ. ( Division Bench ) Tondala Muniswamappa, Defendant-Appellant v. Nanjundachari, Plaintiff-Respondent. Second Appeal No. 715 of 1947-48, D/- 21 -2 -1951. Transfer of Property Act (4 of 1882), S.58(c), Proviso - MORTGAGE - SALE DEED - DEED - Condition of reconveyance not embodied in sale deed - Effect. Where there is no covenant of reconveyance in the sale deed and the agreement is embodied in a separate deed which is not registered wherein the property is referred to as having been sold, the ostensible vendor cannot, in view of the proviso, urge that the relation between the parties is that of mortgagor and mortgagee. Case law referred. (Para 3) Anno : T. P. Act, S. 58, N. 33. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases). (1900) 22 All 149 : (27 Ind App 58 PC) 2

42 Mys HCR 257 2 (34) AIR (21) 1934 Nag 18 : (149 Ind Cas 354) 2 (46) AIR (33) 1946 Nag 264 : (ILR (1946) Nag 278) 2 (47) AIR (34) 1947 Pat 345 : (25 Pat 666) 2 (35) AIR (22) 1935 Rang 212 : (157 Ind Cas 179) 2 M. Ramachandra Rao, for Appellant; G.R. Ethirajulu Naidu and A.C. Byrappa, for Respondent. Judgement VENKATA RAMAIYA, J. :- This appeal arises from a suit for specific performance of an agreement of sale executed by the Appellant in favour of Respondent with respect to a house. On the same day the agreement was executed, the said property was purchased by the Appellant from the Respondent under a registered sale deed. The argument is unregistered and provides that on payment of Rs. 200/- (which is also the consideration for the sale) with interest on Rs. 150/- within a period of three years by the Respondent the Appellant should re-convey the property to the former. The Respondent has after depositing the amount applied for re-conveyance and delivery of the property. The pleas put forward by the Appellant were that there was no valid tender of the amount prior to suit and that the agreement was nominal. The trial Court negatived both these and decreed the suit. At the hearing of the appeal preferred by the Appellant against this, objection to the maintainability of the suit was newly raised on the ground that the transaction between the parties was in substance a mortgage. The learned Subordinate Judge rejected the contention and confirmed the decision of the trial Court. The argument in this Court was directed mainly against the finding of the learned Subordinate Judge that the transaction between the parties is a sale and not a mortgage by conditional sale.

2. The question whether and in what circumstances a document which purports to be a sale deed can be construed to be a deed of mortgage by conditional sale has been discussed in several cases. In Balkishendas v. W. P. Legge, 22 All 149 the Privy Council held that this has to be determined solely with reference to the terms of the document and the surrounding circumstances so far as it is necessary to ascertain the meaning of the terms. A test sometimes employed to find out whether it is the one or the other is the inclusion of a covenant to reconvey the property in the sale deed itself. In 42 Mys HCR 257 a document containing such an agreement and styled as a sale deed was treated as one of the mortgage by conditional sale. The document in that case was of a date prior to the addition of the proviso to S. 58 of the T. P. Act which states "provided that no such transaction shall be deemed to be a mortgage unless the condition is embodied in the document which effects or purports to effect the sale". The proviso places a restriction on the kind of sale deeds which can be regarded as mortgages by stating as a pre-requisite that the condition of reconveyance is to be present in the sale deed itself. In other words though there may be factors pertaining to the transaction which point to its being a mortgage it will not avail in the absence of the condition in the sale deed. In Jaggar Nath v. Butto Kristo Ray, AIR (34) 1947 Pat 345, it was held that unless the condition for resale is embodied in the sale deed the newly added proviso forbids the transaction from being treated as a mortgage. To the same effect is the decision in Samsher Khan v. Vithal Das, AIR (33) 1946 Nag 264 which reproduces the view of the Select Committee that "no transaction should be deemed to be a mortgage by conditional sale unless the condition is embodied in the document which operates or purports to effect a sale" and points out that Sir Dinsha Mulla who was a member of the Select Committee and as Law Member was responsible for the amendment, has stated the same in his Commentary on the section. Ma Sein Nyo v. Mg. San Pe, AIR (22) 1935 Rang 212 is also in support of this view. To show that omission to provide for reconveyance in the sale deed is not conclusive, Sir Ramachandra Rao relied upon Ram Narayan v. Ram Ratan, AIR (21) 1934 Nag 18 in which Niyogi, A.J.C., observed "The proviso cannot be interpreted as laying down any rigid rule that if the agreement to sell and the covenant of repurchase are embodied in more than one document the inference of a mortgage would not necessarily arise." That was a case in which the deed contained a covenant to reconvey and was yet held to be an outright sale. The observation is that of a single Judge and cannot have the force of a Division Bench to the contrary in AIR (33) 1946 Nag 264.

3. No case in which a sale deed which did not contain an agreement of reconveyance was held to be a deed of mortgage in spite of the proviso was brought to our notice. In the present case there, is no such covenant in the sale deed and the agreement is embodied in a separate deed which is not registered wherein the property is referred to as having been sold to the Respondent. The appellant cannot, in view of the proviso, urge that the relation between the parties is that of mortgagor and mortgagee. It is rather curious that the person who wants the document to be treated as a deed of mortgage is not the ostensible vendor but the vendee who obtained possession of the property and got his title as owner completed by the vendor discharging the previous encumbrance. The plea put forward is belated as well as untenable The appeal is dismissed with costs. Appeal dismissed. AIR (39) 1952 MYSORE 57 (C. N. 25) "Cheluvaiah v. Venkataramiah" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J., AND MALLAPPA, J. ( Division Bench ) Cheluvaiah, Plaintiff-Appellant v. Venkataramiah and another, Defendants-Respondents. Regular Appeal No. 25 of 1947-48, D/- 8 -3 -1951. Mysore Land Revenue Code (4 of 1888), S.54 - LAND REVENUE - SALE - As amended by Regulation (7 of 1928) - Revenue Sale of Jodi village - Effect of - Right of Jodidar to cultivate unoccupied lands if lost. S. 54, Mysore Land Revenue Code, as amended by Regulation, VII of 1928 in no way saves the rights of the defaulting Jodidar from, the effect of a revenue sale, for default of payment of land revenue due by him. It only saves the rights of kadim or permanent tenants created by or subsisting against the jodidar from being affected from the revenue sale. The right of the Jodidar himself to be in possession, of land not in the occupation of permanent or kadim tenants cannot be said to be a right created by him or subsisting against him and as such it is not saved by the amendment from the effects of a revenue sale. Consequently, all the rights of Jodidar or Vrittidar as the case may be, including the right to cultivate his lands, are lost by virtue of the revenue sale under S. 54 of the Code 43 Mys HCR 325, Ref. (Paras 11, 14, 15 and 16) (Rights of Jodidar in his village discussed) (Para 4) Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases).

15 Mys CC 120 13

43 Mys HCR 325 8, 13

50 Mys HCR 336 7

6 Mys LJ 528 12 H.V. Narayana Rao, for Appellant; V. Krishna Murthy, for (No. 1) and Nittoor Srinivasa Rao, for (No. 2), for Respondents. Judgement The appellant was the owner of five and odd vritties in Jodi Hulisandur village in Turuvekere Taluk. The vritties were sold in a revenue sale for arrears of land revenue and the defendant-respondent, who was another vrittidar in the village, purchased them. The appellant filed applications before the revenue authorities but the sale was not set aside. He thereupon filed two suits. In O.S. No. 45/45-46 on the file of the Second Additional District Judge, Bangalore, he prayed that the revenue sale may be set aside on the ground that no land revenue was due justifying the sale and that even otherwise it was vitiated by fraud. In O.S. No. 27 of 1946-47, on the file of the Second Additional District Judge, Bangalore, (originally No. 589/43-44 on the file of the Subordinate Judge. Bangalore), he contended that the revenue sale, even if valid, does not affect his permanent tenancy rights. He prayed for a decree declaring that he has permanent tenancy rights in the land and granting permanent injunction to restrain the defendants from taking possession of the land. The defendant pleaded that the plaintiff has no such permanent tenancy rights and that even if he had any such rights, he has lost them as a result of the revenue sale. It was also contended that the defendant who is the purchaser in the revenue sale has been put in possession of the property by the revenue authorities and that the suit, as brought for mere declaration and injunction is not maintainable. The plaintiff-appellant failed in both the suits. He filed appeals against these decisions in this Court.

2. R.A. No. 157 of 46-47 was against the decision in O.S. No. 45 of 45-46. In that case though no fraud was made out, it was contended that the revenue sale was without jurisdiction as no land revenue was due. On a remand for a finding on this point, the learned District Judge, on further enquiry found that arrears of land revenue necessitated the sale of the vrithi of the plaintiff. In view of the fact that arrears were really due, it was held in R.A. No. 157 of 46-47 that the dismissal of the suit in O.S. 45 of 45-46 was correct.

3. R.A. No. 25 of 47-48 is the appeal filed against the decision in O.S. No. 27 of 46-47 which has been dismissed. This case had also been remanded for a finding as to the plaintiff having any permanent tenancy rights. The learned District Judge has come to the conclusion that the plaintiff-appellant had at no time permanent tenancy rights and that his five and odd vrithies in the Jodi village have been sold for arrears of land revenue. The point for consideration in this appeal is whether any rights of plaintiff remain unaffected by the revenue sale.

4. Though there has been some dispute about the question as to whether the plaintiff has permanent tenancy rights, it was clear from the arguments in this case that there is really no difference in what both parties mean, on this aspect of the matter. The plaintiff has neither proved nor attempted to prove that he has any permanent tenancy rights in any land other than the lands of his Vritti. What the plaintiff means, when he says that he has got permanent tenancy rights in the lands of his vritti, is that he has the right to cultivate the lands, raise crops and take entire produce, subject of course to the payment of his share of the Jodi to Government. It is not denied that prior to the revenue sale, the plaintiff had the right to cultivate the lands of his vritti and to create permanent tenancies in respect of them; but it is contended that he cannot be said to be a tenant of himself and as such he cannot claim to have permanent tenancy rights. It is urged that all his rights including the right to cultivate his lands are lost by virtue of the revenue sale under Section 54 of the Land Revenue Code.

5. Section 54 of the Land Revenue Code is one of the most important sections of that Code and it has been the subject-matter of interpretation in a number of cases in this Court. It has been amended more than once and the Section as it now stands lacks clarity and precision. It is long and involved and has to be read more than once before its exact meaning becomes apparent. Before, however, analysing the section it is necessary to clarify what rights a Jodidar has in a Jodi village. The word alienated as defined in the Land Revenue Code means : "transferred in so far as rights of Government to payment of the rent or land revenue are concerned, wholly or partially, to the ownership of any person." Whenever a village was alienated by a Ruler of the State, it might have been either a village in which there were no ryots at all or a village in which some of the lands were owned by ryots subject to payment of land revenue to Government, while the other land remained unoccupied. In cases in which there were no ryots or occupants, the alienee or the Jodidar got, subject only to the payment of a fraction of the land revenue known as Jodi, the right to cultivate all the lands. He can in such cases either retain all the lands for himself subject to the payment of the Jodi or he can create permanent tenancy rights. In such cases, the persons acquiring such rights have got a right to cultivate the land subject to payment of rent to the Jodidar. They cannot be disturbed from their possession and they can alienate their rights. The Jodidar collects the rents from permanent tenants to whom he has alienated the rights to cultivate the land and enjoys the rights to be in possession of other lands. But in both cases his right is subject to the payment of Jodi to the Government. In cases in which there were ryots already cultivating the lands subject to payment of Kandayam to Government when the villages were alienated the Jodidar got the right to collect Kandayam, but he has no right to be in possession of the lands or to oust the kadim tenants so long as they pay the rent due to him. The jodidar got the right to be in possession of other unoccupied lands in the jodi village and in those cases he can of course if he wants to, create permanent tenancy rights, sell or mortgage his rights, and he can also lease the lands on a temporary basis. It is in this sense that it could be said that there are : "tenures, rights, incumbrances and equities created by the occupant or holder or any of his predecessors in title or in anywise subsisting as against such occupant or holder," as stated in Section 54 of the Land Revenue Code. The rights of Kadim tenants are rights subsisting against a holder, while the rights created by the Jodidar or his predecessor-in-title in favour of permanent tenants can be said to be rights created by the holder or any of his predecessor-in-title as stated in S. 54 of the Land Revenue Code.

6. Section 54 of the Land Revenue Code is as follows : "Arrears of land revenue due on account of land by any landholder shall be a paramount charge on the holding and every part thereof, failure in payment of which shall make the occupancy or alienated holding, together with all rights of the occupant or holder over all trees, crops, buildings and things attached to the land, or permanently fastened or anything attached to the land liable to forfeiture, whereupon the Deputy Commissioner may levy all sums in arrear by sale of the occupancy or alienated holding or may otherwise dispose of such occupancy or alienated holding under rules or orders made in this behalf under Section 233, and such occupancy or alienated holding when disposed of, whether by sale as aforesaid, or by transfer to another person or otherwise howsoever, except by restoration to the defaulter, shall, unless the Deputy Commissioner otherwise directs be deemed to be freed from all tenures, rights, incumbrances and equities therefore created by the occupant or holder or any of his predecessors in title or in anywise subsisting as against such occupant or holder, but so as not to affect the rights of Kadim tenants or permanent tenants an alienated holdings." The words, "but so as not to affect the rights of Kadim tenants or permanent tenants in alienated holdings" were added by Section 2 of Act II of 1928. Leaving these words for consideration at a later stage, it is necessary to analyse what is stated in Section 54. In the first place the section says that land revenue is. a permanent charge on the holding and every part thereof. In the second place it states that failure to pay land revenue shall make the occupancy or alienated holding, liable to forfeiture. In the third place it is made clear that the Deputy Commissioner after the forfeiture of the occupancy or alienated holding may realise the arrears of land revenue by sale of the occupancy or alienated holding, or may otherwise dispose it off. Fourthly, the Section states that on such sale or disposal unless the Deputy Commissioner otherwise directs, the occupancy or alienated holding should be deemed to be freed from all tenures or other rights created by the occupant or the holder or by his predecessors or subsisting against them.

7. It will be noticed that there may be two kinds of rights in a Jodi village. As stated by Nagesvara Iyer, J., in 50 Mys HCR 336 at p. 345 : "The entire village, it is needless to say, consists both of the rights possessed by the vrittidars and the rights possessed by the persons who might have occupancy rights in the agricultural lands in that village. In respect of lands in which the tenants hold Kadim or permanent tenancies the only right which the inamdars have, is to collect the assessment thereon. They have no right to possession of lands." The main point for consideration in most of the cases in which a Jodi village or some vrithies therein are sold by the Deputy Commissioner for recovery of land revenue under Section 54 as in this case, is to what extent the sale has affected the rights of the Jodidar, who has committed default in payment of Jodi and what effect it has on the rights of the innocent kadim tenants or permanent tenants, who are in no way responsible for the sale. The analysis of the section as it stood prior to 1928 makes it clear, that nothing comes in the way of the Deputy Commissioner directing forfeiture of the rights of the defaulting Jodidar as well as the rights of the permanent tenants and Kadim tenants and to sell both of them in order to realise the arrears of land revenue, as land revenue is a paramount charge on the alienated holding itself. In such a case, it is clearly stated in the Section that the alienated holding is freed from all tenures, created by the holder or his predecessor-in-title or subsisting against them. In other words for the default of the Jodidar in paying the Jodi, the entire holding including the rights of kadim tenants or permanent tenants in the alienated holdings could have been taken away under Section 54 of the Land Revenue Code as it stood prior to its amendment in 1928.

8. This, however, did not mean that the Deputy Commissioner should necessarily order the forfeiture of the rights of the Jodidar as well as the rights of Kadim tenants. As pointed out in Nagaraja v. Dodda Venkata Gowda, 46 Mys HCR 325 : "It is clear that it was not the intention of the Legislature that every forfeiture should be pressed to the extreme limit possible in the way that has been suggested. The amended section leaves the power of forfeiture as it was before. It leaves the whole holding of the immediate defaulter liable to forfeiture and the rights of those deriving title from him liable to forfeiture also. But it provides that, if the Deputy Commissioner so directs, when what is forfeited is put up to sale, it may be only the immediate defaulters rights and not the rights of those deriving title from him. Now, if we are to suppose, as is contended for the plaintiffs, that in every case in which there is forfeiture at all it must be forfeiture of all rights in the land concerned, not only those of the immediate defaulter but also of those holding title under him, and the Deputy Commissioner then exercises the discretion allowed to him by the amended Section of directing that what is to be sold is only the right, title and interest of the immediate defaulter, what is to become of the rights of those deriving title from him, which according to the argument of the plaintiffs must also have been forfeited? According to that interpretation of the Section those rights, unless the Government retain them, which can hardly be intended, either evaporate or are wiped out, and the Deputy Commissioners direction that the sale is subject to those rights is of no effect. I think, if we look at the section in that way, we shall see that it clearly implies that it is not necessary that all rights in the land concerned must be forfeited : it is possible for the Deputy Commissioner to forfeit only part of the rights liable to forfeiture, and, if he thinks fit, he may forfeit only the right, title and interest at the time of the immediate defaulter." It is thus made clear that it was left to the discretion of the Deputy Commissioner to order forfeiture of all the rights of the Jodidar as well as those of the permanent and kadim tenants or to direct the forfeiture of the rights of only the Jodidar. He had also the discretion to sell only the rights of the Jodidar even in case the entire rights of the Jodidar as well as the rights of the permanent and kadim tenants had been ordered to be forfeited. Thus, the rights of kadim tenants and permanent tenants, who are innocent could have been protected by the orders of the Deputy Commissioner in suitable cases. But in practice the Deputy Commissioners in their anxiety to recover the land revenue used to direct the sale of the entire holding and the result was that it happened in many cases, the rights of innocent kadim tenants and permanent tenants were lost. It was also possible for unscrupulous Jodidars to allow arrears of land revenue to accumulate so that the entire holding freed from all the rights of kadim and permanent tenants be sold and purchased in the name of an obliging benamidar. In order to safeguard the interest of those tenants created by the Jodidar or his predecessor-in-title or subsisting against them at the time of the sale, the Legislature thought it fit in 1928 to add the words : "But so as not to affect the rights of Kadim tenants or permanent tenants in alienated holdings".

9. As regards the effect of a revenue sale on the rights of persons other than jodidar in a jodi village, it will be seen that the rights of permanent tenants created by Jodidars or their predecessors-in-title or the rights of kadim tenants subsisting against them are not affected as is clear from the amendment. It is equally clear that the rights of other persons such as mortgagees, tenants who are not kadim and permanent tenants are affected as the : "alienated holding when disposed of..... by sale.. shall be deemed to be freed from all tenures, rights, incumbrances and equities theretofore created by the holder or any of his predecessors-in-title or in anywise subsisting against such holder, but so as not to affect the rights of kadim tenants or permanent tenants in alienated holdings."

10. The next question that has to be ascertained is to what extent the rights of the jodidars is affected. It will be noticed, as already observed, that the jodidars have the right to collect Kandayam from kadim tenants and permanent tenants and in case of lands not in the possession of such tenants to cultivate the lands or to lease them to other persons. It is not disputed that the right to recover jodi from permanent tenants and kadim tenants is lost on a revenue sale. As regards the rights of the jodidar to possession of the lands in the jodi village not in the possession of permanent or kadim tenants, it is argued on behalf of the appellant that the right to be in possession is not lost and the effect of the sale is that the jodidars are entitled to be in possession of the lands subject to the payment of full kandayam. The argument put forward is that the right of a Jodidar in possession of lands in a Jodi village consists of what may be termed as permanent tenancy rights subject to payment of full kandayam and the right of the Jodidar to keep a portion of the kandayam and pay the balance as Jodi. It is argued that the amendment takes away the right of the Deputy Commissioner to sell the Jodi village free from permanent tenancy rights of Jodidar and that the effect of the revenue sale is to reduce the Jodidar to the position of a permanent tenant.

11. The argument looks plausible at first sight but a careful examination of the section as amended makes it clear that no right of the defaulting Jodidar is saved by the amendment from the effect of a revenue sale, for default of payment of land revenue due by him. In the first place what is not affected by the revenue sale according to the amendment is "the rights of Indian tenants or permanent tenants in alienated holdings." It is not stated that permanent tenancy or kadim tenancy rights are not affected. Even if a Jodidar can be said to have permanent tenancy rights in the lands of his Jodi village if he is the owner of the Jodi village or in his vrithi or share of the Jodi village in case he is only the owner of a vrithi, the amendment does not state that any such rights of the jodidar remain unaffected by the sale. On the other hand, the persons whose rights are not affected are mentioned. The rights of some kinds of tenants are stated to remain unaffected and the right of no other person such as a Jodidar are stated to come under the exception made in the amendment.

12. As observed in 6 Mys LJ 528 : "There is no presumption in law that the grant of Inam by a Native Ruler conveyed only Melvaram (revenue due to the State) and not both the Melvaram and Kudivaram rights and each case must be decided on its merits : As regards lands in Inam villages in Mysore the division of such interests as rights in respect of revenue and those in respect of the soil does not exist; the lands comprised in the village are absolutely at the disposal of the Inamdar and he is at liberty to create fresh rights in them or retain the whole of the lands in his possession unless some others had previously acquired rights of occupancy either by law or custom." It is not the plaintiffs case that the original grant was only of Melvaram rights and he later acquired Kudiaram rights. No division in the rights of a Jodidar can be recognized and even otherwise none of his rights are saved under the amendment.

13. Section 54 as it stood in Regulation IV of 1888 and as it stood after it was amended in Regulation VIII of 1916 are given here side by side for comparison : S. 54 of Regn. IV of 1888. S. 54 after amendment in 1916. Arrears of land revenue due on account of land by any land-holder shall be a paramount charge on the holding and every part thereof, failure in payment of which shall make the occupancy or alienated holding together with all rights of the occupant or holder over all trees, crops, buildings and things attached to the land, or permanently fastened to anything attached to the land, liable to forfeiture, whereupon the Deputy Commissioner may levy all sums in arrear by sale of the occupancy or alienated holding, freed from all tenures, encumbrances, and rights created by the occupant or holder or any of his predecessors-in-title or in any way subsisting as against such occupant or holder, or may otherwise dispose of such occupancy or alienated holding under rules or orders made in this behalf under S. 233". Arrears of land revenue due on account of land by any land holder shall be a paramount charge on the holding and every part thereof, failure in payment of which shall make the occupancy or alienated holding, together with all rights of the occupant or holder over all trees, crops, buildings and things attach ed to the land, or permanently fastened to anything attached to the land, liable to forfeiture, whereupon the Deputy Commissioner may levy all sums in arrear by sale of the occupancy or alienated holding, or may otherwise dispose of such occupancy or alienated holding under rules or orders made in this behalf under S. 233, and such occupancy or alienated holding when disposed of, whether by sale as aforesaid, or by transfer to another person or otherwise howsoever, except by restoration to the defaulter, shall unless the Deputy Commissioner otherwise directs, be deemed to be freed from all tenures, rights, incumbrances and equities theretofore created by the occupant or holder or any of his predecessors in title or in anywise subsisting as against such occupant or holder. It will be noticed that it is only the latter part of the Section that was amended. The first part of the section made it clear that land revenue is a paramount charge on the holding and that the holding with all the rights of the holder is liable to forfeiture. This portion remained unaffected. The Deputy Commissioner could sell away the holding. According to the Section, as it stood in Regulation IV of 1888, he had the right to sell the holding free from all tenures and incumbrances but he need not have done so and sold only the right of the defaulting holder and not that of other persons such as permanent or kadim tenants. That this could be done is clear from 15 Mys CCR 120. As to whether what was sold in a revenue sale was freed from all tenures and incumbrances, the presumption was that it was so, according to the decision, though it is clear that the Deputy Commissioner could sell merely the right, title and interest of the defaulter, and allow the right of the permanent tenants or mortgagee remain unaffected. Thus, what was affected by a revenue sale was a question which had to be settled on the intention of the Deputy Commissioner. As could be expected very often the order of the Deputy Commissioner was not clear with the result that the purchaser was not sure of what he purchased. Litigation invariably followed. To avoid any doubt, the amendment of the section by regulation viii of 1916 made it clear that unless the Deputy Commissioner otherwise directed the effect of a revenue sale was to free the alienated holding "from all tenures, rights and encumbrances." It will be noticed that the amendment in no way affected the fact that as stated in the first portion of the section, all the rights of the holder are liable to forfeiture and sale. As observed by Reilly, C.J., Nagaraja v. Dodda Venkata Gowda, 43 Mys HCR 325 at page 334 : "The amended section leaves the power of forfeiture as it was before. It leaves the whole holding of the immediate defaulter liable to forfeiture and the rights of those deriving title from him liable to forfeiture also. But it provides that, if the Deputy Commissioner so directs, when what is forfeited is put up to sale, it may be only the immediate defaulters rights and not the rights of those deriving title from him." The amended section went further and stated that the rights of tenures or incumbrances created by or subsisting against the holder are also affected by the sale unless the Deputy Commissioner otherwise directed. As already observed this affected the rights of innocent kadim tenants and permanent tenants who were not responsible for the failure of the Jodidar to pay the Jodi and in order to save the interest of these tenants the Section was further amended by Regulation VII of 1928 by the addition of the words "But so as not to affect the rights of kadim tenants or permanent tenants in alienated holdings." This amendment protected the interest only of the tenants and like the amendment in 1916 does in no way decrease the liability of the alienated holding together with all the rights of the holder being forfeited and sold.

14. In this case it is clear from the order of forfeiture, as well as from the records showing the sale of the Vrithi of the appellant, that his entire rights have been sold. It is true that if there are any tenures created by him or subsisting against him or his predecessor-in-title, the rights of kadim and permanent tenants remain unaffected. But so far as he is concerned, it cannot be said that any right of his, remains unaffected by the sale. The section as it stands now is lengthy and it is necessary to analyse it carefully before one could clearly understand what rights, the words newly added are intended to save from the effect of the section. The clause newly added modifies the verb freed. While by a revenue sale the alienated holding should be deemed to be freed from all tenures, rights, incumbrances and equities created by the occupant or holder or by any of his predecessor-in-title, or subsisting against them, the newly added clause makes it clear that tenures created by the holder or his predecessor-in-title or those subsisting against them, except when they are not rights of kadim tenants or permanent tenants in alienated holdings, are affected. Before it could be said that the rights of permanent or kadim tenants are saved under the saving clause, they must be rights which have been mentioned in the previous clause. The previous clause makes it clear that the sale must be deemed to be freed from all tenures, etc., created by, or subsisting against a superior holder or his predecessor-in-title. The right of the holder himself to be in possession of the holding cannot be said to be a right created by him or subsisting against him.

15. Then again a careful reading of the section makes it clear that it consists of two complex sentences compounded by the word and. The principal clause of the first complex sentence states that arrears of land revenue shall be a paramount charge on the holding and every part thereof. The second clause makes it clear that the occupancy or alienated holding shall be liable to forfeiture and the third clause authorises the Deputy Commissioner to sell or dispose of the occupancy or alienated holdings. The principal clause of the Second complex sentence states that the occupancy or alienated holdings when thus disposed of shall be deemed to be freed from all tenures rights, incumbrances and equities created by the occupant or the holder or his predecessor-in-title or subsisting against them. It is this principal clause of the second complex sentence that is modified by the. Clause newly added by amendment. In the first place, it will be noticed that this does not refer to the rights of the holders themselves. It refers to the rights created by the holders or subsisting against them. But for the amendment, the rights of kadim or permanent tenants would have been affected; on account of the amendment the rights of kadim tenants or permanent tenants created by or subsisting against jodidars remain unaffected. The clause added by the amendment does not save any right of the defaulting holders themselves from forfeiture or sale. It only saves the right of kadim and permanent tenants from being affected from the Revenue Sale.

16. Thus, the appellants rights to be in possession of his Vrithies cannot be said to remain unaffected by the revenue sale. The wording of the clause newly added makes this also very clear as, what are saved are the rights of kadim or permanent tenants and it cannot be said that the appellant is either a permanent or a kadim tenant of himself.

17. It is clear that all the rights of the appellant are affected by the revenue sale held to realise the arrears of Jodi due by him. The lower Court was, therefore, right in dismissing the appellants suit. It may be added that the revenue authorities have put the respondent in possession of the plaint schedule lands after the revenue sale and the suit as brought for mere declaration of plaintiffs right and injunction is not also maintainable. The appeal, therefore, stands dismissed. Considering that the plaintiff has lost his very valuable rights in the Jodi village for failure to pay a small amount of Jodi and the respondent has purchased a very valuable property for a small sum and the fact that the points involved were not free from doubt, the parties are directed to bear their own costs throughout. Appeal dismissed. AIR (39) 1952 MYSORE 61 (C. N. 26) "Krishna Murthy v. H. P. Subba Rao" MYSORE HIGH COURT Coram : 2 MALLAPPA AND VASUDEVAMURTHY, JJ. ( Division Bench ) Krishna Murthy and others, Plaintiffs-Appellants v. H. P. Subba Rao and others, Defendants-Respondents. Second Appeals Nos. 109 and 110 of 1948-49, D/- 11 -7 -1951. Mysore Land Revenue Code (4 of 1888), S.54 - LAND REVENUE - Order of forfeiture - Effect of. The word forfeiture implies the loss of a legal right and the plaintiffs will lose their right as Jodidars when the land is forfeited to Government on the Manager of their joint family having failed to pay arrears of land revenue. They cannot therefore file a suit for partition and possession of the property after it is forfeited to Government as if they are still the owners of the property. While there is no doubt that the rights and equities that are created by or subsisting against the defaulting Jodidar or occupant of the land are not affected by a mere order of forfeiture prior to sale, the order of forfeiture affects the rights of the defaulting jodidar or holder. It operates as a resumption of the holding by the Government. If the property is obtained by the defaulter later on from Government, the plaintiff may claim that the defendant be declared a trustee for the plaintiff. Case law discussed. (Paras 6, 7, 8) Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes alter the Indian Cases). (80) 5 Bom 73 6 (98) 1898 Bom PJ 8 4 (1900) 24 Bom 34 : (1 Bom LR 505) 4, 7 (06) 30 Bom 466 : (8 Bom LR 380) 4, 6, 7, 8

18 Mys CCR 76 7 R.V. Sreenivasaiya, for Appellants; S. Rangaraj, for Respondents 2 to 4. Judgement MALLAPPA, J. :- S.A. No. 109 and S.A. 110 of 48-49 are appeals against the Judgment and decrees of the Subordinate Judge, Hassan, in Regular Appeals Nos. 134 and 135 of 46-47, confirming those of the Munsiff, Hassan, in O.S. 549 and 548 of 45-46 respectively. Both these suits were dismissed by the learned Munsiff.

2. The plaintiffs who are the appellants in this Court filed the suits for partition and possession of the properties in dispute. They contend that they are the joint family properties of themselves and of the first defendant, who was the Manager of their joint family. The other defendants in the two cases have only derived their title from the first defendant. The main contention of the contesting defendants is that the properties were forfeited to Government for default of payment of land revenue and as such the plaintiffs have no subsisting rights. It is unnecessary to consider other contentions of the contesting defendants, as the Courts below have upheld those contentions and dismissed the suits.

3. At the outset it has to be stated that the plaintiffs have not in their reply statement denied the allegations made in the written statement that the properties in dispute have been forfeited to Government on account of default of payment of land revenue. What is however contended is that under Law a mere order of forfeiture has no legal effect and that neither the first defendant nor the Plaintiffs have lost their right in the properties and it is only by a subsequent sale that these rights are affected. Section 54 of the Land Revenue Code has been relied on. It is particularly the last portion of that section that was contended by Mr. Sreenivasayya, the learned Advocate for the Appellants to be of much help to the case of the appellants. Section 54 is as follows : "Arrears of land revenue due on account of land by any land-holder shall be a paramount charge on the holding and every part thereof, failure in payment of which shall make the occupancy or alienated holding, together with all rights of the occupant or holder over all trees, crops, buildings and things attached to the land, or permanently fastened to anything attached to the land, liable to forfeiture, whereupon the Deputy Commissioner may levy all sums in arrear by sale of the occupancy or alienated holding, or may otherwise dispose of such occupancy or alienated holding under rules or orders made in this behalf under S. 233, and such occupancy, or alienated holding, when disposed of, whether by sale as aforesaid, or by transfer to another person or otherwise whosoever, except by restoration to the defaulter, shall, unless the Deputy Commissioner otherwise directs, be deemed to be freed from all tenures, rights, incumbrances and equities theretofore created by the occupant or holder or any of his predecessors in title or in anywise subsisting as against such occupant or holder but so as not to affect the rights of kadim tenants or permanent tenants in alienated holdings." It will be noticed that the section begins by saying that arrears of land revenue shall be a paramount charge on the holding and every part thereof. It says that failure in payment of land revenue makes the occupancy or alienated holding liable to forfeiture. According to it, the Deputy Commissioner may sell or dispose of the occupancy or alienated holding to recover the sums due and it is only when the occupancy or holding is disposed of, in that manner that the disposal must be deemed to be freed from all tenures, rights, encumbrances and equities theretofore created by the occupant or holder or any of his predecessor-in-title. As explained in the decision in R.A. No. 157 of 46-47, in which the matter had to be considered at some length, the section refers to the rights created by the holders or subsisting against them being affected by a sale or other kind of disposal and from this it may be inferred that such rights are not affected by a mere order of forfeiture. There is nothing in the section by which it could be inferred that after an order of forfeiture and prior to the disposal of the holding by sale or otherwise, the rights of the holder remain unaffected. The suit is in respect of the right of the Jodidars and it is not a case where the right created by them or subsisting against them is attempted to be enforced. Thus while the last clause of the Section does not help the appellants, the point that arises for consideration is whether the order of forfeiture affects the rights of the joint family consisting of Plaintiffs and the first defendant, of whom the latter was the manager of the joint family.

4. It is contended on the authority of Ganaparshibai v. Timmaya Shivappa, 24 Bom 34, that the order of forfeiture does not by itself affect the right of plaintiffs who are Jodidars since "the forfeiture in itself has no direct legal consequence under the Code", as held in a previous decision of that Court referred to in it. But as pointed in Amolak Benechand v. Dhondi, 30 Bom 466 by Sir Lawrence Jenkins, Chief Justice : "No doubt in Mulchand Bhagwanji v. Shapurji Dadabhai, 1898 Bom PJ 8, it is said that forfeiture in itself has no direct legal consequences under the Code, but it is conceded in Ganaparshibais case by Candy, J., who was a party to the decision in Mulchand Bhagwanji v. Shapurji Dadabhai, that the cases on which this statement is based, may not have been quite apposite. We agree with this comment, and, therefore, refrain from discussing those cases." Referring to the case reported in 24 Bom 34 the learned Chief Justice observed : "In support of his contention the appellant principally relies on Ganaparshibai v. Timmayya Shivappa Halepaik. But while it is there said of the landlord, the plaintiff in that suit, that the forfeiture per se did not destroy the relations existing between him and his tenant, it is in the preceding sentence conceded that so it may have done as between him and Government." It will thus be seen from the two Bombay decisions that it is not correct to say that forfeiture in itself has no direct legal consequence.

5. As stated by Blackstones in Chapter 18, of his Commentaries on Book II, page 267 : "Forfeiture is a punishment annexed by law to some illegal act or negligence, in the owner of lands tenements or heriditaments : whereby he loses all his interest therein and they go to the party injured as a recompense for the wrong which either he alone, or the public together with himself, hath sustained." The learned Chief Justice in the Bombay case relied on this passage and observed that forfeiture ordinarily implies the loss of a legal right by reason of some breach of obligation. The learned Chief Justice saw no reason for not giving full significance of the meaning of the word forfeiture to cases of this kind. He observed that : "If, by the phrase we have cited, it is meant that the Code does not define the consequences of a forfeiture in itself, then no exception can be taken to it, but we see in that no reason for withholding from the word forfeiture its ordinary legal significance." We may add here that as stated in Whartons Law Lexicon : "Forfeiture is a penalty for an offence or unlawful act, or for some wilful omission of a tenant of property whereby he loses it, together with his title." The decisions relied on, do not help the appellants; in fact they make it clear that the first defendant and plaintiffs who are the other members of the family of which he was the manager lost their right to the property the moment there was an order of forfeiture on failure of payment of land revenue due on the holding.

6. This does not however mean that if the property is obtained by the defaulter later on from Government, equities subsisting against him cannot be enforced by other persons. In Amolak Benechand v. Dhondi, 30 Bom 466 referred to above, it will be noticed that the defendant in that case mortgaged a Survey Number to the Plaintiff and passed a kabuliath in his favour. The plaintiff sued the defendant for possession of the land; the defence was that the mortgage and Kabuliath expired as the land had been forfeited to Government for arrears of assessment and that it had been thereafter released to the defendant free from all encumbrances. It will be noticed that the defendant who had prior to the order of forfeiture mortgaged the property and taken back the land on a Kabulayat was trying to cheat the mortgagee by taking advantage of a revenue sale. The case had to be remanded for ascertaining whether there were any equities in favour of the plaintiff in that case, subsisting against the defendant. The decision in Balkrishna Vasudev v. Madhaorav Narayan, 5 Bom 73, was relied on in that case. We may here refer to that case as an instance where the existence of equities may be conceived. In that case : "The plaintiff sued to recover possession of certain land and prayed to set aside the sale of it by the Revenue authorities for arrears of assessment, due on the land. He alleged that he had let the land to the defendant, on condition of the latter paying Government assessment and certain rent in cash and kind to the plaintiff, that the defendant having intentionally made a default in payment of the assessment, fraudulently caused the land to be sold by the Revenue authorities and purchased it himself." In cases of that kind the plaintiff can claim that the defendant be declared a trustee for the plaintiff. In the present case no circumstance has been alleged in the plaint or in the reply statement claiming such considerations.

7. As regards the decision in 18 Mys CCR 76, it has to be stated that both the decisions referred to above Ganaparshibai v. Timmaya Shivappa, 24 Bom 34 and Amolak Benechand v. Dhondi, 30 Bom 466 have been relied on in it. While there is no doubt that the rights and equities that are created by or subsisting against the defaulting Jodidar or occupant of the land are not affected by a mere order of forfeiture, prior to sale, the order of forfeiture affects the rights of the defaulting Jodidar or holder. It operates as a resumption of the holding by the Government, as observed in that decision. In that case some lands belonging to one Gururao, uncle of the plaintiff appellant, were in the khatha of the latter. The appellant failed to pay the arrears of assessment and the entire holding was sold. Later on, on the application of the plaintiff-appellant on payment of arrears, it was ordered that the Khatha must be restored. This order could not have conveyed to the Plaintiff-appellant any more right than what he had prior to his failure to pay the arrears of land revenue and the consequent order of forfeiture. It may be stated with respect therefore, that it was rightly decided in that case that the plaintiff was not entitled to get possession of the land which belonged to Gururao.

8. As observed in Amolak Benechand v. Dhondi, 30 Bom 466 the word forfeiture implies the loses of a legal right and it is clear that the plaintiffs have lost their right as Jodidars when the land was forfeited to Government on the Manager of their joint family having failed to pay arrears of land revenue. They cannot therefore file a suit for partition and possession of the property after it is forfeited to Government as if they are still the owners of the property.

9. No other point arises for consideration in this case. The lower Courts were, therefore, right in dismissing as premature the suits filed for partition without getting the order of forfeiture cancelled. The appeals stand, therefore, dismissed. Parties will bear their own costs. Appeal dismissed. AIR (39) 1952 MYSORE 63 (C. N. 27) "Chikkiah Setty v. Aswathanarayana" MYSORE HIGH COURT (FULL BENCH) Coram : 3 VENKATA RAMAIYA, BALAKRISHNAIYA, AND MALLAPPA, JJ. ( Full Bench ) K. Chikkiah Setty and others, Appellants v. Aswathanarayana Rao and others, Respondents. Miscellaneous Appeal No. 55 of 1949-50, D/- 21 -9 -1951. Civil P.C. (5 of 1908), O.21, R.90 - SALE - EXECUTION - DECREE - "Whose interests are affected by the sale" - Scope - Private sale of property by judgment-debtor - Subsequent sale of same in execution of decree - Judgment-debtor can apply under R.90. The words "whose interests are affected by the sale" are meant to denote not only persons who have an interest in the property but also others. The use of the plural interests also denotes comprehensively that persons besides owners and having rights in the property, who are subject to disadvantage, loss or risk on account of the sale, can invoke the benefit of the Rule. Hence, a judgment-debtor who has conveyed the property by executing a sale-deed in favour of a third person can apply under O. 21, R. 90, for cancellation of a sale of the same subsequently held in execution of a decree : 29 Mys CCR 174, overruled; 45 Mys HCR 295, Approved; AIR (19) 1932 All 2; AIR (26) 1939 Mad 250 (FB); AIR (26) 1939 Cal 146; AIR (20) 1933 All 54; AIR (18) 1931 Pat 217 and AIR (20) 1933 Pat 435 (SB) Foll. (Paras 5, 7) Anno : C. P. C., O. 21, R. 90, N. 8. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases). (25) AIR (12) 1925 All 459 : (47 All 479) 10 (32) AIR (19) 1932 All 2 : (53 All 759) 5 (33) AIR (20) 1933 All 54 : (55 All 121) 6 (39) AIR (26) 1939 Cal 146 : (ILR (1939) 1 Cal 273) 5 (20) AIR (7) 1920 Mad 145 : (55 Ind Cas 333) 10 (26) AIR (13) 1926 Mad 217 : (92 Ind Cas 597) 6 (39) AIR (26) 1939 Mad 250 : (ILR (1939) Mad 374 FB) 5

29 Mys CCR 174 3, 4, 6

45 Mys HCR 295 3, 4, 5 (24) AIR (11) 1924 Pat 319 (1) : (74 Ind Cas 760) 6 (31) AIR (18) 1931 Pat 217 : (132 Ind Cas 111) 6 (33)AIR (20) 1933 Pat 435 : (12 Pat 665 SB) 6 (17) 39 Ind Cas 932 : (AIR (4) 1917 Sind 33) 3 T.V. Nathamuni Iyengar, for Appellants; S.K. Venkataranga Iyengar, for Respondent (No. 1.) Judgement VENKATA RAMAIYA, J. :- (On behalf of himself and Balakrishnaiya, J.) The question for decision in this case is whether a judgment-debtor who has conveyed the property by executing a sale-deed in favour of a third person can apply under Order XXI, Rule 90 of the Code of Civil Procedure for cancellation of a sale of the same subsequently held in execution of the decree. The answer to this depends on the construction of the words "person whose interests are affected by the sale" in the said Rule which runs thus : "Where any immovable property has been sold, in execution of a decree, the decree-holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it." The circumstances under which the question has arisen briefly are that in execution of a mortgage-decree in Execution Case No. 391 of 40-11 on the file of the Munsiff of Dodballapur certain properties were brought to sale and purchased by the 5th Respondent on 31-7-1941 and full satisfaction of the decree was entered on 30th September 1942. The judgment-debtors, it is alleged, had sold the property to a third party on 29th May 1940. On 23-12-1942 the 5th Judgment-debtor made an application under Order XXI, Rule 90 of the Code of Civil Procedure for cancellation of the sale. The application was dismissed by the learned Munsiff; but on appeal the learned Subordinate Judge set aside the order of dismissal and remanded the case for fresh disposal after inquiry. Against the order of remand the Petitioners, who are decree-holders have applied for revision in this Court contending that the application is not maintainable inasmuch as the 5th Judgment-debtor cannot be deemed to be a "person whose interests are affected by the sale" as he had parted with his interest in the property before the sale. On behalf of the 5th Judgment-debtor it is argued that this is not a correct view of the application of the Rule and that in any case the liability of the 5th Judgment-debtor as a vendor to make good title to the property which he has conveyed to the purchaser is enough to entitle him to attack the Court-sale.

2. No case of this Court in which the point directly arose or was considered in the precise form in which it has been raised in this case has been brought to our notice. But in two cases facts of which are similar and both of which are decisions of the Division Bench, the expression "person whose interests are affected by the sale" is so differently interpreted as to give room for uncertainty about the application of the rule to a case of the present kind. The meaning of the words according to one Division Bench is opposed to that of another. With a view to resolve this conflict the case is placed before the Full Bench.

3. The two cases in which there is divergence of opinion as regards the meaning to be attached to the words are 29 Mys CCR 174 and 45 Mys HCR 295. In both the cases the petitioner was the person to whom the property subject to the Court-sale did not belong but he was liable under the decree to pay the amount if any which remained due after the sale. In the former case Chandrasekhara Aiyar, C.J., and Subbanna, J., held "...... he had himself no interest whatever in the property : and hence he was not a person "whose interests are affected by the sale" within the meaning of Rule 90 of Order XXI of the Code. The mere fact that he was interested in the result of the sale to this extent that, if the sale realised a larger sum, his own personal liability for the balance of the decree amount would be reduced pro tanto does not bring him within the expression used in Rule 90. Cf. SULLEMANJI IBRAHIMJI v. PRAGJI KALA, 39 Ind Cas 932 (Sind.)"

39 Ind Cas 932 (Sind), is a case of Sind Judicial Commissioners Court in which the application by some creditors of the judgment-debtor for cancellation of the execution sale was dismissed on the ground that "interests" means interests in the property sold and that : "creditors who have nothing more than a bare chance of getting a higher dividend out of the debtors general estate if the sale be set aside, are not persons who have such an interest as is contemplated." But in 45 Mys HCR 295, Reilly, C.J.; and Subramanya Aiyar, J., held : "that though the applicant was not a person who had any interest in the property but a judgment-debtor against whom there was personal liability to the extent the price fell short of the decree amount, he could attack the sale under Order XXI, Rule 90, Civil P. C." In the course of the judgment the learned Chief Justice remarked that : "the very restricted interpretation put upon the words whose interests are affected by the sale" by the learned Judges of this Court in 29 Mys CCR 174, is opposed to the interpretation of similar words in Rule 90 of Order XXI of the Code of Civil Procedure of British India adopted by several High Courts in British India." The learned Chief Justice while stating that : "we could not ordinarily refuse to follow the decision of this Court in such a matter unless it were overruled by a Full Bench" expressed that in view of the amendment of Rule 89 of Order XXI, Civil P. C., in 1936 by substituting "whose interests are affected by the sale" for "either owning such property or holding an interest therein by virtue of a title acquired before such sale." "We are not only justified but we are bound to interpret the words whose interests are affected by the sale in Rule 90 in their ordinary literal meaning as similar words in a similar rule have been interpreted by High Courts in British India."

4. It is argued by Sri Nathamuni Iyengar that the cases of other High Courts referred to in support of the interpretation adopted in 45 Mys HCR 295 are distinguishable and the reason given for not following 29 Mys CCR 174, is not sound. R. 89 provides for the setting aside the sale on deposit of the amount but Rule 90 provides for the same without the deposit. The words in two rules are not identical as in Rule 89 these are "any person owning such property or holding an interest therein by virtue of a title acquired before such sale" and in R. 90 "the decree-holder or any person entitled to share in a rateable distribution of assets or whose interests are affected by sale." The amendment relates only to Rule 89. The words in R. 90 are obviously of wider import than those in Rule 89 in its amended form and since Rule 90 has been the same without any alteration in its words it is rather difficult to see how the change in R. 89 should necessarily lead to a change in the construction of Rule 90.

5. Apart from this there is hardly any doubt about the correctness of the interpretation placed in 45 Mysore HCR 295, on the words in the rule. A number of cases of other High Courts, show that the words "whose interests are affected; by the sale" are meant to denote not only persons who have an interest in the property but also others. Thus NARAIN PAL SINGH v. RUDRABHAN SINGH, AIR (19) 1932 All 2, it was held that though attachment does not create any title or charge on the property an attaching creditor comes within the meaning of the expression. A Full Bench of the Madras High Court also held in AYYAPPA NAICKER v. KASIPERUMAL NAYAKAR, AIR (26) 1939 Mad 250, that a person who has obtained attachment before judgment of the property can apply under the rule. According to KIRAN BALA v. SUNITI PROVA, AIR (26) 1939 Cal 146, the word interests in R. 90 is not limited to proprietary or possessory interests in the property itself but extends to other kinds of interests pecuniary or otherwise which are in any way affected by the sale.

6. A view clearly contrary to that in 29 Mys CCR 174, on similar facts is found in SHIAM LAL v. JASWANT SINGH, AIR (20) 1933 All 54, and MEHDATUNNISSA BIBI v. SHEODEI SINGH, AIR (18) 1931 Pat 217. In the former case the decree directed sale of properties A and B in the first instance and sale of property C if the proceeds of the sale were insufficient to discharge the decree. It was held that the mortgagee of property C could apply under Order XXI, Rule 90, C.P.C. In the Patna case the judgment-debtor sale of whose property was postponed till the sale of properties of others was deemed to be entitled to apply for cancellation of the sale notwithstanding the fact that the property belonged to others. KARTICK CHANDRA v. NAGENDRA NATH, AIR (11) 1924 Pat 319 (1) cited by Sri Nathamuni Iyengar cannot be taken as supporting the view given in 29 Mys CCR 174, as the point raised was whether the auction-purchaser can invoke Rule 90. While holding that he could not apply, it was observed : "interests affected by the sale mean interests in the property existing before the sale and which have been adversely affected thereby." The decision on the point must be taken to be overruled by the Full Bench as the opinion of the majority was otherwise. See MAHADEO RAM v. MOHAN VIKRAM, AIR (20) 1933 Pat 435. MOHINDEEN MARAKAYAR v. RAMANADHAN CHETTIAR, AIR (13) 1926 Mad 217 is directly in point as it clearly expresses that a judgment-debtor will not lose the right to apply under the rule on account of a private sale effected by him.

7. There is thus preponderance of judicial opinion in favour of giving the rule a wide and liberal interpretation so as to enable even persons who have parted with their rights under private transactions to claim relief. Under Section. 311 of the Code of 1882 only the decree-holder or any person whose immovable property was sold was entitled to apply for cancellation of the sale. The substitution of "whose interests are affected by the sale" for "whose property was sold" in the new Code would be rendered ineffective if notwithstanding the apparent enlargement of the class of persons allowed to avail themselves of the rule the application is circumscribed to those having an interest of their own in the property. The use of the plural interests also denotes that comprehensively persons besides owners and having rights in the property, who are subject to disadvantage, loss or risk on account of the sale can invoke the benefit of the Rule. It is not disputed that the judgment-debtor can notwithstanding the sale of the property by him, discharge the decree before and after the Court sale on payment of the requisite amount. There can be no reason on principle to deny him the right to attack the sale by which the satisfaction of the decree wholly or in part is sought to be had.

8. The interpretation given in 29 Mysore CCR 174 is in my opinion not in consonance with the intent and spirit of Rule 90 of Order XXI of the Code of Civil Procedure and Volume of judicial opinion as regards its scope, and the view expressed therein has to be overruled.

9. MALLAPPA, J. :- I entirely agree. The way in which Order XXI Rule 90, is worded leaves no possibility for any other view. Under that rule "any person whose interests are affected by the sale" can file an application to set aside the sale. The rule does not say that the interests of the applicant should be interests in the immovable property sold. There is no reason to read the rule as if the words "in the property sold" are found in the rule after the words "whose interests." Where the Code intends to say that the interests thought of are the interests any person has in the immoveable property sold it says so. Order XXI, Rule 89 for instance as it stands in Civil Procedure Code outside Mysore and as it stood prior to its amendment in Mysore, refers to "any person either owning such property or holding an interest therein." As against this rule which expressly refers to the kind of interest required under it, the absence of any such qualification in the next rule is striking. If the two rules are read together and compared it becomes apparent, that the words "whose interests are affected by the sale" are not confined to interests in the property sold.

10. If interests affected by the sale are only interests in the property sold, they can be interests that existed prior to the sale in the property sold. But the wording of the Rule 90 is of such wide import that it is possible to construe that the interest affected by the sale might be one which was not in existence prior to the sale. See GOPALKRISHNAYYA v. SANJEEVA REDDY, AIR (7) 1920 Mad 145, RAVINANDAN PRASAD v. JAGAR NATH, AIR (12) 1925 All 459. It follows therefore that any person whose interest is affected by the sale whether such interests are interests in the property sold or not can file an application for setting aside the sale on grounds of irregularity or fraud. (After the opinion of the Full Bench, the appeal came before a Division Bench consisting of Venkata Ramaiya, and Mallappa, JJ., who dismissed the appeal.) Appeal dismissed. AIR (39) 1952 MYSORE 65 (C. N. 28) "Ambammal v. Muddiah" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) Ambammal Plaintiff-Appellant v. J. Muddiah and others, Defendants-Respondents. Second Appeals Nos. 146 and 147 of 1949-50, D/- 8 -11 -1951. (A) Civil P.C. (5 of 1908), O.41, R.2 and R.11 - APPEAL - Restrictions of points of appeal on admission. When the points needing consideration are specified at the time of admission of appeal the appellant must confine his arguments at the hearing to those points only and cannot traverse others which may arise in the appeal. 43 Mys HCR 486 Foll; AIR (27) 1940 Mad 483 (FB), Dissent. (Para 2) Anno : C. P. C., O. 41, R. 2, N. 1, R. 11, N. 17. (B) Limitation Act (9 of 1908), Art.91 and Art.120 - LIMITATION - Suit for declaration that document is ineffective - Art.120 and not Art.91 applies. In the case of a document alleged to be ineffective there is strictly speaking no need for cancellation as it has no force even without cancellation and is in the eye of law void. A suit for declaration that it is so is governed by residuary Art. 120 and not Art. 91. (Para 3) Anno : Limitation Act, Art. 91, N. 3, Pt. 6a; Art, 120, N. 31. Cases Referred : Chronological Paras (34) AIR (21) 1934 PC 130 : (9 Luck 178) 3 (28) AIR (15) 1928 All 267 : (50 All 510) 3 (45) AIR (32) 1945 All 367 : (ILR (1945) All 494) 3 (40) AIR (27) 1940 Mad 483 : (ILR (1940) Mad 785 FB) 2

43 Mys HCR 486 2 M. Ramachandra Rao, for Appellant; Y. Adinarayana Rao; S.K. Venkataranga Iyengar and B. Rangaswamy, for Respondents. Judgement VENKATARAMAIYA, J. :- The property in dispute in both these appeals is a house situated in Ulsoor, Civil Station, Bangalore, which admittedly belonged to one Somappa. Alleging that he sold the house to Yellappa under a sale-deed, dated 8-12-1941 and that the latter sold it by means of a registered sale-deed, dated 29-10-1942 to Ambamma, she sued her vendor, the original owner and another Muddiah who was in possession of the property for recovery of possession of the same with mesne profits and damages. The other suit was filed by Somappa against Yellappa and Ambamma for cancellation of the sale-deed executed in favour of the former on the ground that it was nominal. The house is said to be in possession of Somappa himself and Ambammas right to the house by virtue of the subsequent sale is denied. The main points in controversy in the two suits were the genuineness of the transaction of sale by Somappa, bona fides of the purchase by Ambamma and the bar of limitation to the suit by Somappa. Though the suits were tried separately the evidence recorded in both was considered for disposal of the two suits. The findings arrived at being in favour of Somappa, his suit for cancellation of the sale was decreed and that of Ambamma was dismissed. The decisions are confirmed in appeal and so Ambamma has preferred these Second Appeals.

2. When the appeals were first heard with a view to find out whether the Respondents need be notified at all as there are concurrent findings on which decisions of the two Courts against the Appellant are based, what was mainly urged was that the contention about the bar of limitation to the suit of Somappa has not been correctly considered and that the procedure adopted in importing the evidence of one case into another is an irregularity which has prejudiced the Appellant. At the final hearing of the two appeals Sri Ramachandra Rao, learned Counsel for Appellant raised further objection to the decisions of the Courts below by stating that there is a wrong assumption of the sale being attacked as fraudulent though there are no particulars in support of it. When the points needing consideration are specified at the time of admission the Appellant must, according to 43 Mys HCR 486, confine his arguments at the hearing to those points only and cannot traverse others which may arise in the appeal. A different view is expressed by a Full Bench of the Madras High Court in ESWARIAH v. RAMESWARAYYA, AIR (27) 1940 Mad 483 (FB), to the effect that the appeal cannot be admitted in part that it has to be either admitted or dismissed as a whole. Until the question is reconsidered and the view of the Madras High Court is adopted 43 Mys HCR 485, which is a decision of a Division Bench has to be adhered to. The only points therefore which need examination are the question of limitation and the effect of the evidence in each case being taken into account! for the purpose of the decision. Since the witnesses were examined in both cases and one of the defendants in one suit was not a party in the other case the ordinary rule of dealing with each case independently of the other could have been followed and that would have spared the Court the trouble of picking up evidence of each witness from each case to be read together. But the Appellant has no reason to complain since this course was acquiesced in and there is nothing to show that she is in any way prejudiced.

3. It only remains to see whether the findings of the two Courts concerning the question of limitation are correct. The article applicable to the case according to Sri Ramachandra Rao is Article 91 which prescribes for a suit to cancel or set aside an instrument not otherwise provided for, a period of 3 years from the time the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him. SOMESHWAR DUTT v. TRIBHAWAN DUTT, AIR (21) 1934 PC 130, is cited to show (that under the said Article time begins to run from the discovery of the plaintiff of the true nature of the deed. Although fraud is imputed to the defendant, the ground on which relief is sought is that the deed is nominal and unsupported by consideration : in other words, that it is sham and inoperative. In the case of a document alleged to be ineffective there is strictly speaking no need for cancellation as it has no force even without cancellation and is in the eye of law void. A suit for declaration that it is so is governed by residuary Article 120 under which the period of limitation is six years. Both Courts have held that Somappa is in possession of the house and that the sale-deed is nominal. In MT. AISHA BEGAM v. MT. KUNDAN JAN, AIR (32) 1945 All 367, the suit was for cancellation of a mortgage-deed on the allegation it was nominal and it was held that Article 120 and not Article 91 applied to the case. In the course of the judgment it is observed : "If no possession is transferred under a void document and a suit is brought merely for a declaration that the document is void the maximum period for such a suit would be six years under Article 120 from the date the cause of action arose. Article 91 is the residuary article for cancellation and for setting aside of all instruments not otherwise provided for." In support of this view MOHAMMAD NAZIR v. ZULAIKHA, AIR (15) 1928 All 267 was referred to. Since the suit was filed within six years from the date of the sale-deed, it must be held that there is no bar of limitation. In view of this, there is no need to consider whether the conclusion of the lower Courts that plaintiff became aware of the facts entitling him to sue only within three years before the suit for the purpose of Article 91 is correct. The appeals fail and are dismissed with costs. Appeals dismissed. AIR (39) 1952 MYSORE 66 (C. N. 29) "Javariah v. Abdul Rahiman" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Javariah, Plaintiff-Petitioner v. Abdul Rahiman and another. Defendants-Respondents. Civil Revision Petition No. 73 of 1951-52, D/- 9 -11 -1951. Limitation Act (9 of 1908), S.3 - LIMITATION - Plaint received and numbered as a suit on last day of limitation after office hours - Order dismissing suit as time-barred is wrong. Mysore Civil Rules of Practice and Circular Orders, Vol.1, R.88(5). The practice of receiving plaints for proper reasons after the close of Office hours is a longstanding one and is not illegal as it is expressly recognised by R. 88 (5) of the Mysore High Court Civil Rules of Practice and Circular Orders Vol. 1. Hence, where the Court receives a plaint on the last day of limitation after the close of office hours and numbers it as a suit, it would be wrong to dismiss the suit as barred by limitation. (Para 2) Anno : Limitation Act. S. 3, N. 5. S.K. Venkataranga Iyengar, for Petitioner. Judgement The order of the lower Court discloses that the plaint in the suit, S.C. No. 1657/50-51 on the file of the Additional Subordinate Judge, Mysore, was received by the learned Judge at 10-40 P.M., on the last day of limitation. Later the learned Judge dismissed the suit as barred by time on the ground that even assuming that the allegation in the affidavit filed by the plaintiff to explain the delay in filing the suit late on the last day of limitation to be true the presentation of the plaint to the Judge at the late hour on the last day of limitation must be deemed to be after the period of limitation is over.

2. The Question for consideration is whether a Judge can receive a plaint or a petition on the last day of limitation after the close of office hours. There is nothing in law to prevent the receipt of a plaint or a petition after the close of office hours and there is hardly any doubt that the practice of receiving plaints for proper reasons after the close of office hours is a long standing one and no exception appears to have even been taken in respect of this practice. Rule 88 (5) of the Civil Rules of Practice and Circular Orders, Volume I states as follows : "A plaint was received by the Head Munshi of a Munsiffs Court after the close of office hours. It is unusual. But whenever a Judge has occasion to do it, he must give reasons in writing why this unusual procedure had to be adopted. The order admitting the plaint is a judicial order and the Higher Courts must know whether the discretion was properly exercised or not." It will thus be seen that the High Court has recognised the practice. It cannot be said that receipt of plaint for proper reasons after office hours is illegal. The learned Judge is wrong in dismissing the suit as barred by time after the plaint had been received by him on the last day of limitation and after it had been numbered as a small cause suit. The revision petition is allowed. The judgment and decree in the small cause suit are set aside and the suit is remanded for fresh disposal according to law. Case remanded. AIR (39) 1952 MYSORE 67 (C. N. 30) "Thimmiah v. Rangiah" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) Thimmiah, Decree-holder, Appellant v. Rangiah, Judgment-debtor, Respondent. Second Appeal No. 150 of 1950-51, D/- 31 -8 -1951. (A) Civil P.C. (5 of 1908), S.48(2) - EXECUTION - Judgment-debtor persistently taking same objections even though decided and postponing execution - Bar of S.48 does not apply. Obiter : If the judgment-debtor conceals properties liable to be proceeded against or otherwise wantonly advances frivolously and manifestly untenable objections or the same objections over and over again though once decided, with a view to needlessly prolong the proceedings, the bar on account of the lapse of twelve years from the date of decree is taken away. Case law Relied on. (Para 3) Anno : Civil P. C., S. 48, N. 15. (B) Civil P.C. (5 of 1908), S.48 - EXECUTION - Execution dismissed for default of decree-holder - Objections of judgment-debtor left open to be agitated later - Order held implied pendency of execution and not termination - Next application for execution held was continuation of the previous execution.

37 Cal 796; AIR (26) 1939 Cal 331; AIR (2) 1915 All 410; 41 Mys HCR 450, Relied on. (Para 3-b) Anno : Civil P. C., S. 48, N. 7. Cases Referred : Chronological Paras (51) AIR (38) 1951 SC 16 : (1950 SCR 852) 3 (15) 37 All 518 : (AIR (2) 1915 All 410) 3 (22) AIR (9) 1922 All 145 : (44 All 319) 2, 3 (32) AIR (19) 1932 All 273 : (54 All 573 FB) 3 (10) 37 Cal 796 : (6 Ind Cas 537) 3-b (39) AIR (26) 1939 Cal 331 : (184 Ind Cas 151) 3 (36) AIR (23) 1936 Lah 843 : (161 Ind Cas 960) 3 (46) AIR (33) 1946 Mad 172 : (1945-2 Mad LJ 564) 2

41 Mys HCR 450 3 (35) AIR (22) 1935 Pat 380 : (14 Pat 816) 3 Nittoor Srinivasa Rao, for Appellant; S. Srikantaraja, for Respondent. Judgement VENKATARAMAIYA, J. :- This case presents a striking illustration of the dilatory tactics practised by the Judgment-Debtor to successfully delay and, if possible, also defeat the realisation of the fruits of the decree. 1a. The decree execution of which is sought was passed so long back as 6-6-1934. The original Decree-holder, after one or two infructuous attempts to recover the money passed away. Apparently, his legal representatives having found it difficult to realise the amounts due under the decree assigned it in favour of the appellant. The appellant thereon applied for execution and in the course of the proceedings in Execution Case No. 521 of 41-42 on 26-3-1943 the assignment was recognised. Execution Case No. 238 of 44-15, which was subsequently filed was disposed of on 1-3-1946 in these words : "Steps not taken Decree-holder absent. No witnesses. The objections of the judgment-debtors are left open to be agitated later. Execution petition dismissed." 1-b. Finally. Execution Case No. 134 of 47-48 was filed an 23-1-1948 seeking attachment of moveables and sale of immoveables. Several objections were raised by the first judgment-debtor, respondent in this appeal. These are, firstly that he is an agriculturist, secondly that there was discharge of the decree by payment to the original decree-holder prior to the assignment and thirdly that the assignment in favour of the appellant is not true or valid. He also contended that he was not liable to be arrested and that in any case the application is barred by limitation. If the date of the decree alone is taken into account the application filed on 23-1-1948 is obviously barred under Section 48, C.P.C., as there is an interval of more than 12 years between the two dates. To get over the bar it is alleged in the execution petition that a series of frivolous and untenable objections have been repeated time and again notwithstanding the orders previously passed for negativing the same. Only the decree-holder and the first judgment-debtor were examined. Considering the evidence of these and the previous proceedings from the inception, the learned Munsiff held that the application is saved from the operation of the bar as the circumstances are such as to bring the case within the scope of cl. (2) of section 48. section 48 (2) reads as follows : "Nothing in this section shall be deemed to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application." The learned Subordinate Judge on appeal dismissed the application as time-barred. The assignee decree-holder appeals.

2. The question whether the obstructive tactics and frustrating devices employed by the judgments debtor to thwart the decree-holder are within the purview of Clause (2) of the section has been discussed in some cases. In Y. VENKANNA v. R. KOTAYYA, AIR (33) 1946 Mad 172, Bell, J., quoting the observation in LALTA PRASAD v. SURAJ KUMAR. AIR (9) 1922 All 145, that : "Judges ought to take a broad view of conduct deliberately adopted by judgment-debtors with a view to defeating and delaying the first payment of their debts by frivolous and futile objections which are dishonest on the face of them." Held that the time-limit laid down by Section 48 should not prevail when the conduct of the judgment-debtor was such as to have prevented the execution of the decree within twelve years from the date of the decree.

3. LALTA PRASAD v. SURAJ KUMAR, AIR (9) 1922 All 145 is a decision of a Division Bench to the effect that where the execution of the decree has been obstructed by frivolous objections on the part of the judgment-debtors the decree-holders are entitled to the advantage of Section 48, Civil P.C. In GOBARDHAN DAS v. DAU DAYAL, AIR (19) 1932 All 273 Full Bench, Sulaiman, J., observed : "The proposition that any action of the judgment-debtors which puts off the decree-holder from executing his decree at once must be taken as fraud if the result thereof is to bar the execution of the decree under the 12 years rule is much too broadly stated." BISHWANATH PRASAD v. LACHMI NARAIN, AIR (22) 1935 Pat 380 is another case in which the view expressed in the earlier Allahabad case is dissented from. In TULSI RAM v. E.D. SASSOON and CO., LTD., BOMBAY. AIR (23) 1936 Lah 843, Coldstream, J., observed that putting forward objections to prolong execution proceedings beyond the period of limitation is not necessarily fraud. The latest case on the point is YESHWANT DEORAO V. WALCHAND RAMCHAND, AIR (38) 1951 SC 16, which states that if the judgment-debtor prevented the execution of the decree within twelve years by fraudulent concealment of owner-ship of the property, the twelve years bar of limitation does not apply. It is thus seen that there is a volume of authority to hold that if the judgment-debtor conceals properties liable to be proceeded against or otherwise wantonly advances frivolously and manifestly untenable objections with a view to needlessly prolong the proceedings, the bar on account of the lapse of twelve years from the date of decree is taken away. 3-a. There is little doubt that the conduct of the first judgment-debtor has throughout been systematically fraudulent. The records establish that most of the objections now advanced are by no means fresh but have been reiterated at every stage ignoring the orders by which these were negatived. The plea that he is an agriculturist was rejected so far back as 4-3-1938 by an order, Exhibit C. The assignment was recognised in March 1943 and all the objections were rejected by a subsequent order. In his evidence the judgment-debtor has admitted his income to be Rs. 2,000/- a year. In spite of all this how the judgment-debtor could press the same objections once again cannot be explained and the learned Counsel appearing for him was not able to justify the course adopted by him in this behalf. 3-b. Though the applicability of Section 48, Civil Procedure Code, may be open to argument the application may well be treated as a continuation of the previous one which was obviously filed within twelve years. The prior application was disposed of with the statement that the objections are left open to be agitated later implying pendency and not termination of the case. The objections were such as had to be made out by the judgment-debtor and the presence of the decree-holder was not required for consideration of the objections. There is abundant authority to hold that in such circumstances the later application has to be construed as revival or continuation of the previous one. In MADHAB MONI DASI v. PAMELA LAMBERT, 37 Cal 796 at page 804 it is stated that : "an application for execution of a decree may be treated as in continuation or revival of a previous application similar in scope and character, the consideration of which has been interrupted by the intervention of objections and claims subsequently proved to be groundless." In SARADA SUNDARI v. JABBAR ALI, AIR (26) 1939 Cal 331, relying on the report of the Nazir that the decree-holder was absent on the date of sale, the application for execution was dismissed; for the purpose of a later application for execution it was considered to be a continuation of the previous one as the decree-holders absence was deemed to be inconsequential. (See also YAKUB ALI v. DURGA PRASAD. 37 All 518 and 41 Mys HCR 450). We are therefore of opinion that the present application Ex. Case No. 134 of 47-48, is only a continuation of the previous one, Execution Case No. 238 of 44-45 and since the present application is filed before three years from the date of disposal of the former one, there is no bar of limitation.

4. The order of the learned Subordinate Judge, is therefore, reversed and that of the learned Munsiff restored with costs throughout. Order accordingly. AIR (39) 1952 MYSORE 68 (C. N. 31) "Venkatasetty v. Rangasetty" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) C. Venkatasetty, Plaintiff-Petitioner v. Rangasetty and another, Defendants-Respondents. Civil Revn. Petn. No. 420 of 1950-51, D/- 4 -10 -1951. Contract Act (9 of 1872), S.45 - CONTRACT - TENANCY - Co-lessors - Payment of rent to one - Tenant is not discharged from liability to pay others share of rent - Position, when co-lessors happen to be joint family. In the absence of proof of agreement between two co-lessors that the rent paid shall be held by them jointly each being owner of the whole, or of a mutual grant of authority between them to receive the rent, the tenant, by payment to one of the lessors is not discharged from his liability to pay the rent to the other and the other is entitled to one half of the rent, the shares being presumed to be equal in the absence of anything to show that they were unequal. 23 Mys CCR 148, Foll. (Para 3) In the case of the members of a joint family the effect of payment to one of them requires special consideration. If one of them happens to be the manager of the joint family payment to him, as manager, may bind the other members. Even a junior member may sometimes be regarded as a person who as agent of others recovered money due to all of them as could be gathered from the fact that he was allowed to recover moneys due to the family of the creditors and was in effect treated as a joint-manager. 20 Mad 461; 28 Mys HCR 155, Ref. (Para 4) Anno : Contract Act, S. 45, N. 2. Cases Referred : Chronological Paras (29) 113 Ind Cas 618 : (AIR (15) 1928 Bom 420) 3 (18) 22 Cal WN 1021 : (AIR (6) 1919 Cal 593) 3 (97) 20 Mad 461 : (7 Mad LJ 269) 4 (13) 36 Mad 544 : (19 Ind Cas 12) 3 (15) 28 Mad LJ 197 : (AIR (3) 1916 Mad 208) 3

23 Mys HCR 148 3

28 Mys HCR 155 4

7 Mys LJ 379 3 K.V. Vasanth, for Petitioner; S. Nabhirajaiah, for Respondents. Judgement This petition is against toe judgment and decree of the Munsiff of Srirangapatna in S.C. No. 29 of 50-51 on his file dismissing the suit, filed for the recovery of rent.

2. The case of the Plaintiff is that the first defendant took the schedule house on rent from the plaintiff and his brother the second defendant on monthly rent of Rs. 5/- and executed an agreement dated 2-12-47 in favour of both of them. The first defendant pleaded that he paid rents to the hands of the second defendant and handed over possession of the suit house on 16-12-48. The second defendant was ex parte, but was examined as a witness for the first defendant. In his evidence he supports the case of the first defendant.

3. The learned Munsiff has held that the discharge pleaded by the first defendant by payment of rent to the second defendant is binding on the plaintiff. This is a case in which the lease deed had been executed both in favour of the plaintiff and the second defendant. It has to be said that the learned Munsiff was wrong in thinking that payment of rent to one of the landlords discharged the liability to the other. I may here refer to the decision reported in ABDUL HAKIM v. ADYATA CHANDRA DAS, 22 Cal WN 1021; CHOCKALINGAM CHETTY v. PERIYA KARUPPAN CHETTY, 28 Mad LJ 197 and GENDAL RAJU v. MAGAN LAL CHHAGAN LAL, 113 Ind Cas 618. As against these decisions, there is no doubt a decision of the Madras High Court reported in ANNAPURNAMMA v. U. AKKAYYA, 36 Mad 544 and the different views of different High Courts have been traversed in the case reported in 7 Mys LJ 379, and it was held, following 23 Mys HCR 148., "Payment to one of two joint promisees is not a discharge of the entire debt. The payment in such cases will operate only as a valid discharge in respect of the payees beneficial interest." It is however the former case (23 Mys HCR 148) that is on all fours with the present case. In that case it was held that "in the absence of proof of agreement between the co-lessors that the rent paid shall be held by them jointly each being owner of the whole, or of a mutual grant of authority between them to receive the rent, the tenants, by payment to the third defendant, were not discharged from their liability to pay the rent to the plaintiff and that the plaintiff was entitled to one half of the rent, the shares being presumed to be equal in the absence of anything to show that they were unequal."

4. In the case of the members of a joint family the effect of payment to one of them requires special consideration. If one of them happens to be the manager of the joint family payment to him, as manager, may bind the other members. It may be stated that even a junior member may sometimes be regarded as a person who as agent of others recovered money due to all of them as could be gathered from the fact that he was allowed to recover moneys due to the family of the creditors and was in effect treated as a joint-manager. I may here refer to the decision reported in BARBER MARAN v. RAMANA GOUNDEN, 20 Mad 461 and the decision of this Court in 28 Mys HCR 155. In this case it is neither pleaded nor proved that the second defendant who was a junior member of the family had any express or implied authority to collect rent on behalf of the Plaintiff. While payment by the first defendant to the second defendant is not binding on the plaintiff, the plaintiff cannot recover anything more than his share of the rent due by the first defendant. The judgment and decree of the lower Court dismissing the plaintiffs suit has therefore to be set aside.

5. Accordingly the Revision Petition is allowed with costs the judgment and decree of the lower Court is set aside and there will be a decree against the first defendant for half the amount claimed in the suit with proportionate costs. Revision allowed. AIR (39) 1952 MYSORE 69 (C. N. 32) "Subbaraya Setty and Sons v. Palani Chetty and Sons" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA AND VASUDEVAMURTHY, JJ. ( Division Bench ) H. M. Subbaraya Setty and Sons, Appellants v. S. K. Palani Chetty and Sons, Respondents. Appeal No. 105 connected with C.R.P. No. 474 of 1950-51, D/- 25 -2 -1952. Constitution of India, Art.261(3) and Art.367(3). Where a decree for payment of money was passed ex parte before Mysore acceded to the Indian Union, by a Madras Court against a resident in Mysore who had not submitted to the jurisdiction of that Court, the decree cannot be executed by a Court in Mysore even after accession. The decree is by International Law a nullity in Mysore and cannot be executed in Mysore. (Paras 14, 17) The accession of Mysore to the Indian Union by virtue of the Constitution, which came into force on 26-1-1950, cannot have the effect of converting such foreign decrees into valid and executable ones in the Mysore Courts. Article 261 (3) of the Constitution, cannot operate retrospectively so as to validate and render executable in Mysore these otherwise inexecutable decrees. (Paras 18, 21) Decrees passed in the Madras Presidency or Mysore State Courts before they became parts of the territory of India under the Constitution of 1950, cannot be said, with retrospective effect, to be those of Civil Courts in the territory of India within the meaning of Art. 261 (3), Constitution of India. AIR 1951 SC 128, Rel. on. (Para 10) Decrees which were inexecutable as those of a Court in a foreign State according to the law then in force, up to the date of the Constitution have not ceased to be so on account of the changes introduced by the Constitution with respect of status or in the definition of Foreign State or of territory of India. The date of decree, not the date of application for execution, is material to decide the question of executability. AIR 1951 Bom 125 (FB); AIR 1951 Bom 190 and AIR 1952 Trav C 89, Dist. from; Case law discussed. (Para 23) Anno : C. P. C, Ss. 13 and 14, N. 9, 12 and 19. Cases Referred : Chronological Paras (94) 22 Cal 222 : (21 Ind App 171 PC) 2, 5, 19 (03) 26 Mad 544 : (30 Ind App 220 PC) 5 (19) 42 Mad 813 : 46 Ind App 151 : (AIR 1919 PC 150) 6 (50) AIR 1950 PC 64 : (ILR (1950) Mad 1039) 8 (51) AIR 1951 SC 128 : (52 Cri LJ 860) 10, 17 (51) AIR 1951 SC 217 : (52 Cri LJ 736) 9 (97) 19 All 450 : (1897 All WN 98) 6 (35) 56 All 828 : (AIR 1934 All 740) 5 (01) 25 Bom 528 : (3 Bom LR 82) 5 (16) 40 Bom 551 : (AIR 1916 Bom 307) 5 (21) 45 Bom 1228 : ( AIR 1921 Bom 460) 6 (51) AIR 1951 Bom 125 : (53 Bom LR 398 FB) 4, 11, 19 (51) AIR 1951 Bom 190 : (ILR (1950) Bom 640) 4, 7, 19 (28) 9 Lah 455 : (AIR 1928 Lah 297) 6 (14) 27 Mad LJ 535 : (AIR 1915 Mad 486 FB) 2, 5 (18) 45 Ind Cas 779 : (AIR 1919 Mad 1043) 6 (26) AIR 1926 Mad 584 : (50 Mad 27) 9 (41) AIR 1941 Mad 688 : (ILR (1941) Mad 891) 22

20 Mys CCR 214 2, 17

22 Mys CCR 188 17

23 Mys CCR 299 17

25 Mys CCR 269 16, 17

29 Mys CCR 143 17

34 Mys CCR 205 17 (51) 1951 Ker LT 547 : (AIR 1952 Trav C 89) 11, 19 (1906) 1 KB 613 : (75 LJKB 418) 21

V.L. Narasimhamurthy, for Appellants; V.L. Varadaraja Iyengar, for Maloor Subba Rao, for Respondents. Judgement VASUDEVAMURTHY, J. :- These two cases were heard together, the same point being involved for decision. In R.A. No. 105/50-51 the respondents filed a suit O.S. No. 37 of 1949 in the Court of the Subordinate Judge at Coimbatore against the appellant who is a merchant in Arsikere in Mysore State and obtained an ex parte decree on 28-3-1949. The Appellant did not enter appearance and did not submit himself to the jurisdiction of that Court. The Respondents subsequently got the decree transferred to the Court of the Subordinate Judge at Hassan and sought execution there. The appellant-judgment-debtor objected to the execution of the decree on the ground that it was an ex parte decree passed by a foreign Court when he was still a subject of the Mysore State, permanently residing at Arsikere. The learned Subordinate Judge overruled that objection and directed execution to proceed. The judgment-debtor has appealed.

2. It is contended by Mr. V.L. Narasimhamurthy, learned Counsel for the appellant, that it has been held in a series of cases of this Court as well as in, what was formerly, British India that an ex parte decree obtained against a non-resident foreigner, who has not submitted himself to the jurisdiction of that Court, is a nullity and that a decree like the present cannot be executed in Mysore. He urges that nothing has happened since for departing from that rule in the present case as the decree in question was passed by the Coimbatore Court before 26th January 1950 when the Mysore State acceded to and became a part of the Indian Union. It is not disputed that it has all along been held by this Court in a series of cases beginning with 20 Mys CCR 214 that a decree obtained in a Court foreign to Mysore against a subject of the Mysore State, who had not submitted himself to the jurisdiction of that Court, was a nullity; under the Code of Civil Procedure as was in force in Mysore a foreign Court was defined as a Court not established or continued by the Government of Mysore; and a foreign judgment is a judgment of the foreign Court. In 20 Mys CCR 214 a decree of the Court of the District Munsiff of Conjeevaram in the Madras Presidency was transferred for execution to the Munsiffs Court at Chickballapur and Miller, C.J., and Mr. Humza Husein, J., held that it was competent to the latter Court to refuse execution on the ground that the decree was passed without jurisdiction and that the judgments of Courts in British India are foreign judgments within the meaning of that expression in S. 13 of the Code of Civil Procedure. Miller, C.J., pointed out that the same question had been recently dealt with by the Full Bench of the Madras High Court in VEERARAGHAVA AIYAR v. J.D. MUGA SEIT, 27 Mad LJ 535, from the point of view of the British Indian Courts and had been answered in the same way by all the three learned Judges who decided the Letters Patent Appeal. He observed that not merely (sic) as a matter of policy he would be sorry to have to hold that the Mysore Courts were bound to give to the decrees of the Court in the Madras Presidency greater efficacy and finality than the Courts there are prepared to accord to those of our Courts and that he would consequently be glad to be able to accept the opinion of the Full Bench of the Madras High Court as a correct interpretation of the Code of Civil Procedure in British India and a decision applicable to the Code in force in Mysore. In support of his judgment Mir Humza Husein, J., relied upon a case decided by the Privy Council in GURDYAL SINGH v. RAJAH OF FARIDKOTE, 22 Cal 222 (PC) where their Lordships of the Privy Council held that a decree passed ex parte against a non-resident foreigner was by International Law a nullity. In the latter case, which has been followed consistently both in Mysore and in British India, as it then was, it was laid down that as to land within the territory, jurisdiction always exists and may exist over movables within it and exists in question of status or succession governed by domicile. But no territorial jurisdiction can give jurisdiction which a Court of a foreign State ought to recognize over an absent foreigner owing no allegiance to the State so legislating. In a personal action to which none of the above causes of jurisdiction apply, the decree pronounced by a Court of a foreign State in absentum, the latter not having submitted himself to that authority, is by International Law a nullity.

3. It is contended by Mr. V.L. Narasimhamurthy, learned Counsel for the Appellant, that the accession of Mysore to the Indian Union by virtue of the Constitution, which came into force on 26th January 1950, cannot have the effect of converting such foreign decrees into valid and executable ones in the Mysore Courts. He urges that the proviso to S. 6 of the Part B States Laws Act No. III of 1951 expressly provides that the repeal of any law corresponding to any of the Acts extended to the State by virtue of the powers conferred on the Central Government to do so under the Constitution shall not affect the previous operation of any law so repealed or anything duly done or suffered therein or any right, privilege, obligation or liability accrued or incurred under any law so repealed, that S. 13 of the Code of Civil Procedure and the principles of International Law were the only factors governing the recognition of such foreign decrees and that the introduction into Mysore of the Indian Code of Civil Procedure Act V of 1908 cannot operate retrospectively so as to render such decrees which were made before 26th January 1950 executable in Mysore. He further urges that Art. 261(3) of the Constitution on which reliance has been placed by the Court below declares that final judgments or orders delivered or passed by Civil Courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law cannot operate retrospectively so as to validate and render executable in Mysore those otherwise in-executable decrees.

4. Mr. V. Krishnamurthy, learned Counsel who appears for the decree-holder in the connected civil revision petition, relies on two reported cases of the Bombay High Court and a case of the Travancore High Court and contends that such decrees are executable. In CHUNNILAL KASTURCHAND v. DUNDAPPA DAMAPPA, AIR 1951 Bom 190, Rajadhyaksha, and Shah, JJ., were dealing with a case of an ex parte decree passed by the Court of the Civil Judge of Belgaum against the judgment-debtors who were at the time of the passing of the decree subjects of the Jamkhandi State. In their judgment their Lordships recognise that a decree pronounced by a foreign State in a personal action in absentum, the absent party not having submitted himself to its authority, is a nullity and that even where there are reciprocity agreements under which decrees of Courts of one State are enforceable by the Courts of another State, the judgment-debtor is entitled to raise all defences arising under S. 13 as if he were sued on a foreign judgment. They observe that the competency of a Court to entertain an action and to pass a decree must be judged by the Municipal Law of the State when that question arises in a Court within the limits of the State which has constituted the Court which entertains a suit or passes a decree and is not to be judged by applying the rules of International Law. But where a question arises as to enforcement of a decree or order passed by a Court in another territory, the rules of International Law must prevail. They were, however, of the opinion that the relevant date for ascertaining the nature of the decree was not the date of filing the execution but the date on which the Court was called upon to pass an order for execution. As at that time Jamkhandi had ceased to be foreign territory and had been included or merged in the State of Bombay, the decree could be executed as it has ceased to be a decree of a foreign Court. This decision was approved by a Full Bench of the Bombay High Court in BHAGWAN SHANKAR v. RAJARAM, AIR 1951 Bom 125 FB, which was heard by Chagla, C.J., Gajendragadkar and Dikshit, JJ. That was a case of an ex parte decree obtained in the Court of the Subordinate Judge at Sholapur against a permanent resident of the Akalkot State. The defendant had not submitted himself to the jurisdiction of the Shoiapur Court and when subsequently the decree was transferred for execution to the Court of the Nyayadish of Akalkot that State had merged into the Union of India.

5. Mr. Narasimhamurthy has urged that these are cases of merger, meaning apparently thereby that the distinction between the decrees of those Native States and of the Bombay Court had ceased to exist. It may be so though I am not very much impressed with that argument. The Bombay cases do not in my opinion however, recognise the cardinal principle by which such foreign ex parte decrees were not being allowed to be executed by the Courts of another State. They were nullities in the latter territory according to International Law and neither could they have been sued upon nor executed in the foreign Court; see VEERARAGHAVA AIYAR v. J.D. MUGA SEIT, 27 Mad LJ 535; GURDYAL SINGH v. RAJAH OF FARIDKOTE, 22 Cal 222 and JIVAPPA TAMAPPA v. JEERJI MURGEAPPA, 40 Bom 551. They were recognized as valid decrees only within the State whose Court passed them by virtue of S. 20 (c) of the Code of Civil Procedure; see RAMBHAT v. SHANKAR BASWANT, 25 Bom 528; GAEKWAR BARODA STATE RLY. v. HABIB ULLLAH 56 All 828 and ANNAMALAI CHETTY v. MURUGASA CHETTY, 26 Mad 544 (PC).

6. It has also been held that such decrees can be executed against the property of the judgment-debtor or even against his person if he later on goes there. It has been held that a Court has no jurisdiction in a suit against a non-resident foreigner or cause of action which arose wholly out of the Indian territory BHAMBOO MAL v. RAM NARAIN, 9 Lah 455, though it has jurisdiction to entertain a suit against a foreigner within the limits of its jurisdiction in respect of a cause of action that has accrued abroad; see ISMAILJI HAJI HALIMBHAI v. ISMAIL ABDUL KADAR. 45 Bom 1228; BHUJBAL v. NANHEJU, 19 All 450 and Mullas Code of Civil Procedure, 11th Edition, page 126. Section 20, Civil P. C., would of course apply only within the area in which the particular Code is extant. Merely because there is a similar provision in a Civil P. C. of another State a decree passed by a foreign Court within whose jurisdiction a part of the cause of action has arisen cannot cease to be a nullity in the latter State. The words "place of suing" which occur in the heading to Ss. 15 to 25 refer to local venue of suits cognizable by the then British Indian Courts and in the places to which that Code applied. They deal with matters of domestic concern and prescribe rules for the assumption of territorial jurisdiction by British Indian Courts in matters within their cognizance. Sections 17 and 21 were the subject of consideration in SETRUCHARLU RAMBHADRA RAJU v. MAHARAJA OF JEYPORE, 42 Mad 813, 46 Ind App 151 (PC). In that case a suit was brought under the Code of Civil Procedure, 1908, to enforce a mortgage of property which was situate partly in a district to which that Code applied, and partly in a scheduled district under Act XXIV of 1939, and therefore subject to the special jurisdiction of the Agency Courts, and a decree, on the mortgage and for sale of the mortgaged property, was made by the Subordinate Judge, and affirmed by the High Court. It was held by the Privy Council that so far as the decree was for sale of the mortgaged property in the scheduled district the Courts had no jurisdiction to make it, S. 21 of the Code not being applicable to such a case, and it could be set aside, notwithstanding that no objection to the jurisdiction had been taken in the Subordinate Judges Court; that the word Courts in S. 17 of the Civil P. C. 1908, means Courts to which that Code applied, and not Courts one of which was subject to the Civil P. C., and the other to the Agency jurisdiction and that the alteration made in the decree by striking out that part of it which ordered the sale of the mortgaged property would not interfere with the plaintiffs right to obtain from the Agency Court an order for the sale of the property situate in its jurisdiction. Their Lordships pointed out : "This is not an objection to the place of suing. It is an objection going to the nullity of the order on the ground of want of jurisdiction." In MANJAPPA v. RAJAGOPALACHARIAR, 45 Ind Cas 779 (Mad) a Court in the Madras Presidency had passed a decree in a suit which was really within the cognizance of a foreign Court in Mysore; the High Court of Madras while setting it aside held that the defect of jurisdiction could not be cured by S. 21 and that that section could not apply so as to usurp the jurisdiction of a foreign Court; see also Mullas Code of Civil Procedure, 11th Edn., Page 129.

7. The other grounds on which CHUNNILAL KASTURCHAND v. DUNDAPPA DAMAPPA, AIR 1951 Bom 190 proceeds are that the Belgaum Court was not a foreign Court when the execution was taken out as by an Act of State Jamkhandi had become a part of the Indian Territory and that as a result of such an Act of State the judgment-debtor had lost his former status as a subject of Jamkhandi State and having become a national of the Indian Union and citizen of the Dominion of India, a decree of the Court of the Indian Union was fully binding on him on the concerned date viz., when execution was to be ordered. In the latter Full Bench case also Chagla, C.J., bases his decision on the ground that prejudice, if any, has been caused by an Act of State which altered the status of Akalkot and of the defendant and made the Akalkot Court a Municipal Court and the defendant a citizen whereas the Akalkot Court before was a foreign Court and the defendant a foreigner. With great respect to the learned Judges who decided the two Bombay cases I think the way in which this question has to be approached is to see whether such decrees, which when passed were according to International law nullities in the foreign State where they were to be enforced, have, by reason of any subsequent change in the status either of the Native State or of its former subject become executable.

8. Mr. Krishnamurthi has argued that His Highness the Maharaja of Mysore was a Sovereign in his own State immediately after the Indian Independence Act was passed and that thereafter it was open to him to declare or enter into any arrangement by which decrees made outside the State could have full potency in his State whether they were ex parte or not and that Art. 261(3) of the Constitution really represents such an arrangement. The coming in of the new Constitution is not in the nature of a conquest of the Mysore State by the Indian Union. It is really in the nature of a mutual agreement and Art. 261 (3) of the Constitution now declares that final judgments or orders passed by Civil Courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law. It may have been open to the Sovereign as well as the Indian Union to have agreed for retrospective effect being given to Art. 261. Unless it was so agreed or unless by express or necessary implication such a meaning can be gathered it is of course obvious that no such retrospective operation can be given to the Article; and by merely saying that the accession and Art. 261 of the Constitution are Acts of State, the previous position of these ex parte decrees before 25th January 1950 cannot be said to be altered. The constitutional position of His Highness the Maharaja has been the subject of decision by the Privy Council recently in RAMALINGAM v. ABDUL WAHID, AIR 1950 PC 64, where they have held that on the passing of the Indian Independence Act, 1947, just before the accession, the Maharaja alone had Sovereign powers and it was for him to make such laws as he thought fit for the administration of justice in his territory.

9. In JANARDHAN REDDY v. STATE OF HYDERABAD, AIR 1951 SC 217 it has been laid down by the Supreme Court, while refusing the issue of writ under Art. 32(2) of the Constitution, that the provisions of the Constitution which were invoked before them had no retrospective effect. In that case they had to consider also petitions for special leave to appeal to the Supreme Court from orders passed by Tribunals before the date of coming into force of the Constitution. The wording of Art. 136(1) which deals with the granting of special leave and relevant to the present discussion are similar to those in Art. 261(3). Their Lordships held that they had no jurisdiction to issue writs or grant special leave in such cases. Article 261(3) also refers to final judgments or orders delivered or passed by Civil Courts in any part of the territory of India and in my opinion, can relate only to those decrees or orders passed after the Constitution. To hold otherwise would render judgments, decrees and orders passed by any of the former numerous Indian State Courts which were before their accession governed by different laws both substantial and procedural, enforceable in every other State in the Union; and without some express words to that effect I would hesitate to accept the construction suggested by the Respondents Counsel that Art. 261(3) would make all of them apply retrospectively. In this connection I would like to refer to a case reported in CHAND MULL v. PURUSHOTHAM DOSS, AIR 1926 Mad 584, which deals with a suit brought on the original side of the Madras High Court founded upon what was described as a decree of the Court of the Judicial Commissioner in the State of His Exalted Highness the Nizam of Hyderabad. It had been passed for a huge sum of money against a resident of the Hyderabad State irrespective of the Law of Limitation by virtue of a firman issued by the Nizam. Coutts Trotter, C.J., observed as follows : "I have not before me any information as to how the Courts of ordinary original civil jurisdiction are constituted nor under what authority the ordinary law of Limitation is in force as it undoubtedly appears to be in the ordinary Civil Courts of the State......... It appears to me to be wrong to subject this defendant to any process before he has had an opportunity of urging his contentions against that judgment." These remarks may be rather pertinent in such cases.

10. Moreover the words "territory of India" occurring in Art. 261(3) have been defined in Art. 1 as comprising the territory of the A, B and C States and India as a Union of those States. Mysore as well as Madras became States within the meaning of the Constitution and came into the territory of India only by virtue of the Constitution. Decrees passed in the Madras Presidency or Mysore State Courts before they became parts of the territory of India cannot be said with retrospective effect to be those of Civil Courts in the territory of India. See KESHAVAN v. STATE OF BOMBAY, AIR 1951 SC 128.

11. BHAGWAN SHANKAR v. RAJARAM, AIR 1951 Bom 125 has been followed with approval by a single Judge of the Travancore High Court in MOOSAKUTY HAJEE v. PYLOTU JOSEPH, 1951 Ker LT 547. That learned Judge was of the opinion : "The circumstance that whereas in the said decision of the Bombay High Court it was a case of merger of a State with another, whereas here it is a case of two States which were originally independent becoming dependent, makes no difference for the application of the principle." The consequence of the Constitution of India was, according to him, to enlarge the territory of India by including within the territory of the State of Travancore and the point of time to be regarded in considering the question of executability was not the time at which the decree was passed but the time at which it was sought to be executed; that obstacle, to the execution was removed by the time execution of the decree was sought. Then he goes on to observe that the case before him was a simple one as there was no contention raised on behalf of the respondent that the decree was one that ought not to have been passed, for instance that the claim was untrue or that it had been discharged or that the claim was barred by limitation - considerations which with respect do not appear to be ones which an executing Court can examine. But the learned Judge in the later portion of his judgment felt that it may be in certain cases, if liberty to defend the action is not granted to the defendant, serious hardship will be caused about which he may legitimately complain on the ground that he was not at fault in not having entered appearance and defend action in the form in which it was present while recognizing that there might have been justification for the judgment-debtor for not having appeared and contested the claim when the suit was filed in the foreign Court. This last observation of the learned Judge to my mind shows the difficulty he felt in holding that the earlier decrees which were nullities so far as Travancore was concerned could be executed there automatically after the accession. I think we would be doing no injustice by holding that those decrees which have been passed before the accession, which everyone knew could not be executed in a foreign State, cannot become valid by the subsequent event, while to hold to the contrary would work a great injustice on the litigants though of course if the law was so or if the articles of the Constitution were quite clearly to that effect I would have had no hesitation in upholding the same.

12. Mr. Krishnamurthi has also contended that the matter of execution relates only to procedural law and no litigant can be said to have a vested right so as to entitle him to raise an objection like the present. He argues that it was not a right or privilege which has accrued in his favour under the Code of Civil Procedure as in force in Mysore which can be said to be saved by S. 6(b) of the Part B State Laws Act of 1951. It cannot be contended that there can be no vested rights at all under procedural law. The right to appeal granted under the Code of Civil Procedure has always been held to be a vested right which once it has accrued cannot be taken away. Even under the Limitation Act which is said to be a procedural law, certain accrued rights are enforced and cannot be taken away by any subsequent change in the law unless the legislature has made it clear that the same is to have retrospective effect.

13. It is argued that he right or privilege claimed in the present case by the judgment-debtor has not been acquired under any repealed law. Even that is not correct as the decisions of this Court conferring immunity on judgment-debtors like the present was based on the definition of S. 13 of the Mysore Code of Civil Procedure and the definition of foreign Court in S. 2 thereof.

14. In the result R.A. No. 105/50-51 must be allowed and the execution application but of which it arises must be dismissed; and I would order accordingly. The parties will bear their own costs.

15. In the view I have taken in R.A. No. 105 of 50-51, CRP 474 of 50-51 is allowed but without costs.

16. VENKATARAMAIYA, J. :- I agree. As the case involves construction of the provisions of the Constitution of India and the decision may affect similar cases now pending or which may arise hereafter, I deem it necessary to state my reasons for the conclusion arrived at. The question for consideration is whether execution of a decree for payment of money passed ex parte before the Mysore State acceded to the Indian Union by a Court situated outside the State of Mysore against a resident in Mysore who did not submit himself to the jurisdiction of that Court can be resisted when execution is applied for in a Court within this State. The decree was passed in the Sub Court, Coimbatore, (Madras State) on 28-3-1949 and transferred for execution to the Sub Court at Hassan (Mysore State). The application for execution was filed in the Court at Hassan on 19-3-1950. The judgment-debtor objected to the execution on the ground that the decree was a foreign decree and inexecutable as it was passed against a non-resident foreigner who did not submit himself to the jurisdiction of the outside Court and that the cause of action for the suit did not arise within the jurisdiction of the Court which passed the decree. The latter contention was disputed by the Decree-holder and the former was alleged to be untenable. The learned Judge without expressing his opinion as to where the cause of action for the suit arose directed execution to proceed in a brief order referring to Arts. 261 and 325 of the Constitution and 25 Mys CCR 269, as supporting the decree-holder. The correctness of this view is challenged by the judgment-debtor.

17. The case in 25 Mys CCR 269 does not help the decree-holder as is clear from the statement of Miller, C.J., at page 289 : "I do not think we are called upon to state on this reference an opinion as to the circumstances which may entitle a Mysore Court to refuse execution of a foreign decree. It may certainly refuse if the Mysore Law does not allow execution, but it cannot refuse merely because the decree is a foreign decree." and Chandrasekhara Aiyar, J., at page 292 : "The appellant though residing in the Kolar Gold Fields for the purpose of his business is a native of Ambur which is within the civil jurisdiction of the Vellore Munsiffs Court and is admittedly a British Indian subject. The case of such a person is of course quite outside the scope of the decisions which lay down that an ex parte decree passed by a foreign Court against an absent person who had not submitted himself to its jurisdiction is a nullity and will not be executed by a local Court. These decisions proceed mostly on considerations of international law which are inapplicable to the case of a defendant who, though absent at the time of the decree, was subject to the jurisdiction of the foreign Court, or had voluntarily submitted himself to it." In a series of cases of which 20 Mys CCR 214, 22 Mys CCR 188, 23 Mys CCR 299, 29 Mys CCR 143, and 34 Mys CCR 205, may be mentioned - this Court has held that the judgment of a foreign Court cannot be enforced in Mysore by making it the basis of a suit and that a decree of a foreign Court cannot also be executed in Mysore when the defendant at the time of the institution of the suit was not a subject of or resident in the country in which the judgment was obtained and did not submit himself to its jurisdiction and that the judgment of the foreign Court is a nullity.

18. It is conceded that the order of the lower Court allowing execution of the decree is opposed to the decisions of this Court but it is contended that the provisions of the Constitution of India fully justify it. The decree in the present case is sought to be distinguished from those in the cases referred to by the fact that though the Court which passed the decree and the Court in which execution is applied for are situated in different States, both States are now within the territory of India (Vide Article 1), the parties are both citizens of India (Vide Article 5), neither is a "Foreign State" (Vide Article 367 (3)) and the meaning attached to "foreign decree in the old cases is changed so as to render the term inapplicable to the decree in question. Emphasis is laid on Article 261 (3) which states : "Final judgments or orders delivered or passed by civil Courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law." to show that the grounds on which execution was refused in the cases decided prior to the Constitution cannot now prevail. There is no doubt that in view of these constitutional provisions the decree-holder would have had no difficulty to claim and enforce execution notwithstanding the previous decisions of this Court if the decree was of a date subsequent to the Constitution. Since it is of an anterior date, the decree-holder must, in order to succeed, satisfy the Court that the provisions of the Constitution can be availed of either because of the words employed in the Articles or because of the date on which execution is sought being material for determination of the question of applicability. In KESHAVAR v. STATE OF BOMBAY, AIR 1951 SC 128 at page 130 it is observed : "Every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. There is no reason why this rule of interpretation should not be applied for the purpose of interpreting our Constitution .......... It has no retrospective effect and if therefore an act was done before the commencement of the Constitution in contravention of the provisions of any law which after the Constitution becomes void with respect to the exercise of any of the fundamental rights, the inconsistent law is not wiped out so far as the past act is concerned." Dealing with an application under Article 136 for special leave to appeal to Supreme Court from a judgment of the Hyderabad High Court Kama, C.J., expressed : "....as the judgments were pronounced and sentences were passed in all these matters before us by the High Court of Hyderabad which was in the territory of H. E. H. the Nizam and which territory was not the territory of India before 26-1-1950 and as those judgments were passed before the Constitution came into force they do not fall within the class of judgments against which special leave to appeal to the Supreme Court can be asked for under Article 136." The words in Article 261 (3) "judgments or orders delivered or passed by the civil Courts in any part of the territory of India are similar to "judgment, decree or order ...... passed or made by any Court or tribunal in the territory of India" in Article 136. After referring to the definition of the "Territory of India" in Article 1 and the contention that meaning Article 138 as prospective amounts to inserting the word "thereafter" in the article for which there is no warrant, the learned Chief Justice remarks that a right of appeal should be conferred expressly or impliedly and observes : "Indeed the words "Territory of India" lead to a contrary conclusion - under the words used in Article 136 the Courts which passed judgments or sentences must be Courts within the territory of India. The territory of the Government of His Exalted Highness the Nizam in December 1949 cannot be considered as judgment and sentence passed by a Court within the territory of India. On that short ground alone the petitioners contention must fail" These words can well be applied to this case and if the date of the decree is the criterion to determine executability, it must be held to be in-executable.

19. It was argued that the crucial point of time for deciding the question of executability was not the date of the decree but the date on which the application for execution was made. This implies that the decree which, as remarked by Earl Selborne in GURDYAL SINGH v. RAJAH OF FARIDKOTE, 22 Cal 222 (PC) was "an absolute nullity" till the date of the Constitution assumed unquestionable validity from that date and liabilities which were treated as non-existent suddenly sprang up. In support of the contention that such was the effect notwithstanding the hardship which may be entailed on litigants who under the shelter of the law which prevailed formerly did not deem it necessary to contest the claims set up in Courts outside the States in which they lived; BHAGWAN SHANKAR v. RAJARAM AIR 1951 Bom 125 (FB); CHUNNILAL KASTURCHAND v. DUNDAPPA DAMAPPA, AIR 1951 Bom 190 and MOOSAKUTTY HAJEE v. PYLOTU JOSEPH, 1951 Ker LT 547 were cited. According to these cases executability of the decree depends on the dates when execution is applied for and if that date is after 26-1-1950, the decree is enforceable under the Constitutional provisions. The last case is that of a single Judge who relies on the two decisions of the Bombay High Court to hold that a decree of a Court in Madras State passed before the date of the Constitution against a resident in Cochin who did not submit himself to its jurisdiction is now executable in Cochin Court as the decree has ceased to be a foreign decree. The effect of the Bombay decisions is that a decree of a Court either in the former presidency of Bombay or in a State which has since merged in it, may be now executed in either Court although it was not so executable up to the date of the Constitution. It is to be noticed that in these cases, as a result of merger, the Court which passed the decrees and the Court in which execution is sought are governed by the same law and subject to the jurisdiction of the High Court in the same State. The question was first decided by a Division Bench in favour of executability and was subjected to consideration by a Full Bench when it arose subsequently in another case. The learned Chief Justice while agreeing with the view of the Division Bench stated that the decree of a foreign Court cannot be said to have been an absolute nullity when it was passed for the reason that under Section 20 of the Civil Procedure Code accrual of the cause of action wholly or in part within its jurisdiction was enough to make it competent to decide the suit and "the decree is a nullity in a limited sense" to the extent it could not be enforced in a Court outside the State. This limitation with respect to execution is considered to have been removed and the decree freed from being "Foreign" by the Constitution so as to render it executable as that of a Court in the "territory of India". As regards the vested rights under Section 13 of the Code of Civil Procedure to resist execution, it was observed that these were of no avail when the prejudice is caused by Act of State and change of status and not repeal of legislation. With great respect to the learned Chief Justice and the other learned Judges in the three cases, I find it difficult to adopt the view expressed by them. The reason for refusing execution is not based on the consideration of the Court passing the decree having or not having jurisdiction to decide the case under law governing it, but on principles governing decisions of "Foreign Court." The decree is of course valid so far as the Court passing it and the State in which that Court is situated are concerned but its effectiveness does not extend to a "Foreign Court." The Privy Council decision referred to by the learned Chief Justice leaves no room for doubt about the decree of the foreign Court being an absolute nullity in spite of that Courts jurisdiction to pass it as can be gathered from the following passage : "In a personal action.......... a decree pronounced in absentum by a foreign Court to the jurisdiction of which the defendant has not in any way submitted himself, is by international law an absolute nullity. He is under no obligation of any kind to obey it and it must be regarded as a mere nullity by the Courts of every nation except (when authorised by special local legislation) in the country of the former by which it was pronounced." That the words enclosed in brackets do not invest the decree with any validity in a Court of a foreign State is apparent from the succeeding paragraph : "These are doctrines laid down by the leading authorities on international law...... and no exception is made to them in favour of the exercise of jurisdiction against the defendant not otherwise subject to it by the Courts of the country in which the cause of action arose or (in cases of contracts) by the Courts of locus solutionis. In these cases as well as all others where the action is personal the Courts of the country in which a defendant resides have power, and they ought to be resorted to, to do justice." In many of the important decisions relating to executability of foreign decrees this case is cited as an authority to hold that it is an "Absolute nullity" and as such inexecutable. I do not think that the "nullity" is limited or lessened on account of the Court in the foreign State being competent to pass it under the law governing it.

20. There is no reference in the decisions relied upon to Article 261 of the Constitution of India which expressly provides for the execution of decrees passed in Courts within the Union and it is not alleged that any other Article has a direct bearing on this.

21. Decrees of dates prior to the Constitution passed by a Court in any State, as it then stood are not declared by the Articles to be executable. Such decrees are not and cannot be deemed to be decrees of civil Courts in any part of the "Territory of India" as required by the Article and explained by the Supreme Court in the case already mentioned. Apparently the decision of the Supreme Court was not brought to the notice of the Full Bench as it is not referred to. There are no words concerning status of parties or citizenship in the article. What is now disputed is not the binding character of the Constitutional provisions or the change in regard to rights of citizenship but only the effect of these. From the mere fact that there is a change, it does not ipso facto follow that it varies the nature and effect of prior proceedings. In SALAMAN v. SECY. OF STATE FOR INDIA, (1906) 1 KB 613 at page 639, Fletcher Moulton, C.J., defining "Act of State" as an "exercise of sovereign power, which cannot be challenged, controlled or interfered within Municipal Courts" states : ".... Municipal Courts may have to consider the results of Acts of State, i.e., their effects on the rights of individuals and even of the Government itself." As has been held in regard to a judgment of the High Court of Hyderabad passed prior to the Constitution, decrees too of that period, in any Court of other States cannot be regarded as those of Courts within "Territory of India". A different rule cannot apply also to the alteration of status (a term of no precise connotation, used in a considerable variety of senses (Salmonds jurisprudence page 327) resulting from the Constitution and it cannot relate back to the time of the decree.

22. It seems to me that the status to be taken into account for deciding executability is that at the time of decree and not at the time of execution. In RAMALINGA IYER v. SWAMINATHA AYYAR, AIR 1941 Mad 688, discussing the point of time at which nationality of defendant is material for the purpose of execution, Leach, C.J., remarked : "If the respondent was a Cochin subject at the date of the passing of the decree any declaration renouncing his Cochin nationality after the passing of the decree would leave the position unchanged." In Diceys Conflict of Laws it is stated as follows : "In an action in personam in respect of any cause of action the Courts of foreign country have jurisdiction in the following cases : First Case : When at the commencement of the action the defendant was resident or present in such country. Second Case : Where the defendant is at the time of the judgment in the action subject or citizen of such country", (the underlining (here in single quotation) is mine.) Third Case : ....................."

23. In my opinion decrees which were inexecutable as those of a Court in a foreign State according to the law in force up to the date of the Constitution have not ceased to be so on account of the changes introduced by the Constitution with respect to status or in the definition of Foreign State or of territory of India and that the date of decree, not the date of application for execution is material to decide the question of executability. I would, therefore, allow the appeal and direct parties to bear their own costs.

24. For the same reasons, C. R. P. 474/50-51, which is also filed by the judgment-debtor is allowed but without costs. Appeal and Revision allowed. AIR (39) 1952 MYSORE 75 (C. N. 33) "Siddamma v. Nanje Gowda" MYSORE HIGH COURT Coram : 1 VENKATARAMAIYA, J. ( Single Bench ) Siddamma and another, Defendants-Appellants v. Nanje Gowda, Plaintiff-Respondent. Second Appeal No. 201 of 1948-49, D/- 5 -2 -1952. Mysore High Court Act (1 of 1884), S.15 (as amended by Act 35 of 1951) - HIGH COURT - APPEAL - AMENDMENT - STATE LEGISLATURE - Amendment to procedure for disposal of second appeals - Amendment is intra vires the State Legislature. Constitution of India, Sch.7, List 1, Art.78, List II, Entry 3 and Entry 65 and List III, Entry 13 and Entry 46. The amendment of S. 15 of the Mysore High Court Act by Act 35 of 1951 providing for second appeals in which the value of subject-matter is not more than Rs. 3,000/- being decided by a Judge sitting alone, is intra vires the State Legislature. (Para 2) The change in the number of Judges by whom a second appeal is to be decided cannot be regarded as affecting the Constitution or organization of the High Court, as contemplated by Entry 78 in List I, Constitution of India. The Act does not establish the High Court, does not confer or take away jurisdiction, does not fix the number of Judges. Nor does it prescribe the relation between the High Court and other tribunals. It only provides for an arrangement to deal with a class of cases and for the decisions in these being those by one Judge instead of two. Legislation concerning this can be said to appropriately come under Administration of justice mentioned in Entry 3 of List II, State List. In this view the Act cannot be impeached at all as it is exclusively within the powers of the State Legislature to legislate on such matters. Even otherwise, Entry 65 of List II, State List, Entry 46 of List III, Concurrent List, show that the State can legislate in respect of jurisdiction and powers of all Courts except the Supreme Court with respect to any of the matters in those lists. Entry 13 in List III is "Civil Procedure including all matters included in the Code of Civil Procedure at the commencement of the Constitution; limitation, arbitration." The words in this entry are wide enough to cover provisions not contained in the Code of Civil Procedure and are capable of being applied to procedure for disposal of second appeals. AIR 1951 SC 69, Rel. on. (Para 1) Cases Referred : Chronological Paras (51) AIR 1951 SC 69 : (1951 SCR 51) 1 S. Ranga Raj, for Appellants; K.R. Gopi Vallabha Iyengar, for Respondent. Judgement A preliminary objection is raised to the appeal being heard by a single Judge on the ground that all appeals are required to be heard by a Bench of not less than two Judges of the Court under Section 15 of the Mysore High Court Act and that the amendment of this by act 35 of 1951 providing for second appeals in which the value of subject-matter is not more than Rs. 3,000/- being decided by a Judge sitting alone is ultra vires. act 35 of 1951 came into force on 18th December 1951 and all second appeals were being heard till now by a Bench of two Judges, irrespective of the value of subject-matter. The validity of this Act is questioned not because of any doubt about the hearing of the appeal or the decision by a single Judge being fair but on the score of want of authority for the State Legislature to alter existing laws at the time of the Constitution relating to the High Court. Articles 225 and 372 are referred to for the law prevalent on the date of the Constitution continuing to be in operation and Entry 78 in List 1 (Union List), viz. : "Constitution and Organization of the High Court except provisions as to officers and servants of High Courts : persons entitled to practice before the High Court." is relied upon to show that the provisions of Mysore High Court Act can be changed, if at all, by Parliament. If the change in the number of Judges by whom a second appeal is to be decided is regarded as affecting the constitution or organisation of the High Court, the Act may be impugned. The Act does not establish the High Court, does not confer or take away jurisdiction, does not fix the number of Judges. Nor does it prescribe the relation between the High Court and other tribunals. It only provides for an arrangement to deal with a class of cases and for the decisions in these being those of one Judge instead of two. Legislation concerning this can be said to appropriately come under Administration of Justice mentioned in Entry 3 of List II State List. In this view the Act cannot be impeached at all as it is exclusively within the powers of the State Legislature to legislate on such matters. Even otherwise, Entry 65 of List II. State List Entry 46 of List III concurrent List show that the State can legislate in respect of jurisdiction and powers of all Courts except the Supreme Court with respect to any of the matters in those lists. Entry 13 in List III is "Civil Procedure including all matters included in the Code of Civil Procedure at the commencement of the Constitution; limitation, arbitration" - The words in this entry are wide enough to cover provisions not contained in the Code of Civil Procedure and are capable of being applied to procedure for disposal of Second Appeals. In STATE OF BOMBAY v. NAROTHAMDAS JETHABHAI, AIR 1951 SC 69, the Bombay Civil Court Act was held to be valid although as a result of the notification thereunder the jurisdiction of the High Court to entertain suits was affected relying on the words in Entries of lists in the Government of India Act Schedule, which are analogous to those now for consideration. Generally, there is a presumption of validity in regard to legislation and the presumption is not shown to be unjustified by those who attack it.

2. The objection in my opinion is untenable and I overrule it. (The rest of the judgment is not worth reporting - Editor.) Objection overruled. AIR (39) 1952 MYSORE 76 (C. N. 34) "Thimmayya v. M. B. Sadasivappa" MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) Thimmayya, Plaintiff-Appellant v. M.B. Sadasivappa and another, Defendants-Respondents. Misc. Appeal No. 64 of 1951-52, D/- 26 -2 -1952. (A) Civil P.C. (5 of 1908), S.94(c), S.151 and O.39, R.1 - CIVIL PROCEDURE - INHERENT POWERS - INJUNCTION - Application for permission to sue as pauper - Temporary injunction before permission has been granted, cannot be passed - No inherent power. The words "if it is so prescribed" in Section 94 imply that the exercise if not the existence of power is conditioned upon a provision being available for the same. (Para 2) In the course of proceedings relating to the application for permission to sue in forma pauperis, before an order registering the case as a suit is passed, an order for temporary injunction cannot be passed under S. 94 (c), read with O. 39. According to the words employed in O. 39 the order is possible only if there is a suit. Since permission to sue as pauper has not been granted, it cannot be said that there is a suit pending. 11 Mys CCR 90, Rel. on. (Paras 2, 3) It is doubtful if the temporary injunction can be granted in the exercise of inherent powers when there are specific provisions concerning the same. AIR 1940 All 185, Dissent.; AIR 1926 Mad 258; AIR 1927 Mad 687; AIR 1933 Mad 500; AIR 1945 Pat 483 and 11 Mys CCR 90, Rel. on. (Para 2) Anno : Civil P. C., S. 94, N. 2, 5; S. 151, N. 2. (B) Civil P.C. (5 of 1908), S.151 - INHERENT POWERS - APPEAL - An appeal does not lie against an order passed in the exercise of inherent powers. (Para 3) Anno : C. P. C., S. 151, N. 9. Cases Referred : Chronological Paras (40) AIR 1940 All 185 : (ILR (1940) All 201) 2, 3 (26) AIR 1926 Mad 258 : (92 Ind Cas 615) 2 (27) AIR 1927 Mad 687 : (102 Ind Cas 700) 2 (33) AIR 1933 Mad 500(2) : (56 Mad 563) 2

11 Mys CCR 90 2, 3 (45) AIR 1945 Pat 483 : (24 Pat 496) 3 M. Venkatesha Rao, for Appellant; B.R.L. Iyengar, for Respondents. Judgement This is an appeal against an order by which a previous order of temporary injunction was vacated. Both orders were passed in the course of proceedings relating to the application of the appellant for permission to sue in forma pauperis. There is no order as yet for the case being registered as a suit.

2. Two questions arise for consideration viz., whether at this stage an order of temporary injunction can be made at all and if so, the provision under which it can be passed. The power to grant temporary injunction is conferred by Section 94, C.P.C., which states : "In order to prevent the ends of justice from being defeated, the Court may, if it is so prescribed.....(c) grant a temporary injunction....." The words "if it is so prescribed" imply that the exercise if not the existence of power is conditioned upon a provision being available for the same. The circumstances under which an order of temporary injunction can be passed are set forth in O. 39 and according to the words employed therein, the order is possible only if there is a suit. Since permission has not been granted to the appellant to sue as a pauper, it cannot be said there is a suit pending between the parties. In 11 Mys CCR 90, while considering the correctness of an order on an application for attachment before judgment a Division Bench of this Court observed : "Neither Section 492 nor S. 499 of the old Code corresponding to Order 39, C.P.C., can apply because as yet there is no suit but only an application for leave to sue as a pauper." The words in Order 39 do not entitle the appellant to seek an order at present whatever the merits of the claim may be. Learned counsel for the appellant cited in DHANESHWAR NATH v. GHANASHYM DHAR, AIR 1940 All 185, to show that temporary injunction may be granted in exercise of the inherent powers of the Court. It is doubtful if inherent powers can be invoked when there are specific provisions concerning a particular matter. The Madras High Court has in VARADA CHARLU v. NARASIMHA CHARLU, AIR 1926 Mad 258 and AYYAMPERUMAL v. MATHU SWAMI, AIR 1927 Mad 687 held that injunction cannot be granted except in case coming under the provisions of the Code. See also KARUPPAYYA NADAR v. PONNUSWAMI NADAR AIR 1933 Mad 500 (2).

3. In DHANESHWAR NATH v. GHANASHYM DHAR, AIR 1940 All 185, relied upon by appellant is dissented from in HEMENDRALAL v. INDO SWISS TRADING CO. LTD.", AIR 1945 Pat 483 where it is clearly stated : "It is not open to a Court to grant injunction in exercise of its inherent power under Section 151." In view of this and the observation in 11 Mys CCR 90, with which we agree, the application is not maintainable. Even otherwise, the appeal is not competent as an appeal does not lie against an order passed in the exercise of inherent powers. The order is one passed in the exercise of discretion. In our opinion this is not a fit case in which the appeal need be treated as a revision petition and the correctness of the order of the lower Court examined. The appeal is dismissed. Parties will bear their own costs. Appeal dismissed. AIR (39) 1952 MYSORE 77 (C. N. 35) "Narayanappa v. D. V. Narayanamurthy" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) Narayanappa, Petitioner v. D. V. Narayanamurthy and another, Respondents. Criminal Revn. Petn. No. 53 of 1951-52, D/- 4 -1 -1952. Criminal P.C. (5 of 1898), S.146 - ATTACHMENT - Withdrawal of attachment. Under S. 146, it is the duty of the Magistrate to withdraw the attachment and relcase the property as soon as if is brought to his notice that a civil Court of competent jurisdiction has determined the person" entitled to the possession : AIR 1916 Mad 507 (1) and AIR 1933 Pat 224, Rel. (Para 4) Section 146 is wide enough to cover third persons who are declared to be entitled for possession of the property even though they are not parties to the original proceedings under S. 145. (Para 4) Though the power of the Court to direct handing over of the crops cannot be strictly attributed to the exercise of judicial functions under S. 146, there appears to be no impediment to release the attachment in respect of the crops that were held by the Receiver on behalf of the Court for the benefit of the person declared by the civil Court to be entitled. (Para 5) Anno : Cr. P. C., S. 146, N. 11. Cases Referred : Chronological Paras. (15) 16 Cri LJ 481 (2) : (AIR 1916 Mad 507 (1)) 4 (33) AIR 1933 Pat 224 : (12 Pat 261) 4 B.V. Balaji, for Petitioner; V. Krishnamurthy, for Respondents. Judgement The petitioner is the first party in Criminal Miscellaneous Case No. 12 of 1942-43, filed under Section 145 of the Code of Criminal Procedure before the Special First Class Magistrate, Madhugiri. The learned Magistrate being unable to decide which of the party was in possession of the property directed under Section 146 (1) of the Code of Criminal Procedure that attachment to continue and appointed the Amildar, Madhugiri to take possession as the Receiver.

2. On 27-6-1946, the respondents presented an application on behalf of the second party members from which this revision petition arises praying that the attachment be withdrawn and the Receiver be directed not to deal with the property. The petitioner objected on the ground that the application is not maintainable as the present respondents were not parties to the proceedings under Section 145 of the Code of Criminal Procedure. The learned Magistrate overruled the objection and ordered that the attachment be withdrawn by accepting the decision of the civil Court in favour of the respondents. It is against that order this revision petition is preferred.

3. The applicants, respondents herein, filed a suit against the petitioner in O.S. No. 18 of 1923-24 in the Court of the Subordinate Judge, Bangalore and obtained a decree for possession of half the interest in the schedule properties against the petitioner. (It was only this half share of the petitioner that was in dispute in proceedings under Section 145 of the Code of Criminal Procedure in Criminal Miscellaneous Case No. 12 of 1942-43), and in execution of the decree delivery was obtained through the civil Court in Miscellaneous Case No. 487 of 1941-42 - symbolical possession of the property - which was confirmed by the High Court in R.A. No. 73 of 1942-43. It was discovered that the property was under attachment by the Criminal Court and the Amildar as Receiver was in actual possession and management. Besides, the first respondent has also obtained a decree for declaration that he is the owner of the property in dispute and entitled to the amount in deposit in the criminal miscellaneous case (proceedings under Section 145 of the Code of Criminal Procedure) in O.S. No. 605 of 1946-47, against the respondents in the criminal miscellaneous proceedings. These two decrees and the proceedings thereunder form the basis of the claim by the respondents in this petition.

4. Section 146 of the Code of Criminal Procedure states that the property in dispute may be attached until a competent Court has determined the rights of the parties thereto of the person entitled to the possession thereof. The duty of the Magistrate is therefore to withdraw the attachment and release the property as soon as it is brought to his notice that a civil Court of competent jurisdiction has determined the person entitled to the possession (Vide MAHARAJA OF VENKATAGIRI v. A. SRINIVASA ROW, 16 Cr LJ 481 (Mad) and JURAWAN SINGH v. RAMSAREKH SINGH, AIR (20) 1933 Pat 224. The objection that the application by the respondents is not maintainable on the ground that they were eo nomine not parties to the criminal miscellaneous proceedings under Section 145 of the Code of Criminal Procedure has no substance. Section 146 is wide enough to cover third persons who are declared to be entitled for possession of the property even though they are not parties to the original proceedings under Section 145. It is not denied that the petitioner and respondents in Criminal Miscellaneous Case No. 12 of 1942-43 were parties to the civil proceedings in which the rights have been declared and the decisions therefore cannot be said to be not binding on them. The Magistrate is therefore bound to abide by the subsequent decisions of the civil Courts whose competency is not questioned. I am therefore of opinion that the learned Magistrate is under the circumstances perfectly justified in having withdrawn the attachment and released the property which was in dispute before him.

5. It is next contended that the supplementary order directing the Receiver to hand over the crops in his custody to the person in possession of the fields is without jurisdiction. There is nothing illegal in such direction. The criminal Court through its Receiver was managing the property for and on behalf of the successful party. Indeed the respondents have obtained a decree that they are entitled to the deposits in Court in the criminal miscellaneous proceedings. The direction therefore to hand over to the person in possession of the property tantamounts to withdrawal of attachment in respect of the crops collected by the Receiver. Though the power of the Court to direct handing over of the crops cannot be strictly attributed to the exercise of judicial functions under Section 146 of the Code of Criminal Procedure, there appears to be no impediment to release the attachment in respect of the crops that were held by the Receiver on behalf of the Court for the benefit of the person declared by the civil Court to be entitled.

6. In the result, there is no ground to call for interference. This petition therefore fails and is dismissed. Petition dismissed. AIR (39) 1952 MYSORE 78 (C. N. 36) "Movie Enterprises v. Periasamy Mudaliar" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) Movie Enterprises represented by one of the Partners G.S. Tallam and another, Defendants-Appellants. v. M. S. Periasamy Mudaliar and others, Plaintiffs-Respondents. Appeal No. 97 of 1951-52, D/- 27 -2 -1952. (A) Civil P.C. (5 of 1908), O.41, R.5 - APPEAL - DECREE - Decree for payment of money - Stay pending appeal - Deposit of decree amount in Court not necessary. Order 41, Rule 5 cannot be read as imposing any limitation that the decrees for payment of money should receive a consideration different from the other decrees in the matter of stay pending appeal. Therefore, there could be no restriction on the discretion of the Court for staying a decree for payment of money in suitable cases where the Court is satisfied that substantial loss will result to the applicant if no stay is made. In this view, it cannot be contended that a decree directing payment of money should not be stayed unless the decree amount is lodged into Court. 9 Mys LJ 484, Disting. (Para 3) Anno : C. P. C., O. 41, R. 5, N. 2, 7. (B) Civil P.C. (5 of 1908), O.41, R.5 - APPEAL - "Substantial loss" - There should be allegations sufficient to satisfy the Court that substantial loss may occur to entitle applicant to obtain stay - It therefore depends upon particular circumstances of each case to determine whether applicant has made out a prima facie case - (Applicants held had made out case of substantial loss to satisfy provisions of O.41, R.5. AIR 1934 Nag 160, Rel. on. (Para 4) Anno : C. P. C., O. 41, R. 5, N. 7. Cases Referred : Chronological Paras (89) 13 Bom 241 3

9 Mys LJ 484 3 (34) AIR 1934 Ngp 160 : (150 Ind Cas 59) 4 S.D. Ganesha Rao, for Appellants; S.K. Venkataranga Iyengar, for Respondents 1 to 14. Judgement A question of some importance was raised by the respondents about the scope of O. 41, R. 5, Civil P. C., in the matter of some decrees relating to payment of money pending disposal of the appeal.

2. An order ex parte granting interim stay on terms of furnishing adequate security etc., was passed in favour of the appellants. The trial Court reported that the appellants have furnished satisfactory security for the due fulfilment of the ultimate decree that may be passed in the appeal. The respondents after notice contended that they were not afforded sufficient opportunity in the trial Court to demonstrate the nature and adequacy of the security furnished. The applications were, therefore, at the request of the respondents, referred back to the trial Court for a fresh finding about the nature of the security and the solvency of the sureties after allowing full opportunity to the parties. A further report has since been received stating that the security accepted earlier is satisfactory and sufficient.

3. When the proceedings were brought up for final orders, the respondents raised a further objection that the appellants are not entitled to the relief as they have failed to make out a prima facie case to obtain stay of the decree under appeal. Their objections are twofold : It is first contended that the decree under appeal is for payment of money and that no stay could be granted unless the decree amount is lodged into Court in view of the decision of this Court in 9 Mys LJ 484, in which Doraswamy Iyer, C.J., has observed thus : "Substantial loss, as I understand it, means and includes that even by obtaining restitution the appellant if he were to succeed in the appeal, will not be restored to the full benefits of the decree which may ultimately be passed in his favour, but not the mere temporary deprivation of the use or benefit he would have and if the decree-holder is not permitted to execute a decree which he has the right to execute, unless the Court has reason to believe that restitution wholly or partly cannot be had from the party seeking stay order I think that generally the rule laid down in DHUNJIBHOY COWASJI UMRIGAR v. LISBOA, 13 Bom 241, may with advantage, be followed in such cases. In DHUNJIBHOY COWASJI UMRIGAR v. LISBOA, the Court held, that where a decree orders payment of money, and an appeal is lodged against it that should be stayed so far as it directs payment on his lodging the amount in Court, unless the other party gives his security for the repayment of the money in the event of the decree being reversed. If such security be given by the successful party, then, stay of execution should not be granted :" The Bombay case referred to therein appears to deal with a decree where the appellant has applied for stay of further execution directing the payment of money to the successful party after the decree amount is lodged into Court. It is, therefore, difficult to comprehend that the principle laid down in that case could be applied with reference to a case for stay of enforcement of a decree appealed against. The decision of this Court in 9 Mys LJ does nowhere lay down in categorical terms that a decree directing payment of money should not be stayed unless the decree amount is lodged into Court. Order 41, R. 5, Civil P. C., cannot be read as imposing any limitation that the decrees for payment of money should receive a consideration different from the other decrees in the matter of stay pending appeal. The said provision provides that no order of stay of execution shall be made, unless the Court is satisfied that "substantial loss" may result to the applicant if no order is made. It does not import any distinction between the decrees relating to payment of money and those concerning immoveable property. Therefore there could be no restriction on the discretion of the Court for staying a decree for payment of money in suitable cases where the Court is satisfied that substantial loss will result to the applicant if no stay is made. The decision in 9 Mys LJ is not, therefore, applicable to the circumstances of this case and does not help the respondents.

4. It is next urged that the appellants have not disclosed the nature and details of "substantial loss" that may result so as to enable the Court to be satisfied whether such loss will be occasioned. In support of this contention the decision in ANANDI PRASHAD v. GOVINDA BAPU, AIR 1934 Nag 160 is cited. Vivian Bose, A.J.C. as he then was, has observed in this decision as follows : "It is not enough merely to repeat the words of the Code and state that substantial loss will result; the kind of loss must be specified, details must be given and the conscience of the Court must be satisfied that such loss will really ensue." Accepting the principle laid down in this case, there could be little doubt that there should be allegations sufficient to satisfy the Court that "substantial loss" may occur to entitle the applicant to obtain the stay. It will therefore depend upon the particular circumstances of each case to determine whether the applicant has made out a prima facie case. This leads to the consideration whether the facts alleged in the application under consideration justify the grant of stay : The suit from which the appeal arises is one for specific performance of an agreement or in the alternative for damages. In the appeal it is contended that the suit is premature, that the decree for specific performance of the agreement, under which money was advanced to the appellants, should have been the proper remedy inasmuch as the money so advanced was applied to specific purposes according to the terms mutually agreed upon and that in any event a decree for damages is unsustainable as no breach of the terms of the agreement, upon which the suit is based, has yet taken place. It is argued in that context that the decree under appeal should be deemed to be one for damages for the alleged breach of contract and not a decree for enforcement of a simple debt. Regarding the "substantial loss", the averment in the affidavit is that "substantial loss will result to me and to my family, the defendants in the suit and it further exposes to irreparable hardship". The respondents contend that that allegation about the "substantial loss" is no better than a bare statement which is not enough to enable the appellate Court to judge whether an order of stay could be passed. I am unable to agree with that argument. The allegation about loss is not merely confined to the deprivation of money that goes to satisfy the decree, but touches the efficient condition and stability of the firm itself as the enforcement of the decree (which in this case amounts to about a lakh of rupees) may not only completely paralyse the running business but end in ruin the venture itself to which the suit amount was applied by common consent.

5. I am therefore of opinion that in the circumstances of the present case the applicants have made out "substantial loss" to satisfy the provisions of O. 41, R. 5, Civil P. C. In the result the interim order is made absolute and the costs of these interlocutory applications will be borne by the respective parties. Appeal dismissed. AIR (39) 1952 MYSORE 80 (C. N. 37) "Motilal J. Boal v. Ramachar" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Motilal J. Boal, Plaintiff-Petitioner v. U. R. Ramachar and another, Defendants-Respondents. Civil Revn. Petn. No. 350 of 1951-52, D/- 14 -2 -1952. (A) Court-fees Act (7 of 1870), S.7(IV)(e) - Mysore Court-fees Act (3 of 1900), S.4(IV)(e) and S.4(IV)(c), Proviso - COURT-FEE - DECLARATION OF TITLE - INJUNCTION - Suit for declaration and injunction for removal of building - S.4(iv)(e) applies. A suit for a declaration that the plaintiff is entitled to enforce against defendant certain restrictive covenants imposed by the municipality at the time of sale of vacant sites under which the defendant was bound to keep certain open spaces in his own site adjoining that of the plaintiff and for a permanent injunction directing the defendant to remove certain structures which he had built on his own site as being contrary to or in breach of the restrictive covenants is governed for purposes of court-fees by S. 4 (IV) (e), Mysore Court-fees Act and the plaintiff can state the amount at which he values the relief sought. Even if such a suit be held to fall under S. 4 (iv) (c) of that Act, the valuation for purposes of court-fee should be the value of the vacant site which the defendant was bound to keep open and not half the market value of the building built by the defendant. No rights are claimed as against that building as the plaintiff is only claiming that certain rights of his own should be preserved and left inviolate and not interfered with. This has no relation or reference either to any claim to possession or ownership by the plaintiff over the defendants land, much less their building. To hold otherwise and compel the plaintiff to pay court-fee on his plaint according to the value of the building which the defendants are putting upon their own site may make it impossible for even an honest and poor litigant to join issue with his neighbour with reference to his own rights. AIR 1946 Mad 235, Rel. on; Case law discussed. (Paras 6, 7) Anno : Court-fees Act, S. 7 (iv) (e), N. 1; Section 7(iv)(c), N. 26. (B) INTERPRETATION OF STATUTES - COURT-FEE - Interpretation of Statutes - Fiscal enactment - Rule of interpretation. Court-fees Act (7 of 1870), S.1. In the case of a fiscal enactment, unless it is quite clear, the courts ought to hold more in favour of the subject than of the State when there is room for real doubt as to whether very much heavier or lesser court-fee is to be collected though, if it is clear that the plaintiffs case falls under any specific provision of the Court-fees Act, he cannot be allowed to escape paying the court-fee due by him merely on any ground of kindness. (Para 6) Anno : Court-fees Act, S. 1, N. 13, 14. Cases Referred : Chronological Paras. (51) AIR 1951 All 570 : (1951 RD (HC) 55) 5 (40) ILR (1940) 2 Cal 33 : (AIR 1940 Cal 560) 8 (27) 52 Mad LJ 121 : (AIR 1927 Mad 348) 2 (36) AIR 1936 Mad 201 : (59 Mad 962) 2, 3 (46) AIR 1946 Mad 235 : (ILR (1946) Mad 885) 3, 7

18 Mys LJ 489 4 (1842) 114 ER 364 : (2 QB 940) 5 (1929) 1 KB 211 5 S.K. Venkataranga Iyengar, for Petitioner; Mirle N. Lakshminaranappa, for Respondents. Judgement The plaintiff has brought a suit in the Court of the Subordinate Judge, Bangalore, in effect for a declaration that he is entitled to enforce against defendant 1 and defendant 2 (who is said to have purchased the property from defendant 1 pendente lite certain restrictive covenants fixed by the Bangalore City Municipality at the time of sale by them of the vacant sites in the area in question in Gandhinagar as to leaving of certain open spaces in their own site between his own and the defendants property as well as in front of their own building and the nature of the building to be constructed on their own site; and for a permanent injunction directing the defendants to remove certain structures which the latter had constructed on their own site as being contrary to or in breach of those restrictive covenants. The plaintiff valued the reliefs for purposes of jurisdiction and Court-fee at Rs. 3,080 under S. 4(iv) (c) of the proviso to Mysore Court-fees Act. He valued at its market value the area of what he called the disputed area, that is the open spaces on which he objected to the defendants building and paid court-fee on half the same. The defendants objected to this method of valuation and pleaded that the Court-fee paid was insufficient and that the subordinate Judge had no jurisdiction to try the suit. After hearing arguments the learned Subordinate Judge was of the view that "the ambit" of the plaintiffs prayer embraced the entire structure on the site belonging to the defendants and "that it was patently clear that the relief sought was with reference to the defendants building constructed on the said site." He, therefore, held that the suit fell within the proviso to S. 4(iv)(c) and that the valuation for purposes of Court-fee should not be less than half the market value of the defendants building over which the rights are claimed. This revision petition has been filed by the plaintiff against that order.

2. It is contended by Mr. S.K. Venkataranga Iyengar, learned counsel for the petitioner, that the market value of the defendants building is entirely irrelevant for the purpose of determining either the rights between the parties or the valuation for purposes of court-fee and jurisdiction; that the proviso to Sec. 4 (iv)(c) which lays down that in suits coming under sub-clause (c), viz. to obtain a declaratory decree or order where consequential relief is claimed can only apply to cases where the relief sought is with reference to any immovable property and that his suit is not with reference to any immovable property according to the construction placed on those words by certain decided cases to which he has referred. For this position he relies on a case reported in GURUNATHA CHETTIAR v. SECY. OF STATE, AIR 1936 Mad 201. where Varadachariar, J., (as he then was) held that the prima facie interpretation of the expression "relief sought is with reference to immoveable property" is that the dispute in some sense should relate to immoveable property. That learned Judge has in his judgment referred to the view of Jackson, J., in VENKITAKRISHNA PATHER, In re : 52 Mad LJ 121 : AIR 1927 Mad 348, that the proviso should be read with the clause so as to make "with reference" to mean involving possession of land, houses or gardens.

3. The next case cited for the petitioner is the one in In re : K.J.V. NAIDU, AIR 1946 Mad 235, in which Somayya, J., referred to and relied on GURUNATHA CHETTIAR v. SECY. OF STATE, AIR 1936 Mad 201. That was a suit for a declaration that the plaintiffs had the customary and mamool rights, viz., to graze cattle and to take leaves and manure, to cut and take wood required for fuel and other building and domestic purpose etc., free of charge from a forest area belonging to another. It was held that it not being a suit relating to any title to immovable property, fell under Sec. 7, Cl. (iv) (e) of the Court-fees Act and not under Sec. 7, Cl. (iv) (c) which corresponds to sub-clause (c) of the same section. Somayya, J., then observed : "The only decision on the point is that of Varadachariar, J., in AIR 1936 Mad 201 : 59 Mad 962 and, in my opinion, that is the correct view to take. It is preposterous to say that where a plaintiff wants a right of passage across his neighbours land the plaintiff should be called upon to pay Court-fee on half of the full value of the neighbours land. There are other difficulties in the way of accepting the petitioners argument. Obviously such cases come under Sec. 7, Cl. (iv) (e) and that result is achieved by confining the Madras Amendment to cases where title to possession of immovable property is involved......."

4. 18 Mys LJ 489 is the next case on which reliance is placed for the petitioner. That case related to a suit for declaration that the plaintiff was the manager of a Mosque and by virtue of his office entitled to receive rents of some shops attached to it and for a permanent injunction restraining the defendants from interfering with the exercise of his rights. The trial Court held that the court-fee was to be calculated on half the market value of the Mosque and the shops under Sec. 4 (iv) (c) of the Mysore Court-fees Act and that the same valuation would also govern the jurisdiction of the Court. On revision, it was held by this Court that the suit was one where it was not possible to estimate in money value the subject matter of the dispute and was not otherwise provided for by the Act and that the relief for a declaration which the plaintiff wanted was not one capable of valuation. Consequently court-fee was to be levied under Art. 11 (b) of Schedule II of Court-fees Act. Mr. Venkataranga Iyengar represents that it may be that his suit does not fall under Cl. (iv) (c) at all so that the proviso will have no application but really under Cl. (iv) (e) as a suit to enforce the right to some benefit not otherwise provided for and arise out of land. In such a suit the plaintiff was entitled to value the relief he sought and pay court-fee on such valuation.

5. Mr. Lakshminaranappa, learned Counsel for respondent 2, argues that with reference to immovable property means concerning or pertaining to, and is sufficiently wide to include any claim for relief however short it may be to actual possession of or title to it, and has relied on the ordinary dictionary meaning of the word with. He has referred to a case reported in THE KING v. WILLIAM JONES, (1929) 1 KB 211, where Avory, J., described with reference to as equivalent to "affecting" and to the observations of Lord Hewart, C.J., about the scope of the words with reference to. He has also referred to DURHAM and SUNDER-LAND RLY. CO. v. WALKER, (1842) 114 ER 364 at p. 374, where it is observed that the word with must be taken to mean and as incidental thereto. He has also cited SHRINATH SINGH v. KASHI NATH RAO, AIR 1951 All 570, which was a suit for an injunction restraining the defendants from interfering with the plaintiffs user of the land in dispute and where it was observed that though there was no doubt that the plaintiffs did not claim any proprietary rights in the immovable property, the immovable property itself was involved in or affected by the relief sought by the plaintiffs and under explanation I the market value of such property had to be ascertained as laid down by Sec. 7, Cl. (v) of the Court-fees Act. That judgment, beyond saying that "the immovable property involved in or affected by the relief or which is referred to in the relief is the land itself and it is the value of that land that has been taken into account by the Court below." does not furnish any further reasons for that conclusion, and I am not inclined to accept that reasoning. He also contends that it is not open to the plaintiff to put his own arbitrary valuation on the declaration or injunction which he seeks and that the Court can in a proper case direct him to make a proper valuation.

6. I am not impressed with the reasoning of the Court below that in a case like the present the valuation for purposes of court-fee should not be less than half the market value of the defendants building. No rights are claimed as against that building as the plaintiff is only claiming that certain rights of his own should be preserved and left inviolate and not interfered with. This has no relation or reference either to any claim to possession or ownership by the plaintiff over the defendants land, much less their building. To hold otherwise and compel the plaintiff to pay court-fee on his plaint according to the value of the building which the defendants are putting up on their own site may make it impossible for even an honest and poor litigant to join issue with his neighbour with reference to his own rights. We are concerned with a fiscal enactment and unless it is quite clear I think the Courts ought to hold more in favour of the subject than of the State when there is room for real doubt as to whether very much heavier or lesser court-fee is to be collected though, if it is clear that the plaintiffs case falls under any specific provision of the Court-fees Act, he cannot be allowed to escape paying the court-fee due by him merely on any ground of kindness. In the present case the plaintiff does not and cannot object to the defendants putting up a building of whatever value they like on their own property. Possibly a decent or artistic building suited to the area may even enhance the value of the plaintiffs property. All that he is concerned with is to see that his own interests are not jeopardised and that his own building does not lose any value and that it gets the necessary light and air and is not deprived of the amenities which are inherently due to it based on the place where it is located, and the general laws, and the sanitary or health rules governing the construction of houses in the area.

7. It is urged that the petitioner is only concerned with the non-construction of the defendants building on the portions of the defendants site which they are bound to keep vacant and on the kind of building which they can lawfully put upon it, that the nearest way in which he can value his suit, even if it is held to fall under Sec. 4 (iv) (c) is by valuing the vacant site and that he has so valued it. I think there is considerable force in this contention. I would, however, think that this case really falls under Sec. 4 (iv) (e) as one to secure a right to some benefit not otherwise provided for in the Court-fees Act to arise out of the land as contemplated in In re : K.J.V. NAIDU, AIR 1946 Mad 235. Even in such a case the plaintiff can state the amount at which he values the relief sought.

8. Mr. Lakshminaranappa has in this connection referred to a case in MIR AKHTAR HOSSAIN v. GURUPADA HALDAR, ILR (1940) 2 Cal 33, where it was held that the value of the relief claimed would be the amount which represents the difference between the value of the property on the assumption that the injunction claimed by the plaintiff could be obtained and its value without such injunction and the suit should be valued accordingly. With great respect to that learned Judge who decided that case, I think that method of valuation perhaps is difficult and impracticable. In fact he himself has observed at page 36 of his judgment there might be some difficulty in arriving at a proper valuation in connection with a matter of that sort, but he does not think that would be impossible to do so as the people acquainted with the land would probably be in a position to estimate at its approximate value as it stands at present and as it would be if the plaintiff succeeded in obtaining a permanent injunction in respect thereof. It is also difficult to agree with the argument of respondent 2s counsel that the fall in the value of the plaintiffs house if the injunction is not granted or if the defendants are allowed to build in the way they like should be investigated and the plaintiff should be made to pay court-fee on that sum. This I think is equally difficult and impracticable. I think if the Court embarked upon an elaborate enquiry in matters of this sort it would be losing itself in deciding merely on a question of court-fee rather than concentrating on the merits of the case.

9. In the result I allow this petition and set aside the order of the Court below and direct the Court below to accept the valuation and court-fee as furnished by the petitioner as correct and proceed with the case in accordance with law as the defendants have nowhere stated that the market value of the open space is under-estimated. The parties will bear their own costs of this petition. Revision allowed. AIR (39) 1952 MYSORE 82 (C. N. 38) "Krishnamurthy v. Krishna Rao" MYSORE HIGH COURT Coram : 2 BALAKRISHNAIYA AND VASUDEVAMURTHY, JJ. ( Division Bench ) Krishnamurthy, Plaintiff-Appellant v. Krishna Rao and others, Defendants-Respondents. Second Appeal No. 551 of 1948-1949, D/- 31 -1 -1952. Registration Act (16 of 1908), S.17(2)(11) - DOCUMENTS - MORTGAGE - Receipt reciting payment of mortgage amount and that property is given up - Registration. Section 17, Sub-S. (2) (XI) of the Registration Act which provides that a receipt for payment of the money due under a mortgage when the receipt does not purport to extinguish the mortgage is an exception to Cl. (C) of S. 17 (1) of the Act and is not therefore compulsorily registrable as it operates as sufficient receipt for payment of money due under the mortgage. The test therefore is whether the receipt purports to extinguish the mortgage in which case it requires registration, but not otherwise. It thus depends upon the construction of the document. (Para 4) A receipt given by the usufructuary mortgagee that his claim under the mortgage is satisfied and that the property is given up does not amount to retransfer of the property or the extinguishment of the mortgage and, therefore, is not compulsorily registrable under S. 17 (2) (XI), Registration Act. Such a receipt is admissible in evidence in proof of the payment even though it is not registered. AIR 1930 Cal 79, Rel. on; 4 Mys LJ 83 and AIR 1940 Lah 68, Ref. (Para 4) Anno : Reg. Act, S. 17, N. 70. Cases Referred : Chronological Paras (30) AIR 1930 Cal 79 : (56 Cal 910) 4 (40) AIR 1940 Lah 68 3

4 Mys LJ 83 2, 3 B.R.L. Iyengar for B.T. Ramaswamy, for Appellant; S. Rangaraj, for Respondents 1(a) and 1(b). Judgement The plaintiff is the assignee on 6/10/1946 of a mortgage with possession from the second defendant who is the mortgagee from defendant 1 for Rs. 250/- under a registered mortgage deed dated 12/3/1906; he prayed for a decree against the mortgage property and against defendant 1 personally and if the amount was not so realised against defendant 2 personally. The plea of defendant 1 is that defendant 2 received the entire sum of Rs. 250/- in full settlement of the debt under a receipt dated 3-1-1942. Defendant 2 remained exparte. The trial Court decreed the suit against both the defendants. On appeal the decree was confirmed as against defendant 2 but was set aside as against the mortgage property and defendant 1. This appeal is preferred against the decision of the appellate court by the plaintiff.

2. The main point urged by the learned advocate for the appellant is that the receipt of discharge is inadmissible and even otherwise it cannot extinguish the mortgage as it is unregistered. Ex. II is the receipt which has been admitted in evidence without any protest or objection and proved in the case. Moreover, there is the additional oral evidence of D. Ws. 1 to 3 about the discharge of the debt and the same has not been impeached in any way. Thus the evidence regarding the discharge of the suit claim is conclusive. The lower appellate Court came to the conclusion relying upon the decision of this Court in 4 Mys LJ 83 viz. : "Even though a receipt purports to extinguish the mortgage and even though therefore compulsorily registrable in order to be effective for evidence of the extinction of the mortgage, it will in our opinion be receivable in evidence of the payment of the mortgage amount even though unregistered, and oral evidence as to such payment will of course be admissible." We are of opinion that the view taken by the appellate court about the discharge of the suit debt is perfectly justified.

3. It is further argued that the facts leading to the decision in 4 Mys LJ 83 are inapplicable to the present case as Ex. II is not a mere receipt evidencing discharge of the debt, but operates as an extinguishment of the mortgage security. The appellant relied for that position upon BHAN SINGH v. NARINJAN SINGH, AIR 1940 Lah 68 in which the learned Judge has observed that "Where a receipt recites that the balance of the mortgage money had been paid to the mortgagee and possession had been given back, the receipt is inadmissible in evidence if it is not registered."

4. Section 17, Sub-section 2(11) of the Registration Act which provides that a receipt for payment of the money due under a mortgage when the receipt does not purport to extinguish the mortgage is an exception to Clause C of Section 17(1) of the Act and is not therefore compulsorily registrable as it operates as sufficient receipt for payment of money due under the mortgage. The test therefore is whether the receipt purports to extinguish the mortgage in which case it requires registration, but not otherwise. It thus depends upon the construction of the document. It is no doubt stated in Ex. II that the property is "given up". The expression that is pointed out as extinguishing the mortgage in Ex. II is that the "property was given up" but it does not in our opinion amount either to retransfer of possession of the property or extinguishment of the mortgage. A similar view has been expressed by a division bench of the Calcutta High Court in RAJNIKANTA NATH v. ALI NOAZ, AIR 1930 Cal 79 where Mallik, J., observes : "A document, by which a usufructuary mortgagee admits that his claim has been satisfied and releases the property to the possession of the mortgagor, does not require registration." The above observation aptly applies to the interpretation of Ex. II in the present case, which, we hold, does neither purport to transfer the property nor extinguish the mortgage security. It merely states that the property is "given up" which may at the most be taken to mean, that it is abandoned.

5. We are therefore of opinion that the plaintiff is not entitled to a decree against defendant 1 or the property. In confirming therefore the decision of the lower appellate court this appeal stands dismissed, parties bearing their own costs. The balance of printing charges may be recovered from the concerned Advocate. Appeal dismissed. AIR (39) 1952 MYSORE 83 (C. N. 39) "Lakshman v. Govt. of Mysore" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) Lakshman, Accused-Petitioner v. Govt. of Mysore, Complainant-Respondent. Criminal Revn. Petn. No. 41 of 1951-52, D/- 4 -1 -1952. (A) Evidence Act (1 of 1872), S.114, Illus.(a) - EVIDENCE - POSSESSION - Possession of stolen goods soon after theft - Presumption - Explanation - Mere denial of complainants ownership and assertion of accuseds own right is not sufficient to rebut presumption. Where the accused is found in possession of property alleged to be stolen soon after the theft, to rebut the presumption that may be raised under S. 114, the explanation of possession given by the accused, whether true or not, must be so reasonably convincing as to throw a doubt on his guilt; but a mere denial of the prosecution story or any assertion inconsistent with facts proved by the prosecution, cannot amount to an explanation to make the presumption unavailable to the prosecution under S. 114, Illus. (a) : AIR 1945 Cal 421; AIR 1947 Pat 205, Rel. on. (Para 6) Certain missing cattle were seized from the possession of the accused on the third day after the theft. The only explanation of the accused was his denial of the ownership of the complainant and the assertion of his own right as claimed through his father. The explanation was considered by the Magistrate as not reasonably convincing and the accused was found guilty. The appellate Court confirmed the same. In revision : Held that there was no reason to interfere with the concurrent finding. (Para 7) Anno : Evidence Act, S. 114, N. 7. Cases Referred : Chronological Paras (26) 53 Cal 157 : (AIR 1925 Cal 1241 : 26 Cri LJ 1582) 3 (35) 62 Cal 956 : (39 Cal WN 620) 3 (45) AIR 1945 Cal 421 : (47 Cri LJ 193) 6 (47) AIR 1947 Pat 205 : (48 Cri LJ 133) 6 (1914) 11 Cri App Rep 45 3

V. Krishnamurthy, for Petitioner; Advocate-General, for the State. Judgement The petitioner has been convicted of an offence under Section 379, I. P. C., and sentenced to rigorous imprisonment for two months by the Second Magistrate, Chitaldrug. On appeal, the conviction has been upheld but the sentence reduced to rigorous imprisonment for one month by the District Magistrate. This revision petition is preferred against that order.

2. A buffalo and its calf which were said to have been missing from their owner on the night of 15/10/1950, were found in the possession of the accused and seized on 17/10/1950. The plea of the accused is that the complaint was false and in his statement he denied the ownership of the complainant and maintained that the cattle belonged to his father who is said to have obtained them from one Hanumantha. Both the courts found that the cattle belonged to the complainant, P. W. 2, and the ownership set up by the accused is false.

3. Sri V. Krishnamurthy, the learned Advocate for the petitioner, contended that the evidence of the theft of the buffalo and the calf is not conclusive, that the mere fact that the accused was found in possession of the cattle alleged to have been stolen is not sufficient to fix the guilt upon him, that the accused has explained the circumstances under which he came into possession and that irrespective of positive proof of the said explanation the accused is entitled to acquittal. In support of his contention he relied upon the decisions in KABATULLA v. EMPEROR, 53 Cal 157 and ISTAHAR KHONDKAR v. EMPEROR, 62 Cal 956. In the former case, the Judges observed that "in a case where the evidence of the guilt of the accused rests upon the discovery of the stolen property in his possession and which is tried by the Jury, the proper course is to direct that the Jury are entitled to take the explanation offered by the accused of the possession." It was found in that case that the Magistrate had directed that recent possession of the stolen property raises a rebuttable presumption that the accused are guilty of theft unless they adduced sufficient proof in establishing their innocence. It was held by the High Court that it is not for the accused to prove positively the explanation of his possession of the property, but for the Jury, as a court of fact, to accept the explanation or not. In that view it was considered that it was a misdirection by the Judge to the Jury. In the latter case (62 Cal 956) it was laid down that the direction of the Judge to the Jury under Section 114, illustration (a) of the Evidence Act, should be in accordance with the statement of Lord Reading in REG v. ISAC SCHAMA, (1914) 11 Cr. App. Rep. 45 which is to the following effect : "Where the prisoner is charged with receiving recently stolen property when the prosecution has proved the possession by the prisoner and the goods had been recently stolen, the jury should be told that they may, not that they must, in the absence of any reasonable explanation, find the prisoner guilty. But if an explanation is given, which may be true, it is for the jury to say on the whole evidence whether the accused is guilty or not, that is to say, if the jury think that the explanation is reasonably true, though they are not convinced that it is true, the prisoner is entitled to an acquittal, because the Crown has not discharged the onus of proof imposed upon it of satisfying the jury beyond reasonable doubt of the prisoners guilt. The onus never changes, it always rests on the prosecution." These cases establish the principle that it is for the jury to judge as a court of fact whether the explanation offered by the prisoner is reasonably true and accept the explanation or not in the light of the entire evidence adduced in the case.

4. Under Section 114 of the Evidence Act, the Court may presume "that a man who is in possession of stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession." The Court is not bound to but may raise the presumption under this illustration. Before the presumption is raised, the prosecution should have proved that (1) the property is stolen; (2) the stolen Property should have been found in the exclusive Possession of the accused; and (3) that the discovery should be soon after the theft to make it reasonable to raise the presumption. When these facts are proved, the explanation of the circumstances under which the accused came into bona fide possession falls for consideration.

5. The words "can account for his possession" in illustration (a) to the section mean that the accused must be able to give an explanation, reasonably convincing so as to cast a doubt on the guilt alleged; but he is not required to adduce substantial evidence to prove his explanation.

6. The crucial question for decision is, the nature of the explanation that could rebut the presumption that may be raised under Section 114 of the Evidence Act. The Calcutta High Court MOKTARALI v. EMPEROR, AIR 1945 Cal 421 has laid down that "where the property in possession is identified as being part of the property stolen at the time of dacoity, an explanation by the accused that it was the property of his relation is not an explanation of his possession within the meaning of Section 114, illustration (a)". In IN RE DHYANI GOPE, AIR 1947 Pat 205, the learned Judges observed that "the presumption permitted by Section 114, illustration (a) does not arise until the prosecution has established three facts, namely, the ownership of the articles in question, the theft of them and their recent possession by the accused. It is not a reasonable explanation on the part of the accused to deny the existence of these facts. The explanation which renders the presumption unavailable to the prosecution is an explanation of how the articles belonging to the complainant are found in the possession of the accused shortly after they had been stolen from the possession of the complainant." It follows therefore that the explanation of possession given by the accused, whether true or not, must be so reasonably convincing as to throw a doubt on his guilt; but a mere denial of the prosecution story or any assertion inconsistent with facts proved by the prosecution, cannot amount to an explanation to make the presumption unavailable to the prosecution under Section 114 (a) of the Act.

7. In the case under consideration, the prosecution has proved that the cattle were missing from the custody of P. W. 2 who it is established is the owner thereof, and it is not denied that the property is seized from the possession of the accused on the third day after the theft. The only "explanation" of the accused is his denial of the ownership of the complainant and an assertion of his own right as claimed through his father. This explanation is inconsistent with the proved facts of the prosecution and the explanation has been taken into consideration by the Magistrate, the judge of facts, in holding that it is not reasonably convincing. Consequently he found the accused guilty and the lower appellate court has confirmed the same. In the circumstances, I see no reason to interfere with the concurrent finding. Considering the nature of the offence, the sentence is not severe as it has been reduced from two months to one month and it does not call for any further reduction.

8. This petition therefore fails and is dismissed. The accused, if on bail, will surrender himself to undergo the unexpired portion of the sentence. Petition dismissed. AIR (39) 1952 MYSORE 84 (C. N. 40) "Periyanayakan v. Mysore Govt." MYSORE HIGH COURT Coram : 2 VENKATARAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) T. A. Periyanayakan and another, Accused-Petitioners v. Government of Mysore, Complainant-Respondent. Criminal Revn. Petn. No. 99 of 1951-52, D/- 30 -1 -1952. Mysore Mines Act 4 of 1906 - MINES AND MINERALS - Act has not become inoperative even after the Indian Mines Act has become applicable to Mysore State. Constitution of India, Sch.7, List 1, Item 54, List 2, Item 23. Part B States (Laws) Act (1951), S.6. It is competent for the State legislature to enact laws for Mining and Mineral Development under List II Item No. 23 of Schedule VII, Constitution of India but it is subject to laws of the Union about the same made under List I Item No. 54. The Indian Mines Act, 1923, which has become applicable to the Mysore State as a result of Part B States (Laws) Act and the Mysore Mines Act are not identical in scope and the purpose of each is not the same. Hence the Mysore Act as a whole cannot be regarded as being made inoperative in view of S. 6 of Part B States (Laws) Act. (Para 2) H.V. Krishna Rao, for Petitioners; A.R. Somanatha Iyer Advocate-General, for Government of Mysore. Judgement The petitioner is prosecuted for an offence under the Mysore Mines Act. The objection taken in limine, to the case on the ground that the Act the provision of which is alleged to be contravened has become void on account of the provisions of the Constitution and the Part B States Act, has been over-ruled by the trial Magistrate. Petitioner seeks revision of this order and proceedings being quashed. 2. There is nothing in the Constitution of India which renders the Mysore Act ipso facto void. No. 23 in State List is Regulation of Mines and Mineral Development subject to the provisions of List 1 with respect to regulation and development under the control of the Union. No. 54 in List 1 is Regulation of Mines and Mineral Development to the extent to which such regulation and development under the Control of the Union is declared by Parliament by law to be expedient in the public interest. It is clear from this that the State is competent to enact laws for Mining and Mineral Development but it is subject to laws of the Union about the same. The Indian Mines Act (1923) became applicable to the State as a result of the Part B States Act. Section 6 of that Act provides for laws corresponding to the enactments mentioned therein ceasing to be operative. Since it is admitted that there is nothing in the Indian Act which corresponds to the sections now in question and the scope of the mysore act and the indian act is not identical, the purpose of each is not the same. The Mysore Act as a whole cannot be regarded as being made inoperative. The objection is untenable. The petition is consequently dismissed. Petition dismissed. AIR (39) 1952 MYSORE 85 (C. N. 41) "Revanasiddaiah v. Mysore State" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) D. M. Revanasiddaiah, Petitioner v. State of Mysore, Respondent. Criminal Petn. No. 79/1951-52, D/- 10 -9 -1951. (A) Constitution of India, Art.22(5) - PUBLIC SAFETY - PREVENTIVE DETENTION - Objection that grounds supplied are vague - Sufficient particulars immediately supplied - Infringement of fundamental right - Public safety. Preventive Detention Act (4 of 1950), S.3. There can be no infringement of any fundamental right of a person detained under the Preventive Detention Act or the contravention of any constitutional provision if he has been supplied with sufficient particulars as soon as he raised the objection that the grounds supplied are vague : AIR 1951 SC 157, Foll. (Para 4) (B) Preventive Detention Act (4 of 1950), S.3 - PUBLIC SAFETY - PREVENTIVE DETENTION - Public Safety - Ground sufficient to satisfy authorities - Vague ground. Merely because a ground is vague, it cannot be considered that it is no ground at all and therefore not sufficient to satisfy the authorities, and a vague ground does not stand on the same footing as an irrelevant ground, which can have no connection at all with the satisfaction of the Government: AIR 1951 SC 174, Foll. AIR 1951 Mad 182, Ref. to. (Para 6) (C) Preventive Detention Act (4 of 1950), S.3 - PUBLIC SAFETY - PREVENTIVE DETENTION - Public Safety - Sufficiency of grounds - When can be examined by Court. Sufficiency of the grounds for the purpose of satisfaction of the Government is not a matter for examination by the Court; their sufficiency to give the detained person the earliest opportunity to make a representation can be examined by the Court but only from the point of view of seeing if it is relevant, i.e., it can have some connection with the satisfaction of the Government. (Para 7) (D) Preventive Detention Act (4 of 1950), S.3 - PUBLIC SAFETY - PREVENTIVE DETENTION - Public Safety - Satisfaction contemplated by section is that of detaining authority. (Para 7) (E) Preventive Detention Act (4 of 1950), S.3 - PUBLIC SAFETY - PREVENTIVE DETENTION - Public Safety - Antecedents of detenue - Consideration of. In judging whether a person is likely to indulge in activities prejudicial to a State or to the maintenance of public order, his antecedents can also be considered. (Para 7) (F) Preventive Detention Act (4 of 1950), S.3(2) - PUBLIC SAFETY - PREVENTIVE DETENTION - Public Safety - Government having grounds to believe that detenue was associating himself actively with named leader of gang of dacoits - Dacoits concerned in certain named dacoities - Detention held was preventive and not of punitive character. (Para 10) (G) Preventive Detention Act (4 of 1950), S.3(2) - PUBLIC SAFETY - PREVENTIVE DETENTION - MAGISTRATE - Public Safety - Mala fides of District Magistrate - Burden of proof. The burden is on the petitioner to prove that the District Magistrate acted mala fide in issuing the order of detention. AIR 1950 SC 270, Foll. (Para 11) Cases Referred : Chronological Paras (50) 1950 SCR 88 : (AIR 1950 SC 27 : 51 Cri LJ 1383) 7 (50) AIR 1950 SC 124 : (51 Cri LJ 1514) 11 (51) 1951 SCR 167 : (AIR 1951 SC 157 : 52 Cr LJ 373) 4, 5, 7 (51) 1951 SCR 212 : (AIR 1951 SC 174 : 52 Cri LJ 400) 6, 7 (51) AIR 1951 SC 270 : (52 Cri LJ 904) 11 (51) 55 Cal WN 13 : (AIR 1951 Ass 43 : 52 Cri LJ 434) 10 (50) AIR 1950 Hyd 66 : (ILR (1951) Hyd 196) 10 (51) 1951-1 Mad LJ 274 : (AIR 1951 Mad 182 : 52 Cri LJ 688) 6, 7 (51) AIR 1951 Ori 20 : (52 Cri LJ 104) 11 (51) AIR 1951 Ori 27 : (52 Cri LJ 110) 7 (49) AIR 1949 Pat 1 : (50 Cri LJ 44 FB) 11 (51) AIR 1951 Sau 12 : (1950-3 Sau LR 220) 11 (51) AIR 1951 VindPra 36 : (52 Cri LJ 894) 9 B.M. Chandrasekhariah, for Petitioner; A.R. Somanath Iyer, Advocate General, for the State. Judgement VASUDEVAMURTHY, J. :- The Petitioner has applied under Article 226 of the Constitution of India read with Sec. 491 of the Code of Criminal Procedure for the issue of a Writ of Habeas Corpus. He has stated in his affidavit that he was arrested by the Police of Davangere, apparently in connection with some criminal case, on 22-1-51 and remanded to Police custody. He was granted bail by the First Class Magistrate who later on cancelled it on the application of the Public Prosecutor. He was then committed and took his trial before the Sessions Judge, Shimoga Division, in Chitaldrug Sessions Case No. 8/50-51. The Sessions Judge released him on bail on 24-2-51, and on 25-2-51 he was rearrested by the Police of Davangere. He was ultimately acquitted in the Sessions case on 8-3-51. He was served on 8-3-51 with a copy of an order of detention dated 5-3-51 together with grounds of detention and, subsequently, on 12-3-51 with the details of grounds for detention.

2. The order of detention which is dated 5-3-51 is as follows :- "Whereas I.K. Seshagiri Rao, District Magistrate, Chitaldrug District, am satisfied with respect to the person known as D.M. Revanasiddiah son of D.M. Murigiah, Chitaldrug Taluk, now residing in Davangere that with a view to preventing him from acting in a manner prejudicial to the maintenance of Public Order it is necessary to make the following order : - Now therefore, in exercise of the powers conferred by Sub-section (1) of Section 3 of the Preventive Detention Act, 1950 (IV (4) of 1950) I.K. Seshagiri Rao, District Magistrate, Chitaldrug hereby direct that the said D.M. Revanasiddiah be detained. I further direct that the said D. M. Revanasiddiah be detained in the Shimoga District Lockup........." The grounds given for detention are as follows : "Whereas by virtue of an order No. J3. P.R. 368/50-51 dated 5-3-51 you, Sri D.M. Revanasiddiah, son of D.M. Murigiah of Chitaldrug residing at Davangere have been detained under Sub-Section (2) of Section 3 of the Preventive Detention Act, 1950 and in pursuance of the provisions of Section 7 of the said Act, you are informed of the grounds for your detention, I, Sri K. Seshagiri Rao, District Magistrate, Chitaldrug, District, do further direct that you be informed of the details of the grounds for your detention : It is reported that you are a habitual dacoit and that you have participated in a number of heinous offences since 1942 and that you are now undergoing trial in a dacoity case. It is further ascertained that you associated yourself actively with the well-known criminals who have gone underground like Ramanatha Belavadi and that you were suspected to have had a hand in the recent Kadalbal and Yelavatti Dacoity cases, and that if you are free, you will organise and arrange further raids and offences with the aid of criminals and thus endanger the maintenance of Public order. It is considered that your being at large is a source of danger to public peace, law and order. Also in pursuance of the said section of the said Act, as already informed, I, Sri K. Seshagiri Rao, District Magistrate, Chitaldrug District, do hereby direct that you have a right to make a representation in writing against the order under which you are detained. If you wish to make such representation you should address it to Government through the Superintendent of the Jail in which you are detained."

3. For the State, the District Magistrate, Chitaldrug, has sworn to an affidavit dated 21-8-51 accompanied by another affidavit by the Police Inspector of Davangere Taluk. In the latter it is stated that the Petitioner was arrested by the Harihar Police and not by the Davangere Police, on 23-1-1951 and not on 22-1-1951, that the cancellation of bail was ordered on 8-2-51 and not on 7-2-51 and that the release on bail by the Sessions Judge was on 23-2-51 and not on 24-2-51. In that affidavit, it is also stated that the Davangere Taluk Police arrested the Petitioner on 24-2-51 in connection with the investigation of an offence of dacoity but he was released for want of sufficient evidence on the forenoon of 7-3-51 and after he was released he was served with a detention order on the same date by the Davangere City Police, that it is not true that the Petitioner does not know why he was arrested on 24-2-51 and that the reasons for his arrest were fully explained and communicated to him.

4. Before us, the order is attacked mainly on three grounds : (1) that the grounds furnished with the order of detention and the details of the grounds furnished later are quite insufficient and do not fall within Cl. (2) of Sec. 3 of the Preventive Detention Act; (2) that the grounds are very vague and indefinite and (3) that the order in question is mala fide and quite unnecessary and was secured by the Police of Davangere merely on account of disappointment that the Petitioner was released on bail. Several cases have been cited both for the Petitioner and the State. It is not, however, necessary to consider all of them as the law in such cases has now been laid down clearly by the recent decisions of the Supreme Court. In STATE OF BOMBAY v. ATMARAM SHRIDHAR, 1951 SCR 167 it has been held by the Full Court that there can be no infringement of any fundamental right of a petitioner in such cases or the contravention of any constitutional provision if he has been supplied with sufficient particulars as soon as he raised the objection that the grounds supplied are vague; and Kania, C.J., Fazl Ali, Mukerjea and Chandrasekhara Aiyar, JJ., have held : "The grounds for making the order which have to be communicated to the person detained as soon as may be are conclusions of facts and not a complete recital of all the facts. These grounds must be in existence when the order is made. No part of the grounds can be held back, and after they have been once conveyed there can be no addition to the grounds. All facts leading to the conclusions constituting the ground need not, however, be conveyed at the same time. If a second communication contains no further conclusion of fact but only furnishes some of the facts on which the first mentioned conclusion was founded it does not amount to a fresh ground. The test, therefore, is whether what is conveyed in the second communication is a statement of facts or events, which facts or events were already taken into consideration in arriving at the conclusion constituting the ground already supplied. "So long as the later communications do not make out a new ground, their contents are no infringement of the two procedural rights of the detenue mentioned in Art. 22, Cl. (5). They may consist of a narration of facts or particulars relating to the grounds already supplied. But in doing so the time factor in respect of second duty, viz., to give the detained person the earliest opportunity to make a representation, cannot be overlooked." "If, on reading the ground furnished, it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order it cannot be said to be vague. The question whether the vagueness or indefinite nature of the statement furnished to the detained person is such that he was not given the earliest opportunity to make a representation is a matter within the jurisdiction of the courts inquiry and subject to the courts decision."

5. The Petitioner can have no complaint about the vagueness of the grounds because in the grounds supplied on 12-3-51 he has been informed that there were reports against him that he is a habitual dacoit, that he has participated in a number of heinous offences since 1942 and that he was associating himself actively with well known criminals who have gone underground and who cannot be traced like Ramanatha Belawadi and that he was suspected to have a hand in the recent Kadalbal and Yelavatti dacoity cases and that it was apprehended that if he is again free he will organise and arrange further raids and offences with the aid of criminals and thereby endanger the maintenance of public order and that it was considered that his being at large is a source of danger to public peace, law and order. The details of the grounds which are possible to be furnished would depend upon the circumstances of each case and the exigencies of the situation. It is difficult to accept that the details furnished to the Petitioner are so indefinite that he cannot understand their scope, meaning and implications and cannot give a valid answer to them, which we think is the proper test to be applied. The grounds furnished in this case appear to be proper and relevant for the purpose of maintaining public law and order referred to under Sec. 3 of the Act. Again as held in STATE OF BOMBAY v. ATMARAM SHRIDHAR, 1951 SCR 167 : "Clause (5) of Art. 22 confers two rights on the detenue, namely, first, a right to be informed of the grounds on which the order of detention has been made, and secondly, to be afforded the earliest opportunity to make a representation against the order; and though these rights are linked together, they are two distinct rights. If grounds which have a rational connection with the objects mentioned in S. 3 are supplied, the first condition is complied with. But the right to make a representation implies that the detenue should have information so as to enable him to make a representation, and if the grounds supplied are not sufficient to enable the detenue to make a representation, he can rely on the second right. He may, if he likes ask for further particulars which will enable him to make a representation. On an infringement of either of these two rights, the detained person has a right to approach the court, and even if an infringement of the second right under Art. 22(5) is alone established he is entitled to be released."

6. To the same effect is the decision reported in TARAPADA DE v. STATE OF WEST BENGAL, 1951 SCR 212, where it has been held that merely because a ground is vague it can-not be considered that it is no ground at all and therefore not sufficient to satisfy the authorities, and a vague ground does not stand on the same footing as an irrelevant ground, which can have no connection at all with the satisfaction of the Government. See also NARAYANA RAJU v. CHIEF SECY. TO GOVT. OF MADRAS, (1951) 1 Mad LJ 274 in this connection.

7. The second and third grounds raised by Mr. B. M. Chandrasekhariah, learned Counsel for the petitioner, may be next considered together. As laid down by the Full Supreme Court in STATE OF BOMBAY v. ATMARAM SHRIDHAR, 1951 SCR 167 : "Under S. 3 of the Preventive Detention Act, 1950, it is the satisfaction of the Central Government or the State Government, as the case may be, that is necessary, and if the grounds on which it is stated that the Central Government or the State Government are satisfied have a rational connection with the objects which were to be prevented from being attained, the question of satisfaction cannot be challenged in a court of law except on the ground of mala fides." To the same effect is the case reported at page 212 of the same volume (TARAPADA DE v. STATE OF WEST BENGAL, 1951 SCR 212). Sufficiency of the grounds for the purpose of satisfaction of the Government is not a matter for examination by the court; their sufficiency to give the detained person the earliest opportunity to make a representation can be examined by the court but only from the point of view of seeing if it is relevant, i.e., it can have some connection with the satisfaction of the Government. The law has now been very clearly laid down that the satisfaction contemplated in Sec. 3 of the Act is that of the detaining authority. In judging whether a person is likely to indulge in activities prejudicial to a State or to the maintenance of public order, his antecedents can also be considered has been laid down in several cases; see ANANTA CHARAN v. THE STATE, AIR 1951 Orissa 27 at p. 28, NARAYANA RAJU v. CHIEF SECY. TO THE GOVT. OF MADRAS, (1951) 1 Mad LJ 274 and the observations of the Supreme Court in A.K Gopalan v. State Of Madras., 1950 SCR 88.

8. There are really no materials on which the order in question could be attacked as being mala fide. The District Magistrate has sworn to an affidavit stating that from the materials placed before him by competent persons who investigated into the matter he felt completely satisfied that it was quite necessary to detain the Petitioner in order to prevent him from acting in a manner prejudicial to the maintenance of the public order, and he has emphatically denied that he was activated by any other motive or consideration in passing the order, or that it was done mala fide. It is mentioned before us for the State that recently there have been a series of dacoities committed in the border districts of Mysore, that the Police had to take very vigilant and active steps to put down such disturbances of public order and that they have succeeded to a large extent in doing so by prompt action like the present. It is of course not for us to determine whether those allegations are true but they certainly do seem to be relevant and would justify the action taken in the interests of public order. It must also be remembered that this is not a case where it can even be suggested that the petitioner is being detained with any political or other motives and not really in connection with the maintenance of the public order.

9. Mr. Chandrasekhariah has relied strongly on a case reported in MAJBUT SINGH v. STATE OF VINDH PRADESH, AIR 1951 Vindh-Pra 36. In that case, it was held by a single Judge of that court that normally a single dacoity or a number of dacoities cannot be held to affect prejudicially to the maintenance of public order to an extent calling for the application of the Act and that such happenings can be normally dealt with under the preventive sections of the Code of Criminal Procedure or other similar provisions. With great respect we are unable to accept the rather wide interpretation sought to be put upon that judgment by the learned Counsel for the Petitioner. Even that learned Judge concedes "That it is however possible that when a single or a number of gangs are acting in co-ordination over extensive areas the maintenance of public order is so prejudiced as to call for the application of the extraordinary law."

10. It is urged for the petitioner that the detention in this case is really of a punitive character and not preventive and that as the petitioner was already being detained in jail in connection with the trial of another case, he should not have been committed under a warrant issued under Sec. 3 of the Preventive Detention Act. Reliance is placed in support of this argument on MOHAMMED ABDUR RAHMAN v. HYDERABAD STATE, AIR 1950 Hyd 66. In that case it is to be observed that the prisoner was in custody and the criminal proceedings were pending, and naturally the learned Judges who decided that case pointed out that it was obvious that prejudicial conduct on the part of such a person was impossible when he was already in jail either undergoing sentence of imprisonment passed by a Court of Law or is awaiting, without being on bail, any investigation, inquiry or trial and that the exercise of power under the Preventive Detention Act would in those circumstances be meaningless and improper. Another case cited for the petitioner was decided by the Assam High Court and is reported in LABARAM DEKA v. THE STATE, 55 Cal WN 13 (Assam) and is similar to the Hyderabad case. No such grounds exist in this case. There is and was at the concerned time no case pending against the petitioner and he was free. The action was taken under Sec. 3(2), the Government being satisfied with respect to the petitioner that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order he should be held in preventive detention. They had grounds to believe that he was associating himself actively with an apparently well known and named leader of gangs of dacoits who were concerned in certain named dacoities. It cannot, therefore, be said that the Government was not fully alive to the difference between punitive and preventive detention and were not taking anticipatory action to meet a real situation in order to prevent the breach of public order; and as pointed out above it is not for this court to assess whether those grounds were sufficient for the detaining authority to make up its mind though, if the grounds of detention were very vague and indefinite so as to render the object of furnishing the grounds illusory, the order could be set aside. The petitioner in this case has not been able to satisfy us from his affidavit that either these grounds are false or irrelevant.

11. As pointed out by Patanjali Sastri, J., in RAM SINGH v. STATE OF DELHI, AIR 1951 SC 270 at p. 274 the burden is on the petitioner to prove that the District Magistrate acted mala fide in issuing the order of detention. Public order, it has been said, has a comprehensive meaning so as to include public safety in its relation to the maintenance of public order and maintenance of public order undoubtedly involves considerations of public safety and that they are closely allied concepts; see NEK MOHOMMED v. PROVINCE OF BIHAR, AIR 1949 Pat 1 and ROMESH THAPPER v. STATE OF MADRAS, AIR 1950 SC 124. Mr. Chandrasekhariah has also referred to cases reported in KULAMONI MOHANTY v. STATE, AIR 1951 Orissa 20, AHMED ARABI v. OSMAN ISA, AIR 1951 Saura 12 and other similar cases. These decisions turn upon the particular facts and circumstances of those cases and have no application to the present case.

12. Before concluding, it might also be added that it has been brought to our notice that the petitioners case was considered by the Board appointed by the State under Sec. 9 of the Preventive Detention Act to examine such cases and that the learned Members of the Board saw no reason to release the petitioner; and no attempt has even been made before us to show how their decision is perverse or not in accordance with law.

13. In the result we think there is no substance in the present application and it is accordingly dismissed. Application dismissed. AIR (39) 1952 MYSORE 88 (C. N. 42) "Bashiruddin v. Mysore State" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND MALLAPPA, JJ. ( Division Bench ) T. A. Bashiruddin, Accused-Petitioner, v. State of Mysore, Complainant-Opposite Party. Criminal Petn. No. 127 of 1951-1952, D/- 8-11-1951. Constitution of India, Art.134(1)(c) - APPEAL - Certificate of fitness - Requirements. The conditions necessary to be satisfied for a certificate under Art. 134(1)(c) are not specified but the need of a certificate implies that there should be something more than what is required for an ordinary appeal under the Code of Criminal Procedure. There should not only be, in the case, substantial points of law but also exceptional and special circumstances in the case, and it must also be shown that substantial and grave injustice has been done to enable the High Court to issue a certificate under Art. 134(1)(c). The fact that one of the many Assistant Commissioners in the State is convicted of the offence of taking a bribe does not make the case one of great public importance. Case law discussed. (Paras 8, 9) Cases Referred : Chronological Paras (14) Ibrahim v. The King : (AIR 1914 PC 155) 6 (17) 44 Cal 876 : (AIR 1917 PC 25 : 18 Cri LJ 471) 6 (43) AIR 1943 PC 211 : (45 Cri LJ 241) 6 (50) 1950 SCJ 143 : (AIR 1950 FC 80 : 51 Cri LJ 1057) 6 (50) AIR 1950 SC 169 : 63 Mad LW 875 6 (50) AIR 1950 Bom 380 : (52 Cri LJ 620) 5 (31) Ramanathan Chetti v. Audinatha Aiyangar : (AIR 1931 Mad 642) 5 (51) AIR 1951 Mad 721 : (1952 Cri LJ 95) 5 (50) AIR 1950 Ori 235 : (1952 Cri LJ 120) 7 (51) AIR 1951 Ori 261 : (52 Cri LJ 697(1)) 7 (51) AIR 1951 Ori 281 : (52 Cri LJ 832) 4 (1887) 12 AC 459 : (56 LT 615) 6 (1911) 1 KB 70 : (80 LJKB 76) 4 S.K. Venkataranga Iyengar, for Petitioner; Advocate-General, for the State. Judgement MALLAPPA, J. :- This petition is under Article 134 (1) (c) of the Constitution of India for the issue of a certificate by this Court that this is a fit case for appeal to the Supreme Court.

2. The petitioner, T.A. Bashiruddin Ahmed, was convicted of offences under Section 161, I. P. C., and Section 5(1) (d) read with Section 5(2) of the Prevention of Corruption Act, 1948, and his son the second accused in the case was convicted of abetting the said offences. On appeal, the convictions of both the persons under both the Sections have been confirmed but the sentence in the case of the first accused is reduced to six months rigorous imprisonment for each offence, sentences being ordered to run concurrently. However, the sentence of fine with respect to the offence under Section 5(1) (d) read with Section 5(2) of the Prevention of Corruption Act is set aside but with respect to the offence under Section 161, I.P.C., is confirmed.

3. The petitioner was the Rent Controller, an officer of the grade of an Assistant Commissioner, and the case against him was that he recieved Rs. 400/- as illegal gratification in order to show favour in four cases pending before him. According to the prosecution case, he did so with the assistance of his son, the second accused. It is contended on behalf of the petitioner that the case mainly depends upon the evidence of the person who actually offered the bribe and as such it should not be lightly accepted. There could be no doubt about this aspect of the matter and in the course of the judgment it has been observed that the accused are entitled to ask in a case of this kind that the evidence should be scrutinized with care and accepted with caution. The evidence of the witness has been accepted only as it is corroborated on material particulars. A good number of other circumstances have been relied on as circumstantial evidence corroborating the evidence of the person offering the bribe that money was offered and received as bribe. The statement of the accused is elaborate and it did not necessitate any further questioning of the accused on any material aspect of the case than what has been done.

4. A recent decision reported in VENKATA RAO v. THE KING, AIR 1951 Orissa 281 was brought to our notice to show how in a similar case it was held that it was unsafe to convict the accused on the evidence of decoy witnesses only unless there is some independent evidence, either direct or circumstantial to prove his guilt. It must be remembered that unlike that case, there is in this case circumstantial evidence corroborating the prosecution case. Moreover, the learned Judges who decided that case took care to add as follows : "We shall not, however, be understood to say that no prosecution can be based upon police traps of the kind. I should agree, with great respect with the observation of Lord Alverstone, C.J., of England, in the case of the KING v. MORTIMER, (1911) 1 KB 70 : "The particular transaction of which evidence is given was the result of a police trap. and though I do not like the police traps, any more than any one else, still it is only fair to remember that it is almost impossible to detect this class of offence in any other way."

5. It is not however on points of kind that this court can give a certificate that the case is fit for appeal to the Supreme Court. It is no doubt true that some points of law have been raised in the case. But there is hardly any case in which points of law do not arise for consideration and it cannot be said that every case in which some points of law are raised deserves a certificate under Article 134(1) (c) of the Constitution of India. The words of this article are analogous to the provisions of Section 109 (c) of the Civil Procedure Code. As observed by Govinda Menon, J., in NARAYANA v. KESAPPA, AIR 1951 Mad 721 : "In interpreting S. 109(c), C. P. C., in RAMANATHAN CHETTY v. AUDINATHA AIYANGAR, (AIR 1931 Mad 642) Venkatasubba Rao and Madhavan Nair, JJ., have laid down that the existence of a question of law of some difficulty is not a sufficient ground for certifying the case to be a fit one for appeal to the P. C. unless it is of general and public importance. The learned Judge, Madhavan. Nair, J., discussed a large body of case law and came to that conclusion. Is there a question of law of some difficulty and sufficient importance in this case? Probably, it might be stated that the question we have to decide is of some importance because of the construction of S. 145(4) Cr. P. C., but we do not feel that it is a matter of any great difficulty." This observation was made in spite of the fact that there had been sharp divergence of judicial opinion on the construction of Section 145 (4) Cr. Procedure Code which was under consideration in that case. As observed by Gajendragadkar, J., in the case reported in W.H. KING v. EMPEROR, AIR 1950 Bom 380 "The mere fact that the petitioner raises a point which may be a point of law does not in our opinion justify his claim for a certificate under Art. 134(1) (c). A mere point of law would not be enough even under Art. 133 (1) (c) of the Constitution. Sub-clause (c) under Cl. (1) of Art. 133 would require not only a substantial question of law, but something more. If that is so, we do not think that in dealing with Art. 134 we would be justified in construing Cl. (1) (c) more liberally in favour of the petitioner............ There is no conflict of judicial decisions on the point raised by the petitioner. It is true that in a large number of criminal appeals before this court points of law are raised. But we think it would obviously be contrary to the spirit and the letter of the provisions of Art. 134 (1) (c) of the Constitution to take the view that in every case where a point of law is raised the matter should be certified as a fit one for appeal to the Supreme Court."

6. In the case reported in KAPIL DEO SINGH v. THE KING, 1950 SCJ 143, Mahajan, J., who delivered the judgment of the Federal Court of India referred to the observations of their Lordships in some cases of the Privy Council, for showing in what cases the Federal Court could interfere in appeal in criminal cases and it may be useful to give an extract from that judgment : "In. IN RE ABRAHAM MALLORY DILLET, (1887) 12 AC 459 it was observed that Her Majesty would not review criminal proceedings unless it be shown that by a disregard of the forms of legal process or by some violation of the principles of natural justice or otherwise substantial and grave injustice has been done. In IBRAHIM v. THE KING, AIR 1914 PC 155, it was observed that the ground for His Majestys interference in criminal matters is the violation of the principles of natural justice. In DAL SINGH v. EMPEROR, 44 Cal 876 the following observations were made on the subject : According to the practice of the Judicial Committee in dealing with an appeal in a criminal case, the general principle is established that the Sovereign in Council does not act in the exercise of the prerogative right to review the course of justice in criminal cases in the free fashion of a fully constituted Court of Criminal Appeal. The exercise of the prerogative takes place only where it is shown that injustice of a serious and substantial character has occurred. A mere mistake on the part of the Courts below, as for example, in the admission of improper evidence, will not suffice if it has not led to injustice of a grave character. Nor do the Judicial Committee advise interference merely because they themselves would have taken a different view of evidence admitted. Such questions are, as a general rule, treated as being for the final decision of the Courts below. * * * In GEORGE GFELLER v. THE KING, AIR 1943 PC 211 Sir George Rankin pointed out that for them to interfere with a criminal sentence there must be something so irregular or so outrageous as to shock the very basis of justice and that misdirection as such, even irregularity as such, will not suffice and that there must be something which in the particular case deprives the accused of the substance of fair trial and the protection of the law." The above extract is of some importance as this case has been referred to with approval in the judgment of the Supreme Court reported in PRITAM SINGH v. THE STATE, AIR 1950 SC 169 : 63 Mad LW part 30 page 875. The Supreme Court has in this case laid down that special leave should not be granted "Unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against."

7. The case reported in ARJUNA MISRA v. INDIAN UNION, AIR 1950 Orissa 235 is the only case relied on as one in which a certificate under Art. 134(1) (c) was granted and it is urged that the above circumstances cannot be said to have existed in that case. But it will be seen that it was not without hesitation that Narasimham, J., agreed with the opinion of Ray, C.J., in that case. Moreover, that was a case decided prior to the decision of the Supreme Court referred to above and the same Court took a more serious view of the law on the point when they refused to grant a certificate in the case reported in BANA BEHERA v. THE STATE OF ORISSA, AIR (38) 1951 Orissa 261 relying on the decision of the Supreme Court.

8. There should not only be in the case, substantial points of law but also exceptional and special circumstances in the case and it must also be shown that substantial and grave injustice has been done to enable the High Court to issue a certificate under Art. 134 (1) (c) of the Constitution of India. The fact that one of the many Assistant Commissioners in the State is convicted of the offence of taking a bribe does not make the case one of great public importance. It cannot be said in this case that any special or exceptional circumstances exist or that substantial or grave injustice has been done. In this view the petition stands dismissed.

9. VENKATA RAMAIYA, J. :- I agree and wish to add that in view of what has been expressed by me and a Division Bench of this Court while dealing with similar petitions, this case cannot be certified to be a fit one for appeal to the Supreme Court. This is not a case which falls under clause (a) or (b) of Article 134 of the Constitution of India by which the appeal is allowed in certain circumstances. The conditions necessary to be satisfied for a certificate under clause (c) are not specified but the need of a certificate implies that there should be something more than what is required for an ordinary appeal under the Code of Criminal Procedure. The several points enumerated in the petition are noticed and discussed by me in the judgment. Though some of these are pressed as arguable, there is, I think, no point of novelty or complexity such as to affect the decision in the case. The case itself is of a familiar kind which has arisen for consideration in other Courts as seen from the published reports and there is no peculiarity either in the materials relied upon for the purpose of the conviction or the rules of law bearing on the consideration of these. At any rate it is not shown that there is any seriously contentious point going to the root of the case or of special importance. The mere fact that questions of law are involved in the case does not entitle the accused to the certificate as that is a feature common to all cases. No objection was taken to the procedure or the charges with respect to which the accused were tried : nor is it shown that the accused were prejudiced by these. The petition is therefore to be dismissed. Petition dismissed. AIR (39) 1952 MYSORE 90 (C. N. 43) "Abdul v. Ramaiah" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) K. M. Abdul Subhan, Defendant-Appellant v. S. Ramaiah, Plaintiff-Respondent. Regular Appeal No. 115 of 1948-49, D/- 5 -11 -1951. (A) TORT - ATTACHMENT - Tort - Wrongful attachment - Suit for damages - Onus of proof. The onus of proving that the attached property belongs to a plaintiff who is claiming damages for wrongful attachment lies on him. But the amount of evidence which a Court would consider sufficient to discharge that burden would obviously depend upon the circumstances of each case. (Paras 4-5) (B) TORT - Tort - Damages - Interest by way of damages. Interest by way of damages or compensation could only be awarded when the principal or corpus is withheld and usually follows a decree for the latter. It is to be calculated upto the date when such principal or corpus is delivered. Even on the analogy of mesne profits, which is the nearest parallel, it can only be granted at the time when the claim for the principal sum or corpus is adjudicated upon. (Paras 8-9) (C) TORT - ATTACHMENT - Tort - Wrongful attachment - Attachment amounting to trespass. Where the attachment is thoroughly improper and not bona fide in the sense that it was not made with any care or caution, though there may be no proof of malice, the attachment clearly falls within the meaning of trespass which has been defined as a wrongful act done in disturbance of possession of property of another or against his will. (Para 11) (D) TORT - TRESPASS - Tort - Trespass - What constitutes - Actionable wrong - Damages - Exemplary damages. To constitute a trespass, the act must in general be unlawful at the time when it is committed, and an act may be a trespass although it is committed by mistake or without malice. The commission of a negligent act may amount to a trespass though a person who has not been negligent can not be a trespasser in respect of any involuntary or inevitable accident. Trespass is an actionable wrong and a mere trespass is as a rule actionable only and not criminally though even bare trespass may be a criminal offence under certain special Acts. In an action of trespass the plaintiff, if he proves the trespass is entitled to recover damages even though he has not suffered actual loss; though, if the trespass is accompanied by aggravating circumstances, the plaintiff is entitled to recover exemplary damages. (Para 11) (E) TORT - TRESPASS - Tort - Trespass - Trespass on goods. Trespass on goods is an unlawful disturbance of the possession of the goods by seizure or removal by a direct act causing damage to goods, and the remedies available to a plaintiff against whom such trespass is committed is independent of his claims for other wrongs in respect of the property which are described as conversion or detention. Detenue is the form of action which lies when one person wrongfully detains the goods of another. The gist of the action is the unlawful failure to deliver them up when demanded. (Para 11) (F) TORT - ATTACHMENT - Tort - Wrongful attachment - Damages - Plaintiff failing to make out special damages - Right to claim damages in general way. Where the goods of the plaintiff are wrongfully attached and formally made over to the custody of the sureties under a surety bond and the defendant has not even made out that the attachment was effected "bona fide the plaintiff is entitled to claim damages in a general way, even if he fails to make out the special damages he has sought to recover. In fact the need for granting nominal damages arises only where the party has failed to make out any grounds for the award of special damages. Case law discussed. (Para 16) Cases Referred : Chronological Paras (1863-66) 10 Moo Ind App 563 : (5 WR 91 PC) 12, 16 (38) AIR 1938 Cal 563 : (179 Ind Cas 298) 16 (49) AIR 1949 Cal 457 : (83 Cal LJ 338) 3, 4-5, 15 (36) AIR 1936 Lah 524 : (17 Lah 668) 13 (38) AIR 1938 Lah 334 : (180 Ind Cas 938) 13, 16 (40) AIR 1940 Lah 21 : (ILR (1940) Lah 191) 15 (12) 35 Mad 598 : (12 Ind Cas 507) 14 (27) 50 Mad 866 : (AIR 1927 Mad 801) 16 (48) AIR 1948 Ngp 118 : (ILR (1947) Nag 827) 15 (30) AIR 1930 Rang 273 : (127 Ind Cas 465) 13

92 ER 126 : (2 Ld Raym 938) 13 A.R. Somanatha Iyer and M.K. Sreenivasa Iyengar, for Appellant; M. Ramachandra Rao, for Respondent. Judgement VASUDEVAMURTHY, J. :- The plaintiff brought a suit in the Court of the Additional Subordinate Judge, Chikmagalur, for the recovery of Rs. 10,000/- as damages or compensation in respect of an attachment before judgment obtained by the defendant on certain timber. The Subordinate Judge has decreed the suit for Rs. 5,930/- and the defendant has appealed.

2. The plaintiffs case is that on 18-9-1946 the defendant, with the intention of causing trouble and loss to the plaintiff and in order to lower him in the estimation of others, had got wrongfully attached before judgment certain timber of the plaintiff worth about Rs. 23,800/- and that he had obtained that order on the strength of an affidavit containing a false allegation that the timber belonged to one Savandappa against whom he had filed a suit in the same Court for damages. The plaintiff had entered into an agreement with one Puttappa to deliver to him 3000 C. ft. out of those logs before the end of September 1946, that he could not fulfil that contract and had to pay some agreed liquidated damages to him in consequence, that the timber had also fallen in value and that he had suffered by way of loss on his investment. The defendant pleaded that he had filed a suit for the recovery of Rs. 5,500/- against Savandappa and had got the timber in question, which really belonged to Savandappa, attached before judgment on proper and sufficient grounds and that the plaintiff was merely a writer of Savandappa and was not the owner of the logs. He further pleaded that the damages claimed were remote and that the plaintiff was not either in fact or in law entitled to any damages. The plaintiff filed a reply wherein he specifically pleaded that he had purchased the timber from one Dr. Ammanna of Tarikere on 25-2-1946 as evidenced by a bill given by Dr. Ammanna and that the plaintiff, knowing the circumstances, had still got it attached as belonging to Savandappa.

3. The learned Subordinate Judge has held that the timber belonged to the plaintiff and that he had purchased it from Dr. Ammanna. Before us Mr. Somanath Iyer, learned Counsel for the Appellant, had argued that that finding of the learned Judge is not correct. He contends that the evidence in the case is altogether too meagre for establishing the plaintiffs ownership of the logs. He urges that neither the plaintiff nor Savandappa, who has been examined as P. W. 8, have produced their accounts and that Ammanna, who is alleged to have sold the logs to the plaintiff, has not been examined. He further urges that the omission to examine Ammanna with reference to the accounts is fatal to the plaintiffs case : and in support of that contention he has strongly relied on a case reported in BAJRANG LAL v. SITA RAM, AIR 1949 Cal 457. He has pointed out that there is some discrepancy as regards who actually cut and removed the logs from the estate and deposited them in the Electric Colony grounds at Tarikere and that the plaintiff has not got P. T. marks affixed to those logs which he ought to have done if he was their owner. He has relied strongly on the evidence of D. W. 2, a Municipal Clerk, to show that the plaintiff, who is admittedly known as writer Ramiah, was merely a servant of Savandappa. There is no doubt that the plaintiff has not placed before the Court either the best or all the evidence that he could have done to prove his ownership of the logs. But in the circumstances of the case, however, it must be remembered that the defendant came forward with a specific case that the timber belonged to Savandappa and not to the plaintiff and he had also attached them on that basis. Savandappa came before the Court and repeated what he had already stated on previous occasions and in connection with the claim petition which the plaintiff had filed in Miscellaneous Case No. 9 of 46-47 that he did not claim the timber as his own and that it really belonged to the plaintiff. The burden on the plaintiff of proving that the timber did not belong to Savandappa was thereby substantially reduced. (His Lordship discussed the evidence and proceeded :) 4-5. The case in BAJRANG LAL v. SITARAM, AIR 1949 Cal 457 at p. 461 can be easily distinguished. In that case, the person who was said to be the owner and as (sic. on?) whose goods the attachment had been effected was not examined. But, in the present case, Savandappa has been examined and he has supported the plaintiff. Mr. Somanath Iyer urges that that decision lays down that the onus of proving that the attached property belongs to a plaintiff who is claiming damages for wrongful attachment lies on him. There is no doubt it is so, but the amount of evidence which a Court would consider sufficient to discharge that burden would obviously depend upon the circumstances of each case. In this case, the defendant has let in absolutely no evidence to prove that the timber belonged to Savandappa. (His Lordship discussed further evidence and held that the attached timber belonged to the plaintiff. His Lordship then proceeded :) 6-7. The next question that arises for consideration is the one relating to damages. The plaintiff has claimed Rs. 4,800/- as damages at Rs. 3/- per C. ft. on 1600 C. ft. of teakwood logs which he had contracted to supply to Puttappa, P. W. 5; Rs. 2,000/- as being the fall in price of the timber at Rs. 1-8-0 per C. ft; and Rs. 2,856/- being interest at 1 per cent per mensem on the value of the attached timber from 18-9-1946, the date of attachment, upto the date of suit on 19-9-47. The learned Subordinate Judge has awarded in respect of the first part of the claim damages of Rs. 3,900/- on a quantity of 1300 C. ft. of timber which he has held the plaintiff had to purchase in the market to make up the quantity to be supplied to that witness. (His Lordship after discussing the evidence came to the conclusion that the plaintiff was not entitled to damages claimed by him. His Lordship then proceeded :) 8-9. The third item of claim for interest by way of damages upto the date of suit is similarly difficult to grant. Interest by way of damages or compensation could only be awarded when the principal or corpus is withheld and usually follows a decree for the latter. It will have to be calculated upto the date when such principal or corpus is delivered. Even on the analogy of mesne profits, which is the nearest parallel, it can only be granted at the time when the claim for the principal sum or corpus is adjudicated upon.

10. It is, however, contended by Mr. Ramachandra Rao, learned Counsel for the Respondent, that though the plaintiff may not be able to recover damages as claimed he can and must still be awarded some damages for the attachment of his timber before judgment. He urges that the defendant has been reckless and shown a total lack of bona fides in securing the attachment of the plaintiffs goods as belonging to Savandappa. He has referred us to his evidence, where he has admitted that he had not seen the estate and does not know personally who its owner is. He has let in no evidence in this case to prove affirmatively that the timber belonged to Savandappa. The timber was attached in the absence of the plaintiff and apparently in spite of the information given by P. W. 5, the Patel of Tarikere that the timber really belonged, not to Savandappa, but to the plaintiff. The worth of timber has been clearly undervalued in Ex. U, the attachment list. The plaintiff has valued it at about Rs. 23,800/- and the Court has found, on a full discussion of the evidence, that it is worth at least Rs. 16,932/-. Judged by the quantities and the rates current at the time, the finding of the learned Judge is apparently very much nearer the truth than the one in Ex. U. The attached timber was delivered over to two sureties under Ex. BB dated 18-9-46, the sureties being no others than Jainulabuddin, a son of the defendant, and one Syed Dastagir Husseni, a plaintiff in another suit against Savandappa and others. The plaintiff has gone to the extent of saying that his son was not a surety though he admits that Ex. BB reads as if his son was also a co-surety and that Dastagir was not his agent but used to see that his timber was carted and hire received from a long time. He says he was not present from the beginning to the end when the timber was attached though he has apparently signed the attachment list and now chooses to depose that as far as he remembers he has not done so. He has conceded that one Mr. Philips told him that the logs belonged to Savandappa though he did not give any details, but that he did not enquire either of Savandappa or from the timber merchants at Tarikere how Savandappa got the timber nor has he summoned Mr. Philips. In these circumstances, it must be held that the attachment was thoroughly improper and not bona fide in the sense that it was not made with any care or caution though it may be that there is no proof of malice on the part of the defendant in so doing.

11. Mr. Somanath Iyer has argued that in the circumstances the attachment affords no ground for any damages unless special damage is proved. Whatever may be the right of the plaintiff to recover damages or compensation for the detention of the timber which may be available to him against either the defendant or the sureties or both, we think that in law the plaintiff is entitled to recover damages for the wrongful attachment. Such attachment clearly falls within the meaning of trespass which has been defined as a wrongful act done in disturbance of possession of property of another or against the person of another against his will. To constitute a trespass, the act must in general be unlawful at the time when it is committed, and, an act may be a trespass although it is committed by mistake or without malice. The commission of a negligent act may amount to a trespass though a person who has not been negligent cannot be a trespasser in respect of any involuntary or inevitable accident; see Halsburys Laws of England, 2nd Edition, Vol. 33, para 1. Trespass is an actionable wrong and a mere trespass is as a rule actionable only and not criminally though even bare trespass may be a criminal offence under certain special Acts. In an action of trespass, the plaintiff, if he proves the trespass is entitled to recover damages even though he has not suffered actual loss; see para 25 ibid, though, if the trespass is accompanied by aggravating circumstances, the plaintiff is entitled to recover exemplary damages; ibid para 25. Trespass on goods has been described as an unlawful disturbance of the possession of the goods by seizure or removal by a direct act causing damage to goods, and the remedies available to a plaintiff against whom such trespass is committed is independent of his claims for other wrongs in respect of the property which are described as conversion or detention; see para 81, Vol. 33. Detenue is the form of action which lies when one person wrongfully detains the goods of another. The gist of the action is the unlawful failure to deliver them up when demanded.

12. In a very early case reported in MUDHUN MOHAN v. GOKUL DOSS, 10 Moo Ind App 563, the Privy Council had to consider a case where some indigo belonging to the plaintiffs was wrongfully attached under a decree in a suit brought against, third parties. The plaintiffs claimed special damages. It was found that no damages had been actually sustained by the plaintiffs by reason of the attachment. It was contended for the plaintiffs that the attachment and seizure were illegal and had been on that ground withdrawn by a Court of competent authority and that the amount claimed as damages or at least some damages ought to have been awarded by the Court independently of any proof of special damages thereby sustained. Their Lordships of the Privy Council observed that the attachment was wrongful. They pointed out that they were not prepared to allow that even if there was no evidence in the action on which the Court below might have awarded some damages on account of the loss sustained the plaintiff could have recovered nothing. They observed that the plaint in the case might have been more accurately drawn but substantially it sought the damages generally as consequent on the wrongful attachment of the factory. "The principle ordinarily applied to action of tort is," they went on to say "that the plaintiff is never precluded from recovering ordinary damages, by reason of his failing to prove the special damage he has laid, unless special damage is the gist of the action. Thus in an action of slander for words actionable per se, when the plaintiff lays special damages, and fails to prove it, he is nevertheless entitled to such damages as the jury think right to give him. It would be otherwise, if the words were not actionable per se." In the case before them, the gist of the action was not the special damage, but the unlawful attachment; and the plaintiff was not precluded from recovering ordinary damages for that actionable wrong, even if he had wholly failed to prove special damage laid. They ultimately granted a decree for Rs. 500/- as damages in plaintiffs favour.

13. In MAUNG AUNG KIN v. MAUNG LU SAUNG, AIR 1930 Rang 273, where a person moved the insolvency Court to appoint an ad interim Receiver to seize certain paddy crops as the property of his debtor knowing that they belonged to the plaintiff, it was held that the act was in the nature of trespass to property because there was an unlawful interference with the exercise of the property rights of the plaintiff and that he could claim damages. In JAWAHAR MAL v. PUNJAB NATIONAL BANK LTD., AIR 1936 Lah 524, it has been held that a person whose goods have been attached and who has succeeded in getting a declaration for the release of the goods from attachment is entitled to claim indemnity for the wrongful attachment even without proof that the defendant had resisted his claim maliciously or without probable cause. If the goods have been sold away under the Courts order the difference in the market value of the goods at the time of their attachment and the price when they were sold, the selling price having fallen intermediately, must be added to the damages; and it is sufficient in such case if the plaintiff merely proves that such property was in his custody because possession is always good as against a wrong-doer. In MUHAMMAD DIN v. SANT RAM, AIR 1938 Lah 334 which was also a case of wrongful attachment of property, the plaintiff was held entitled to nominal damages if no actual damages were proved. For this, reliance was placed on the principle stated by Holt, C.J., in ASHBY v. WHITE, 92 ER 126 as follows :- "A damage is not merely pecuniary but an injury imports a damage when a man is thereby hindered of his right..................... So a man shall have action against another for riding over his ground though it may do no damage in the invasion to his property and the other has no right to go there."

14. Mr. Somanatha Iyer, learned Counsel for the Appellant, has relied on NANJAPPA CHETTIAR v. GANPATILI GOUNDAN, 35 Mad 598. This was a suit for damages for attachment before judgment by a defendant whose property had been attached, and. it was held that in such a case he was bound to prove want of reasonable and probable cause for applying for the attachment as well as malice in fact. Malice was, however, described as an improper or indirect motive and that no hatred or enmity was required. There is, however, no doubt that if the plaintiff was not such defendant those considerations do not apply.

15. The next case on which reliance is placed for the Appellant is SAIN DAS v. UJAGAR SINGH, AIR 1940 Lah 21 where it was observed that though in the case of injuria sine damnum, nominal damages are usually awarded and this principle is applicable to cases of trespass of immoveable property, when there has been unjustifiable intrusion on property in possession of another, the rule cannot be extended to every case of attachment of property irrespective of the circumstances. In that case, the attachment was of some immoveable properties and it was held, on the evidence, that the attachment had been made bona fide and on sufficient grounds and was withdrawn at the creditors own request at a very early stage of the proceedings without any interference with the possession of the person aggrieved by the attachment, and in those circumstances the principle of injuria sine damnum did not apply. The facts of that case are, therefore, clearly distinguishable from those of the present, though it must be observed that it is difficult to accept the rather broad proposition that it has laid down in that case that in cases where once injury in law has been established the Court can refuse to award at least nominal damages. Even in BAJRANG LAL v. SITARAM, AIR 1949 Cal 457, which has been relied on for the Appellant for another purpose, it has been pointed out that in such cases where goods not belonging to the judgment-debtor but somebody else is attached, there is a difference between the law in England and in India as regards the legal consequence and that in India if the seizure of the goods by the bailiff in attachment turns out to be not of the goods of the judgment-debtor the responsibility is of the execution creditor and he is answerable to the true owner of the goods seized for damages for wrongful attachment. In BIHARILAL KUNJILAL v. MT. ANJIRABAI, AIR 1948 Nag 118 it has been held that a party to a suit is liable in damages for trespass to property though he acts innocently or mistakenly or inadvertently, if by his or by his agents or attorneys order the officer of the Court takes goods of the wrong person, a stranger in execution. In such a case proof of malice is not necessary when the property of a stranger, and not of a party to a suit, is taken in execution. In the present case, there is no doubt that the goods were wrongfully attached and formally made over to the custody of the sureties under the surety bond Ex. BB; and as already observed the defendant has not even made out that the attachment was effected bona fide.

16. Mr. Somanath Iyer contends that the plaintiff having claimed damages under certain heads cannot now claim damages in a general, way. In RAJENDRA NARAYAN v. BHAIRABENDRA NARAYAN, AIR 1938 Cal 563, where interest on mesne profits was reduced by the appellate Court, the respondent was held entitled to urge that the profits may be assessed at a higher figure if the evidence supported it, provided the total did not exceed the amount decreed by the lower Court and vice versa as interest was an integral part of mesne profits. Such a course involved no challenge to a different right or a different cause of action adjudicated against him by the lower Court; see also SRIRANGA THATHACHARIAR v. SRINIVASA THATHACHARIAR, 50 Mad 866 which is to a similar effect. In the plaint the plaintiff has alleged that the defendant with the evil intention of causing, trouble, loss, mental worry, loss of money, damage etc., to himself and in order to lower him in the estimation of others had got the timber attached before judgment. No doubt he has relied in the plaint on his contract with Puttappa and calculated his damages by reference to the three circumstances as already set out. It cannot be said that by so doing he has waived or lost the right to be awarded some damages even if he fails to make out the special damages he has sought to recover. In fact the need for granting nominal damages arises only where the party has failed to make out any grounds for the award of special damages: MUHAMMAD DIN v. SANT RAM, AIR 1938 Lah 334 and MUDHUN MOHAN v. GOKUL DOSS, 10 Moo Ind App 563 (P C). Taking into account, that in this case the defendant has got some very valuable timber of the plaintiff who is a trader attached in spite of the Patels warning that it belonged to the latter and the other circumstances in the case which we have enumerated we think we may properly award Rs. 500/- as damages against him.

17. In the result, the judgment and decree of the Court below are modified and there will be a decree in plaintiffs favour for Rs. 500/- with proportionate costs and current interest from the date of suit. As neither party has succeeded in full in this appeal, they will bear their own costs in this Court. Decree modified. AIR (39) 1952 MYSORE 94 (C. N. 44) "Viswanathan v. Abdul" MYSORE HIGH COURT Coram : 2 BALAKRISHNAIYA AND MALLAPPA, JJ. ( Division Bench ) R. Viswanathan and others, Appellants v. S. Abdul Wajid and others, Respondents. Regular Appeals Nos. 22 and 23 of 1950-51, D/- 23 -11 -1951. (A) Civil P.C. (5 of 1908), S.11 - RES JUDICATA - Heard and finally decided - Held on facts that objections raised by judgment-debtors were already raised and finally decided. On a difference of opinion between the judges of a Division Bench, the question was referred to a Full Bench consisting of three judges. Objection was taken before the Full Bench as to the competency of two of the judges to hear the appeal. The grounds of the objection were that one of them had already expressed an opinion as a member of the Division Bench and the other had dealt with a probate matter connected with estate of plaintiffs. Similar objection was also raised in petn. for review of F. B. judgment. This point was also incidentally concerned with certain connected proceedings disposed of by the Supreme Court. In execution of the decree for costs of the appeal the same objections as to the constitution of the Full Bench were taken and overruled. Review of the order was also dismissed on the ground that no review lay. The judgment-debtor did not appeal against the original order dismissing the objections. The objections were raised in the appeal against the order dismissing the review application : Held that the objection about the incompetency of the Judges was expressly or by implication rejected in all the proceedings before the High Court as also the Supreme Court. Besides, the order of the executing court, overruling the said objections was rendered conclusive as no appeals had been preferred therefrom. In any view of the matter, the said contentions were untenable. (Para 3) Anno : Civil P. C., S. 11, N. 111, 118. (B) Mysore High Court Act (1 of 1884), S.15(3) - HIGH COURT - APPEAL - Reference under, to Full Bench valid - Subsequent accession of State to Union of India - Effect of signing of Instrument of Accession - Constitution of Full Bench in accordance with S.98(3) Mysore Civil P.C. held not invalid for not being in accordance with Indian Civil P.C. - When reference was heard, Indian Code held had not come into operation. Civil P.C. (5 of 1908), S.98. Mysore Civil P.C. (3 of 1911), S.98(3). Upon a difference of opinion between the judges constituting Division Bench the case was validly referred to a Full Bench under S. 15(3) Mysore High Courts Act. It was however contended that by the time the appeals were heard by the Full Bench the Mysore Civil P. C. and the High Court Act were superseded by the Instrument of Accession which required the application of the laws then existing in the Dominion of India and that according to the Indian Civil P. C. the constitution of the Full Bench was invalid and that therefore the decision of the Full Bench was null and void : Held, after considering the relevant provisions of the Instrument of Accession of 9-8-1947 and the supplemental agreement of 1-6-1949, that the ruler of the State had indeed accepted the Civil Procedure Code as one of the matters in respect of which the Dominion Legislature might make laws for the State. The proviso to the supplemental agreement of Accession only reserved power by the Union to enact laws enumerated in the concurrent list at a future date till which time the law of State was to prevail. This proviso did not support the contention that in the absence of reservation, the Indian law was to prevail over the State law. Even otherwise, the proviso could only mean that the law of the state would have been reserved for consideration having received the assent of the Governor-General for such reservation and hence the operative clause that the law of the State shall prevail in the State, should make the then existing law of the State to prevail till the Dominion Legislature enacted further legislation with respect to the same matter. The subsequent amended Code of Civil Procedure passed by the Dominion Legislature Act, II of 1951 was made applicable to the whole of India and was brought into effect in the Mysore State on and from 1st of April 1951. Till the amended Civil Procedure Code was brought into operation in this State, the then existing Civil Procedure Code of the State was the law which was applicable and the constitution of a Full Bench in pursuance of Section 15 (3) of the Mysore High Court Act read with Section 98(3) of the Mysore Civil Procedure Code was perfectly valid. (Para 4) Anno : Civil P. C., S. 98, N. 3. (C) Civil P.C. (5 of 1908), S.47 - DECREE - EXECUTION - Decree binding - In absence of exceptional circumstances, e.g. touching the jurisdiction of the Court passing the decree, the executing Court cannot go behind the decree. (Para 5) Anno : Civil P. C., S. 38, N. 8; Civil P. C., S. 47, N. 78. (D) Mysore High Court Act (1 of 1884), S.15(3) - HIGH COURT - It was usual in Mysore and other High Courts, for the judge referring case to Full Bench, to sit as member of Full Bench. (Para 9) N.R. Raghavachariar and M.L. Venkata Narasimhian, for Appellants; S.V. Subramanyam, for Respondents. Judgement BALAKRISHNAIYA, J. :- These two appeals arise out of the order passed on I.A. No. IV in Ex. Cases Nos. 106 and 107 of 49-50 on the file of the District Judge, Civil Station, Bangalore. The amounts claimed in the execution petitions represent costs awarded to the defendants in the proceedings culminating in the regular appeals of this Court. The objections of the judgment-debtors contained in I.A. No. I characterise the decrees under execution as a nullity on the ground of their having been passed by a tribunal, two of the Judges of which were not competent to hear the appeals and as such the decrees are wholly void, without jurisdiction and unenforceable. The trial Court overruled the objections on 19-12-1949 and directed execution to proceed. On 22-2-1950, the judgment-debtors filed the application, for review, under consideration (I.A. No. IV), in both the cases under Section 151 and Order 47, Rule 1 of the Civil Procedure Code. The grounds urged in the said petition may be outlined as follows. This Court i.e. the executing Court rejected the application (I.A. No. I) of the judgment-debtors on 19-12-1949 without hearing the Counsel and without a considered order which is an appealable one and that the question regarding the validity of the decree is a very important one depending upon the competency and the constitution of the Tribunal. The judgment-debtors prayed that the Court may be pleased to review the order overruling the objections and to pass a considered order after hearing the Counsel. The learned District Judge held that the executing Court could not review the order passed by itself on 19-12-1949, much less was it competent to question the validity of the decree passed by the Full Bench of this Court.

2. The history of the litigation leading up to the execution petitions under consideration may briefly be outlined thus. The judgment-debtors as plaintiffs in the trial Court had obtained decrees against which R.A. No. 104 and R.A. No. 109 of 47-48 were filed in the High Court. The Division Bench that heard the appeals having differed in their opinions, the appeals were referred to a Full Bench on 2-4-1949 for disposal. One of the Judges that constituted the Division Bench was in the constitution of the Full Bench. The Full Bench allowed the appeals with costs. Thereupon the plaintiffs applied for review of the judgments of the High Court in C.Ps. Nos. 61, 62, 49 and 50 of 49-50 all of which were dismissed. The execution petitions from which the present appeals arise are for the recovery of the costs awarded to the defendants in the regular appeals of this Court.

3. Sri Raghavachariar, the learned Counsel for the appellants, raised two contentions : the first regarding the competency of the Judges composing the Full Bench and the next about validity of the constitution of the Full Bench and argued that the decrees under execution are void and unenforceable for either or both the reasons. In relation to the first contention, it was argued that the two out of the three Judges that composed the Full Bench were not competent to hear and dispose of the appeals, the incompetency consisting in this that one of them had dealt with a probate matter connected with the estate of the plaintiffs and that the other had expressed an opinion in the Division Bench. This question of incompetency had been raised during the course of arguments in the regular appeals and also in the review petitions dealt with by this Court. The learned Counsel for the appellants also admitted that this point was incidentally concerned in certain connected proceedings disposed of by the Supreme Court. The question about incompetency of the Judges was thus expressly or by implication rejected in all the proceedings before this Court as also the Supreme Court. Besides, the order dated 19-12-1949 of the learned District Judge, overruling the said objections is rendered conclusive as no appeals had been preferred therefrom. In any view of the matter, the said contention is untenable.

4. The more important is the second point which relates to the validity of the constitution of the Full Bench of this Court to deal with these regular appeals. Section 15 (3) of the Mysore High Court Act runs thus - "When a Bench of the High Court consists of only two Judges and there is a difference of opinion between such Judges on any material question pending before it, such question shall be disposed of in the manner prescribed in S. 98 of the Code of Civil Procedure...................or, at the direction of either of the Judges composing the Bench, it shall be referred to a Full Bench and the decision of the majority of the Judges on such Full Bench shall be the decision of the High Court. " The Full Bench was constituted in pursuance of the said provision and was not disputed at the time of reference; the cases were governed by Section 15 (3) of the Mysore High Court Act and consequently the reference was in order. It is now contended that by the time the appeals were heard, the Mysore Civil Procedure Code and the High Court Act were superseded by the Instrument of Accession which requires the application of the laws then existing in the Dominion of India. The Instrument of Accession was executed by His Highness in pursuance of the Indian Independence Act of 1947 on the 9th day of August 1947 and accepted on 16-8-1947 to take effect from 1st June 1949. A supplemental agreement was signed on 1st June 1949 and was accepted by the Central Government on 23-6-1949. It is agreed that Clause (1) of the Instrument of Accession declares accession of Mysore State to the Dominion of India : Clause (3) accepts matters specified in the Schedule thereto to the Government of India Act as matters in respect of which the Dominion Legislature may make laws for this State. Clause (8) of the Instrument of Accession declares as follows : - "Nothing in this Instrument affects the continuance of my sovereignty in and over the State, or, save as provided by or under this instrument, the exercise of any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in the State." Clause (2) of the Supplementary Instrument of Accession makes a substitution for Clause (3) of the Instrument of Accession. The portion of the substituted clause as is necessary while considering the present subject-matter runs as follows :- "I accept all matters enumerated in List I and List III of the VIIth Schedule to the Act as matters in respect of which the Dominion Legislature may make laws for the State" to which three provisos have been added. The second proviso runs as follows : "Provided further that where a law of this State with respect to one of the matters enumerated in the said List III contains any provisions repugnant to the provisions of an earlier Dominion Law or an existing Law with respect to that matter, then if the Law of this State having been reserved for the consideration of the Governor-General of India has received the assent of the Governor-General, the law of the State shall prevail in this State; but, nevertheless, the Dominion Legislature may at any time enact further legislation with respect to the same matter." List III of Schedule VII to the Government of India Act contains subjects in which the Provincial and the Federal Legislatures have concurrent power to make laws. The Indian Civil Procedure Code is subject No. 4 in Part I of List III which by Clause (3) of the Instrument of Accession is accepted to be a matter in which the Dominion Legislature may make laws for the State. It is argued that Section 98 of the Civil Procedure Code in this State is different from that of the Indian Code. The proviso to Section 98 of the Indian Code is omitted in the State Code of Civil Procedure. According to the Indian Code, the proviso to Section 98 states that if the Judges composing a Bench differ in opinion on a point of law, they must state the point of law upon which they differ and the appeal then shall be preferred upon that point only by one or more of such Judges and such point shall be decided according to the opinion of the majority (if any) of the Judges who heard the appeal including those who first heard it. In respect of the procedure fixed in this proviso. Section 15 (3) of the Mysore High Court Act prescribes that in case of difference of opinion of the Judges composing a Bench, the case shall be referred to a Full Bench for disposal. It is argued that the provisions of State Code are repugnant to those contained in the then existing law of Dominion and the law repugnant can only be put in force if it has received the assent of the Governor-General for continuance. But since the Civil Procedure Code of the State has not received such assent, the earlier Dominion law or the existing law should have been applied. The procedure thus followed in the constitution of the Full Bench is invalid and the decision of the Tribunal so constituted is a nullity for all purposes. I am unable to accept this contention. The Ruler of the State has indeed accepted the Civil Procedure Code as one of the matters in respect of which the Dominion Legislature may make laws for the State. The proviso to the supplemental agreement of Accession only reserves power by the Union to enact laws enumerated in the concurrent list at a future date till which time the law of the State shall prevail. This proviso cannot help the appellants to support the contention that in the absence of reservation, the Indian law shall prevail over the State law. Even otherwise, the proviso could only mean that the law of the State will have been reserved for consideration having received the assent of the Governor-General for such reservation and hence the operative clause - the law of the State shall prevail in the State - shall make the then existing law of the State to prevail till the Dominion Legislature enacts further legislation with respect to the same matter. In this connection, it may be useful to examine Section 107 of the Government of India Act, 1935, as the second proviso under consideration is substantially similar to Clause (2) of Section 107. Sub-Section (1) lays down that - "If any provision of a Provincial law is repugnant to any provision of a Federal law which the Federal Legislature is competent to enact or to any provision of an existing Indian Law with respect to one of the matters enumerated in the Concurrent Legislative List, then, subject to the provisions of this section, the Federal law, whether passed before or after the Provincial law, or as the case may be, the existing Indian law shall prevail and the Provincial law shall, to the extent of the repugnancy, be void." Sub-section (2) provides exception to Sub-section (1) and runs thus - "Where a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List contains any provision repugnant to the provisions of an earlier Federal law or an existing Indian law with respect to that matter, then, if the Provincial law, having been reserved for the consideration of the Governor-General or for the signification of His Majestys pleasure has received the assent of the Governor-General or of His Majesty, the Provincial law in that province prevail, but nevertheless the Federal Legislature may at any time enact further legislation with respect to the same matter." Clause (1) of Section 107 of the Government of India Act does not find a place in the Instrument of Accession and viewed from that point, the existing Indian law cannot prevail over the existing State law until the Dominion Legislature further enacts with respect to the same matter. It can, therefore, be said that the law and the provisions of which are repugnant to the existing Indian law has been reserved for consideration with the assent of the Governor-General and the law of the State shall continue to prevail subject only to the Dominion Legislature enacting further laws with respect to the same matter. This interpretation gains support by the provision of the Adaptation of Laws Order, 1950 issued on 26th January 1950 which declares that the existing State law which immediately before the appointed day was a law in force in any province or part thereof, until repealed or amended by a competent legislature or other competent authority is in force subject to the adaptations directed in this order. If the law of the State had been superseded by the Instrument of Accession, there was no necessity either to refer or declare in respect of an existing State law to prevail in the Adaptation Order or in Art. 372 of the Constitution. Article 372 of the Constitution also provides that all the laws in force in the territory of India immediately before the commencement of the constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. The subsequent amended Code of Civil Procedure passed by the Dominion Legislature Act II of 1951 is made applicable to the whole of India and was brought into effect in this State on and from 1st of April 1951. I have little or no hesitation in holding that till the amended Civil Procedure Code was brought into operation in this State, the then existing Civil Procedure Code of the State was the law which was applicable and the constitution of a Full Bench in pursuance of Section 15 (3) of the Mysore High Court Act read with Section 98 (3) of the Civil Procedure Code was perfectly valid, and the contention of the learned Advocate should therefore fail.

5. What then remains to see is whether the objections put forward by the judgment-debtors in relation to the execution proceedings and the orders passed thereon are tenable on other grounds. The order on I.A. No. 1 dated 19-12-1949 has become conclusive as no appeal was preferred therefrom. The order passed on the review petition I.A. No. IV is not appealable. As stated above, the objections merely relate to the competency of the Judges and the validity of the constitution of the Full Bench. The executing Court cannot go behind the decree save in exceptional circumstances. We find no such exceptional circumstances touching the jurisdiction of the Court or otherwise.

6. The appeals therefore fail and are dismissed, parties bearing their own costs.

7. MALLAPPA, J. :- These two appeals have been filed against orders in execution cases, 106 and 107 of 1949-50 on the file of the District Judge, Civil Station, Bangalore, dismissing applications (I.A. 4 in both the Execution cases) filed to review orders previously passed and to stay the execution cases.

8. The order in each of the two execution cases dismissing the applications filed for reviewing a previous order and to stay execution cannot, in appeal, be disturbed by this court and it is as such unnecessary to consider other points raised before this court.

9. As however, some points were argued before this court it may be desirable to refer to them. To understand the scope of the objections raised in this court and the lower court it is necessary to state a few facts. The petitioners contested the genuineness of a will executed by their father in probate proceedings taut it was held that the will was genuine. They then filed a suit not challenging the genuineness of the will but contending that the properties in respect of which their father had executed the will were joint family properties and he had no right to execute a will in respect of them. They succeeded in their suits but on appeal there was difference of opinion between Sri Balakrishnaiya and Sri Kandasami Pillai, JJ., who heard the appeal. As at that time (2-4-49) the Civil Procedure Code in Mysore, was applicable, the case was referred to a Full Bench by Balakrishnaiya, J., as it could be done under that Code. The petitioners then filed applications after applications for the postponement of the case pending decision of an application before Government for constituting a special Ad hoc Bench. The Government did not grant their prayer nor was there any good ground made out by the petitioners for constituting a special Ad hoc Bench. Venkataramaiya, J., had appeared for one of the parties when he was an advocate and Puttaraj Urs, J., had dealt with the case as a District Judge. A Full Bench consisting of the other three Judges was constituted and the case came up for consideration before it. The petitioners who were, respondents in that case filed an application I.A. 16, saying that one of the three Judges was the Judge who had referred their case to the Full Bench and that another had passed orders in the connected probate proceedings. As it was usual in this court and other High Courts for the Judge referring a case to the Full Bench to sit in the Full Bench, the objection had no meaning. The only point for consideration in the probate proceedings was whether the will was genuine or not, but that the genuineness of the will was not questioned in the Full Bench case by the petitioners. The only point before the Full Bench was whether the properties in respect of which the will had been executed were joint family properties or not. On this point there was no decision by any of the Judges constituting the Full Bench and there was nothing that was against their hearing the appeal. I.A. No. 16 was dismissed. After the Full Bench decision a review petition was filed. The only point urged at the time of argument in connection with the review petition was that the. Full Bench had no jurisdiction to hear or decide the case under the Civil Procedure Code in Mysore. The Full Bench held that it was competent to decide the case and dismissed the review petition. It may be added that an application for a writ was filed before the Supreme Court questioning the competency of this court, but the petitioner did not succeed even in this.

10. It is when these proceedings were going on that an application was filed before the executing court for stay of the execution. The only objection filed in the execution cases is that "The decree is a nullity having been passed by a tribunal, two of the judges of which were not competent to hear the appeal and as such it is wholly void, without jurisdiction and unenforceable". It will be noticed that the objection of the petitioners about the competency of the two Judges had been overruled before the case was decided and it is no wonder that the learned District Judge summarily overruled the objection and refused to stay the proceedings, as he cannot be said to be competent to decide again about the competency of the Full Bench, after that point had already been decided against the petitioners by this court and even otherwise the competency of the two Judges on the grounds already referred to cannot be questioned in execution proceedings. It must be pointed out however, that it is not against the orders overruling these objections on 19-12-1949 that the appeals have been filed and it may be added that the above objection about the competency of the two Judges was not also pressed before us at the time of the arguments in this case. What was however pressed was the competency of the Full Bench to decide the appeal. As the present appeals arise out of orders dismissing the applications for reviewing the previous orders and staying further proceedings, the point for consideration is whether the competency of the Full Bench which could have been urged in the objection statement filed in the execution cases but not urged, could be urged in review applications as a good ground for reviewing the previous orders. No attempt was made to show that there was any reason for the petitioners failure to urge this point also in their objection statements. It cannot be said that the learned District Judge had any good reason to review his previous order merely because an objection not taken in the objection statements of the petitioners was later on taken in the review petitions. Then again the competency of the Full Bench to hear the appeal has been questioned and an order has been passed by the Full Bench holding that the Full Bench was competent to decide the appeals. In view of this also, it cannot be said that the learned District Judge had power to review his previous order merely because the learned Advocate for the petitioners was subsequently able to discover another ground to question the competency of the Full Bench to decide the case. When the competency of the Full Bench was questioned on one ground, it was open for the petitioners to have questioned the same on the ground now urged and it is not correct to say that the learned District Judge was in the circumstances wrong in refusing to review the order previously passed by him or to stay further proceedings. The appeals against his order dismissing the applications for review and stay have therefore to fail. 10a. The new ground on which the competency of the Full Bench is questioned in the application for review filed before the District Judge is based on the fact that the second Instrument of Accession was signed by His Highness the Maharaja of Mysore in June 1949, that is before the Full Bench decision. It is contended that by this it was the Civil Procedure Code of India that was applicable and not the Civil Procedure Code of Mysore. It will be noticed that such a contention was not raised at the time the Full Bench heard the appeal or at the time the review petition was argued before the Full Bench when the question of competency of the Full Bench to hear the appeal on another ground was pressed. Numerous orders have been passed under the Civil Procedure Code of Mysore till it was superseded by extension of the Civil Procedure Code, India, under Act II of 1951. The point however now urged has reference to para 3 of the Second Instrument of Accession. The first part of para 3 of the Second Instrument of Accession merely states that His Highness the Maharaja of Mysore has accepted all matters enumerated in List I and List III of the Seventh Schedule to the Act as matters in respect of which the Dominion Legislature may make laws for this State. The Civil Procedure Code is included in List III. Para 3 merely says with respect to what, the Dominion legislature could, on and after that date, legislate and it does not refer to any change in laws existing at the time, without further legislation. The first proviso to it has admittedly no application. It is however the second proviso that is said to replace the Civil Procedure Code of Mysore by the Civil Procedure Code of India. According to that proviso : "Where a law of this State with respect to one of the matters enumerated in the said List III contains any provisions repugnant to the provisions of an earlier Dominion law or an existing law with respect to that matter, then, if the law of this State having been reserved for the consideration of the Governor-General of India has received the assent of the Governor-General, the law of this State shall prevail in this State, but nevertheless the Dominion Legislature may at any time enact further legislation with respect to the same matter". It will be seen that the principal clause states that "the law of the State shall prevail in this State", though it adds that in certain circumstances "the Dominion Legislature may at any time enact further legislation with respect to the same matter". There is nothing therefore in this proviso which states that "Where a law of this State with respect to one of the matters enumerated in the said List III contains any provisions repugnant to the provisions of an earlier Dominion law or an existing law with respect to the matter then." the existing law shall be void and that the Dominion law shall prevail. It is evidently in view of this that Act II of 1951 had to be thought of, with the result that from 1st April 1951 the Civil Procedure Code of India has become applicable to Mysore. It was urged that S. 107 of the Government of India Act, 1935. a portion of which, has been adopted in drafting the second Instrument, of Accession, may be read to understand the full scope of what is meant. Section 107 of the Government of India Act, 1935 is as follows : "1. If any provision of a Provincial law is repugnant to any provision of a Federal law which the Federal Legislature is competent to enact or to any provision of an existing Indian Law with respect to one of the matters enumerated in the concurrent Legislative List, then, subject to the provisions of this section, the Federal law, whether passed before or after the Provincial law, or, as the case may be, the existing Indian Law, shall prevail and the Provincial law shall, to the extent of the repugnancy, be void.

2. Where a Provincial law with respect to one of the matters enumerated in the concurrent Legislative List contains any provision repugnant to the provisions of an earlier Federal law or an existing Indian law with respect to that matter, then, if the Provincial law, having been reserved for the consideration of the Governor-General or for the signification of His Majestys pleasure has received the assent of the Governor-General or of His Majesty, the Provincial law shall in that Province prevail, but nevertheless the Federal Legislature may at any time enact further legislation with respect to the same matter." It will be noticed that clause (1) of section 107 clearly states that when there is inconsistency between the Federal laws and State laws the existing Indian law shall prevail and the provincial law to the extent of the repugnancy be void. This has not been introduced in the second Instrument of Accession. This omission evidently is to prevent any sudden change in law. The omission is very significant. Clause (2) of Section 107 of the Government of India Act, 1935 is similar to Second proviso to para 3 of the Second Instrument of Accession. That says where there is difference between the Provincial law and the Federal law, the Provincial law shall prevail in certain circumstances though the Federal Legislature has power to legislate with respect to the same matter. There is nothing in Cl. (2) of the Government of India Act, 1935 which says that the Federal law shall prevail without further legislation by Federal Legislature. It is cl. (1) of section 107 that states that when there is inconsistency between the Federal law and the State law. Indian Law shall prevail. But a similar provision has been very significantly omitted in the second Instrument of Accession relied on by the petitioners. There is thus no substance in the contentions raised on the application filed by the petitioners for review before the learned District Judge.

11. These points have been discussed as they were raised in the course of arguments, but it is necessary to state once again that this court cannot in appeal interfere with the orders of the lower court dismissing the applications filed in the execution case for the review of the orders passed previously and for stay of the proceedings. Appeals dismissed. AIR (39) 1952 MYSORE 99 (C. N. 45) "Kempe Gowda v. Lakkegowda" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND MALLAPPA, JJ. ( Division Bench ) Kempe Gowda, Defendant Appellant, v. Lakkegowda, Plaintiff Respondent. Appeal No. 154 of 1948-49 connected with Second Appeal No. 6 of 1949-50, D/- 28 -11 -1951. (A) Civil P.C. (5 of 1908), O.2, R.2 - CIVIL PROCEDURE - Reliefs not cognizable by same Courts - Effect. Order 2, R. 2 Clauses (1) and (3) are not limited in their operation to cases where of two reliefs open to a plaintiff on the same cause of action both are cognisable by the same Court. They are operative even when those reliefs taken separately and alone would be cognizable in different jurisdiction. Thus, where a plaintiff sets up two rights, one as owner and another as a prior mortgagee, and could have sought the relief of redemption of a subsequent mortgage in the capacity of owner, but omits to do so, he is deemed to have abandoned the claim in respect of redemption under O. 2, R. 2 and cannot bring another suit for redeeming the subsequent mortgage, notwithstanding the fact that the suit for redemption had to be filed in a Court of higher jurisdiction. AIR 1931 Mad 705 Relied on, AIR 1926 Pat 87 and AIR 1921 Lah 309, Ref. (Para 8) Anno : C. P. C., O. 2, R. 2, N. 7, 10, 14. (B) Civil P.C. (5 of 1908), S.9 - CIVIL COURT - ELECTION - Concurrent remedies - Election - Change of remedy not allowed. A party entitled to more than one relief cannot be allowed to shift his preference to one or the other from time to time. Such volte-face would be nothing short of what is termed as "blowing hot and cold" and the principle that a party cannot both approbate and reprobate applies to him. (1819) 1 Swan 409, Ref. (Para 9) Anno : C. P. C., S. 9, N. 63, Pt. 4. (C) Transfer of Property Act (4 of 1882), S.82 - MORTGAGE - Rate of contribution - Valuation of property - Liability on other properties should be taken into account. .

19 All 545 and AIR 1917 All 357, Relied on. (Para 12) Anno : T.P. Act, S. 82, N. 6. Cases Referred : Chronological Paras (97) 19 All 545 12 (17) 38 Ind Cas 649 : (AIR 1917 All 357) 12 (01) 25 Bom 161 : (2 Bom LR 864) 8 (21) AIR 1921 Lah 309 : (59 Ind Cas 966) 8 (31) AIR 1931 Mad 705 : (134 Ind Cas 803) 8 (26) AIR 1926 Pat 87 : (90 Ind Cas 622) 8 (1819) 1 SWAN 409 : (36 ER 443) 9 K.R. Sethu Rao, for Appellant; Mirte. N. Lakshminaranappa and M.S. Ranganathan, for Respondent. Judgement These appeals are the offshoots of the decision of this Court in S.A. No. 182 of 45-46 which arose out of a suit filed by the Respondent for a declaration of his right to and possession of the plaint schedule properties and in the alternative for a decree for sale on the foot of a mortgage deed marked Exhibit J. The facts which are not in dispute are fully stated in the judgment of that appeal and need only be briefly referred to, to appreciate the points in controversy.

2. The lands involved in this litigation formerly belonged to the family of one Venkata Rao and his sons. One of the sons of the said Venkata Rao filed a suit for partition of the family properties and during the pendency of the appeal preferred against the decree of the trial Court in that suit, a settlement appears to have been arrived at between the members of the family on the one hand and the creditors on the other. The terms of the settlement were embodied in a document styled composition deed dated 1-7-1934, by which certain properties of the family are said to have been given to the respective creditors in discharge of their claims. One of such creditors was Chikka Nagappa and sons to whom monies were due under three separate deeds of simple mortgage for satisfaction of which the suit properties besides others are said to have been absolutely transferred. Subsequent to the mortgages in favour of Chikkanagappa these properties were mortgaged with possession to P.S. Rama Rao. Defendant as assignee of this mortgage is in possession of the properties. The plaintiff as transferee from Chiknagappa sued defendant for possession of the properties, alleging that the mortgage debt of Rama Rao was satisfied by the composition deed and plaintiff was owner thereof. As an alternative to this relief, he claimed payment of the amount due under one of the three simple mortgage deeds Exhibit J executed in favour of Chikkanagappa. The defendant contended that the composition deed cannot be treated as a conveyance and, in any case, since Rama Rao did not consent to the composition it does not affect his rights under the possessory mortgage. Rejecting these contentions the trial Court granted a decree for possession. The learned Subordinate Judge, on appeal, dismissed the suit in toto but this Court disallowed the claim for possession of the properties on the view that Rama Rao was not bound by the composition and as such the defendant as assignee of the mortgage was entitled to be in possession of the properties but granted a decree with respect to the simple mortgage under Exhibit J by directing sale of the properties now in dispute in the event of the defendant not making payment of the amount to be fixed under Section 82 of the Transfer of Property Act by taking into account the amount due under the mortgage deed and the value of the suit properties and of others which were subject to the mortgage. In pursuance of this direction, the learned Munsiff held that the amount recoverable from the suit properties is Rs. 1,073/- and this is confirmed in appeal. The defendant has preferred S.A. No. 6 of 49-50 questioning the correctness of the amount fixed.

3. The other appeal R.A. No. 154 of 48-49 arises from a suit filed by the same plaintiff subsequent to the decision in the former second appeal for redemption of the mortgage effected in favour of Rama Rao and now assigned to the defendant. The plea of the defendant inter alia was that the suit was not maintainable by virtue of the claim and the decision in the former suit. The learned Subordinate Judge decreed the suit and the defendant has as in the other case appealed.

4. There is thus a decree for sale in one and a decree for redemption in another suit, the parties and properties relating to both being the same. Apparently both decrees cannot be given effect to as enforcement of one may render the other futile and unnecessary. If the properties are sold, redemption is not possible. If redemption is allowed, sale is not called for, as it is tantamount to plaintiff getting his own property sold for money due to him. The learned Subordinate Judge does not seem to have noticed the incongruity and. conflicting features of the situation but Sri Lakshminaranappa, learned counsel for the plaintiff-respondent, recognising these, expressed that plaintiff is satisfied if the decree for redemption is upheld. Sri Subba Rao on behalf of the Appellant argued that the decree for sale has become conclusive and that being so, the decree for redemption is legally unsustainable. The question therefore to be determined is as to which of the two decrees is to stand and which has to be set aside.

5. The plaintiff himself does not allege that the decree for sale which has become final is ineffective for any reason or that he has given up his rights under it. The only ground on which its executability is sought to be avoided is that decree for redemption is passed in a subsequent suit. It is curious that the person seeking this is the person who applied for and obtained the decree. Apart from this, the ground must disappear if the relief of redemption could not be granted in the later suit and the decree is not warranted.

6. To avoid multiplicity of suits, Rule I of Order 2 of the Code of Civil Procedure requires that a suit should be so framed as to afford ground for final decision upon the subjects in dispute and prevent further litigation concerning them. Rule 2(3) states : "A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he omits except with the leave of the Court to sue for all such reliefs he shall not afterwards sue for any relief so omitted." Sri Lakshminaranappa contended that the only question in the earlier suit was whether the mortgage to Rama Rao was subsisting and there was no consideration of anything relating to equity of redemption. He also argued that since the mortgage amount was beyond the pecuniary jurisdiction of the Munsiffs Court in which the first suit was filed, the doctrine of res judicata cannot apply to the suit now filed in the Court of the Subordinate Judge. The arguments advanced are plausible but cannot prevail.

7. It is not shown that apart from the composition deed there is any basis for the respondents to urge a right to redeem the defendants mortgage. The deed recites that in settlement of certain debts the suit properties and some others were given to respondents transferor. Relying on this the plaintiff claimed in the first suit to be the owner of the properties and as such entitled to possession thereof. Anticipating the contingency of Rama Raos mortgage being an impediment to his getting possession as owner he put forward an alternative claim on the foot of the prior mortgage and not a claim by virtue of his being owner to redeem Rama Raos mortgage in the event of its being found to be subsisting. In short, he wanted possession if possible without liability for any payment on his part or else recovery of the money due under a prior mortgage, alleging ownership for the purpose of the primary relief and to be the mortgagee as regards the alternative claim. He could claim the latter relief as Section 101 of the Transfer of Property Act enables a prior mortgagee to enforce his rights as such when it is to his advantage notwithstanding the fact of his having become the owner of the mortgaged properties.

8. Cause of action as has been pointed out in several cases means the facts necessary to be proved if traversed by defendant, for the plaintiff to succeed in his claim. All the facts and circumstances on the strength of which plaintiff now seeks redemption are exactly the same as those which existed at the time of the former suit. Having availed himself of the advantage of the exception to the rule of merger under the section the plaintiff now assumes the position of owner to insist upon defendant submitting to redemption. I do not think that plaintiff can be allowed to adopt this course now. The plaintiff set up two rights in the first suit one as owner and another as a prior mortgagee. He could not as prior mortgagee enforce redemption of defendants mortgage, the rule being "Redeem up, foreclose down", but there was no hindrance to his seeking redemption in the capacity of owner. As was pointed out in GOVIND HARI v. PARASHRAM MAHADEO, 25 Bom 161 : "Section 43 (replaced by O. 2, R. 2 of the present Code) is directed against two evils : the splitting of claims and the splitting of remedies : If a man omits from his suit a portion of his claim he shall not afterwards sue in respect of it : if he omits one of his remedies he cannot afterwards pursue it." By his failure to seek redemption in the first suit, the plaintiff must be deemed to have abandoned or relinquished his claim with respect to it under Order II, Rule 2 of the Code of Civil Procedure. The plaintiff cannot escape this consequence because the suit for redemption has to be filed in a Court of higher pecuniary jurisdiction than that competent to try the suit for possession based on title or for sale in enforcement of the simple mortgage. This is a factor which has a bearing on the question of res judicata but does not take away the bar imposed by Order II, Rule 2, C. P. C. As observed by Pandalai, J., in RAMA RAO v. VENKAYAMMA, AIR 1931 Mad 705 "Order 2, R. 2 and Clauses 1 and 3 are not limited in their operation to cases where of two reliefs open to a plaintiff on the same cause of action both are cognisable by the same Court. They are operative even when those reliefs taken separately and alone would be cognizable in different jurisdictions." The fact that the reliefs were claimable in the alternative cannot prevent the application of the said rule. See RAM AUTAR v. SHANKAR DAYAL, AIR 1926 Pat 87 and HARNAM SINGH v. BHOLA SINGH, AIR 1921 Lah 309. The plaintiff ought to have asked for redemption in the first suit and filed it in a Court of competent jurisdiction to try it and he cannot be permitted to evade the operation of Order 2, Rule 2 by adopting a different course. Sri Lakshminaranappa has not cited any cases or referred to any statutory provision in support of the claim under circumstances such as those presented in this case. Instances of successive claims for redemption referred to by him are not of help as this is not a case of that kind but is a case in which redemption was not claimed at all though it was possible in a prior suit and the present claim is inconsistent with the relief which has been obtained.

9. Another objection to the suit for redemption is that a party entitled to more than one relief cannot be allowed to shift his preference to one or the other from time to time. It seems to me that the respondent having made the choice and exercised the option of enforcing his right as mortgagee in preference to that of owner cannot now change his ground. Such volte-face would be nothing short of what is termed as "blowing hot and cold" and the principle that a party cannot both approbate and reprobate applies to him. In GRETTON v. HAWARD, (1819) 1 Swan 409*, Plumber. M. R. observed * The passage is taken from the notes after the report of the case. - Vide page 451 of 36 E. R. "The instances in which Courts of law have applied the maxim ............He is not to be heard who alleges things contradictory to each other are instances of inconsistent titles whether to the same subject or different subjects, the assertion of one title being incomplete without a negation of the other. It is a maxim not of morality but of logic and compels elections between claims in respect not of the injustice, but of the technical impracticability, of their contemporaneous assertion."

10. The sufficiency of the composition deed to convey titles was also disputed by the Appellants counsel. It has to be noticed that debts running to thousands of rupees payable to several persons are settled in the deed by conferring on them rights of ownership on different items of properties and that if there were deeds of conveyance the stamp duty payable is far more than what is prescribed for a composition deed. If as contended for respondent the deed is effective in transferring rights of ownership to several persons in several properties it would be a cheap substitute for a number of sale deeds and the provisions of the stamp act for payment of duty on conveyances could be easily circumvented. Sri Lakshminaranappa learned Counsel for Respondent argued that in view of the recitals in the deed being clear and the deed being registered, the requirements of a sale are satisfied. In the appeal filed by the Appellants against the decree of the trial Court allowing the claim of respondent to be declared owner of the properties the learned Subordinate Judge held that the composition deed could not be construed as conveying rights of ownership and dismissed the suit. Notwithstanding the terms of the document and the fact of registration, I think, the question whether it can be relied upon as a completed sale of several properties in favour of several persons is open to doubt. Since the appeal is to be allowed for reasons already mentioned, there is no need to further deal with this.

11. I would therefore allow the appeal and dismiss the suit for redemption with costs throughout. Cross-objections are dismissed without costs.

12. S.A. 6 of 49-50 : In S.A. No. 6 of 49-50 the only point for consideration is whether the amount which the two Courts have fixed as being recoverable from the suit properties is correct. For determination of the amount, the Courts below have relied on the agreement of parties concerning the total extent of properties which should bear the liability for the mortgage debt and its market value. As some of the items are in possession of the plaintiff himself in pursuance of the composition deed, proportionate value of these has to be deducted from the mortgage debt and the balance only to be held recoverable from the items in defendants possession. In estimating the value of properties in plaintiffs possession for this purpose allowance is made for the amounts payable under other mortgages in favour of the plaintiff and subtracting such amounts from the market value of these the remainder is taken into account. The Appellant contends that the prior encumbrances on the properties which are not included in the suit but which are subject to the mortgage should not have been taken into account while fixing the amount recoverable from the properties in the possession of the Appellant. Both Courts have held that this is not possible and Section 82 of the Transfer of Property Act prior to the Amendment which governs this case supports this view. HARI RAJ SINGH v. AHMAD-UD-DIN KHAN, 19 All 545 and GOPAL DAS v. DURGA SINGH, 38 Ind Cas 649 (All) are directly in point. In the former case it was held that "In calculating the amount to which the plaintiff was entitled by way of contribution he was bound to take into account the liability which existed on most of the villages........." and in the latter as follows : "The law as to rights under the two mortgages is very clearly set forth in Section 82 of the Transfer of Property Act. The liability of property A was to be ascertained by finding the value of property but from the value of property T should be deducted the amount of liability of property T under the earlier mortgage." Sri Subba Rao has not cited any case which takes a different view or drawn our attention to any provision laying down a different principle. The second appeal is dismissed with costs. As a consequence of this the cross-objections filed by the plaintiff are dismissed but without costs. Order accordingly. AIR (39) 1952 MYSORE 102 (C. N. 46) "Gurupada v. Mysore Govt." MYSORE HIGH COURT Coram : 1 VENKATA RAMAIYA, J. ( Single Bench ) Gurupada Mudaliar, Surety-Petitioner, v. Government of Mysore, Complainant-Respondent. Criminal Revn. Petn. No. 103 of 1951-52, D/- 24 -12 -1951. Criminal P.C. (5 of 1898), S.514 - BAIL - APPEARANCE - PRACTICE AND PROCEDURE - Bond for appearance - Forfeiture - Procedure. There is a difference between a bond taken for appearance of accused and a bond for the purpose of S. 106 etc. As regards the latter, some evidence is required to show that conditions under which or events on the happening of which the bond can be forfeited exist. In the case of a bond for appearance the Court by its own observation is able to see whether the person concerned is present or absent. No independent proof is necessary for this and it is a meaningless formality to take evidence of an obvious fact. The surety is of course entitled to an opportunity to offer explanation for non-appearance and show that the default was not wanton or wilful and such as may be excused or condoned. (Para 3) Where in pursuance of a notice to show cause why the bond should not be forfeited the surety appeared but failed to furnish any reason for the non-appearance of the accused and thereupon the court ordered the bond to be forfeited. Held that the procedure was not defective and was in compliance with S. 514. AIR 1929 Pat 658 and AIR 1939 Rang 427 Foll. AIR 1929 Pat 643, Not Foll. AIR 1928 Cal 261, Dist. (Para 3) Anno : Cr. P. C., S. 514, N. 2, 7. Cases Referred : Chronological Paras (28) AIR 1928 Cal 261 3 (29) AIR 1929 Pat 643 : (31 Cri LJ 420) 3 (29) AIR 1929 Pat 658 : (31 Cri LJ 605) 3 (39) AIR 1939 Rang 427 : (185 Ind Cas 614) 3 H. Srinivasa Rao, for Petitioner; A.R. Somanatha Iyer Advocate General, for the Government. Judgement The petitioner was surety for appearance of the Accused in C.C. No. 2699 of 50-51 on the file of the City Magistrate, Bangalore. Owing to repeated absence of the accused the case had to be adjourned a number of times. Warrants issued to secure his attendance were returned unserved and proclamation was ordered. The accused then appeared but, after prosecution witnesses were examined, charge was framed and the witnesses were summoned for further cross-examination as desired by him again absented himself with the result that the further proceedings were inevitably postponed. On 7-3-1951 the Court ordered issue of non-bailable warrant to the accused and notice to the surety to show cause why the bond should not be forfeited. On the next date the surety alone turned up. The learned Magistrate after noting that the surety was unable to explain as to why the accused was absent made an order that the bail bond for Rs. 200/- executed by him was forfeited in entirety. The appeal preferred against this order to the District Magistrate being dismissed the surety has applied to this Court under Section 439 of the Code of Criminal Procedure for revision of the said orders.

2. Sri Srinivasa Rao on behalf of the petitioner urged that the procedure adopted for forfeiting the bond is defective as notice was not issued to the surety in accordance with section 514 of the code. His contention is that there should have been a second notice after forfeiture and the grounds of forfeiture should have been recorded after taking evidence. Section 514 states "whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken ...............or when the bond is for appearance before a Court to the satisfaction of such Court, that such bond has been forfeited the Court shall record the grounds of such proof and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid."

3. There is difference between a bond taken for appearance of accused and a bond for the purpose of Section 106 etc. As regards the latter, some evidence is required to show that conditions under which or events on the happening of which the bond can be forfeited exist. In the case of a bond for appearance, the Court by its own observation is able to see whether the person concerned is present or absent. No independent proof is necessary for this and it is a meaningless formality to take evidence of an obvious fact. The surety is of course entitled to an opportunity to offer explanation for non-appearance and show that the default was not wanton or wilful and such as may be excused or condoned. In this case the surety was given this opportunity but he failed to furnish any reason for the absence. There is therefore no force in the objection alleged by the petitioner. Sri Srinivasa Rao cited ZULMI KAHAR v. EMPEROR, AIR 1929 Pat 643 in support of his argument. The decision is that of a single Judge and no doubt in favour of the petitioner. In the same volume a contrary view is expressed by another Judge of the same Court at page 658, RAJBANSI BHAGAT v. EMPEROR, AIR 1929 Pat 658. To the same effect is KUMARAPPAN v. THE KING, AIR 1939 Rang 427. In my opinion, the view taken in these cases has to be preferred to that in the case cited for the petitioner. MON MOHAN v. EMPEROR, AIR 1928 Cal 261 is distinguishable as it related to a proceeding under Section 110, Criminal Procedure Code.

4. It was next argued that the amount forfeited may be reduced. The surety did not put forward before the trial Court any reason for this and progress of the case was hampered by repeated absence of the accused. The amount forfeited is not heavy and so I decline to interfere with the orders of the two Courts.

5. The petition is dismissed. Petition dismissed. AIR (39) 1952 MYSORE 103 (C. N. 47) "Rajagopalachar v. Mysore Govt." MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) G. Rajagopalachar and another, Petitioners v. Government of Mysore, Opposite Party. Civil Revn. Petn. No. 75 of 1951-52, D/- 27 -9 -1951. Mysore Legal Practitioners Act (3 of 1884), S.11 - ADVOCATE - BAR COUNCIL - GENERAL CLAUSES - Inquiry under - Subsequent extension of Legal Practitioners Act, 18 of 1879 and Bar Councils Act, 38 of 1926, to Mysore - Effect - Inquiry can be continued. Part B States (Laws) Act (1951), S.6. Legal Practitioners Act (18 of 1879), S.1 and S.41. Bar Councils Act (1926), S.1(3) and S.3, S.4, S.5, S.6, S.7, S.8, S.3, S.9, S.10,S.11,S.12, S.13, S.14,S.15, S.16. General Clauses Act (10 of 1897), S.6. Though the Legal Practitioners Act, 1879, and the Bar Councils Act, 1926, have been extended to the State of Mysore with effect from 1-4-1951 by the Part-B States (Laws) Act 1951, the provisions of the Legal Practitioners Act except Ss. 1 and 2 and the provisions of the Bar Councils Act except Ss. 1, 2, 17, 18 and 19 cannot come into force in the Mysore State unless there is a notification of the Provincial Government extending those provisions in the State of Mysore. Since there is no such notification S. 41, Legal Practitioners Act, and Ss. 3 to 16, Bar Councils Act, can have no application in Mysore. (Paras 4, 6) An enquiry into the conduct of a legal practitioner started before District Judge on 7-7-50 under S. 11, Mysore Legal Practitioners Act, 1884, is not affected in any way by the extension of these Acts to Mysore and the enquiry can be continued in view of the express provisions of S. 6 of the Part B States (Laws) Act, 1951. (Para 8) Cases Referred : Chronological Paras (30) 9 Mys LJ 262 7 (34) 12 Mys LJ 311 7 M.P. Somasekhara Rao, for Petitioners; A.R. Somanatha Iyer, Advocate General, for the State. Judgement This revision petition has been filed under Section 151 of the Code of Civil Procedure, Section 10 of the Mysore High Court Act and Art. 227 of the Constitution of India, against an order of the District Judge, Bangalore, refusing to stay an enquiry that is being conducted by him in Miscellaneous case No. 134 of 50-51. The enquiry which was ordered on 7-7-50 is being made under Section 11 of the Mysore Legal Practitioners Act, III of 1884, against the two petitioners who are advocates of this court practising in Tumkur and Bangalore respectively.

2. For the petitioners their learned Counsel, Mr. M.P. Somasekhara Rao contends, that the Bar Councils Act of 1926 and the Legal Practitioners Act of 1879 have been since extended to Mysore by the Part B States (Laws) Act of 1951. The effect of such extension of these Acts is, according to him, that the Mysore Legal Practitioners Act has ceased to be in force in Mysore and the present enquiry which was ordered by this Court under that Act can no longer be continued as the Bar Council is now the only body which can enquire into cases of professional misconduct by virtue of Section 10 of the Bar Councils Act; and the same has not yet been formed in Mysore. It is further urged that even if the Indian Bar Councils Act is held not to be in force in Mysore under the proviso to Section 41 of the Legal Practitioners Act of 1879 an advocate is entitled to an opportunity of defending himself before the High Court which enrolled him before he can be punished under that section.

3. We think there is no force in these contentions. The Part B States (Laws) Act, III of 1951, which received the assent of the President on February 1951 and which provides for the extension of certain laws into Part B states was to come into force on such date as the Central Government may by notification in the Official Gazette direct. Both the Legal Practitioners Act, VIII of 1879, and the Indian Bar Councils Act, XXXVIII of 1926, are among those specified in the schedule to that Act which are to be and have been so extended to Mysore with effect from 1-4-1951. But when we come to examine those Acts it is found that only certain provisions of those Acts came into effect immediately in Mysore by virtue of the provisions of the Part B States (Laws) Act which may be referred to as the "extending Act" on the day to be appointed by a Central Governments notification, and that the rest of the provisions of those Acts would operate in Mysore and have effect only after certain other formalities have been gone through under those Acts.

4. Section 1 of the Legal Practitioners Act, XVIII of 1879, declares that that Act shall come into force on the first day of January 1880 and that section and section 2 shall extend to the whole of British India which of course would now mean the Indian Union. The rest of Act. however, is to come into effect only in certain territories specified in that section but any other Provincial Government may from time to time by notification in the official Gazette, extend all or any of the provisions of the Act to the whole or any part of its territories. Section 2 merely relates to interpretation and definition of certain terms in the Act. There has been admittedly so far no notification in the Mysore Gazette extending the other provisions of that Act into Mysore and until it is so done section 41 of that act can have no application in Mysore.

5. The position with regard to the Bar Councils Act is also similar. Under sub-section (2) to Section 1 of that Act. the Act extends to the whole of India and shall apply to the High Courts of Calcutta, Bombay, Madras etc., specified in that section and to such other High Courts as the President may by notification in the Gazette of India declare to be the High Courts to which the Act applies. Under sub-section (3), Section 1, and Sections 2, 17, 18 and 19 shall then come into force at once and the Provincial Government may by notification in the Official Gazette direct that the other provisions of the Act or any provisions thereof specified in the notification shall come into force in respect of any High Court to which this Act applies on such date as it may by notification appoint.

6. By the extending Act, sub-section (2) to Section 1 of the Bar Councils Act is extended to the whole of India, except the State of Jammu and Kashmir, and shall apply to every High Court of Part A States and of every Part B States other than the State of Jammu and Kashmir and to such Courts in Part C States as the Central Government may declare by notification. The effect of this substituted sub-section would no doubt be that the Act is applicable to the Mysore High Court. But as sub-section (3) to Section 1 of the Bar Councils Act is left untouched, there must be a further notification in the Mysore Provincials Gazette before the provisions of that Act other than Sections 1, 2, 17, 18 and 19 can come into force in Mysore. It is only under Sections 3 to 16 that the constitution and incorporation of the Bar Council and its powers, rights and duties are provided for and those provisions must be held to have not yet been applied in Mysore and cannot affect the present enquiry.

7. Moreover, it is only an enquiry that is being conducted before the District Judge according to the practice of this Court, and this Court will, as is usual in such cases, before taking any disciplinary action against the Legal Practitioners concerned give them full opportunity to represent their case and defend themselves in this Court. It has been held in DISTRICT MAGISTRATE, BANGALORE v. BHASHYAM IYENGAR, 9 Mys LJ 262 that even under Section 13 (b) of the Legal Practitioners Act, the High Court will only deal with a Legal Practitioner after such enquiry as it thinks fit. In IN RE BELUR SRINIVASA IYENGAR, 12 Mys LJ 311 it has been pointed out that the form of procedure in such cases is not of controlling importance so long as the essentials of fair notice and opportunity to be heard are present and that the Court has inherent power to apply such rules of procedure as may ensure a fair trial. This, we think is all that is contemplated even under Section 41 of the Legal Practitioners Act of 1879.

8. There is also a further and conclusive answer to the petitioners objections. Under Section 6 of the Extending Act it is laid down that "If immediately before the appointed day. there is in force in any Part B State any law corresponding to any of the Acts or Ordinances now extended to that State, that law shall, save as otherwise provided in the Act, stand repealed." But it is expressly provided in that section that the repeal shall not affect :- (a) the previous operation of any law so repealed or anything duly done or suffered thereunder, or (b) any right, privilege, obligation, or liability acquired, accrued or incurred under any law so repealed, or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed, or (d) any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed. There is also a similar provision of Section 6 in the General Clauses Act.

9. In the result this revision petition fails and is accordingly dismissed. Petition dismissed. AIR (39) 1952 MYSORE 105 (C. N. 48) "Muniamma v. Chikkaveeranna" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) Byappanahalli Muniamma, Plaintiff-Appellant v. Arale Chikkaveeranna and another, Defendants-Respondents. Regular Appeal No. 12/1948-49, D/- 26 -11 -1951. Mysore Co-operative Societies Act (7 of 1918) (as amended by Regulation 6 of 1933), S.43C - CO-OPERATIVE SOCIETIES - SALE - DECREE - EXECUTION - Position of Registrar and Revenue authorities - Sale subsequent to order of stay passed by Registrar - Legality - Obiter. Civil P.C. (5 of 1908), S.37 and S.38. Obiter : The Registrar of Co-operative Societies does not occupy the position of a Court passing a decree, nor do the Revenue authorities of an executing Court as contemplated by the Code of Civil Procedure. So also, the execution of an award passed under the Co-operative Societies Act on a certificate granted by the Registrar does not stand in the same position as the execution of a decree of a Civil Court for all purposes. Further, the Act nowhere provides for the Registrar passing orders subsequent to his granting the certificate with a view to control or govern the subsequent proceedings which may be taken in the Civil Court under the provisions of the Code of Civil Procedure or of the Revenue authorities under the Mysore Land Revenue Code. (Para 4) Consequently, the sale held by the Revenue authorities subsequent to the order of stay passed by the Registrar would not be a nullity. AIR 1943 Cal 319 and AIR 1952 Nag 185, Ref. to. (Para 4) Anno : C. P. C., S. 37, N. 1, S. 38, N. 1. Cases Referred : Chronological Paras (43) ILR (1943) 1 Cal 274 : (AIR 1943 Cal 319) 5 (39) 17 Mys LJ 470 4 (41) 21 Mys LJ 38 4

39 Mys HCR 547 6 (50) ILR (1950) Nag 942 : (AIR 1952 Ngp 185) 5 A.R. Somanatha Iyer, for Guhu Sreenivasa Rao, for Appellant; E. Kanakasabhapathi, for Respondents. Judgement VASUDEVAMURTHY, J. :- The Plaintiff, whose suit for a declaration, that a sale held by the Revenue authorities of the plaint schedule properties was a nullity, has been dismissed, has preferred this appeal. Her case is, that out of the four items set out in the plaint schedule, she bought item 4 and other properties from their previous owner one Subbarama Rao on 29-11-1935 subject to payment of a debt of Rs. 2,000/- due by the latter. In order to discharge that debt, she and her husband who is, however, said to have no interest in those properties mortgaged them without possession in favour of defendant 1 which is a Co-operative Society. Subsequently, some payments were made towards that debt and to recover the balance defendant 1 instituted proceedings before the Registrar of Cooperative Societies and obtained a decree in R. C. S. Dispute No. 7/40-41 for Rs. 2,844/-. The said decree was put in execution before the Revenue authorities and the plaint schedule items were brought to sale. At that sale item 4 was knocked down in the name of defendant 4 for Rs. 4,100/- and the other items were purchased by the Society itself. That sale is said to be a nullity for several reasons alleged in the plaint, the chief one among them and which is seriously pressed before this Court being that it was held by the Revenue authorities after an order of stay was passed by the Registrar of Co-operative Societies. The defendants denied that a stay order had at all been passed by the Registrar, and they pleaded that even if it were so the same would not be binding on the Revenue authorities; that the sale was duly held and confirmed and that the plaintiff could not question the same in a Civil Court in view of the terms of Section 221(c) of the Mysore Land Revenue Code. The defendants further pleaded that the suit was barred by time. The learned Subordinate Judge held that there were no irregularities whatsoever affecting the sale in question, and the plaintiff had not established any fraud in the conduct of the sale and, therefore, the suit was barred under Section 221(c) of the Mysore Land Revenue Code. He held that the suit was to be governed by Article 95 of the Limitation Act and as it had been brought more than 3 years after the sale, the suit was clearly barred by time. He, therefore, dismissed the suit.

2. In this Court, it is contended for the Appellant that the findings of the learned Subordinate Judge are not correct. It is urged that the Registrar of Co-operative Societies did as a matter of fact stay the sale and that the effect of such stay would be to render null and void any sale which may have been held by the Revenue authorities who were merely in the position of an executing Court so far as the decree passed by the Registrar was concerned. The argument is that the Registrar who corresponded with the Court which passed the decree having stayed the sale, the Revenue authorities had no jurisdiction at all to hold the sale which must, therefore, be held to be of no legal effect. (His Lordship considered the order of the Registrar and the evidence and concluded :)

3. We, therefore, agree with the learned Subordinate Judge that the sale was not actually at all stayed by the Registrar.

4. It is contended for the Appellant that the legal effect of the stay would be to nullify the subsequent sale. That question would not really arise in this case in the light of the finding of fact. But as the matter has been argued, we may, however, deal with the argument briefly. This same argument was advanced before the Government, and reliance was also placed upon an earlier Government Order of 4th April 1940 which was to the effect that in such cases the Registrar was in the position of a Court passing a decree vis-a-vis the Revenue authorities who were executing it and that the latter cannot refuse to stay execution if the decree-holder wants them to do so. The Government rightly observed that in the present case no such request had been made by the decree-holder and that the Registrars order showed that the decree-holder was to be consulted before granting time to the debtor. The Registrar does not, we think, really occupy the position of a Court passing a decree, nor do the Revenue authorities of an executing Court as contemplated by the Code of Civil Procedure. Under Sec. 43-A of the Mysore Co-operative Societies Act, VII (7) of 1918 as amended by Regulation VI (6) of 1933 any dispute touching the business of a society between it and its members shall be referred to the Registrar for decision. He may decide the dispute himself or transfer it for disposal to any person who has been invested by the Government with powers in this behalf or refer it for disposal to an arbitrator or arbitrators or refer the parties to a Civil Court. Under Section 43-C, every order passed by the Registrar or his nominee or arbitrator on disputes referred to him or them under Section 43-A shall be executed on a certificate signed by the Registrar by any Civil Court in the same manner as a decree of such Court or according to the law and under the rules for the time being in force for the recovery of arrears of land revenue on an application to the Deputy Commissioner accompanied by a certificate signed by the Registrar or by the Assistant Registrar. The Act nowhere provides for the Registrar passing orders subsequent to his granting the certificate with a view to control or govern the subsequent proceedings which may be taken in the Civil Court under the provisions of the Code of Civil Procedure or of the Revenue authorities under the Mysore Land Revenue Code. Section 43-B and similar provisions in the Co-operative Societies Act refer to his powers to order attachment in the nature of attachment before judgment to summon and examine witnesses in the same manner as in a Civil Court and other powers; but nowhere has power been conferred on the Registrar to control proceedings before the Civil Court or the Revenue authorities subsequent to the same passing under their ambit. That the execution of an award passed under the Co-operative Societies Act on a certificate granted by the Registrar does not stand in the same position as the execution of a decree of a Civil Court for all purposes is supported by the decisions of this Court in CITY CO-OPERATIVE BANK LTD., MYSORE v. M. NARASIMHIAH, 17 Mys LJ 470 and SHIMOGA CO-OPERATIVE BANK LTD. v. VEENA PUTTA JOIS, 21 Mys LJ 38.

5. It has been contended by Mr. Kanakasabapathy that the sale held by the Revenue authorities subsequent to the order of stay would not be a nullity. He has relied on a case reported in JATISH CHANDRA v. KHIRODE KUMAR, ILR (1943) 1 Cal 274 which has been followed in VYANKATRAO v. SHAMRAO, ILR (1950) Nag 942. In the latter case, it has been held that an order passed by a Court, or an act done by it, in contravention of an order by the appellate Court, staying the proceedings is irregular, and may even be illegal, but it is only an order passed or an act done in the illegal exercise of its jurisdiction and is not, therefore, a nullity. Unless it is set aside by appropriate proceedings, it cannot be ignored in another suit or other independent proceedings though it can be reviewed by the Court itself as it ought to when it is later on apprised of the stay order, or be set aside in appeal by the appellate Court which issued the stay order. We think there is considerable force in this contention.

6. The Court below has held that the suit is barred by limitation as well as Section 221 (c) of the Land Revenue Code. It is, however, contended by Mr. Somanath Iyer, learned Counsel for the Appellant, that the present suit is brought not for the cancellation of the Revenue sale but only for a declaration that the Revenue sale was null and void. 39 Mys HCR 547, is, however, clearly against him, and it has been held in that case that the bar contained in Section 221 (c) of the Land Revenue Code could not be removed merely by changing the phraseology of the section in the relief portion of the plaint in the civil suit.

7. We, therefore, see no grounds to interfere with the decision of the Court below. This appeal fails and is dismissed with costs. Appeal dismissed. AIR (39) 1952 MYSORE 106 (C. N. 49) "T. Gowda v. S. Gowda" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) Thammannagowda, Defendant-Appellant v. Shankarappagowda, Plaintiff-Respondent. Second Appeal No. 495 of 1948-49, D/- 24 -12 -1951. HINDU LAW - PARTITION - DECREE - Hindu Law - Partition - Suit for, on behalf of minor - Decree for mesne profits. Civil P.C. (5 of 1908), O.20, R.18. Whether severance of status in the case of a minor plaintiff can only be deemed to be effected from the date of the decree or such severance is effected from the date of suit is not a factor which is a conclusive test for the award of mesne profits. The person in possession of the family properties cannot escape liability if by his conduct and acts others entitled to participate in the enjoyment thereof are shut out. But the direction for ascertainment of mesne profits in execution proceedings is not correct as the enquiry is a proceeding relating to the suit. This does not, however, affect the defendants obligation. A direction for an enquiry into the profits of the common property received or realised by one of the parties during the pendency of the suit may be made even after the passing of the preliminary decree and there is nothing in O. 20, R. 18, C.P.C. interdicting such procedure: 42 Mys 439, AIR 1951 Mad 938 (FB), Rel. on. 28 Mys 257, disting. (Para 1) Anno : C.P.C., O. 20, R. 18, N. 1, 4. Cases Referred : Chronological Paras (47) AIR 1947 PC 189 : (50 Bom LR 628) 1 (25) 48 Mad 465 : (AIR 1925 Mad 717) 1 (51) AIR 1951 Mad 938 : (1951-52 Mad LJ 176 FB) 1

16 Mys LJ 406 1

16 Mys LJ 521 1

28 Mys 257 1

42 Mys 439 1

V. Krishnamurthy, for Appellant; Nitton Srinivasa Rao, for Respondent. Judgement VENKATA RAMAIYA, J. :- During the minority of respondent, a suit was filed on his behalf by his next friend for partition of the properties belonging to a joint family of which he was a member and for possession of his share A preliminary decree was passed granting a share in certain properties with a direction for payment of mesne profits by the persons in possession of the properties up-to-date of delivery after determination of the same in execution proceedings. The suit was filed on 28-3-1945 and the properties due to plaintiff were delivered on 7-2-1947. Mesne profits were claimed for the intervening two years. On a consideration of the evidence and the contentions of appellant, the learned Munsiff fixed the amount payable at a certain sum which on appeal by appellant is slightly reduced. There are thus concurrent findings about the amount which the appellant is liable to pay and we see no reason to disturb this. Sri Krishnamurthy on behalf of appellant argued that the claim with respect to one year prior to the date of the decree is untenable in view of the fact that severance of status in the case of la minor plaintiff can only be deemed to be effected from the date of the decree. 16 Mys LJ 406 and 116 Mys LJ 521 APPALASWAMI v. SURYANARAYANAMURTI, AIR 1947 PC 189 cited by him lend support to this, though it may be observed that in KRISHNASWAMI v. KULUKURUPPA, 48 Mad 465, such severance was held to have been effected from the date of suit. This is not a factor which is a conclusive test for the award of mesne profits. The appellant being in possession of the family properties cannot escape liability if by his conduct and acts others entitled to participate in the enjoyment thereof are shut out (See Mullas Hindu Law, 10th Edn. page 302). The direction for ascertainment of mesne profits in execution proceedings is not correct as the enquiry according to 42 Mys 439 is a proceeding relating to the suit. This does not however affect the defendants obligation since as held in BASAVAYYA v. GURAVAYYA, AIR 1951 Mad 938 at p. 942 "A suit for partition by a member of a joint Hindu family is substantially a suit for an account of the joint family properties on the date of the suit as well as all the profits received by the manager since that date, so that the profits should also be divided and his proper share given to him. If, as we think this is the true nature of the proceedings in a suit for partition, a direction for an enquiry into the profits of the common property received or realised by one of the parties during the pendency of the suit may be made even after the passing of the preliminary decree and there is nothing in Order 20, Rule 18, C. P. C., interdicting such procedure."

28 Mys 257 relied upon is not of help to Appellant as it is a case in which mesne profits were allowed to a minor Pltff. for the period prior to the decree though for the purpose of fixing his share, the death of another plaintiff after suit was taken into account. The appeal fails and is dismissed with costs. Appeal dismissed. AIR (39) 1952 MYSORE 107 (C. N. 50) "Kale Gowda v. Marigowda" MYSORE HIGH COURT Coram : 2 MALLAPPA AND VASUDEVAMURTHY, JJ. ( Division Bench ) Kale Gowda and others, Defendants Nos. 1 to 3-Appellants v. Marigowda, Plaintiff and another, Defendant No. 4-Respondents. Second Appeal No. 357 of 1948-49, D/- 24 -12 -1951. Limitation Act (9 of 1908), S.20(1) - LIMITATION - Person liable to pay debt. At a family partition after the death of the executant of a hypothecation bond of 10-6-26 the hypothecated properties were equally shared by his three sons K, B and L. But the responsibility for paying the debt was to be borne by L. In pursuance of this arrangement, L made payment in 1930 and after his death by his widow who also died on 26-11-34. In a suit for the recovery of principal and interest due on the hypothecation instituted on 14-11-46 against K and the widow of the executant : Held that L and his widow were persons liable to pay the debt within the meaning of S. 20 and therefore the payment made on 26-11-34 saved the suit from the bar of limitation : Case law discussed. (Para 4) Anno : Lim. Act S. 20, N. 14. Cases Referred : Chronological Paras (33) AIR 1933 Cal 826 : (147 Ind Cas 459) 3 (21) 44 Mad 971 : (AIR 1921 Mad 704) 4 (21) 44 Mad 544 : (AIR 1921 Mad 102) 4 (29) 56 Mad LJ 630 : (AIR 1929 Mad 419) 4 (38) AIR 1938 Mad 774 : (ILR (1938) Mad 968) 3 (38) AIR 1938 Mad 579 : (182 Ind Cas 468) 4 (41) AIR 1941 Mad 110 : (195 Ind Cas 235) 4

16 Mys LJ 198 5 S. Gundappa, for Appellants; Venkata Rao (for No. 1), R.V. Srinivasiah and H.K. Srinivasa Murthy (for No. 2), for Respondents. Judgement VASUDEVAMURTHY, J. :- The plaintiff brought a suit in the Court of the Munsiff at Hunsur for the recovery of Rs. 404/- due for principal and interest under a registered hypothecation bond dated 10-6-1926 executed by one Channegowda who is now dead. He left three sons Kalegowda, defendant 1, Boregowda, father of minor defendant 2 and another Lingegowda. Both Boregowda and Lingegowda are also dead. Lingegowda left behind him only his widow Narasamma who is also dead. Defendant 3 is the widow of Channegowda and defendant 4 is an alienee of a small portion of the mortgaged property from Narasamma.

2. Plaintiffs case is that at a family partition after the death of Channegowda between defendant 1 and his brothers the hypothecated properties were shared equally by the three brothers but the responsibility for paying the debt was to be borne by Lingegowda; and in accordance with this arrangement Lingegowda paid Rs. 144/- on 4-5-1930 towards interest and endorsed the same on the document. After his death, his widow and sole heir Narasamma sold a portion of her husbands property to one Devajamma and caused her to pay on 26-11-1934 Rs. 175/- towards interest and Rs. 957-towards principal and similarly got an endorsement made on the document. Defendants 1 to 3 denied knowledge of the payments and pleaded that the suit was barred by time. Defendant 4 similarly pleaded the bar of limitation and wanted that in the event of a decree being passed, the item of property sold to him may be proceeded against after the rest of the hypothecated properties were sold. The Munsiff held that the first payment towards interest made on 4-5-30 and the endorsement Ex. A-1 evidencing it were true. He, however, held that the second payment towards principal and interest said to have been made on 26-11-34 and Ex. A-2 evidencing it were not proved to be true or genuine and that it was not shown that Narasamma had made that payment. He, therefore, dismissed the plaintiffs suit which was brought on 14-11-46 as barred by limitation. On appeal, the Additional Subordinate Judge held that Ex. A-2 was genuine and evidenced payment towards principal and interest by Devasamma for and on behalf of Narasamma and that Narasammas thumb impression had also been taken to that endorsement thereby strongly supporting the genuineness of Ex. A-2 and the payment. He, therefore, reversed the judgment of the learned Munsiff and passed a decree in favour of the plaintiff as prayed for. This second appeal has been filed by defendants 1 to 3.

3. Mr. Gundappa, learned Counsel for the Appellants, does not question the finding of the Subordinate Judge about the genuineness of Ex. A-2 and the payment it evidences by Narasamma. But he contends that the same did not operate to save the bar of limitation. He argues that the payment falls within cl. (2) of section 21 as the same must be deemed to be by one of several joint contractors as referred to in that section. For this position he relies on a case reported in JIBAN KRISTA v. HARI NATH, AIR 1933 Cal 826. In that case the debt was due by two brothers and on a partition between them it was allotted to one of them. It was held that payment of interest by such brother would not save limitation as against the other brother unless there was an implied or express authority conferred by the partition arrangement to make such payment or interest. The latter portion of the headnote which has been stated above clearly distinguishes that case from the present which was clearly a case of only a payment by one of joint contractors. The next case he has referred to is PANGOUDAYA PILLAI v. UTTANDIYA PILLAI, AIR 1938 Mad 774. That case, however, merely lays down that a person who as manager of a family originally contracted a loan cannot keep it alive against the other members of the family even assuming that it is a debt binding on the family lay making payments towards the loan after partition has been effected between himself and those other members subsequently. That case is obviously therefore not applicable to the present case.

4. In the present case, the finding of the lower Appellate Court with which we entirely agree is that Lingegowda was made responsible for the debt and was directed and authorized by the other members to pay it up and it was in pursuance of such a direction or authorization that he and after him his widow made the payments. Lingegowda as well as his widow were persons liable to pay the debt within the meaning of Section 20 of the Limitation Act. That section provides that where principal or interest on a debt is paid by a person liable to pay the debt or by his agent duly authorized in this behalf, a fresh period of limitation shall be computed from the time when the payment is made; and as has been pointed out by Sadasiva Ayyar, J., in GOVINDASWAMI PILLAI v. DESAI GOUNDAN, 44 Mad 971 in construing the words "agent duly authorized" the Courts ought to be as liberal as possible provided the evidence of the payment is in writing binding the debtor. In that case after a decree for sale on a mortgage was passed in 1912, a part of the hypothecated property was taken up under the Land Acquisition Act and the Government paid the amount of compensation into Court to the credit of the suit and the same was paid to the decree-holder subsequently. When the payment was made the Judge signed a paper showing that payment was made in his presence and through Court. On the decree-holder filing an application for execution of the decree later on the judgment-debtor pleaded the bar of limitation. It was then held that the Judge should be deemed to have been an agent duly authorized by the judgment-debtor to make the payment and that the signature of the Judge on the paper showing the payment satisfied the condition that the fact of payment should appear in the handwriting of the person making it as required by Section 20 of the Limitation Act and saved the execution application from the bar of limitation. In PARTHASARATHI AYYANGAR v. EKAMBABA, AIR, 1938 Mad 579, one of the properties comprised in a mortgage deed was agreed to be sold by the mortgagor and it was stipulated that the purchaser should pay a certain sum to the mortgagee and have the mortgaged property released from the security. The mortgagee was a consenting party to this arrangement and simultaneously with the sale deed a release in respect of the property sold was executed by the mortgagee and the release deed recited that the amount of Rs. 1,500/- had been received as interest. In a suit brought by the mortgagee to recover the rest of the amount due on the mortgage, he relied on the payment by the purchaser to save his claim from the bar of limitation. It was held by the Madras High Court that the transaction amounted in law to payment of interest within Section 20, that the purchaser was a person liable to pay the debt and the payment by him took the case out of the statute and that at any rate the purchaser could be regarded as the mortgagors agent duly authorized to make the payment, and the payment by him saved the claim from the bar of limitation. For the latter position their Lordships referred to ASKARAM SOWCAR v. VENKATASWAMI NAIDU, 44 Mad 544 with approval. In NARASIMHA RAMA AIYAR v. IBRAHIM, 56 Mad LJ 630, the distinction between Section 19 and Section 20 of the Limitation Act is discussed and it is observed that co-heirs who become liable as such for the debt of a deceased do not come within the words of the section and that the extension of the sub-section by analogy to co-heirs is not warranted; see also in this connection C.K. KHUNJANDI v. CHINNAVAVA ROWTHER, AIR 1941 Mad 110 in which reference is made to this case and it has been held that where after the death of one of the joint contractors a payment is made by the other within the period of limitation, the payment does not save limitation against the heirs of the deceased joint contractor though a payment by an heir saves limitation against the other heirs. This last point does not fall for consideration in this case but has been referred to as Mr. Venkata Rao, learned Counsel for Respondent 1, has referred to an observation in it to the effect that reading Sections 20 and 21 together it would follow that a payment saves limitation against all the debtors unless the debtors are co-contractors.

5. Mr. Venkata Rao has referred to a case reported in 16 Mys LJ 198 where the distinction between Section 19 and S. 20 has been discussed and it has been held that while a fresh start of limitation accrues only against the person who makes the acknowledgment and his representative-in-interest and no others, in the case of a payment under Section 20, limitation is computed from the date of payment not only against the person who makes the payment but also against others who are liable to pay the debt.

6. As a result of the above discussion, we think that the payments made towards interest and principal as evidenced by Ex. A-2 clearly save the suit from the bar of limitation and that the decision of the learned Subordinate Judge is correct. This appeal, therefore, fails and is dismissed with costs. Appeal dismissed. AIR (39) 1952 MYSORE 109 (C. N. 51) "Devaraje Urs v. Ramakrishniah" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) N. Devaraje Urs, Defendant-Appellant v. M. Ramakrishniah, Plaintiff-Respondent. Second Appeal No. 638 of 1948-49, D/- 6 -12 -1951. Transfer of Property Act (4 of 1882), S.55 - SALE DEED - DEED - CONTRACT - LIMITATION - Stranger to contract - Right to sue - Registered sale deed - Vendee agreeing to pay vendors creditor portion of purchase money left in his hands - Suit by creditor - Limitation. Limitation Act (9 of 1908), Art.116. Contract Act (9 of 1872), S.2(d). A sold his house to B under a registered sale deed under the terms of which B was to pay a certain sum of money which was the balance of sale consideration left in his hands to As creditor, C. Subsequently B made part-payments to C out" of the consideration left in his hands informing C that they were in respect of the sale amount pertaining to the house and that the balance of the amount would be remitted immediately. B however failed to remit the remaining amount whereupon C sued B for recovery of the same. Held that the suit was maintainable. Though originally there was no privity of contract between B and C, B having subsequently promised to pay the amount, C was entitled to bring a suit against B for recovery of the amount. 34 All 63 (PC) Rel. on, AIR 1930 Mad 382 (FB) and 8 Mys LJ 489, Dist. : Case law Ref. (Para 7) Held further that the suit was governed by Art. 116 Limitation Act as the obligation to pay arose directly under the registered instrument : AIR 1914 Cal 129, Rel. on. (Para 8) Anno : Contract Act, S. 2(d), N. 12; T. P. Act, S. 55, N. 15, Pt. 7; Lim. Act, Art. 116, N. 2. Cases Referred : Chronological Paras (12) 34 All 63 : (39 Ind App 7 PC) 6, 7 (14) 41 Cal 137 : (AIR 1914 Cal 120) 7, 8 (18) 22 Cal WN 279 : (AIR 1918 Cal 941) 7 (30) 53 Mad 270 : 58 Mad LJ 420 : (AIR 1930 Mad 382 FB) 6, 7

8 Mys CCR 39 7

28 Mys CCR 218 7

28 Mys CCR 39 7

6 Mys LJ 576 : 33 Mys CCR 133 7

8 Mys LJ 489 : 35 Mys CCR 374 6, 7

16 Mys LJ 27 7 (1861) 1 B and S 393 : (121 ER 762) 8 M.A. Gopala Swamy Iyengar, for Appellant; M.P. Somasekhara Rao, for Respondent. Judgement The plaintiff is a building contractor. He constructed a house in Mysore City for one Annapurnamma and a sum of Rs. 1,780/- was found due to him in that connection. She conveyed the house to the defendant by a sale deed dated 15-4-1941 and it was provided in that sale deed that the defendant should pay this sum to the plaintiff as a part of the purchase money due to Annapurnamma. The plaintiffs case is that the defendant agreed to do so and has also paid Rs. 1,470/- in pursuance of that promise leaving a balance of Rs. 310/- for which sum and interest thereon by way of damages the suit had to be filed as the defendant later on denied his liability.

2. The defendant denied that the plaintiff had done work to the extent required to enable him to claim Rs. 1,780/- and that he had ever agreed with the plaintiff to pay that sum. He pleaded that he had no doubt made some payments as desired by the vendors but had justifiably withheld the balance at their desire as the plaintiff had not completed some of the works. He was not personally liable to the plaintiff and the suit was not maintainable as there was no privity of contract between him and the plaintiff and the suit was also barred by time.

3. The First Munsiff of Mysore, before whom the suit was filed, held all the issues in favour of the plaintiff and granted a decree for the amount claimed less Rs. 100/-, and interest by way of damages at 6 per cent. per annum. The Subordinate Judge of Mysore, before whom the plaintiff appealed and the defendant preferred cross-objections, allowed the plaintiffs appeal and granted a decree for the full sum as claimed in the plaint and dismissed the defendants cross-objections. The defendant has come up in second appeal.

4. There is no doubt that the learned Subordinate Judge was right in not accepting as correct the finding of the learned Munsiff that the plaintiffs claim should be reduced by Rs. 100/-. The learned Munsiff had based that finding on a rather ambiguous sentence in the cross-examination of the plaintiff where he had deposed that he does not remember exactly whether he received Rs. 100/- or a little more after Ex. C. after stating in examination-in-chief that subsequent to Ex. C. he had received Rs. 100/- from the defendant and that he had received in all Rs. 1400/- and odd, the exact figure being as mentioned in the plaint. The plaintiff was being examined in June 1947 long after the payments were made and could not be expected to remember the exact figures and dates. The defendant had not in his written statement pleaded payment of any sum over and above that stated in the plaint. All the payments, except a sum of Rs. 200/- paid on 19-6-41 under a receipt Ex. II which is a consolidated receipt for Rs. 1,470/- were by cheques on the Treasury. There was neither plea nor issue, much less proof, regarding such further partial discharge. The Munsiffs finding that the defendant might have paid a further sum of Rs. 100/- was, therefore, clearly wrong.

5. Mr. M.A. Gopalaswami Iyengar, learned Counsel for the Appellant, strenuously contended, that there was no privity of contract between the plaintiff and the defendant and that he could not therefore bring this suit. He urged that the defendant had been merely instructed to pay the plaintiff some amount which may have been due by the former, for him and on his behalf and, that would not create any legal relationship between the defendant and the plaintiff so as to entitle the latter to bring a suit of his own to enforce that agreement, if any. Before considering the cases relied on by him in support of this argument, we may refer to the terms of the sale deed and the other admitted or proved circumstances in the present case. The relevant passage in the sale deed is as follows : "You (purchaser) have to pay him (Plaintiff) the balance of Rs. 1,780/- which I (Seller) have to pay him and obtain a consideration receipt from him in settlement thereof. The said amount has been left with you ...................... "In this manner the entire sale consideration of Rs. 4000/- in respect of the property sold has been received and nothing more is due". The defendant has admittedly paid the plaintiff subsequently Rs. 1470/- as acknowledged in the receipt Ex. II dated 19-8-1941 the sum being described as due to him in respect of the house purchased by the defendant as mentioned in the sale deed. With a letter Ex. C dated 20-5-41 the defendant had by then sent to the plaintiff five cheques on the Treasury for sums aggregating Rs. 1270/-. The letter says that the amount was being sent "as informed to you (plaintiff) in person" and was in respect of the sale amount pertaining to the house and that the balance of the amount would be remitted immediately. All this clearly shows that the defendant not only promised to pay the same but also made part payments towards it.

6. Mr. Gopalaswami Iyengar has relied on a case reported in SUBBU CHETTI v. ARUNACHALAM CHETTIAR, 53 Mad 270 (FB) and argues that in such circumstances as these there can be neither privity of contract nor a relationship akin to a trust created in favour of the plaintiff. That case, however, can easily be distinguished. In that case, which was also a case of a sale, it had been found as a question of fact by the Courts below that an oral agreement set up by the plaintiff creditor that the defendant had agreed to pay him the balance of purchase money was not proved; the recital in the sale deed was that the amount was to be paid on the vendors behalf to the plaintiff who was one of the creditors as also to other creditors of the vendor. On the terms of the sale deed the High Court was of the view that no trust, express or implied, was created and that the sale deed merely constituted the vendee the agent of the vendor to pay some of his creditors. Their Lordships therefore held, following JAMNA DAS v. RAM AUTAR PANDE, 34 All 63 (PC) that "Where on a contract between A and B, B agrees to pay a sum of money to C and no more circumstances appear, C being a stranger to the contract cannot sue B for the money, though all the parties to the contract are parties to the suit. This is the general rule, though some exceptions to the rule arise under the following circumstances, e. g., (a) where B afterwards agrees with C to pay him direct or becomes estopped from denying his liability to pay him personally; (b) where the contract between A and B created a trust in favour of C; (c) where the contract charges the money to be paid out of some immovable property or (d) where it is due to C under a marriage settlement, partition or other family arrangement". In 34 All 63 (PC) the action was brought by a mortgagee to enforce payment personally under S. 90 of the Transfer of Property Act against a purchaser of the mortgaged property an undertaking he had entered into with his vendor to pay the mortgage money. Their Lordships of the Privy Council thought it was a perfectly plain case and said that the mortgagee has no right to avail himself of the undertaking. "The purchaser entered into no contract with him and was not personally bound to pay the mortgage debt and was not a person from whom in the words of that section the balance was legally recoverable". In 8 Mys LJ 489 : 35 Mys CCR 374 which is the next case relied on by him and which follows among other cases 53 Mad 270 : 58 Mad LJ 420 (FB) it was found that there was not even an allegation in the plaint that the defendant had undertaken to pay the plaintiff; the terms of the sale deed were not only against the inferring of any trust, express or implied, but were of the nature on which it was held that the defendant was merely an agent of the vendor to pay some of his creditors.

7. Mr. M.P. Somasekhara Rao, learned Counsel for the Respondent, has also referred to some cases of this Court and to a case reported in DEB NARAIN v. RAM SADHAN, 41 Cal 137. In 28 Mys CCR 218 which was a suit by a creditor of the vendor against a purchaser under a sale deed with terms in it similar to the present, it was held by Subbanna, J., that although a person who is not a party to a contract and with whom there is no privity cannot gain any advantage by it, yet a contract can be so framed as to secure the benefit to a third party as a cestui que trust in which case the latter may sue in his own name to enforce the contract. JAMNA DAS v. RAM AUTAR PANDE, 34 All 63 (PC) has been referred to and distinguished in that case. 6 Mys LJ 576 : 33 Mys CCR 133, 28 Mys CCR 39, DWARKA NATH v. PRIYA NATH, 22 Cal WN 279 and 16 Mys LJ 27, on which Mr. M.P. Somasekhara Rao has relied affirm the same principle. In 8 Mys CCR 39 a person who was indebted to several persons transferred his property to his mother and wife upon their undertaking to discharge his debts. The mother promised to discharge the debt due to the plaintiff who was one of the creditors but subsequently failed to do so; on the plaintiff suing the mother and wife it was held that the promise of the mother which was supported by lawful consideration viz., the transfer of the principal debtors property to her ought to be enforced and that in the absence of any such promise on the part of the wife she could not be made personally liable. These cases clearly help the respondent. The facts and circumstances of the present case we have set out above bring it clearly within the class of cases referred to in SUBBA CHETTI v. ARUNACHALAM CHETTIAR, 53 Mad 270 (FB) and 8 Mys LJ 489 in which the right of a person in the position of the plaintiff to bring a suit in cases like the present is accepted.

8. Mr. Gopalaswami Iyengar next contended that the plaintiffs suit is barred by limitation. The Courts below have held that the suit is governed by Art. 116 of the Limitation Act and is within time having been filed within six years of the date of the promise contained in the sale deed. That article covers suits for the recovery of compensation for the breach of a contract in writing registered and it has been applied to a case like the present in DEB NARAIN v. RAM SADHAN, 41 Cal 137. In that case the transferee of a debtors liability had acknowledged his obligation to the creditor for the debt to be paid by him under the provisions of the registered instrument conveying to him all the moveable and immoveable properties of the original debtor. The acknowledgment had been communicated to the creditor and accepted by him. It was held in that case : "First, that the arrangement between the creditor and the transferee did not amount to a novation within the meaning of Section 62 of the Contract Act; secondly, that the obligation undertaken by the transferee was for, and intended to be for the benefit of the creditor; and, lastly, that the creditor is entitled to sue the transferee on the registered instrument." It was further held that the suit was governed by Art. 116. It was observed by Jenkins, C.J., after an examination of the basis underlying the rule laid down in England in TWEEDLE v. ATKINSON, (1861) 1 B and S 393, that the administration of justice by the Courts in this Country is not to be in any way hampered by the doctrine laid down in that case and that the bar to filing a suit by the person not a direct party to the contract was probably one of procedure and not of substance. "In India he points put We are free from these trammels and are guided in matters of procedure by the rule of justice, equity and good conscience." The learned authors of U.N. Mitras Law of Limitation question at page 662, Vol. 1, 1949 Edn., whether a suit by a stranger to the contract comes within Art. 116. But once it is held that A can sue on the basis of the contract between B and C under certain circumstances it is difficult to see why As suit cannot be described as one for compensation for the breach of that contract or that the obligation to pay does not arise directly under that registered instrument.

9. We see, therefore, no reason to interfere with the judgment and decree of the learned Subordinate Judge. This appeal fails and is dismissed with costs. Appeal dismissed. AIR (39) 1952 MYSORE 111 (C. N. 52) "S. Oil Mills v. R. Oil Mills" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) The Shimoga Oil Mills, Plaintiff-Appellant v. The Radhakrishna Oil Mills Kadiri and others, Defendants-Respondents. Appeal No. 81 of 1949-50, D/- 30 -10 -1951. (A) Civil P.C. (5 of 1908), O.30, R.1 - PARTNERSHIP - Suit in the name of concern. Where the name of the concern as well as the plaintiff as its proprietor both appear in the cause title, the plaintiff can sue in the name of the concern. (Para 6) Anno : C. P. C., O. 30, R. 1, N. 7. (B) Civil P.C. (5 of 1908), S.20 - CIVIL COURT - CONTRACT - Breach of contract - Non-receipt of R.R. The performance of a contract is part of the cause of action and a suit in respect of breach can always be filed at the place where the contract should have been performed or its performance completed. The well-known and usual practice of the trade is to present the R. R. through a Bank at the place of the buyer of goods where he has to pay and take delivery of the R. R. against payment unless it is expressly agreed otherwise. If the R. R. had to be delivered at the place of the buyer after despatch of goods to that place it can be said that the performance could not be complete until the R. R. was tendered at that place. The plaintiff can validly complain that he has not received such R. R. at all and therefore treat the omission as a breach of a part of the contract and infringement of his right affording him a cause of action : 13 Ind Cas 943 (2) (Cal);. AIR 1933 Bom 179; 39 Mys HCR 784, Rel. on. (Para 7) Anno : C.P.C., S. 20, N. 18, 19. (C) Civil P.C. (5 of 1908), S.20 - CIVIL COURT - CONTRACT - Contract by correspondence. Contract Act (9 of 1872), S.3 and S.4. A contract by correspondence is made at the place where the letter of acceptance is posted. Where subsequent to the original contract the defendants had made a counter offer by a letter to refund the advance paid by the plaintiff the plaintiff can be said to have accepted this counter offer at his place and applied for refund by his letter in reply. Such acceptance amounts to another contract which must be deemed to have been made at his place : AIR 1934 Mad 581; 27 Mad 355 and 12 Mys LJ 367, Rel. on. (Para 7) Anno : C.P.C., S. 20, N. 17; Contract Act, S. 3, N. 1, S. 4, N. 2. (D) Civil P.C. (5 of 1908), S.20 - CIVIL COURT - Place where money is payable. The Court of the place where payment of the price is to be made has also jurisdiction to try a suit arising out of a contract : AIR 1935 Mad 663 (FB); AIR 1947 Mad 83; AIR 1920 All 6, Rel. on. (Para 8) Anno : C.P.C., S. 20, N. 19. (E) Civil P.C. (5 of 1908), S.20 - CIVIL COURT - Creditor and Debtor - Return of deposit. A suit for recovery of debt can be brought in the place where the creditor resides. A deposit being a debt the defendant is bound to return it to the plaintiff at the latters place and hence the Court there has jurisdiction to try a suit for its refund; AIR 1933 Bom 179, Rel. on. (Para 9) Anno : C. P. C., S. 20, N. 16, 19. Cases Referred : Chronological Paras (20) 42 All 619 : AIR 1920 All 6 8 (33) 57 Bom 306 : 143 Ind Cas 335 : (AIR 1933 Bom 179) 7, 9 (12) 13 Ind Cas 943 (2) : (16 Cal WN 325) 7 (04) 27 Mad 355 7 (35) 153 Ind Cas 111 : (AIR 1934 Mad 581) 7 (35) AIR 1935 Mad 663 : (156 Ind Cas 1041 FB) 8 (47) AIR 1947 Mad 83 : (230 Ind Cas 185) 8 (49) AIR 1949 Mad 145 : (1948-2 Mad LJ 101) 8

39 Mys HCR 784 : 12 Mys LJ 367 7

5 Mys LJ 69 7 A.R. Somanatha Iyer and M.K. Sreenivasa Iyengar, for Appellant; S.D. Ganesha Rao, for Respondents. Judgement VASUDEVAMURTHY, J. :- The plaintiff as proprietor of a concern called the Shimoga Oil Mills brought a suit in the name of the Mills against the defendants who are proprietors of an Oil Mill in Kadiri in Ananthapur District, for recovery of Rs. 3,282/-. The suit was dismissed by the Subordinate Judge and the plaintiff has appealed.

2. The case for the plaintiff is that on 29-6-1947 the defendants agreed to supply 1,224 bags of groundnut seeds at Rs. 134/- per candy. The defendants received Rs. 3,000/- as advance but failed to deliver the goods though more than 2 months elapsed and in spite of repeated demands and though waggons had been available for making the supply. The plaintiff had therefore cancelled his order on 2nd and 5th September 1947 and asked for refund of the advance with interest which he has now claimed in this suit while reserving to himself a right to sue for damages for non-delivery later.

3. The defendants admitted the agreement and receipt of the advance. They however pleaded that time was not of the essence and they had to supply the goods only when waggons or empties were made available by the Railway, that they had registered an application for the necessary wagons immediately after the agreement and that when the waggons were made available they had asked the plaintiff to send a representative of his to supervise the despatch of the goods, that the plaintiff had failed to send a representative though he was bound to do so and had wrongfully cancelled the contract and claimed refund of the advance. The defendants subsequently sold the goods by public auction with notice to plaintiff. The same had resulted in a loss of Rs. 12,344/- which they were entitled to set off against the advance. They also reserved to themselves the right to sue for damages. The suit brought by the plaintiff in the name of Shimoga Oil Mills was not maintainable and the Shimoga Court could not try the suit as no part of the cause of action had arisen within its jurisdiction.

4. The learned Subordinate Judge held that time was not the essence of the contract as delivery was to be made only when waggons were made available by the Railway, that the defendants had tried unsuccessfully to secure the waggons and were in no way to be blamed if they could not get them earlier; and they had shown themselves to have been ready and willing to perform their part of the contract, He also held that the suit could not properly be filed in the Shimoga Court. He was not inclined to uphold the objection of the defendants as to maintainability though on some other ground he held that the plaintiff could not sue. He however held in favour of the plaintiff that there was neither an agreement nor any custom of trade that the plaintiff should send a representative to Kadiri to arrange for taking delivery of the goods.

5. Sri M.K. Srinivasa Iyengar, the learned counsel for the appellant, has taken us in detail through the evidence including the correspondence between the parties. (Then after discussing the evidence His Lordship proceeded :) We think therefore that the plaintiff is entitled to recover the advance with interest on it by way of damages at 9 per cent which does not appear to be excessive. The defendants have had the use of his money and wrongfully withheld it. The plaintiff has however not shown how he is entitled to Rs. 25/- for notice charges and this must be disallowed.

6. It is next contended by Sri Ganesha Rao, the learned counsel for the respondents, that the plaintiffs suit is not maintainable. The ground he urges is not the one taken in the written statement viz., that the plaintiff could not have sued in the name of the Mills. This has been found against him and rightly, as the name of the concern as well as the plaintiff as its proprietor both appear in the cause title and the objection has therefore no substance at all. He has however tried to support the view of the Subordinate Judge based on an admission in the evidence of the plaintiff that his concern had after the date of the contract been converted into a limited liability company with some one else as Managing Director. But the plaintiff has not been asked, and there is no evidence, showing that the suit claim has been taken over by the Company. The plaintiff who is a party to the contract is entitled to sue on it in the absence of even any plea much less proof that he has ceased to have any rights to claim its performance.

7. It is next strenuously contended that the Shimoga Court has no jurisdiction to try the suit. If the suit had been governed by the present Code of Civil Procedure as extended into Mysore on 1-4-51 the question could have been disposed of more easily. The defendants would have had to show that there had been a failure of justice consequent on the suit having been brought in the Shimoga Court. It is represented for the defendants that Rs. 3,000/- was received at Kadiri, the delivery was to be F.O.R. Kadiri which meant that the moment the goods were put on rails there, the contract would be completed; that the breach, if any, of that contract was also in Kadiri and that nothing was done or intended to be done at Shimoga in the course of the performance of the contract. For the appellant, it is urged that the railway receipt was to be delivered through a Bank against payment at Shimoga according to the contract and it is argued that this constitutes a part of the plaintiffs cause of action giving jurisdiction to the Shimoga Court to try the suit under S. 20 Cl. (c) C. P. C. It has sought to be made out by the respondents that the contract was silent as to the locale of the Bank through which the R.R. was to be delivered. The Subordinate Judge is of the view that it might be a Bank at Kadiri, while for the appellant it is contended it must mean a Bank at Shimoga. Neither party has let in any independent evidence in this matter. The defendants have not expressly pleaded that the R.Rs. also had to be delivered at Kadiri But there is very little doubt that the well-known and usual practice of the trade in such cases is to present the R.R. through a Bank at the place of the buyer where he has to pay and take delivery of the R.R. against payment, unless it is expressly agreed otherwise. Nobody has suggested in this case that the plaintiff had a Bank account of his own at Kadiri where he could have arranged for payment nor is it explained how and through whom the plaintiff who is in Shimoga was expected to pay and get the R.R. into his own hands if the defendants merely handed over the R.R. to their own Bank at Kadiri. It must therefore be held that the R.Rs. had to be tendered by the defendants and delivered through a Bank of their own choice in Shimoga against payment. Cause of action has been defined as meaning every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to the judgment of the Court, it is in other words a bundle of essential facts which the plaintiff must prove before he can succeed in the suit. See Mullas C. P. C. 11th edition, page 118. Under explanation 2 to S. 20, C. P. C., it is enough if the cause of action arises even in part within the jurisdiction of the court to enable a suit to be filed therein. The performance of a contract is part of the cause of action and a suit in respect of breach can always be filed at the place where the contract should have been performed or its performance completed. See Mullas C. P. C., page 120, also BHUTTACHARYA and CO. v. CANPORE WOOLEN MILLS CO. LTD., 13 Ind Cas 943 (2) (Cal) and CHAMPAKLAL MOHANLAL v. NECTAR TEA CO., 57 Bom 306. It has been so held in 39 Mys HCR 784 : 12 Mys LJ 367, relied on for the appellant where the words "wholly or in part" which were newly substituted in the explanation to Section 20, C. P. C., have been considered as more comprehensive in character than even the explanation 3 under the same section in the old Code. In that case, the goods had been delivered at Rampura on the N. W. Railway at owners risk to be despatched to Shimoga. Payment had been made at Bombay. But still it was held by this Court that the buyer could maintain a suit for damages at Shimoga where the goods were found to be damaged and not according to the quality stipulated. The plaintiff sued for the refund of the price which the defendant had collected at Bombay and interest on it by way of damages. It was held by Shankaranarayana Rao, J., that a suit may be instituted where even a part of the cause of action arises; and where a right and infringement thereof have both to be proved before the plaintiff can get his relief, the cause of action arises partly where it was infringed. If the R.R. in the present case had to be delivered at Shimoga after despatch of goods to that place it can be said that the performance could not be complete until the R.R. was tendered at Shimoga. The plaintiff can also validly complain that he has not received such an R.R. at all and therefore treat the omission as a Breach of a part of the contract and infringement of his right affording him a cause of action. Moreover, that case also supports the alternative contention put forward for the appellant in this case that subsequent to the original contract the defendants had made a counter offer to refund the advance as per Ex. B-8.*The plaintiff can be said to have accepted this counter offer at Shimoga and applied for refund as per Ex. XIII. Such acceptance amounts to another contract which must be deemed to have been made at Shimoga, as observed in 12 Mys LJ 367. It has been held in 5 Mys LJ 69 that a contract by correspondence is made at the place where the letter of acceptance is posted. See also MAHOMED ESUFF v. M. HATEEM and CO., 153 Ind Cas 111 (Mad) and KAMISETTI SUBBIAH v. VENKATASWAMI, 27 Mad 355. How far that acceptance is enforceable against the defendants and if they could not cancel their offer in Ex. B-8 has not been expressly relied on by the plaintiff but it cannot be said that this circumstance has no significance at all in determining the plaintiffs rights and remedies. *Letter by defendants dated 22-8-47 referring to their unsuccessful endeavours to secure wagons and making suggestions one of which was that the plaintiff should cancel his contract at par and receive back his advance - Omitted. Ed. (Letter by plaintiff dated 1-9-47 asking the defendants to despatch the goods and that if the R.R.. could not be sent within 8 days the contract may be cancelled and the advance returned to him - Omitted. Ed.) It has also to be observed that the plaintiff initiated the suit transaction by asking for rates by telegram Ex. I on 23-6-47, the defendants quoted rates offering 100 tons at Rs. 138/- a ton and the plaintiff accepted the defendants offer by wire on 26-6-47 as per Ex. II which reads as follows : "Received, confirmed hundred tons, send our person with deposit tomorrow night". Though neither of the counsel have referred us to these exhibits, probably because they are not printed, the effect of this acceptance, made at Shimoga of the defendants offer and which concluded the contract cannot be ignored; and Ex. A would then be merely a memorandum of the detailed terms of that contract recorded in Kadiri.

8. Sri S.D. Ganesha Rao, the learned counsel for the respondents has relied strongly on a case reported in PARTHASARATHY GUPTA v. CALCUTTA GLASS and SILICATE WORKS (1936) LTD., AIR 1949 Mad 145 and on S. 20 of the Sale of Goods Act and urged that the property in the goods must be deemed to have passed to the plaintiff immediately the contract was signed. He argues that the goods were admitted by plaintiff to be ready goods which were then in the railway station. The goods being thus ascertained goods only the payment of their value remained to be made by the plaintiff. This would mean that thereafter the relationship of the parties was merely one of creditor and debtor (with the creditor at Kadiri). There is, no doubt, some sort of loose admission that some ground-nuts of the defendants were in the Railway Station at the time of Ext. A but it is not shown that the entire quality agreed to be supplied was there. It is not also alleged by defendants that it had been weighed and separately stored against the contract and continued to remain in the Railway station alone for more than 3 months thereafter during all the time covered by the correspondence. It is very improbable that the contracted goods had been ascertained and kept separate in the station during all this long period. The facts of the case in AIR 1949 Mad 145 are quite different and have no application to the present case. In that case it was found as a question of fact that both delivery and payment had to be made at Calcutta and not in Madras where the suit was filed. On the other hand there are some observations in it to the effect that it is undeniable that a part of the cause of action to sustain a suit for damages for breach of contract would certainly arise at the place where performance of the contract is provided; and that performance of a contract may consist in delivery as well as payment. The learned Judges therefore found it necessary to find out if either delivery of goods or payment of price was contemplated to be made in Madras. There is another case reported in the same volume at page 858 which fully supports the plaintiff and whose facts are almost identical with the present case. In that case, the plaintiffs, a firm at Madras, booked orders for some goods from the defendants who were the manufacturers at Mirzapore. The contract was for despatch of goods F.O.R. Mirzapore at earliest booking day after the railway receipt to be negotiated through the Bharat Bank Ltd. The defendants failed to despatch the goods and the plaintiffs cancelled the contract and sued for damages in Madras. It was held on an objection regarding jurisdiction that as the parties had agreed that the railway receipt should be sent to the Bharat Bank, which in the context could only mean the Bharat Bank at Madras, against payment by the defendant the court at Madras had undoubted jurisdiction to try the suit. To a similar effect are cases in VENKATACHALAM v. RAJABALLI, AIR 1935 Mad 663 (FB); LAKSHMIPATHI v. MAHOMED GHANI, AIR 1947 Mad 83 and RAMLAL v. BHOLA NATH, 42 All 619 : AIR 1920 All 6 where it has been held that" the Court of the place where payment of the price is to be made has also jurisdiction to try a suit arising out of a contract.

9. Even if we accept the other contention of Sri S.D. Ganesha Rao viz., that the relationship of the parties was that of debtor and creditor, the plaintiff who had made the deposit with the defendants and who was seeking for its return was in the position of a creditor, and precedent is not wanting to hold that a suit for its recovery can be brought in the place where the creditor resides. See CHAMPAKLAL MOHANLAL v. NECTAR TEA CO., 143 Ind Cas 335 (Bom), where in a similar case of deposit Rangnekar, J., held that the deposit being a debt the defendant was bound to return it to the plaintiff at the latters place and hence the Court there had jurisdiction to try a suit for its refund,

10. We, therefore, hold that on the facts and in the circumstances of this case, the Shimoga Court had jurisdiction to try this suit. It may also be observed that though the defendants took the objection as regards jurisdiction in their written statement, they do not appear to have been serious in pressing it. A preliminary issue was not taken and it was not pressed before the trial began on merits. They went fully into evidence and examined their witnesses. It is not shown how in any way, they have been prejudiced by the trial having taken place in Shimoga. This may not be strictly a very relevant circumstance in this case which was governed by the Mysore Code of Civil Procedure and if the objection as to jurisdiction was more clear, we might have felt compelled to uphold it.

11. In the result, this appeal is allowed with costs. The judgment and decree of the Subordinate Judge are set aside and there will be a decree in favour of the Plaintiff for Rs. 3,257/- with costs and current interest. Appeal allowed. AIR (39) 1952 MYSORE 114 (C. N. 53) "Lakshmamma v. M. Jayaram" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Lakshmamma and others, Defendants-Petitioners v. M. Jayaram, Plaintiff-Respondent. Civil Revn. Petn. No. 175 of 1951-52, D/-4-10-1951. Evidence Act (1 of 1872), S.101, S.102, S.103 and S.114 - EVIDENCE - DOCUMENTS - Admission of signature or thumb impression on document - Presumption - Onus of proof of execution of document. When a thumb impression or a signature that purports to have been put in in a document in token of its execution is admitted by a person to be his, there arises a presumption that he must have executed the document. If he says that his thumb impression or signature found in the document was taken for attesting the document though it purports to have been put in for executing the document it is for him to prove that it is so. If it is his case that he affixed his signature or thumb impression on a blank paper on which the document must have been written later he has to prove that fact. If he fails to do so the presumption is against him. At the same time before any presumption arises against him he must have unequivocally admitted that the signature on the document is his. It is not sufficient if he merely states that he had on some occasion affixed his signature to a blank paper and the document in question might have been got up with the help of that document. It may not be necessary for the defendant to specifically state that his thumb impression or signature has been taken to the document in question. The admission must clearly amount to his saying so : AIR 1930 Pat 598; AIR 1939 Rang 334 (FB); AIR 1932 All 164 and 2 Mys CCR 167, Foll.; AIR 1922 All 401 (2) and AIR 1931 Pat 219, Dissent. (Para 4) Anno : Evidence Act, Ss. 101 to 103, N. 31; S. 114, N. 35. Cases Referred : Chronological Paras (22) AIR 1922 All 401 (2) : (68 Ind Cas 809) 2, 3 (32) 54 All 375 : (AIR 1932 All 164) 3 (16) 35 Ind Cas 56 : (AIR 1916 Pat 206) 2 (30) AIR 1930 Pat 598 : (129 Ind Cas 144) 2 (31) AIR 1931 Pat 219 : (134 Ind Cas 635) 2, 3, 4 (27) 5 Rang 527 : (AIR 1927 Rang 319) 2, 4 (39) AIR 1939 Rang 334 : (1939 Rang LR 397 FB) 2

2 Mys CCR 167 4 M.V. Srinivasa Iyengar, for Petitioners; M.R. Janardanam, for Respondent. Judgement The point for consideration in the case is whether when a person admits his signature or thumb impression on a document which purports to have been executed by him, the burden of proving that the document was not executed by him and that he affixed his signature under circumstances referred to by him, falls on him or whether the plaintiff is bound to prove the execution of the document.

2. There is some difference of opinion in different decisions of different High Courts and as the point is coming up in revision frequently the matter needs some careful consideration. The view that the plaintiff has to prove the genuineness of the suit document purporting to have been executed by the defendant even when the defendant admits his signature or thumb impression on the paper on which the document purports to have been written, is supported by the reasoning that mere affixing of thumb impression or signature does not amount to execution of a document. It is something more than that. It must be proved or admitted that a document was written and that the person who purports to have executed the document voluntarily affixed his signature or thumb impression knowing full well what the document contained and with the intention of executing the document. For as observed in EBUDUT ALI v. MAHOMED FAREED, 35 Ind Cas 56 (Pat). "Execution of a document consists in signing a document written out and read over and understood and does not consist of merely signing a name upon a blank sheet of paper. To be executed, a document must be in existence. Where there is no document in existence, there cannot be execution. Where an executant clearly says that he signed on a Blank paper and that the document which he had authorised is not the document which he contemplated, the statement is a denial, not an admission of execution." The same view was expressed in the case reported in HOE HOH v. SEEDAT, 5 Rang 527 and the observations are as follows : "All that the defendant admitted in this case was that his signature appeared on the document filed. Now it is quite clear that if the plaintiff had merely set forth in the plaint that the defendants signature appeared on the document without any further allegation of fact, his plaint must have been rejected as disclosing no cause of action. It was a necessary averment to state that the defendant had promised to pay him the sum named with interest. The admission made by the defendant did not establish the plaintiffs case, and if there had been nothing on the pleadings besides the plaint and the defendants denial, the suit must have failed.............the burden of proving the loan in our opinion rested on the plaintiff." PIRBHU DAYAL v. TULA RAM, AIR 1922 All 401 (2) is relied on in support of the same position. It was in that case, where the plaintiff sued relying on a document which the defendant affirmed to be only a blank piece of paper to which he was asked to affix his signature and thumb impression, held : "The burden of proof of its execution lay on the plaintiff." Following these two decisions Fazal Ali, J., with whom Scroppe, J., agreed held in RAMLAKHAN SINGH v. GOG SINGH, AIR 1931 Pat 219 that : "Where the law places the onus on the plaintiff to prove that a document is duly executed, the onus cannot be discharged by merely proving the identity of the thumb impression, but it must be further proved that the thumb impression was given on the document after it had been written out and completed. The fact that the defendants thumb impression appears on the paper is a strong piece of evidence in favour of the plaintiff and in the majority of cases very slight evidence would be necessary to prove that the thumb impression was given on the document after it had been written out and completed. But the fact remains that if the evidence offered by the plaintiff to prove that the document was duly executed or in other words, that the thumb impression was given on the document after it had been written out and completed is found to be unreliable, he cannot be deemed to have discharged the onus properly and no onus is necessarily thrown on the defendant merely by reason of the fact that the defendant asserts that the thumb impression was given on a blank piece of paper." There is however another decision of the Patna High Court which has taken a different view and that case is reported in SAHDEO v. PULESAR AIR 1930 Pat 598 : "Where in a suit on a hand-note the defendant, while denying that he had signed or made thumb impression upon any hand-note, admitted that he had put his thumb impression on a blank piece of paper upon which it was intended that a kabuliyat should be written out and that this may be the thumb impression and paper which had been utilized for the hand-note it is a clear admission that the hand-note on which the suit is brought bears the thumb-impression of the defendant and the burden of proof is on the defence to explain how the document bearing the defendants thumb-impression came into existence." Moreover as against the view expressed in 5 Rang 527 relied on in AIR 1931 Pat 219, it will be seen that the Full Bench decision reported in J.K. SHAH v. DULAH MEAH, AIR 1939 Rang 334 has overruled the decision in the earlier Rangoon case. The reasoning in 5 Rang 527 the earlier Rangoon case, was fully referred to by Roberts, C.J., who wrote the judgment of the Full Bench and he observed : "Production of the promissory note itself, once the signature is proved or admitted shifts the burden to the maker."

3. As regards the decisions in Allahabad High Court, it must be said that a contrary view has been taken by the same High Court in the later decision reported in JAGMOHAN MISIR v. MENDHAI DUBE, 54 All 375. In that case, the defendants who were sued on a promissory note admitted their signatures but alleged that they had signed a blank paper without any consideration in cash. On the pleadings in that case the Judge framed an issue in the following form : "Did the defendant execute the promissory note in suit for consideration?" It was held that the issue was wrongly struck so as to throw the burden on the plaintiff. It is no doubt true that emphasis was laid in that case on the presumption under Section 18 of the Negotiable Instruments Act that every negotiable instrument was made or drawn for consideration only until the contrary is proved. But it must be remembered that the issue framed in the case threw the burden of proving the execution of the document also on the plaintiff in spite of the admission that the signatures to the promissory note were those of the defendants and it was not held that the issue as framed was correct to that extent at least. This view is therefore inconsistent with the earlier view in PIRBHU DAYAL v. TULA RAM, AIR 1922 All 401(2) relied on in RAMLAKHAN SINGH v. GOG SINGH, AIR 1931 Pat 219.

4. It will be noticed therefore that apart from the fact that there is a Full Bench decision as against the view expressed in RAMLAKHAN SINGH v. GOG SINGH, AIR 1931 Pat 219 the very decision HOE HOH v. SEEDAT, 5 Rang 527 on which the latter decision was based was overruled by the Full Bench decision. It needs only to add that there is a decision of this court reported in 2 Mys CCR 167 in which it was held : "The plaintiff sued on a promissory note the execution of which the defendants denied, but admitted having signed a blank sheet of paper similar to the pronote. The Munsiff dismissed the suit holding that the plaintiff did not prove the execution of the note by the defendants. The plaintiffs preferred a Revision Petition to the Chief Court. Held : That in the circumstances of the case the burden of proof lay on the defendants." There is hardly any doubt that mere affixing a signature or thumb-impression to a document does not amount to execution of a document. Attestors affix their thumb impressions or signatures to a document to indicate their having witnessed the execution of it. The scribe does so, not merely for having witnessed the execution of the document but also for having written it. Before a person is said to have executed a document it must be either proved or admitted that he not only affixed his thumb-impression or signature, but also that he did so with the purpose of executing the document. Mere admission that a man affixed his signature or thumb-impression to a document does not mean that the execution of the document is admitted. When a thumb impression or a signature that purports to have been put in in a document in token of its execution is admitted by a person to be his, there arises a presumption that he must have executed the document. Section 114 of the Evidence Act states : "The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." The illustrations given to the above Section are not exhaustive of cases in which the presumptions arise. They are merely illustrations. From the fact that an admitted thumb-impression or signature of a person is found to be affixed to evidence the execution of the document it is open to the court to presume that the person could have affixed the signature or thumb-impression for executing the document. If he says that his thumb-impression or signature found in the document was taken for attesting the document for instance though it purports to have been put in for executing the document it is for him to prove that it is so. If it is his case that he affixed his signature or thumb-impression on a blank paper on which the document must have been written later he has to prove that fact. If he fails to do so, the presumption is against him. At the same time, before any presumption arises against him, he must have unequivocally admitted that the signature on the document is his. It is not sufficient if he merely states he had on some occasion affixed his signature to a blank paper and the document in question might have been got up with the help of that document. It may not be necessary for the defendant to specifically state that his thumb impression or signature has been taken to the document in question. The admission must clearly amount to his saying so. In the case reported in 2 Mys CCR 167 the admission of defendant that the signature to suit document was his, was clear from his statement that his signature had been taken to a blank paper similar to that of suit pronote. It cannot be said that in every case the use of the word similar by a party cannot be said to be sufficient to infer that there is an admission that the signature in the document in question is his. The pleadings as a whole must be read and if from what is stated it is clear that a party admits that a signature purporting to have been affixed in token of execution of the document is his, the burden of proving the contrary is on him.

5. Now in this case the suit is filed on the foot of a pronote alleged to have been executed on 10-11-48 by first defendant on behalf of herself and her sons in favour of plaintiff Jayaram. She clearly states in her statement that one Narasimiah got 2nd defendant her minor son of about 15 years to get a pronote for Rs. 5,000/- written as if executed in favour of Jayaram and that this was done on 10-11-48. According to her, 2nd defendant was sent to attend to a division of some moveables and her thumb impression was taken on a document. She was not told that she was executing a pronote, nor was any money paid to her. 2nd defendant says in his rejoinder statement that Narasimiah got the pronote for Rs. 5,000/- written by him but that he was not present when first defendant affixed her thumb impression to the pronote. He says that Narasimiah told him that he had got her thumb impression and asked him to write to his dictation "the shara" in Kannada.

6. The suit pronote purports to have been written by 2nd defendant and to have been executed by first defendant. The "shara" stating that the thumb impression is that of 2nd defendant purports to have been written by 2nd defendant. It is a document that purports to have been executed in favour of plaintiff Jayaram on 10-11-48. It is clear that the defendants admit that first defendant wrote the suit document and second defendant affixed to it her thumb impression and it purports to have been put in to evidence the execution of the document. The burden of proving that the thumb impression was affixed to suit document under circumstances pleaded was rightly thrown on the defendants.

7. Revision petition stands therefore dismissed. Revision petition dismissed. AIR (39) 1952 MYSORE 116 (C. N. 54) "Harbhogowandas Firm v. Dr. C. Narayana" MYSORE HIGH COURT Coram : 1 VENKATA RAMAIYA, J. ( Single Bench ) Harbhogowandas Purushothamdas, a joint Hindu Family Banking firm, Plaintiff-Appellant v. Dr. C. Narayana Iyengar and another, Defendants-Respondents. Second Appeal No. 53 of 1949-50, D/- 28 -3 -1952. Partnership Act (9 of 1932), S.19 - PARTNERSHIP - Hundi executed by one partner - Another partner when not liable. Where there is a firm of which A is a partner, he will not be liable on the hundies signed by B, another partner of the firm, in his individual capacity. Therefore, in the absence of any words to imply that the Hundies were executed by B for and on behalf of the firm, A is entitled to seek exemption from liability. 17 Mys CCR 17, Rel. on; AIR 1918 PC 146; AIR 1928 Bom 516, Ref. (Para 2) Anno : Partnership Act, S. 19, N. 4. Cases Referred : Chronological Paras (19) 46 Ind App 33 : (AIR 1918 PC 146) 2 (28) 52 Bom 640 : (AIR 1928 Bom 516) 2

17 Mys CCR 17 2 (1871) 6 QB 361 : (40 LJQB 175) 2 M. Sadananda Swamy, for Appellant; Nittom Sreenivasa Rao and K.R. Gopivallabha Iyengar, for Respondents. Judgement This appeal arises from a suit on two hundies dated 30-1-1945 against three defendants the first being described as a firm and the others as its partners. Defendant 3 the executant of the hundies was ex parte and the decree passed against him remains unquestioned. The dispute in the case centred on the liability of defendant 2. He denied the existence of any partnership between him and defendant 3 and contended that in view of the execution of the hundies by defendant 3 in his individual capacity the claim against any one else is untenable. The learned Subordinate Judge rejected these pleas and decreed the suit against all defendants but on appeal by defendant 2 the decree passed against him was set aside. The plaintiff appeals.

2. The liability of defendant 2 depends on his having been a partner or his holding out to be a partner on the date of the hundies and defendant 3 having signed the hundies on behalf of the firm. If there was no firm in existence, as a matter of fact, no liability can attach to defendant 2 by defendant 3 professing to sign the hundies in any capacity. Even if there was a firm of which defendant 2 was partner, he would not be liable on the hundies signed by defendant 3 in his individual capacity. There is no reference in the hundies to defendant 3 being a partner and the undertaking to repay the amount is expressed to be his. The seal bears only the name of defendant 3 and this cannot by itself suggest or indicate the existence of a firm of that name. Assuming that defendants 2 and 3 were partners, since there is nothing to show that defendant 3 purported to bind the firm, the claim against defendant 2 has to fail. In 17 Mys CCR 17 it has been clearly laid down that a bill of exchange or a promissory note will not be binding on a firm unless the name of the firm or names of all its members appear on the instrument. The executant in that case described himself in the body of the pronote and while signing it as a partner of another. Yet it was held that the partner was not liable. In Dutton v. Marsh, (1871) 6 QB 361, the pronote bore the seal of a company of directors of which they were the executants and they described themselves as such in the instrument. Nevertheless, the company was held to be not liable and the seal of the company did not affect it. As Lord Buckmaster expressed in Sadasuk Janki Das v. Kishen Pershad, 46 Ind App 33 (PC) "It is not sufficient that the principals name should in some way be disclosed; it must be disclosed in such a way that on any fair interpretation of the instrument his name is the real name of the person liable upon the bill". Sitaram Krishna v. Chimandas Fatehchand, 52 Bom 640 was also a case in which the firm of which the executant of a Hundi was a member was held to be not liable though the executant described himself as managing proprietor of the firm. Emphasis was laid in this case on the use of the personal pronoun I in the body of the instrument. The same considerations should govern the present one and in view of the absence of any words to imply that the bundles were executed for and on behalf of the firm, defendant 2 is entitled to seek exemption from liability.

3. This is sufficient to dismiss the appeal as the result cannot be different even if defendant 2 was a partner of defendant 3. It may, however, be mentioned that the alleged partnership between defendants 2 and 3 for which the admission of defendant 2 in a letter addressed to the Indian Bank is relied upon had come to an end as intimated to the Bank in a subsequent letter prior to the date of the hundies. Whatever may be the value of the statements made to the Indian Bank, these cannot help the plaintiff to impute liability to defendant 2 on the score of his "Holding out" to be a partner, as it is not alleged that Defendant 2 said or did anything in relation to plaintiff, to induce a belief in him that defendants 2 and 3 were partners.

4. There is no reason to interfere with the decision of the learned District Judge. The appeal is dismissed with costs. Appeal dismissed. AIR (39) 1952 MYSORE 117 (C. N. 55) "Sidde Gowda v. Nadakala Sidda" MYSORE HIGH COURT Coram : 1 BALAKRISHNAYYA, J. ( Single Bench ) Sidde Gowda, Defendant-Appellant v. Nadakala Sidda Naika and others, Plaintiffs-Respondents. Second Appeal No. 7 of 1948-49, D/- 27 -3 -1952. (A) Evidence Act (1 of 1872), S.115 - ESTOPPEL - Equitable estoppel - Circumstances under which arises - Estoppel by acquiescence - Necessary conditions. An equitable estoppel arises against a person if he either does something from which it can reasonably be inferred that he induced the other persons to think that he would raise no objection to what they were doing or knowing the facts which are unknown to the other persons acting in violation of the right which those facts give he does not inform them about it but lies by and lets them run into a trap : (1884) 25 Ch D 559, Foll. (Para 3) Before the doctrine of estoppel by acquiescence can apply against A when he stands by while his right is being infringed by B the following circumstances must exist. (a) B must be mistaken as to his legal rights. (b) B must expend money or do some act on the faith of his mistaken belief. (c) A must know of his own rights. (d) A must know of Bs mistaken belief. (e) A must encourage B in his expenditure of money or other act directly or by abstaining from asserting his legal rights. (1880) 15 Ch D 96, Foll. (Para 3) Anno : Evidence Act, S. 115, N. 5, 14. (B) Transfer of Property Act (4 of 1882), S.51 - IMMOVABLE PROPERTY - APPLICABILITY OF AN ACT - Applicability - Conditions necessary for - Claim for compensation by trespasser. For S. 51 to apply and a claim to compensation to arise improvements to the property must have been made by a transferee who believed in good faith that he was absolutely entitled to the property. (Para 5) Such a belief even if negligent would entitle the transferee to compensation provided it is not dishonest : AIR 1926 Mad 921, followed. (Para 6) A trespasser cannot have the benefit of the section. (Para 5) Anno : T. P. Act, S. 51, N. 1, 7, 10. (C) Transfer of Property Act (4 of 1882), S.51 - IMMOVABLE PROPERTY - Value of improvements - Test for assessment of - Relevancy of amount expended. The real issue which arises for consideration in assessing the value of improvements for the purpose of payment of compensation is whether the improvements have or have not enhanced the value of the property in the market and if there is an enhancement the extent of such enhancement. The amount of expenditure made has occasionally very little to do with that issue. (Para 6) Anno : T. P. Act, S. 51, N. 19. (D) Civil P.C. (5 of 1908), O.20, R.12 - DECREE - Mesne profits - Claim for profits prior to date of suit - Suit property purchased by A for and on behalf of villagers - Alienation of property by A and subsequent alienations by the alienees without protest from villagers - Acquiescence of villagers not clearly established by circumstances of case - Notice not given by villagers to alienees at relevant time - Held in view of the peculiar circumstances of the case as well as the absence of notice their claim for mesne profits prior to date of suit was to be rejected. (Para 7) Civil P. C., O. 20, R. 12, N. 5. Cases Referred : Chronological Paras (13) 40 Cal 555 : (18 Ind Cas 946 PC) 6 (26) AIR 1926 Mad 921 : (95 Ind Cas 789) 6 (1880) 15 Ch D 96 : (43 LT 95) 4 (1884) 25 Ch D 559 : (50 LT 673) 3, 4 (1866) 1 HL 129 : (14 WR 926) 3

V. Krishnamurthy, for Appellant; M.A. Gopalaswamy Iyengar, for Respondent No. 1. Judgement The original suit out of which this appeal arises was filed in a representative capacity, for a declaration that the plaint schedule property belongs to the, people of the village of Marase and that the alienation by the defendants does not bind the plaintiffs and for possession of the same together with mesne profits. The Munsiff dismissed the suit while the Subordinate Judge allowed the appeal and decreed the suit. The 5th defendant who is now in possession of the property and who is the third alienee has preferred this appeal against that judgment.

2. The evidence adduced in the case is conclusive that the property belongs to the villagers of Marase and the same was purchased originally by defendant 1 for and on behalf of the villagers. The documents produced in the case especially the khirdi extract (Ex. C) and the khatha extracts (Exs. D and E) clearly show that the khatha stands in the name of defendant 1 for and on behalf of the villagers while the admission of defendant 1 himself in Ex. A which is the hypothecation deed executed by him in favour of P. W. 1 to the effect that the schedule property belongs to the villagers, leaves no doubt in the matter.

3. The main dispute in the suit centres round the point whether the alienation by defendant 1 in favour of defendant 2 or the alienations subsequently effected were acquiesced in by the people of Marase village. The oral and documentary evidence that has been adduced in the case does not justify any such conclusion of acquiescence; for one thing, the sale deed Ex. II executed by defendant 1 in favour of defendant 2 is attested only by few of the villagers who cannot be said to represent the whole body of the villagers. Besides, the village panchayath which is admitted to be in existence in that village and which may be taken as representing the majority of the people of the village, has neither been consulted nor has joined in the execution of the document. The view therefore that the alienation by defendant 1 in favour of defendant 2 was acquiesced in by the people of the village cannot be countenanced. Mr. V. Krishnamurthy, the learned Counsel for the appellant has strenuously argued that defendant 2 was in possession of the schedule property for a period of 4 or 5 years after the sale in his favour, that the villagers did not protest and that this conduct on their part goes to show that there was a clear acquiescence on their part and operates by way of estoppel against them. In support of his contention he relied on Ramsden v. Dyson, (1866) 1 HL 129 and Willmott v. Barber. (1880) 15 Ch D 96. In the latter case Fry, J., points out that five conditions should be fulfilled before the doctrine of estoppel can apply. When A stands by while his right is being infringed by B the following circumstances must exist in order that the estoppel may be raised against A.

(i) B must be mistaken as to his legal rights. If he is aware that he is infringing the rights of another he takes the risk of the rights being asserted.

(ii) B must expend money or do some act on the faith of his mistaken belief. Otherwise he does not suffer by As subsequent assertion of his rights.

(iii) A must know of his own rights. Acquiescence is founded on conduct with a knowledge of ones own legal rights.

(iv) A must know of Bs mistaken belief. If he has that knowledge it is inequitable for him to keep silent and allow B to proceed in his mistake, but if he has not that knowledge, there is nothing which calls upon him to assert his own rights and

(v) A must encourage B in his expenditure I of money or other act directly or by abstaining from asserting his legal rights. As Cotton, L.J., observed in Russell v. Watts, (1884) 25 Ch D 559 at p. 576 : "The doctrine as to a person lying by so as to create an equity against him arises, if either he does something from which it can reasonably be inferred that he induced the other persons to think that he would raise no objection to what they were doing; or if he knows facts which are unknown to the other persons acting in violation of the right which these facts give and does not inform them about it but lies by and lets them run into a trap".

4. In the present case all these conditions are not fulfilled. After all, the schedule property belonged to the village community. The villagers might have thought that the persons in possession were in management of the property on behalf of the villagers or in the capacity of tenants by suffrage. The fact that defendant 2 and subsequently defendants 3 and 5 were in possession of the schedule property does not in any way affect the rights of the villagers. There is nothing on record to show that the villagers "encouraged", as Justice Fry puts in in Willmott v. Barber, (1880-15 Ch D 96) quoted above, the alienees in expenditure of money or "let them run into a trap" as Lord Justice Cotton observed in Russel v. Watts, (1884) 25 Ch D 559.

5. The counsel for the appellant has relied on the equitable maxim that he who seeks equity must do equity embodied in S. 51 of the Transfer of Property Act. For the section to apply and a claim to compensation to arise improvements to the property must have been made by a transferee who believed in good faith that he was absolutely entitled to the property. A trespasser cannot have the benefit of the section.

6. In Secretary of State v. Dugappa, AIR 1926 Mad 921 Phillips, J., observed : "Negligence may in certain circumstances be consistent with honesty". Mr. V. Krishnamurthy learned counsel for the appellant urged that his client, defendant 5, effected the improvements under the mistaken belief that he was absolutely entitled to the property and that his conduct may at the worst be regarded as negligent not however inconsistent with honesty and that he is therefore entitled to the cost of the improvements effected by him. This contention is not wholly without force. The Court has to consider all the circumstances of the case in order to decide in what way equity can be satisfied. In the present case it is undisputed that defendant 5 did effect some improvements to the schedule land. The two Courts below have variously estimated the cost and extent of the improvements made. The trial Court has evaluated the improvements at Rs. 800/- while the appellate Court has inclined to the opinion that the cost of improvements does not go beyond Rs. 400/- or Rs. 500/-. It may be taken for granted that the Courts below are agreed that the cost of improvements is at any rate not less than Rs. 400/-. Taking the evidence as a whole, I am inclined to allow a sum of Rs. 400/- as being the cost of improvements effected. In assessing the value of improvements for the purpose of payment of compensation the Privy Council observed in Kidar Nath v. Mathu Mal, 40 Cal 555 PC thus : "It is to be borne in mind that the amount of expenditure made has occasionally very little to do with the real issue; and that issue is to what extent has enhancement of the subject been produced? .........The real question is, was the property as a marketable subject, enhanced in value or not" It was held in that case that a temple built on that land did not enhance the marketable value and the expenditure incurred thereon had to be excluded in computing the value of the improvements. In the present case, there is evidence to show that one acre of the suit dry land was converted into one of wet cultivation by levelling up etc. and this has certainly enhanced the market value of the land. As already observed a sum of Rs. 400/- may be taken as representing the value of improvements effected.

7. The plaintiffs have claimed mesne profits from defendants for three years prior to the suit. Taking the evidence as a whole and the peculiar circumstances and equities of the case, I am not inclined to allow the past mesne profits claimed specially in view of the fact that there was no notice to the defendants at the relevant time.

8. In the result the appeal is dismissed subject to the modification mentioned above regarding the disallowance of past mesne profits and allowing Rs. 400/- towards improvements. The plaintiffs may file a separate application for ascertainment of mesne profits from date of suit upto delivery of possession. In this appeal the parties will bear their own costs. Decree modified. AIR (39) 1952 MYSORE 119 (C. N. 56) "Revanna V. Dr. A. V. Ranga Rao" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Revanna Devaru, Defendant-Appellant v.Dr. A. V. Ranga Rao and others, Plaintiffs-Respondents. Second Appeal No. 263 of 1948-1949, D/- 26 -2 -1952. (A) Registration Act (16 of 1908), S.60 - DOCUMENTS - EVIDENCE - Certificate of registration - Presumption as to execution and genuineness of document when to be raised. Evidence Act (1 of 1872), S.114. In cases where it is impossible for any person to prove the execution of a document on account of the death of all the persons concerned, the best and only possible evidence that may be available is that of a certified copy of the registered document. It is particularly in cases of this kind that the presumption that arises under S. 60, Registration Act, should be raised. A presumption also arises under S. 114 of the Evidence Act. (Para 2) The presumption is one of fact, and the Court is at liberty to infer from all the circumstances that the document was executed by the person by whom it purports to have been executed. After all the fact that the document is registered is only a piece of evidence. It is open to the Court to accept it or reject it. While it is clear that the presumption of the genuineness of a document is not unrebuttable it is one that the Court may raise considering the circumstances of each case including the hardship that might be caused by not raising such a presumption in a proper case. (Para 2) Anno : Reg. Act, S. 60, N. 12, Evi. Act, S. 114, N. 35. (B) Limitation Act (9 of 1908), Art.144 - LIMITATION - ADVERSE POSSESSION - MORTGAGE - Adverse possession against mortgagee when adverse against mortgagor - Burden of proof. Ordinarily, adverse possession against a mortgagee is altogether ineffectual as against the mortgagor where the mortgagor was not entitled to immediate possession. But in cases where mortgagors right is assailed to his knowledge adverse possession runs against him from the time it is assailed, the Article applicable being 144 of the Limitation Act. The burden of proof to show that the possession is adverse to the mortgagor is on the person asserting that he is in adverse possession. (Para 5) Anno : Lim. Act, Arts. 142 and 144, N. 85, 87. Cases Referred : Chronological Paras (51) S.A. No. 8 of 1948-49, D/-17-8-1951, (Mys) 2 Nittoor Sreenivasa Rao, for Appellant; N. Keshava Iyengar, for No. 1 and M.L. Venkatanarasimhaiya, for Nos. 2 and 3, for Respondents. Judgement The suit out of which this appeal arises was filed by the first respondent for redemption of the properties now in dispute. According to his case the property belonged to his father Venkataramanayya and his uncle Ranganna and they mortgaged the properties with possession to Siddabasappa father of Defendants 1 and 2. The 3rd defendant has been impleaded as a person in possession of the properties, while plaintiffs brothers defendants 4 and 5 are formal parties to the suit. The main contesting defendant is the third defendant. He claims to have been in adverse possession of the property for over 12 years and denies title of the plaintiff. He does not admit that the property had been mortgaged by his father and uncle as alleged in the plaint.

2. Some oral evidence has been let in by the plaintiff to show that the mortgage deed, copy of which is Ext. J, is genuine and that the properties are his family properties and that they were in possession of the mortgagee Siddabasappa. P. W. 2 an old man of 80 at the time of his examination in 1947, was a young man of 25 years on the date of the original of Exhibit J. He says that he was present at the time Ranganna, plaintiffs uncle presented the document for registration and admitted its execution both on his behalf and on behalf of his brother Venkataramanayya. Exhibit B is the original of power of attorney under which Venkataramanayya had authorised Ranganna to admit execution before the Sub-Registrar not only of the original of Exhibit J but also of Exhibit E and two other documents. It must also be noted that the handwriting of Subbannachar in Ext. B has been spoken to by this witness. Exhibit E which purports to have been executed in favour of the grand-father of P. W. 2 was also registered on the day on which the original of Exhibit J was registered. All this probabilises the evidence of P. W. 2. Apart from the evidence of this witness, it must be stated that the mortgage deed of which Ext. J is a copy, is a registered document which came into existence about 60 years ago and neither the attestors nor the writer are alive and the parties to the documents are also dead. It is particularly in cases of this kind that the presumption that arises under Section 60 of the Registration Act should be raised. A presumption arises under S. 114 of the Evidence Act. As has been observed by this Court in Hutche Gowda v. Chennige Gowda, S.A. No. 8 of 1948-49 (Mys) : "In case of a registered document the document is registered only after the officer appointed for the purpose satisfies himself that the document has been duly executed. In many cases an endorsement of the Sub-Registrar proves that a person who purports to have executed the document has presented it for registration and has received consideration in the presence of the Sub-Registrar . . . . . . . . . The presumption is one of fact, and the Court is at liberty to infer from all these circumstances that the document was executed by the person by whom it purports to have been executed. After all the fact that the document is registered is only a piece of evidence. It is open to the Court to accept it or reject it. . . . . . . . . . . . . . . . . . . . . . . . . . . While it is clear that the presumption of the genuineness of a document is not unrebuttable it is one that the Court may raise considering the circumstances of each case including the hardship that might be caused by not raising such a presumption in a proper case. . . . . . . . . . . . . . . . . . . . . . . . . . . . In cases where it is impossible for any person to prove the execution of a document on account of the death of all the persons concerned, the best and only possible evidence that may be available is that of a certified copy of the registered document."

3. The lower appellate Court was therefore right in holding that the mortgage deed, copy of which is Exhibit J is a genuine document.

4. The evidence of some of the P. Ws. that the father of Defendants 2 and 3 was in possession of the property is corroborated by the documentary evidence which shows that he has paid kandayam for the suit lands for some years. The fact that four of the suit lands stand in the Khatha of Venkataramanayya and the fact that the defendants have not been able to show what their title is, probabilise the case of the plaintiff that the properties belonged to his father. Considering these aspects of the matter there is hardly any doubt that the father and uncle of plaintiff mortgaged with possession the plaint schedule properties to Siddabassappa and put him in possession of the same.

5. That the third defendant and his father have been in possession of the property for over 12 years is a point about which there is no dispute. But the main point for consideration however is whether it is adverse to the title of the mortgagor. It is a well established fact that ordinarily adverse possession against a mortgagee is altogether ineffectual as against the mortgagor where the mortgagor was not entitled to immediate possession, the principles applicable being contra non valentem agero mon currit praescripto (Prescription does not run against a person who is unable to act). It may however be stated that in cases where mortgagors right is assailed to his knowledge adverse possession runs against him from the time it is assailed, the Article applicable being 144 of the Limitation Act. The burden of proof to show that the possession is adverse to the mortgagor is on the person asserting that he is in adverse possession. If for instance more than 12 years before suit the plaintiff had issued a notice to the defendant and he denied the plaintiffs title, it would be a clear case of the third defendant having assailed the mortgagors right and acquiring his right also by adverse possession. No such claim is made by the 3rd defendant. The plaintiffs suit for redemption is therefore in time and is not barred by adverse possession. The lower appellate Courts decision is therefore upheld and this appeal stands dismissed with costs. Appeal dismissed. AIR (39) 1952 MYSORE 120 (C. N. 57) "R. Muninarayana v. C. P. Chinnaswamy" MYSORE HIGH COURT Coram : 1 VENKATA RAMAIYA, J. ( Single Bench ) R. Muninarayana Reddy and others, Defendants-Appellants v. C. P. Chinnaswamy Gownder, Plaintiff-Respondent. Second Appeal No. 8/1949-50, D/- 28 -3 -1952. Transfer of Property Act (4 of 1882), S.55(1)(g) - SALE DEED - DEED - DOCUMENTS - REIMBURSEMENT - Sale of property - Encumbrance on property - Recital in sale deed varied by subsequent letter written by purchaser - Admission of letter in evidence - Discharge of encumbrance by purchaser - Re-imbursement. Evidence Act (1 of 1872), S.92. Immovable property was purchased by A from B under a registered sale deed. The sale deed contained a recital that there were no encumbrances, even though admittedly there was a charge on the properties for a loan by Government. Subsequently while seeking transfer of the khata of the properties to his name, A wrote to the Amildar stating that he had purchased the same subject to the payment of the loan and that B conveyed all his rights and liabilities. Subsequently A sued B for recovery of the amount paid by him towards the loan : Held (1) that the decision to be arrived at did not depend solely on the terms of the sale deed but on the subsequent agreement or admission contained in the letter of A. (2) That the recital in the sale deed concerning encumbrances not being a term of the sale deed, evidence to prove that A was aware of the defect was not inadmissible under S. 92 of the Evidence Act. AIR 1925 Mad 968, Rel. on. (Para 4) (3) That A was not entitled to be reimbursed for the payment of loan made. (Para 5) Anno : T. P. Act, S. 55, N. 8; Ev. Act, S. 92, N. 25. Cases Referred : Chronological Paras (25) AIR 1925 Mad 968 : (85 Ind Cas 999) 4 A.R. Somanatha Iyer, for Appellants; M.P. Somasekhara Rao, for Respondent. Judgement Respondent sued appellants for recovery of Rs. 163-14-0 paid by him towards a debt contracted by appellants with the Government of Mysore on the security of certain immovable properties which were purchased by him. The properties were purchased under a registered sale deed dated 18-11-1946 for a sum of Rs. 32,000/-, the recital in the sale deed being that there were no encumbrances. Admittedly there was a charge on the properties for a loan by Government. Subsequently while seeking transfer of the khata of the properties to his name, the respondent wrote to the Amildar stating that he had purchased the same subject to the payment of the Land Improvement Loan and that the appellants conveyed all their rights and liabilities. There was a similar communication by the appellants.

2. The plaint makes no reference to the letters of the parties but alleges fraudulent suppression of information about the prior encumbrances. When confronted with these at the trial, the respondent set up a story of his having affixed his signature to a writing said to be required for transfer of electric bills to his name; in other words, that his signature was obtained on a misrepresentation. The explanation was disbelieved and the trial court dismissed the suit. The learned Subordinate Judge on appeal without disturbing this finding has granted a decree. His view seems to be that though the letter is genuine it cannot affect the obligation of the vendors under Section 55 of the Transfer of Property Act as there is no provision in the sale deed to exempt the vendors from liability for discharge of prior encumbrances.

3. In my opinion, the reasoning of the learned Judge is not correct, as the decision to be arrived at does not depend solely on the terms of the sale deed but on the subsequent agreement or admission, the genuineness of which cannot be doubted. The respondent is a literate and intelligent man of experience and must be presumed to have sent the letter knowing fully the meaning and effect of the contents. If the terms of that letter could be taken into account, the claim has to be disallowed as it expressly mentions that respondent has undertaken liability for the repayment of dues.

4. Sri Somasekhara Rao argued that the letter not being registered cannot alter or modify the rights of parties under the registered sale deed. The argument would be correct if Sections 91 and 92 of the Evidence Act can be relied upon for this. It is not by means of oral evidence that the terms of the sale deed are sought to be varied but on the strength of a written agreement. The bar to the letter must if at all lie on the ground of need for its being registered. It cannot apply unless the recital in the sale deed concerning encumbrances is a term of the sale deed. In Ramsubba Iyer v. Muthiah Kone, AIR 1925 Mad 968, it was held that a recital of this kind is not a term of the contract and evidence to prove that the vendee was aware of the defect was held to be not inadmissible under Section 92 of the Evidence Act.

5. Since the letter is admissible and proved, the respondent is bound by his undertaking to pay the loan. He is not therefore entitled to be reimbursed for the payment made. The appeal is allowed and in reversal of the decree of the learned Subordinate Judge the suit is dismissed with costs throughout. Appeal allowed. AIR (39) 1952 MYSORE 121 (C. N. 58) "Rangamma v. Rangamma" MYSORE HIGH COURT Coram : 2 BALAKRISHNAYYA AND VASUDEVA MURTHY, JJ. ( Division Bench ) Rangamma, Decree-holder-Appellant v. Rangamma and others, Respondents. Second Appeal No. 75 of 1950-51, D/- 8 -11 -1951. Limitation Act (9 of 1908), Art.182, Expln.1 - LIMITATION - DECREE - EXECUTION - Joint or several decree - Joint liability of all defendants - Mode of satisfaction of decree against one limited to certain terms - Execution application against him saves limitation against others. In order to constitute several and separate decrees, the subject-matter of the suit must be apportioned between the different defendants and each has to be made liable for a portion, the total of all the portions giving the whole of the relief claimed in the decree. If there are several decrees in a suit, without assigning exclusively the respective liability of the individuals, but the directions in the decrees differ in respect of some of the several defendants in the mode of execution, it does not affect the fact that all of them are jointly liable for the decretal amount. (Para 5) A decree was passed in a suit for maintenance ex parte on 10-1-1942 against all the defendants for a sum of Rs. 600/- being arrears of maintenance claimed and future maintenance was awarded at Rs. 125/- per annum; the decree amount was made a charge on the plaint schedule properties. Subsequently the ex parte decree was set aside against one of the defendants who entered into a compromise and a decree in terms of the compromise was passed on 26-1-1943, one of the terms being that the plaintiff should be delivered Item 3 of the plaint schedule absolutely in lieu of maintenance. Two execution petitions for enforcing the terms of the compromise decree being dismissed (one on 27-10-44 and the other on 10-1-47) the decree-holder filed an execution petition on 12-1-1948 for enforcing the terms of the ex parte decree. It was contended that it was barred by time. Held, the liability of the defendants was joint though the mode of satisfaction in the case of one of them was limited to certain terms. The decree being joint, the previous execution applications kept the ex parte decree alive against the others. (Para 5) Anno : Lim. Act. Art. 182, N. 138. Cases Referred : Chronological Paras (11) 33 All 264 : (9 Ind Cas 975 PC) 5 (26) AIR 1926 All 440 : (48 All 377) 5 (29) AIR 1929 All 795 : (118 Ind Cas 237) 5 (35) AIR 1935 Lah 949 : (162 Ind Cas 208) 5 (15) 38 Mad 419 : (AIR 1916 Mad 1 FB) 5 (27) AIR 1927 Mad 1103 : (106 Ind Cas 391) 5 (48) ILR (1948) Mad 624 : (AIR 1948 Mad 246) 5 (45) Second Appeal No. 528 of 1944-45 (Mys) 3, 6 (48) S.A. No. 437 of 1947-48 (Mys) 3, 6 (27) AIR 1927 Pat 416 : (103 Ind Cas 867) 5 (42) AIR 1942 Pat 285 : (197 Ind Cas 480) 5 M.A. Gopalaswamy Iyengar, for Appellant; B. Venkata Rao, for Nos. 2 and 3; and R.V. Srinivasaiah, for No. 4, for Respondents. Judgement BALAKRISHNAYYA, J. :- This is a decree-holders appeal. She filed Execution Case No. 26 of 48-49 for enforcement of the decree for maintenance against the charged properties. Judgment-debtor 4 pleaded that the application is barred by time. Both the lower Courts have upheld his plea and dismissed the application. This appeal is filed against the order of the first appellate Court.

2. The facts leading to the case, briefly stated, are as under. In O.S. No. 245 of 40-41, filed by the plaintiff, a decree was passed ex-parte on 10-1-1942 against all the defendants for a sum of Rs. 600/- being arrears of maintenance claimed and future maintenance was awarded at Rs. 125/- per annum; the decree amount was made a charge on the plaint schedule properties. Subsequently, defendant 1 applied to the Court for setting aside the ex parte decree and the decree was set aside only as against defendant 1 leaving the decree intact as against the others. The plaintiff and defendant 1 then entered into a compromise and a decree in terms of the compromise was passed on 26-1-1943, one of the terms being that the plaintiff should be delivered Item 3 of the plaint schedule absolutely in lieu of maintenance. The said property (Item 3) was in the possession of defendant 4 as mortgagee. (For the sake of convenience, the decrees will be referred to hereafter as "the ex parte decree" and "the compromise decree" respectively).

3. The decree-holder filed an application for execution in Execution Case No. 241 of 43-44 on 4-11-1943 which was dismissed on 27-10-1944. Again, another application Execution Case No. 394 of 45-46 was filed on 21-3-1946 and was dismissed on 10-1-1947. The present execution petition was filed on 12-1-1948. The first two applications were for enforcing the terms of the compromise decree. Judgment-debtor 4 having raised the objection that the terms of the compromise decree were not binding upon him, it was held by this Court in the final appeals in both the cases viz., S. As. Nos. 528 of 1944-45 and 437 of 1947-48, that defendant 4 was liable only under the ex parte decree and the terms of the compromise decree were not enforceable against him. It need hardly be stated that judgment-debtor 4, the contesting respondent here, and the other judgment-debtors were all made parties to both the applications. The application now under consideration is for the enforcement of the terms of the ex parte decree. It is contended that the application is barred by time.

4. The main point that falls for consideration is whether the earlier applications which were concerned with the execution of that portion of the decree by compromise against judgment-debtor 1 keep alive the ex parte decree against the others. For that purpose, the nature of the decrees passed in the original suit has to be determined. The Courts below have misconceived the position and proceeded on the assumption that there are two separate and distinct decrees, distinguishing the portions of the subject-matter of the suit. We are unable to support that decision.

5. In order to constitute several and separate decrees, the subject-matter of the suit must be apportioned between the different defendants and each has to be made liable for a portion, the total of all the portions giving the whole of the relief claimed in the decree. "Where a decree is obtained against a number of persons and the decree requires each judgment-debtor to pay his own share only of the decretal amount and costs, it must be considered that there are separate decrees against them individually" Vide Umrao Singh v. Hafiz Muhammad Abdullah, AIR 1935 Lah 949. In the present case, the subject-matter of the suit is a single claim for maintenance made against all the defendants. Neither the ex parte decree, by itself, nor the subsequent compromise decree is capable of giving the plaintiff the full relief against the several defendants. Where in a single subject-matter there are two decrees, Lord Mersey observes in Ashfaq Husain v. Gauri Sahai, 33 All 264 that "the latter decree supplemented and completed the former". The facts in the case before the Judicial Committee are substantially similar to the present case. A decree was passed on 25-8-1900 against several defendants. As against one defendant, however, the decree was ex parte and it was set aside only against her on 11-3-1902. Subsequently, a decree was passed on merits against this defendant on 15-8-1902. An application for execution was filed on 21-12-1905 against all the defendants. An objection was taken that as the original decree was passed on 25-8-1900, the application was barred by time. Their Lordships held that the two decrees were steps in granting the plaintiff the relief to which he was entitled. The latter decree supplemented and completed the former. If there are several decrees in a suit, without assigning exclusively the respective liability of the individuals, but the directions in the decrees differ in respect of some of the several defendants in the mode of execution, "it does not" as laid down in Moti Lal Agarhari v. Champalal, AIR 1929 All 795 "affect the fact that all of them are jointly liable for the decretal amount". Whether a decree passed in parts is joint or several has to be ascertained in the following way. If satisfaction of the decree by one of the several defendants discharges the liability as against all, the decree is necessarily a joint decree; if, on the other hand, by such satisfaction the liability of one or more only is discharged to the exclusion of others, whose liability remains, the decree should be construed as being several and distinct. In the present case, the liability is joint though the mode of satisfaction in the case of judgment-debtor 1 is limited to certain terms. The satisfaction of the decree by anyone of the several defendants to the ex parte decree discharges the liability of all; vice versa, the satisfaction of the compromise decrees by judgment-debtor 1 satisfies the ex parte decree against all others. We are, therefore, of opinion that it is a single and joint decree against the several defendants. This leads us to the consideration whether the execution proceedings in terms of the compromise decree keep alive the terms of the ex parte decree. Article 182 of the Limitation Act prescribes the time at which the period of limitation begins to run to be "the final order passed on an application made", and the latter part of the second para of Explanation I to Article 182 states that "where the decree has been passed jointly against more persons than one, the application if made against any one or more of them ......shall take effect against them all." Explanation I of Article 182 regarding the effect of joint and several decrees is in terms applicable to the applications mentioned in Cl. 5 of Art. 182. The principle is that if the judgment-creditor does something which keeps alive a joint decree as against one of his judgment-debtors the decree is to be regarded as alive as against all the joint judgment-debtors, and if it is alive it is, of course, capable of execution : Vide Abdul Khadir v. Ahammad Shaiwa Ravuthar, 38 Mad 419 (FB) at p. 422. In cases which are referred to in Article 182 there is an equity arising by the fact that the judgment-creditor has done something for the purpose of realising the fruits of his judgment. In the lease of a joint decree against several persons an execution application against some of them saves limitation against all the judgment-debtors. Vide Ramasray Chaudhury v. Lachmi Narayan, AIR 1927 Pat 416, or even against the legal representatives of a judgment-debtor who were not parties to such an application Vide Kotigadu v. Subbayya, AIR 1927 Mad 1103. Again, in Kamal Kishore v. Birjendar Narain, AIR 1942 Pat 285, it has been held (following 103 Ind Cas 887 : AIR 1927 Pat 416) that in the case of a joint and several decree an application for execution made against any one of the judgment-debtors is a step-in-aid of execution against all. In Nand Lal Saran v. Dharam Kirti Saran, AIR 1926 All 440 at p. 444, it is stated as follows : "The principle appears to be that when A, B and C are jointly liable and the decree-holder is attempting to recover the decretal amount from one of them, he should not be barred from recovering it from the rest, if he fails to recover it from the particular Judgment-debtor ......... in such a case it will be equitable to direct that steps taken in aid of execution against one of the judgment-debtors should save limitation as against others. It is also obvious that where a joint decree is passed the decree-holder cannot execute it at one and the same time against them all separately for the same amount." In a recent decision of the Madras High Court reported in Lakshminarasimham v. Suryanarayana, ILR (1948) Mad 624; it has been held that though a decree includes several reliefs based upon distinct causes of action, it is nevertheless one decree within the meaning of Article 182 and it is open to the decree-holder in execution executing the decree in respect of same reliefs to rely on Clause 5 of Article 182 for calculating limitation from the dates of the final orders on previous execution petitions notwithstanding that those petitions related to other and different reliefs granted under the decree. The principle deducible from the decided cases is that the criterion to save limitation is that the decree should have been passed jointly irrespective of the fact that the reliefs granted under the decree are similar or otherwise. We have, therefore, no hesitation in holding that in the present case the decree is joint and the previous execution application keeps the decree alive against all the defendants.

6. Another contention by way of res judicata was raised by the respondents. It is based on an observation in the judgment in S.A. No. 437 of 1947-48 of this Court to which one of us is a party. The particular passage to which our attention is drawn is as follows : "As already mentioned, it has been declared in the said second appeal S.A. No. 528 of 1944-45 that the terms of the rajinama decree are not binding on defendant 4 and therefore the previous execution application could not possibly be taken as being a step-in-aid of execution of the ex parte decree." The latter expression "and therefore ......... the ex parte decree" is not found in S.A. No. 528 of 1944-45 and if it should be construed as an inference raised in S.A. No. 437 of 1947-48, it is clearly an obiter for deciding the latter case, the only question which arose for decision in that case being whether the compromise decree could be executed against defendant 4 who was no party to it. The following passage occurring subsequent to the passage quoted above from S.A. No. 437 of 1947-48 makes the position clear which runs thus : "The question whether the ex parte decree which is held to be binding on defendant 4 is executable against defendant 4 cannot be gone into in this appeal and the respondent may file an application seeking to enforce the terms of the ex parte decree which has to be disposed of on merits after hearing the objections that may be urged by defendant 4." No bar of res judicata can arise in any other sense as the previous applications were different and were for separate reliefs. This contention has no substance and cannot be accepted.

7. In conclusion, we are unable to support the orders of both the lower Courts and the said orders are hereby set aside. The records are sent back to the trial Court with a direction that the execution application may be restored to file and disposed of on merits.

8. The parties will bear their own costs in this Court. Order set aside. AIR (39) 1952 MYSORE 123 (C. N. 59) "K. S. Namjundaiah v. S. C. Thippanna" MYSORE HIGH COURT Coram : 1 BALAKRISHNAYYA, J. ( Single Bench ) K. S. Namjundaiah, Complainant-Petitioner v. Setti Chikka Thippanna, Accused-Respondent Criminal Revn. Petn. No. 179 of 1951-52, D/- 27 -3 -1952. (A) Penal Code (45 of 1860), S.499 and S.500 - DEFAMATION - OBJECT OF AN ACT - WORDS AND PHRASES - Scope - Expression "Black marketeer" is per se defamatory within meaning of section. (Para 3) Anno : Penal Code, Ss. 499 and 500, N. 1. (B) Penal Code (45 of 1860), S.499 and S.500 - DEFAMATION - EVIDENCE - Evidence and Proof - Necessity for proof of exact words used. To say that the witness should remember and reproduce the identical or the very same words in the order they were uttered and that even if there is some variation in the words used or trifling inconsistency in the words of different witnesses, such evidence should be discarded, would be to lay down rather a too broad or a too dangerous proposition. It is sufficient for the purposes of the section, if witnesses are agreed in a substantial measure on the words of imputation uttered as it is hardly possible or necessary to reproduce every word or expression used. (Para 4) Anno : Penal Code, Ss. 499 and 500, N. 14. (C) Penal Code (45 of 1860), S.499 and S.500 - DEFAMATION - Essence of offence of defamation - Necessity for proof of actual harm. The essence of the offence of defamation consists in its tendency to cause that description of pain which is felt by a person who knows himself to be the object of the unfavourable sentiments of his fellow creatures and those inconveniences to which a person who is the object of such unfavourable sentiments is exposed. It is not necessary to constitute the offence that actual harm should be caused. It is sufficient if it is proved that harm to the reputation of the person, to whom the imputation is directed, was intended : 35 Mys CCR 397, Rel. on. (Para 5) Anno : Penal Code, Ss. 499 and 500, N. 1, 14. (D) Criminal P.C. (5 of 1898), S.439 - REVISION - APPEAL - HIGH COURT - Revision against acquittal - Acquittal in appeal - Power of High Court to order re-trial. Under S. 439, the High Court can exercise in revision all the powers vested in a Court of Appeal under S. 423 subject only to a limitation of not converting a finding of acquittal into one of conviction. The High Court in revision is thus not precluded from interfering with an appellate judgment of acquittal or from reversing such order and directing retrial in cases where it is found that there has been a failure of justice : 9 All 134 (FB), Rel. on; AIR 1925 All 473; AIR 1938 Cal 613 and AIR 1951 SC 316, Ref. to. (Para 6) Anno : Cri. P. C., S. 439, N. 12, 18 and 25a. Cases Referred : Chronological Paras (51) 1951 SCJ 503 : (AIR 1951 SC 316 : 52 Cri LJ 1248) 5 (87) 9 All 134 (FB) 6 (25) AIR 1925 All 473 : (26 Cri LJ 970) 6 (29) AIR 1929 All 1 : (30 Cri LJ 101) 4 (38) AIR 1938 Cal 613 : (39 Cri LJ 988) 6

35 Mys CCR 397 5 N. Ramachandra Rao, for Petitioner; G.V. Ramachar, for Respondent. Judgement In C.C. No. 123 of 1948-49 on the file of the Special First Class Magistrate, Chickballapur, the respondent was convicted for an offence under Section 500, I. P. C., and sentenced to pay a fine of Rs. 200/-. On appeal, the learned First Addl. Sessions Judge, Bangalore, acquitted the accused on the ground that no case is made out against him. The complainant has preferred this revision petition against that order.

2. Defamation is defined by Section 499, I. P. C., thus : "Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person."

3. It is not disputed that the expression "black-marketeer" which is per se defamatory within the meaning of the aforesaid section was used by the accused in relation to the complainant in a public gathering which was presided over by a Government officer and in which besides the parties to this proceeding a large number of respectable persons of the locality were present.

4. The main ground upon which the accused has been acquitted by the learned Sessions Judge is that there is no satisfactory evidence regarding the exact words of imputation. In para 4 of his judgment, he states thus : "Even regarding the exact words which were alleged to have been uttered by the appellant, there is no satisfactory evidence. Each witness has given his own version about the words that were uttered by the appellant. The learned Magistrate has discussed this aspect of the case and has admitted that the evidence of the prosecution witnesses varied regarding the exact words used, but he was of the opinion that the one important factor common in the version of all the witnesses was that the appellant stated that Nanjundiah was dealing in black-market. In a case of defamation like the present one, it is absolutely necessary that the exact words uttered by the accused should be alleged and should be proved to have been uttered by him by consistent evidence and any discrepancy therein cannot go to the advantage of the respondent, but such a benefit should always be extended to the appellant. Therefore, from the consideration of the entire evidence, I am of the opinion that the respondent has not proved his case against the appellant conclusively and that the learned Magistrate was wrong in coming to the conclusion that the appellant was liable for an offence under Section 500, I. P. C., and convicting him." It is rather difficult to understand what the learned Judge means when he says that "exact words" of imputation have not been reproduced consistently by all the witnesses. If it is meant that the witnesses should remember and reproduce the identical or the very same words in the order they were uttered and that even if there is some variation in the words used on trifling inconsistency in the words of different witnesses, such evidence should be discarded, it would be laying down rather a too broad or a too dangerous proposition. In our opinion, it is sufficient for the purposes of the section, if witnesses are agreed in a substantial measure on the words of imputation uttered as it is hardly possible or necessary to reproduce every word or expression used. In BHOLA NATH v. EMPEROR, AIR 1929 All 1 at p. 9 King, J., remarked thus : "It is unnecessary to prove the exact words used by the accused for the purpose of supporting a conviction for oral defamation. It is sufficient to prove the purport or substance of the defamatory imputations. No honest witness would profess to remember the exact words used by a person who has been speaking for even 15 minutes. At the most he may remember some striking phrase or expression. But a witnesss failure to recall the exact words used, or the exact context in which they were spoken, is immaterial, provided that he can give a sufficiently clear account of the purport of the defamatory remarks." Applying this test, it is clear that the appellate Judge has not correctly interpreted the provision of law, and the order of acquittal cannot be supported. 5. Again, it is sought to be argued in this Court that even if accused had uttered the words referring to the complainant as "black-marketeer" it was so done in a spirit of good faith actuated by a sense of social and moral duty and that no actual harm has been caused to the reputation of the person against whom the imputation is made. Ratanlal in his Law of Crimes has stated at page 1235 that in the words of the authors of the Code, "the essence of the offence of defamation consists in its tendency to cause that description of pain which is felt by a person who knows himself to be the object of the unfavourable sentiments of his fellow creatures, and those inconveniences to which a person who is the object of such unfavourable sentiments is exposed." It thus appears to be not necessary that actual harm should be caused, but it is sufficient, if it is proved that harm to the reputation of the person to whom the imputation is directed was intended. As observed by Doraswami Iyer, C.J., in 35 Mys CCR 397, "it is sufficient, if the person who made the imputation did so with the intention of causing harm, or knowing or having reason to believe, that such imputation will harm the reputation of the other." The learned counsel for the respondent brought to the notice of the Court the recent decision of the Supreme Court in LOGENDRANATH JHA v. POLAI LAL BISWAS, 1951 SCJ 503, wherein it has been observed : "Though sub-section (1) of Section 439, Criminal Procedure Code, authorises the High Court to exercise, in its discretion, any of the powers conferred on a Court of appeal by Section 423, sub-section (4) specially excludes the power to convert a finding of the acquittal into one of conviction. This does not mean that in dealing with a revision petition by a private party against an order of acquittal the High Court could in the absence of any error on a point of law re-appraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding the accused guilty and passing sentence on him. By merely characterising the judgment of the trial Court as perverse and lacking in perspective the High Court cannot reverse pure findings of fact based on the trial Courts appreciation of the evidence in the case." It is apparent from the above decision that where there is an error on a point of law, the revisional jurisdiction of the High Court under Sec. 439, Cr. P. C., is not excluded to prevent substantial injustice. A doubt has further been raised whether the High Court could interfere and reverse the order of acquittal passed by a Sessions Judge in appeal.

6. It is undoubted that under Section 439, Cr.P.C., the High Court can exercise in revision all the powers vested in a Court of Appeal under Section 423, Cr.P.C., subject only to a limitation of not converting a finding of acquittal into one of conviction. The High Court in revision is thus not precluded from interfering with an appellate judgment of acquittal or from reversing such order, and directing retrial in cases where it is found that there has been a failure of justice. The latter view finds support in a decision of a Full Bench of five Judges Queen Empress v. Balwant, 9 All 134 wherein it is laid down that "in reference to orders of acquittal passed by a Court of Session in appeal, the High Court may under Section 439, (Cr.P.C.) reverse such order and direct a retrial of the appeal." A similar view has been taken in other cases : vide Rameshwar v. Govind Prasad, AIR 1925 All 473; and Satish Chandra v. Chinta Haran, AIR 1938 Cal 613.

7. In the result, the order of acquittal in appeal of the learned Additional Sessions Judge is set aside. The ends of justice will be served by remanding the appeal for retrial, in this instance by the Principal District and Sessions Judge, Bangalore, for disposal according to law. Revision allowed. AIR (39) 1952 MYSORE 125 (C. N. 60) "Ramachandra Rao v. S. V. Co. Ltd." MYSORE HIGH COURT Coram : 1 BALAKRISHNAYYA, J. ( Single Bench ) Ramachandra Rao Ganesh and another, Defendants-Appellants v. Sarvajana Vardhini Co. Ltd. and others, Plaintiffs-Respondents. Second Appeal No. 12 of 1949-50, D/- 27 -3 -1952. Transfer of Property Act (4 of 1882) (Before amendment in 1929), S.67, S.68 - MORTGAGE - SALE - Usufructuary mortgage containing personal covenant to pay mortgage money - Mortgagee can bring suit for recovery of money and put mortgaged property to sale. Mysore Transfer of Property Act (1928), S.67. Where in a usufructuary mortgage of immovable property there is a personal covenant to pay the mortgage amount after a stipulated period, the mortgagee is not prevented from bringing a suit for the recovery of the mortgage money after the expiry of the stipulated period and put the mortgaged property to sale. Such a transaction is a composite mortgage styled as "simple mortgage usufructuary" and when in such a case money becomes payable under S. 68 a decree for sale can be made under S. 67 : AIR 1929 PC 139, Foll; 14 Mad 232; 17 Mad 131; 27 Mad 526 (FB); AIR 1922 Pat 167; 6 Ind Cas 153 (Cal); 13 Mys CCR 45; Rel. on; 28 All 157; AIR 1938 All 418 (FB); 10 Bom LR 615, Not Foll. (Paras 4 and 6) Anno : T. P. Act, S. 67, N. 18; S. 68, N. 12. Cases Referred : Chronological Paras (29) AIR 1929 PC 139 : (4 Luck 363) 5, 6 (06) 28 All 157 : (1905 All WN 226) 6 (38) AIR 1938 All 418 : (ILR (1938) All 714 FB) 6 (08) 10 Bom LR 615 6 (10) 34 Bom 462 : (7 Ind Cas 446) 4 (10) 6 Ind Cas 153 (Cal) 6 (91) 14 Mad 232 6 (94) 17 Mad 131 : (4 Mad LJ 50 FB) 6 (04) 27 Mad 526 : (14 Mad LJ 161 FB) 6 (20) 55 Ind Cas 666 : (AIR 1920 Mad 375 FB) 4

13 Mys CCR 45 4, 6 (22) 1 Pat 350 : (AIR 1922 Pat 167) 6 M.K. Narayana Iyengar, for No. I and V. Krishna Murthy, for No. II, for Appellants; B.T. Ramaswamy and M.S. Ranganathan, for Respondent No. I. Judgement The suit out of which this appeal arises was filed for the sale of the mortgaged property of the plaint schedule in enforcement of the mortgage and for declaration that the 8th defendant was in no way entitled to any interest therein. The Munsif dismissed the suit while the learned Subordinate Judge decreed the suit.

2. The facts so far as are necessary for the determination of issues involved in the case may be briefly adverted to. Defendants 1 and 2 are father and son respectively and the schedule property was ancestral to them. The said property was mortgaged with possession by defendant 1 in favour of defendant 4 on 12-9-1928 under a registered deed of mortgage (Ex. A) for a sum of Rs. 1000/- both on his own behalf and as guardian of defendant 2. It is alleged that the said mortgage was for legal necessity and in consequence binding on defendant 2. Besides, it is also stated that the 2nd defendant had not been born at the time of the earlier mortgage dated 23-8-22, to discharge which the suit mortgage under Ex. A came into existence and that on that ground also the 2nd defendant cannot question the alienation. Under the terms of the said mortgage, the mortgagee was authorised to take possession of the schedule property. It is also agreed under the deed that the usufructuary mortgage property should be adjusted towards the interest on the mortgage amount and a period of 8 years was fixed for redemption by payment of the principal amount. Defendants 3 and 4 are two out of the four undivided brothers and it is stated that the mortgage debt referred to above in favour of defendant 4 was their family property. Defendant 4 got into possession of the property and later, on 10-7-32 defendant 3 is said to have released his interest in the joint family properties in favour of defendant 4 and his other brothers and in return thereof taken the right, title and interest under the suit mortgage deed towards his share. Defendant 3 thus became the full owner of the suit mortgage interest and got into possession and enjoyment of the property. Prior to the said release, defendant 4 is said to have hypothecated his alleged right in the suit mortgage in favour of his own wife Saroja Bai (defendant 5) on 16-5-1929 under a nominal document not intended to be acted upon by the parties. Nevertheless defendant 4 continued to be in possession of the suit property. The plaintiff sued defendant 3, obtained a decree and got his interest in the suit mortgage deed attached, and sold on 16-7-1940 and purchased it himself, in court auction. The said sale having been duly confirmed, the plaintiff thus became the absolute owner of the mortgagees interest in the suit property.

3. The only contesting defendant in the suit is defendant 1 (2?), who objected to the plaintiffs claim on the ground that he had a right to question the suit alienation on the plea that he was born in 1920. He admitted that the mortgage in favour of defendant 4 is true but that the consideration under it was left with the mortgagee to discharge the prior mortgage dated 23-8-1922 and to effect certain repairs to the property, that defendant 4 has not furnished accounts and he puts the plaintiff to strict proof of the exclusive title of defendant 3 to the property and his (plaintiffs) claim to it. Defendant 1 further alleged that he was ready to redeem the suit mortgage even in November 1936 but was not allowed to do so; that he demanded an account of the usufruct of the mortgage and urged that the plaintiff will be entitled to the suit amount if he is able to put this defendant in possession of the property and deliver the relevant documents. The two courts below held on a consideration of the evidence in the case that the plaintiff is entitled to sue defendant 3, who had become the exclusive owner of the mortgagees right in question having purchased the same in court sale and that the mortgage deed was partly supported by consideration. None of these findings are seriously challenged before us.

4. The main point raised in this Second Appeal is regarding the maintainability of the suit. It is urged by Mr. V. Krishnamurthi, the learned counsel for the appellant, that the transaction under the original of Ex. A is an out-and-out usufructuary mortgage and as such the plaintiff who has purchased the mortgagees interest is only entitled to obtain possession of the property and appropriate the usufruct thereof towards interest and retain possession of the property till the principal amount is paid but he has no right to sue for sale of the mortgaged property for the recovery of the principal amount. An examination of the recitals in Ex. A, the suit document, shows that it is not strictly an usufructuary mortgage, since it also contains a personal covenant to pay the mortgage amount after the stipulated period of eight years. It is thus a composite mortgage usually styled as "simple mortgage usufructuary." The facts of the present case are almost exactly similar to those described in 13 Mys CCR 45 where it was held that where in a usufructuary mortgage of immoveable properties there is a stipulation for redemption of the mortgage money within a specified period, such a mortgagee is not prevented from bringing a suit for the recovery of the mortgage money after the expiry of the stipulated period and put the mortgaged property to sale. The same view is also taken in the cases reported in Dattambhat Rambhat v. Krishnabhat Govindbhat, 34 Bom 462 and Ponnambala Pillai v. Annamalai Chettiar, 55 Ind Cas 666 (Mad) (FB) and the latter case goes to the length of laying down that even where the mortgagee is in possession he can sue for the money or for the sale of the mortgaged property when the fixed period has been stipulated in the mortgage deed for the payment of the mortgage amount.

5. A typical instance of the combination of a simple with a usufructuary mortgage came up before the Privy Council in Narsing Pratab Bahadur Singh v. Yakub Khan, AIR 1929 PC 139, Lord Tomlin observed : "Their Lordships are of opinion that under Sec. 68. T.P. Act, the money has been payable and the plaintiff is entitled to a money decree for the same, but if the money has become payable under Sec. 68, their Lordships are further of opinion that under Sec. 67 a decree for sale can be made."

6. If the power of sale is clearly conferred or there is a clear hypothecation of the property the remedy of judicial sale is available. Ramayya v. Guruva, 14 Mad 232; Sivakami v. Gopala, 17 Mad 131 (FB). Where there is only a personal covenant in a composite mortgage without any provision that in default of payment the hypotheca may be sold, the question arises whether the mortgagee can sue for the sale of the hypotheca. On this point, there is a conflict of judicial opinion. The Allahabad High Court holds that a suit for sale does not lie in such circumstances. Thus in Kashiram v. Sardar Singh, 28 All 157 the Allahabad High Court held that where a mortgage is in other respects a usufructuary mortgage the insertion therein of a personal covenant to pay the mortgage debt, on demand, unaccompanied by any hypothecation of the property, the subject of the mortgage, cannot alter the character of the mortgage and give the mortgagee a right to sell the mortgaged property in the event of non-payment of the mortgage debt. The same view is reiterated in Kanhaiya Prasad v. Mt. Hamidan, AIR 1938 All 418 (FB). The Bombay High Court has also taken a similar view vide Krishna Bhaichand v. Hari Janardhan, 10 Bom LR 615. On the other hand, the Madras High Court has taken a contrary view; vide 14 Mad 232, 17 Mad 131 and Kangaya Gurukal v. Kalimuthu Annavi, 27 Mad 526 (FB). In Jagsahu v. Ram Sakhi, 1 Pat 350 at p. 355, the Court quoted with approval the following passage from the judgment in a Calcutta case reported in Pitambar v. Madhu Sudan, 6 Ind Cas 153 (Cal). "It is well settled that where an instrument of mortgage gives a right to possession and also contains a covenant to pay, thus presenting a combination of a usufructuary and a simple mortgage, the two rights are independent and the mortgagee may sue lor sale although he may have given up possession and the right accrues immediately after the due date is passed." The view taken by the Madras High Court has been followed by this Court in 13 Mys CCR 45. The Patna and Calcutta High Courts have adopted similar views. Thus the view taken by the Madras, Patna and Calcutta High Courts is preferable in view of the decision of the Privy Council in Narsings Case, (AIR 1929 PC 139); according to which when money became payable under Section 68 a decree for sale can be made under Section 67.

7. The question may also be looked at from another stand-point. Sec. 67(a) of the Transfer of Property Act at the time of the transaction is slightly different from the then corresponding provision in India. The said section of the Transfer of Property Act as in Mysore provides that nothing in that section shall be deemed to authorise any mortgagee, other than a mortgagee by conditional sale or a mortgagee under an anomalous mortgage by the terms of which he is entitled to foreclose, to institute a suit for foreclosure, or an usufructuary mortgagee as such to institute a suit for foreclosure or sale, where he is authorised to appropriate the rents and profits in payment of the principal money or partly in lieu of the interest and partly in payment of the principal money or a mortgagee by conditional sale as such, to institute a suit for sale. This section does not contemplate a case of a mortgage which authorises the mortgagee to appropriate the usufruct towards the interest only of the amount advanced under the mortgage-deed. It is only in other cases that section 67(a) of the mysore act prohibits a suit for sale by the mortgagee. But such a case as the one on hand is not hit by that provision of law and hence is outside the mischief of Section 67(a) of the Mysore Transfer of Property Act. In any view of the matter, I am of the opinion that the mortgagee can sue for the recovery of the mortgage money in view of the personal covenant to pay contained in the mortgage deed.

8. It was next contended that the full consideration under the original of Ex. A had not been proved. The recitals in Ex. A show that out of the consideration amount of Rs. 1,000/- a sum of Rs. 800/- was left with the mortgagee to discharge the prior mortgage debt of Rs. 800/- due to one Seetharama Sastry and the balance was to be utilised for the repairs and improvements of the house. The evidence on record sufficiently proves that the previous debt of Seetharama Sastry has been paid up and the two Courts below have correctly come to the same conclusion. With regard to the balance of Rs. 200/- that was left with defendant 4 for purposes of effecting repairs and improvements to the suit property the evidence adduced is very meagre and unsatisfactory and there is no reason to disturb the concurrent findings of the Courts below, that the original of Ex. A is supported by consideration only to the extent of Rs. 800/-.

9. It is seen from the records that defendant 5 Saroja Bai remained ex parte throughout the proceedings before the Courts below and finally she died. Besides her husband defendant 4 who continued to be on record has neither contested the suit himself nor has he raised any objection on behalf of Saroja Bai. The argument that the legal representatives of the said Saroja Bai have not been brought on record and that that is a serious omission is therefore belated and untenable. Even otherwise, the ends of justice will be sufficiently met by the provision made by the Courts to take an indemnity bond from the plaintiff to indemnify the legal representatives of the deceased Saroja Bai in the event of any claim being preferred by them.

10. In the result the appeal is dismissed and the directions with regard to the preliminary decree etc. given by the learned Subordinate Judge are hereby confirmed. The parties will bear their own costs in this appeal. Cross-objection is also dismissed but without costs. Appeal and cross-objection dismissed. AIR (39) 1952 MYSORE 127 (C. N. 61) "Hassan Co-op. Society v. H. S. Suryanaranappa" MYSORE HIGH COURT Coram : 1 VASUDEVA MURTHY, J. ( Single Bench ) Hassan Co-operative Society, Decree-holder-Appellant v. H. S. Suryanaranappa and another, Judgment-Debtor-Respondents. Second Appeal No. 93 of 1948-49, D/- 24 -3 -1952. (A) Mysore Co-operative Societies Act (52 of 1948), S.65 - CO-OPERATIVE SOCIETIES - APPLICABILITY OF AN ACT - LIMITATION - Applicability - Application for execution by process other than by attachment and sale of property - Registrar passing order is civil court for purposes of Art.182, Limitation Act. Limitation Act (9 of 1908), Art.182. The words "for such recovery" means merely for the recovery of any amount sought to be recovered and is not to be confined to method of recovery by attachment or by sale of any property only. When the Registrar or any person empowered by him, therefore, passes any order on an application made to him for the recovery of any amount due under an award or to take some step-in-aid of such recovery like issuing a certificate to enable the creditor to apply for execution in the Civil Court by arrest or by attachment of movables, he must be deemed to be a Civil Court for the purposes of Art. 182 : 20 Mys LJ 377, Ref. to. (Para 5) Anno : Lim. Act, Art. 182, N. 19. (B) Mysore Co-operative Societies Act (52 of 1948), S.65 - CO-OPERATIVE SOCIETIES - EXECUTION - LIMITATION - Execution of awards - Second application for execution - Limitation - Retrospective operation of section. Limitation Act (9 of 1908), Art.181 and Art.182. In view of S. 65 of the Mysore Co-operative Societies Act (52 of 1948), by which the earlier Act 7 of 1918 has been repealed, 44 Mys HCR 528 and 47 Mys HCR 230, where it has been held that an application for execution in a Civil Court of a decision under the Co-operative Societies Act is governed by Art. 181 and not Art. 182 of the Limitation Act and that it is in time if preferred within three years from the date of the certificate of the Registrar under S. 43(c) of Act 7 of 1918, may continue to be binding upon Courts in the State only in so far as they apply Art. 181 to the first application for execution in Civil Courts. But any observations made in them with regard to Art. 182 would not have the same force. Therefore, after the passing of this Act an execution application filed within three years from the date of dismissal of a prior application will be within time under Art. 182 of the Limitation Act. (Para 4) Section 65 has retrospective operation also, as is clearly permitted by the specific provisions of S. 72(2). Hence it would apply to a pending second execution application filed within 3 years from the date of dismissal of the previous one but beyond 3 years from the date of the registrars certificate and to which, but for the provision of this section, an objection on the ground of limitation might have been possible on the basis of the above decisions. The section was apparently enacted to avoid such an objection which became possible after the above decisions laid down that Art. 181 applied to execution of awards passed under the Cooperative Societies Act : 9 Mys LJ 328; 13 Mys LJ 79 and 20 Mys LJ 377, Rel. on. (Paras 7 and 8) Anno : Lim. Act, Art. 181, N. 2; Art. 182, N. 51a. Cases Referred : Chronological Paras

44 Mys HCR 528 4

44 Mys HCR 538 4

47 Mys HCR 230 4 (31) 9 Mys LJ 328 6, 8 (35) 13 Mys LJ 79 8 (42) 20 Mys LJ 377 5, 8 K.R. Gopivallabha Iyengar, for Appellant. Judgement The Hassan Co-operative Society Ltd., who is the appellant in this second appeal, obtained an award for some monies due to it in the Court of the Assistant Registrar of Co-operative Societies at Hassan and after getting the necessary certificate on 26-10-1943 sought execution of it in the Court of the Munsiff of Hassan in Ex. Case No. 605 of 43-44. The decree was partly satisfied and the execution was dismissed on 2-6-44. The decree-holder then filed the present application, Ex. No. 1035 of 46-47 and applied for arrest of judgment-debtor 2 who pleaded that the execution application was barred by limitation. The Munsiff rejected that plea. On appeal, the Additional Subordinate Judge at Hassan upheld that plea and dismissed the execution application. Hence this second appeal.

2. As the matter involved an important question of limitation which might affect the execution of a large number of awards passed by the Registrar of Co-operative Societies and his assistants, the Advocate-General was notified and he has also addressed arguments. He has brought to my notice Section 65 of the Mysore Co-operative Societies Act, No. LII of 1948, and urged that whatever may have been the rulings of this Court or other Courts with regard to the article of limitation applicable to such executions in the past the legislature has now expressly provided that Article 182 of the first schedule to the Limitation Act is applicable to such executions.

3. That Act came into force on 25-7-1948 and Section 65 provides that the Registrar or any person empowered by him in this behalf, shall be deemed, when exercising any powers under that Act for the recovery of any amount by the attachment or by the sale of any property or when passing any orders on any application made to him for such recovery or to take some step-in-aid of such recovery, to be a Civil Court for the purposes of Article 182 of the first schedule to the Mysore Limitation Act, 1911. In view of that section the first column in Article 182 would have to be read as follows : "For the execution of a decree or order of any Civil Court or the Registrar or any person empowered by him when exercising powers under act 52 of 1948 for the recovery of the amount etc ..................." and under the third column "Time would begin to run from the date of the dismissal of the previous execution." An execution application like the present would, therefore, now be clearly within time.

4. It is, however, contended by Mr. R.V. Sreenivasaiya, learned Counsel for the 1st respondent, that the decisions of this Court have laid down that Article 181 is applicable to such executions; see 44 Mys HCR 528; 44 Mys HCR 538 and 47 Mys HCR 230, where it has been held that an application for execution in a Civil Court of a decision under the Co-operative Societies Act is governed by Article 181 and not by Article 182 of the Limitation Act and is in time if preferred within three years from the date of the certificate of the Registrar or Deputy Registrar under Sec. 43 (c) of the Mysore Co-operative Societies Act, VII of 1918. But in view of Sec. 65 of the more recent Co-operative Societies Act by which the earlier Act has been repealed those decisions so far as they applied Article 181 to the first application for execution in the Civil Court may continue to be fully binding on the Courts in the State; but any observations made in those decisions with regard to the application of Article 182 would not have the same force. It is also to be observed that those cases related to the first applications for execution after the issue of the certificate by the Registrar.

5. It is next contended by Mr. Sreenivasaiya that Section 65 applies only under certain circumstances. According to that section : "The Registrar or any person empowered by him in this behalf, shall be deemed, when exercising any powers under this Act for the recovery of any amount by the attachment or by the sale of any property, or when passing any orders on any application made to him for such recovery or to take some step-in-aid of such recovery, to be a Civil Court for the purposes of Article 182 of the first schedule to the Mysore Limitation Act, 1911." It is argued that it is only when an application is made before the Registrar for the recovery of any amount by the attachment or sale of any property that he should be deemed to be a Civil Court and not when recovery is sought by any other process in execution, such as arrest or attachment of moveables. The use of the words "for such recovery" in the latter portion of that section can, it is argued, only mean what is envisaged in the earlier part of that section. That argument cannot be accepted. If "such recovery" meant only recovery by the means contemplated already in the earlier part of the section, a plain reading of the section would make the latter portion of the section completely superfluous as the earlier portion already provides for the exercise of the powers under the Act for the recovery of any amount by the attachment or sale of any property and would include passing of orders or taking steps-in-aid. It is a well-known rule of interpretation of statutes that no part of a statute should be ordinarily rejected. As observed by the learned Chief Justice in P.T. CHICKNARASAPPA v. B. GOVINDAPPA, 20 Mys LJ 377, "We are certainly not entitled to regard any section of the Act as superfluous unless we can give it no reasonable interpretation whatever otherwise." To my mind, the words "for such recovery" mean merely for the recovery of any amount sought to be recovered and is not to be confined to method of recovery by attachment or by sale of any property only. When the Registrar or any person empowered by him, therefore, passes any order on an application made to him for the recovery of any amount due under an award or to take some step-in-aid of such recovery like issuing a certificate to enable the creditor to apply for execution in the Civil Court he must be deemed to be a Civil Court for the purposes of Article 182.

6. Mr. Sreenivasaiya next contends that as Act LII of 1948 was passed only after the three years period originally available to the decree-holder after the issue of the certificate according to the previous decisions had run out, the present execution application is barred by time. He urges that Section 65 cannot be given any retrospective operation, and for that position he has relied on a case reported in KADUR KALAPPA v. KAREGOWDA. 9 Mys LJ 328. In that case it has been held that the Limitation enactment which belongs to the domain of adjective law applicable to a case is the one actually in operation on the date of its institution though the enactment will have to be enforced retrospectively, that it does not create or take away any rights and that, therefore, unless the new statute expressly says so, if a, remedy is already barred under the existing law it will not be revived by the amending or repealing Act. But Mr. Gopivallabha Iyengar, learned Counsel for the appellant, urges that the effect of sec. 72 of act lii of 1948, is to expressly make applicable the provisions of Sec. 65 retrospectively. Section 72 (2) reads as follows : "All appointments made, rules and orders made, notifications and notices issued and suits and proceedings instituted under the said Acts shall, so far as may be, be deemed to have been respectively made, issued and instituted under this Act." It is argued that if the order made by the Assistant Registrar granting a certificate in the present case in 1943 under Sec. 43 (e) of the earlier Mysore Co-operative Societies Act of 1918 should be deemed to have been made under the corresponding Sec. 54 (1) of the present Act, Sec. 65 would apply to such orders.

7. There is no doubt that the uniform practice in all the Courts in the State has throughout been to treat awards passed by the Registrar of Co-operative Societies as if they were decrees of Civil Courts once they are brought into execution in the Civil Court. Section 65 was apparently enacted to avoid an objection like the present which became possible after this Court had laid down that Article 181 applied to applications for execution of such awards.

8. It is also represented for the Appellant that if Section 65 is not applied with retrospective effect a large number of such awards would get barred by limitation. If the law was very clear I would not have hesitated to apply it even if it had such an effect. But I think that the specific provisions of Section 72 (2) clearly permit, if not provide, for retrospective operation of Section 65. There is apparently nothing wrong in principle in the application of a limitation enactment with such retrospective effect; see KADUR KALAPPA v. KAREGOWDA, 9 Mys LJ 328; SIDDALINGAMMA v. MUDDUMALLE GOWDA, 13 Mys LJ 79 and P.T. CHICKNARASAPPA v. B. GOVINDAPPA, 20 Mys LJ 377. In 13 Mys LJ 79. section 10 (2) (g) of the Hindu Law Womens Rights Act x of 1933 which defined stridhana was applied and given effect to though that Act was enacted and came into force even during the pendency of the appeal before the High Court. In 20 Mys LJ 377, the Hindu Law Womens Rights Act came into force while the suit was pending. Nevertheless, effect was given to Section 4 of that Act relating to succession of Hindu male who had died intestate before that Act came into force. Sir DArcy Reilly, C.J., observed that though it was certainly in accordance with one of the cardinal principles of interpreting the statutes to start with the assumption that it is not intended to be retrospective except where the provisions of the Act itself make it clear, he relied on the wordings of Section 4 to come to the conclusion that retrospective effect should be given to that section.

9. In the result this appeal is allowed, the order of the learned Subordinate Judge is set aside and that of the learned Munsiff restored. The parties will bear their own costs of this appeal. Appeal allowed. AIR (39) 1952 MYSORE 129 (C. N. 62) "Gurunatha v. Nadiga" MYSORE HIGH COURT Coram : 2 BALAKRISHNAYYA AND VASUDEVA MURTHY JJ. ( Division Bench ) Gurunatha Bhatta, Plaintiff-Appellant v. Nadiga Nagesha Rao, Defendant-Respondent. Second Appeal No. 322 of 1951-52, D/- 21 -3 -1952. (A) Mysore Hindu Law Womens Rights Act (10 of 1933), S.9(2), S.10 and S.11(1) - GIFT DEED - HINDU LAW - ADOPTION - Widow inheriting her husbands property - Powers of alienation of widow - Widow executing a deed of gift of entire property - Subsequent adoption by her - Adoptee has no right to challenge gift. Hindu Law - Adoption - Widow - Rights of adopted son. Under the Mysore Hindu Law Womens Rights Act, 1933, a gift made by a widow of the property which she has inherited from her husband, would be binding on the subsequently adopted son and cannot be questioned by him: 54 Mys HCR 12 (FB), Ref. (Para 8) The provision in S. 9 (2) to the effect that no adoption made by a widow shall divest her of her estate in stridhana property other than such as she may have taken by inheritance from her husband must be read along with the powers of the widow under S. 11 (1) to deal with the stridhana property she has inherited from her husband and over which she has unrestricted and absolute powers of alienation not merely inter vivos but even by will. Immediately her husband or son dies the property would vest in her by inheritance; there can be no holding in abeyance of such inheriting and even S. 9 (2) refers to "divesting" thereby obviously and properly recognizing the earlier vesting of the estate in the widow as an heir. The possible contingency of the widow adopting cannot prevent the vesting of the estate in her once it is so vested and inheritance carries with it all the rights, privileges and incidents conferred on her by S. 11 (1). She can deal with the property as she chooses and the ordinary rule of Hindu Law that a widow with only a limited estate could not make a gift of the property but could alienate it only for purposes of necessity or benefit binding on the reversioner has no application and cannot curtail her rights under S. 11. (Para 5) (B) Mysore Hindu Law Womens Rights Act (10 of 1933), S.9(3) - HINDU LAW - OBJECT OF AN ACT - Object of. The object of S.9(3) is to enlarge the rights of the widow and to protect or place on a surer foundation the pre-adoption arrangements and contracts between the adoptive son or his guardian and the adoptive mother. This was necessary in order to avoid such arrangements being questioned either absolutely on the ground of the same being not reasonable or unsupported by custom as could have been done under the ordinary Hindu Law: 6 Mys LJ 425, Rel. on. (Para 7) Cases Referred : Chronological Paras (27) AIR 1927 PC 139 : (50 Mad 508) 6, 7 (43) AIR 1943 PC 196 : (70 Ind App 232) 5 (36) 63 Cal 155 : (AIR 1935 Cal 702) 7 (04) 27 Mad 577 : (14 Mad LJ 310 FB) 7 (29) 52 Mad 398 : (AIR 1929 Mad 296) 6 (48) 54 Mys HCR 12 (FB) 4, 5

6 Mys LJ 425 : 34 Mys CCR 54 7

V. Krishnamurthi, for Appellant. Judgement This second appeal arises out of a suit filed by the Appellant for a declaration of his title to and possession of a piece of land and a house. The plaintiffs case was that these suit properties and others belonged to one Gundabhatta who died on 11-6-37 leaving behind him a widow Shakambaramma and without any issue male or female. Shakambaramma had duly adopted the plaintiff on 20-6-1938 and had also executed a registered deed of adoption of the same date to evidence it. Thereby the plaintiff had become entitled to all the properties movable and immovable of the deceased Gundabhatta. He learnt that Shakambaramma had, prior to the adoption, gifted away the suit properties to the defendant by a registered deed of gift dated 24-5-1938 and he was in possession under the gift. The plaintiff was not bound by that gift which was wholly beyond the powers of the widow tot make and, as his own rights as adoptive son must be deemed to have accrued as from the date of Gundabhattas death, he was entitled to have that alienation declared void and of no effect and to recover possession of the properties.

2. The defendant admitted the adoption. He pleaded that he was also a close relation of Gundabhatta who had brought him up from infancy and protected him; and had expressed his desire that the suit properties should go to him. In accordance with such wish, his widow Shakambaramma, who became their sole and absolute owner after his death, had gifted those properties in his favour and the same was binding on the plaintiff as his adoption was admittedly after the gift.

3. The Munsiff of Davangere, in whose Court the suit was filed, considered that on those pleadings the suit could be disposed of without recording any evidence, and dismissed the suit after hearing arguments. He upheld the defendants plea that as the adoption of the plaintiff was admittedly subsequent to the gift in favour of the defendant, the same was binding on the plaintiff and could not be questioned by him. The Subordinate Judge of Chitaldroog, on appeal, affirmed that decision.

4. It is contended here before us by Mr. V. Krishna Murthy, learned Counsel for the Appellant, that the Courts below have not properly considered and applied to this case the principle of law which has been laid down ins the case decided by a Full Bench of this Court reported in CHIKKAVVA v. CHIKKAPPA, 54 Mys HCR 12. He urges that, as decided in that case, the rights of the adopted son relate back to the date of death of the adoptive father Gundabhatta; and as a Hindu widow has no right at all to make a gift of her husbands properties, the gift in favour of the defendant is entirely void and inoperative. By reason of the adoption, the defendant became divested of his rights in the suit properties which became vested in the adopted son. He refers to Sec. 9 (2) (a) of the Hindu Law Womens Rights Act of 1933 and argues that according to it the effect of the adoption is to divest the widow of her estate even in her stridhana property which she has got by inheritance from her husband.

5. It has no doubt been held in CHIKKAVVA v. CHIKKAPPA, 54 Mys HCR 12 which follows the decision of the Privy Council in ANANT BHIKKAPPA v. SHANKAR RAMCHANDRA, AIR 1943 PC 196 that an adoption made by a widow in pursuance of her husbands authority dates back to the death of the adoptive father and will have the effect of divesting the estate vested in the heir of the last surviving coparcener and vesting it in the adopted son; but that decision as well as the decisions it has followed make it clear that the vesting is however subject to lawful alienations made in the meantime by the person who was entitled to hold the estate until the adoption. Moreover, in Mysore we are governed by the Hindu Law Womens Rights Act of 1933 which defines the rights of the widow in such cases. Section 10 (1) of that Act defines stridhana as being property belonging to a Hindu female other than property in which she has by law or under the terms of any instrument only a limited estate and under Cl. (2) (g) of that section "stridhana" includes among others property taken by inheritance by a female from her husband or son except when there is a daughter or daughters son of the propositus alive at the time the property is so inherited. Section 11 (1) describes the nature of the estate possessed by a female in such stridhana. A female owning stridhana property has over it absolute and unrestricted powers both of enjoyment and disposition inter vivos and by will subject only to the general law relating to guardianship during minority. The provision in Sec. 9 (2) to the effect that no adoption made by a widow shall divest her of her estate in Stridhana property other than such as she may have taken by inheritance from her husband must be read along with the powers of the widow to deal with the stridhana property she has inherited from her husband and over which she has unrestricted and absolute powers of alienation not merely inter vivos but even by will. Immediately her husband or son dies, the property would vest in her by inheritance; there can be no holding in abeyance of such inheriting and even S. 9(2) refers to "divesting" thereby obviously and properly recognizing the earlier vesting of the estate in the widow as an heir. The possible contingency of the widow adopting cannot prevent the vesting of the estate in her once it is so vested and inheritance carries with it all the rights, privileges and incidents conferred on her by S. 11(1). She can deal with the property as she chooses and the ordinary rule of Hindu Law that a widow with only a limited estate could not make a gift of the property but could alienate it only for purposes of necessity or benefit binding on the reyersioner has no application and cannot curtail her rights under Section 11.

6. It has been held by the Privy Council in Krishnamurthi Ayyar v. Krishnamurthy Ayyar, AIR 1927 PC 139 that when a disposition is made inter vivos by one who has full power over property under which a portion of that property is carried away no rights of a son who is subsequently adopted can affect that portion which is disposed of and that the same is true even when the disposition is by will and the adoption is subsequently made by a widow who has been given power to adopt, though it is different when the adoption is antecedent to the date at which the disposition is meant to take effect; see also Veeranna v. Sayamma, 52 Mad 398. To hold otherwise would open the door wide for fraud and be most unsettling in its effects on title to property. The widow after alienating the properties of her husband could by her own action of adopting either by her own will or in collusion with the reversioner defeat her own alienations in favour of innocent purchasers years after it was made. The adoption may be made after any length of time and cases are not wanting and have come to our notice where the widow chose to adopt over 50 years after her husbands death. Even in those cases the alienation made by the widow at a time when she was full owner and perfectly competent to do so could be challenged on the strength of the fiction that the adoptive son must be taken to have been born on the date of the death of the adoptive father.

7. Mr. Krishnamurthy contends that Section 9, Cl. (3) which provides for arrangements which can be made prior to or at the time of the adoption whereby the rights of the adopted son can be limited curtailed or postponed in the interest of the adoptive mother must be taken to have made sufficient provision for such a situation. But that section is obviously meant to enlarge the rights of the widow and to protect or place on a surer foundation the pre-adoption arrangements and contracts between the adoptive son or his guardian and the adoptive mother. This was necessary in order to avoid such arrangements being questioned either absolutely or on the ground of the same being not reasonable or unsupported by custom as could have been done under the ordinary Hindu Law; vide 6 Mys LJ 425 : 34 Mys CCR 54 following Krishnamurthi Ayyar v. Krishnamurthy Ayyar, 50 Mad 508 PC; Hemendra Nath v. Jnanendra Prasanna", 63 Cal 155 and Visalakshi Ammal v. Sivaramien, 27 Mad 577 (FB).

8. In the result we hold that the decisions of the Courts below are correct. This appeal is therefore dismissed without notice to respondent. Appeal dismissed. AIR (39) 1952 MYSORE 131 (C. N. 63) " A. A. Khan v. Ameer Khan" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVA MURTHY, J. ( Division Bench ) A. A. Khan and others, Defendants-Appellants v. Ameer Khan and others, Plaintiffs-Respondents. Regular Appeal No. 64 of 1949-50, D/- 28 -3 -1952. Partnership Act (9 of 1932), S.30(1), S.4 - PARTNERSHIP - CONTRACT - Minors - Admission of, to benefits of partnership - Partnership between some minors and one adult - Validity - Amount contributed by minors - Return of. Contract Act (9 of 1872), S.65. It is clear from Ss. 4 and 30, Partnership Act, that there must be a firm in existence before a minor could be included in it. Under S. 4, it is necessary that there must be an agreement between two or more adults before a partnership comes into being and it is only thereafter that a minor can be admitted to the benefits of partnership under S. 30(1) : AIR 1922 Lah 441, AIR 1931 All 327 and 10 Mys LJ 316, Rel. on. (Para 13) Where, therefore, a partnership is purported to have been entered into by one adult with five minors, such a partnership is void and cannot be the basis of a suit for dissolution and accounts. Nor can the minors be regarded as admitted to the benefits of a partnership under S. 30(1), as there is no partnership in existence. But the minor partners are entitled to recover their contribution to the partnership under S. 65, Contract Act, with interest thereon. (Para 15) Anno : Partnership Act, S. 4, N. 2, S. 30, N. 1. Contract Act, S. 65, N. 3. Cases Referred : Chronological Paras (31) AIR 1931 All 327 : (53 All 479) 14 (22) AIR 1922 Lah 441 : (67 Ind Cas 95) 14 (21) 62 Ind Cas 802 : (AIR 1921 Mad 98) 14 (32) 10 Mys LJ 316 14 A.V. Shankara Rao, for Appellants; A.R. Somanatha Iyer (for Nos. 1 to 6) and N.K. Gopala Iyengar and M.V. Srinivasa Iyengar (for No. 7) for Respondents. Judgement Plaintiffs 1 to 6 are the sons of Defendant 4. The age of the eldest i.e. plaintiff 1s age was 18 when the suit was filed in forma pauperis, on 9-10-46, by him and his five younger brothers who were all minors represented by their mother as next friend. Defendants 2 and 3 are also minors and sons of Defendant 1. The plaintiffs case is that they, represented by their father and guardian defendant 4, entered into a partnership arrangement with defendants 1 to 3 for carrying on business under the name and style of the New Bombay Tailoring Co., under terms and conditions which were embodied in a registered deed of partnership dated 6-1-1944. Towards the capital of that partnership they invested Rs. 12,000/-, defendant 1, Rs. 1000/- and defendants 2 and 3 each Rs. 12,000/- making up in all Rs. 37,000/-. The partnership was to run for a period of 5 years with effect from 1-11-1943, from which date they had been carrying on the business, and they were entitled to a 5 annas share of the profits. Within a few months of the deed, defendant 1 picked up a quarrel with defendant 4 with selfish and ulterior motives and made it impossible for the partnership business to be carried on with any advantage to the other partners. The plaintiffs therefore had to issue a notice on 8-3-1945 terminating the partnership and bring their suit for a declaration that the partnership was dissolved with effect from 8-3-1945, for the taking of accounts, return of capital amount invested by them and for their share of profits.

2. Defendant 1 pleaded that neither the plaintiffs nor their father defendant 4 contributed anything towards the capital; that it had been agreed before the partnership commenced that defendant 1 should advance Rs. 6,000/- on behalf of the six minor plaintiffs and that plaintiffs through their father should advance Rs. 6,000/- making up Rs. 12,000/- in all as their contribution towards the capital, and that defendant 4 should work as a cutter and manage the concern. Contrary to this agreement, the plaintiffs and their father defendant 4 failed to pay the sum of Rs. 6,000/-. Defendant 4 had misconducted himself and mismanaged the business and ultimately left it on 30-9-1944, and set up a similar rival business in the name of Khan and Co. though he had agreed to work for a period of 5 years. He had also not accounted for the stocks and outstanding collected by him and he had now set up his wife to bring the suit. There had been loss in the working of the business and not profits. He further pleaded that the plaintiffs were not entitled to the benefits of the partnership. The minor defendants 2 and 3 through their guardian ad litem also contested the plaintiffs claim.

3. The learned District Judge held that a partnership firm had come into being according to the terms of Exhibit A the partnership deed and had also been registered under the Partnership Act. He therefore passed a preliminary decree declaring that the partnership be dissolved with effect from 8-3-1945, and directing the taking of accounts with a view to ascertain the profits of the business and directing the defendants 1 to 3 to pay the plaintiffs their share of capital of Rs. 12,000/- and costs of the suit. Defendants 1 to 3 have appealed.

4. It is contended by Sri A.V. Shankar Rao, learned Counsel for the appellants that the plaintiffs have not proved that they contributed any funds towards the capital of the business; that it is defendant 1 who had transferred stock of the value of Rs. 37,000/- belonging to himself for the purpose of starting and running the business; that the business was started and it had been proposed to run it only with the help and management of defendant 4 who was an experienced cutter who had had previous experience of such tailoring business in the Bombay Tailoring Co., where he was formerly employed; that it was a condition precedent to the coming into effect of this proposed joint venture that the plaintiffs or defendant 4 for them should also contribute Rs. 6,000/- in order to make up Rs. 12,000/-, the plaintiffs share of capital and that defendant 1 himself promised to advance Rs. 6,000/- for and on behalf of the minor plaintiffs. As defendant 1 subsequently failed and refused to perform these two vital conditions which were really the foundation for the arrangement as well as the motive which prompted defendants 1 to 3 to enter into it at all, the partnership arrangement must be deemed either not to have come into effect at all or afforded full and sufficient reasons for the defendant 1 to put an end to it. The effect of it was as if the partnership had never really existed.

5. For the respondents, Mr. A.R. Somanatha Iyer their learned Counsel has relied strongly on the contents of Exhibit A wherein it is expressly recited that the plaintiffs have contributed Rs. 12,000/- in cash as their share of capital in the joint business which was to run with effect from 23-11-1943, from which earlier date the business was, it is stated, being carried on practically on the same conditions. That agreement he urges does not mention either as a condition precedent or as a proper reason for putting an end to the arrangement that defendant 4 should work in and manage the business for 5 years. It provides only for his salary at Rs. 250/- per mensem and if he merely left the concern earlier that did not mean the end of the partnership would follow.

6. As against this, Mr. A.V. Shankar Rao urges that the mere recital in Exhibit A that Rs. 12,000/- was paid in cash by or on behalf of the plaintiffs is not entitled to any great weight as against the entries in the shops account books which have been signed by the defendant 4 that defendant 1 brought in the stock of the value of Rs. 37,000/- into the business, and that it has not been proved by any reliable evidence other than the interested testimony of the plaintiffs mother that the plaintiffs had Rs. 12,000/- of their own to contribute. He has also relied strongly in this connection on two Exhibits IV and XII.

7. (After discussing the documentary evidence, the Judgment proceeds as follows :) From Exhibit XII, Exhibit IV, Exhibit X and Exhibit XI it is clear that the case put forward by defendant 1 is true viz., that he himself advanced Rs. 6,000/- for the benefit of the minor plaintiffs and lent Rs. 6,000/- or goods of that value to defendant 4 for being invested in his sons name making in all Rs. 12,000/- as their investment. He similarly invested Rs. 24,000/- in the name of his own minor sons defendants 2 and 3 and depended entirely on defendant 4 to manage and carry on the tailoring business.

8. Defendant 4 refused to go on with the arrangement and was entirely responsible for the deadlock that was created and which prevented the business being carried on in accordance with the terms of Exhibit A. Defendant 1 appears to have been generous towards his brother and his nephews and the present claim on behalf of the minor plaintiffs put forward by their mother for the entire sum of Rs. 12,000/- is clearly untenable. But, defendant 4 credited in the capital account Rs. 6,000/- to the plaintiffs and he must be taken to have thereby made a gift of it to the plaintiffs even according to his own showing. As regards this sum of Rs. 6,000/- we do not see how he can, by merely reversing the entries in the capital account, take back the amount he has given them absolutely and has created them as beneficiaries or owners of the same. The considerations regarding the sum of Rs. 6000/- advanced as a loan by defendant 1 are however different and he was entitled to recoup himself from the capital pertaining to the plaintiff to the extent of Rs. 6000/- as the same did not really belong to the plaintiffs absolutely.

9. Mr. Somanatha Iyer contends that by the same reasoning he cannot take back from the plaintiffs the other Rs. 6,000/- worth of stock which he might have loaned to defendant 4 and which the latter had invested in his sons names. The arrangement between the defendant 1 and defendant 4 and the plaintiffs whom he represented as their guardian was clearly to the effect that Rs. 6000/- should be treated as merely an advance or loan to plaintiffs which defendant 4 had to discharge out of his income and was not meant to be a gift to the plaintiffs unconditionally.

10. Defendant 4 has not been examined and has not given any explanation about Exhibit IV and Exhibit XII though he has admitted Exhibit IV. They clearly establish that Rs. 6,000/- was treated as a loan by the plaintiffs and it cannot be claimed to belong to the plaintiffs.

11. In this view the finding of the learned District Judge that the plaintiffs should recover Rs. 12,000/- as their share of the capital cannot be supported in its entirety. It can only be Rs. 6,000/- which can be so recovered by the plaintiffs.

12. Mr. Shankar Rao next contends that the agreement embodied in Exhibit A cannot bring about a relation of partnership between the plaintiffs and defendants 1 to 3. He argues that the plaintiffs 1 to 6 as well as defendants 2 and 3 were all minors when a partnership was sought to be formed as between them and defendant 1. Partnership was a matter purely of contract in the present case and there could be no such contract of partnership between three parties two of whom were minors and defendant 1 who alone was an adult. Minors can no doubt be admitted to the benefits of partnership but that presupposes the existence already of a partnership between at least two adult persons before any minor could be included therein as a partner. A partnership such as the present was therefore void and could not form the basis of a suit for dissolution and accounts. He has referred to some provisions of the Indian Partnership Act and to some decided cases. The definition of partnership according to Section 4 is that it "is the relationship between persons who have agreed to share the profits of a business carried on by all or any of them acting for all." Section 30 states that a person who is a minor according to the law to which he is subject may not be a partner in a firm, but, with the consent of all the partners, for the time being, he may be admitted to the benefits of partnership. Such a minor has a right to such share of the property and all the profits of the firm as may be agreed upon. His share is liable for the acts of the firm but he is not personally liable for any such act. It is open to a minor within six months of his attaining majority or on his obtaining knowledge that he has been admitted to the benefits of a partnership whichever date is later to give public notice that he has elected to become or that he has elected not to become a partner in the firm and such notice shall determine his position as regards the firm. If he fails to give such notice he becomes a partner in the firm on the expiry of the said six months.

13. It is clear from these sections that there must be a firm in existence before a minor could be included in it. Under Section 4, it is necessary that there must be an agreement between two or more adults before a partnership comes into being and it is only thereafter that a minor can be admitted to the benefits of partnership under Section 30(1).

14. In Rafiq Muhammad v. Khawaja Qamar Din, AIR 1922 Lah 441 the words of Section 247 of the Indian Contract Act "that a minor may be admitted to the benefits of a partnership" were considered and it was held that if he is admitted to the benefits of partnership, his share will be liable for the firms debts. If, however, the partnership is based on the contract, the privilege conferred on the minor by Section 247 will not give him power to create a firm. In other words, a partnership of this nature must be in existence before he can be admitted to its benefits, for, he cannot be admitted to what does not exist. In Lachhmi Narain v. Beni Ram. AIR 1931 All 327, B and H were partners having equal shares in a confectionery business. H died in 1920 leaving a minor son. After Hs death B carried on the business under the old name and style with the partnership funds which he retained in his hands. The plaintiff alleged that after his fathers death he was admitted to the benefits of the partnership. It was held that the plaintiff could not be admitted to the benefits of the partnership as no partnership existed after the death of H; nor could he, being a minor, enter into a contract with B to form a partnership. It was observed in that case that there being no partnership in existence, the provisions of Section 247 of the Indian Contract Act (which corresponds to Section 30 of the Indian Partnership Act) could not be applied in his favour. In V. Manic Kavelu Mudaliar v. Commr. of Income Tax, Mysore, 10 Mys LJ 316 it has been observed that a minor cannot himself create a partnership and admit himself to the benefits of the same. In support of that observation reference has been made to AIR 1922 Lah 441 and Venkatasuryanarayana v. A. Ramayya, 62 Ind Cas 602 (Mad).

15. It is clear from these rulings that plaintiffs 1 to 6 cannot be said to have been admitted to the benefits of a valid partnership and they cannot claim that the partnership should be dissolved and account should be taken as if they were partners. But it is contended by Mr. A.R. Somanatha Iyer, learned counsel for the respondents, that the minor plaintiffs are entitled to recover the contribution which they have made towards the capital, or that portion of the capital which has been held to belong to them together with interest thereon or a share of the profits, whichever they choose, in accordance with the principle of Section 37 of the Indian Partnership Act. That Section provides : "Where any member of a firm has died or otherwise ceased to be a partner, and the surviving or continuing partners carry on the business of the firm with the property of the firm without any final settlement of accounts as between them and the outgoing partner or his estate, then, in the absence of a contract to the contrary, the outgoing partner or his estate is entitled at the option of himself or his representatives to such share of the profits made since he ceased to be a partner as may be attributable to the use of his share of the property of the firm or to interest at the rate of six per cent per annum on the amount of his share in the property of the firm." He argues that the plaintiffs may invoke the provisions of Section 65 of the Contract Act to recover the benefits or any advantage which the defendants may have realised under a void agreement. That section provides that under an agreement discovered to be void, any person who has received any advantage under such agreement or contract is bound to restore it or to make compensation for it to the persons from whom he received it. This position is not seriously disputed for the appellants and Mr. Somanatha Iyer has stated before us that his clients are agreeable to receive interest at 6 per cent per annum rather than put themselves to the trouble and uncertainty of ascertaining by an elaborate enquiry whether the business has really ended in profits as alleged by them or in a loss as stated by the defendants.

16. In the light of the above discussion, we modify the judgment and decree of the learned District Judge and pass a decree in favour of the plaintiffs for Rs. 6,000/- only with interest at 6 per cent from 1-11-1943 from which date the venture was started. The same will be recoverable from defendant 1 personally and the assets of the business of the New Bombay Tailoring Company in the hands of defendants 1 to 3.

17. The parties will pay and receive costs according to their success and failure in this Court and in the Court below. The court-fee due to Government on the plaint will be a first charge on the amount decreed in favour of the plaintiffs. Order accordingly. AIR (39) 1952 MYSORE 134 (C. N. 64) "Nanjiah v. Maregowda" MYSORE HIGH COURT Coram : 2 BALAKRISHNAYYA AND MALLAPPA, JJ. ( Division Bench ) Nanjiah and others, Plaintiffs-Appellants v. Maregowda and others, Defendants-Respondents. Second Appeal No. 542 of 1948-49, D/- 24 -12 -1951. (A) Civil P.C. (5 of 1908), O.23, R.3 and O.33, R.7(1) - COMPROMISE - DECREE - MINORITY AND GUARDIANSHIP - Consent decree - Minor attaining majority at time decree is passed - Decree is not binding on him unless he consents. A decree based on the consent of a next friend or guardian ad litem is not binding, on a minor who has attained majority by the time the decree is passed unless he is brought on record as major and is a party to the consent: AIR 1928 Mad 294 and 8 Mys LJ 492, Foll.; AIR 1922 Lah 407, Dissent from. (Para 6) Anno : C. P. C., O. 32, R. 7, N. 19. (B) Civil P.C. (5 of 1908), O.23, R.1 and O.33, R.1 - DECREE - MINORITY AND GUARDIANSHIP - PARTITION - COMPROMISE - Partition suit - Consent decree - Decree not binding on majors - Decree is not binding on minors as well. Generally speaking a suit for partition cannot be compromised by some of the parties to it alone. The question will get more complicated if some of the parties are minors. If it is found that the consent given by the guardian is not binding on the minors on any ground, nothing comes in the way of the Court holding that the decree is binding on the majors, who were parties to the consent though the Court has a discretion to set aside the decree as a whole; but this depends upon the nature of the suit and the decree passed. However, it may be taken that usually when the decree is not binding on the parties who are majors it will be equally found to be not binding on the minors: 16 Mys LJ 92; AIR 1919 Cal 727; AIR 1928 Mad 594 and (1874) 18 Eq 573, Rel. on. (Para 7) Anno : C. P. C., O. 23, R. 3, N. 20, Pt. 5. (C) Civil P.C. (5 of 1908), O.23, R.1 and O.32, R.7 - COMPROMISE - MINORITY AND GUARDIANSHIP - DECREE - Consent decree - Setting aside of - Grounds. A decree suffered by a next friend or guardian ad litem of the minors in a suit can be set aside on their attaining majority on the ground of fraud, collusion or gross negligence of the next friend or guardian ad litem. What is gross negligence depends on the facts of each case, but it must be such negligence as would lead to the loss of a right which would have been successfully asserted if the suit had been conducted or resisted with due care. Failure of a guardian to do his duty in getting all the available material and placing it before the Court would amount to gross negligence on the part of the guardian. A decree by consent stands on the same footing as other decrees. A consent decree obtained with the sanction of Court cannot be set aside except upon very strong grounds, such grounds as amount to fraud in the party claiming the benefit of the compromised decree. An obligation is laid on both the parties to place all the materials in their possession where minors are concerned in order to enable the Court to judge the fairness of the compromise and where a party seeking the benefit of the compromise against a minor has no honest belief in the claim he is making and the claim is absolutely without any foundation, the compromise will not be allowed to stand as the Court is not apprised of the real state of facts and the compromise sanctioned by the Court must be deemed to have been passed on a misapprehension of material facts having been withheld by the party who had knowledge of the same. Such withholding will in law amount to fraud: AIR 1938 Mad 13, Foll. (Para 8) Anno : C. P. C., O. 32, R. 7, N. 17, Pt 2, N. 18, Pts. 1 and 2. Cases Referred : Chronological Paras (19) AIR 1919 Cal 727 : (50 Ind Cas 363) 7 (22) AIR 1922 Lah 407 : (74 Ind Cas 603) 5 (28) 55 Mad LJ 374 : (AIR 1928 Mad 294) 5 (28) AIR 1928 Mad 594 : (108 Ind Cas 221) 7 (38) AIR 1938 Mad 13 : (176 Ind Cas 477) 8

8 Mys LJ 492 5

16 Mys LJ 92 7 (1874) 18 Eq 573 : (43 LJCh 758) 7 M.A. Gopalaswami Ayengar, for Appellants; Nittoor Sreenivasa Rao and K.R. Gopivallabha Iyangar, for Respondents. Judgement MALLAPPA, J. :- The suit O.S. 74 of 45-46 on the file of the Second Munsiff, Mysore, out of which this appeal arises was filed by the plaintiffs-appellants for cancellation of a rajinama decree obtained by their mother as their next friend, in O.S. 35 of 45-46 on the file of the Second Munsiff, Mysore, and for partition and possession of their 3/4th share in plaint schedule properties.

2. The case of the plaintiffs is that the plaint schedule properties are their ancestral properties and that the first defendant, their undivided father, who has been living separately from them leading a reckless life alienated for no legal necessity the joint family properties (plaint schedule items 1 and 2) to defts. 3 and 4. Their mother the second defendant filed the suit in O.S. 35 of 45-46 as their next friend in respect of these alienations but she effected a compromise under undue influence against the interest of the minors. Plaintiffs pray that the rajinama decree in that suit has to be set aside and they have to be given such relief as they are entitled to, in this suit, in view of the fact that the rajinama is not binding on the first plaintiff in particular as he had attained majority, when the compromise was entered into without his consent and is not binding on all the plaintiffs as it is against their interest.

3. Defendants 2 and 3 contended that the compromise in the previous suit was bona fide and in the interest of the minors and that the sales in their favour are binding on plaintiffs as they were effected for legal necessity though the plaint schedule properties were the ancestral properties of the family of the plaintiffs and their father. Both the courts have come to the conclusion that the first plaintiff had attained majority by the time the compromise was entered into, that the alienations in favour of defendants 3 and 4 were not for legal necessity, but that it was not under any undue influence that the mother of the plaintiffs entered into a compromise,

4. It is not disputed that the first plaintiff had attained majority by the time the compromise was entered into. Both the courts have discussed at length the evidence on the question of legal necessity and it was not shown that there is any reason to disturb the concurrent findings of the courts below on this point. The main point for consideration is the effect of these findings. The learned Munsiff found that, as the sale has to be set aside anyway in respect of the first plaintiffs share in view of his having attained majority by the time of the compromise, it is desirable to set aside the entire compromise decree. He took into consideration also the fact that the alienations were not effected for any legal necessity and decreed the suit as prayed for. The learned Subordinate Judge agreed with the learned Munsiff that the sale has to be set aside in respect of the first plaintiffs share as he had attained majority by the time the rajinama decree was passed and as he was not a party to it. But it was held by him that it did not necessarily follow that the decree even against the other plaintiffs has to be set aside. Though he agreed that the alienations were not for legal necessity, he found that the case of plaintiffs 2 and 3 that their next friend entered into a compromise under undue influence was not true, and as such he dismissed the suit in so far as it related to the share of plaintiffs 2 and 3. Plaintiffs have appealed against this decision. Defendants 3 and 4 have filed cross-objections.

5. The first point for consideration is whether a decree on the basis of a compromise entered into by the next friend of the minor plaintiffs is binding on one of the plaintiffs who had attained majority before the compromise. It has been laid down by Le Rossignol, J., in - Ghulam Nabi v. Basheshar Mal, AIR 1922 Lah 407 that : "A quondam minor cannot maintain a suit for a declaration that a decree passed against him on a compromise accepted on his behalf by his guardian ad litem with the consent of the Court, shall be of no effect, on the ground that at the time of compromise and decree the plaintiff had become sui juris, and consequently was not represented before the Court. A minor party who at the date of decree has attained majority may not impeach a decree passed against him by a separate suit on the ground of fraud or gross negligence of his guardian." The judgment is that of a single Judge and it must be stated that all that is stated is that the plaintiff must be regarded as having been an adult judgment-debtor who could have applied for a review of the decree and that he is not competent to maintain a suit to avoid that decree except on grounds of fraud. No reasons are given to show how a decree based on consent cannot be avoided by a suit by a person who was not a party to the consent. As against this decision there has been the judgment in - Sanyasi v. Yerran Naidu, 55 Mad LJ 374 in which the question has been considered at some length. It has been observed in that case : "It stands to reason and principle that an adjudication by the court which, we may take it, in the absence of any fraud, collusion or gross negligence is an adjudication on the merits of the controversy, need not be set aside as vitiated merely because a certain defendant is found to have attained his majority without the matter being brought to the notice of the Court. But when the decree comes to be passed on a contract it becomes necessary to see whether the contract that was entered into was a contract valid and binding on the party now seeking to set aside the decree.............When the law says that such a compromise is binding on a minor when the Court sanctions it, what the law has reference to is a contract made only for or on behalf of a minor and there could be no legal principle or reason for holding that when there is a major capable of entering into a contract apart from any question of agency any contract entered into or purported to be entered into on his behalf by some other person can be regarded as binding on him...... There is no provision or principle of the law of contracts which would make such a contract entered into by a previous guardian ad litem binding on a party defendant who had become a major." Then again we have the decision of this Court reported in - 8 Mys LJ 492. It has been observed in that decision as follows : "The decree in O.S. No. 25 of 24-25 was no doubt passed on the consent of the adoptive mother and the subsequent mortgagee, and it is necessary to see whether the consent is valid and binding on the present opponent who seeks to set aside the decree. If the opponent was really a major on the date of the suit, then apart from the question of agency, there is no reason or principle for holding that when there is a major defendant in a suit, another person can by his consent to a decree, make it a valid decree binding on him. There is no allegation here that Hombalamma was the agent of the opponent, or that the opponent gave his consent to the decree and it cannot, therefore, be held that by the consent of Hombalamma, the plaintiff has got a valid decree against the opponent. The consent of Homalamma to a decree against the opponent cannot be deemed to be his consent and a decree passed on such consent is not a consent decree binding on the opponent."

6. Whatever may be the effect of a decree obtained after adjudication on merits in a suit on a party who though a minor at the time of filing the suit had attained majority, was not brought on record as major before the decree was passed, it cannot be said that a decree based on the consent of a next friend or guardian ad litem is binding on him unless he was brought on record as major and he is a party to the consent. In this case though the first plaintiff was a minor at the time O.S. 35/45-46 was filed, he had attained majority by the time his mother purporting to act as his next friend consented to the compromise. His mother could not act as the next friend after he attained majority and she was in no way his agent to bind him by her consent. The decree passed on such a compromise cannot be binding on the first plaintiff, and as such the decree as against him has to be set aside. In view of the fact that it has been found by both the courts below that the alienation effected by the father of the plaintiffs was not for legal necessity, the first plaintiff is entitled to a decree for partition and possession of his th share in the plaint schedule properties.

7. The next point for consideration is whether the decree can be set aside partially as against one of the parties, allowing it to be binding on the others. There is not much difficulty in cases where all the members who have entered into a compromise are majors. As observed in - 16 Mys LJ 92, a compromise to which some of the parties to the suit alone are parties is not necessarily invalid, though on good cause being shown by any of the other parties the court has a discretion to reject such a compromise. The courts have a discretion to set aside the decree only as against the party on whom it is found to be not binding and to hold that the compromise decree is binding on others; but this depends upon the nature of the suit and the decree passed. It was decided in - Brojeswar Banerjee v. Syama Charan, AIR 1919 Cal 727, relied on in - 16 Mys LJ 92, case that inasmuch as in a rent suit, rent could not be decreed at different rates against different tenants, the court was justified in not giving effect to a compromise entered into by some of the defendants to pay rent at a higher rate than what the court would have decreed otherwise as against persons not parties to the compromise. Sri Venkatasubbarao, J., in - Thiruvengada Mudaliar v. Thangavelu Mudaliar, AIR 1928 Mad 594, also referred to in - 16 Mys LJ 92, gives some instances where it is difficult to give effect to a compromise entered into by some of the parties to the suit, and observes as follows : "Suppose A, B and C are members of a joint family. If the compromise is entered into between A and B under which A gets a half, but as C is not a party to the compromise A gets against him only a third, it would be impossible to recognize such a compromise. Again, suppose B gives up to A under the compromise some specific valuable items of property. It would be open to C, not being a party to the compromise, to urge that he would not agree to those items being taken by A. In such a case it would be futile to ask the Court to enforce the partial compromise. Again, I may vary the illustration by supposing that B admits some items to be joint family properties and on that footing enters into a compromise with A, C who is not a party to the compromise contends that those items are his self-acquisitions. Surely no court would in such a case recognize and enforce the compromise". It may be said that generally speaking as observed in - 16 Mys LJ 92, a suit for partition cannot be compromised by some of the parties to it alone. The question will get more complicated if some of the parties are minors. If it is found that the consent given by the guardian is not binding on the minors on any ground, nothing comes in the way of the court holding that the decree is binding on the majors, who were parties to the consent though the court has a discretion to set aside the decree as a whole; but this depends again on considerations referred to above. However, it may be taken that usually when, the decree is not binding on the parties who are majors it will be equally found to be not binding on the minors. If for instance as in this case it is found that the consent decree is not binding on the first plaintiff who was a major at the time of the compromise, it cannot be said that he could get any relief in this suit unless it is found that the alienations effected by his father during the minority of the plaintiff was not for legal necessity. Can it be said that the decree is binding on the minors in such a case merely because they were not majors and their mother who was their next friend was foolish enough to enter into a compromise prejudicial to their interest? The answer of the lower appellate court appears to be in the affirmative. If that were the law, it is clear that a minor is in a worse position than a major and has to suffer on account of the vagary of the next friend. It was observed by Vice-Chancellor Malins in - Hoghtons Estate : Hoghton v. Fidday, (1874) 18 Eq 573 at p. 576 : "The question which I have to decide is, whether this infant, on whose behalf a decree was taken by consent in 1867, is to suffer by any negligence or want of knowledge on the part of her then next friend. I am clearly of opinion she cannot be called upon to endure that inconvenience...... The proposition that an infant of tender years may have her whole fortune wrecked by the neglect of her next friend is so monstrous that I cannot pay attention to it. She is entitled to have a next friend who is diligent and will protect her interests". Considering the nature of the previous suit and other circumstances there is hardly any doubt that the learned Munsiff used his discretion well in setting aside the decree as a whole when he found that at any rate it had to be set aside against the first plaintiff.

8. The next point for consideration is what are the circumstances which have to be taken into consideration in a suit for setting aside a previous decree. It is no doubt true that in case it had been proved that the next friend of the minor had effected a compromise under undue influence the compromise decree could have been set aside on that ground. But no such undue influence has been proved in this case, as has been held by both the courts below. But as decided in - Dimala Narasu v. Ingili Baitharu, AIR 1938 Mad 13 : "A decree suffered by a next friend or guardian ad litem of the minors in a suit can be set aside on their attaining majority on the ground of fraud, collusion or gross negligence of the next friend or guardian ad litem. What is gross negligence depends on the facts of each case, but it must be such negligence as would lead to the loss of a right which would have been successfully asserted if the suit had been conducted or resisted with due care. Failure of a guardian to do his duty in getting all the available material and placing it before the Court would amount to gross negligence on the part of the guardian. A decree by consent stands on the same footing as other decrees. A consent decree obtained with the sanction of Court cannot be set aside except upon very strong grounds, such grounds as amount to fraud in the party claiming the benefit of the compromise decree. An obligation is laid on both the parties to place all the materials in their possession where minors are concerned in order to enable the Court to judge the fairness of the compromise, and where a party seeking the benefit of the compromise against a minor has no honest belief in the claim he is making and the claim is absolutely without any foundation, the compromise will not be allowed to stand as the Court is not apprised of the real state of facts and the compromise sanctioned by the court must be deemed to have been passed on a misapprehension of material facts having been withheld by the party who had knowledge of the same. Such withholding will in law amount to fraud". In this case both the courts below have come to the conclusion that the alienation effected by the father of the minors was not for legal necessity. The defendants, in whose favour the alienations were effected must have known this. While the defendants kept the court from the knowledge of this aspect of the matter by contending that the alienations in their favour were for legal necessity, the next friend of the minors was grossly negligent and this led to the loss of plaintiffs right to the suit property which would have been successfully asserted if the suit had been conducted with due care. It would be noticed that she received only Rs. 75/- in full settlement of not only the claim of the minor plaintiffs 2 and 3 but also in satisfaction of the claim of the major plaintiff. Moreover, the minors could not evidently get the benefit of even a portion of this amount as under the terms of the compromise it was agreed that half the institution fee had to be paid by the plaintiffs and parties should bear their own costs. There is hardly any doubt that the next friend of the minor plaintiffs was grossly negligent and if the Court was induced to give its consent it did so because of the fact that necessary materials were not placed before it. In view of this also it has to be said that the learned Munsiff was right in setting aside the entire decree.

9. In the result the appeal of the plaintiffs in S.A. 542 is allowed with costs and the cross-objections dismissed with costs. The judgment and decree of the learned Subordinate Judge are set aside and those of the learned Munsiff restored.

10. BALAKRISHNAIYA, J. :- I agree. Appeal allowed. AIR (39) 1952 MYSORE 137 (C. N. 65) "Jayalakshmi v. Bharamiah" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAYYA, JJ. ( Division Bench ) Jayalakshmi and others, Plaintiffs-Appellants v. K. Bharamiah Gowda and others, Defendants-Respondents. Second Appeal No. 89 of 1948-1949, D/- 22 -2 -1952. Mysore Hindu Law Womens Rights Act (10 of 1933), S.8 - HINDU LAW - PARTITION - Right of unmarried daughters to shares in family property - Accrual of right - Suit for partition by daughters - Right to claim share in properties which have ceased to belong to joint family on date of suit. Unmarried daughters though they are members of the Hindu joint family in which they are born are not coparceners and do not get any interest in the family properties by birth. (Para 3) Section 8 of the Mysore Hindu Law Womens Rights Act which confers a right on them to claim shares in the family property upon a partition between the male members cannot be interpreted as giving them the rights possessed by sons or other coparceners. Under the section their right is contingent upon the disruption of the state of jointness between the male members and does not accrue to them in the absence of a division. They cannot themselves enforce a partition and obtain their shares but when there is a division they have the right to claim their shares even though there is only a division in status unaccompanied by an actual division of the property. Nor is the fact that the partition between the male members is not the act of parties but is the result of the decree of Court material to the section and where the decree has not provided for their shares the partition has to be revised at the instance of the daughters. The section however does not confer on the daughters the right to impeach alienations of coparceners and claim share in those properties which by reason of such alienations have ceased to belong to the joint family on the date of their suit for partition. (Paras 2, 3) Cases Referred : Chronological Paras (42) 49 Mys HCR 456 3 (45) 52 Mys HCR 7 3

V. Krishna Murthy, for Appellants; Malur Subba Rao, (for Nos. 1 and 2) and H.V. Narayana Rao (for No. 4), for Respondents. Judgement VENKATA RAMAIYA, J. :- The Appellants, as unmarried daughters, sued their fathers, alienees from their fathers and their brothers for shares in the properties described in plaint schedule alleging that these belonged to a joint family of which they are members, that the alienations of the same effected by the father of plaintiffs 1 and 2 and father of plaintiffs 3 and 4 were not valid as has been held in a suit instituted by the plaintiffs brothers and do not affect the plaintiffs shares. According to the ultimate decision in that suit, the alienees are entitled only to the shares of the father of plaintiffs 1 and 2 and father of plaintiffs 3 and 4 and these shares are to be separated from the shares of plaintiffs brothers after a division of the properties. The present suit is said to have become necessary as plaintiffs were not parties to the suit in which partition is ordered and as such could not secure their shares in the properties. Of the defendants, the fathers and brothers remained ex parte but the alienees contested the claim. The trial Court dismissed the suit and the dismissal is confirmed in appeal.

2. Sri Krishnamurthy contended on behalf of the plaintiffs-appellants that the view of the two courts as regards the law applicable to the case and the effect of the previous litigation is erroneous. He argued that in any event, there is no justification for a total dismissal of the suit. No decision about the right of an unmarried daughter to a share in circumstances similar to those in this was cited by learned Counsel. The claim to a share with respect to alienated properties has to be determined on the interpretation of the provisions of Hindu Womens Rights Act and the principles of Hindu law governing alienations. The right of unmarried daughters and other female members of a joint Hindu family to shares in family properties, the quantum thereof and the conditions necessary for the accrual of such rights are provided for in Section 8 of the Hindu Womens Rights Act. The section so far as is material to the case is as follows : 8(1) (a) "At a partition of joint family property between a person and his son or sons, his mother, his unmarried daughters and the widows and unmarried daughters of his predeceased undivided sons and brothers who have left no male issue shall be entitled to share with them.

2. Such share shall be fixed as follows : (c) in the case of every unmarried daughter or sister, one-fourth of the share of a brother if she has a brother alive, and, in any other case ............ 5.Each of the female relatives referred to in sub-section (1) shall be entitled to have her share separated off and placed in her possession. Provided always as follows :

(i) ..................

(ii) No female whose husband or father is alive shall be entitled to demand a partition as against such husband or father, as the case may be. The words "At a partition" in sub-section 1 denote that it is only when there is a partition that the unmarried daughters get a right to claim shares and not otherwise. They cannot themselves enforce a partition to obtain the shares. They can do so if there is a severance of status without necessarily actual division of the properties among the male members. The fact that partition in this case is brought about not voluntarily by act of parties but by a decree of the Court is not material for the purpose of the section as all that it required is that there should be a partition to entitle the unmarried daughters to a share. Since there is a decree for partition, the plaintiffs claim to shares in the properties cannot be questioned. This is not disputed but the controversy is about the properties in which they can have the shares. If the partition under the decree was effected between male members of the family without providing shares in the family properties to plaintiffs, the partition was liable to be revised at the plaintiffs instance for readjustment of shares and fresh allotment of properties and the male members could not have objected to it. The difficulty in the way of plaintiffs for the same being done in this case lies in the fact that partition is brought about after alienation of family properties by some of the male members and the rights of alienees are involved for consideration.

3. The partition at which, according to the words in the section, the right to a share arises is a partition between father and sons, that is, members of the family and not between alienees and members. The daughters though members of a joint Hindu family are not co-parceners and do not get interest in the family properties by birth. Their right to a share is contingent upon the state of jointness being broken up between the male members and the right does not accrue in the absence of a division which does not depend on their volition but which, if at all, is brought about by others. The coparcener on the other hand acquires an interest in the properties when he is born and the existence of the right does not depend upon the happening of any event, though the quantum of such right may fluctuate by the increase or decrease of persons entitled to shares in the properties from time to time. A coparcener is also entitled to alienate his undivided interest in the family properties and when he does so, the rights of the alienee are fixed by the share which the alienor was entitled to at the time of alienation. These are not affected by any subsequent change in the number of persons entitled to shares at a later partition. Since such is the well settled rule in the case of coparceners it would be strange unless the section expressly provides for it, that the alienees rights should be impaired by reason of persons who have no right in the properties at the time of alienation becoming entitled to a share on account of subsequent partition. It is possible that when the alienation takes place, the alienor has no daughters and they are born some years later when the partition is made. To allow daughters to impeach alienations in such circumstances is tantamount to conceding larger rights to them than to the sons and leads to the anomaly of placing unmarried daughters at the time of partition in a better position than daughters at the time of alienation. The section cannot be interpreted as giving the daughters rights possessed by sons or other coparceners and does not enable them to seek a share in properties which have ceased to belong to the family at the time of partition. A question may arise whether unmarried daughters would not be deprived of the benefit of the section if instead of a partition the male members choose to alienate their shares to strangers. Such a contingency is unlikely to occur and consideration of this factor cannot be a ground to put the alienee in a worse position in relation to daughters than with reference to male members. 49 Mys HCR 456, cited for the appellants does not help them. It was held in that case that when the property passes to a sole surviving coparcener, the female members specified in clause (d) of Section 8 of the Act makes them co-sharers along with him and they will have a vested right. That is because of the express terms of the section which states that the properties devolve on a single or sole coparcener subject to such rights. The present case is not of that kind. - Subbiah v. Subbarayappa, 52 Mys HCR 7, is also distinguishable as it was a case in which the partition was entered into by members of the family and not a case in which rights of alienees were involved. The suit so far as the alienees-defendants are concerned and with respect to the interests vested in them in the suit properties on the dates of alienations is dismissed. There will be a decree in plaintiffs favour as prayed for with respect to properties available for division between the male members on the date of suit, excluding what was previously alienated by any of them.

4. Parties will bear their own costs in this Court. Decree accordingly. AIR (39) 1952 MYSORE 139 (C. N. 66) "Krishnaiah v. Lakshmana Rao" MYSORE HIGH COURT Coram : 1 BALAKRISHNAYYA, J. ( Single Bench ) P. Krishnaiah Setty, Petitioner v. A. V. Lakshmana Rao and another, Respondents. Civil Revn. Petns. Nos. 334 and 335 of 1951-52, D/- 27 -3 -1952. Transfer of Property Act (4 of 1882), S.106, S.110 and S.116 - LEASE - TENANCY - EVICTION - Lease for fixed period - Date of commencement not fixed - Tenant holding over without further agreement - Notice of eviction - Exclusion of time u/S.110. In order to apply the rule of interpretation under S. 110 in the matter of exclusion of the day in the computation of the period of lease, it should have been expressed that the lease commenced from a particular day. In the absence of such expression, the principle of exclusion of the particular day does not arise. (Para 6) A lease of premises was entered into for a period of 11 months on 1-1-46 but the day of its commencement was not named. After the expiry of the period of lease the tenant held over and became with the acquiescence of the landlord a tenant from month to month without further agreement. On 11-8-1949 the landlord gave notice to the tenant terminating the lease on 31-8-1949 and demanding possession on the morning of 1-9-49 : Held (1) that in the absence of a day fixed for the commencement of the original lease, it must be deemed to have commenced from 1st of the month when it was made; (Para 7) (2) as no fresh agreement was entered into after the expiry of the original lease, the subsequent month to month tenancy also began on the same date namely the 1st, of a month: AIR 1925 Oudh 173 (1) and AIR 1938 All 649, Ref. (Para 7) (3) the question of exclusion of a particular day under S. 110 did not arise and therefore the month to month tenancy ended on the 31st August. The notice demanding the delivery on the morning of the subsequent day, therefore, conformed to the requirements of S. 106: AIR 1932 PC 279, Disting. (Para 7) Anno : T. P. Act, S. 106, N. 40, S. 110, N. 1, S. 116, N. 11. Cases Referred : Chronological Paras (32) AIR 1932 PC 279 : (60 Cal 389) 6 (38) AIR 1938 All 649 : (178 Ind Cas 986) 7 (25) AIR 1925 Oudh 173(1) : (81 Ind Cas 592) 7 (1894) 1 QB 378 : (64 LJ QB 200) 6

V. Krishna Murthy, for Petitioner, (in Nos. 334 and 335); S. Gundappa, for Respondents (in Nos. 334 and 335). Judgement These petitions arise out of proceedings under the Mysore House Rent Control and Accommodation Order of 1948. The petitioner in both these cases is the owner of the premises described in the schedule thereto, comprising of shops and dwelling portion and the respondents are the tenants of different portions thereof. The petitions were filed for evicting the respondents on the ground that the premises were required for the bona fide use and occupation by the owner himself. The House Rent Controller found in favour of the petitioner and directed eviction; but on appeal the Appellate Authority reversed the order and dismissed the petitions on the ground that the notices to quit were invalid in law.

2. The first of these petitions C.R.P. 334/51-52 arises from H.R.C. 20/49-50 filed by the petitioner against the respondent. Lakshmana Rao, the respondent took the lease of the portion of the property on 6-3-1944 from Thimmaiah and Nagappa, the mortgagees with possession for a period of 11 months on a rental of Rs. 13/- per mensem. After the expiry of the term of the lease the rent was raised to Rs. 15/- per mensem and the respondent continued to be a tenant from month to month paying the stipulated rent.

3. In H.R.C. 19/49-50 out of which C.R.P. 335/51-52 arises the respondent Narasimha Naidu took a shop portion comprised in the premises at a rent of Rs. 8/- per mensem from the said mortgagees, for a period of 11 months from 1-1-46. Subsequently he also continued as a tenant from month to month paying the agreed rent. The petitioner purchased the entire property concerned in both these petitions from its owner on 22-1-48 for a sum of Rs. 10,000/- and the mortgage was discharged.

4. On 11-8-49 the petitioner gave notices to both the respondents determining the tenancy and demanding possession of the property. The notice to Narasimha Naidu stated that the tenancy had been terminated on 31-8-49 and the property should be delivered to the owner on the morning of 1-9-49. Likewise, Lakshmana Rao was also served with a notice determining his tenancy on 5-9-49 with a demand to put the petitioner in possession of the property on the morning of 6-9-1949. Both of them denied the right of the petitioner to determine the tenancy, whereupon eviction proceedings were started.

5. The respondents did not challenge the validity of the notices in the trial court. That point appears to have been developed in the appellate Court, which however, upheld the contention and dismissed the applications on the preliminary point of invalidity of notices, without arriving at any decision on the merits of the cases. 6. The common question that arises for consideration in these petitions is the sufficiency or otherwise of the notice under Section 106 of the Transfer of Property Act and this again turns upon the interpretation of Section 110 of the Transfer of Property Act in relation to the commencement and expiry of the tenancies. A common argument is addressed as the point involved is similar in both the cases. In the single order relating to both the cases, the learned Appellate Judge has reasoned as under : "Under Section 106 of the Transfer of Property Act one important requirement of a valid notice is that it must designate proper time for determination of the tenancy. This time again must be so fixed that the notice must expire with the end of a month of the tenancy. If these tests are applied it becomes clear the notice is not in accordance with the provisions of law. The notice calls upon the tenant to quit the premises on the morning of 6th September 1949. It has been held in a Privy Council case that if the tenancy is a monthly tenancy from the 1st of a month it expires at midnight of the 1st of each succeeding month. In the light of this decision the notice under advertence is not valid inasmuch as it calls upon the tenant to quit in the morning of 6th October, while the tenancy expires in the midnight of 6th October. I hold therefore the notice is not valid. Similarly the notice issued in the other case also is invalid for the reasons set forth above." It is represented that the Privy Council case relied upon in the order is - Benoy Krishna Das v. Salsiccioni, AIR 1932 PC 279, which is a decision based on the application of Section 110 of the Transfer of Property Act. Section 110 of the Transfer of Property Act runs thus : "Where the time limited by a lease of immoveable property is expressed as commencing from a particular day, in computing that time such day shall be excluded. Where no day of commencement is named, the time so limited begins from the making of the lease. "Where the time so limited is a year or a number of years, in the absence of an express agreement to the contrary, the lease shall last during the whole anniversary of the day from which such time commences." The first part of Section 110 contemplates that (1) a time or a period should be limited by the lease and (2) the period must be expressed to commence from a particular date. When both these conditions are fulfilled the rule of interpretation laid down in the first part of the section applies to a case and in computing the period of lease the day of commencement expressed is excluded. The second part refers to the time so limited and prescribes that when the period is a year or a number of years, the lease lasts during the whole anniversary of the day from which the lease commences. The conditions are of course subject to agreements to the contrary. In the Privy Council case relied upon there was a tenancy for a term of 4 years commencing from 1st June 1921 and after the expiry of the period, the tenant held over and a notice was given by the tenant on 1-2-28 that he would give up possession on 1-3-28. It was contended that under S. 110, T. P. Act the first day of the commencement of the period should be excluded. The subsequent period of tenancy it was argued thus began on the 2nd of June and ended on the first of each month and as the tenancy continued it must necessarily end on the midnight of 1st March and that the notice was therefore bad. His Lordship Lord Tomlin expressed thus : "The lease from the 1st of June 1921 for a term of 4 years ends on the midnight of 1st June 1925 and a notice given by the lessee on 1st February 1928 for leaving the premises on 1st of March 1928 is a notice expiring with the end of the month of tenancy." This decision does not apply to the circumstances of these present cases, as the date of commencement of the tenancy is not named in the written leases. The learned Appellate Judge is of opinion that the notice is short by about 12 hours as according to him the tenancies expired at midnight and not on the morning of the respective dates. That the notices in these cases are absolutely in conformity with Section 106, will be discussed later. Even otherwise, the interpretation of notices should not be over-technical. "The law upon notices to quit is highly technical" observed Lord Justice Smith in - Sidebotham v. Holland, (1894) 1 QB 378 and "I do not want to add one more technicality to it". In that case the yearly tenancy ran from the 19th May of one year to the 18th May of the next year and the landlord gave wrong notice to quit on the 19th May instead of 18th. While holding that the notice substantially conformed to the provisions, Lord Justice Lindlay observed that "the validity of the notice to quit ought not to turn on the splitting of a straw. Moreover if hyper-criticisms are to be indulged in, a notice to quit at the first moment of the anniversary ought to be just as good as a notice to quit at the last moment of the day before. But such subtleties ought to be and are disregarded as out of place." It was observed, in the portion of the order extracted, by the appellate authority that "It has been held in the Privy Council case that if a tenancy is a monthly tenancy from 1st of the month, it expires at midnight on the 1st of the succeeding month." This inference does not appear to be warranted by the decision in AIR 1932 PC 279. The period of the original lease in the PC case was for four years, and the lease was held to last during the whole anniversary of the day from which such time commenced, and the date happened to be the 1st of a month and thus the subsequent tenancy from month to month actually commenced from the 2nd of the month and lasted till the midnight of the 1st of the next month. It is a question of fact depending upon the commencement of the lease and that date determines the date of the expiry which is capable of being determined by a notice in accordance with S. 106, T. P. Act. In order to apply the rule of interpretation under S. 110, T. P. Act in the matter of exclusion of the day in the computation of the period of lease, it should have been expressed that the lease commenced from a particular day. In the absence of such expression, the principle of exclusion of the particular date does not arise. On the other hand the section states that where no day of commencement is named, the time so limited begins from the making of the lease.

7. Applying these tests to the present cases, the exclusion of the day under S. 110 is not called for. The leases were entered into for a period of eleven months; but in neither the day of the commencement of the lease was named. And hence, the time began from 1st and 6th of the months when the leases were made. After the expiry of the period of lease the tenants held over and became with the acquiescence of the landlord tenants from month to month. It is a rule of construction depending upon the expiry of the tenancy that when a new tenancy is created by a landlord allowing the tenant to hold over after the original lease terminates the terms governing the original lease will be deemed to have been accepted by the parties in the absence of agreement to the contrary (vide - Lalman v. Mt. Mullo, AIR 1925 Oudh 173 (1) and Badal v. Ram Bharosa, AIR 1938 All 649). No fresh agreement after the expiry of the original leases is set up, nor is it denied that the tenancies from month to month began on the corresponding dates of the original tenancies. The tenancies at the time of the notices ran from 1st of August and 6th August respectively and it is not contested that the notices were not received clear 15 days before the expiry of the months of tenancy. Section 106, T. P. Act provides that in the absence of a contract to the contrary lease of immoveable property shall be deemed to be a lease from month to month in case of a dwelling house and shops terminable on the part of either the lessor or the lessee by 15 days notice expiring with the end of the month of tenancy; the month of tenancy in these cases ended on the 31st August and 5th September respectively and the notices determining the tenancies on the 31st August and 5th September and demanding the delivery on the morning of the subsequent days, therefore conform to the requirements of Section 106. I am therefore unable to support the decision of the learned Appellate Judge. The order of dismissal of both these petitions is set aside. Holding that the notices to quit in both these cases are perfectly valid in law, I allow both the petitions, by setting aside the dismissal order and remand them to the Additional District Judge, Bangalore, for disposal on merits according to law. Costs of these petitions will abide the final results. Advocates fee is Rs. 15 /- in each. Petitions allowed. AIR (39) 1952 MYSORE 141 (C. N. 67) "Srikantaiah v. Bansilal" MYSORE HIGH COURT Coram : 1 BALAKRISHNAYYA, J. ( Single Bench ) A. Srikantaiah, Petitioner v. Bansilal Abirchand by Agent Kasthurchand and another, Respondents. Civil Revn. Petn. No. 377 of 1950-51, D/- 8 -1 -1952. (A) Civil P.C. (5 of 1908), O.3, R.4 - ADVOCATE - LIEN - Lien for fees. Solicitor and Client. The lien of a solicitor extends only to taxed or taxable costs in England. It is left to the discretion of the Taxing Master to allow or moderate the claim, but the Taxing Master is not bound to allow whatever amount the solicitor claims. In India the lien is applied to costs awarded by the Courts. In the Courts of Mysore State the fee due to an Advocate is regulated by the Civil Rules of Practice and the Court which decides the case has discretion to allow costs fixing the fee due to the legal practitioners. The lien, if any, should be confined to costs. The claim of the Advocate for certain amount based on an agreement with the client cannot be enforced as a lien in the summary jurisdiction of the High Court. Case law Ref. (Para 5) Anno : C. P. C., O. 3, R. 4, N. 12. (B) Civil P.C. (5 of 1908), S.20, O.3, R.4 - CIVIL COURT - LIEN - ADVOCATE - Lien for fees - Jurisdiction of Court. Solicitor and Client. The ordinary original jurisdiction of the High Court is certainly distinct from the Insolvency Jurisdiction which is specially vested. The Insolvency Court becomes functus officio after the termination of the Insolvency proceedings when, by the time of the application by the Advocate with a prayer that as there were no other means of recovering the fees his claim should be given a priority by way of a lawyers lien over the assets of the alleged insolvent which are within the jurisdiction of the Court in preference to other attaching creditors, the funds have been by attachment transferred to the executing Court, the funds against which the lien is claimed are not within the jurisdiction and control of the Insolvency Court in which the petition is filed. (Para 6) Anno : C. P. C., S. 20, N. 2, O. 3, R. 4, N. 12. (C) Civil P.C. (5 of 1908), O.3, R.4 - ADVOCATE - LIEN - INSOLVENT - Lien for fees. Provincial Insolvency Act (1920), S.61. Solicitor and Client. Where the Advocate had notice of the prior charge in favour of the Bank earlier to the Insolvency proceedings in which he earned his costs, his lien, if any, has to be postponed to the prior charge. AIR 1927 Bom 542, Disting. (Para 7) Anno : C. P. C., O.3, R. 4, N.12; Pro. Ins. Act, S. 61, N. 1. (D) Civil P.C. (5 of 1908), O.3, R.4 - ADVOCATE - LIEN - Lien for fees - Abandonment. Solicitor and Client. Where the Advocate has taken a cheque on a Bank for his fees, by such act of taking security for his fees, the Advocate has abandoned the lien if any. (1891) 1 Ch 590; AIR 1932 Mad 256, Rel. on. (Para 8) Anno : C. P. C., O. 3, R. 4, N. 12. (E) Civil P.C. (5 of 1908), O.3, R.4 - ADVOCATE - LIEN - Lien for Fees - Solicitor and Client. In Mysore State, there is no system of solicitors or attorneys. Instead, there are Advocates and pleaders who do the entire legal work. The Advocate should look to his client for reimbursement; he has no lien or any other right to compel a third person to release his secured debt in his favour. If an agreement between himself and his client should subsist it must be enforced in a properly framed suit. AIR 1932 Mad 256 : AIR 1942 Bom 102, Rel. on. (Paras 9, 10) Anno : C. P. C., O. 3, R. 4, N. 12. Cases Referred : Chronological Paras (25) AIR 1925 Bom 351 : (49 Bom 505) 4 (27) AIR 1927 Bom 542 : (51 Bom 855) 4, 7 (42) AIR 1942 Bom 102 : (200 Ind Cas 85) 9 (98) 25 Cal 887 : (2 Cal WN 508) 4 (19) 46 Cal 1070 : (AIR 1920 Cal 122) 4 (31) AIR 1931 Mad 183 : (131 Ind Cas 158) 4 (32) AIR 1932 Mad 256 : (55 Mad 455) 8, 9 (1891) 1 Ch 590 4, 8 (1878) 7 Ch D 495 : (47 LJCh 457) 7 A.R. Somanatha Iyer, for Petitioner; K. Nanjundiah, for Respondent (No. 1). Judgement The petitioner is an Advocate of this court who defended respondent 2, one Gulam Ahmed, against whom a creditors petition in insolvency was filed before the District Judge, Civil Station, Bangalore, in I. P. No. I of 1948. The insolvency petition was dismissed on 10-1-1949 with costs and the Advocates fee was fixed at Rs. 25/-. On 24-10-1949, the petitioner prayed for the intervention of the District Court under the summary jurisdiction to direct the Official Receiver for payment of Rs. 3,000/- to him being the fees stipulated by his client for defending him in the insolvency proceedings. The basis of his claim as stated in the petition is that the said Gulam Ahmed had agreed to pay a fee of Rs. 3000/- and accordingly in January 1948, the said Gulam Ahmed delivered a cheque on the Bank of Mysore, Ltd. for Rs. 3,000/- towards his fee and the cheque remained uncashed, that after the petition was dismissed on 10-1-1949 a fresh cheque for a similar amount was issued in renewal of the earlier cheque and that the second cheque could not be cashed as the assets of the alleged insolvent were not handed over to him by the Official Receiver as directed by the Court. He therefore prayed that as there was no other means of recovering the fee his claim should be given a priority by way of a lawyers lien over the assets of the alleged insolvent which are within jurisdiction of the Court in preference to other attaching creditors. The learned District Judge disallowed the claim and dismissed the petition. This revision petition is preferred against that order.

2. Both the cheques referred to in the petition and alleged to have been issued in favour of the petitioner by his client in January 1948 and January 1949 were not produced into Court. His client, Gulam Ahmed, however, in an affidavit filed by him admitted the agreement with his Advocate and supported the theory of having issued the two cheques on the Bank of Mysore. The contesting respondent is the Bank of Mysore. They contended in their statement that the said Gulam Ahmed was a merchant and had obtained advances from the Bank for his business. The goods that were sold by the Official Receiver were pledged by the said Gulam Ahmed as a collateral security. The Bank obtained a decree which amounted to Rs. 9,300/-. During the pendency of the insolvency proceedings, the Official Receiver was directed to take charge of the goods pledged and the Official Receiver obtained the goods which were in possession of the Bank and sold the same with the help of the alleged insolvent. The Official Receiver has reported that after deducting the miscellaneous charges and the payment at the rate of Rs. 125/- per mensem to the alleged insolvent (respondent 2) according to the direction of the Court, a sum of Rs. 4,287-1-9 was available with him. On 10-1-1949, the Insolvency Court is said to have directed the Official Receiver to hand over the assets to Gulam Ahmed who affirms in his affidavit that he took charge of the goods from the Official Receiver but that the cash amount was not handed over to him. In the meantime, on 11-1-1949, the cash amount in the hands of the Official Receiver was attached by the creditors of Gulam Ahmed.

3. It is contended on behalf of the petitioner that he possesses a Hen for his fees on the funds in the Court and that the claim of the Advocate has a priority over the claims of the attaching creditors inasmuch as the funds at the credit of the alleged insolvent in the Court were recovered and preserved by the exertions of the Advocate. The respondent opposed the claim and stated that the petition is collusive and filed to defraud the honest creditors and that, at all events, the claim is unconscionable and excessively high and contrary to the Legal Practitioners Act and also the Civil Rules of Practice and Circular Orders of this High Court in the matter of taxing costs.

4. The claim of the petitioner is sought to be supported by reliance upon the common law in England which has been followed by some of the Indian Courts. I am of opinion that an Advocate or a pleader in this State cannot claim a lien for his costs, much less request the intervention of the Court to enforce such lien on the summary side. In English Law a solicitor has what is commonly known as a particular lien and a right to ask the Court to direct that personal property under judgment obtained by his exertions stand as security for his costs of such recovery. The lien extends only to the solicitors taxable costs, charges and expenses incurred on the instructions of the client against whom the lien is claimed, and for which his client is personally liable, including the costs of recovering the remuneration by action or upon a taxation. The lien is, however, available against all persons claiming through but having no right higher than the client, and thus is available against his personal representatives, or trustee in bankruptcy (Vide Halsbury Laws of England Vol. 31 (II Edn.) pages 238 to 243). In - Re. Taylor, Stileman and Underwood, (1891) 1 Ch 590 a firm of solicitors received for some years on behalf of a lady income payable to her under the trusts of a will, and from time to time made advances to her and payments on her account. On being applied to for delivery up of her papers, the solicitors sent in an account of their receipts and payments showing a balance of 81 due to them and claimed a lien for that sum. The only item in the account of such a nature that the Taxing Master could have moderated it was "our costs to date 20". It was held by the appellate Court that a solicitors lien extended only to his taxable costs, charges and expenses which category includes all disbursements which can be moderated by the Taxing Master and are not necessarily allowed in full on being vouched and that therefore there was no lien for anything more than so much of 20 as should be allowed on taxation. In India where the system of solicitors is in vogue and attorneys are appointed, the principle of English common law is followed in recognising the solicitors lien. Where a decree awarding costs was subsequently compromised by the parties without providing for attorneys costs, it was held by the High Court of Calcutta in - Khetter Kristo v. Kally Prosunno, 25 Cal 887 that the parties could not deprive the attorney of his lien towards costs due. Following the said case, Rankin, J., laid down in - Harnandrov Foolchand v. Gootiram Bhuttar, 46 Cal 1070, that the Court has jurisdiction to enforce the solicitors lien by making a direct order for payment of costs awarded to the solicitor by the opposite party. The principle adopted by the English Courts that money which was earned by the act of a solicitor, unless something has occurred to take away his right, he is entitled to in law and equity and the moneys so earned might not be paid away to anyone without his costs being reserved so long as the funds are within the jurisdiction of the Court has been followed by Indian Courts. Vide - Ved and Sophor v. R.P. Wagle and Co., AIR 1925 Bom 351 and - Tyabji Dayabhai and Co. v. Jetha Devji and Co., AIR 1927 Bom 542. It is also considered that such lien is not liable to be defeated by a third party such as the assignee or an attaching creditor, even though the third person had no express notice (AIR 1927 Bom 542 and - Ghulam Moideen Sahib v. Md. Oomer Sahib, AIR 1931 Mad 183.) The trend of these decisions is to the effect that a solicitor or attorney has no general lien for all the moneys claimed by him, but has a right in law and equity to get the aid of the Court on the summary side to enforce what is known as a particular lien for costs awarded or costs due, and such lien has a priority over the assignee of a decree or an attaching creditor unless something has occurred to take away that right. The lien could be enforced so long as the funds are within the control and jurisdiction of the Court.

5. It is clear from the decisions that the lien of a solicitor extends only to taxed or taxable costs in England. It is left to the discretion of the Taxing Master to allow or moderate the claim, but the Taxing Master is not bound to allow whatever amount the solicitor claims. In India the lien is applied to costs awarded by the Courts. In the Courts of this State the fee due to an Advocate is regulated by the Civil Rules of practice and the Court which decides the case has discretion to allow costs fixing the fee due to the legal practitioners. The Advocates fee fixed in this case is Rs. 25/-. The lien if any should be confined to costs. The claim of Rs. 3,000/- based on an agreement with the client cannot be enforced as a lien in the summary jurisdiction of the Court.

6. It is urged by the respondent that the Insolvency Court has become functus officio after the termination of the Insolvency proceedings on 10-1-1949; and by the time of the application made by the Advocate on 24-10-49, the funds had been by attachment transferred to the executing Court. As against this, the petitioner contended that the same Court has control over the funds. The ordinary original jurisdiction of the Court is certainly distinct from the Insolvency jurisdiction which is specially vested. The contention that the funds against which the lien is claimed are not within the jurisdiction and control of the Insolvency Court in which the petition is filed should be upheld.

7. It is next contended by the respondent that the fund in the Court is neither acquired nor preserved by the act of the lawyer. The fund deposited into the Court by the Receiver in insolvency represents the sale proceeds of the moveable property of the insolvent pledged in favour of the Bank. The fund forms the property preserved by the Receiver on account of the attacks of the Advocate against the creditor-petitioner. The funds therefore cannot be characterised as the property recovered or preserved by the exertions of the Advocate in the conduct of the case. Further, the learned counsel for the respondent Bank contended that his client being a secured creditor has a prior lien and any claim of the Advocate should be restricted to the costs awarded and cannot be charged against the corpus of the property brought into by consent of the respondent to the Insolvency Court. It is not denied that the money in the hands of the Official Receiver was in fact the sale proceeds of the moveable property pledged to the Bank; but the petitioner relying upon the observation in - Tyabji Dayabhai and Co. v. Jetha Deyjj and Co, AIR 1927 Bom 542 argued that a solicitor can enforce his lien even against a secured creditor. Following is the passage relied upon. "In - Faithfull v. Ewan, (1878) 7 Ch D 495, a decision of the Court of Appeal, an attorney who claimed a lien had actually approved a mortgage in favour of other parties on the funds in question without specifically claiming that he was entitled to a lien in priority to that mortgage in respect of his own costs. It was held by the appellate Court that as the mortgagees had notice of the suit, they must be presumed to have known the rights of the solicitor of the plaintiffs and that his charge ought not to be postponed to the mortgage, he not having been guilty of any misrepresentation or concealment." In that case a lien for costs had been earned earlier to the mortgage and the mortgagees were said to have had notice on the principles that the costs earned in respect of the property mortgaged affirmed the charge and the mortgagees obtained the security only subject to the costs of the solicitor. In the present case the position is reverse. The Advocate had notice of the prior charge in favour of the Bank earlier to the Insolvency proceedings in which he earned his costs. His lien if any has to be postponed to the prior charge. The decision relied upon by the petitioner as being in his favour does not therefore help him.

8. One another aspect for consideration is whether the lien subsists in the circumstances of the case. Admittedly the Advocate has taken a cheque on the Bank of Mysore for Rs. 3,000/- in January 1948, which is said to have been renewed in January 1949. By such act of taking security for his fees, the Advocate has abandoned the lien if any. This principle has been supported by the following cases. In - In re Taylor, Stileman and Underwood, (1891) 1 Ch 590, it was found that the solicitor had taken a pro-note payable on demand as security for costs due to him. It was held that prima facie where a solicitor whose duty it is to advise his client as to his rights and liabilities takes from his client a security for costs without explaining that he intends to reserve his lien, the lien is abandoned. Cornish, J., in - Krishhamachariar v. Official Assignee of Madras, AIR 1932 Mad 256 observes that "it appears that the appellant took a promissory note for Rs. 3,000/- as security for his costs in the probate litigation. There is therefore no ground for holding that the appellant had a lien."

9. What remains for consideration is whether an Advocate of this Court could be considered to have the rights similar to a solicitor or an attorney. In this state, there is no system of solicitors or attorneys. Instead, there are Advocates and Pleaders who do the entire legal work. There is neither law nor any rule governing the Advocates lien for costs on the analogy of Solicitors Act of 1860. In a similar case before the High Court of Madras - Krishnamachariar v. Official Assignee of Madras, AIR 1932 Mad 256, Beasely, C.J., and Cornish, J., observed that "there is no enactment in this country recognising the particular lien for costs which is sanctioned by the Solicitors Act of 1860, in favour of a solicitor upon property recovered by his exertions for a client though it has been held that solicitors who have been admitted as attorneys of an Indian High Court have this lien. But the appellant is an Advocate and not a solicitor or attorney and the only possible ground for supporting a claim to such a lien in his favour would be an express agreement by his client to that effect." In a recent case Chagla, J., (as he then was) laid down that, "Primarily the solicitor should look to his own client for costs. There is no reason in principle or equity why, because a solicitor has not taken precaution to take proper advances from his client, he should compel a party to pay his costs who has to recover from the other party more than he was to pay to him." Vide - Rustomji and Ginwala In re, AIR 1942 Bom 102.

10. The petitioner is an Advocate of this Court and the observations quoted above aptly apply to the circumstances of the present case. The petitioner had obtained a cheque from his client, as advance towards his fee and he should look to his client for reimbursement; he has no lien or any other right to compel the respondent to release his secured debt in his favour. If an agreement between himself and his client should subsist it must be enforced in a properly framed suit. Viewed from any stand point, the petitioner has no lien to enforce in the circumstances of the present case.

11. In confirming the order of the, learned District Judge, this petition is dismissed, parties bearing their own costs of this petition. Petition dismissed. 1951 AIR (38) 1951 MYSORE 1 [C. N. 1.] "In re Basappa" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND MALLAPPA, J. ( Division Bench ) In re Basappa and others, Accused-Appellants. Criminal Appeal No. 38 of 1949-50, D/- 18 -9 -1950. (A) Evidence Act (1 of 1872), S.3 - EVIDENCE - Circumstantial evidence. Circumstantial evidence must be such as to lead only to one possible inference leading to the conviction of the accused and if any other inference consistent with the innocence of the accused on that point is possible, a conviction cannot be based on such circumstantial evidence. (Para 3) Anno. Evid. Act, s. 3, N. 6. (B) Evidence Act (1 of 1872), S.114 - EVIDENCE - POSSESSION - Article belonging to deceased found in possession of accused - Presumption of accused having committed murder. Unless there is evidence to show that the articles belonging to the deceased, recovered from the accused soon after the murder of the deceased were not only in the possession of the deceased at the time of the murder but also that it could not have been transferred from the deceased to the accused except by the deceased himself, no presumption that the accused committed the murder can be drawn from the mere unexplained possession of those articles. (Para 3) Anno. Evid. Act, S. 114 N. 7. (C) Penal Code (45 of 1860), S.34 - COMMON INTENTION - OBJECT OF AN ACT - APPLICABILITY OF AN ACT - Scope and applicability. If two or more persons enter a house with the common intention of committing theft and one of them finds a man waking up and hits him so bard that he dies as a result of that injury, every one of his companions is not liable for the offence. It would be so if the murder was intended by all of them and it was committed in furtherance of their common intention though the act was done by only one of them. If however the persons went out to commit theft and one of them openly carried a loaded gun all of them must be deemed to have intended that murder should be committed in the course of their committing theft. Every one of them is liable for murder if one of them commits murder in furtherance of their common intention of committing murder though they did not by any act of their own commit the murder. This is what is intended by S. 34. (Para 4) Anno. Penal Code, S. 34, N. 1. (D) Penal Code (45 of 1860), S.34 - COMMON INTENTION - "Act." The wordact in s. 34 contemplates a series of acts though done by several persons. (Para 5) Anno. Penal Code, S. 34, n. 1. (E) Penal Code (45 of 1860), S.34 and S.149 - COMMON INTENTION - UNLAWFUL ASSEMBLY - Distinction pointed out. Section 34 deals with the liability of persons who had a common intention when an illegal act "is committed in furtherance of that common intention. Knowledge that an offence is likely to be committed is not what is contemplated in S. 34. Section 149 deals with the liability of persons in respect of an offence when they had the knowledge of there being a likelihood of its being committed in prosecution of their common object. That section does not deal with common intention to commit the offence. In effect, the common object with which it deals may be one which is lawful, while the common intention contemplated by S. 34 is with reference to the committing of a criminal act. Section 34 does not deal with the liability of persons for an offence likely to be committed in the course of what was intended by them, but deals with only the liabilities of the persons who intended to commit a criminal act, when that act is committed. Even in a case where an offence is committed by one person another person who was with him at the time the offence was committed cannot be punished, though he had a similar intention, that is because, the section deals with the liability of persons for a criminal act done in furtherance of a common intention. (Para 8) Anno. Penal Code, S. 34 N. 1; S. 149 N. 3. (F) Penal Code (45 of 1860), S.34 - COMMON INTENTION - "In furtherance of common intention." Before it could be said that an act was done in furtherance of a common intention, there must have been a pre-arranged plan or common design to commit the act prior to its commission. It is not sufficient if, at the time, the act is committed persons present think alike and intend that the act should be committed. It may be that though there may not be a pre-arranged plan to commit a major offence when some men start with a pre-arranged plan to commit a minor offence, the conduct of the men may show that in the course of their committing the minor offence they came to an understanding to commit the major offence and a common intention of committing that offence came to existence. If the major offence was committed in furtherance of their common intention it is clear that each is liable for the offence as if be himself committed it. (Para 9 and 10) Anno. Penal Code, s. 34 n. 1. Evidence Act (1 of 1872), S.1. In criminal cases in which more than one accused are involved the Court has to deal with the case of each accused separately and has to ascertain and give a finding as regards the act or acts proved to have been committed by each of the accused. It has to see whether what is proved in respect of each accused amounts to an offence. If one accused is being punished for what is done by another it has to state how he becomes responsible for the act of the other. (Para 13) Anno. Cr. P. C. S. 367 N. 6; Evi. Act; S. 1 N. 12. Maloor Subba Rao - for Appellants; Advocate General - for the State. Judgement Judgment. - This is an appeal against the judgment in Shimoga Sessions Case 3 of 49-50 in which the appellants have been convicted of an offence under S. 302, Penal Code, and sentenced to transportation for life.

2. According to the prosecution case, the accused and others entered, on the night of 13-12-1948, a building known as Tudekoppada Mutt which is at a distance of a few miles from Sagar and committed offences of house-breaking and robbery, in the course of which one Puttasamiah an inmate of the house was murdered. P. W. 9 Shiviah, to whom the Mutt belongs, was residing in it with the other members of his family and a few relatives had also come in connection with some ceremony. On the night of 13-12-1948, P. W. 9 Shiviah and some of the members of his family had gone to Sagar to see a circus. He and one Karibasiah remained at Sagar, while the other members of the family returned to the Mutt. Early in the morning, his son-in-law Lingamurti came to Sagar and told him about the house-breaking, robbery and murder that had taken place in the night and a complaint Ex. P-13 was filed before the Police. P. W. 10 Lingamurthi himself is not aware of what happened that night as he was sleeping in the upstairs of the building, while the incident took place in the downstairs. P. W. 11 Gangadhariya who was also sleeping in another portion of the house was not also awake when the incident happened. The evidence of P. W. 20 Kalyanaiya son-in-law of Shiviah and of his wife P. W. 21 Annapoornamma are not of much help, as, though they refer to the jewels that she had kept under a pillow having been removed, the accused had left her room before they could see them. The evidence of P. W. 22 Gangamma and P. W. 23 Neelamma is of much more importance as they saw the culprits snatching away a suit case from the hands of Gangamma after a tussle. As they were using torchlight, Gangamma has been able to identify accused 1 and 2 as the persons who did so. It may be added that she identified the accused in an identification parade held, later on, by the Amildar P. W. 3. It has to be stated here that Gangamma has also deposed that just before the accused entered the hall in which she was sleeping she heard the sound of some one being beaten outside. Pattasamiah was found with injuries on his forehead and neck and he died a little later. On the complaint to the police referred to above, the Police Officers came and an inquest was held over the dead body of the said Puttasamiah and the body was subjected to pest mortem examination by the doctor P. W. 2. According to the evidence of this doctor, death was due to haemorrhage in the brain and injury to the brain and shock, as a result of severe injury and fractures of skull bones

3. All that is necessary to add for consideration in this case is that there is some evidence of certain articles said to have been stolen, being traced to the possession of the accused. We do not like to express any opinion in respect of the offence of robbery, as the accused have yet to undergo a trial in respect of that offence, and it is particularly so as we find that the evidence on record does not justify the conviction of any of the accused or all of them of the offence of murder, even if all the evidence on record is accepted as true. It may be taken that accused 1 and 2 along with others entered the building and removed some of the valuable articles and that one or more of them caused the death of Puttasamiah. The point for consideration is whether there is any evidence to show whether all the accused or any one or more of them can be convicted of the offence of murder. There is no direct evidence to show who out of the accused and their companions committed the murder. It is contended that as the accused 1 and 2 at any rate were seen entering the hall in which P. Ws 22 and 23 were sleeping and actually assaulted them and committed the offence of robbery by snatching away the small suit case held by Gangamma, it must be taken that it is they who murdered Puttasamiah. This does not necessarily follow. Circumstantial evidence must be such as to lead only to one possible inference leading to the conviction of the accused and if any other inference consistent with the innocence of the accused on that point is possible, a conviction cannot be based on such circumstantial evidence. In this case, it is quite possible that a person other than accused 1 and 2 be laboured Puttasamiah, while accused 1 and 2 were engaged in committing theft. There is neither circumstantial nor direct evidence to show, who it is that committed the murder of Puttasamiah. Assuming that some of the stolen articles, are traced to the possession of any of the accused, it does not follow that he murdered the deceased. As observed in Pattamudasetty v. Govt. of Mysore: "Before a presumption of murder can be drawn against the accused from the mere unexplained possession of an article shown to have belonged to the deceased, there must be evidence to show that the "article recovered from the accused was not only in the possession of the deceased at the time of murder but also that it could not have been transferred from the deceased to the accused except by the person being murdered."

4. It was contended that the accused are under any circumstances liable under s. 34 Penal Code. According to S. 34: When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." This section states when, a person who does one of a aeries of acts, done by several persons amounting to an offence, is liable to be punished for that offence, though what he did by himself does not amount to that offence. If, for instance, two or more persons as in this case, enter a house with the common intention of committing theft and only one of them is lucky in finding the jewels and removes them in furtherance of the common intention, every one of them is liable to be convicted of the offence of theft as if he alone removed the jewels. Does it mean that if one of them finds a man waking up and hits him so hard that he dies as a result of that injury, every one of his companions is liable for the offence? It would be so if the murder was intended by all of them and it was committed in furtherance of their common intention though the act was done by only one of them. Park J. told the jury in Duffeys and Hunts case, (1830) 1 Lewin 194: (168 E. R. 1009): "If three persons go out to commit a felony, and if one of them, unknown to the other, puts a pistol in his pocket and commits a felony of another kind, such as murder, the two who did not concur in this second felony will not be guilty thereof, notwithstanding "it happened, while they were engaged with him In the feloneous act for which they want out." It is however clear that, if the persons went out to commit theft and it is in evidence that one of them openly carried a loaded gun all of them must be deemed to have intended that murder should be committed in the course of their committing theft. Every one of them is liable for murder if one of them commits murder in furtherance of their common intention of committing murder though they did not by any act of their own commit the murder. This is what is intended by S. 34, as is clear by the wording of that section.

5. Before the section could be applied to a particular case, it must be shown first that a criminal act was done by several persons, secondly that all of them intended that the criminal act should be committed and lastly that the criminal act was done in furtherance of the common intention. As defined by S. 33 : "the wordAct denotes as well, a series of acts as a single act." The wordAct in S. 34 contemplates a series of acts though done by several persons. As observed in Harihar Singh v. Emperor, A. i. R. (13) 1926 Pat. 182 : (26 Cr. L. J. 1498) : "The question whether a particular criminal act may be properly held to have beendone by several persons within the meaning of the section cannot be answered regardless of the facts of the case. In order to convict a person for an offence with the aid of the provisions of S. 34 it is not necessary that that person should actually with his own hand commit the criminal act. If several persons have the common intention of doing a particular criminal act and if in furtherance of that common intention all of them join together and aid or abet each other in the commission of the act, then although one of these persons may not actually with his own hand do the act, but if he helps by his presence or by other acts in the commission of the act, he would be held to have done that act within the meaning of S. 34."

6. The words "in furtherance of the common intention of all" were added to S. 34 by Act xxvii [27] of 1870. All the same even without those words, which expressly lay down when a person is liable for an act not done by him, no doubt was felt that he is liable only when he along with the person who committed the act intended that it should be committed. Deciding the case in 1866 reported in Queen v. Gorachand Gope, 5 W. R. (Cr.) 45 : (Beng. L. R. Sup. vol. 443), Sir Barnes Peacock C. J., with whom Trevor J. and Norman J., concurred held in dealing with this section even before the above words were added to S. 34 that: "When several persons are in company together engaged is one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the other, commits an offence, the others will not be involved in the guilt, unless the act done was in some manner in furtherance of the common intention."

7. It may be added that even in cases where a number of persons who intended to commit an offence joined together in committing that offence and one of them committed also an offence not shown to have been intended by all of them, the other persons cannot be held liable for the offence which was not intended by them to be committed. In Queen-Empress v. Dinabaidya, 19 Mad. 483 : "Where three persons assaulted the deceased and gave a beating in the course of which one of the persons struck the deceased a blow on the head which resulted in death held : That in the absence of proof that the persons had the common intention of inflicting injury likely to cause death, they could nit be convicted of murder." The observation of an American Jurist relied on by Mayne in his commentary on Penal Code referred to by Mahmood J., in Empress v. Dharam Rai, 1887 A. W. N. 236, is as follows : "If the wrong done was a fresh and independent wrong, springing wholly from the mind of the doer, the other is not criminal therein, merely because when it was done he was intending to be a partaker with the doer in a different wrong."

8. It may be added that S. 34 deals with the liability of persons who had a common intention when an illegal act is committed in furtherance of that common intention. Knowledge that an offence is likely to be committed is not what is contemplated in S. 34. While this section deals with the liability of persons when an offence is committed in furtherance of a common intention to commit that act, S. 149 deals with the liability of persons in respect of an offence when they had the knowledge of there being a likelihood of its being committed in prosecution of their common object. That section does not deal with common intention to commit the offence. In effect, the common object with which it deals may be one which is lawful, while the common intention contemplated by S. 34 is with reference to the committing of a criminal act. It may be observed that S. 34 does not deal with the liability of persons for an offence likely to be committed in the course of what was intended by them, but deals with only the liabilities of the persona who intended to commit a criminal act, when that act is committed. It may be further added that even in a case where an offence is committed by one person another person who was with him at the time the offence was committed cannot be punished, though he had a similar intention, that is because, the section deals with the liability of persons for a criminal act done in furtherance of a common intention.

9. This takes us to the third point i. e., what is the significance of the words "In furtherance of the common intention," in S. 34. Before it could be said that an act was done in furtherance of a common intention, it is clear that there must have been a pre-arranged plan or common design to commit the act prior to its commission. It is not sufficient if, at the time, the act is committed persons present think alike and intend that the act should be committed. The point is made clear by the decision reported in Mahbub Shah v. Emperor, A. I. R. (32) 1945 P. C. 118 : (46 Cr. L. J. 689). In that case their Lordships were dealing with a case in which when one Quasim Shah who was struck by Allah Dad cried for help, Walli Shah and Mahbub Shah came in front of Allah Dad and Hamidullah and Wali Shah fired at Allah Dad causing his death while Mahbub Shah fired at Hamidullah causing him some injuries. It was observed as follows: "To invoke the aid of S. 34 successfully it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by Him alone. This being the principle it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. ................................................................................................................................... Their Lordships are prepared to accept that the appellant and Wali Shah had the same intention, viz., the intention to rescue Quasim if need be by using the guns and that, in carrying out this intention, the appellant picked out Hamidullah for dealing with him and Wali Shah, the deceased, but where is the evidence of common intention to commit the criminal act complained against, in furtherance of such intention ? Their Lordships find none. Evidence falls far short of showing that the appellant and Wali Shah ever entered Into a pre-meditated concert to bring about the murder of Allah Dad In carrying out their intention of rescuing Quasim Shah. Care must be taken not to confuse same or similar intention with common intention; the partition which dividestheir bounds is often very thin; nevertheless, the distinction is real and substantial and if overlooked will result in miscarriage of justice. In their Lordships view, the inference of common intention within the meaning of the term in S. 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case. That cannot be said about the inference sought to be deduced from the facts relied on by the High Court in distinguishing the case of the appellant from that of Ghulam Quasim."

10. It may be that, though there may not be a pre-arranged plan to commit a major offence when some men start with a pre-arranged plan to commit a minor offence, the conduct of the men may show that in the course of their committing the minor offence they came to an understanding to commit the major offence and a common intention of committing that offence came to existence. If the major offence was committed in furtherance of their common intention it is clear that each is liable for the offence as if he himself committed it. The decision in In re, Nachimuthu Goundan, A. I. R. (34) 1947 Mad. 259 : (48 Cr. L. J. 123) clearly supports this view.

11. As observed in Mahbub Shah v. Emperor, A. I. R. (32) 1945 P. C. 118: (46 Cr. L. J. 689) : "It is difficult if not impossible to procure direct evidence to prove the Intention of an individual; in most cases it has to be inferred from his act or conductor other relevant circumstances of the case." As could be expected in cases of this kind there-is no direct evidence to show that the accused entered the house with a pre-arranged plan to commit murder or that they came to any such understanding prior to the murder as in the case referred to in In re, Nachimuthu Goundan, A. I. R. (34) 1947 Mad. 259 : (48 Cr. L. J. 123). There is no evidence to show that any of the culprits carried a gun or even a club, before they entered the house. There is nothing in the conduct of the accused or in the other circumstances of the case to show that the accused had the common intention of committing murder. The result is that the conviction of the accused for an offence under S. 302, Penal Code, cannot stand. The appeal is allowed and the conviction and sentence of the accused of an offence under S. 302, Penal Code, are set aside.

12. The accused will be treated as under-trial prisoners and sent to Shimoga to undergo the trial in respect of the other charges in the connected case.

13. We would like to make an observation as regards weighing of evidence in criminal cases in which more than one accused are involved. The Court has to deal with the case of each accused separately and has to ascertain and give a finding as regards the act or acts proved to have been committed by each of the accused. It has to see whether what is proved in respect of each accused amounts to an offence. If one accused is being punished for what it has to state how he becomes responsible for the act of the other. It is the failure to consider the case of each accused separately that has ended in the lower Court convicting the accused in the manner it has done. Appeal allowed. AIR (38) 1951 MYSORE 5 [C. N. 2.] "Venkatasubbasetty v. Rasavanna" MYSORE HIGH COURT Coram : 2 BALAKRISHNAIYA AND MALLAPPA, JJ. ( Division Bench ) Venkatasubbasetty, Defendant - Appellant v. Sahukar M. S. Rasavanna Devaru, Plaintiff - Respondent. Second Appeal No. 384 of 1947-1948, D/- 9 -3 -1950. (A) Mysore Money-Lenders Act (13 of 1939), S.16 - RECOVERY OF DEBT - MONEY LENDERS - APPLICABILITY OF AN ACT - Debt Laws - Applicability - Lay down rule of presumption and is retrospective. The fact that it is clearly stated in s. 14, that it is applicable to loans advanced after the commencement of the Act and the fact that no such restriction is found in S.16 makes it clear that s. 16 is intended to apply not merely to loans advanced subsequent to the enactment of the Act, but also to loans advanced prior to the enactment of that Act. Besides, s. 16 does not affect any substantive law, it affects a mere procedure and it lays down a rule of evidence in raising a presumption. In cases of this kind the law must be considered to be retrospective. (Para 3and4) (B) INTERPRETATION OF STATUTES - Interpretation of statutes - Retrospective operation - Statute not affecting substantive law but laying down rule of evidence must be considered to be retrospective. (Para 4) Judgement Mallappa, J. :- This is an appeal against the judgment in R. a. 62 of 47-48 on the file of the Additional Subordinate Judge, Mysore, dismissing the appeal against the judgment and decree in C. S. 601 of 45-46 on the file of the Munsiff, Nanjangud. The respondent-plaintiff filed a suit for recovery of money due on a hypothecation bond executed in his favour by the defendant appellant on 30th July 1938. One of the pleas raised by the defendant is that the rate of interest is excessive and usurious under the Usurious Loans Act and under the Money-lenders Act. It may be stated here at this stage that the rate of interest fixed in the hypothecation deed is at 12 per cent. the rate of default of regular payment being 15 per cent.

2. Sections 14 to 16, Money-lenders Act are as follows: "14. Notwithstanding anything contained in any law for the time being in force, no Court shall, in any suit brought in respect of loan advanced after the commencement of this Act pass a decree for interest at rates exceeding 9 per centum, per annum, in the case of a secured loan and 12 per centum per annum in the case of an unsecured loan.

15. No money-lender shall recover by suit interest of any kind at a rate exceeding 6 per centum pet annum with yearly rests in respect of any loan made after the commencement of this Act under a contract which provides for the payment of compound interest.

16. Where the interest charged is in excess of the rates prescribed as maximum in Ss. 14 and 15, the Court shall presume for the purpose of S. 3, Usurious Loans Act, 1923, that the interest charged is excessive and that the transaction was substantially unfair."

3. It may be noticed that according to S. 14, Money-Lenders Act, no Court shall in any suit brought in respect of loan advanced after the commencement of the Act, pass a decree for interest at rates exceeding 9 per centum per annum in the case of secured loans, while under S. 16, it has to be presumed for purposes of S. 3, Usurious Loans Act, 1923, that where the interest charged is in excess of the rate prescribed as maximum in Ss. 14 and 15, the Court shall presume that the interest is excessive as the transaction was substantially unfair. It is urged that there is nothing in S. 16 to confine its application to loans advanced after the Act and that this presumption could not be of any help when a suit is brought in respect of any loan after the commencement of the Money-Lenders Act. The rata fixed under S. 14 is 9, per centum in the case of secured loans and the rate fixed in the case of unsecured loans is 12 per centum per annum while there is merely a rebuttable presumption under S. 16 that rates higher than these are usurious. It is clear that the presumption under S. 16 would be of no help to cases to which S. 14, is applicable. The fact that it is clearly stated in S. 14, that it is applicable to loans advanced after the commencement of the Money-lenders Act and the fact that no such restriction is found in S. 16 makes it clear that S. 16 is intended to apply not merely to loans advanced subsequent to the enactment of the Money. lenders Act, but also to loans advanced prior to the enactment of that Act.

4. It will again be observed that S. 16 does not affect any substantive law; it affects a mere procedure and it lays down a rule of evidence in raising a presumption. In cases of this kind the law must be considered to be retrospective. I may here refer to the decision reported in 14 Mys. L. J. 391. It was observed in that case as follows: "The amendment introduced by s. 6 of Regulation XVII [17] of 1928 to s. 79 of the Land Revenue Code does not affect any substantive rights, it affects a matter of procedure and lays down a mere rule of evidence in raising certain presumptions under certain circumstances. It is retrospective to the extent that the Court is bound to give effect to it if by the time it has to consider evidence, the provision has come into force even though when the suit was filed, the amendment had not been made. When a statute or an amending Act enacts substantive law, it cannot have retrospective operation so as to impair existing rights or obligations, unless the intention of the Legislature either in express words or by necessary implication is clearly that it should have retrospective effect. But where it merely alters the forms of procedure or matters of evidence, even if the intention to make it retrospective is not expressly found in the Legislature, it is always retrospective unless there is some good reason why it should not be so."

5. In this case, though the loan was advanced prior to the enactment of the Money-lenders Act, the Court should have presumed under s. 16, Money-lenders Act, that any rate of interest higher than 9 per cent is excessive and that it is usurious and was substantially unfair for purposes of S. 3, Usurious Loans Act, 1923.

6. The lower Courts were wrong in not raising a presumption that any rate higher than nine per cent per annum was excessive and that the transaction was substantially unfair, for the purpose of S. 3, Usurious Loans Act, 1923. It is contended that the patties had no opportunity to adduce such evidence as might be necessary to rebut the presumption. The issue framed is merely "whether the interest is excessive." In the statement the defendant has pleaded that the plaintiff is not entitled to the interest claimed under. Usurious Loans Act and Money-lenders Act. The above issue does not cover the point. The judgment and decree of both the Courts below are set aside and the suit is remanded for fresh disposal according to law, after amending the second Issue by adding to it the words "and whether interest cannot be recovered under the Usurious Loans Act and Money-Lenders Act, at the rate claimed in the plaint." Costs will abide the result. The appellant will get the refund of the court-fee paid on this memo of second appeal.

7. Balakrishnaiya, J:- I agree. Appeal allowed. AIR (38) 1951 MYSORE 6 [C. N. 3.] "In, re Gundappa" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) In, re D. V. Gundappa and others, Petitioners. Civil Revn. Petn. No. 132 of 1949-50, D/- 7 -7 -1950. Trusts Act (2 of 1882), S.34 - TRUST - SALE - Trust not authorising sale of property - Power of Court to authorise sale. The Court has no general power to interfere with or disregard the provisions of a trust; but the Court has, in exercise of its extraordinary jurisdiction, power to go beyond the express provisions of the trust instrument in cases of emergency, cases not foreseen or provided for by the author of the trust, where the circumstances require that something should be done and can authorise the trustees to do an act not authorised by the trust. This jurisdiction is, however, of an extremely delicate character and should be exercised with the greatest caution. Thus, where a deed of trust did not empower the trustees to sell the trust property and the trust being for the benefit of poor students, consent of beneficiaries could not be obtained, the Court, authorised the trustees to sell the property subject to certain conditions when it was found to be in the best interests of the trust to do so. (1901) 2 Ch. d. 534, A. I. R. (6) 1919 Bom. 119 and A. I. R. (11) 1924 Bom. 252. Rel. on. ( Paras 4,5) Anno. Trusts Act, S. 34, N. 3 C. Nagaraja Rao - for Petitioners. Judgement Order. - This revision petition is against the order, dated 19th July 1949, passed by the Additional District Judge, Bangalore, in Mis. case No. 256 of 48-49 refusing to grant sanction for sale of a trust property by the trustees who are the petitioners in the case.

2. The trust was created by Vajapeyam Krishniah on 5th January 1916 for the benefit of education to poor students. One of the properties is a shop in Chickpet, Bangalore. According to the verified statement filed by the trustees the shop is in need of repairs and requires heavy funds for that purpose. It is fetching a small rent of Rs. 45 per month. One Bhimraj Prathapathmal is prepared to buy the property for Rs. 32,000. It is urged that if this amount is deposited with Government the rate of interest that it would fetch is 4 per cent. There is hardly any doubt, that in case the property is sold and the amount deposited as stated above, it is very advantageous to the beneficiaries. This will avoid large amounts being spent in repairing the building and the building failing down in case the repairs are not effected in time. It is no doubt true that as observed by the learned District Judge, there is no provision in the trust deed expressly authorising the trustees to sell the property. But it has, however, to be observed that there is nothing in the trust deed which prohibits them from selling the property. The reference in the sale deed to the condition that the trustees should preserve "Mooldhan" is quite satisfied by the amounts realised by the sale of the shop being deposited in Government Treasury for the purpose of the trust.

3. The point for consideration is whether under the circumstances of the case the Court could give a direction for the sale of the property as applied for by the trustees. According to s. 36, Mysore Trust Act: "In addition to the powers expressly conferred by this Act and by the instrument of trust, and subject to the restrictions, if any, contained in such instrument, and to the provisions of s. 16, a trustee may do all acts which are reasonable and proper for the realization, protection or benefit of the trust property, and for the protection or support of a beneficiary who is not competent to contract." While the trustees have these powers, it is open to them to file an application under s. 34 of the Act for necessary advice or direction in matters respecting the management or administration of the trust property. That section reads as follows: "Any trustee may, without instituting a suit, apply by petition to a principal civil Court of original jurisdiction for its opinion, advice or direction on any present questions respecting the management or administration of the trust property other than questions of detail, difficulty or importance, not proper in the opinion of the Court for summary disposal." It will be noticed that the District Court has ample powers to give direction or advice in matters of this kind.

4. In re New, (1901) 2 Ch. d. 534, it was observed as follows : "Where in the administration or management of a trust estate by the trustees, especially where the estate consists of a business or of shares in a mercantile company, there arises an emergency or a state of circumstances which it may reasonably be supposed was not foreseen or anticipated by the author of the trust and is unprovided for by the trust instrument, and which renders it desirable and perhaps even essential, in the interests of the beneficiaries, that certain acts should be done by the trustees which they themselves have no power to do, and to which the consent of all the beneficiaries cannot be obtained by reason of some not being sui juris or not yet In existence, the Court will exercise its general administrative jurisdiction by sanctioning, on behalf of all parties interested, those acts being done by the trustees." The principle laid down in this decision was followed in In re Shirinbai, 43 Bom. 519 : (A. I. R. (6) 1919 Bom. 119). It was a case in which, as in this case, the trustees applied for permission to sell some immovable properties and it was observed in it : "That the present case, however, was one of emergency not foreseen or anticipated by the author of the trust, and the sale though not provided for by the trust instrument ought, in the interests of all the beneficiaries concerned, to be sanctioned by the Court in the exercise of its extra-ordinary jurisdiction; that the extraordinary jurisdiction of the Court to sanction a sale of immovable property in the absence of a power of sale in that behalf in the trust instrument is of an extremely delicate character and should be exercised with the greatest caution." The observations in In re Shirinbai, 43 Bom. 519 : (a. I. R. (6) 1919 Bom. 119) have been reaffirmed by Mulla J. in P. D. De Souza v. K. R. Daphtary, a. I. R. (11) 1924 Bom. 252 at p. 255 : (87 I.C. 230) and they are as follows : "That the High Court of Bombay has this jurisdiction (to sanction a sale of the trust property by trustees where no power of sale is given by the trust deed) is beyond all doubt. This jurisdiction was recognised in In re Manilal, 25 Bom. 353 : (3 Bom. L. R. 411) where Sir Lawrence Jenkins sanctioned the sale of a minors interest in Hindu joint family property. It was also recognised in In re Shirinbai, 43 Bom. 519:(A.I.R. (6) 1919 Bom. 119), where Marten J. sanctioned a sale by trustees of immovable property vested in them. But this jurisdiction is of an extremely delicate character and has to be exercised with the greatest caution.The principle as observed by Romer l. J. In re New, (1901) 2-Ch. d. 534seems to be this-that the Court may, on an emergency, do something not authorised by the trust. It has no general power to interfere with or disregard the trust; but there are cases where the Court has gone beyond the express provisions of the trust instrument-cases of emergency, cases not foreseen or provided for by the author of the trust, where the circumstances require that something should be done."

5. It is thus clear that Courts have ample powers to give necessary directions in cases of this kind though extreme caution has to be observed in giving directions. "The beneficiaries in this case are not particular individuals whose objection can be ascertained. The trust is for the benefit of poor students. The property is in a dilapidated condition and there is hardly any doubt that the trustees who are respectable gentlemen are praying for the sale of the property in the best interest of the beneficiaries. Under these circumstances, I allow the revision petition and direct that the trustees may sell the property as applied for by them provided that the purchaser deposits the amount of Rs. 32,000 in Government Treasury in the name of the trust for its use the trustees being authorised to draw interest only. Revision allowed. AIR (38) 1951 MYSORE 7 [C. N. 4.] "Gangadhariah v. Thimmamma" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND BALAKRISHNAIYA, J. ( Division Bench ) B. S. Gangadhariah, Petitioner v. Thimmamma and others - Respondents. Civil Revn. No. 235 of 1948-49, D/- 1 -9 -1950. (A) Civil P.C. (5 of 1908), O.9, R.9 and O.47, R.1.DECREE - REVIEW - An application under O. 47, R. 1, is maintainable against an order dismissing an application for restoration of a suit under O. 9, R. 9, for default. (Para 3) Anno. Civil P. C., O. 47 R. 1 N. 24. (B) Civil P.C. (5 of 1908), O.47, R.1 - REVIEW - WORDS AND PHRASES - Sufficient reason - Absence of party as much as of counsel does not come within expressionsufficient reason within O.47, R.1 : 5 Mys. C. C. R. 73 and 30 Mys. C. C. R. 30 held no longer good law in view of F. B. decision in A. I. R. (37) 1950 Mys. 55. (Para 6) Anno. Civil P. C., O. 47 R. 1 N. 16, 16b Pt. 4.

V. Krishnamurthy - for Petitioner. S. Suryanarayana Rao - for Respondent No. 10. Judgement Order. - The petitioner who is the plaintiff before the trial Court filed a suit in O. S. No. 124 of 45-46 against the respondents on the foot of a mortgage deed and the suit was dismissed for default of the plaintiff. He filed then Misc. Application No. 167 of 46-47 under O. 9 R. 9. Civil P. C. to have the ex parte dismissal order set aside. That application too was dismissed once again for default of the plaintiff-petitioner. He thereupon filed an application in Misc. case No. 103 of 47-48 under O. 47, R. 1, Civil P. C. before the trial Court to have the said ex parte order reviewed and the learned Munsiff held that it was not maintainable. This revision petition is filed against the said order.

2. The learned Judge who heard this petition felt that the point involved was fairly important and that there was divergence of opinion even in this Court and therefore referred this petition to a Bench.

3. Only two points arise for consideration in this petition. The first of them is whether an application under O. 47, R. 1, Civil P. C. is maintainable against an order passed on an application filed for restoring the suit on file which had been dismissed for default. The other question is whether the expressionsufficient reason in R. 1 of O. 47, Civil P. C. covers cases of default in appearance. It is not necessary for us to discuss at length the question of maintainability as it has been uniformly held by this Court that an application under O. 47, R. 1, Civil P. C. in the circumstances referred to above is maintainable. Even the decision re. ported in 41 Mys. C. C. R. 391 relied upon by the learned Munsiff does nowhere say that an application is not maintainable. Their Lordships in that decision confined their attention to the interpretation of the expressionsufficient reason in R. 1 of O. 47, Civil P. C. which will be adverted to later.

4. It is, however, necessary to refer to the various decisions of this Court. The earliest decision touching the point is the one reported in 3 Mys. C. C. R. 98 where the order of the trial Court dismissing an application for review on the ground that an application under the then S. 103, Civil P C. should have been filed within the time was confirmed. In the next earliest case i. e. in 5 Mys. C. C. R. 73 which is also a Bench decision, the learned Judges held that the wording of S. 623, Civil P. C. (analogous to O. 47, R. 1, Civil P. C.) was wide enough to cover an application for review of an ex parte order of dismissal. This decision was followed by the later decisions of this Court reported in 7 Mys. c. c. r. 93, 27 Mys. C. C. R. 132, 30 Mys. C. c. r. 30 and 5 Mys. L. J. 265 all of which except the last mentioned one are the decisions of a divisional Bench of this Court. 5 Mys. L. J. 265 is the decision of a single Judge who went the length of holding that the default in appearance of a party fell within the meaning ofsufficient reason in O. 47, r. 1, Civil P. C. The decision in 41 Mys. h. C. r. 391, which is also a Bench decision, on the other hand, took a contrary view and held thatsufficient reason in O. 47, R. 1, Civil P. C. means a reason sufficient on grounds at least analogous to those specified immediately previous to this expression in r. 1 i.e., analogous to mistakes or errors apparent on the face of the record. Prom the trend of reasoning of their Lordships, it follows that absence of a party was not meant by implication to be a ground covered by the expressionsufficient reason in r. 1 of O. 47, Civil P. C.

5. In the most recent decision of this Court which happens to be Full Bench decision Ruknul-Mulk Syed Abdul Wajid v. R. Viswanathan, C. P. No. 61 of 49-50: (a. i. r. (37) 1950 Mys. 55 F. B.), the same interpretation was given by their Lordships to the expressionsufficient reason in r. 1 of O. 47, Civil P. C. following a Privy Council decision reported in Chhaju Ram v. Neki, a. I. r. (9) 1922 P. C. 112 : (3 Lah. 127). They further held that "it is obvious that neither the absence of the counsel nor the refusal to take part in the arguments .... could be brought under the expressionsufficient reason as they cannot be said to be analogous to the grounds immediately preceding."

6. Taking into consideration the reasoning given in 41 Mys. h. C. R. 391 as also the interpretation given to the expressionsufficient reason by their Lordships in the Full Bench case of this Court referred to above, we are of opinion that the earlier decisions referred to above (5 Mys. C. c. R. 73 ... 30 Mys. C. C. r. 30) are now no longer good law. We would not be stretching the Full Bench decision too far if we hold that the absence of the party as much as of the counsel which was the point for consideration in the Full Bench case, does not come within the purview of the expressionsufficient reason in R. 1 of O. 47, Civil P. C. We are supported in our opinion by a decision reported in 52 M. l. J. 123 wherein it is clearly laid down "default of appearance is not asufficient reason contemplated by R. 1 of O. 47, Civil P. C., nor is it analogous to any such reason." This decision is again followed in a later decision 67 M. l. J 601 where again it is held that a review may be granted only upon one of the grounds therein specified and the wordsany other sufficient; reason must be taken to mean a reason sufficient on grounds at least analogous to those specified immediately previously.

7. Before concluding it has to be observed that the learned Munsiff who virtually dismissed the application under revision on merits, has incorrectly concluded that the application is not maintainable. So far as maintainability of the application under R. 1 of O. 47, Civil P. C. is concerned, there appears to be no departure in 41 Mys. h. C. R. 391 from the earlier decisions of this Court. The departure is only in respect of the ground on which the application had to be allowed.

8. In the view we have taken this petition fails and is accordingly dismissed. In the circumstances of the case, there will be no order as to costs. Revision dismissed. AIR (38) 1951 MYSORE 9 [C. N. 5.] "Jayachamarajendra Co.-op. Society v. Madaiah" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Jayachamarajendra Co-operative Society Ltd., Decree-holder, Petitioner v. Madaiah and another, Judgment-debtors, Respondents. Civil Revn. Petn. Nos. 317 and 318 of 1948-49, D/- 22 -8 -1950. Mysore Co-operative Societies Act (52 of 1948), S.53, S.60(2) - CO-OPERATIVE SOCIETIES - EXECUTION - Execution application - Applicability of S.60(2). Section 50 makes a clear difference between disputes or suits and appeals and applications for purpose of limitation. Sub section (2) of S. 60 omits reference to appeals and application and is thus inapplicable to an execution application which is, therefore, governed by S. 60(1), sub-s. (2) of S. 60, cannot, therefore be resorted to, to extend the limitation of an execution application which is clearly barred by limitation under S. 53, of the Act. Beng. L. R. Sup. Vol. 985 (F. B.) and A. i. R. (16) 1929 Mad. 223, Disting. ( Paras 3,4) Y. M. C. Sharma - for Petitioner. E. Kanakasabapathy - for Respondent 2. Judgement Order. - These two revision petitions have been filed against the order of the Additional Subordinate Judge of Mysore in Execution Cases Nos. 840 and 1216 of 1947-48 on his file. Sri Jayachamarajendra Co-operative Society Ltd., Mysore, filed those applications on 10th November 1947 to recover amounts due to it under the decisions passed on 3th December 1935 by the Assistant Registrar of Co-operative Societies in disputes Nos. 1314/34-35 and 754/ 33-34. The two previous execution applications made to the civil Court, obviously on certificates by the Registrar before taking out execution proceedings in the civil Court, were dismissed in the year 1942. The learned Subordinate Judge held that the applications were barred by limitation. Hence these revision petitions.

2. The present execution applications are prima facie barred by limitation. Mr. Y. M. C. Sharma who appears for the decree-holder-Society contends that the applications are within time by virtue of S. 60, Mysore Co-operative Societies Act lii [52] of 1948, as under s. 60, sub-s. (2), in any dispute or suit of the description mentioned in sub-s. (1) of S. 52, i. e. a dispute touching the business of a registered society, the periods of limitation applicable are now double those prescribed in the second column of Sch. 1 annexed to the Mysore Limitation Act, 1911. He argues that a "dispute or suit" includes an execution application and that therefore the period for making an execution application being now 6 years, the present execution applications are within time.

3. There can be no doubt that according to the decision in 17 Mys L. J. 342 the present applications would be barred by limitation as having been brought more than 3 years from the date when the right to apply accrued, i. e, the date of the certificate of the Registrar under S. 43, (c) of Act vii [7] of 1918, the Mysore Co-operative Societies Act, corresponding to S. 53 of the present Act. It is, therefore, necessary to consider whether the present Co-operative Societies Act has made any difference in this matter Section 60, cl. (1) provides that subject to the pro-visions of the next succeeding sub-sections of that section, the provisions of the Mysore Limitation Act of 1911 so far as they relate to suits, appeals and applications shall, so far as may be, apply to disputes, suits, appeals, or applications instituted, preferred or made under that Act. The difference in the wording of S. 60 cl. (1) and cl. (2) is very significant. Appeals and applications are omitted in sub-cl. (2). Execution and other applications would therefore be governed by S. 60, cl.(1) and not cl. (2). Even in S. 60, cl. (5) the saving provision is made applicable only to any dispute or suit for which the period of limitation prescribed by S. 60 has expired prior to the date of the commencement of the Act or expires within six months next after that date; and in the explanation to that section a dispute has been stated to be deemed to be a suit. The difference between disputes and suits and appeals and applications is therefore clearly evident throughout that section.

4. Mr. Sharma contends that a suit has not been defined in the Civil Procedure Code and that it would include all proceedings of a civil nature. For this position he relies upon two decisions. The first of them is a case reported in Hurro Chunder Roy v. Sooradhonee Debia, Beng. L. r. Sup. Vol. 985 : (9 w. r. 402 F. b.). In that case it was held that certain previous proceedings taken in a former suit for the determination of mesne profits were proceedings of a civil nature, the period occupied by which could be deducted in computing the period of limitation applicable to the subsequent suit though the earlier proceedings were taken in a Court which had no jurisdiction. It was, therefore, a case falling under the principle of S. 14, Limitation Act, XIV [14] of 1859 Though there are certain observations in the judgment of Peacock C. J., in that case to the effect that a suit does not necessarily mean an action and that any proceeding in a Court of Justice to enforce a demand is a suit, the real point for decision in that case was whether the steps taken on the execution side in the previous proceedings could be deemed to be proceedings falling within S. 14, Limitation Act to save limitation. It does not decide that a suit means an execution application or vice versa. The second case on which Mr. Sharma relies is Mahalinga Kudumban v. Theetharappa Mudaliar, 1929 M. W. N. 62: (a. I. r. (16) 1929 Mad. 223), in which the above case has been referred to. It was held in that case that an order under the Land Acquisition Act awarding compensation to one of the claimants was a decision against which an appeal lies and this was apart from the question whether the award amounts to a decree in a suit or not. Though the words "suit" and "suitor" may sometimes be applied to any contentious proceeding in a civil Court and to a party who approaches the Court for its determination, I do not think in view of the express provisions of S. 60, Co-operative Societies Act, it can be said that there is no difference for the purpose of applying the Limitation Act between a dispute or a suit on the one side and an appeal or an application which are differently dealt with in different portions of that section as pointed out above.

5. Moreover, the matter is further placed beyond all doubt by the definition ofsuit in S. 2 sub-cl. (10), Mysore Limitation Act, where a suit has been defined asnot including an appeal or an application. The difference between the incidence of the provisions of the limitation act to suits and to applications is made clear also by the separate references made to them in S. 3 of the Act and in other sections for instance like 4 to 7 and 12 where reference is made both to suits and applications and S. 13 under which in computing the period of limitation prescribed for a suit, the time during which the defendant has been absent from Mysore shall be excluded. While considering a similar provision under the Indian Limitation Act, it has been held that the time during which the defendant has been absent from India shall not be excluded in the case of execution proceedings, See Ahsan Khan v. Ganga Ram 3 all. 185 and Badal v. Chhattar Singh, 68 I. C. 205 at p. 207: (a. i. R. (9) 1922 Oudh 131). In sch. 1, referred to in S. 8, Limitation Act separate provision is made for suits, appeals and applications under the 1st, 2nd and 3rd Divisions respectively.

6. The decision of the learned Subordinate. Judge is, therefore, correct. These revision petitions fail and are dismissed with costs. (Advocates fee Rs. 10 in each case). Revisions dismissed. AIR (38) 1951 MYSORE 10 [C. N. 6.] "Bhaskara Rao v. Naranappa" MYSORE HIGH COURT Coram : 2 MALLAPPA AND VASUDEVAMURTHY, JJ. ( Division Bench ) K. V. Bhaskara Rao and another, Appellants v. S. Naranappa, Respondent. Second Appeal No. 540 of 1947-48, D/- 4 -10 -1950. Mysore Debt Conciliation Act (6 of 1937), S.26 - RECOVERY OF DEBT - SALE - EXECUTION - DECREE - Debt laws - Application u/S.4 not mentioning particular decree debt - Sale in execution of that decree in spite of notice of filing of application if nullity. The mere filing of an application under S. 4 does not operate as suspension of any proceeding pending in a civil Court, The wordsshall be suspended in S. 26 can only mean that the civil Court is bound to pass an order suspending the further proceedings and cannot proceed with the execution when the fact of the application having been filed before the Board in respect of the concerned debt is brought to its notice. The jurisdiction of a Court to proceed in respect of a debt is affected only if an application filed under S. 4 is in respect of that debt. (Paras 6 and 11) Consequently, a sale held in execution of a decree in spite of notice of the filing of application under S. 4, by the debtor would not be a nullity if the particular decree-debt has not been included in the debtors application under S. 4 and which application has been subsequently dismissed for default without any notice under S. 10 (1) to the creditors. (Paras 7 and 11) R.V. Srinivasaiya - for Appellants ; M.P. Somasekhara Rao - for Respondent. Judgement Vasudevamurthy, J. :- The appellants were judgment-debtors 12.and 14 in the trial Court. The respondent obtained a decree in O. S. No. 90/41-42 on the file of the Munsiff of Sagar against fifteen persons including the appellants, who were then minors represented by a Court Clerk as their guardian ad litem, for recovery of Rs. 224-2-0 being the kandayam amount paid by the plaintiff towards the defendants family lands. In execution of that decree the respondent brought some immoveable properties of the judgment-debtors to sale and purchased them himself on 2-7-42. The sale was duly confirmed and the respondent obtained possession of the properties through Court. It appears that during the pendency of that execution case, on 2-7-42, judgment-debtors 3 and 11 had filed an application No. 1 of 42-43 before the Debt Conciliation Board, Sagar Taluk, for a settlement of the debts said to be due by their family, and on the same day and before the court sale was held they had tiled in the Munsiffs Court at Sagar an application for stay of sale along with an acknowledgment they had obtained from the office of the Board for receipt of the application. The Court, however, rejected the application and did not stay the sale, which went through and was held and confirmed on 2-7-1945 as stated above The appellants (of whom the 12th had since attained majority) made an application to the Court under Ss. 47 and 151, Civil P. C. saying that the sale was, in the circumstances, held without jurisdiction and also vitiated by irregularities and fraud and was, therefore, invalid, and that it may be cancelled. The learned Munsiff of Sagar dismissed their application and on appeal his order was confirmed by the District Judge of Shimoga. The present second appeal has been filed against his order.

2. It is contended by Mr. R. V. Sreenivasaiya, the learned advocate for the Appellants that under S.26 Mysore Debt Conciliation Act, VI [6] of 1937 when an application had been made to a Board under S. 4 of the Act, the execution proceedings then pending before the Munsiff was bound to have been suspended and not having been done so the subsequent court-sale is void It is admitted by Mr. Sreenivasaiya that the application made to the Board by judgment-debtors 3 and 11 was dismissed for default without notice of it being served on the decree-holder and that this particular decree debt which was under execution was not included in that application. In fact the application for stay of sale (I. A. No. 3) made by judgment-debtors 3 and 11 in the execution case was rejected by the learned Munsiff on the ground that they had not shown that their application was for settlement of the said debt.

3. It appears to be clear from the wording of S. 26 of the Act that it is only any suit or other proceeding then pending in respect of any debt for the settlement of which application has been made to the Board that is liable to be suspended. Mr. Sreenivasaiya, however, has argued rather ingeniously that the decree debt in question became the subject of those proceedings as soon as an application was filed under S. 4 of the Act for conciliation of their debts by judgment-debtors 3 and 11 irrespective of whether the same was expressly included in their application or not, and that the general scheme of the Act is to decide upon and conciliate on all the debts of the debtor He relies in support of his argument on the reasoning involved on a consideration of the three cases which he cites, viz. In re Siddappa Chettiar, air (29) 1942 Mad 738 : (204 i C 409); Madana Palli Laksmikantha Nidhi Ltd. v. Raghunatha Charylu, air (31) 1944 Mad 24: (210 i C 606); Champat v. Ismail Khan, air (31) 1944 Nag. 142 (ilr (1944) Nag 264) and a reference to s. 28, Debt Conciliation Act. He points out that under S. 28 in computing the period of limitation for a suit or other proceedings filed before a civil Court for the recovery of a debt which was the subject of any proceedings under the Act certain deductions obtained are permissible.

4. In In re, Siddappa Chettiar, a. i. r. (29) 1942 Mad. 738 : (204 I. C. 409), it has been held that s. 10 cl. (2), Madras Debt Conciliation Act, (which appears to be quite similar to the Mysore Act) is not limited only to debts which have been shown by the debtor in his application under s. 4 and that the effect of S. 10 (2) is that any debt not included in the creditors statement is for all purposes deemed to have been discharged. In Madanapalli Laksmikantha Nidhi Ltd. v. Raghunatha Charylu, A. I. r. (31) 1944 Mad. 24: (210 I. C. 606) which has referred to with approval the case in In re Siddappa Chettiar, A. I. r. (29) 1942 Mad. 738 : (204 I. C. 409), it has been held that a creditor who had notice of an application by the debtor is bound to disclose in his statement under that section all the debts which he has to recover from the debtor whether the same is disclosed in the debtors petition or not, and if he fails to do so the debts will be deemed to be discharged.

5. In Champat v. Ismail Khan, A. I. r. (31) 1944 Nag. 142 : (i. l. r. (1944) Nag. 264), which was a case under the C. P. Debt Conciliation Act, it has been held that S. 10 gave the Board ample powers not only to enter into the merits regarding admitted debts, but to try and bring debtor and creditor to an agreement even in a case where the debt was denied and that even debts which a creditor moves to have included in the proceedings and which are denied by the debtor are subject of those proceedings to which s. 23 of that act (corresponding to s. 28 of our act) would be applicable.

6. Mr Sreenivasaiya, therefore, contends on the strength of the decision in Ratnasabapathi Iyer v. Subramania Pillai, a. i. r. (33) 1946 Mad. 285 : (I. l. r. (1946) Mad. 828) that when a judgment-debtor files a petition under s. 4, the Court executing the decree has no jurisdiction to proceed with the execution until the petition under S. 4 has been dismissed and that the sale which has taken place is a nullity. In Sitarama Reddy v. B. Somappa, a. i. r. (30) 1943 Mad. 549 : (209 I. C. 395) which is also relied upon by Mr. Sreenivasaiya and referred to in Ratnasabapathi Iyer v. Subramania Pillai, A. I. R. (33) 1946 Mad. 285 I (I. L. R. (1946) Mad. 828), it has been held that even if the executing Court did not know of the existence of such an application a sale held in execution afterwards would be a nullity as the executing Court would ipso facto lose its jurisdiction. With great respect to Horwi 1 J. who has decided that case, I think that it is not supported by the wording of S. 25 (corresponding to S. 26 of our Act), and such a construction of S. 26 is likely to lead to abuse of its provisions by judgment-debtors and great inconvenience and uncertainty regarding court sales. The wordshall be suspended in our Act can only mean that the Civil Court is bound to pass an order suspending the further proceedings and cannot proceed with the execution when the fact of the application having been filed before the Board in respect of the concerned debt is brought to its notice,

7. The cases relied on by Mr. Sreenivasaiya are, however, all cases in which the debt in questioned been included in the application before the Board or which the creditor was bound to include in his statement of debts owed to him and to do which he had been served with notice. A debt which is not included in the debtors application and in respect of which the creditor has not yet been notified and called upon to make a statement by a notice under S. 10 (1) and in fact which was dismissed for default before that stage was reached as in the present case. cannot be the subject of any proceedings under the Act.

8. Mr. Somasekhara Rao, the learned advocate for the respondent, contends on the strength of the two cases in Subasini Debi v Adharchandra, a. i. r. (36) 1949 Cal. 105 and Chandu Kunhan v. Ukkappun, a. I. r. (36) 1949 Mad. 157: (1948-2 M. L. J. 177) that when the Munsiff, before whom an application for stay of proceedings had been made, dismissed it and had directed execution to proceed, the party affected was bound to have that order vacated by appropriate appellate proceedings and as he did not do so he cannot now get the sale cancelled or treated as a nullity on that ground. Those decisions no doubt supported that contention and would bar an application under S. 47 by a judgment-debtor who has made and failed in an application for stay as in the present case. But in the light of the finding that S. 26 has no application at all to this case as the decree debt had neither been included in the debtors application nor was even the subject of any proceedings before the Board, that aspect of the matter need not be considered further.

9. In the result this appeal fails and is dismissed with costs (Advocates fee Rs. 15).

10. Mallappa, J. :- I agree with the decision, but would like to add a few words. Section 26, Mysore Debt Conciliation Act, makes it obligatory on the Courts to suspend proceedings in respect of a debt for the settlement of which an application has been made under S. 4. It does not say that the filing of an application under S. 4 has the effect of suspending proceedings in any Court in respect of that debt. If it said so the filing of the application under S. 4 would make the subsequent proceedings in respect of that debt in any Court void. The section directs that the proceedings shall be suspended on the filing of the application. The Court can suspend the proceedings if the filing of the application is brought to its notice and not otherwise. The failure of the Court to suspend the proceedings on the matter being brought to its notice makes the subsequent proceedings void. Unless the wording of S. 26 is construed as implying that the filing of the application should be brought to its notice, great hardship would be caused. If the wording of the section is construed as if it states that the filing of the application itself operates as suspension of proceedings, all that a judgment-debtor need do to harass a decree-holder or a stranger purchaser in execution of a decree against him is to file an application under S. 4 and keep quiet. Even if the application under S. 4 is without notice to creditor dismissed for default and is not by any means such a report to the Court, brought to the notice of decree-holder purchaser or stranger purchaser the sale becomes void if such a construction is possible. The sale need not be set aside and the purchaser may realise after great delay that the sale conveyed no title to him. If this is the effect of S. 26 it has to be stated that it causes very great hardship not evidently intended and the section needs amendment. The point does not arise for consideration in this case except to point out the hardship that the section is causing to purchasers in execution of decrees and the desirability of construing it strictly.

11. As regards the decisions relied on to show that even debts not mentioned in the application under S. 4 have to be regarded as subject-matter of proceedings under the Act, all that need be said is that the decisions are not applicable to the point under consideration. The point for consideration in this case is not whether the debt not mentioned in the application before a Debt Conciliation Board is the subject of any proceedings under that Act. That is a point for consideration in computing the period of limitation under S. 28 (1) which is as follows: "In calculating the period of limitation for any suit filed in, or proceedings before, a civil Court (or the recovery of a debt which was the subject of any proceedings under this Act, the time during which such proceedings were pending as well as the time taken for the obtaining of certified copies of the order of the board shall be excluded." With this may be compared a. 26, which is as follows: "When an application has been made to a board under s. 4, any suit or other proceedings then pending before a civil Court in respect of any debt for the settlement of which application has been made shall be suspended until the board has dismissed the application." Section 26 as it stands is, already causing considerable hardship and inconvenience to innocent purchasers in sales held in execution of decrees and such a section has to be strictly construed. Construing the section as it ought to be, it is clear that the jurisdiction of a Court to proceed in respect of a debt is affected only if an application filed under S. 4 is in respect of that debt. It is not denied that the application filed did not mention the debt in respect of which proceedings were going on in Court. The Court was not bound to suspend the proceedings under S. 26 in respect of a debt for settlement of which no application had been filed before the Debt Conciliation Board. The Courts were right in dismissing the application to set aside the sale and this appeal is dismissed with costs. Advocates fee Rs. 15. Appeal dismissed. AIR (38) 1951 MYSORE 13 [C. N. 7.] "Ramanna v. H. S. Rangaswamy" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Ramanna, Defendant, Petitioner v. H. S. Rangaswamy, Plaintiff, Respondent. Civil Revn. Petn. No. 421 of 1948-49, D/- 27 -9 -1950. Transfer of Property Act (4 of 1882), S.105, S.107 - LEASE DEED - TENANCY - DOCUMENTS - Rent chit by tenant, if lease deed - Admissibility for want of registration - Suit for rent on basis of rent chit. Registration Act (16 of 1908), S.2(7). A rent chit executed by tenant does not amount to a lease deed and therefore no question of registration arises. The chit would be admissible in proof of admission of lease and a suit for rent by landlord on the basis of the rent chit will be maintainable. (Paras 3 and 4) Anno. T. P. Act, S. 105 N. 9; S. 107 N. 7; Reg. Act, s. 2 N. 3. K.R. Gopivallabha Iyengar - for Petitioner ; S. Rangaraj - for Respondent. Judgement Order. - This is a revision petition against the judgment in s. C. No. 86 of 47-48 on the file of the Munsiff of Hassan, decreeing the plaintiffs suit for rent as prayed for.

2. According to the allegations in the plaint, the plaintiff leased the property to the defendant as stated in what was termed as rent chit. The defendant denied his having executed the rent chit and his being a tenant. He did not claim any title of his own in the property. The lower Court believed that the rent chit was executed by the defendant. The main contention urged in revision against the decision of the lower Court is that the suit based on unregistered document referred to as the rent chit is not maintainable.

3. According to S. 105, T. P. Act, a lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered, periodically or on specified occasions, to the transferor by the transferee, who accepts the transfer on such terms. It will be noticed that the document must purport to transfer a right to enjoy. The transfer can only be made by the landlord. This must be accepted by the tenant. The document referred to as the rent chit purports to be executed by the petitioner, who is the tenant. It cannot, therefore, be a lease deed at all and no question of registration arises. In the decision reported in Mt. Nasiban v. Mahomed Syed, A. I. R. (23) 1936 Nag. 174 : (164 I. C. 557), which refers to a rent note purporting to grant lease of property for 11 months which is not registered, it is observed that such a note does not operate as a lease and is inadmissible in evidence to prove the period for which the lease is granted and the rent due under it. It will be noticed that the case is dealing with a document which according to that decision purports to grant lease of property for 11 months. In this case, the document has not been executed by the landlord and it does not purport to transfer any interest in the property. It may be stated here though that decision was arrived at on the basis that the document purported to be a lease deed, the decision has not been followed in a later decision of the same High Court reported in Tulsiram v. Govinda, 189 I.C. 753 : (A.I.R. (27) 1940 Nag. 143). There has also been an earlier decision of the same Court holding a different view, Vide Birdichand v. Popat Lal, a. I. R. (13) 1926 Nag. 389 : (24 N.L.R. 68). It would be useful to refer to the following observations in Tulsiram v. Govinda, 189 I.C. 753 : (A.I.R. (27) 1940 Nag. 143) : "The defendant while admitting execution of the rent note pleaded that it was bogus, and subsequently took an extra plea that the rent note was inadmissible in evidence for want of registration. The lower Courts relying on Mt. Nasiban v. Mahmed Syed, A.I.R (23) 1936 Nag. 174 : (164 I. C. 557), have upheld this last plea. The rent note is said to require registration under s. 107, T. p. Act and s. 17 (d), Registration Act. This depends on whether it amounts to a lease or not. It is executed by the lessee only, and is an agreement to take the houses on rent, i. e. it is a unilateral document a Kabuliyat. As the lease is for six months it did not require to be made by a registered instrument under S. 107 but could be by oral agreement accompanied by delivery of possession. If the Kabuliyat is to be looked upon as the lease then it of course would have to be registered and would require to be executed by both lessor and lessee. There is no other document executed by the lessor, and I do not see how one should be forced to look upon this Kabuliyat as a lease invalid both for want of registration and for want of signature by both parties. It would be in compliance with the law to regard the lease as made by oral agreement and the acknowledgment of the lease (kabuliyat) to be by this document, which then did not require registration at all. In Birdichand v. Popatlal, A. I. R. (13) 1926 Nag. 389 : (24 N. L. R. 68) such a Kabuliyat or rent note was held not to require registration under s. 107, T. p. Act not being a lease granted by the lessor. This case does not appear to have been brought to the notice of Bose J. in deciding Nasiban v. Muhammad Syed, L. P. A. No. 17 of 1936. In fact it seems to have been assumed in that case without discussion that the rent note did amount to a lease. As the point was not discussed I do not feel pressed by that decision." I may also refer to the decision in Mohanlal v. Ganda Singh, A. I. R. (30) 1943 Lah. 127 : (I. L. R. (1943) Lah. 695 F. B ), which deals with what is referred to as Kabuliyat executed only by the lessee. It was observed in that case : "A rent deed (not compulsorily registrable under the Registration Act) executed by a tenant in favour of a landlord if not registered, can be relied upon to establish the relationship existing between the parties. For, it contains an admission or an acknowledgment by the person attempted to be made liable and should be the very best evidence that one can possibly have as to the oral agreement of a lease and a Court is not prevented from looking into it for this purpose." This is not even a case in which the lessee alone has affiled his signature to the document, as in case of Mohan Lal v. Ganda Singh, A.I.R. (30) 1943 Lah 127 : (I. L. R. (1943) Lah. 695 F. B.). The rent chit in this case is executed by the tenant who at the time of its execution had no right to transfer. The document relied on in the plaint does not amount to a lease deed at all as a lease is a transfer of a right. It cannot, therefore, be said that it is inadmissible for want of registration.

4. According to the allegations in the plaint there was a lease between the plaintiff and the defendant, as stated in the document referred to above. This does not amount to a lease deed though it is referred to by the plaintiff as rent chit. His saying that it is a rent chit does not make it a lease deed. All that could be said is that there was a lease which did not come into existence under any written lease deed, and as such the lower Court was right in decreeing the suit as prayed for relying on the rent chit as an admission of the lease.

5. The revision petition stands, therefore, dismissed with costs. Revision dismissed. AIR (38) 1951 MYSORE 14 [C. N. 8.] "Bangalore D. H. O. Assocn. v. Dist. Magistrate" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) The Bangalore District Hotel Owners Association, Petitioner v. The District Magistrate, Bangalore and another, Respondents. Civil Petn. No. 31 of 1950-51, D/- 20 -11 -1950. Constitution of India, Art.226 - WRITS - Application by an association on behalf of its members. Specific Relief Act (1 of 1877), S.45. Under the Article an application for the issue of a writ must be made by the aggrieved party. Thus, an association, although registered under the Societies Registration Act, has no locus standi to make an application under the Article for the personal and individual grievances of some of its members and not of the association itself. (Paras 5 and 9) Anno. Spe. Rel. Act, S. 45, N. 2. S.K. Venkata Ranga Iyengar - for Petitioner; Advocate-General - for Respondents. Judgement Vasudevamurthy, J. :- This is an application under Art. 226 of the Constitution of India filed by the Bangalore District Hotel Owners Association against the District Magistrate, Bangalore, and the Government of Mysore represented by the Chief Secretary for the issue of "writs of certiorari, prohibition or other appropriate writ or writs" to cancel the order of the District Magistrate, Bangalore District, notified in the Mysore Gazette on 10-11-1949, directing that all hotels, restaurants, milk bars and coffee clubs, etc., in the villages of the Bangalore District except those as are licensed by the Amildar of the Taluk under the Village Panchayat Act should be closed immediately. The Association is said to have been registered under the Mysore Societies Registration Act III [3] of 1904 on 14-3-1950.

2. In support of the application an affidavit has been filed by the Hon. Secretary of the Association. In that affidavit it is stated that the objects of the Association are inter alia to promote the welfare of the hotel owners who are members of the Association and to represent hade difficulties of those members to the concerned official bodies. It is said that the notification was enforced in Bangalore Taluks North and South, by the police and food officials raiding the hotels and some of the hotel owners were prosecuted for the alleged infringement of the notification, that the notification has not been withdrawn in spite of the representations made to Government and to the District Magistrate and that the notification is being used by the officials to stop the business of some of the hotels, the proprietors of which the officials do not want to oblige. It is further said that the District Magistrate or the Government has no power to issue such a notification under R. 81, Defence of India Rules, and to order closure of hotels as this would involve the complete stoppage of a trade on which the members of the Association are solely depending for their livelihood. It is also complained that the provisions of the Mysore Village Panchayat Act regarding the issue of notices, etc., are not being observed and that the notification itself contravenes the fundamental rights guaranteed under the Constitution for every citizen to pursue any occupation, trade or business, by totally prohibiting the carrying on of the trade or business of the hotel owners.

3. The notification in question purports to be issued in exercise of sub-r. (2) of R. 81, Defence of India Rules, as applied to Mysore and continued by the Supplies, Services and Miscellaneous Provisions (Temporary Powers) Act XX [20] of 1947, and all other powers in this behalf, with a view to conserve the use of the essential food, grains and other essential articles required for the life of the community in villages. It directs that only such hotels, milk bars, restaurants and coffee clubs, etc., as are licensed by the Amildar of the Taluk under the Village Panchayat Act should be allowed to run and others which have not been so licensed under that Act should be closed immediately. The District Magistrate, Bangalore District, has filed by way of objections a detailed affidavit setting out the circumstances under which the notification came to be issued. He has in particular referred to the necessity for issuing such a notification as having been created by the scarcity of essential food-grains and articles caused by the abnormal increase all over the State of hotels which were absolutely unnecessary for the use of the village community and which used up such articles. He has also raised a preliminary objection by way of a bar to the hearing of this application. The objection is that the petitioner has no locus standi or right to apply for such writ or other reliefs, as claimed in the petition. We have heard arguments on this objection regarding the bar to the application and as we are inclined to agree with the respondents in this matter, it is unnecessary for us to consider the other objections raised on their behalf.

4. Under Art. 19 (g) which finds a place in Part in of the Constitution of India, all citizens shall have the right to practise any profession, or to carry on any occupation, trade or business. Under sub-cl (6) of that Article it is provided that nothing in sub-cl. (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing in the interests of, the general public reasonable restrictions on the exercise of the right conferred by the said sub-clause. The latter portion of that sub-clause is not relevant for purposes of this case. Article 226 of the Constitution of India declares that every High Court has powers throughout its territorial jurisdiction to issue, to any person or authority, including in proper cases any Government within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. Part III relates to fundamental rights and there is, therefore, no doubt that in appropriate cases, the High Court can issue writs as contemplated by Art. 226 to safeguard, protect and enforce the fundamental rights granted under part III of the Constitution.

5. Mr. S. K. Venkata Ranga Iyengar, learned advocate for the petitioner, contends that the notification in question amounts to a prohibition of persons from carrying on the trade, occupation or business of keeping hotels etc., and that his client is entitled to a writ of mandamus directing the District Magistrate and the Government not to enforce the notification. Section 45, Specific Relief Act, states: "The High Court of Mysore may make an order requiring any specific act to be done or forborne, within the limits of its appellate jurisdiction, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or inferior Court of judicature; provided: that an application for such order be made by some person whose property, franchise, or personal right, would be injured by the forbearing or doing (as the case may be) of the said specific act." In this case the application is made on behalf of an Association and Mr. Venkataranga Iyengar has not been able to cite any authority where in a case like the one before us an Association could apply for a mandamus or such other remedy to vindicate the personal rights or rights of property or franchise of its individual members. It is seen from the application and affidavit that no specific instance or case has been given of any person against whom action has been taken and whose hotel has either been raided or stopped under the notification. Mr. Venkataranga Iyengar contends that the Association is a corporate body and that it can therefore make such application to the Court in its own name. Under S. 7, Societies Registration Act, it is provided that a society which is registered under that Act may sue or be sued in its own name and for that purpose it may have a corporate existence of its own. And if there was any action or order by which the fundamental rights of the Association as such, say for example, under Art 19 (b) or (c) or its rights of property or franchise were affected or jeopardised, it may be that such an application may be maintainable. But that is quite a different thing from saying that for some personal and individual grievance of some of its members the Association can agitate and apply for such extraordinary and discretionary writs which are clearly meant to prevent the taking away or abridging the fundamental rights conferred on individual citizens by Part III of the Constitution. Although ho specific cases appear to have arisen on this aspect of the matter after the Constitution of India came into force we have some earlier rulings which are useful in deciding the matter.

6. In Bank of Bombay v. Sulaiman Somji, 32 Bom. 466: (35 I. A. 130 P.C.) a shareholder of a back applied to the Bank to be permitted to inspect, copy and make extracts from the register of shareholders. The Bank refused to allow inspection but offered to furnish him with a list if he could satisfy them that he required it for use in his own interests as a share-holder. Without accepting the offer, the respondent brought a suit against the Bank in which he alleged various irregularities in the management of the Bank and in the election of its Directors and other matters and claimed inspection of the register to enable him to communicate to the other share-holders and obtain their assent to resolutions for improvement in the Banks management to be proposed at a future meeting. His suit was dismissed in the trial Court and allowed by the High Court. The Bank appealed to the Privy Council and their Lordships of the Privy Council held that the suit should be treated according to the principles regulating the application for writ of mandamus and in that view the respondent was not entitled to succeed unless he showed clearly that he had a specific right, to enforce which he had asked for the interference of the Court, that he had claimed the exercise of that right and none other and that his claim had been refused.

7. In A. Rasul In the matter of, 41 Cal. 518 : (a. I. R. (2) 1915 Cal. 91) which was a case of an application for the issue of a writ of mandamus, the applicant claimed that in consequence of his appointment for two years as a lecturer in the Calcutta University he was entitled to receive certain remuneration, but that after the first year the Governor-General in Council had refused to sanction his appointment and the Senate had declined to continue him in the same. When it was pointed out that it had not been made out by him that ha was properly appointed for two years, he sought to contend that his application may be treated as one by a person interested to enforce a statutory duty imposed upon the University to make provision for the instruction of students under S. 3,Universities Act, VIII [8] of 1904. Dealing with this contention Chowdhary J. observed : "Before dealing with the question of statutory duty, if any, involved in this case I have to see what the personal right is. Section 45 requires some right in the person applying, it must be some interest in him other than such as may belong to the community at large."

8. In Shankar Lal v. Municipal Commissioner, Bombay, a.i.R. (26) 1939 Bom. 431: (186 i. C. 203), an application was made under S. 45, Specific Relief Act, for an order requiring the Municipal Commissioner of Bombay to forbear from doing certain acts, viz. to declare the result of a general election of Councilors which had been held and other connected acts. He complained that the ward lists had not been prepared according to sub-ss. (3) and (4) of the Act*and that his name was placed among a community and not placed strictly according to alphabetical order among the voters as prescribed by the rules though he was enrolled as a voter in his own ward. It was contended for him that every voter had a right to vote and to Bee that others vote according to a properly prepared electoral roll and such a roll not being; there the applicants right was injured. That contention was negatived and as one of the grounds for refusing to issue the writ Wadia J. said that: * The reference seems to be to sub-ss. (3) and (4) of S. 19, Bombay (City) Municipal Act (III [3] of 1888) - Ed. "Even assuming that the ward lists have not been prepared strictly according to those sub sections the applicant must still satisfy the Court before invoking its extraordinary jurisdiction (under S. 45, Specific Relief Act) that the ward lists and the electoral rolls based upon them would have injured his franchise or personal right." Thus only a person whose property, franchise or personal right would be injured by the forbearing or doing of the specific act can make, an application under S. 45, Specific Relief Act. The applicant must show that he had a real and special interest in the subject-matter and special legal right to enforce. See R. v. Lewisham Union, (1897) 1 Q. B. 498, Elwood v. Belfast Corporation, (1923) 57 l. t. 138 and In re Jatindra Mohan Sen. 51 Cal 874 : (a. i. R. (12) 1925 Cal. 48), and also Halsburys Laws of England, Vol. 9, Para. 1481 where it has been pointed on that an application for a writ must be made by an aggrieved party and not merely by one of the public.

9. For the above reasons we are of the opinion that the present application is not maintainable and must be dismissed, and we order accordingly. The petitioner will pay the costs of the respondents (Advocates fee Rs. 50). Application dismissed. AIR (38) 1951 MYSORE 17 [C. N. 9.] "Siddegowda v. Kullegowda" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Siddegowda and another, Petitioners v. Kullegowda, Respondent. Criminal Revn. Petn. No. 161 of 1950-51, D/- 8 -11 -1950. (A) Criminal P.C. (5 of 1898), S.144(2) - NUISANCE - Order under - When should be passed. The proper use to be made of s. 144 is to meet a temporary urgency or keep things in status quo and not to pass an order which has practically the effect of a mandatory injunction in favour of one of two opposing parties whereby he is able to deprive the other completely of his ordinary legal rights and remedies and that too finally for all practical purposes. Before proceeding under s. 144 (2) the Magistrate must be satisfied that there are causes like danger to human life, or a disturbance of public tranquillity or a riot or an affray and which call for immediate prevention or speedy remedy. (Para 7) Anno. Criminal P. C., S. 149 N. 9. (B) Criminal P.C. (5 of 1898), S.144 - NUISANCE - Order under - Order spending itself - Order, if can be set aside. Even though the period of 60 days during which an order under s. 144 remains in force has expired and the order has spent itself out the High Court can set aside the order. (Para 10) Anno. Criminal P. C., S. 144 N. 15 Pt. 16. U. Subramanyam - for Petitioners; V, Krishnamurthy - for Respondent. Judgement Order. - The respondent Kullegowda filed an application under S. 144, Criminal P. C., in the Court of the Special First Class Magistrate, Nanjangud, alleging that he had leased some lands of his in Hunasanalu village to petitioner 2, that he wanted to sell away his lands and house in that village and go away to another village, that petitioner 2 and his eldest brother, petitioner 1, were pressing him not to sell them but to allow them to continue as lessees, that he had refused, that he had removed his own family members to the neighbouring village and came back on 7-5-50 to take away his 4 carts and other movables from his house and that the petitioners obstructed him and threatened him with sickles and other weapons and did not allow him to enter his house, that he approached the police of Nanjangud and they asked him to get an order of the Court before they could help and that accordingly the Court should grant an ex parte order in his favour directing the petitioners not to interfere with his opening the lock of the house and removing the movables contained in it. To the application a schedule of the house and a long parti of as many as 33 items of movables including buffaloes, cows and calves, vessels, boxes etc, was annexed. This application was presented on 8-5-1950.

2. The learned Magistrate formally examined the respondent on oath and immediately ordered on the margin of the application itself that the petitioners "do refrain from interfering with P. W. 1 and causing any obstruction whatsoever to the respondent (the petitioner before him), from entering the schedule house or removing the articles therein." He also directed the order to be sent to the police. In his order he said be was satisfied upon reading the petition and hearing the respondent and examining him on oath that the petitioners without any justification whatsoever were obstructing the respondent from removing his articles - he first wrotethe and then changed it tohis and as he found it expedient to make an order ex parte he ordered that, "the respondents (petitioners in this Court) do refrain from interfering with P. W. 1 and causing any obstruction whatsoever to the petitioner (respondent here) from entering the schedule house or removing the articles therein." He then added: "and direct the respondents to appear in person and show cause why this order should not be made absolute" and struck off this last direction and added a postscript to his order: "Send the order to the police for service and enforcing it." The learned Magistrate left the station on transfer and on 12-5-1950 the petitioners fired an objection application I. A. No. I through counsel before his successor in office. In that application they alleged that the respondent had never lived in Hunasalu village but was merely keeping some woman there, that he had filed a false application before the police and had not proceeded with it but had filed a different kind of application in the Magistrates Court, managed to obtain an ex parte order and on its strength had removed wrongfully a pair of oxen, a pair of buffaloes, two buffalo calves, a cow and two calves belonging to themselves. They therefore prayed that the ex parte order may be withdrawn, an enquiry held and their articles returned to them. That the respondent removed them appears to be evidenced by a mahazar dated 9-5-1950. That learned Magistrate proceeded to dispose of this objection application in a very leisurely way. He ordered notice of this application and on 24-5-1950 the respondents counsel who had managed to secure the earlier ex parte order on behalf of his client refused to appear for his client saying that his engagement had ceased and notice was ordered to the respondent by 1-6-1950. The respondent took time to engage another counsel and to file objections to I. A. I, and after he filed the objections the learned Magistrate adjourned the case four times to hear arguments on I. a. I and ultimately on 3-7-1950 threw out that application on the ground that the matter was one to be properly decided by a civil Court after taking evidence and that as the order itself would expire by 8-7-1950 i. e. about 6 days later, be did not feel any necessity to interfere with the original order or to set it aside. Against that order this revision petition has been filed.

3. I think that the learned Magistrate who originally passed the order was entirely in error in doing so. He does not appear to have even read S. 144 carefully before so doing. He assumed that the respondent was the owner of the moveable and immovable properties as alleged by him, that he was fully at liberty to remove them and by an ex parte order placed it beyond the powers of the petitioners to exercise or defend their own legal rights if any to their own properties and gave permission in the nature of carte blanche to the respondent to remove the articles whether they were his own or of others. He failed to see that an order under S. 144 was of an extraordinary character and could only be passed in serious and urgent cases where the Magistrate was satisfied that there were sufficient grounds to proceed under that section and immediate prevention or speedy remedy was desirable. He failed also to see that in his order he had to state the material facts of the case and that be could direct the opposite party to abstain froma certain act only if he considered that such direction was likely to prevent obstruction or annoyance to any person lawfully employed or danger to human life, or safety or a disturbance of public tranquillity or a riot or an affray. Without even calling for a police report and in the absence of even an allegation in the petition, much less prima facie evidence, either as regards the urgency of the matter or its necessity to avoid a breach of the peace or the title and rights of the respondent, he chose to issue a drastic order which was calculated to lend the entire weight of the authority of the Court and the might of the police to the respondent to do what he liked without any interference whatsoever.

4. In Vaithilinga Mudaliar v. Ramanuja Mudaliar, a.i.R. (16) 1929 Mad. 845 : (30 cr. l. j. 1010) it has been held that where a person simply wants to enforce his right to possession of property the criminal Courts ought not to lend him their aid under S. 144, Criminal P. C. In Kishori Jha v. Anand Kishore Jha, a.i.R. (17) 1930 Pat. 162 : (31 Cr. l. j. 1005) it has been pointed out that ordinarily unless the facts are on the face of them quite clear, a proceeding should be drawn up under S. 145 for the purpose of investigating the question of actual possession of the property.

5. In Piamullah v. Emperor, 38 Cal. 876 : (13 Cr. l. j. 126), the petitioner excavated a tank on his own land adjoining the house of the opposite party. The latter objected to the excavation as being likely to endanger his house. No likelihood of a breach of the peace appeared from the police report or the written statements of the parties. Nevertheless the Magistrate made an order under S. 144, Criminal P. C., without enquiry or recording any urgency. The Calcutta High Court held that the order was illegal and that S. 144 was not applicable without enquiry or recording any urgency. Their Lordships point out at p. 879 that the order was entirely misconceived, and that S. 144 is ordinarily to be used only in cases of urgency and not allowed to take the place of more appropriate remedies like an injunction in a civil suit which the opposite party could have obtained to prevent the defendant from continuing the excavation of the tank.

6. In Puransingh v. Mt. Ramjharikoer, a. i. R. (22) 1935 Pat. 224 : (36 Cr. L. J. 655) it has been pointed out that where there is a dispute regarding possession of immovable property "a proceeding under S. 144, Criminal P. C., is a poor substitute for a proceeding under S. 145 which settles once for all, so far as Criminal Courts are concerned, the question of possession with regard to a particular piece of immovable property."

7. In my opinion the proper use to be made of S. 144 is to meet a temporary urgency or keep things in status quo and not to pass an order which has practically the effect of a mandatory injunction in favour of one of two opposing parties whereby he is able to deprive the other completely of his ordinary legal rights and remedies and that too finally for all practical purposes as in this case. Before proceeding under S. 144 (2) the Magistrate must be satisfied that there are causes like danger to human life, or a disturbance of public tranquillity or a riot or an affray and which call for immediate prevention or speedy remedy: Vide Surendra Nath v. Gostha Behari, A. I. R. (21) 1934 Cal 139 : (35 Cr. L. J. 541).

8. Mr. V. Krishnamurthy, the learned counsel for respondent, has referred to Ramanuja Jeeyarswami v. Ramanuja Jeeyar. 3 Mad. 354, and argued that an order of the kind passed in this case restraining a person from interfering with anothers exercise of right to possession of lands and buildings is permissible. In that case the Magistrate as well as the High Court were satisfied that there was danger of a serious riot or breach of the peace. The apprehension was based on police reports and all that the order required was that the petitioner should not interfere with a temple and its property, the management of which was admittedly not in his hands but with the opposite party from a long time. That case is, therefore, no guide for taking action under S. 144 on a self-serving one sided version of a petition whose right to possession was yet to be established and there was not even an allegation of urgency or danger to public peace calling for immediate action.

9. What happened subsequently in the case is also surprising. The petitioners applied on 12-5-1950, i. e., within 4 days of the original ex parte order for its being withdrawn and their objections considered. That application was allowed to drift leisurely and ultimately the petitioners were denied relief on the ground that the period of the order was about to expire. This order too was also not proper or conducive to doing justice or in accordance with law, and particularly so as the period had not yet run out Under S. 144 (5) and the Magistrate could have rescinded or altered any order made earlier under that section by himself or by his predecessor-in-office.

10. In this revision petition it is contended for the respondent that the period of 60 days during which such an order under S. 144 will be in force has expired, that the order has spent itself out and that the High Court cannot now interfere with that order. This cannot be accepted. In In re Ardeshir Phiroz Shaid, A. I. R. (27) 1940 Bom. 42 : (41 Cr. L. J. 319) the Chief Presidency Magistrate made an order under S. 144, Criminal P. C., directed against the petitioner who was editor of a newspaper to the effect that he should not publish any news or comments on a riot which had taken place in Bombay some time earlier. The Magistrate himself cancelled the order later on. In a revision petition filed against the earlier order, it was contended that the High Court could not pass any order as the original order had ceased to be in force. Beaumont C. J., and Sen J., held that the High Court had power to set aside an order which ought never to have been made, although before that action can be taken the order may have ceased to be in operation.

11. Mr. V. Krishnamurthy relies on a decision in Abdul Samad v. Emperor, A. I. R. (21) 1934 Oudh 87 : (35 Cr. L. J. 472) where it has been held that when an order under S. 144, Criminal P. C., had ceased to be in force by efflux of time, the High Court should not interfere with it in revision and that if the applicants felt aggrieved against that order they had their remedy in the civil Court by the filing of a declaratory suit. In that case it will be noticed that the order itself was found to be a proper one passed in an emergency, on a police report and therefore not liable to be set aside by the High Court at all. The opinion of the Court that the High Court should not interfere in revision after the period of 60 days had expired did not really arise or was necessary to be considered in that case and as merely an obiter.

12. In Mysore also it has been held in 31 Mys. C. C. R. 212: (4 Mys. L. J. 125) that though S. 144 is of a general application and contains nothing which ousts the Magistrates jurisdiction in case of bona fide disputes as to possession, yet that section is not to be applied and is not a proper remedy where S. 145 would meet the requirements of the case and that an order passed under S. 144 in the absence of any immediate danger to be averted would be without jurisdiction and could be set aside even though more than two months have elapsed and the order has ceased to be in force by lapse of time so that the rights of the parties may not be affected by such an improper order. This would be particularly so in a case where even before the expiry of the period the order has been questioned and had come up for adjudication as in the present case. It has been pointed out in 7 Mys. L. J. 398 that even a mere reference by a Magistrate to a police report is not enough to satisfy the requirements of S. 144 but that the Magistrate is bound to set out the material facts of the case in his written order under that section.

13. I am, therefore, of the view that the learned Magistrate who passed the ex parte order did so too lightly and his order was improperly made without sufficient reason and must be set aside. The learned Magistrate before whom I. A. J. was filed also failed to exercise the jurisdiction vested in him by law by virtue of S. 144 (4), Criminal P. C., in not considering that application on its merits but throwing it out summarily.

14. The question now remains as to the relief which can now be given to the petitioners. Mr. U. Subramanyam, the learned counsel for petitioner, has not been able to point out any precedents where in such case the matter was remanded for further enquiry and to effect restitution necessitated by the setting aside of the wrong order under S. 144 as prayed for by the petitioners in i. a. I and that too when the period of the order has expired long ago. I think the Criminal Court is not the proper forum where the complicated questions as to ownership and value of the cattle alleged to have been removed should now be gone into. Section 144 does not contain any provision for so doing. An adjudication by a civil Court would be the more proper remedy. Mr. U. Subramanyam complains that his clients should not be driven to a civil Court when their grievance and prayer has not been heard or adjudicated upon. But this cannot be helped and the party aggrieved against the wrong order has a fully effective and satisfactory remedy in the civil Court.

15. This petition is therefore dismissed. Petition dismissed. AIR (38) 1951 MYSORE 20 [C. N. 10.] "Rama Rao v. Venkataramanachar" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) A. Rama Rao, Plaintiff, Petitioner v. Venkataramanachar and others, Defendants, Respondents. Civil Revn. Petn. No. 454 of 1948-49, D/- 10 -10 -1950. Civil P.C. (5 of 1908), O.21, R.18 and R.19 - EXECUTION - DECREE - MORTGAGE - Applicability - Principle of Rules, it can be applied to suit for redemption of mortgage. It is equitable to extend the principle on which Rr. 18 and 19 of O. 21 are based though the Rules themselves cannot, strictly speaking, be applied to cases in which money has to be deposited for payment to a mortgagee in suit for redemption when he is liable under the decree for costs and mesne profits. (Para 9) Anno C. P. C., O. 21 R 18, N. 2, R. 19, n. 1. M.A. Gopalaswamy Iyengar - for Petitioner; K.R. Gopivallabha Iyengar - for Respondents. Judgement Order. - This is a revision petition against the order passed by the Subordinate Judge, Mysore, on I. a. No. VI in O. S. No. 70 of 1944-45. The petitioner filed the suit for redemption against respondents 1 to 3. He deposited Rs. 2700 being the amount due on the suit mortgages. A decree was passed directing redemption and allowing costs and mesne profits. It was ordered that the mesne profits should be ascertained on an application filed for the purpose. Such an application has been filed. Meanwhile, respondent 4 obtained a decree in O. S. No. 85 of 1946-47 against respondents 2 and 3 and attached two thirds of the mortgage amount due to them under the decree. The petitioner filed the application, I. a. No. VI, referred to above, contending that the amount due to his judgment-debtors is what remains after deducting costs and mesne profits due to him out of the amount deposited by him for redemption. The learned Subordinate Judge dismissed the application stating that since the mesne profits have not yet been ascertained, the same cannot be deducted out of the amount due to the judgment-debtors.

2. The point that will have to be noticed in a case of this kind is that in the course of the same suit not only has the amount due to the mortgagee by the mortgagor to be deter, mined under O. 34, R. 7, Civil P. C., but also the amount of costs as well as the mesne profits due to the mortgagor on account of the failure of the mortgagee to allow the redemption when the mortgagor offered to redeem the property. The question that arises for consideration is whether the mortgagee is entitled to recover the entire amount determined to be due to him under O. 34, R. 7, Civil P. C.,, without his giving deduction to what is due by him towards costs and mesne profits. In this connection, the provisions of O. 21, R. 19. Civil P. C., deserve some consideration. According to this rule, where application is made to a Court for the execution of a decree under which two parties are entitled to recover sums of money from each other, then if the two sums are equal, satisfaction for both shall be entered upon the decree, and if the two sums are unequal, execution may be taken out only by the party entitled to the larger sum and for so much only as remains after deducting the smaller sum and satisfaction for the smaller sum shall be entered upon the decree. It is however rightly contended that in a case of this kind, it cannot be said that there is a decree for recovery of money in favour of the mortgagee as he cannot recover the mortgage amount by executing the decree. If the mortgage amount is not deposited within the time fixed, the mortgagor will not be entitled to redemption. The only point for consideration, therefore, is whether the principle laid down in O. 21, r. 19, Civil P. C., can be extended by analogy to suits for redemption in which the mortgagee becomes entitled to a certain sum of money and is at the same time under that decree liable to pay costs and mesne profits.

3. In the decision reported in Sidu v. Bali, 17 Bom. 32, it will be noticed that the costs due to the mortgagor were allowed to be adjusted out of the mortgage amount deposited in the suit filed for redemption. Following the decision in Brijnath Dass v. Jugger Nath, 4 Cal. 742 : (4 C. L. R. 122), it was observed in the aforesaid case that S. 221, Civil P. C., 1882, is applicable to a case of this description and that "the mortgagor is entitled to set off or deduct the amount of the costs payable to him under the decree against or deduct from the mortgage debt payable by him." It will be noticed that so far as costs are concerned, O. 20, R. 6, Cl. (3), Civil P. C., which corresponds to the old S. 221, enables the adjustment of the same against the amount found due to the person who has to pay costs. I may next refer to a Madras decision in Sankara Menon v. Gopala Pattar, 23 Mad. 121. It was decided in that case as follows: "The defendants were entitled under S. 247, Civil P. C., to set off the amount payable by them to plaintiff by way of costs against the mortgage amount and value of improvements payable by plaintiff to them." I may here state that the old S. 247, Civil P. C. corresponds to O. 21, R. 19 of the present Code and the principle laid down in that rule has been extended to the adjustment of costs against mortgage amount and money due in respect of repairs. It is further observed in this decision that the principle laid down in the rule has been extended as being in "accord with equity and commonsense."

4. The extension of the same principle for adjustment of mesne profits, even in cases of pre-emption, is supported by the decision in Nakched Chowdhary v. Sukhdeo, a. I. R. (17) 1930 all. 430 ; (124 I. C. 714) in which it has been laid down as follows : "If in a suit for possession the Court passes a decree for possession conditional on plaintiff depositing a particular sum and grants costs and mesne profits till the date of delivery of possession, the amount of costs and mesne profits can be set off against amount of deposit under the decree. It will be noticed that in Kalka Prasad v. Ram Din, 5 all. 272 it was observed by Straight J. with whom Brodhurst J. agreed as follows: "To make S. 247 of the Code applicable we think that the parties entitled under one decree to recover from each other must hold the same character and possess identical rights of enforcing execution." The objection raised in this case is similar. The point however arose for consideration again in Ishri v. Gopal Saran, 6 ALL. 351 : (1884 a. W. N. 25) and Straight J. who was then Officiating Chief Justice was a party to it. Mahmood J., delivered the judgment of the Court. It was held : "Applying, by analogy of Ss. 221 and 247, Civil P. C. the equitable doctrine of set off, that the plaintiff was entitled, when depositing the purchase-money under the decree, to deduct therefrom the sum the decree awarded to him as costs, and that therefore the decree did not became null and void by reason that he had not deposited the full amount of the purchase-money within time."

5. As the reasoning is applicable to cases in which it is claimed that costs and mesne profits which the mortgagor is entitled to under a decree in a suit for redemption, should be set off against the mortgage amount, it is desirable to give the following extract of the judgment in the above case: "We have to determine whether the question before us falls under the purview of S. 221 or S. 247; and if the case does not fall under either of these sections, what rule should govern our decision in this case. We are of opinion that the case before us falls under neither of these clauses of the Code. The decree in the present case did not direct that the costs payable to the pre-emptor-decree-holder were to be set off against the purchase-money to be deposited by him, nor could the purchase money be regarded asa sum which is admitted or is found in the suit to be due from the plaintiff-pre-emptor to the defendant-vendor or defendant-vendee. The appellant before us cannot therefore claim the benefit of the former section. Nor does his case fall under S. 247, because that section clearly refers to counter-claims in suits for recovery of money, and it would be stretching the language of that section to an unjustifiable extent to hold that the purchase-money which a pre-emptor-decree-holder has to deposit, as a condition precedent to obtaining possession under his decree, is a sum which the (vendor or vendee) judgment-debtorsare entitled under the same decree to recover.... The question then arises, whether there is any other provision in the Code to meet exactly the exigencies of the present case. * * * Is there, then, anything in the Code, or any equitable consideration .which would prohibit a pre-emptor decree-holder from availing himself of the doctrine of set-off by deducting the costs allowed to him from the purchase-money which he has to deposit under the very decree which awards him costs? The Civil Procedure Code, as we have painted out, falls short of providing any specific rule to meet exactly the case before us. The doctrine of set-off, which owes its origin to Roman jurisprudence, was well known to the civil law under the more comprehensive title of compensation, which, In the words of Story J., may be defined to be the reciprocal acquittal of debts between two persons who are indebted, the one to the other; or, as it is perhaps better stated by Pothier, compensation is the extinction of debts, of which two persona are reciprocally creditors to one another. The civil law itself expressed it in a still more concise form compensatioest debitiet crediti inter se contribution. The civil law treated compensation as founded upon a natural equity, and upon the mutual interest of each party to have the benefit of the set off, rather than to pay what he owed, and then to have an action for what was due to himself - (Storys Eq. Juris, Ss. 1438-39). The doctrine of compensation in the civil law, of course, has never been fully adopted, either in England or in this country, probably for reasons based upon the inconvenience and delay which would arise in the trial of suits. But in the case before us, there can be no such inconvenience or delay the decree which declares the plaintiff-pre-emptor entitled to obtain possession: of the property in suit on payment of the purchase-money declares him, in the same breath, entitled to recover costs from those against whom the decree has to be enforced."

6. It remains to add that I agree with respect with these observations which apply equally to decrees in redemption suits in which the mortgagor is entitled to costs and mesne profits.

7. The next point for consideration is whether the transfer or attachment of judgment-debtors interest comes in the way of the application of this principle. Section 49, Civil P. C., is as follows: "Every transferee of a decree shall hold the same subject to the equities (if any) which the judgment-debtor might have enforced against the original decree-holder." As observed in Monmohan v. Dwarka Nath, 12 C. L. J. 312 : (7 I. C. 55) by Mookerjee J. : "In substance, the assignee stands in no better position than the assignor, as regards equities existing between the original parties to the judgment, and takes it subject to all the equities and defences, subsisting at the time of the assignment, which the judgment-debtor could have asserted against it in the hands of the judgment-creditor, notwithstanding the assignee may have had no notice thereof." This passage was quoted with approval in Suryanarayana v. Nageswara Rao, I. L. R. (1946) Mad. 30: (a. I. R. (32) 1945 Mad. 381). These decisions are based on the principle that every transferee of a decree shall hold the same subject to the equities, if any, which the judgment-debtor might have enforced against the original decree-holder as stated in S. 49, Civil P. C. The point that may be noticed here as in Suryanarayana v. Nageswara Rao, I. L. R. (1946) Mad. 30: (a. I. R. (32) 1945 Mad. 381) is that the principle laid down in S. 49 has been extended to cases where the claim was in respect of mesne profits not yet ascertained when the person in whose favour money was due under the decree was bound under equitable considerations to give deduction to mesne profits due by him.

8. It was contended that before applying the principles laid down in O. 21, R. 19, Civil P. C., it must be remembered that when the interest of one of the persons to whom money is due is attached, it may not be correct to apply the principles which might become applicable to cases where no such attachment is made. It has to be stated that an attaching creditor can under no circumstances have any rights better than those of his judgment-debtor. It was held in Rajman Ram v. Sarju Prasad, a. I. R. (24) 1937 all. 422 : (169 I. C. 639) as under : "Where there are cross-decrees under O. 21, R. 18, Civil P. C., a smaller decree must always be set off against the larger decree and if the smaller decree is attached by some other decree-holder that other decree-holder has no greater right than the decree-holder whose decree has been attached and the attaching decree-holder cannot claim that he has a right to execute the smaller decree in spite of the existence of a larger decree held by the judgment-debtor. In other words, the rule laid down by O. 21, R. 18 must be first applied before any question can arise for rateable distribution under S. 73." The same view is confirmed in Mahalingam Chettiar v. Ramanathan Chettiar, a. I. R. (27) 1940 P. C. 173: (I. l. R. (1940) Kar P. C. 312). Referring to the decision in Rajman Ram v. Sarju Prasad, a. I. r. (24) 1937 all. 422 : (169 i. C. 639) it was observed by their Lordships of the Privy Council in Mahalingam Chettiar v. Ramanathan Chettiar, (a. i. R. (27) 1940 P. C. 173: (I. L. R. (1940) Kar. P. C. 312) "with these observations their Lordships desire to express their respectful agreement."

9. It will thus be noticed that so far as applying the principle laid down under O. 21, R. 18 or 19, Civil P.C., is concerned, it cannot be said that the attachment of the interest of the person to whom money is due makes any alteration in the position. As already stated, it cannot also be said that O. 21, R. 18 or 19, can, strictly speaking, be applied to cases of this kind. But it is equitable to extend the principle on which Rr. 18 and 19 of O. 21, are based, to cases in which money has to be deposited for payment to a mortgagee in suits for redemption when he is liable under the decree for costs and mesne profits.

10. The order of the lower Court is, therefore, set aside and the revision petition is allowed. The attachment will be effective only in respect of what is due to the mortgagee after the amount due towards mesne profits on ascertainment and costs are deducted in the amount deposited by the mortgagor for redemption. No order as to costs. Order set aside. AIR (38) 1951 MYSORE 22 [C. N. 11.] "Puttamma v. Veerabhadra" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) Puttamma, Plaintiff, Appellant v. Veerabhadra Mudaliar, Defendant No. 4 and another, Defendant No. 1, Respondents. Misc. Appeals Nos. 38 and 39 of 1950-51, D/- 16 -11 -1950. Civil P.C. (5 of 1908), O.21, R.63 - ATTACHMENT - CIVIL COURT - Suit under - Value for purposes of jurisdiction. Mysore Civil Courts Act, S.11. In a suit under O. 21, R. 63, Civil P. C., where the value of the property exceeds the decretal amount, the value for the purposes of jurisdiction is the decretal amount. (Para 4) Anno. C. P. C., O. 21, R. 63, n. 21, Pt. 1.

V. Krishnamurthy - for Appellant ; C.N. Ramaswami Sastry - for Respondents. Judgement Vasudevamurthy, J. :- The plaintiff who is the appellant before us filed two claim petitions in Misc. Cases Nos. 35 and 36 of 1947-48 in the Court of the First Munsiff of Mysore objecting to the attachment of a house in execution of two decrees obtained by defendants 1 and 4 against defendant 3 in O. S. No. 406/45-46 and O. S. No. 328/46-47. Her claims were disallowed and she filed a suit O. S. 526/47-48 under o. 21, R. 63, Civil P. C., in the same Court for setting aside the summary orders passed in these miscellaneous proceedings. She first paid on her plaint a court-fee of Rs. 12-8-0 fixed under Art. 11 of Sch. ii, Mysore Court-fees Act, and later on paid a further sum of Rs. 12-8-0 as she was asking for two orders to be set aside. In the plaint the value for jurisdiction was not given. In their written statements defendants 1 and 4 pleaded that the property included within the boundaries given in the schedule to the plaint really consisted of two houses and that their value was more than Rs. 5,000 and that the Munsiff Court had no jurisdiction to try the suit.

2. It is recorded by the Munsiff in para. 3 of his judgment that the objections in respect of which issues 1, 2, 6, 7 and 8 were framed, viz. whether the plaint schedule property comprised one house or two houses, whether its value was beyond the Courts pecuniary jurisdiction, sufficiency of court-fees and misjoinder were agreed to be unnecessary at the stage of the arguments by all the counsel appearing in the case. The Munsiff also adds that they have become unnecessary in view of the reply statement filed by the plaintiff confining her claim only to door No. 294/1 and her having paid the additional court-fee for setting aside the two summary orders. The Munsiff recorded his findings on all the other issues relating to the merits of the case and decreed the suit in favour of the plaintiff. Two appeals R. as. Nos. 54 and 55 of 1949-50 were filed by defendants 4 and 1 respectively against the judgment of the Munsiff.

3. In the appeal memo in r. a. No. 54/49-50 filed by defendant 4 no ground was taken regarding the jurisdiction nor is a complaint made that the Munsiff erred in not recording his findings on all the issues. In the appeal memo in r. a. No. 55/49-50, however, defendant-appellant 1 complained that the lower Court erred in not giving findings on all the issues and in not noticing the defects as to multifariousness and jurisdiction. The learned Additional Subordinate Judge heard both the appeals together. He set aside the judgment of the Munsiff and remanded the case to him for fresh disposal according to law after giving findings on all the issues. The learned Subordinate Judge considered that issues 1 and 2 were important ones as they related to the jurisdiction and that as the Munsiff had not given a finding on these issues, his judgment was not in accordance with law. Be also considers that there was a material irregularity in the judgment as the Munsiff had not given a finding on all the issues. He has nowhere in his judgment referred to the record in para. 3 of the judgment of the Munsiff to the effect that all the parties were then agreed that there was no need to give findings on those issues. Issues 1 and 3 involved, not pure questions of law, but questions of fact and when the parties had through their counsel informed the Court that they did not want findings on those issues, we think the Munsiff was perfectly justified in not giving such findings. Issues 1, 2, 6, 7 and 8 related to the market value of the property, misjoinder of causes of action and sufficiency of court-fees, and apparently the counsel for the defendants in the trial Court thought and it appears to us quite reasonably that there was no substance in the objections on those points and had thought fit not to press them. While the learned Subordinate Judge has not referred at all in his judgment to the note by the Munsiff we do not also find any explanation in the appeal memo in R. a. No. 55 of 49-50 as to how after abandoning the pleas, covered by issues 1, 2, 6, 7 and 8 defendant 1 could be permitted to re open the matter in the appellate Court. In this connection it is significant to observe that in r. a. No. 54/49-50 no grounds are at all taken in these matters.

4. It is contended by Mr. V. Krishnamurthi, learned advocate for the appellant, that in any event jurisdiction of the Court in a suit like the present one, under O. 21, R. 63, Civil P. C., is determined, not by the market value of the property attached but by the amount of the decree for which it is attached. He argues that what the plaintiff in such a suit asks for is a declaration that the property is or is not liable to be attached and proceeded against for the debt and the subject-matter of the suit is therefore not the house or land but its liability either to be attached or relieved from attachment in respect of the particular debt. In support of this position Mr. V. Krishnamurthi relies on an unreported case decided by this Court in Misc. case No. 64 of 43-44. In that case the plaintiff sued to set aside a summary order passed against him in miscellaneous proceedings directing delivery of possession of a house. The house had been sold in execution of a decree and purchased by the defendant. The plaintiff who was in possession under a prior agreement of sale resisted such delivery. His obstruction was ordered to be removed and he brought a suit to get rid of that order. It was contended in that suit that the value of the house concerned was over Rs. 2500, and beyond the jurisdiction of the Munsiff. That contention was negatived by the High Court. In their judgment the learned Judges point out that in a suit under o. 21, R. 63 Civil P. C., the unsuccessful claimant or the attaching decree, holder was affected by the attachment of the property only to the extent of the decree-amount for the realization of which alone the attachment was laid on the property and the value of the subject-matter of the suit in such cases was represented either by the decree-amount or the value of the attached property whichever was more and could not always be the value of the property. They refer in support of their decision to Krishnasami Naidu v. Somasundasami, 30 Mad. 335 (17 M. l. j. 95 F. b.); Phul Kumari v. Gansyam Misra, 35 Cal. 202 : (35 i. a. 22 p. c ); Khetrapal v. Mt. Mumtaz Begam, 38 all 72: (a. i. r. (2) 1915 all. 436) and Anandi Kunwar v. Ram Niranjan Das, 40 all. 505: (a. i. r. (5) 1918 all. 324). In Mysore there is in existence no such enactment like the Suits Valuation Act. Under S. 11, Mysore Civil Courts Act, it is provided that only when the subject-matter of a suit is a land, house or garden, the value for purposes of jurisdiction shall be the same as the value for purposes of court-fee The subject-matter of a suit of the kind before us is not the house but the liability for being proceeded against for the decree-amount. By way of analogy 10 Mys. l. J. 25 may be referred to. It was a suit by a landlord against a tenant for ejectment. It was held in that case that the subject-matter of such a suit for purposes of jurisdiction was the tenants rights in the land and not the land itself and that S. 11, Civil Courts Act, could not apply to such a suit so as to make the valuation for purposes of court-fee and jurisdiction the same. It is unnecessary to refer in detail to the cases cited above. Those cases, and Moolchand v. Ramkishan, 55 all. 315 : (a. i. r. (20) 1933 all. 249 F. b.), and Radhabai v. Madho Rao, A. I. R. (31) 1944 Nag. 308: (I. l. R. (1944) Nag. 783) support the view that in a suit under O. 21, R. 63, Civil P. C. where the value of the property exceeds the decretal amount the value for the purposes of jurisdiction is the decretal amount. If it so held, in the present case it cannot be denied that the Munsiff had jurisdiction to hear the suit O. S. 528/46-47 as the aggregate amount of both the decrees is much less than Rs. 2,500 viz., Rs. 1500.

5. Mr. C. N. Ramaswamy Shastry, learned advooate for the respondent, relies on Tun Thein Mg. v. Maung Sin, 12 Rang. 670: (a.i.r. (21) 1934 Rang. 332): Subramanyam v. Narasimham. 56 m. l. J. 489 : (a. I. R. (16) 1929 Mad. 323) and Shiv Ram v. Khurshed Ahmad, 1 l. l. J. 87, for the contrary view. In Tun Thein Mg. v. Maung Sin, 12 Rang. 670: (a. I. R. (21) 1934 Rang. 332) the point which directly arose for decision was only regarding the court-fees payable in such a suit and not the value for purposes of jurisdiction. In Subramanyam v. Narasimham, 56 M.l.J. 489: (a.i.r. (16) 1929 Mad. 323) an objection was taken in a subsequent suit that the appeal in an earlier suit under O. 21, R. 63, Civil P. C. filed in the District Court and the second appeal thereon were all incompetent as the first appeal had been filed in the District Court though the amount of the decree under which the attachment was effected was over Rs. 5,000. Wallace J. while repelling that contention has no doubt observed without any discussion of the case law that the valuation for purposes of the appeal was the value not of the decree but of the property sought to be recovered to satisfy the debt; and the latter was within the appellate jurisdiction of the District Court. But the point has really been disposed of by him on the ground that as no objection as regards the valuation had been taken in the earlier appeal in the District Court, the same could not be, allowed to be heard under the provisions of the Suits Valuation Act and specially so in a collateral proceeding. For the question before us there is a clear and more direct authority in Krishnasami Naidu v. Somasundasami, 30 Mad. 335: (17 M. l. J. 95 F. B).

6. Shiv Ram v. Khurshed Ahmad, 1 l. l. J. 87 is a decision of a single Judge. In the report of the judgment there is no discussion of the question, and there is no reference to any decided cases of the other High Courts, except to some earlier decision of the same Court and to Phul Kumari v. Ganshyam Misra, 35 Cal. 202: (35 i. A. 22 p. C.) and which really does not support his view with regard to jurisdiction.

7. For the above reasons we find that the Subordinate Judges orders of remind are not correct and they are set aside. He will hear the appeals afresh and dispose of them in accordance with law. These appeals are accordingly allowed with costs (Advocates fee Rs. 25 in each appeal). Appeals allowed. AIR (38) 1951 MYSORE 24 [C. N. 12.] "Hassan v. Mirchandani" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) S. Hassan Sait, Plaintiff, Petitioner v. K. P. Mirchandani, Defendant, Respondent. Civil Revn. Petn. No. 94 of 1949-50, D/- 14 -11 -1950. Transfer of Property Act (4 of 1882), S.105 and S.107 - LEASE - AGREEMENT - EVIDENCE - Unilateral agreement to occupy house and pay rent - Agreement, if lease - Agreement not registered - Admissibility in evidence. Registration Act (16 of 1908), S.49. Where by an unregistered agreement the executant agreed to occupy a house for eleven months at a certain monthly rent and further agreed to pay the rent in advance on a certain date every month: Held, that the agreement amounted to no better than a karar or agreement undertaking to pay the rent for use and occupation of the house and was not a lease within the meaning of S. 105 and, therefore, was admissible in evidence and the executant was bound by the terms contained therein. (Paras 2 and 4) Anno. T. P. Act, S. 105, N. 9, Pt. 2; S. 107, N. 10, Pt. 5; Reg. Act, S. 49, N. 25. Nittoor Srinivasa Rao - for Petitioner. Judgement Order. - This revision petition arises out of S. C. S. No. 252 of 1948-49 before the District Judge, Civil Station, Bangalore. The petitioner-plaintiff filed a suit for the recovery of Rs. 150 being the rent due for the month of January 1949 on the foot of a written agreement which was filed into Court. The defendant raised a plea that the suit-claim was not enforceable as the written lease was not registered. He also pleaded discharge of the suit claim. When the case came up for evidence the plaintiff sought to amend the plaint by adding a plea that the suit must be deemed to have been based on an oral agreement accompanied by delivery of possession. The amendment was also refused on the ground that the suit for rent cannot be converted into one for use and occupation. The trial Court applying s. 107, T. p. Act, held that the claim on the foot of an unregistered deed is not attainable. This revision petition is preferred against that order.

2. The learned trial Judge has misdirected himself in applying s. 107, T. p. Act, in the circumstances of the case. The suit agreement runs thus: "I the undersigned agree to occupy your bungalow ......from 1-8-1948 for eleven months at a monthly rent of rupees one hundred and fifty (Rs. 150), i agree to pay the same rent always in advance on or about the 1st day of every month." The lease is for 11 months. Section 107, T. P. Act, is applicable only to leases of immovable property from year to year or for any term exceeding one year. The present lease being neither, S. 107 cannot be invoked. The chapter on lease of immovable property codified in the Transfer of Property Act is based on the rules of English law and is not in consonance with the existing practice in India. It is found in practice in India that the agreement of leases is almost invariably executed by the party who takes the property for use and occupation. The deed is either termed as rent-deed, rent-chit, kirayanama, kabuliat or karar. The lease in this case, reading as it does, amounts to no better than a karar or agreement undertaking to pay Rs. 150 for use and occupation of the house. Section 105, T. P. Act, provides that a lease of immovable property is a transfer of a right to enjoy such property for consideration to be paid to the transferor by the transferee who accepts the transfer on such terms. There is no transfer of immovable property in this case nor is the transferor a party to the document.

3. Whether such unilateral agreements bind all the persons coming under the purview of the chapter on lease of immovable property and should be deemed a lease as defined in S. 105, T. P. Act, has been the subject-matter of a number of decisions in India, There was undoubtedly conflict of opinion before the Amending Act of 1929. But subsequent to the amendment the majority view has been that such agreements do not come under or are governed by S. 105, T. P. Act. The interpretation of a similar document came before this Court for consideration in the year 1926 (33 Mys. C. C. R. 26) where a suit was based on a document styled askayam geni karar for recovery of paddy or its value. It was held following Ahadi Begam v. Asa Ram, 2 all. 162, that the document was not a deed of lease of immovable property as defined in S. 105, T. P. Act, there being no transferor nor a transfer of a right to enjoy the property. The Allahabad High Court has been consistent in its opinion from the very beginning and in fact the Amendment Act of 1929 was in consonance with the view that was taken by the Allahabad High Court which was followed in Mysore. In a very recent case, the Allahabad High Court has affirmed its view in Maqbool Ahmad v. Debi, a. I. R. (36) 1949 all. 455, and the head-note runs as follows : "a mere rent note or a kabuliat does not amount to a lease. The person executing the rent note is, however, bound by its terms as a matter of his undertaking although the other patty who has not signed the document would not be bound by them." It is also held by the Nagpur High Court in a case reported in Tulsi Ram Raja Ram v. Govinda Ramji, 189 I. C. 753: (a. i. R. (27) 1940 Nag. 143) that "a lease has to be signed both by the lessor and the lessee and consequently the rent note signed by the intending lessee is not a lease under S. 105, T. P. Act, and would not require registration under s. 107; it may be a lease under the Registration Act according to the definition in s. 2 (7) of that Act; but where a rent note is only for a period of 6 months, it does not require registration according to s. 17 (d), Registration Act, and is admissible in evidence even if unregistered." Belying on the view taken by the Allahabad High Court Bhide J. observed in Taj Din v. Abdul Rahim, A. i. R. (26) 1939 Lah. 423 : (I. L. R. (1940) Lah. 70) as follows: "The essential feature of a lease is that it is a transfer of a right to enjoy immovable property, It would, therefore, follow that the transfer can only be made by the person who owns the interest to be transferred. a rent deed which is executed by the transferee of the interest to be conveyed by the lease and reciting that the transferee had taken the premises from the transferor and the transferee merely agrees by the terms of the deed to pay a certain rent for a certain period cannot be considered to be a lease within the definition given in S. 105, T. P. Act. Hence, it would not, as a rent deed for less than a year require registration under the Registration Act. It would consequently be admissible in evidence, though unregistered."

4. The principles laid down in the cases referred to above are clear on the point that a rent deed or karar executed by a transferee and not the owner of the property for a period of less than a year is admissible in evidence and the executant is bound by the terms contained therein. The judgment of the learned District Judge is thus unsustainable and is set aside with a direction that the case be taken on file and dealt with according to law.

5. In the view taken, it is unnecessary to pass an opinion about the sustainability or otherwise of I. a. No. I in the case. Judgment set aside. AIR (38) 1951 MYSORE 25 [C. N. 13.] "Muniswamappa v. Govt. of Mysore" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) Muniswamappa. and another, Accused, Petitioners v. Government of Mysore, Complainant, Respondent. Criminal Revn. Petn. No. 222 of 1950-51, D/- 6 -12 -1950. General Clauses Act (10 of 1897), S.26 - GENERAL CLAUSES - THEFT - LAND REVENUE - Act offence under two enactments - Prosecution under either - Legality. Penal Code (45 of 1860), S.379. Mysore Land Revenue Code, S.43, S.44, Proviso. Where an Act is an offence under the provisions of two enactments which are not to conflict with each other, prosecution can be resorted to under either of the enactments. Thug, the prosecution under S. 379, Penal Code, for cutting and removing the branches of an avenue tree on a highroad which is the property of the Government, without the permission of the authorises concerned, is not illegal, though the act complained of amounts to an offence under s. 43, Mysore Land Revenue Code. (Paras 3 and 4) The proviso to s. 44, Mysore Land Revenue Code, does not preclude the applicability of the Penal Code. (Para 4) Anno. Gen. Cla. Act, s. 26, n. 1. B. Venkatesha Rao - for Petitioners. Judgement Order. - The accused were charged under S. 379, Penal Code, for having cut and removed branches of an avenue tree in Nandi Daddabalapur high-road; they were caught red-handed and produced along with the property before the Police of Daddaballapur. After trial, the learned Magistrate found both a. 1 and a.2 guilty of the offence and fined them Rs. 40 and Rs. 5 respectively, and the accused have preferred this revision petition against their convictions.

2. On a perusal of the evidence there is little doubt that the tree in question is the avenue tree on the road side which is the property of the Government, and that the accused have removed the branches without the permission of the authorities concerned. The facts found by the lower Court are not disputed before this Court.

3. Sri B. Venkatesha Rao, the learned counsellor the petitioners, urged that the acts complained of amount to an offence under the Special Act, viz. S. 43, Land Revenue Code. Under S. 44 of the said Act provision is made for recovering the value of the tree removed as if it were in arrear of land revenue and also to levy a fine. These provisions of the Land Revenue Code, it is urged, do exclude the liability of the petitioners under the ordinary law, the Indian Penal Code. Reliance is placed on the decision reported in Mohan Lal v. Emperor, a. I. R. (17) 1930 Oudh 497: (32 Cr. L. J. 104) wherein it has been held that a punishment under the Penal Code for abetment of an act which is an offence under the Salt Act and not an offence under the Penal Code is illegal for the reason that Salt Act prescribes specific punishment for the abetment of such an offence. This decision is not applicable to the circumstances of the present case. It is not denied that the act complained of forms a separate offence under the general law, the Penal Code; and these Acts do not conflict with each other. Section 26, General Clauses Act, makes a provision as to offences punishable under two or more enactments thus: "Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." It is admitted that the petitioners were neither proceeded with nor punished under the Land Revenue Code. It, therefore, follows that where an act is an offence under the provisions of two enactments which are not in conflict with each other, prosecution could be resorted to under either of the enactments. The prosecution under the Penal Code is not illegal as contended.

4. The next point raised by the petitioners is that the proviso to S. 44, Land Revenue Code, enables the Deputy Commissioner instead of imposing a fine, to institute criminal proceedings. It is argued to mean that either the Deputy Commissioner or only with his sanction any other authority should institute criminal proceedings and not otherwise; I am unable to agree with this suggestion. The proviso to that section only contemplates the alternative remedy open to the Deputy Commissioner with no delegation to any other authority by way of sanctioning the prosecution, but the said proviso does in no way preclude the applicability of or the liability under the general law, the Indian Penal Code. In any view of the case, there is no reason to interfere with the decision of the Court below. The petition fails and is dismissed. Petition dismissed. AIR (38) 1951 MYSORE 26 [C. N. 14.] "Amritlal v. Govt. of Mysore" MYSORE HIGH COURT Coram : 2 BALAKRISHNAIYA AND MALLAPPA, JJ. ( Division Bench ) Amritlal, Petitioner v. Government of Mysore, Complainant, Respondent. Criminal Revn. Petn. No. 7 of 1950-51, D/- 9 -10 -1950. Mysore Food (Restrictions of Service of Meals by Catering Establishments and Others) Order (1949), Cl.3 - FOOD CORPORATION - LAW - GENERAL CLAUSES - Prosecution for contravening Clause - Prosecution launched before Constitution - Prosecution if affected. Constitution of India, Art.13(1). General Clauses Act (10 of 1897), S.6(e). Where the offence of contravening Cl. (3) of the Order was committed and the prosecution launched before the Constitution came into force: Held, that the result of the prosecution was not affected by the declaration of rights under the Constitution. (Para 7) Anno. Gen. Cls. Act, S. 6, n. 5. G.V. Ramachar - for Petitioner; Advocate-General - for Respondent. Judgement Balakrishnaiya, J. :- The petitioner is the accused in c. C. No. 872/49-50 before the City Magistrate, Bangalore. He was charge sheeted by the police for an offence under R. 81 (4), Defence of India Rules, as applied to Mysore, for contravening cl. 3, Mysore Food Order 1949, (Restrictions of Service of Meals by Catering Establishments and others).

2. The case for the prosecution is that the accused was running a new catering establishment styledLake View Milk Bar without a permit in that behalf. The accused admitted that he was running the Milk Bar without a permit from the Director of Food Supplies. A charge was, therefore, framed against him under R. 81 (4) for contravening the provisions of Cl. (3) of the Mysore Food (Restrictions of Service of Meals by Catering Establishments and others) Order, 1949, and the learned Magistrate convicted the accused and sentenced him to pay a fine of Rs. 40 and in default to undergo R. i., for 15 days. This revision petition is filed against that order.

3. Sri G. V. Ramachar, the learned advocate for the petitioner, mainly contended that while it is open under S. 2, defence of india act, (that?) the Central Government may make rules for certain purposes and that the rules may provide or empower any authority to make orders providing for all or any of the matters contained therein, the Provincial Governments are only authorised to make rules under R. 81 (2) for regulating or prohibiting the consumption of articles and things of any description whatsoever but cannot delegate the legislative authority to the executive to make any orders to their subjective satisfaction. It is urged by him that cl. 3 of the Mysore Food Order which is framed under R. 81 (2), Defence of India Rules, invests the Director of Food Supplies with arbitrary powers to issue or withhold permits, which will have the effect of creating monopoly affecting the fundamental rights of the citizens under the Constitution of India.

4. The learned Advocate- General on behalf of the respondent raised a plea by way of preliminary objection that the offence under consideration has been committed on 22-11-1949 and the prosecution was also launched before the commencement of the Constitution and that it cannot be contended that the prosecution was untenable according to the law valid and prevailing then and that the Constitution has positively enacted transitional provisions to save and legalise liabilities regarding actions committed and enforced earlier to 26-1-1950.

5. It was contended by the learned counsel for the petitioner that the Constitution declares that all Acts inconsistent therewith shall be void importing thereby that they are void and actions taken thereunder should automatically cease to have effect on the commencement of the Constitution.

6. Under Art, 13 (1) of the Constitution of India the laws in force immediately before the commencement of the Constitution in so far as they are inconsistent with the provisions of fundamental rights shall, to the extent of such inconsistency, be void. But Art. 372 states that notwithstanding the repeal by the Constitution of the enactments referred to in Art. 395, all the laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature. The laws that existed before the Constitution in relation to the matters under consideration are admittedly not repealed. The case of the petitioner is that the law that is made applicable is discriminatory and to that extent it is opposed to fundamental rights; his client should be deemed not to have committed any offence at all. The expression used in Art. 13 (1) is that the laws in force inconsistent with fundamental rights shall be void, and so, if they are found to be inconsistent, it is left to the judiciary to declare them void.

7. Assuming that the defence of india rules and Orders made thereunder have to be declared to be void after the commencement of the Constitution the question that arises for consideration is whether the Constitution could have retrospective effect to affect the liability for offences committed. Article 367 of the Constitution states that unless the context otherwise requires, the General Clauses Act, 1897, shall apply for the interpretation of the Constitution. Section 6, General Clauses Act, prescribes the procedure in relation to the effect of, Acts repealed. Clause (3) of the said section states that the repeal of any law shall not affect any investigation, legal proceeding, liability etc., which has been instituted under the earlier law in force. As the case from which this revision petition arises has been instituted for an offence alleged to have been committed before the Constitution came into force, the prosecution will not be affected even if the provision of law under which the petitioner is convicted is void under Art. 13 (1). In this view we are supported by a recent Full Bench decision of the Bombay High Court reported in In re, Keshav Madhav Menon, (a.i.R. (38) 1951 Bom. 188 : 52 Cr. L. J. 30 F. B.) where, in connection with a prosecution launched before the Constitution came into force, for an offence punishable under the Indian Press Act, it was held that the result of prosecution will not be affected by declaring the impugned law as being void under Art. 13 (1) of the Constitution. We, there, fore, express no opinion about the Acts impugned, but we uphold the preliminary objection raised by the Advocate-General that the offence having been committed and the prosecution launched before the Constitution came into force, the result is not affected by the declaration of rights under the Constitution. The petitioner has not assailed the conviction on merits.

8. We, therefore, decline to interfere with the order of the Court below. The revision petition stands dismissed. Revision dismissed. AIR (38) 1951 MYSORE 28 [C. N. 15.] "Narasimhachar v. Malliah" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) M. A. Narasimhachar, Plaintiff, Petitioner v. Malliah and others, Defendants, Respondents. Civil Revn. Petn. No. 451 of 1948-49, D/- 28 -9 -1950. (A) Limitation Act (9 of 1908), S.20, Proviso - LIMITATION - Payment before 1-1-1929 - It need not be either in writing or signed by the party making it. (Para 2) Anno. Lim. Act, S. 20 N. 24. (B) Civil P.C. (5 of 1908), S.115 - REVISION - Refusal to exercise jurisdiction - Absolutely ignoring amended provision of law constitutes. (Para 2) Anno. C. P. C., S. 115 N. 11. (C) Civil P.C. (5 of 1908), O.47, R.1 - REVIEW - Error of law apparent on face of record - Incorporation of erroneous legal proposition as basis of judgment is such error. 14 Mys. L. J. 516. (Para 2) Anno. C. P. C., O, 47 r. 1 n. 15. M.A. Gopalaswami Iyengar - for Petitioner; V. Krishnamurthy - for Respodents. Judgement Order. - The Petitioner was the plaintiff who filed an application on 25-11-47 under O. 47, R. 1 read with Ss. 114 and 151, Civil P. C., praying for review of the order dated 25-8-47 dismissing the application, i. A. No. V, for a personal decree in O. S. No. 307/34-35 on the file of the First Munsif of Mysore. The suit was filed on the foot of a hypothecation deed dated 5-4-1917 (with three years time for payment). The suit was filed on 26-11-34, alleging amongst other things that the cause of action arose on several dates including 36-11-1928, being the last date of an alleged payment of some amount towards the suit claim which had not been duly endorsed on the bond or signed by the parties making the payment. The preliminary decree was passed on 30-11-1935 and the final decree on 14-8-1938; in execution of the said decree, the mortgaged property was sold and purchased for Rs. 40/-and the sale was confirmed on 12-12-1941. The plaintiff-decree-holder filed an application for setting aside the sale which was dismissed and the High Court in C. R. P. No. 233 of 42-43 upheld the order of dismissal on 16-12-1942. Thereupon the plaintiff, decree-holder filed an application, i. a. No. v, under O. 34, r. 6, Civil P. C., on 10-2-45 praying that a personal decree may be passed. The Court dismissed the application on 25-8-47, whereupon the petitioner filed an application for review of the said order on 25-11-47. The defendants resisted the application on the ground that it was barred by time. The trial Court held that the time from which limitation runs in respect of such applications was the date of confirmation of the sale, and did not take into account the period occupied by the appeal and refused to allow the period of time from the date of sale till the date of the High Court order which effected the finality regarding the sale. The trial Court also gave a finding that the suit was not filed within six years and hence the personal remedy became barred. The trial Court declined to take into account the last date of the alleged payment of some amount viz. 26-11-28 which had been averred specifically in the plaint.

2. Mr. Gopalaawamy Iyengar contends before this Court that both the grounds taken by the trial Court for the dismissal of his application for a personal decree are incorrect and illegal, and that the trial Court has failed to exercise a jurisdiction vested in it. In support of the proposition that time runs for a personal decree from the date of the High Court order, he relies upon the following decisions reported in Rajambal v. Thangam, A. I. r. (22) 1935 Mad. 640 : (157 I. C. 942) and Jagrup Singh v. Mt. Ram Gati, A. I. R. (24) 1937 ALL. 285: (I. L. R. (1937) ALL. 481). Beasley C. J. in Rajambal v. Thangam, A. I. R. (22) 1935 Mad. 640 at p. 642 : (157 i. C. 942) has observed that the decree-holders right to apply for a personal decree under O.34, R. 6, Civil P. C., does not accrue until the sale has become absolute and where there is an appeal from an order dismissing an application by the judgment-debtor to set aside the sale, the period of three years under Art. 181, Limitation Act, for an application for a personal decree against the mortgagor begins to run from the date of the appellate order and not from the date when the sale is confirmed by the lower Court. This view has been followed in Jagrup Singh v. Mt. Ram Gati, A. i. R. (24) 1937 ALL 285 : (I. L. R. (1937) ALL. 481), in which it has been laid down that the application under O. 34, R. 6 cannot be treated as an application for execution of a decree which is governed by Art. 181, Limitation Act and time begins to run when the sale is confirmed finally by the appellate Court. This Court has also laid down in 18 Mys. L. J. 113 that the proper stage at which the plaintiff can ask for a personal decree in respect of any balance not realised after selling the mortgaged property, which had been made liable for the decree amount is, after the sale. Regarding the right to apply for a personal decree, it is no doubt true that it must be within six years based on the registered deed. The cause of action for the suit was alleged to be 26-11-1928 on which date payment is said to have been made. The learned Munsif observes that that payment is neither endorsed on the bond nor is there any acknowledgment of liability made on that date as alleged. It may be observed here that the very fact of the payment alleged and not denied by the defendant has become conclusive by the decree and the fact of such payment on the date averred can admit of no further doubt.The main point for consideration is whether the alleged payment had to be endorsed on the bond and acknowledged by the debtor. The learned Munsiff has obviously ignored the amendment of s. 20, Limitation Act, by Act V [5] of 1928 : the proviso that is added to S. 20 by S. 2 of the amending Act runs as follows: "Provided that save in case of a payment of interest made before the first day of January 1929, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment." Obviously in this case the payment dated 26-11-1928 is before 1-1-1929. As such, it does not require to be either in writing or signed by the party. In that view of the matter, the suit which was filed on 26-11-1934 for a personal decree was well within time. Both these aspects have been ignored by the trial Court in the miscellaneous case. In dealing with the review application the trial Court also observes that the payment of interest dated 26-11-1928 not having been endorsed on the document, it does not save time for a personal decree, and that decision cannot be said to be a wrong exposition or application of law, and that it is at best a debatable point and not an error apparent on the face of the record. As stated above, there is a specific provision of law as amended in s. 20, Limitation Act, which does not require the payment to be in writing or signed by the party.In view of the fact that the learned Judge has absolutely ignored the amended provision, it constitutes a refusal to exercise the jurisdiction that was vested in him. Moreover, it has been laid down in Hanumanthappa v. Basettappa, 14 Mys. L. J. 516, that where the judgment actually incorporates some legal proposition which is the basis of the judgment and which one can say is erroneous, it is an error of law apparent on the face of the record. Section 20, Limitation Act, as amended is a proposition of law prescribed by statute and it cannot be said to be a debatable proposition.

3. The learned counsel for the respondents raised a preliminary objection that the review application is not maintainable and in support of his contention he relied on a decision of this Court reported in Siddegowda alias Nagegowda v. Boregowda, 17 Mys. L. J. 267. It does not appear to follow from that decision that the proposition advanced is in any way supported. Following 10 Mys L. R. 301, the Judge in the above case observed that in the view held therein, the revision petition is not maintainable unless the order was passed by a Judge exercising a jurisdiction not vested in him by law or failing to exercise a jurisdiction so vested or acting in the exercise of jurisdiction illegally or with material irregularity. The contention of Mr. Gopalaswamy Iyengar is that the learned Munsiff has failed to exercise a jurisdiction vested in him under the Limitation Act and it cannot be doubted that that jurisdiction is exercised with material irregularity. It cannot, therefore, be said that there was no error patent on the face of the record as to admit of review under O. 47, R. 1, Civil P. C.

4. In this view, the order rejecting the review application cannot be supported. The orders on the application are set aside. The records will be sent back to the trial Court with a direction that Miscellaneous case No. 98 of 1947-48 may be restored to his file and disposed of according to law. The parties will bear their costs of this petition. Application allowed. AIR (38) 1951 MYSORE 29 [C. N. 16.] "M. G. B. Works v. F. I. B. Works" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) Mangalore Ganesh Beedi Works, Mysore and others, Plaintiffs, Appellants v. Free India Beedi Works, Bangalore City and others, Defendants, Respondents. Misc. Appeal No. 42 of 1949-50, D/- 13 -11 -1950. (A) Civil P.C. (5 of 1908), O.39, R.1 - INJUNCTION - Temporary injunction, when granted - Effect and object of such injunction. An order of temporary injunction is granted on a prima facie case made out by the plaintiff either on the pleadings or affidavits and sometimes on whatever evidence that might be offered by the parties for that purpose. It is merely provisional in its nature. Its effect and object is to keep matters in status quo as far as possible until the hearing or until further orders and in order to prevent the commission or continuance of an alleged injury in the meantime. Its issue is often governed by the balance of convenience as between granting or refusing of such an ad interim relief, that is, on a consideration as to the comparative mischief or inconvenience which may arise from granting or withholding such an interlocutory injunction. (Para 5) Anno. C. p. c., o. 39, R. 1., n. 3 , Pts. 6 to 10. (B) Civil P.C. (5 of 1908), O.39, R.1. - INJUNCTION - Passing off actions - Temporary injunction - Fraud, if necessary for issue of injunction. In cases of passing off actions it is not necessary that there must be an element of fraud exercised or likely to be exercised by one party against another to justify the issue of an injunction. (Para 6) Anno. C. P. C., O. 39, R. 1, N. 3. Mirle N. Lakshminarayanappa - for Appellants. Judgement Vasudeyamurthy, J. :- The plaintiffs are a registered firm in Mysore manufacturing and selling beedies under the name and style of "Mangalore Ganesh Beedi works." They have filed a suit against the defendants in the Court of the District Judge of Mysore for a permanent injunction restraining the defendants from manufacturing, affixing or otherwise using in connection with their business of beedies any colourable imitation of plaintiffs registered trade marks and for damages. The defendants have been carrying on similar busi ness in the name of "Free India Beedi Works" in Bangalore.

2. After filing the suit the plaintiffs applied for a temporary injunction which was granted in their favour ex parte. The defendants subsequently applied for the setting aside of that order and the learned District Judge, after hearing arguments, cancelled his previous order. He, however, directed the defendants to furnish the accounts of their business once in six months and give security to compensate the plaintiffs for any loss they might be found to have incurred if they ultimately succeeded in the suit. Against that order the plaintiffs have preferred this miscellaneous appeal.

3. In the plaint the plaintiff have stated that they are the registered proprietors of two trademarks viz., the device of Ganesha together with the numeral of 501 on both its sides in an ornamental design and the words "Mangalore Ganesha Beedies", that they have been Manufacturing beedies known asMangalore Ganesh Beedies" in Mangalore since 1932, that their firm was registered on 1-4-40 in Mysore in the name and style of "Mangalore Ganesh Beedi works" with their head office at Sivarampet, Mysore, that their beedies have acquired a valuable reputation and that they are doing very extensive business to the extent of nearly Rs. 25,00,000 per year. They have described in para 4 of their plaint the wrappers and coloured labels which they have been using for wrapping and sealing bundles of beedies. They say that it came to their notice in the beginning of February 1949 that the defendants were selling their beedies in various places under the name of "Bangalore Ganesh Beedies" in wrappers and labels closely resembling in material particulars their own wrappers labels, that the similarity of name and designs enables the defendants to pass off their goods as that of the plaintiffs and that they are actually doing so. They complain that on the defendants wrappers also there was a design of Ganesha and the numerals 901 and they were calling their beedies "Bangalore Gajesh Beedies", a name very similar to the plaintiffs and calculated to mislead the customers.

4. How far the name of the beedies, the design, the wrappers and the labels adopted by the defendants are a colourable imitation of those of the plaintiffs and whether they are calculated to deceive the customers and the other defences raised by the defendants based on the provisions of the Trade Marks Act, are all questions which should be decided after the trial. At this stage we would like to avoid saying anything about the merits of the case which is likely to affect its fair trial by the lower Court. But we are, however, of the opinion that in the circumstances of this case the learned District Judge ought to have continued the order of temporary injunction which he had originally issued and not cancelled it.

5. An order of temporary injunction is granted on a prima facie case made out by the plain-tiff either on the pleadings or affidavits and sometimes on whatever evidence that might be offered by the parties for that purpose. It is merely provisional in its nature. Its effect and object is to keep matters in status quo as far as possible until the hearing or until further orders and in order to prevent the commission or continuance of an alleged injury in the meantime. Its issue is often governed by the balance of convenience as between granting or refusing of such an ad interim relief, that is, on a consideration as to the comparative mischief or inconvenience which may arise from granting or withholding such an interlocutory injunction. In this case, there is no doubt that the plaintiffs have a prima facie case to place before the Court. It cannot at all be said that the design, the colours and the name of Gajesha, the number 901 on the wrappers, the colour combination on the labels and the name "Bangalore Gajesha Beedies" are not in some ways at least similar to the form, the colours of the design Ganesha, the colour combination of the labels, the number 501 and the name "Mangalore Ganesha Beedies" on the packets of the plaintiffs. It is an admitted circumstance that the plaintiffs have registered their name and designs quite sometime before suit and have been carrying on business under the name and style of "Ganesh Beedi Manufacturing works" from so far back as 1932. The defendants are newcomers in the field and we think the balance of convenience would be in restraining the defendants from using their design and name on the wrappers till the disposal of the suit.

6. The learned District Judge has compared both the parties wrappers and labels and thought that they do not bear any resemblance to each other, in view of the fact that there is a faint mark of two elephants on either side of Ganesha. He also appears to think that there must always be an element of fraud exercised or likely to be exercised by one party against another to justify the issue of an injunction in cases of this kind. He has overlooked the fact that admittedly the defendants changed the form and design of Ganesha on their labels apparently to make it look less similar to the plaintiffs after the filing of the suit. It is for the learned Judge to consider the effect of such change and whether even the design which the defendants are now using can be said to be so dissimilar from that of the plaintiffs after taking evidence. At this stage it is enough to point out that both the grounds on which the learned District Judge has proceeded are not correct. In such actions it is not at all necessary that there should be an intention to deceive.

7. As pointed out in 14 Mys. l. J. 1: 41 Mys. h. C. R. 110, a man has a right of property in the goodwill of his business which he has either built up or acquired, and if another person interferes with it bypassing-off his own goods among the public as the formers then he has a remedy. He can go to Court and obtain an injunction restraining the defendant from such acts even if the latters action is entirely innocent and done in ignorance that he has interfered with the plaintiffs rights. It is not also the proper test to apply in such cases whether a person after careful and intelligent examination or study of the marks on the goods and after seeing them together is not likely to be misled but whether by the general impression produced, or what may be called "the main idea left on the mind," by looking at the article there is a probability of the similarity causing deception. Each case must depend upon the degree or amount of resemblance; and the decided cases while affording guidance on the way in which the question should be approached would not afford a rigid rule by which such cases should be decided.

8. In Ebrahim Currim and Sons v. Abdulla Sahib, a. i. R. (21) 1934 Mad. 226: (148 i. C. 110), the trial Judge had compared two umbrellas in respect of which an infringement of trade mark was complained of, and having come to the conclusion that from the mere appearance of the marks he Was not satisfied that even an ignorant purchaser would be deceived, refused to pass an order of temporary injunction; on an appeal against that order Coutts-Trotter C. J. and Ramesam J. reversed his decision and directed the issue of an interlocutory injunction subject to terms. In their judgment they point out that: "One has got to see whether an ignorant purchaser is going to be in the position of the Court having the two things side by side and examining them critically. The purchaser probably trusts to his recollection of one or a description of it that has been given him, or, seeing it in the shop window, goes to the person selling the infringement, who ex hypothesi does not give him the two, the genuine one and the infringement, to choose from." They further point out: "To allow the defendant with so new an article as that to disturb the state of things by putting on the market a whole supply which may turn out to be an infringement of the plaintiffs rights would, to our mind, be much greater inconvenience than to restrain the defendant for the few weeks adjournment during which the trial will be expedited and the slight difficulty of ascertaining by way of injury hereafter what the amount of measurable money loss he would incur by that sort adjournment."

9. The plaintiffs in this case have come to Court with a prima facie case based on earlier registered trade marks in respect of goods manufactured in their own name. The defendants, on the other band, though they have a name of their own firm as "Free India Beedi Works" have recently put on the market beedies under a new name which is not the name of their firm. We think, therefore, that in the circumstances of this case the balance of convenience clearly requires that there should be an interlocutory injunction in favour of the plaintiffs, the same, however, being subject to the condition that the plaintiffs will file a bond into Court that they will be liable to pay to the defendants in this suit alone such damages as shall be found due upon enquiry in this behalf in the event of their being unsuccessful in their suit and it being held that the defendants action was not contrary to the plaintiffs rights. In this view it is unnecessary and not desirable to consider in detail at this stage the numerous decisions referred by the counsel on both sides on the merits of the suit.

10. In the result this appeal is allowed. The order of the District Judge on I. A. No. II, vacating his previous order of temporary injunction is set aside. A temporary injunction will be issued in the terms of his earlier order on the plaintiffs filing a bond into his Court as mentioned in the previous paragraph. The respondents will pay the costs of the appellants in this Court (advocates fee Rs. 25). Appeal allowed. AIR (38) 1951 MYSORE 31 [C. N. 17.] "Siddalingamma v. Puttamadappa" MYSORE HIGH COURT Coram : 2 BALAKRISHNAIYA AND VASUDEVAMURTHY, JJ. ( Division Bench ) Siddalingamma, 1st Defendant, Appellant v. Puttamadappa, Plaintiff, Respondent. Second Appeal No. 258 of 1950-51, D/- 1 -12 -1950. (A) Civil P.C. (5 of 1908), S.100 - APPEAL - CONCURRENT FINDINGS - Concurrent finding of fact - Finding that a particular document is genuine is one of fact - Finding of two lower Courts based on evidence cannot be challenged in second appeal. (Para 2) Anno. Civil P. C., Ss. 100 and 101, N. 54. (B) Registration Act (16 of 1908), S.77 - DOCUMENTS - "Within thirty days after the making of the order of refusal" - Date of refusal. Where the District Registrar, before whom an appeal against an order of a sub-Registrar refusing registration of a document was filed, dismissed the appeal for default of the appellant but subsequently restored it to file without any objection from the opposite party and after Inquiry dismissed the appeal on the merits : Held that the date of refusal for purpose of computing the 30 days under S. 77 was the date of dismissal of the appeal on the merits and not the date of dismissal of appeal for default : 18 I. C. 450 (Cal.), Rel. on. (Para 4) Anno Reg. Act, S. 77, N. 8, Pt. 7.

V. Krishnamurthy - for Appellant. Judgement Vasudevamurthy, J. :- The plaintiff filed a suit in the Court of the Munsiff of Nanjangud for a decree directing a karar dated 20-8-1944 (which has been marked as Ex. b.) said to have been executed by defendant 1 in his favour to be registered. The plaintiffs case is that when he presented the document for registration before the Sub-Registrar, defendant 1 denied its execution and the Sub-Registrar refused to register it. Consequently he preferred an appeal to the District Registrar who held an enquiry; and he also refused to order the registration of the document as he was not satisfied about its genuineness. That order, according to the plaintiff, was on 17-2-1947 when the District Registrar dismissed the appeal and the suit was brought under S. 77, Mysore Registration Act, within 30 days of that order and its communication to the plaintiff. Defendant 1 denied execution of the document. He also contended that the suit was barred by limitation. He pleaded that during the course of the hearing of the appeal the District Registrar had once dismissed the plaintiffs, appeal for default on 16-5-1946, but later on had on an application by the plaintiff restored it to file on 30-5-1946, and thereafter he had after enquiry passed an order against the plaintiff on 17-2-1947; that the period of 30 days within which a suit could be filed under S. 77, Registration Act, to have the document registered was to be counted from 30-5-1946 when the appeal was dismissed and not from the later date when the District Registrar passed his final order. The Munsiff of Nanjangud passed a decree as prayed for in favour of the plaintiff and the same has been confirmed on appeal by the Additional District Judge, Mysore. Defendant 1 has now preferred this second appeal.

2. Both the Courts below have fully discussed the evidence including that of p. w. 5 the thumb impression expert, called by the plaintiff and have come to the conclusion that Ex. B is genuine. That concurrent finding of fact is binding on us in second appeal and cannot be questioned by the appellant,

3. Regarding the question of limitation, Mr. Y. Krishnamurthi, learned counsel for the appellant, contends that the District Registrar had no power to review his previous order dismissing for default the appeal before him and that the proceedings had before him subsequent to that order were all without jurisdiction and invalid and that this suit which is filed within 30 days, not of the first order of dismissal but of the second order is beyond time. There is no substance in this contention. It has been held in Sajad v. Saroda Prosad. 17 C. W. N. 585 : (18 i. C. 450) that in such a case the final order of the Registrar made after the restoration of the case was the order of refusal in respect of which the plaintiff was entitled to institute a suit in the civil Court and the plaintiffs suit which had been brought within 30 days of the later order was within time. In that case the plaintiff applied to the Registrar for compulsory registration of a deed of sale. The case was struck off, but on the plaintiffs application for review, the case was restored and the Registrar after taking evidence on both sides made his final order refusing to register the deed and the plaintiff instituted a suit in the civil Court under S. 77, Registration Act, within 30 days from the date of that order. In the course of the judgment their Lordships observe as follows : "It is conceded by the learned pleader for the defendants (and, indeed, his argument is based upon it) that the Registrar is not a civil Court governed in all respects by the rules of the Code of Civil Procedure. He is an executive officer and as such there is no rule of law so far as we know, to prevent him from reviving an application which may have been struck off his list by reason of the non-appearance or failure to prosecute the applicant. This he appears in this case to have done and what is more, when notice was issued to the defendants, instead of raising any objection to such a course, the defendants did not object. On the contrary they accepted the position and adduced evidence in Court. We think, therefore, that the order of 27-8-1908 was not the order of refusal, but that the order of 28-1-1909 was the order of refusal in respect of which the plaintiff was entitled to institute the suit in the civil Court." In the present case also the defendants have after the restoration of the appeal by the District Registrar been notified of the appeal. They have appeared before him and taken part in the proceedings without raising any objection.

4. If the date of the refusal of the District Registrar, which is the basis for the suit under S. 77 is taken as 17-2-47 it is not disputed that the suit will be within time. In this matter we agree with the decision in Sajad v. Saroda Prosad, 17 C. W. N. 585 : (18 I. C. 450), and are of the opinion that the District Registrars order of 17-2-47 in the appeal before him is the order of refusal to register the document on the basis of which the plaintiff was entitled to file his suit in the civil Court and not his earlier order dismissing the appeal for default of appearance.

5. There are, therefore, no grounds to admit this second appeal and it is accordingly dismissed. Appeal dismissed. AIR (38) 1951 MYSORE 33 [C. N. 18.] "Basavegowda v. Govt. of Mysore" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) Basavegowda, Accused 2, Petitioner v. Government of Mysore, Complainant, Respondent. Criminal Revn. Petn. No. 176 of 50-51, D/- 5 -10 -1950. Criminal P.C. (5 of 1898), S.403, S.235 - DOUBLE JEOPARDY - JOINT TRIAL - CHARGE - FORGERY - Trial for offences u/S.467, Penal Code and S.82, Registration Act. Where a person is tried and acquitted of an offence under S. 467, Penal Code, he can be tried subsequently under S. 82, Registration Act, on the same facts as the offences committed are distinct. (Para 4) Anno. Cr. P. C., S. 403 N. 8, S. 235 N. 3.

V.K. Govindarajulu - for Petitioner ; Advocate-General - for Government. Judgement Order. - The petitioner is accused 2 in Seasons Case No. 9/49-50 who, as accused 3 in Sessions Case No. 8 of 49-50, stood charged for an offence under S. 467, Penal Code. Separata charges were also framed against the second and third accused (in Sessions Case No. 8/49-50) under S. 82, Mysore Registration Act. On a motion by the Public Prosecutor, the charge for the offence under S. 82, Registration Act was kept by for a separate trial, as a joint trial for the offences both under the Penal Code and the Registration Act was considered by the Sessions Judge to be irregular. After trial, the petitioner was acquitted of the offence under S. 467, Penal Code. The charge under S. 82, Registration Act was then taken up for trial in Sessions case No. 9/49-50. The petitioner filed an application under S. 403, Criminal P. C., objecting to the trial on the principle of autrefois acquit. The learned Sessions Judge held that the acquittal under S. 467, Penal Code is no bar for trial of an offence under S. 82, Registration Act. This revision petition is filed against that order.

2. Sri V. K. Govindarajulu, the learned counsel, on behalf of the petitioner urged that the offences complained of having arisen out of the same transaction, and the facts to be proved in both the cases remaining same, the second trial is against public policy involved in the scheme of legislation. He relied upon the decision in Saing Maung v. Emperor, air (11) 1924 Rang. 213: (25 Cr. L. J. 191) which held that: "When an accused has been tried and acquitted under sections of Penal Code of offences of forgery and abetment thereof, his subsequent trial for offences under the Registration Act on the same facts is barred under S. 403, Criminal P. C." The same High Court in Mc Tok v. Emperor, AIR (14) 1927 Rang. 303: (28 Cr. L. J. 908) had laid down that where a person executed a mortgage and registered it and was tried and acquitted under the Penal Code, the subsequent trial under S. 82, Registration Act was not barred as he committed two entirely distinct offences; one was cheating by personation and the other for personation under the Registration Act. The learned Judge declined to follow Saing Maung v. Emperor, AIR (11) 1924 Rang. 213 ; (25 Cr. L. J. 191) with an observation that "the facts of the case have not been stated in the judgment." In Abdul Hamid v. Emperor, AIR (23) 1936 Rang. 174: (37 Cr.L.J. 492), the case in Saing Maung v. Emperor, A.I.R. (11) 1924 Rang. 213: (25 Cr.L.J. 191) came up for consideration and was not followed. It was laid down in the latter case that swearing a false affidavit and using that false affidavit are two distinct offences even though they are parts of the same transaction and the accused can be tried for both the offences of perjury and cheating at the same trial. Section 403 (1), Criminal P. C. states that if a person has been tried and acquitted of an offence, he shall not be liable to be tried again for the same offence nor on the same facts for another offence for which a different charge from the one made against him might have been made against him under S. 236, Criminal P. C. Section 236 deals with the procedure where it is doubtful which of the offences that are committed.

3. section 403 (2) states that a person ac-quitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on a former trial under S. 235 (1), Criminal P. C. Section 235 (1) provides for the trial of offences committed in the same transaction, and if more offences than one are committed by a person he may under that section be tried at one trial for every such offence.

4. The cases under reference arose from a complaint that the accused had forged a sale deed and some of them impersonated before the Sub- Registrar for getting the document registered. Impersonation before the Sub-Registrar may be committed without committing forgery. The first trial concerned with forgery and the present trial for impersonation. Though both may be considered acts arising out of the same transaction, it cannot be said that they are not distinct offences. In fact in the present case charges were framed for both the offences; one was tried and disposed of at first, the other now under enquiry is but the continuation of the same trial for the offence for which a charge was originally made. The later decisions of Rangoon High Court are conclusive that the offences concerned in these cases are distinct. The case is thus governed by S. 235 (1) which attracts the provisions of S. 403 (2), Criminal P. C., and a subsequent trial for a distinct offence is not barred, There is thus no substance in the contention that the present trial is barred.

6. The petition therefore fails and is dismissed. Revision dismissed. AIR (38) 1951 MYSORE 34 [C. N. 19.] "In re Ameerjan" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) In re Ameerjan (Accused), Appellant. Criminal Appeal No. 11 and Criminal Petn. No. 100 of 50-51, D/- 2 -1 -1951. Criminal P.C. (5 of 1898), S.342 - EXAMINATION OF ACCUSED - POSSESSION - COUNTER-FEIT - EVIDENCE - Possession of counterfeit notes - Presumption. Penal Code (45 of 1860), S.489C. Evidence Act (1 of 1872), S.114. In considering what inference can properly be drawn from the possession by the accused of an incriminating article when no explanation is forthcoming from him as to how he came to be in possession of it, the Court is not bound by any rule of law and is merely considering a matter of reasonable inference and common sense. (Para 5) The object of S. 342 is to enable the accused to explain the circumstances in the prosecution evidence which are against him. If the accused charged under S. 489-C, Penal Code, when confronted with the large body of evidence to the effect that he took the police and showed them the place hidden from the public view where the counterfeit notes were secreted, kept silent or denied the whole affair, it would not be unnatural to presume that he had either secreted them there himself or knew who had done so. It would also not be unreasonable to presume that if someone else to his knowledge had so secreted them it is not at all likely that the accused would be shielding him but would disclose the name of the latter. It would be reasonable to raise a presumption against the accused that he was in possession of the notes and had secreted them. (Paras 4 and 5) Anno. Cr. P.C., S.342, n.21; Evi. Act, S.114, n. 16; Penal Code, S. 489-C, N. 1. H.V. Krishna Rao - for Appellant; The Advocate-General - for the Government. Judgement Vasudevamurthy, J. :- The accused who has appealed to this Court has been convicted for an offence under S. 489-C, Penal Code and sentenced to rigorous imprisonment for three years by the 3rd Additional Sessions Judge, Bangalore Division. The case against him was that he was found in possession of 81 counterfeit ten rupee currency notes on 23-10-1948. The learned Sessions Judge has found that the notes in question are counterfeit. The same is not seriously disputed before us and is amply established by the evidence of P. W. 10, Coin and Currency Expert attached to the C. I. D. Madras and who has been trained in the Bombay Mint and Nasik Currency Press. The appearance of the notes also makes it clear that they are not genuine and though a few of them are quite crude imitations, quite large number of others look very similar to genuine notes.

2. The Sessions Judge has also found that the accused must be held to have been in possession of these notes with a view to use them as genuine or with the object that they may be used as genuine knowing or having reason to believe that they were forged ones. It is contended before us that conclusion of the learned Judge is not correct.

3. The manner in which the prosecution have tried to establish that the possession or control of the notes was with the accused is through evidence that the accused showed the place where they had been hidden by him. [After discussing the evidence the judgment proceeded:] Mr. Krishna Rao the learned counsel for the appellant, has argued that the house in which the notes were discovered does not belong to the accused ; that in fact the learned Sessions Judge has found to that effect and that, therefore, he cannot be said to be in possession of the rotes. It must be remembered that this house is incomplete and has not been roofed. It is in the evidence of P. W. 4 that the walls are about 5 to 6 ft. high and that there would be no difficulty in going in that house with the help of a ladder. Moreover there is another very strong circumstance against the accused. Mustafa d. w. 4 to whom the house is said to belong, appears to be closely related to the accused though he was unwilling to admit it at first. The accuseds sister is married to Syed Sab, his brother; and Syed Sab and one Hazam who has married another sister of the accused are trading together. The accused appears to own a neighbouring vacant site and in Ex. d-10 which is a document executed by Mustafa Sab agreeing to pay ground rent to d. W. 2 for the site on which the house is built the open space to the south of Mustafa Sabs site is shown as belonging to the accused. Access into that house would, therefore, have been quite easy for the accused.

4. It was further contended for the appellant that this evidence is not sufficient to hold that the accused was in possession of the currency notes within the meaning of S. 489-C, Penal Code and that the circumstance that the accused showed the place where the notes where hidden could not raise a presumption that the accused hid them there. It was argued that at the worst it would only mean that the accused knew that the notes in question were hidden in that place and nothing more. That place where these notes were found is not a public place in the sense that there was an unrestricted access to it. D. W. 4 Mustafa has deposed that only mud and sand were stocked in that incomplete house and that he used to lock the door to prevent children entering and wasting the mud and sand. It was apparently within the special means of knowledge of the accused that the notes were secreted in the place and he has not explained as to how he came by that knowledge. In his first statement before the Committing Magistrate he has not denied that he showed the place wherefrom the notes were recovered though he adds that the house is not his and that Mustafa Sab was getting it built. He later on apparently realised the significance of his action and in his statement before the Sessions Judge he has expressly denied that he took out notes from that house and gave them to the police. It was open to the accused to have at least stated in Court how he came to know that the notes were secreted there. Mr. Krishna Rao, learned counsel for the appellant, has argued that it is not part of the duty of the accused to have given any such explanation. We are not inclined to agree with him. The object of S. 342, Criminal P. C., is to enable the accused to explain the circumstances in the prosecution evidence which are against him. If the accused, when confronted with the large body of evidence to the effect that he took the police and showed them the place where the notes were secreted, kept silent or denied the whole affair, it would not be unnatural to presume that he had either secreted them there himself or knew who had done so. It would also not be unreasonable to presume that if someone else to his knowledge had so secreted them it is not at all likely that the accused would be shielding him but would disclose the name of the latter.

5. In support of his argument Mr. Krishna Rao has relied upon cases reported in Gianchand v. Emperor, A. I. R. (20) 1933 Lah. 314: (34 Cr. L. J. 1256) and Hirday Ram v. Emperor, A. I. R. (33) 1946 ALL. 4 : (47 Cr. L. J. 437). In the first of those cases it was held that it was not enough that the offending article which was a revolver in that case was found in a place where the accused showed it. That case can, however, be distinguished as it was in evidence in that case that the accuseds brother was a police Officer living in that house prior to the search and therefore entitled to have a revolver. In Hirday Ram v. Emperor, a. i. R. (33) 1946 ALL. 4: (47 Cr. L. J. 437) the house where the accused pointed out the revolver was being resided in, not only by the accused but by other members of a joint Hindu family of which he was a junior member and naturally the Court refused to hold that he was in exclusive possession of the revolver. The present case is quite different on its facts. Under S. 114, Evidence Act the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in their relation to the fact of the particular case. We think in this case it would be perfectly reasonable to raise a presumption against the accused that he was in possession of the notes and had secreted them in the absence of any explanation by him as to how he came to be in the know of the place wherefrom they were recovered. In 17 Mys. L. J. 158 Reilly C. J. has observed that in considering what inference can properly be drawn from the possession by the accused of an incriminating article when no explanation is forthcoming from him as to how he came to be in possession of it, the Court was not bound by any rule of law and was merely considering a matter of reasonable inference and common sense ; and with this we fully agree.

6. The learned Sessions Judge has in his judgment referred to and relied on a case in Sher Mahomed v. Emperor, A. I. R. (32) 1945 Lah. 27: (46 Cr. L. J. 407). In that case the inference which a Court can properly draw from the circumstance that the accused leads the police to a place not his own or in his exclusive possession and from there produces some incriminating article has, if we may say so with respect been well discussed in detail It has been observed in that case : "The question whether when an accused person leads the police to a place not his own or in his exclusive possession and from there disinters some incriminating article the Court is entitled to infer that the accused himself must have put that article there in each case depends on a variety of facts. No absolute rule on the point can be laid down. The evidence in such a case being circumstantial must in order to sustain conviction, be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis than that of hie guilt. The hypotheses that are possible in such cases are (1) that the accused saw someone bury the article there ; (2) that someone told the accused that the article lay buried in that place; and (3) that the accused himself alone or with others buried the article there. The third hypothesis is undoubtedly the most natural and prominent in such a case and if the other two hypotheses are excluded or are not reasonably possible there is no reason why the Court should not hold the third hypothesis proved. In determining which of these three possible hypotheses is more probable and presents such degree of certainty that the Court like a reasonable man ought to act upon the assumption of its existence, the Court shall have to consider a variety of circumstances in each case, e. g., the situation of the place where the article was buried, the accuseds relationship with the person suspected, the topography of the place where the incriminating article was found and the explanation if any given by the accused of his knowledge of the place .... There is no rule of law that in such cases the Court is not justified in drawing the inference that the accused himself placed the incriminating article at the place pointed out by him. The true position is that it is for the Court in each case to draw any such inference as may be legitimate or reasonable in the circumstances. The question what inference from a relevant fact may be drawn as to the existence or otherwise of a fact in issue and with what degree of certainty is in each case a matter for the Judge to determine on the facts of that case and cannot be regulated by a generalization. The outstanding fact in such cases is that the discovery of the incriminating article from a place which is hidden from public view but is pointed put by the accused unmistakably shows that the accused was in some way privy to the felony. This is the most natural and prominent Inference which the Court will draw under S. 114, Evidence Act, and the fact being within the peculiar knowledge of the accused it is for him to show that ha acquired knowledge of the place of concealment in some other way. If, therefore, the prisoner makes no attempt to explain how he acquired knowledge of the place, leaving aside the question of proving the truth of the explanation if given there is nothing in law to prevent the Court from convicting him if after considering all the surrounding circumstances and bearing in mind the other possible hypotheses and the principle that it is better that ten guilty men should escape than one innocent man be punished the Court comes to the conclusion that the accused himself must have put the article or articles there it not only may but it is its duty to convict." In that case the accused was charged of an offence of murder along with others. The question was whether the mere fact that the accused took the police to a cave in the jungle and pointed it out as the place where the body of the deceased lay was sufficient for his conviction under a. 201. The mouth of the cave inside which the dead body was found was covered with stones. The accused denied having pointed out the cave in which the dead body was found. It was held that the accused must be found guilty as the only reasonable hypothesis left from those facts was that the accused himself or with the assistance of others put the body in the cave from where it was found and, therefore, was rightly convicted under s. 201.

7. It was further contended for the appellant that there was no proof in this case that the accused was intending to use the notes as genuine or that they may be used as genuine. If the intention of the accused was to destroy them he would have either torn them up or burnt them or otherwise disposed of them and not kept them fairly carefully in a pit specially dug for the purpose and covered with a stone. We have, therefore, no doubt in holding that it has been established in this case that the accused had in his possession these counterfeit currency notes intending to use the same as genuine or that they may be used as genuine within the meaning of S. 489-c, Penal Code. The assessors were also unanimously of the view that the accused was guilty of an offence under the section.

8. In the result we consider that the judgment of the learned Sessions Judge is correct. The sentence cannot be said to be severe for an offence involving the currency of the country. We, therefore, confirm the conviction and sentence and dismiss the appeal. The appellant-accused will surrender himself to the bail and undergo the unexpired portion of the sentence. Appeal dismissed. AIR (38) 1951 MYSORE 36 [C. N. 20.] "Madappa v. Basavalingappa" MYSORE HIGH COURT Coram : 2 BALAKRISHNAIYA AND MALLAPPA, JJ. ( Division Bench ) Madappa, Plaintiff, Appellant v. Basavalingappa, 2nd Defendant, Respondent. Second Appeal No. 35 of 1950-51, D/- 4 -1 -1951. (A) Civil P.C. (5 of 1908), S.11 - RES JUDICATA - Decision on facts - Res judicata. The decision on facts can operate as res judicata. A res judicata is a judicial opinion pronounced by a competent tribunal and is conclusive whether it is rendered upon a technical rule of law or of evidence. (Para 3) Anno. C. P. C., S. 11 N, 9, 10,11. (B) Civil P.C. (5 of 1908), S.11 - RES JUDICATA - Conflicting decisions. When there are two conflicting decisions operating as res judicata, the later decision is effective and should be deemed to have superseded the former decision whether there be an express adjudication or not. (Para 4) Anno. C. P. C., S. 11 N. 100. S. Venkatesamurthy - for Appellant. Judgement Balakrishnaiya, J. :- This appeal arises from a suit filed by the plaintiff, the appellant before us, for recovery of Rs. 1,800 alleged to be due on a registered hypothecation deed dated 18-7-1931 executed by defendant 1 in favour of defendant 3 who is the brother of the plaintiff. The suit hypothecation debt is averred to have been allotted to the share of the plaintiff in the family partition. Defendant 2 is the only contesting defendant who denied all the plaint averments except the fact that he is in possession of the property. He pleaded that the schedule property is the self-acquisition of the father of defendant 1 who sold the same to him under a registered deed dated 10-11-1937 and that in a suit, O. S. No. 724 of 42-43, filed by the plaintiff, it was decided that the suit property was the self-acquisition of defendant 1s father and defendant 1 had no right to alienate it and that decision was confirmed in S. A. No. 481 of 45-46 by this Court. The said decision operates as res judicata for this suit.

2. The plaintiff while denying the allegations stated that there was an earlier suit, O. S. No. 354 of 41-42, between the parties the decision in which barred the defence set up by defendant 2. Amongst the issues raised in O. S. No. 724 of 42-43, issue 6 is to the following effect: "Has defendant 1 any right to hypothecate the suit schedule property ?" The said issue was answered in the negative by holding that the suit schedule property was the self-acquired property of the father of defendant 1 and defendant 1 had no manner of right to hypothecate the same. Issue 2 and 3 in the present suit cover the same ground. Issue 4 is "Whether the suit is barred by res judicata The trial Court dismissed the suit holding that the previous decision operates as res judicata which is confirmed in the first appeal.

3. The short point urged by Sri H. Venkatesamurthy, the learned counsel for the appellant, was that the decisions of the Courts below were erroneous as the judgment in O. S. No. 724 of 42-43 was not final. It was argued that the plea raised by the plaintiff in that suit to the effect that the decision in O. S. No. 354 of 41-42 operated as res judicata against defendant 2 was left open without any finding and the judgment was based on facts. On a perusal of the exhibits and the facts involved in the case it is found that the property in the suit was held to be the joint family properly in o. S. No. 354 of 41-42 and as the self-acquired property of the father of defendant 1 in a latter suit, O. S. No. 724 of 42-43. There are thus conflict of decisions about the nature of the property in the two suits. The contention that the decision on facts does not operate as res judicata is untenable. This Court has held in 6 Mys. L. J. 133 at p. 151 that a res judicata is a judicial opinion pronounced by a competent tribunal and is conclusive whether it is rendered upon a technical rule of law or of evidence. There are two decrees operating as res judicata, one against the plaintiff and the other against the defendant; the earlier adjudication was pleaded as a bar in the later suit, but was not specifically decided; but the effect of the later decision does supersede the earlier and the question cannot be reopened for reconsideration on the mere fact that no finding was recorded. This aspect was considered by Sadasiva Aiyar J. in Rukmani Ammal v. Narasimba, A. I. r. (8) 1921 Mad. 612 : (63 I. C. 730) who was of opinion that "the later adjudication should be taken as superseding the earlier whether or not the earlier adjudication was pleaded as a bar to the trial of the suit in which the later adjudication was made." In Amarsingh v. Gobind Ram, A. I. R. (14) 1927 ALL. 717: (49 ALL. 606) the Allahabad High Court held that "It is the later decree that must prevail over the former, because the later shuts out consideration of the former." The Calcutta High Court is also of the opinion that when there are two conflicting decrees, the last should prevail on the ground that in the eye of law it is binding between the parties and the previous decree should be taken as pleaded in the later suit and not given effect to, or must henceforth be regarded as dead. (Vide Rajani Kumar v. Ajmaddin, a. i. r. (16) 1929 Cal. 163 : (114 I. C. 129) ).

4. In the light of the authorities, we have no hesitation to hold that when there are two conflicting decisions operating as res judicata, the later decision is effective and should be deemed to have superseded the former decision whether there be an express adjudication or not, There is thus no substance in the contention as to call for interference with the decisions of the Courts below. This appeal is, therefore, dismissed without notice. Appeal dismissed. AIR (38) 1951 MYSORE 37 [C. N. 21.] "Kotrappa v. A. S.T. O." MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) Thimmina Katte Kotrappa, Accused, Petitioner v. Assistant Sales Tax Officer, Complainant, Respondent. Criminal Revn. Petn. No. 230 of 1950-51, D/- 6 -12 -1950. (A) Mysore Sales Tax Act (46 of 1948), S.20 - SALES TAX - Sales Tax - Burden of proof. Where in a prosecution under S. 20, for default in payment of sales tax within the time allowed, the prosecution has affirmed that the assessee has been assessed on a certain date and that the demand notice has been served on him and the fact of service has been admitted by the accused, these facts establish prima facie that there was an assessment and demand has been made which is not complied with, in which case the burden that there was no assessment or demand has not been made otherwise shifts on to the accused. (Para 2) (B) WORDS AND PHRASES - SALES TAX - Words and Phrases - Expressions "due" and "assessed" do not connote the same meaning - Sales Tax. Mysore Sales Tax Act (46 of 1948), S.20. (Para 3) (C) Mysore Sales Tax Act (46 of 1948), S.22 - SALES TAX - Sales Tax - Assessment of tax - Validity if can be questioned in Criminal Courts. In prosecutions for default in payment of sales tax which are merely meant to penalise the default and enforce the payment of the tax assessed, the validity of the tax assessed cannot be questioned by Criminal Courts. (Para 3) K.R. Gopivallabha Iyengar - for Petitioner. Judgement Order. - The petitioner is a firm alleged to be doing business at Davanagore which was prosecuted by the Assistant Sales Tax Officer under S. 20, Mysore Sales Tax Act of 1948 for default in payment of sales tax within the time allowed for which it was assessed. In answer to the charge, the petitioner pleaded that he had been served with a demand notice for Rs. 639-8 but stated that he did not transact any business at all, implying thereby that he was not liable to assessment. The learned Magistrate repelled the objection and sentenced him to pay a fine of Rs. 100 and directed that the amount of Rs. 639-8, the tax levied to be recovered as if it were a fine. This petition is directed against that judgment.

2. Sri Gopivallabha Iyengar, the learned counsel for the petitioner, raised two contentions before this Court viz., that the learned Magistrate was incorrect when he construed the statement of the accused as a plea of guilty; and that the petitioner was not afforded an opportunity to substantiate his contention that he was not legally assessed; and he relied upon two decisions reported in In re Narasingamuthu, A. I. R. (36) 1949 Mad. 116 : (50 Cr. L. J. 118), and the other at p. 418 of the same volume (In re Appa Rao, A.I.R. (36) 1949 Mad. 418: 50 Cr. L.J. 547). The first of these decisions deals with the burden of liability and holds that it is sufficient if a prima facie proof of liability of the assesses has been furnished by the prosecution to shift the burden on to the assessee to affirmatively prove that the offence had not been committed. The prosecution has affirmed that the assesses petitioner has been assessed on 27-2-1950 and served the demand notice on him. The fact of service has been admitted by the accused. These facts are sufficient to establish prima facie that there was an assessment and demand has been made which is not complied with, in which case the burden that there was no assessment or demand has not been made otherwise shifts on to the accused. The case under consideration does not help the petitioner much.

3. The other point raised implies a claim on behalf of the petitioner that in view of his statement that he did not transact any business during the years to which the assessment pertained, the Court was bound to enquire into the legality of the assessment, and relies upon the case reported in In re Appa Rao, A. I. R. (36) 1949 Mad. 418 : (50 Cr. l. J. 517) that in similar circumstances under S. 15 (b) of the old Act as it stood before the amendment, the Court held that it was open to the accused to prove that the tax was not legally due. The case is obviously not applicable in view of the fact that the expression required to be interpreted in S. 20 (b) of the Mysore Act "fails to pay any tax assessed on him." This expression is similar to the amended expression contained in the amended Act of Madras. The expression "due" in the old Act is interpreted to mean "lawfully due". Inferentially it means that the interpretation of the word "due" stands on a different footing than the wordassessed". I am unable to agree with contention of the learned counsel who maintains that the expressions "due" and "assessed" connote the same meaning. I am hers concerned with the interpretation of the expression "tax assessed" and not the "tax due". If the scheme of the Mysore Sales Tax Act is examined, it is clear that provision is made for appeals, revisions and references, and above all for reductions and exemptions. Presumably the assessee has not resorted to any of the remedies provided nor is the invalidity of the tax tested either in appeal or revision. Consequently the assessment has become final. Section 13 provides for the recovery of tax assessed under the Mysore, Act and S. 22 prohibits the civil Courts from questioning by appeal or application by way of revision the assessment made or an order passed by the assessing authority. If the provisions contained in the Act or the rules made there under, and the method and the manner in which the orders are made, are precluded from the cognisance by civil Courts which evidently constitute proper forum to test the legality or otherwise of the orders a fortiori it follows that in prosecutions which are merely meant to penalise the default and enforce the payment of the tax assessed, the validity of the tax assessed, cannot be questioned by Criminal Courts. In this view, the conviction must be upheld. This petition fails and is dismissed. Petition dismissed. AIR (38) 1951 MYSORE 38 [C. N. 22.] "Channabasavegowda v. Rangegowda" MYSORE HIGH COURT FULL BENCH Coram : 3 VENKATA RAMAIYA, BALAKRISHNAIYA AND MALLAPPA, JJ. ( Full Bench ) Channabasavegowda and others, Appellants v. Rangegowda and others, Respondents. Second Appeal No. 77 of 1947-48, D/- 30 -11 -1950., decided by Full Bench in difference of opinion between Balakrishnaiya and Puttaraj Urs JJ., D/- 21 -9 -1949. (A) Civil P.C. (5 of 1908), S.100 - APPEAL - CONCURRENT FINDINGS - Concurrent findings of fact - Interference. Normally it is not the practice in second appeal to disturb a concurrent decision based on findings of fact. But where the conclusions reached by the Courts below are vitiated by a wrong approach to the case and influenced by the evidence being appreciated from a wrong angle interference is not only justified but also necessary. (Para 2) Anno. Civil P. C., S. 100, N. 54. (B) HINDU LAW - CIVIL PROCEDURE - Hindu law - Joint family property - Alienation - Suit. - Representation. Civil P.C. (5 of 1908), O.1, R.10. a suit filed against the manager qua manager of a joint Hindu family in a representative character binds all the members of the family even though they may not actually be made partes to the proceedings when the debt is one due by the whole family. (Para 3) Anno. Civil P. C., O. 1, R. 10, N. 18. (C) Mysore Land Revenue Code (4 of 1888), S.54 - LAND REVENUE - HINDU LAW - Sale of joint family property for arrears of revenue - Effect - Hindu law - Alienation - Legal necessity. The sale for arrears of revenue implies forfeiture of all prior claims and encumbrances and the purchaser gets a free and absolute title. The sale or transfer of the family properties for payment of claims due to Government on account of land revenue and taxes is undoubtedly recognised in Hindu law as a justifiable necessity binding on the entire family. The presumption under S. 54 is that the entire property is sold. The mere fact that subsequent to and ill spite of the revenue sale the purchaser secured sale deeds from the previous owners does not militate against this and if at all, can only suggest that it was meant to prevent attempts being made by the defaulters to get the sale cancelled. The sale for recovery of land revenue can be questioned in the civil Court only on the ground of fraud only. (Paras 3, 15) (D) Evidence Act (1 of 1872), S.101, S.102, S.103 - EVIDENCE - Alienation of joint family property - Burden of proof. While it is true that the burden of proof to establish the validity of an alienation of joint family property by father in a subsequent suit filed by or against the sons lies on the transferee, the rule should not be extended too far to enable the transferors themselves to nullify the alienation through the agency of their sons. (Para 4) Anno. Evidence Act, Ss. 101 to 103, N. 38. (E) HINDU LAW - CIVIL PROCEDURE - Hindu law - Joint family property - Alienation - Suit - Representation. Civil P.C. (5 of 1908), O.1, R.10. Where besides the manager, the other adult members are made defendants to the mortgage suit, it can be said that each adult member effectively represents his branch of the family, consisting of minor children in existence on the date of the suit. (Para 14) Anno. Civil P. C., o. 1, R. 10, N. 18. (F) HINDU LAW - Hindu law - Joint family property - Alienation - Legal necessity. If all the adult co-parceners of a joint family incur a debt or give consent to or acknowledge a debt to be one for purposes binding on the family, the said debt is presumed to be one for legal necessity and such consent and consequent presumption are binding as much on themselves as on their progeny. (Para 17) (G) Evidence Act (1 of 1872), S.101, S.102, S.103 - EVIDENCE - Age - Proof of. It is for the plaintiffs to establish the correctness of the fact of age averred by them in the plaint. (Para 19) Anno. Evidence Act, Ss. 101 to 103, n. 1, 2, 6, 8. (H) HINDU LAW - CIVIL PROCEDURE - Hindu law - Joint family property - Alienation - Suit - Representation. Civil P.C. (5 of 1908), O.1, R.10. (Pet Mallappa J.) - It is only in case the debt is binding on all the members of a joint family that a suit filed against the manager as such is binding on the other members of the family. It is only in such a case that persons not actually parties to the suit cannot be allowed to reopen the matter and claim to have a right to discharge such debts in spite of the manager who represented them having failed to discharge the debt and allowed a decree to be passed. On the other hand, it is equally clear that even if a suit is filed for recovery of the joint family debt, the right, title and interest of the person who is a party to it is alone liable if the suit is not filed against him as manager of joint family. (Para 22)

V. Krishnamurthy - for Appellants; A.R. Somanatha Iyer and M.K. Srinivasa Iyengar - for Respondents. Judgement Venkataramaiya, J. :- This appeal has been referred to the Full Bench for disposal as the Division Bench by which it was heard was of divided opinion as regards the decision in the case. The suit from which the appeal arises is of a familiar kind in which the sons seek shares in certain properties alleging that these are of a joint family and the alienations thereof by their fathers are ineffective so far as they are concerned. As can be seen from the following genealogical tree (See genealogical tree on page 40.) the plaintiffs are the grand-children of one Kavalu Thimme Gowda by different sons and include grandsons as well as grand daughters. All of them together claim three-fourths share in 16 items of property specified in the plaint alleging that these belong to a joint family consisting of themselves and defendants 1 to 3. It is admitted that none of the properties is in the possession of any member of the family and are all in occupation of the other defendants as a result of certain transactions entered into by defendants 1 to 3 and the father of plaintiffs 7 to 9 which in particular are a mortgage of items 1 to 9 by defendant 1 on 9-7-1924 in favour of defendant 4 and sale of other items by defendants 1 to 3 under deeds dated 16-11-1935. The plaintiffs impeach the mortgage as well as the sales as invalid and not binding upon them. Defendants 1 to 3 were ex parte. The substance of the defence of the other defendants is that there was legal necessity for the alienations and that the plaintiffs lost their right in their properties by virtue of the proceedings on the foot of the mortgage against defendants 1 to 3 in a representative character and also by reason of the revenue sale of items 1 to 11 on 18-7-1935. They also disputed the correctness of the share claimed by the plaintiffs on the ground that many of them were not born at all on the dates of the alienations and objected to the suit as being multifarious as defendants 1 to 3 had effected a partition of the family properties and the plaintiffs could not jointly seek a share pretending to be undivided. The learned Munsiff decreed the suit as prayed for and his decision was confirmed on appeal. Defendants 7, 8, 10 and 11 have preferred the second appeal.

2. Normally it is not the practice in second appeal to disturb a concurrent decision based on findings of fact. But the appellate judgment in this case reads to be only a brief summary of what the learned Munsiff has stated about the matters involved for consideration and does not show that there has been any independent examination of the points at issue. Farther, the findings of the learned Munsiff seem to have been coloured with an erroneous view of the nature and degree of proof reasonably expected of an alienee to support his title. He has overlooked the significance and the effect of the documents which purport to sever the joint status of the family and instead of requiring the plaintiffs who though apparently bound profess to be unaffected by the recitals to furnish reasons, called upon the defendants to adduce independent proof in support of them. It, therefore,seems that this is a case in which the conclusions reached by the Courts below are vitiated by a wrong approach to the case and influenced by the evidence being appreciated from a wrong angle and as such interference is not only justified but also necessary.

3. That the properties in question belonged to the joint family cannot be doubted. Nor is it denied that up to the year 1932 the parties constituted a joint Hindu family. The claim as regards items 1 to 9 depends on the effect of the mortgage by defendant 1 on 9-7-1924 and the proceedings thereunder. On that date defendant 1 was, even according to the plaintiffs witnesses, the manager of the family. He borrowed Rs. 500/- from defendant 4 for purposes of cultivation of the dry lands and for domestic expenses as recited in Ex. XII, the deed of mortgage. For recovery of the mortgage debt defendant 4 sued not merely defendant 1 but also his brothers defendants 2 and 3 and another Nanjappa Gowda who is now dead alleging in the plaint, Ex. X, that defendant 1 is the manager of the family and that he borrowed that amount for family benefit. None of the defendants contested the suit or discharged the debt with the result that there was a decree which was followed up by a sale at which defendant 5 happened to be the purchaser. Exhibit XIV, the sale certificate, shows that the properties in entirety were sold in public auction for satisfaction of the decree. The contention of the defendants is that having regard to the character of the suit and the subject-matter of the sale, defendant 5 became the full owner of items 1 to 9 and that it is not open to the plaintiffs to question it. There cannot be any doubt that a suit filed against the manager qua manager of a joint Hindu family in a representative character binds all the members of the family even though they may not actually be made parties to the proceedings when "the debt was one due by the whole family". (See 6 Mys. L. J. 317.) In Daulat Ram v. Mehrchand, 15 Cal. 70: (14 I. A. 187 P. C.) their Lordships of the Privy Council pointed out that where the mortgage extends to the entire interest of the family and not confined to the share of any particular member and where in the plaint the mortgagee claims not only to recover the amount of the mortgage from the individual mortgagor but asks that the "debt owed by the family as joint members of an ancestral trading firm" may be satisfied out of the mortgaged property, in short where these conditions are fulfilled, although the manager alone is impleaded, he effectively represents all the members who therefore become bound by the decree. (See also Sheo Shankar Ram v. Mt. Jaddo Kunwar, 36 ALL. 383: (A. I. R. (1) 1914 P. C. 136); Shankara Narayana v. Rajamani, 47 Mad. 462: (A. I. R. (11) 1924 Mad. 550) and Unnamalai Ammal v. Abboychetty, 50 M. L. J. 172: (92 I. C. 524). Having regard to the definite statements contained in the plaint and the fact that besides the mortgagor all the then adult members were made parties to the suit and the claim for recovery of the debt due from joint family was made from the entire properties, I think the proceedings were meant to bind the family as a whole. Irrespective of the question whether the manager acted beyond the scope of his authority or in excess of his powers, the claim with respect to items 1 to 11 is manifestly untenable on account of the revenue sale by which the purchaser acquired an indefeasible title. The learned Munsiff was, in my opinion, in error in assuming that what was conveyed in the revenue sale was not the entire property but only the right, title and interest of defendants 1 to 3 as there are no materials in support of it and the presumption under S. 54, Land Revenue Code is that the entire property is sold. The mere fact that subsequent to and in spite of the revenue sale the purchaser secured sale deeds from the previous owners, does not militate against these and if at all, can only suggest that it was meant to prevent attempts being made by the defaulters to get the sale cancelled. The sale for recovery of land revenue can be questioned in the civil Court only on the ground of fraud and the party who impugns it has to furnish particulars of the fraud. Absolutely no such particulars are alleged in the plaint or disclosed in the evidence. Further the suit as regards this appears to be belated as it was filed more than six years after the purchaser got possession under the Revenue Sale.

4. As regards the remaining items the sale deeds, Exs. I-V, recite that the debts contracted by defendant 1 for liabilities incurred by him were for the benefit of the family and that at a family settlement each of the brothers under took to discharge a portion of these from his own share of the properties. P. W. 1 the patel is the scribe of these documents. Though apparently interested in the plaintiffs be states that defendant 1 might have instructed him as to what properties had to be included in each of the documents as having fallen to the share of the executants. D. Ws. 3 and 4 have also spoken to the partition amongst the brothers. Defendants 1 to 3 though made parties to the suit and were in a position to throw light on the question of partition, are not examined in the case and it looks as if it is they who have engineered this litigation to defeat or impair rights of the alienees. While it is true that the burden of proof to establish the validity of an alienation in a subsequent suit filed by or against the sons lies on the transferee, the rule should not be extended too far to enable the transferors themselves to nullify the alienation through the agency of their sons. There is clear reference in Exs. II to V that the debts were divided, properties were partitioned and specific portions were held by particular members of the family. The inference that the division was real and not make-believe gains strength from a comparison of these documents with Ex. I which alone refers to the properties not divided. The probability is, if parties wanted to practice dissimulation they would have followed a uniform pattern and not made a difference between one property and another. I am therefore inclined to hold that there is more in favour of the brothers having effected a division in 1932 than in their continuing undivided. If there was division amongst brothers, as I think there was, the plaintiffs cannot profess to be members of a joint family as the severance of status amongst the brothers operates as a saverance amongst the branches as well. There is not even the faintest suggestion that defendants 1 to 3, who are fairly old, experienced in worldy affairs and not addicted to any evil habits, were tricked into executing sale-deeds or that they did it with any mala fide intent. The documents exhibited in the case show that the members of the family had incurred debts prior to the sales and if at a family settlement the liability for discharging these debts was distributed by common agreement, it cannot be said that the arrangement voluntarily entered into was imprudent or improper. Moreover, the case of the plaintiff is not that the partition was unjust or unfair but that it was unreal-a plea which cannot be sustained. Defendants 1 to 3 could have explained the reasons for the recitals in Exs II to V suggesting partition and the apportionment of debts. They were wantonly kept back perhaps because their examination would help the other defendants. In any case these documents clearly signify a severance in status amongst the brothers. The plaintiffs who are their children cannot therefore claim to be joint and seek a share in all the properties without getting the partition thereof cancelled. It seems to me that the suit in its present form clubbing together several and different causes of action by seperated members of the family against several defendants ignoring the partition is misconceived. I would, therefore, allow the appeal and dismiss the suit directing the parties to bear their own costs throughout.

5. Balakrishnaiya, J. :- The case was originally heard by a Division Bench of which i was a party; and on divergence of opinion it was referred by me to the Full Bench, and my opinion has remained the same.

6. This Second Appeal by defendants 7, 8, 10 and 11 is directed against the appellate decree confirming the decision of the trial Court. Briefly stated the facts leading to the case are as under:-The plaintiffs in the suit are the grand-children of one Kavalu Thimme Gowda by his sons, defendants 1 to 3, and one other Nanje Gowda, since deceased. The present suit is for partition of the plaint schedule properties and for possession of their share alleging that the alienations made by their respective fathers, defendants 1 to 3, and the deceased Nanje Gowda are not for legal necessity or for family benefit and, therefore, not binding on their three-fourths share in the said properties. The fathers of the plaintiffs alive are impleaded as defendants 1 to 3, Defendants 4 to 11 the alienees are contesting the suit. Their defence may be summarised thus. The alienations were for family necessity and the plaintiffs who were not born at the time of the alienations cannot challenge the same; the ages of the plaintiffs as given in the plaint are incorrect and even otherwise, the plaintiffs were all duly represented in the previous litigations and the transfers that took place prior to the present suit, and therefore their interests, if any, are bound by the alienations effected by their parents.

7. Defendant 1 is the eldest member of the joint family of himself and his brothers, defendants 2 and 3, and the deceased Nanje Gowda; he borrowed Rs. 500 on 9-7-1924 from defendant 4 (Sri Sringeri Mutt) mortgaging items 1 to 9 of the plaint schedule properties. Defendant 4 filed a suit on the foot of the said mortgage in O. S. No. 615 of 28-29 in the Court of the Munsiff of Chickamagalur, alleging that defendant 1 as the manager or Karta of the joint family borrowed the amount for family necessity and prayed for a decree against the mortgaged family properties and defendant 1 personally. Defendants 2 and 3 and the deceased Nanje Gowda who were all the then adult members of the family were impleaded in the said suit which was decreed as prayed for. In execution of the said decree, the mortgaged properties, items 1 to 9, were sold and purchased by defendant 5 in the court auction and the purchaser was put in possession of the properties by the Court in Misc. case No. 262 of 34-35. These form one stage of the proceedings which the plaintiffs claim as not binding on them or their interest in the plaint schedule properties,

8. Defendants 1 to 3 and Nanje Gowda had allowed the land revenue payable by them to the Government to fall into arrears and the properties were brought to sale by the revenue authorities. Defendant 6 who had acquired rights in some of the properties purchased in the revenue auction items 3, 3, 5 to 7 and 9 to 11. These form the second stage of the proceedings which the plaintiffs assert as not binding on their interest.

9. The third stage of proceedings brings us to 1932, the date of Exs. i to v. By this time the financial position of the family appears to have absolutely deteriorated. On 7-12-1926 defendant 1 borrowed Rs. 1000 on a pronote from defendant 5 who filed a suit in O. S. No. 34 of 28-29 in the same Munsiffs Court and obtained a decree. Again on 26-3-1927 defendant 1 borrowed Rs. 1000 under Ex. vi from defendant 5 for alleged family necessity and mortgaged the schedule items 10 to 12 and 15. There was also another decree obtained against defendant 1 by defendant 6 who in execution of the said decree had purchased defendant 1s share in some of the schedule properties. In the meantime, the revenue payable to Government on these properties was in arrears owing to the default in payment by defendants 1 to 3 and the deceased Nanje Gowda and defendant 6 who presumably had acquired rights in the properties paid the arrears and filed a suit for the recovery of Rs. 570 the amount paid against all the adult members of the family including Nanje Gowda who was then alive and obtained a decree.

10. According to the recitals in the documents exhibited defendants 1 to 3 and their brother Nanje Gowda, since deceased, appear to have in pursuance of a family settlement divided amongst themselves the assets and liabilities of the family and subsequently executed documents in favour of defendant 6 in respect of their liability securing their respective shares in the properties. Exhibit i is the document executed on 15-1-1932 by all the brothers for Rs. 1200 securing the family properties in their common enjoyment. On the same date, the four brothers individually executed Exs. ii to v for Rs. 850 each securing their individual shares for their respective share of liability. Later on 16-11-1935 defendants 1 to 3 executed a sale-deed, Ex. viii, Exs. ix and xvi, sale-deeds, were executed by defendants 1 and 2 respectively, of the properties covered under Exs. II to V in favour of defendant 6 and the properties covered by those sale-deeds are subsequently sold to defendants 7, 8 and 9. These form the last stage of the transactions impeached by the plaintiffs.

11. Both the Courts below have failed to appreciate the legal aspects involved from a proper perspective. The decisions, though concurrent, cannot be supported and warrant interference.

12. The crucial point for consideration is whether the several alienations are binding on the plaintiffs. The suit properties are undoubtedly the ancestral properties of the plaintiffs and defendants 1 to 3 and the deceased Nanje Gowda. Defendant 1 who is the eldest member of the four brothers was in law and in fact the manager of the joint family in the year 1924 and continued as such till about 1932 the date of Exs. i to v. The first alienation by way of mortgage was in respect of items 1 to 9 made by defendant 1 in favour of Sri Sringeri Mutt, defendant 4 in the case, in the year 1924. Exhibit x is the copy of the plaint filed by defendant 4 against all the four brothers of whom defendant 1 is styled as manager. Exhibit xi is the copy of the decree. Exhibits xiv and xv are the sale certificate and the delivery receipt respectively. It was alleged in the said suit that the debt was incurred for necessity binding on the family; in addition to the executant, defendant 1 though expressly sued as manager his three brothers who were the remaining adult members of the family were impleaded ex abudanti cautela; the decree which was passed as prayed for though ex parte concluded altogether the question of family necessity. Even otherwise, it is a well recognised principle of law that the manager of the joint Hindu family is its accredited representative; he has a right to represent the family in suits filed by him on behalf of the family; so also, the manager as representing the joint family may be proceeded against in suit concerning family properties so as to bind the entire family property including the shares of those members who are not eo nomine made parties to the suit.

13. The theory of representation of the members of the family by its manager in suits concerning the family property has long been settled in this Court by a series of decisions. In 17 Mys. C. C. R. 7, it has been laid down that it is competent to a father to represent his sons in a suit brought against him for the enforcement of a mortgage and when the properties have been sold in execution of the decree, the sons could not maintain a suit for redemption of such properties on the ground that they were not made parties to the suit. Again, in another suit where the plaintiff, a mortgagee, had purchased the mortgaged property and sued for possession against the sons of the mortgagor one of whom was an infant at the time of the institution of the suit and the other was born after the decree-both of them having contended that their rights to redeem were not extinguished -a Full Bench of this Court in 23 Mys. C. C. R. 250, in which Sir Leslie Miller C. J., who delivered the opinion, held that neither of them was entitled to an opportunity to redeem the plaintiffs mortgage as the after, born son only acquired interest after the decree and was consequently bound by it, and the infant son in the absence of fraud, collusion, or negligence on the part of the father was substantially represented by him in the mortgage suit. In 6 Mys. L. J. 317 where in execution of a ex parte decree obtained against the mortgagor in respect of the ancestral property of the family, the property was sold, the brothers of the judgment-debtor filed a suit for a declaration of title to their share on the ground that they were not parties to the previous suit, it was held that the mere fact; that the decree being ex parte one is not of material importance, unless there is proof that the manager was negligent or guilty of fraudulent conduct and as the decree was against the whole property of the family the brothers of the judgment-debtor were properly and effectively represented by the managing member and that the decree was binding even though the other members were not impleaded in the suit. The principle laid down in the above cases was confirmed in the latest decision of this Court reported in 4 D. L. R. (Mys.) 91. In the Madras High Court following the decision of the Judicial Committee, his Lordship Venkataramana Rao J., in a separate but concurring judgment of the Full Bench reported in Venkata Narayana Rao v. Venkata Somaraju, A. I. R. (24) 1937 Mad. 610 : (I. L. T. (1937) Mad. 880 F. B.) observes that "where a decree has been obtained against a manager as representative of the joint Hindu family liabilities, it will be binding on his undivided brothers-and the fact that they are not parties eo nomine will not any the less render them parties to the suit." Again it is held in Papamma v. Narayana, a. I. R. (35) 1948 Mad. 54 : (1947-1 M. L. J. 274) that "a decree in a suit against the manager of a Hindu family binds the others as res judicata. Merely because other members were not parties to the suit by name it does not follow that they are not bound by the decree in the suit." " In a later case (Vide Abbakka Shedthi v. Palli Vittai Hegda, A. I. R. (35) 1948 Mad. 129: (1947-2 M. L. J. 177), the same High Court has concluded that a decree passed against the manager, when it relates to the family property, cannot be set aside on the ground that the manager remained ex parte or that he did not put forward good available defence or even though he be grossly negligent. Apart from the sons that were in existence, a decree against a father in a suit in respect of a joint Hindu family property is held to be binding on a child in the womb who is deemed to have been in existence and represented by his father (Vide Balaraj v. Pichai Muthu Chettiar, A. I. R. (35) 1948 Mad. 136 : (1947-2 M. L. J. 161).

14. In the present case regarding the first stage of transaction all the other adult coparceners in addition to the manager of the family were added as parties to the earlier mortgage suit referred to above. It was no doubt unnecessary to have done so, though it might have been presumably done by way of abundant caution which by no means affects the result. Further more, it could be said that each of the adult co-parceners effectively represented his branch of the family consisting of minor children that were in existence on that date. This view is supported by the decision reported in Abhey Singh v. Himta, A. I. R. (10) 1923 ALL. 234 : (65 I. C. 653). In this state of law both in Mysore and elsewhere, the decree and the subsequent proceedings against the member? collectively or against the manager as their representative is binding and cannot be reopened by the minor members.

15. The second series of transactions impeached by the plaintiffs covers schedule items 10 and 11. Items 2, 3, 5, 6, 7, 9, 10 and 11 were sold by the revenue authorities for arrears of revenue and purchased by defendant 5 as per Ex. XXIV. The sale for arrears of revenue implies forfeiture of all prior claims and encumbrances and the purchaser gets a free and absolute title. The sale is not otherwise impeached. The sale or transfer of the family properties for payment of claims due to Government on account of land revenue and taxes is undoubtedly recognised in Hindu Law as a justifiable necessity binding on the entire family and so it is not at all open to the plaintiffs at this stage to lay claim to these properties. Thus, it is seen that in respect of plaint schedule items 1 to 9 purchased in the court-sale in execution of a decree against the manager and all the adult co-parceners of the family and items 10 and 11 purchased in the revenue sale, legal necessity is proved beyond doubt and the plaintiffs must inevitably be non-suited in so far as these items are concerned.

16. By the year 1932 defendant 1 had incurred other debts on pronotes and under a mortgage which covered items 12 to 16 of the schedule properties in addition to the other items about which conclusions have already been noted. Defendants 5 and 6 had not only obtained decrees but also sued out executions of their decrees. It was in these circumstances that the four brothers who were all the then adult coparceners of the joint family effected a settlement in respect of the assets and liabilities of the family. They took stock of the properties and liabilities of the family and apportioned the same amongst themselves. The recitals in Exs. I to V are a clear indication of the family partition effected amongst the four brothers. The brothers - defendants 2 and 3, and Nanje Gowda since deceased have not only admitted and acknowledged in unmistakable terms the debts incurred by defendant 1, the family manager, as debts incurred for family necessity but also undertook the individual responsibility of discharging the portion of the debt fallen to their respective share. Exhibit I which is the mortgage deed executed by all the four brothers in favour of defendant 6, in respect of a portion of the debt runs thus: "In pursuance of the settlement of a panchayathi to which you and we are parties and which was held in respect of the discharge of the debts incurred for our joint family." In Ex. III the mortgage deed executed by defendant 2 in favour of defendant 6, it is mentioned that: "In pursuance of a panchayathi .... a debt of Rs. 850 had fallen to my one-fourth share out of the amount relating to the decree obtained by you against my brother Giri Gowda (defendant 1) which debt was incurred by him for our joint family." Similar recitals are found in Exs. IV and V executed by defendant 3 and the deceased Nanje Gowda in favour of defendant 6. These five documents not only cover the other properties of the plaint schedule, but also the entire debt due by the family at that stage. The four brothers who were the adult co-parceners of the plaintiffs joint family have expressly consented to the debts incurred by defendant 1 and effected a division thereof. In the circumstances each member is deemed to have represented his branch of the family at the said partition.

17. Whether the alienation of the family property by a father or the manager of a joint Hindu family raised a presumption of necessity so as to bind other members had been the subject-matter of a number of decisions in this Court. In 7 Mys C. C. R. 15, it is laid down, that in the absence of any circumstance to justify a contrary view the presumption where a father alienates the property during the minority of his sons is that the alienations was made for the sake of the family. In 21 Mys. c. C. R. 145, it was held that where all the adult male members in the family joined in contracting a debt, there arises a presumption that the debt is contracted for the benefit or for the necessities of the family. The same proposition is reiterated in 28 Mys. c. C. R. 10, where Plumer J. observes, following the cases cited above that: "We might no doubt readily infer from the circumstances and from the fact that the mortgage was executed by only two adult male members of the family, that the transaction was a family business, for the benefit of the family and intended to bind the family property." In 50 Mys. H. c. R. 118, the learned Judges observe that: "Where a mortgage deed more than 40 years old contained recitals as to the necessity for its execution and all the adult members of the family had joined in its execution a presumption that it was for family necessity may be raised." Considering the proposition that where all the adult male members of a family joined in the execution or consented to the alienation or otherwise ratified the debt it was affirmed in the latest decision that a presumption of necessity may be raised (Vide 4 D. L. R. Mys. 91). It therefore follows that in cases of transfer or alienation where family necessity is either implied or otherwise expressly proved want of necessity for such transfer or alienation cannot again be challenged. The following cases relied upon by the learned Advocate for the respondents do not help him. In 15 Mys. l. J. 193, Reilly, C. J. in discussing 7 Mys. c. c. R. 15 and 21 Mys. C. C. r. 145 observes that : "The learned Judges who decided those cases were certainly entitled to raise a presumption in those cases if they thought appropriate in the circumstances of the cases," but he only doubted whether that could be a general ruling applicable to all cases. He further explained his own opinion in 18 Mys. L. J. 276. wherein he observed that: "No doubt it might well be more proper to raise such a presumption in a case, where more than one member of the joint family joined in incurring a debt than in regard to a debt incurred by the manager alone," and where the only adult male member of the joint family incurred a debt, the binding nature of the debt may require further proof, which necessitates comparatively little other evidence to satisfy the Court. In the case under consideration, unlike the only adult member or the manager alone all the adult male members confirmed and ratified the acts of the manager in having raised the loans accepted them to be the debts binding on the family and undertook to discharge their respective share of liability. The circumstances amply justify the raising of such presumption as against the plaintiffs who were represented by their parents; the plaintiffs have failed to rebut the said presumption; on the other hand, there is sufficient proof by the creditors that at the time the loans were advanced, they enquired about the needs of the family and were satisfied that the necessity binding on the family did exist. It is settled law of this Court that if all the adult co-parceners of a joint family incur a debt or give consent to or acknowledge a debt to be one for purposes binding on the family, the said debt is presumed to be one for legal necessity and such consent and consequent presumption are binding as much on themselves as on their progeny.

18. It was argued by the learned counsel for the respondents that the burden of proving legal necessity was heavily on the alienees, which burden according to their contention was not sufficiently discharged. I do not propose to dilate at length on this aspect, in view of the above conclusions; but it is necessary to note that this is a suit of the usual nature by the minor members of a Hindu family to avoid alienations effected by their fathers. The parents of the plaintiffs who are alive have arrayed themselves as defendants 1 to 3 but have not stepped into the witness box to prove the nature of the debts or to show for what purposes they were incurred. They were certainly in a better position to explain the circumstances but have deliberately chosen to be ex parte and remain behind the screen. The remarks of Sir John Wallis in Jagannath v. Shri Nath, A. I. R. (21) 1934 P. C. 55: (56 ALL. 123) that : "They have allowed their children, who are all minors but one, to figure as plaintiffs and have themselves been impleaded as defendants 4 and 5, They have not gone into the box in support of the plaintiffs case, in which they are so largely interested ... In these circumstances their Lordships have no hesitation in holding that this also was a collusive suit" amply fit into the circumstances of the present case. Applying the same principles, the Oudh Chief Court has made similar observations in Sant Bakhsh Singh v. Lachhman Prasad, A. I. R. (33) 1946 Oudh 92: (1945 A. W. R. C. C. 9). I have, therefore, no hesitation in holding that the evidence on record coupled with the default of defendants 1 to 3 in not having explained the nature of the debt raises a presumption that the debts were incurred for family necessity.

19. Except plaintiffs 1 and 2 the others are found not to have been born on the date of alienations according to the ages given in the plaint. Though the consideration of this matter is not very material for the decision of this case, a controversy was raised regarding the burden of proof about the ages of the plaintiffs. The correctness of the ages, as given by the plaintiffs, has been denied by the contesting defendants. It has been laid down in this Court that it is for the plaintiffs to establish the correctness of the fact of age averred by them in the plaint, and no attempt has been made by them to discharge that burden.

20. Considering the evidence as a whole, I have no hesitation in arriving at the conclusion that the plaintiffs suit must fail; the judgments and decrees of the Courts below are therefore set aside and the suit is dismissed; but in the circumstances of the case the parties will bear their own costs throughout.

21. Mallappa, J. :- I agree that the appeal has to be allowed and plaintiffs suit for partition should be dismissed. The plaintiffs have to cross too many hurdles before they can succeed in their suit for partition. Most of the properties have been sold in revenue sales for default of payment of kandayam by the manager of the family and the title of the plaintiffs in them has been extinguished. The oral evidence that the heads of the several branches of their family effected partition is corroborated by documentary evidence. The plaintiffs cannot ignore the partition and file this suit for partition of all the properties as if they all are still members of a single joint family. Moreover as pointed out in the judgments of my learned colleagues which I have had the advantage of going through in the first place, there is evidence in this case of the plaint schedule properties having been purchased in execution of decrees obtained in suits filed against the manager of the joint family in his capacity as manager and in the second place there is material in this case justifying the conclusion that the "debts were binding on all the members of the joint family. The finding of the Courts below to the contrary is due to their ignoring a very important piece of evidence and as such as pointed out in 18 Mys. L. J. 17 it is liable to be set aside. This is the documentary evidence showing that all the debts were divided at the time of family partition as if they are debts binding on the joint family. This evidence clinches the point and it has to be held that debts for recovery of which previous suits were filed are debts due by the family. This being so, plaintiffs suit is liable to be dismissed.

22. There is however one point which I think requires some clarification, as the point was raised at the time, this case was argued, and was also in fact raised in a recent case s. A. 460 of 47-48 by the learned advocate who however opposed it in this case. To avoid any doubt in the matter, I am inclined to think that it is worthwhile making the law on the point clear. The contention raised was, that, once a decree is passed against the manager of the family as such as can be ascertained from the fact that the debt was sought to be recovered from the entire estate, the decree is binding on the other members of the joint family and it is not open to them to show in a subsequent suit that it is not a debt due by the joint family and that the decree as such is not binding on them. The contention is based on the ground that the manager should have raised the plea and his failure to do so is a bar. This is an incorrect statement of law. It is only in case the debt is binding on all the members of a joint family that a suit filed against the manager as such is binding on the other members of the family. It is only in such a case that persons not actually parties to the suit cannot be allowed to reopen the matter and claim to have a right to discharge such debts in spite of the manager who represented them having failed to discharge the debt and allowed a decree to be passed. On the other hand, it is equally clear that even if a suit is filed for recovery of the joint family debt, the right, title and interest of the person who is a party to it is alone liable if the suit is not filed against him as manager of joint family.

23. As regards this point I may refer to the decision in Ramachandriah v. Seetharamaih, 50 Mys. L. R. 60. It was held in that case as follows : "A person who in execution of a decree obtained by him against a member of a joint Hindu family has purchased the right, title and interest of his judgment-debtor cannot obtain possession of the whole of the family property on the ground that the debt for which he obtained the decree in execution of which the property was bought was a family debt contracted by the defendant as managing member of the family for its benefit unless the original suit had been brought against the defendant as manager of the family and the decree had been passed against him as such." The position on the point is clarified by Reilly C. J. in a lucid manner in 14 Mys. L. J. 361 : "Defendant 2s sons were no parties to that suit, and they were not represented in that suit directly or indirectly. They are entitled to appeal to another elementary principle, that no decree can be made against any one without his knowledge and behind his back. But somehow the question has been raised in the subsequent suit and tried by the learned District Judge on an issue framed in that suit, whether this debt was incurred for a family purpose. The learned Judge has found that it was not incurred for a family purpose. But in my opinion it was quite unnecessary for him to consider that question at all, and indeed in the circumstances improper. It cannot reasonably be suggested in my opinion that a lender can obtain a decree against the manager of a joint family alone and in execution of that decree bring to sale the shares of the junior members of the family and then in a subsequent suit such as this by the junior members either put them to the proof that the debt was not incurred in circumstances making it binding on the family or be allowed to show that he might have proved that it was a debt binding on the family in his own suit, though he never attempted to do. To my mind that would be a perversion of the legitimate procedure, which we could never properly countenance. Here we have a suit brought by defendant 1, in which he claimed and obtained a decree against defendant 2 alone, and with that he must be content. In my opinion it is quite unnecessary to spend any time on the question whether this debt was incurred for the benefit of the joint family. We are not interested in that question. We are only interested in the question whether the decree obtained by defendant 1 In O. S. No. 339/ 17-18 was binding upon defendant 2s sons, and in my opinion unquestionably it was not binding."

24. It is however the other aspect that is seriously disputed. In the Privy Council decision Nanomi Babuasin v. Maddun Mohun, 13 Cal. 21 : (13 I. A. 1 P. C.) the question that arose for consideration was : "How far the joint sons can be precluded from disputing the liability attaching to their shares where proceedings have been taken by or against the father alone." Lord Holborn who delivered the judgment of their Lordships answered this question as follows : "All, the sons can claim is that, not being parties to the sale or execution proceedings they ought not to be barred from trying the fact or the nature of the debt in a suit of their own." This case was the basis for a later Privy Council decision Daulat Ram v. Mehrchand, 15 Cal. 70: (14 I. A. 187 P. C.). In that case as is clear by the head-note : "The managing members of a joint trading family having purported to mortgage the family estate to pay a debt due by the firm, were sued upon it by the mortgagee". It was noticed that "In that plaint the mortgagee claims not only to recover against the mortgagors the amount of the mortgage debt with interest but asks that he may have execution and be satisfied out of the mortgaged property", and "their Lordships find by the certificate of sale that the whole property was sold" (p. 78). It is clear that the managing members were sued in a representative capacity. All the same it was held that the other members of the family could plead in the second suit that the debt was not one binding on the family estate. As evidence on the point had not been recorded the question of remanding the case for evidence arose. It was noticed that : "The plaintiffs proposed to prove all the facts that were necessary to make the mortgage valid and binding upon them. The defendants had the opportunity of trying that question but they did not wish to try it." So the case was not remanded. In Puttegowda v. Rudregowda, 12 Mys. L. R. 450 at p. 465 (sic.) that : "In the case Daulat Ram v. Mehr Chand, 15 Cal. 70 : (14 I. A. 187 P. C.) their Lordships hold that, if the managing member of a joint family having purported to mortgage the family estate to pay a family debt is sued upon it by the mortgagee, and the property is sold, such family estate may pass in its entirety to the purchaser if it be proved that the mortgage was a valid mortgage which bound the ancestral property, and the purchaser bargained and paid for the entire estate. In the present case it has been proved, that judgment was given in O. S. No. 19 of 1885 against the whole of the property in question for a family debt ; and that defendant 3 purchased that property and not merely the right, title and interest of defendant 1. On the other hand, the plaintiff, has failed to prove, that the mortgage effected by defendant 1 did not bind his share. It therefore follows, that the plaintiff is not entitled to recover his half share in the coffee estate in question." The principle laid down in the Privy Council decisions is that in the second suit it is open to the members of the joint family other than the manager against whom the first suit was filed to raise the question whether the debt or alienation was binding on the entire family. In fact it is usual for mortgagors to file suits on hypothecation bonds against the manager of the family and bring to sale the entire property and not merely the share of the manager who executed the hypothecation deed. It is equally usual for the other members of his family to file suits for getting their share of the property by partition and in all those cases they succeed in getting a share if the mortgagee fails to prove in their suit that the debt or alienation was binding on them and they fail if he proves that the debt or alienation was binding on all the members of the family. The decision in 13 Mys. L. R. 546 is again based on Daulat Ram v. Mehr Chand, 15 Cal. 70 : (14 I. A. 187 P. C.) and lays down the point clearly : "All that the other members of the family who were not parties to the suit and other proceedings on the mortgage claim is that they ought not to be barred from an opportunity of trying the question whether the mortgage was a valid one binding the ancestral property or no."

25. In the Full Bench decision 23 Mys. C. C. R. 250 the shares of the sons were held to have been extinguished by Bale held in execution of a mortgage decree against the father alone in view of the fact that the mortgage debt was binding on the sons as "neither of them had been born at the date of the mortgage" as clearly stated in the head-note itself. The order of reference to the Full Bench also states that "the mortgage is found to have been for necessity and binds on sons interest."

26. The doctrine laid down by their Lordships in Nanomi Babuasin v. Maddun Mohun, 13 Cal. 21 : (13 I. A. 1 P. C.) that "all the sons can claim is that not being parties to sale or execution proceedings, they ought not to be barred from trying the fact or the nature of the debt in a suit of their own" is quoted with approval at p. 260 of the Full Bench decision. 27 Mys C. C. R. 155 is a case decided subsequent to the above Full Bench decision. In that case the mortgagee obtained a decree for sale against the mortgagor but the minor members of the family filed a suit for a declaration that the decree does not affect their shares. In the case the question whether the debt was binding on the family was not only gone into but was answered in the negative. It was held that the decree against the father did not bind the shares of sons. I may refer to 32 Mys. C. C. R. 217 also as it is to the same effect. In 6 Mys. L. J. 317 it was observed at p. 319 as follows: "Nagappa was the manager of the family and the debt was one due by the whole family. It seems to us that the plaintiffs were properly and effectively represented by Nagappa who was the managing member of the family of which the plaintiffs were also members and that the decree binds them even though they were not impleaded in the suits."

27. It will be noticed that the conclusion was based not merely on the fact that Nagappa was the manager of the family but also on the fact that the debt was due by the whole family.

28. As regards recent decision 4 D. L. R. (Mys.) 91, relied on in support of the proposition, that all that is necessary to consider in the subsequent suit filed by members of the joint family not impleaded in the previous suit, is to find out whether the previous suit was filed against the manager as such and whether the entire family property was proceeded against, and that if it is so they are barred from questioning the fact or the nature of the debts in their suit, the scope of the decision is not properly understood and this proposition does not follow from the decision. At p. 98 the point for consideration was formulated as follows : "The question now remains whether the debts are binding on plaintiff also and whether the plaintiff could be deemed to have been represented by his father in the court proceedings so as to bind his interest in the suit properties." It will thus be seen that both the points arose for consideration in the second suit. In the two previous paras the question was whether the father "Subbaraya did represent the minor in the court proceedings." This was answered in the affirmative. It was then observed that "this leads us to the consideration of the point whether the hypothecation under Ex. iv is binding on the plaintiff." It has to be stated that if the finding on the first point was in the negative, it would not have led to the consideration of the second point. The second point became necessary as the first point was answered in the affirmative. As on the second point it was held that the debt was binding on plaintiff, after it was held on the first point that his father must be deemed to have been represented in the suit on the hypothecation deed, plaintiffs suit was dismissed. The case relies on the earlier decisions of this Court already referred to and does not purport to differ from them. It is only necessary to add that one other decision of this Court (s. a. 460 of 47-48) recently decided fully supports the view clarified by me. The question is a simple one but it required a detailed examination as from the arguments it appeared that recent decisions had raised some doubts and they required clarification. It was observed in that case: "that before a decree that is passed against a person who happens to be the manager of a joint family could be said to be binding upon other members of the joint family ft has to be shown in the second suit, filed by or against them that, in the first place the first suit was filed against that person as manager of the joint family and in the second place that the debt for recovering which that suit was filed was a debt binding on the family."

29. The burden of proof in this case lay no doubt on the alienees to show that the debts were binding on the plaintiffs and the evidence adduced by them in this case justifies the conclusion that the debts for discharging which the properties were alienated were debts binding on the plaintiffs. The appeal is therefore allowed and the suit dismissed. Appeal allowed. AIR (38) 1951 MYSORE 48 [C. N. 23.] "Kempegowda v. Annegowda" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) Kempegowda, Pltf. Applt. v. Annegowda and others, Defts. Resps. Regular Appeal No. 155 of 1948-49, D/- 12 -12 -1950. (A) Limitation Act (9 of 1908), Art.181 - LIMITATION - DECREE - Application for personal decree - Starting point. The proper stage at which an application for a personal decree can be made is not immediately after the sale of the mortgaged properties takes place, but after the sale is finally confirmed by the Court and the amount of the balance still due under the decree is thereby ascertained. The decree-holder can therefore, apply under Art. 181 for a personal decree under O. 34, R. 6, Civil P. C. within 3 years from the date when the sale is confirmed. (Para 5) Anno. Lim. Act, Art. 181. n.6. (B) Mysore Agriculturists Relief Act (18 of 1928), S.24 - DEBT RELIEF - DECREE - Debt Laws - Applicability to application for personal decree. The way to apply S. 24, which refers to suits, to an application for a personal decree under O. 34, R. 6, Civil P. C. is to see if the plaintiffs suit on the mortgage was in time to enforce the personal liability of the defendant and not to apply it directly to the application for personal decree. (Para 6) (C) Civil P.C. (5 of 1908), S.11, O.9, R.9 - RES JUDICATA - DECREE - Application for personal decree - Dismissal for default. Where an application for personal decree under O. 34, R. 6, Civil P. C. is dismissed, not on merits, but for default of prosecution, a fresh application is not barred either by O. 9, R. 9 or the principle of res judicata. (Para 10) Anno. C. P. C., S. 11, n. 104, O. 9, R. 9, n. 6. M.K. Sreenivasa Iyengar for A.R. Somanath Iyer - for Appellant; C. Nagaraja Rao - (for No. 2); K.R. Gopivallabha Iyengar - for Resps. Nos. 4 to 7. Judgement Vasudevamurthy, J. :- The plaintiff filed a suit in the Court of the Subordinate Judge of Mysore on 1-6-1933 for recovery of Rs. 8,000 due for principal and interest on a registered mortgage bond dated 23-2-1921. The last date of payment made towards the debt is said to be 22-2-1929. After obtaining the usual preliminary and final decrees for sale he got the mortgaged properties sold, and the sale was confirmed on 17-1-44. The decree was thereby only partially satisfied and so, for the balance he applied on 16-1-1947 under Order 34, Rule 6 of the Code of Civil Procedure for a personal decree against deft. 2 and the assets of deceased defendant 1 in the hands of defendants 2 to 7.

2. It appears that the plaintiff had made a similar application for the same relief on 2-6-1944 and that application which was posted to 23-5-1945 for defendants objections was dismissed for default on the ground of plaintiffs absence.

3. The application was resisted by the defendants on two among other grounds, viz. that the application was barred by limitation and (2) that it was barred by the principle of res judicata by reason of the dismissal of the previous application.

4. The learned Subordinate Judge dismissed the application. He held that the dismissal of the prior application was not a bar to the present one, but that the application was nevertheless barred by time as in his view the application for personal decree should have been made within 3 years from the date of sale under Article 181 of the Limitation Act. The plaintiff has come up in appeal against that order.

5. Mr. C. Nagaraja Rao, the learned counsel for the respondents, has strenuously sought to support the decision not only on the point regarding limitation but he has also endeavoured to make out that the learned Subordinate Judge is wrong in holding that the dismissal of the earlier application does not bar the present one. The learned Judge, beyond saying that Article 181 requires it, has not referred to any decided cases or given any reasons for coming to the conclusion that the application should have been made within 3 years of the date of sale and not the date of its confirmation. Under Article 181 the period of limitation prescribed for any application otherwise not provided for is 3 years from the date when the right to apply accrues. There is no doubt the proper stage at which an application for a personal decree can be made is not immediately after the sale of the mortgaged properties takes place, but after the sale is finally confirmed by the Court and the amount of the balance still due under the decree is thereby ascertained. In fact it has been held in 45 Mys. H. C. R. 26: 18 Mys. l. J. 113 that a personal decree should not be passed until after the mortgage properties have been sold, the proceeds are found insufficient to pay the mortgage money and the deficiency is ascertained, and that a Court should not while passing a decree for sate of the mortgaged properties make a personal decree also for the balance. In support of their decision their Lordships have referred to Raja Ramranjan v. Indra Narayan Das, 33 Cal. 890: (10 C. W. n. 862). Damodar v. Vyanku, 31 Bom. 244 (9 Bom. L. R. 199); Badri Das v. Innyat Khan, 22 ALL. 404: (1900 A. W. n. 132); Atyasamier v. Venkatechala, 40 Mad. 989: (A. I. R. (5) 1918 Mad. 1187 fb) and Janardhan Shankar v. Krishnaji, 22 Bom. L. R. 953: 58 I. C. 377: (a. i. R. (7) 1920 Bom 95). It has been held in Palaniappachettiar v. Naryanan, 59 Mad. 188: (a. i. R. (23) 1936 Mad. 34 fb), that the Court can take up for its consideration the question of passing a personal decree only after the deficiency, arising on the sale of the mortgaged property, is ascertained. That can only occur after the sale of the mortgaged properties is actually confirmed because if the sale is for any reason set aside that stage is not reached at all. The decree holder can, therefore, in our opinion, apply under Article 181 for a personal decree, within 3 years from the date when the sale is confirmed. (See Mahomad Iltifat Husain v. Alimun nisa, 40 All. 551: (a. I. R. (5) 1918 all. 105) and Francis Higgins Pall v. Minnie Gregory, 52 Cal. 828. (A. i. r. (12) 1925 Cal. 834 fb).

6. The defendants contended that the application was barred by time by reason of another circumstance also. They represent that the plaintiff has filed his suit on the mortgage bond a little over 9 years of the last, payment made towards the amount due on it and not within 6 years of such date which he should have done if he wished to have the benefit of Article 116 of the Limitation Act. But in this case the defendants have been held to be agriculturist within the meaning of the Mysore Agriculturists Relief Act and under section 24 of that Act the period of limitation for bringing a suit for recovery of money lent to an agriculturist when such a suit is founded on a registered written instrument is 12 years instead of the usual period of 6 years available under Article 116. The defendants, however, contended that the plaintiff cannot seek the aid of section 24 of the Act in support of an application for a personal decree. The learned Subordinate Judge agreed with the defendants contention holding that section 24 applies only to suits and not to applications. We think that that is pot the way to look at the question. A mortgagor is entitled to recover the mortgage money not only from the mortgaged properties but also from the mortgagor personally if there is a personal undertaking in the deed to pay the amount; he must sue to enforce such liability within six years of the accrual of the cause of action under Article 116 of the Limitation Act, subject to the other saving provisions of that Act. Section 24 of the Agriculturists Relief Act, however, gives him 12 years within which he can file such a suit against an agriculturist. The way to apply that provision to the facts of this case, is to see if the plaintiffs suit was in time to enforce such personal liability of the defendants and not try to apply it directly to the application for personal decree The pre sent suit filed by the plaintiff on 1-6-1938 was well within 12 years of the last date of payment under the registered mortgage deed and so. therefore, clearly within time to enable him to ask for a decree personally against the defendants, in addition to a decree for sale.

7. Mr. C. Nagaraja Rao contends that the order of the Subordinate Judge holding that the plaintiffs application is not barred on account of dismissal for default of his earlier application is not correct. He argues that to such a dismissal the provisions of Order 9, Rule 9 of the Code of Civil Procedure apply by the operation of Sec. 141, and that the plaintiff was bound to have applied in time to have the dismissal order set aside. Having faded to do so, he is barred from filing a fresh application for the same relief. In support of his argument he relies on a decision by a Single Judge in A. K. R. P. L. A. Chettiyar Firm v. Meher Singh., A. i. R (17) 1930 Rang. 257: (8 Rang. 316) which no doubt is clearly in his favour. In that case it was held that an application for a personal decree against a mortgagor is not an application in execution proceedings but one for a decree and that where such application is dismissed for default a fresh application is barred under Order 9, Rule 9. the proper remedy of the decree-holder being to have the order dismissing the application for default set aside.

8. The matter is certainly not, however, free from difficulty. We may examine how section 141 read with Order 9, Rule 9 C. P. C. has been applied to application a generally and to applications under order 34 Rule 5 C. P. C. in particular. It has been observed by the Privy Council in Thakur Prasad v Fakir-ullah 17 ALL. 106 : (22 i. A. 44 P. C.) while refusing to apply O. 9, R. 9 to execution applications that in their opinion the proceedings spoken of in Section 647, C. P. C. corresponding to order 9, Rule 9 of the present Code include original matters in the nature of suits, such as proceedings in probates, guardianships and so forth and do not include executions. The expressionand so forth in the observations of the Privy Council have been held to mean applications ejusden generis or similar in kind to the instances previously mentioned by them; see Sarat Krishna v. Bisweswar Mitra, a. i. R. (14) 1927 Cal. 534 : (54 Cal. 405). In A. K. R. P. L. A. Chettiar Firm v. Meher Singh, a. I. R. (17) 1930 Rang. 257: (8 Rang. 316), Brown J. has referred to this decision of the Privy Council and treated an application under order 34, Rule 6 as one in the nature of an original application for decree. In Mysore under our Rules of Practice, applications for the passing of a final decree or personal decree are treated as serial applications made in the suit itself and not as original applications; and that in our view is one of the material circumstances which we in Mysore may properly take into account in deciding this matter. In a later decision of the Rangoon High Court in Ma Than Sein v. Mr. Hla Yi, a. i. R. (28) 1941 Rang. 201: (1941 Rang. l. R. 246) which was decided by a Bench of two Judges it has been observed that the proceedings spoken to in section 141 include original matters in the nature of original suits as proceedings in probate, guardianship and so forth, that is, which originate in themselves and not those which spring up from a suit or from some other proceedings or arise in connection therewith. In that case it was held by their Lordships that when an application to be brought on record as the legal representative of a deceased plaintiff and for passing a final mortgage decree is dismissed for default, section 141 does not apply and the applicants need not apply under Order 9, Rule 9 and that a fresh application to have the same relief can be filed. They also refer to Thakur Prasad v. Fakir ullah, 17 all. 106: (22 I. a. 44 P. C.) and Sarat Krishna v. Bisweswar Mitra, a. I. R. (14) 1927 Cal. 534: (54 Cal. 405) in support of their decision. The case in A. K. R. P. L. A. Chettiar Firm v. Meher Singh, a. i. R. (17) 1930 Rang. 257: (8 Rang. 316) was apparently not brought to their notice and has not been considered by them. Similarly, in Mysore, in 40 Mys. h. C. R. 9, it has been held that where the plaintiff has filed an application under Order 34, Rule 5 nothing further is needed to be done by him and the Court is bound to pass a final decree so long as no payment in accordance with Order 34, Rule 5 sub-rule (1) has been made and that, therefore, once an application is made under Order 34, Rule 5 it cannot be dismissed for default of prosecution, nor will such dismissal operate as resjudicata between the parties. In support of their view their Lordships refer with approval to a decision in Jodha Singh v. Gokaran Bant 47 ALL. 546: (A. i. R. (12) 1925 ALL. 622) where it was held that where an application for a final decree for sale has been unnecessarily and improperly dismissed, the Court could revoke the? order of dismissal and pass a final decree upon an application made by a decree-holder even though such application, regarded as a fresh application in execution or as an application for review, was beyond time.

9. There is very close similarity between the words of order 34, Rule 5 and order 34, Rule 6, Both of them require applications to be filed and final and personal decrees passed if the amount declared due under the preliminary decree has not been realised by the plaintiff. Mr. C. Nagaraja Rao has urged that while in Order 34, Rule 5 the words used are "the Court shall pass a final decree", in order 34, Rule 6 the words used are "may..." and that too only where the balance to be ascertained after the sale of the mortgaged properties is legally recoverable from the defendants. The wordsmay, . . in the latter rule can have the effect only ofshall as there is no discretion left in the Court to dismiss such an application provided the other conditions referred to in that rule exist, viz. a balance legally recoverable from the defendants. It must be remembered that the Court has already declared the amount due to the plaintiff when passing the preliminary decree and that what the Court really does later on by passing final and personal decrees in the course of the proceedings in the same suit is to assist him to recover the same. The dismissal, not on merits, but for default of prosecution, of an application made in the suit requesting the Court to pass a final or personal decree should not have virtually the effect of dismissing the suit or wiping out the preliminary decree itself by any rule of constructive res judicata; nor can a subsequent application under order 34 Rule 6 be held to be barred by provisions of Order 9, Rule 9 in the absence of a clearer rule in the Code. In the present case, the first; application i. A. No. 7 under order 34, Rule 6 has not been disposed of on its merits and the second application i. A. No. 8 also has been filed within 3 years of the confirmation of the sale.

10. For the reasons stated above we are unable to follow the decision in A. K. R. P. L. A. Chettiar Firm v. Meher Singh, A. I. R. (17) 1930 Rang. 257: (8 Rang. 316) and we accordingly hold that the later application is not barred either by Order 9, Rule 9, C. P. C. or the principle of res judicata. This appeal is, therefore, allowed. The Subordinate Judge will proceed, to consider the application i. a. No. 8 on its merits and dispose of it in accordance with law. The parties will bear their own costs an this appeal and in the lower Court as it is some want of diligence on the part of the plaintiff that has given rise to these difficulties against himself. Appeal allowed. AIR (38) 1951 MYSORE 51 [C. N. 24.] "Govt. of Mysore v. Malavalli Thimmiah" MYSORE HIGH COURT Coram : 2 BALAKRISHNAIYA AND MALLAPPA, JJ. ( Division Bench ) Government of Mysore, Complainant, Applt. v. Malavalli Thimmiah, Accused, Resp. Criminal Appeal No. 1 of 1950-51, D/- 9 -10 -1950. (A) City of Bangalore Improvement Act 5 of 1945, S.25(1) - IMPROVEMENT TRUST - Forming lay-out - What is - Attempt to form lay-out. When a person begins to form sites by fixing stones to demarcate the line between site and site and between sites and roads, circles and lanes, he is clearly laying out and forming. If after he begins to do so he is prevented from accomplishing it, his act is an attempt that failed. Nevertheless it is an attempt to form a lay-out. It is sufficient if the purpose of the lay-out is the construction of buildings. It is not necessary that any building should be actually put up before it could be said that a lay-out is formed. (Para 5 and 6) (B) Criminal P.C. (5 of 1898), S.417 - APPEAL - HIGH COURT - Appeal under - High Court, when will interfere. The High Court will interfere with an acquittal in appeal preferred under S. 417, when the acquittal depends upon a mistake of law or clearly an unreasonable finding of fact. (Para 7) Anno. Cr. P. C., S. 417, N. 1. Advocate-General - for Applt.; B.R. Keshava Iyengar - for Resp. Judgement Mallappa, J. :- This is an appeal against the judgment in C. C. 3245 of 48-49 on the file of the Second City Magistrate, Bangalore, acquitting the accused of an offence under S. 25, City of Bangalore Improvement Act of 1945, the operation of which is extended from 18-3-49 to the area in which the respondents land is situated.

2. The Municipal Sub-overseer who has been examined in the case as the first witness for the prosecution has stated that on 23-3-49 the accused was getting sites marked out by fixing stones. Twenty persons were working on the sites according to this witness. P. W. 2 is the Assistant Engineer, Trust Board. He states that when he went to the place with P. W. 1 the demarcation stones were being fixed. Some sites had been demarcated, and some were being demarcated when he went there on 23-3-1949. He saw the accused there but did not take a statement from him. The case of the accused is that he did mark the sites prior to 18-3-49 on which date the Act was made applicable to the area in which his land was situated and that even otherwise mere fixing of stones for demarcating sites and roads subsequent to the application of the Act does not amount to forming or attempting to form an extension or lay-out as contemplated by S. 25 (2), City of Bangalore Improvement Act.

3. As regards the first point, there is hardly any doubt that the accused had got a plan prepared and sold some sites after demarcating them before 1-3-1949. The plan was got registered along with a sale deed executed before 18-3-1949. At the same time there is sufficient evidence to indicate that demarcation of other sites by fixing stones was being done after 18-3-1949. In fact, the evidence of P. Ws. 1 and 2 establishes that the accused was getting this done on 23-3-49. It has, therefore, been proved beyond doubt that demarcation of sites was being got done by accused even after 18-3-1949.

4. The next point for consideration is whether this amounts to an offence. Under S. 25 (1), City of Bangalore Improvement Act, "No person shall form or attempt to form any extension or lay-out for the purpose of constructing buildings thereon." What is prohibited is first the formation of an extension or the attempt to form an extension and, secondly, the formation of a lay-out for the purpose of constructing buildings thereon or the attempt to do so. Before an act is done, a person must first intend to do it. He then makes preparations for doing it. Then he attempts to do it, and if the attempt is successful the act is done. In this case, the accused clearly intended to form a layout for the purpose of construction of buildings. He got a plan made on paper. This by itself cannot amount to an attempt to form a lay-out. He might have in fact desisted from going near the land and making a lay-out or even from attempting to do so if he changes his mind. Romer L. J., observed in Devanport Corporation v. Tozen, 1903-1 Ch. 759 at p. 764: "It appears to me especially with respect to the bye-law as to laying out a new street it is clear that the bye-law in question is dealing with something in the nature of physical laying out and not what I may call a metaphorical laying out. They relate to something to be done or contemplated to be done on the land in question." As observed by Brett L. J., in Robinson v. Local Board for Barton, (1882) 21 Ch. D. 621 at p. 636: "New streets may be made under different circumstances. The whole land on both sides may belong to one owner; then he conceives a design of making a new street within the meaning of the Act of Parliament. The Act of Parliament is not concerned with what people do on paper, but with what they do in point of fact and upon the land." Then again as observed by him at pp. 637 and 638: "A plan laid out may show an intent to do a thing, but the laying out in this bye-law does not mean laying out on paper. It means laying out on the land. It is laying out and forming it," It will thus be noticed that the accused in this case cannot be deemed to have committed any offence by merely making a plan.

5. When he, however, began to form sites by fixing etc nee to demarcate the line between site and site and between sites and roads, circles and lanes, be was clearly laying out and forming If after a man begins to do so and is prevented from accomplishing it, his act is an attempt that failed. Nevertheless, it is an attempt to form a lay-out. The laying out in this case is meant for the purpose of the construction of buildings as is made clear by the demarcation of building sites, streets circles, etc. The accused, therefore, cannot but be guilty of an offence under S. 25 (1), City of Bangalore Improvement Act, as he continued to form a lay-out after 18-3-1949, for purposes of constructing buildings thereon.

6. It was contended that a lay-out is not formed or attempted to be formed unless houses are built or attempted to be built. This is incorrect. The very words of the section contemplate a lay-out being formed for the purpose of construction of buildings thereon. It is sufficient if the purpose of the lay-out is the construction of buildings. It is not necessary that any building should be actually put up before it could be said that a lay-out is formed. It may be different if the formation of a street is being considered as in Robinson v. Local Board for Barton, (1882) 21 Ch. d. 621, referred to above. It is amply clear that the definition of the word "street" in the City Municipality Act that a vacant space used as a passage is a street "if houses, shops or other buildings abut thereon". So a street may be formed by construction of houses abutting on a vacant space. Similarly, the formation of an extension may be effected by construction of buildings. It is significant that S. 25 (2), City of Bangalore Improvement Act, states that the Board might direct that further act towards the formation of extension be stopped but it does not say that the formation of a lay-out be stopped. A lay-out may always be complete without the construction of even a single building.

7. As observed in 19 Mys. L. J. 358: "The High Court will interfere with an acquittal in appeal preferred under Section 417 of the Code of Criminal Procedure when the acquittal depends upon a mistake of law or clearly an unreasonable finding of fact." It has to be stated that in this case the learned Magistrate does not say that be does not disbelieve the evidence of Overseer and Assistant Engineer whose evidence makes it certain that the accused continued to form the lay-out by getting demarcation atones fixed on 23-3-49, i. e. some days after the Act is made applicable to the area in which his land is situated. To say as he has said that the accused was evidently getting the stones previously fixed, refixed is misreading the evidence and drawing an inference based on no evidence. His judgment acquitting the accused based on a clearly unreasonable finding of fact is set aside. The accused is guilty of an offence under S. 25 (1), City of Bangalore Improvement Act, and is convicted of an offered under that section and sentenced to pay a fine of Rs. 100 which shall be paid to the credit of the City of Bangalore Improvement Fund, on realisation, under R. 49 (2) (sic) of the City of Bangalore Improvement Act. Order accordingly. AIR (38) 1951 MYSORE 52 [C. N. 25.] "Venkatachala Seti v. Chuluviah" MYSORE HIGH COURT Coram : 2 MALLAPPA AND VASUDEVAMURTHY, JJ. ( Division Bench ) S. K. Venkatachala Seti, Petnr. v. Chuluviah, Resp. Civil Revn. Petn. No. 198 of 1948-49, D/- 25 -8 -1950. (A) Civil P.C. (5 of 1908), O.9, R.9 - DECREE - Suit dismissed in part for default and decreed in part. A pltf. whose suit is decreed in part and dismissed in part can agitate under O. 9, R. 9 for setting aside that portion of the judgment or order dismissing the suit, irrespective of the remedy that he may have in appeal. (Para 3) Anno: C. P. C. O, 9 R. 9 N. 1. (B) Civil P.C. (5 of 1908), O.17, R.2, R.3 - ADJOURNMENTS - Suit dismissed at adjourned date of bearing. Where the pltf. appears at the first hearing but is absent at an adjourned date of hearing and the suit is dismissed the disposal of the suit is one under O. 17 R. 2 and not under R. 3. (Para 2) Anno: C. P. C., O. 17 R. 3 N. 3, 4.

V. Krishna Murthy - for Petnr; Belur Krishnaiengar - for Resp. Judgement Mallappa, J. :- This is a revn. petn. against an order passed by the Subordinate J. Tumkur, confirming that of the Munsiff of Tiptur who held that an appln. filed by the petnr. under O. 9, R. 9 C. P. C., to set aside the ex parte decree partly dismissing his suit O. S. No. 317 of 46-47 on account of his absence, was not maintainable.

2. The suit filed by the petnr. was for the recovery of money and at an adjourned date of hearing, he was absent. In view of the fact that the deft. had admitted a portion of the suit claim, a decree was passed for the admitted amount and the rest of the suit must be deemed to have been dismissed as a decree was not passed for the entire amount claimed in the plaint. It is clear the decision dismissing the suit in respect of the part of the suit claim was ex parte as the pltf. was absent.It is unnecessary to refer to the question as to whether R. 2 or R. 3 of O. 17 applies to cases of that kind as that matter has been considered is the F. B. decisions reported in 23 Mys. C. C. R. 1 and 25 Mys. C. C. R. 116, in which it has been held that in owes of this kind the disposal is one under O. 17, R. 2, C. P. C.

3. The point pressed, however, before us is that it has been held in 24 Mys. C. C. R. 66, that an appeal would lie against the decree under which a suit is partly decreed and the rest of the suit claim is dismissed. It is to be pointed out that it is not stated in that case that no other remedy lies. Order 9, R. 9 makes it clear that where a suit is wholly or partly dismissed under R. 8, the pltf. shall be precluded from bringing a fresh suit in respect of the same cause of action but he may apply for an order to set the dismissal aside. It is not clear why in this case in which the suit must be deemed to have been partly dismissed, there being only a decree for a portion of the suit claim, the pltf. petnr. cannot file an appln. under O. 9, R. 9, C. P. C. The lower Cts. were wrong in holding that the petn. of the pltf. under O. 9, R. 9 is not maintainable. the mere fact that an appeal lies against a decree does not necessarily mean that the party aggrieved has no other remedy.

4. The revn. petn. is allowed, the orders of the lower Cts. are set aside and the learned Munsiff is directed to take the case on his file and dispose of it on merits. The petnr. will get his costs throughout (Advocates fee Rs. 10 in this Ct). Revision allowed. AIR (38) 1951 MYSORE 53 [C. N. 26.] "Thompson, Mrs. v. J. A. Gordon" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND MALLAPPA, J. ( Division Bench ) Mrs. Thompson, Deft., Applt. v. J. A. Gordon, Pltf., Resp. Appeal No. 142 of 1948-49, D/- 18 -9 -1950. Succession Act (39 of 1925), S.222, S.276 - SUCCESSION - WILL - EXECUTION - PROBATE - Will - Execution - Disposing state of mind - Undue influence - Application for probate - Lady of 70 years old executing will in favour of plaintiff her son, leaving all her properties to him and appointing him sole executor - Plaintiff living with the lady - At the time of execution, one of her sons murdered and her husband dead owing to attack of paralysis - Lady attached to all her children and being simple quiet and submissive woman - Lady unable to read and write - Will prepared without a draft 6 days after she gave instructions - Will not read to her - Plaintiff not getting himself examined in Court - Held evidence was rot sufficient to convince Court that the lady had a sound disposing state of mind - Will held was the result of undue influence of plaintiff Application rejected. (Para 14) Anno Succ. Act, s. 222, n. 1. S. 276, n. 1. B. Rangaswami - for Applt.; J.L.D. Silva - for Resp. Judgement Mallappa, j. :- This is an appeal against the judgment in O. S. 59 of 1947 on the file of the District Judge, Civil Station, directing that the probate of the will Ex. A, shall be granted to the plaintiff as prayed for, with costs, advocates fee being fixed at Rs. 50. The respondent has filed cross-objections claiming Rs. 410 as advocates fee.

2. The proceedings were instituted by filing an application under Ss. 222 and 276 Succession Act for the grant of a probate in respect of the will Ex. A. executed by deceased Mrs. A. N. Gordon, leaving all her properties to the respondent-plaintiff J. A. Gordon, her son. and appointing him as the sole executor. The appellant-defendant who entered caveat as per law is the only daughter of Mrs. A. E. Gordon. According to her, Mrs. A. E. Gordon was 70 years of age at the time of her death on 30-6-1947, and the will said to have come into existence on 22-3-1947 must have been obtained, it genuine, by undue influence of the plaintiff. Mrs. A. E. Gordon was old, infirm and did not have a sound mind, memory or understanding. The defendant does not admit that the will was executed by the deceased. The plaintiff in reply admitted that Mrs. A. E. Gordon was 70 years old, but denied that she was infirm, or of unsound mind memory or understanding. As regards the execution of the will, it has to be stated that though the plaintiff has not examined himself, he has examined 6 p. Ws. P. W. 5, Mr. P. S. DSouza, his advocate, says that he prepared the will Ex. a, under the instructions of Mrs. A. E. Gordon, and that it was also executed by her in his and the attestors presence by affixing her signatures Exs. a2 and a3. P. W. 1 Adiappa Assistant Superintendent, Bangalore Power and Lighting, under whom the plaintiff has been employed and p. w. 2 DCosta, who is an employee under the plaintiff as well as P. W. 3 a pleader junior of p. W. 5 have sworn that Mrs. A. E Gordon affixed her signatures a2 and a3 to Ex. a, and that they have also affixed their signatures as attestors. There could hardly be any doubt about Mrs. Gordon having affixed her signatures to the will Ex. a.

3. The more important point for consideration is whether she was in a disposing state of mind when the will was executed and whether it was or was not executed under the undue influence of the plaintiff. As regards her mental state, it is admitted by the plaintiff that she was 70 years old. It is in evidence that one of her sons had been murdered and that her husband had died a short time before the execution of the will in question. It is mainly in respect of her state of mind that a number of D. Ws., including the defendant have been examined. D. W. 1 who was a tenant under Mr. and Mrs. A. E. Gordon, his stated that Mrs. Gordon was not an intelligent woman; during their conversation, he found that she could not understand him and that her mind. used to wander and waver about with great fear. D. W. 2, M. V. Castello, says that Mr. Gordon predeceased Mrs. Gordon by about 10 months; her mind was wandering always as if she was dreaming; she could not understand what one said to her, and she was not talking coherently. He found her absolutely a wreck. She had only very elementary education. Her language was childish. She was sad and depressed. D. W. 3 is Mrs. M. Grant, the wife of d. W. 1. She states that the health of Mrs. Gordon was very feeble. She was a sort of nervous person, her conversation was very simple and child-like; she was not intelligent. She was wavering in her conversation and was distracted. D. W. 4 is Mrs. C. M. Harison, who says that she knew Mr. and Mrs. Gordon from her childhood. According to her, Mrs. Gordon was not interested in anything; while conversing she used to drift away from subject of conversation and she was very weak physically. She says that she has never seen Mrs. Gordon road or write. D. W. 5 is a medical practitioner. He says he knew Mr. and Mrs. Gordon for 6 or 7 years, as he was their family doctor. According to him Mrs. Gordon was feeble-minded. She was not in a position to understand the question put to her without the assistance of others. Extreme anguish, sorrow and physical weakness lead to mental feebleness, As she was diabetic and aged she could not have recovered from mental feebleness. There is no reason to disbelieve the evidence of these witnesses.

4. The evidence of P. Ws. themselves probabilises that the mental condition of Mrs. Gordon has been correctly depicted by the d. Ws. P. W. 1 has stated that Mrs. Gordon was very much distressed on account of the death of her husband. P. W. 3 says that she was worried about her daughters affairs. P. W. 6 is a medical practitioner. According to him he had professional dealings with Mr. and Mrs. Gordon. He knows that Mrs. Gordon was attached to all her children, she was not a bold type of woman and she was very quiet and submissive. Her late husband was managing the affairs of her house. The witness does not know anything about the mental or physical condition of Mrs. Gordon about February or March 1946.

5. Taking all the evidence together, it is clear that Mrs. Gordon who was admittedly 70 years old, was very old and infirm. The murder of her son must have given her a shock and added to this her husband had two strokes of paralysis and subsequently died in the later part of 1946, a short time before she executed the will. She was a simple, quiet and submissive woman devoted to all her children. Even according to the doctor examined by the plaintiff, she was a sort of person who could be easily imposed upon by her children like the plaintiff, who had lived with her admittedly at or about the time of the execution of the will. As is clear by the evidence of the family doctor d. W. 5, extreme sorrow and physical weakness had enfeebled her in mind.

6. Considering the state of her mind the point for consideration is whether Mrs. Gordon realised fully what she was doing when she affixed her signatures to Ex. A. It has to be stated that she had a number of children and the entire property has been left only to the plaintiff, who has been appointed as her sole executor. It is in evidence of P. W. 4 that Mrs. Gordon told him that the defendant who was one of her daughters was stranded without a house and that she wanted to give the house to her. It is difficult to understand why she left her other children entirely unprovided for in her will. The only reason given in the will is that the plaintiff had been living with her and was looking after her in her old age. This it has to be stated is not quite accurate. It must be remembered that till about a short time before the execution of the will, her husband was alive and she lived with her husband. The properties belonged to them and if at all, the plaintiff was under their obligation for being under their protection. It cannot, therefore, be said that the only reason given in the will could have induced Mrs. Gordon to her executing the will leaving all the properties only to one of her children. This is particularly so, as, as already stated, it is in evidence that she was devoted to all her children and that she was anxious to give a house to the defendant who she said was stranded without a house.

7. The circumstances under which the will came into existence do not show that the will was executed out of her own free will or that she realised the effect of the documents to which she was affixing her signatures. The evidence discloses that she was hardly able to read and write. The fact that she was able to read at all, is denied by the defendant. No one who knows that she was able to read, has been examined in the case. It is the plaintiff who took her to the lawyer to get the will drafted and executed. Inspite of the serious suggestion that the will was executed by an old, infirm, feebleminded woman under his undue influence, the plaintiff has not entered the witness-box to swear to the contrary. The evidence as it stands shows that the contention of the defendant is true.

8. As observed in Ganpatrao v. Vasantrao, A. I. r. (19) 1932 Bom. 588 : (141 I. C. 747). "If the person propounding the will takes an appreciable benefit under it, that is an element of suspicion, of more or lees weight according to the facts of each case, and the burden lies upon him to show that it is the will of the testator and no probate can issue unless the Court is satisfied that the person propounding the will had led sufficient evidence which on a close and careful examination removes that suspicion. The same rule also applies to other circumstances which create suspicion in the mind of the Court."

9. The observation applies strongly in this case as it is a case in which the entire property has been left to the plaintiff who had lived with the testatrix and was in a position to dominate over the simple, weak, old, infirm, feeble minded woman who, even according to a doctor examined by plaintiff, himself was not a bold type of woman but was very quiet and submissive. It is the plaintiff that takes her to his advocate P. W. 5. The advocate states that she expressed that she wanted to talk to him in private. He took her to his drawing room. She gave him instructions to prepare her will. As the instructions were simple he says he did not make a record of them. If all that she said is that all her property should go to plaintiff it is not clear why she kept plaintiff away and said that she had to give instructions to his advocate in private. The advocate says that he knew that the testratrix had a number of children. He, however, admits that he did not discuss or make mention of the names of the other children when he received instructions to the effect that all the properties should go to the plaintiff alone. It is not clear why he did not do so. According to the evidence of witness 4 for plaintiff the old woman told him that the defendant, her daughter, was stranded without a house and she wanted to give her a house the advocate says that she told him that the defendant had given her considerable trouble by filing a petition to the Administrator-General, Madras in respect of the will of Mr. Gordon. This is not mentioned in the will. On the other hand, it appears from Ex. VI the order passed granting letters of administration to plaintiff in respect of that will, that the defendants only objection was that the property was underestimated by plaintiff and that proper security should be taken for granting of the probate. The reason for not giving her any property under the will is not stated in the will. The advocate remembers that Mrs. Gordon spoke to him about her another daughter, who was a widow and a nurse for whom her husband wanted to provide a house. She did not tell him that any house was provided for her. The will does not disclose why these daughters of the testatrix have been excluded from inheritance. The advocate fixes up an engagement for the execution of the will seven days after he was instructed to prepare the will. No draft is made and a will is typed 6 days after instructions are given by memory. All the matters discussed are not noted in the will. At the appointed time, plaintiff takes his mother with two friends of his. They had no discussion with her about the will. The will is not read over to her in their presence. It is given to her for reading. It is so short that one can read it in 2 or 3 minutes. The junior of the advocate who has also attested the document says that she took 15 minutes to half an hour to read the will. It is strongly disputed that she is able to read and write though she could affix her signature to a document; still no evidence is adduced by plaintiff on thee point. The will is not registered though for more than 3 months after the date of the will she was alive. Taken as a whole, there are sufficient circumstances justifying the conclusion that plaintiffs mother was a very old feebleminded woman, hardly capable of comprehending the nature and extent of her property. There are also circumstances to show that at the time of the execution of the will she was not specifically made aware of the existence of other persons who had a claim on her or of their need. The admitted failure of the Advocate to bring to the mind of the testatrix the existence of her children who needed sympathies and the exclusion of the daughters and a widow and children of a son who had been brutally murdered all go to show that the testatrix either did not comprehend fully the scope and extent of the will or the practice of undue influence on her. Like the case of Charles Harwood v. Maria Baker, (1840) 3 Moor. P. C. 282 : (13 E. R. 117), this is a case in which the disposition in the will is a total departure from and contrary to the previous intention of the person who has executed the will. The only difference is that in that case the testator was ill, while in this case the testatrix was hardly able to know what she was speaking or doing owing to extreme old age, disease and affliction,

10. The observations of their Lordships in the above case are pertinent and apposite. "Their Lordships are of opinion that in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one subject of his regard but that he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom, by his will, he is excluding from all participation in that property; and that the protection of the law is in no case more needed, than it is in those where the mind has been too much enfeebled to comprehend more objects than one, and most especially when that one object may be so forced upon the attention of the invalid, as to shut out all others that might require consideration; and, therefore, the question which their Lordships propose to decide in this case, is not whether Mr. Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share In It, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the propriety of the disposition made by the will is a matter of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice might cast some light upon the question as to his capacity " That was a case in which the following evidence was believed : "I sat down by his bedside, and in effect said, that I understood that he had sent for me to make his will; he said,yes I then asked him whether he had made up his mind as to what his intentions or wishes were and his reply was, that be had, and intended to give everything to his wife: he said that such was his will to give everything to his wife not doubting that she would take care of her niece Marian, or some such name he called her by. I suggested (says Mr. Knit) that he had friends, or soma friends; but he said he had made up his mind to leave everything to his wife; still, however, saying that he trusted she would take care of her niece. I think I suggested to him, be should say who was to be his executor, and he saidMy wife, she is to be sole executrix. That was the whole of the instructions I received. Mr. Smith was close by me, or nearly close by me,he whole of the time, and must have heard, as indeed every person must have heard, all that passed. He adds,No person interfered in giving me the instruction; the whole came from Mr. Bakers own lips; it was done in no haste. There was, I believe, some general conversation beside, between Mr. Smith and Mr. Baker, but to which I paid no attention; and after about ten minutes or a quarter of an hour having had no occasion to make any minute or such very simple instructions, I asked for paper and writing materials, and sat down at a table In the room close to the bed, and wrote the Will out fair for execution. I needed no further instructions. I had nothing to do but to use words sufficiently comprehensive to apply to property of every description. I made no inquiry as to what Mr. Bakers property consisted of he did not tell me what it did consist of in giving me instructions. He mentioned his wifes Christian name, Mary Ann I think; and in writing the will out, I had not any occasion to ask him for further instructions for my guidance. After I had written the will completely out, and fair for execution I took it to the bedside and read it carefully, and slowly, and distinctly, to Mr. Baker, and he said it was quite right, or to that effect."

11. It will be noticed that the testator was able to converse and that he gave specific instructions for the drafting of the will though this was contrary to his previous intention. The will was read over to him and he said that it was quite right and then made his mark. All the same in view of other circumstances, the fact that the testator was able to converse and give instructions did not come in the way of the Court holding "that the appellant has not made out by his evidence that the paper propounded by him as the will of Mr. Baker really does contain his last will and testament."

12. As observed in Earl of Sefton v. Hopwood, (1858-67) 1 f and f 578, 579 : (175 E.r. 860): "It is not sufficient in order to make a will that a man should be able to maintain an ordinary conversation and to answer familiar and easy questions. He must have more mind than suffices for that. He must have what the old lawyers called a disposing mind: he must be able to dispose of his property with understanding and reason. That does not mean that he should make what other people may think a sensible will, or a reasonable will, or a kind will......... But he must be able to understand his position? he must be able to appreciate his property, to form a judgment with respect to the parties whom he chose to benefit by it after death; and if be has capacity for that it suffices." As observed in Converse v. Converse, 21 Ver 168: In order to execute a valid will, one must have sufficient active memory to recall his family and his property and to form a rational judgment in regard to the deserts of the one, and the disposition of the other with reference to such deserts."

13. Considering all the circumstances of the case, we are of opinion that while the will has been signed by plaintiffs mother it can be said that she had a sound disposing state of mind or that it came to existence without the undue influence of plaintiff who alone got all the property and this in spite of her previous intention of providing for her more unfortunate daughter. The evidence referred to already makes it clear that in addition to extreme old age the murder of her son, her own illness and the death of her husband had made her incapable of any rational judgment. She was incapable of "a reflection upon the claims of the several persons who by nature through other circumstances may be supposed to have claims on the testators bounty and the power of considering these several claims and determining in what proportion the property should be divided amongst the claimants," which are required for a sound disposing state of mind as observed by Hannen J. in Burdett v. Thompson. (1873) 3 p. and d. 72.

14. The plaintiff has no doubt proved that his mother affixed her signature to Ex. A, but it was prepared without a draft 6 days after she is stated to have given instructions. None of the attestors knew the contents of the will. It was not read nut to her. The attestors were strangers to her. They had no conversation with her about the will. It is in evidence that her mind was enfeebled by age, illeness, shock of the murder of her son and death of her husband. The plaintiff has not oared to examine himself in spite of the fact that it is disputed that his mother was able to read the will or that she was in a sound disposing state of mind and in spite of the fact that it is urged that the will is the result of his undue influence. The evidence adduced by him is not sufficient to convince the Court that she had a sound disposing state of mind. On the other hand, the evidence justifies an inference that plaintiffs mother was not in a s ound disposing state of mind and that the will is the result of undue influence, of plaintiff. As observed by Baron Parke in William Baker v. James Batt, (1838) Moor P. C. 317 at pp. 319, 320 (12 E. R. 1026): "In a Court of probate, where the onus probandi mostly undoubtedly lies upon the party propounding the will, if the conscience of the Judge, upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied, that the paper in question does contain the last will and testament of the deceased, it is bound to pronounce its opinion that the instrument is not entitled to probate. And it may frequently happen that this may be the result of an enquiry in cases of doubtful competence in particular, without the imputation of wilful perjury on either side; or it may be, the Judge may not be satisfied on which side the perjury is committed, or whether it certainly exists."

15. The result is that the appeal is allowed with costs, Advocates fee Rs. 25. The judgment of the lower Court granting probate is set aside. The cross objections are dismissed without coats. The suit is dismissed with costs. Advocates fee Rs, 50. Appeal allowed. AIR (38) 1951 MYSORE 57 [C. N. 27.] "Nazir Mohamed v. K. G. Co." MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Nazir Mohamed v. Kasturchand Gomaji Co. Civil Revn. Petn. No. I of 1950-51, D/- 25 -1 -1951. Civil P.C. (5 of 1908), O.23, R.3 - COMPROMISE - DECREE - Submission to award if a valid adjustment. If in a pending suit the parties refer their differences to arbitration without the cognizance of the Ct. the reference and the resulting award, unless agreed to by the parties, cannot constitute an adjustment or compromise nor can be acted upon under O. 23 R. 3. The consent referred to in the proviso to s. 47 of the Arbitration Act must be a consent subsequent to and not antecedent to the arbitration award. (Paras 11, 14) Anno C. P. C. O. 23 R. 3. N. 9; Arbitration Act, s. 47 N. 1. M. Ramchandra Rao - for Petnr.; V. Krishnamurthy - for Resp. Judgement Order. - This revn. petn. is against the order of the Subordinate Judge, Chickmagalur in Mis. Appl. No. 4 of 1949-50, confirming the order of the Munsiff Chickmagalur dismissing i. a. No. 5 in o. S. No. 220 of 1947-48 on his file. That appln. was filed under o. 23, R. 3, C. P. C. for recording a compromise said to have bean arrived at between the parties.

2. The pltf. filed a suit for recovery of monies alleged to be due by the deft. The suit was contested; issues were framed and the case posted for trial. The parties are then said to have referred their dispute in this pending suit to both their respective counsel for decision and the latter appear to have given a decision. The deft. (sic) thereupon made an appln, I. A. No. 5 for having that decision recorded as amounting to a compromise or settlement of the suit between the parties. The deft. opposed the appln. Evidence was recorded thereon and the parties gave varying versions in the matter. The learned Muniff rightly found on the evidence of their counsel that the parties had unequivocally and unconditionally agreed to abide by their decision. But he held that he could not treat the decision as amounting to a compromise or settlement of the suit coming within O. 23 R. 3, C. P. C. The learned Sub-ordinate Judge on appeal has agreed with him on this question of law and the deft. has preferred this revn. petn.

3. Mr. M. Ramachandra Rao, learned counsel for the petnr, contended that the two cases decided by this Ct. in 27 Mys. C. C. R. 215 and 28 Mys. C. C. R. 182 which are on all fours with the present case and which hold that a decision or award of panchayatdars or arbitrators in such a pending case where there has been no reference through the Ct. (sic) require reconsideration in the light of certain provisions of the recent Mysore Arbitration Act of 1949. He refers to s. 47 of that Act which provides that subject to the provisions of s. 46 which relates to statutory arbitrations the Arbitration Act shall apply to all proceedings and arbitrations thereunder; and under the proviso to that section an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any Ct. before which the suit is pending. He also relies in this connection on a decision reported in Arumuga Mudaliar v. Balasubramania Mudaliar, a. i. R. (32) 1945 Mad. 294: (i. L. R. (1946) Mad. 39). In that case an award made in a private arbitration during the pendency of the suit was treated as an agreement to compromise and it was held that a decree could be passed on the terms of the award. S. 47, Arbitration Act, it was observed, was inserted by the legislature in order to allow the Ct. unfettered action under order 23 R. 3. C. P. C. and that S. 47, Arbitration Act does not preclude an award in a private arbitration being made a decree of the Ct. unless all the parties interested in it have, after the award has been given, consented to a decree being passed in terms thereof. It was held that an agreement to accept a future award can be treated as a compromise in the suit and that the Arbitration Act of 1940 had in no way altered the position. The decision of the Madras H. C. is in accordance with the view taken earlier that an award made in a private arbitration during the pendency of the suit could be treated as an agreement to compromise and on that basis a decree could be passed in the terms of the award: see Subba Raju v. Venkata Rama Raju, 51 Mad. 800: (a. i. R. (15) 1928 Mad. 1025 f.b.). In our Ct. we have, however, chosen not to follow the line of decisions which have so held.

4. In 27 Mys. C. C. R. 215 it has bean held that the decision of arbitrators unless accepted by the parties cannot amount to a mutual agreement for purposes of O. 23, R. 3, C. P. C. and that O. 23, R. 3 does not contemplate arbitration proceeding as each as amounting to a compromise or settlement. In 28 Mys. C. C. R. 182 it has been held that if the award of the arbitrators is accepted by both the parties, the agreement to refer plus the award which the parties had accepted would constitute an adjustment of the suit on lawful agreement, but that is not by virtue of the award itself or of its binding character but because the parties have chosen to adopt a decision given by the arbitrators as indicating the mode in which they want their dispute to be adjusted.

5. The Bombay H. C. has in Chanbasappa v. Baslingayya, 51 Bom. 908: (A. I. R. (14) 1927 Bom 565 F. B.) following Manilal Motilal v. Gokal Das Rowji, 45 Bom. 246: (a. I. R. (8) 1921 Bom. 310) held that if in a suit parties have referred their differences to arbitration without an order of the Ct. and an award is made, a decree in terms of the award can be passed by the Ct. under O. 23, R. 3, C. P. C. Marten C. J. in his elaborate judgment has referred to divergence of opinion among the several H. Cts. on the question whether such an award, not agreed to by one of the parties thereto can be said to be an adjustment of the suit within the meaning of O. 23. R. 3 and has chosen to follow the earlier Bombay view in Manilal Motilal v. Gokaldas Rawji, 45 Bom. 245: (a. I. R. (8) 1921 Bom. 310) and the Madras view in Chinna Venkatasami v. Venkatsami, 42 Mad. 625: (a. I. R. (7) 1920 Mad. 800) which latter case has been followed in Subba Raju v. Venkata Rama Raju, 51 Mad. 800: (a. i. R. (15) 1928 Mad. 1025 F. B.) and Gajendra Singh v. Durga Kumari, 47 all. 637 (a. I. R. (12) 1915 ALL. 503 (F.B.) and dissented from the view of the Calcutta H. C. in this matter reported in Amarchand v. Banwarilal, 49 Cal. 608 : (a. I. R. (9) 1922 Cal. 404) and of the Lahore H. C. in Hari Parshad v. Mt. Soogni Devi, 3 Lah. L. J. 162: (a. i. R. (8) 1921 Lah. 232). According to him the wordcompromise in O. 23, R. 3 may include a reference to arbitration and it may also include arbitration generally and hence a reference completed by an award. He has also made it clear that in answering the question which was referred to the F. B. and which was answered by them in the affirmative in the terms set out above "No point arises to the effect that subsequently to the award the parties agreed to treat the award as an agreement or compromise of their claims" as nothing of that sort had happened in the case before them.

6. The Allahabad H. C. in Gajendra Singh v, Durga Kumari 47 ALL. 637: (a. i. R. (12) 1925 all. 503 FB) Walsh and Kanhaiya Lal JJ. (Mukerji J. dissenting) have held that an agreement and arbitration operate as an adjustment of the matters in dispute under O. 23 R. 3, C. P. C. and this view has been followed in Ram Devi v. Ganeshi Lal. 48 ALL. 475: (A. I. R. (13) 1926 ALL 501) Mukherji J. in Gajendra Singh v. Durga Kumari, 47 ALL. 687: (A. I. R. (12) 1925 ALL. 508 fb) has in the course of his dissenting judgment observed that the question is a difficult one. He has re erred to the divergence of opinion between the H. Cs. of Bombay, Calcutta and Madras in this matter and has set himself to examine the meaning of R. 3 of O. 23 of the Civil P. C. He arrives at the conclusion that on the plain meaning of the words "adjusted wholly or in part by any lawful agreement or compromise" an award obtained on a reference to arbitration without the intervention of the Ct cannot amount to such an adjustment or compromise. A compromise contemplated under O. 23, R. 3 according to him can only be the direct result of an agreement between the parties and R. 3 must be taken as directed only to cases where the parties have agreed that the Ct. should decide a matter between themselves in a particular way and that an arbitration cannot come within the purview of R. 3.

7. In the Calcutta H. C. Rankin J. has in Amarchand v. Banwan Lal, A. I. R. (9) 1922 Cal. 404: (49 Cal. 608) held that if in a pending case the parties go to a private arbitration without the consent of the Ct. the award cannot be enforced either under O. 23, R. 3, C. P. C. or under the provisions of the Indian Arbitration Act. He observes during the course of his judgment "in formal and uncontrolled arbitrations between parties to a suit leading up to litigation on the bare issue as to whether in fact there is a valid adjustment are the very things from which the second Sch. (now Chap. IV of the Arbitration Act) was meant to deliver litigants." In Mohammad Mia v. Oosman Ali, A. I. R. (22) 1935 Cal. 239 at p. 241: (62 Cal. 229) Mitter J. has followed this view observing that so far as our (Calcutta) Ct. is concerned it is now settled law that an award made on a reference without the intervention of the Ct. during the pendency of a suit cannot be recorded as a compromise or adjustment of the suit under O. 23, R. 3, C. P. C."

8. The Rangoon H. C. in Hlay Maung v. U Ge, A. I. R. (26) 1939 Rang. 300 : (1939 Rang. L. R. 280 fb) has pointed out that "It is entirely wrong to import into the meaning of words used in O. 23, R. 3 some connotation which is at variance with the provisions of S. 89 or Sch. 2 O. 23 R. 3 deals with adjustment by compromise and not with compromise merely. Adjustment means settlement and the harmonizing of disputes and where there exists no settlement and no harmony the dispute cannot be said to have been adjusted by lawful agreement or compromise" and held that "Where therefore an award expressed to be made in an arbitration without the intervention of Ct. during the pendency of a suit is disputed and challenged by one of the parties, such award is not an adjustment by lawful agreement or compromise within the meaning of O. 23, R. 3." 9. The Lahore H. C. has taken the view that an award made in a pending case without here being a reference through the Ct. cannot be recorded as an adjustment unless all the parties agree. See Hari Pershad v. Mt. Soogni Devi, 67 i. C. 123: 3 L. L. J. 162: (A. I. R. (8) 1921 Lah 232).

10. The Patna H. C. has in their recent cases followed the Calcutta view; see Bhimraj v. Munia Sethani, 156 I. C. 1050: 14 Pat 799: A. I. R. (22) 1935 Pat. 243) : Sir Dinshaw Mulla in his commentaries on the rule has expressed his own opinion that the Calcutta view is more correct; even in Bombay in Dinkar Rai v. Yeshwant Rai, 54 Bom. 197: (a. i. R. (17) 1930 Bom. 98) Rangnekar J. has observed that ha is inclined to prefer the Calcutta view.

11. Mr. Ramachandra Rao contends that since the parties had consented before they referred the matter to abide by the decision of the arbitrators, the same and the subsequent award or decision amounts to a compromise as there is nothing to prevent the parties consenting to the decision in advance. He relies for this argument strongly on Arumuga Mudaliar v. Balasubramama Mudaliar, a. i. R. (32) 1945 Mad. 294 : (I. L. R. (1946) Mad. 39) and urges that S. 47, Arbitration Act, merely refers to such consent and does not expressly say that the consent must be subsequent to the award. No doubt that decision supports him. I am however not impressed with that argument and I say so with great respect to the learned Judges who have decided that case in that way. By saying that there is nothing in the proviso which precludes antecedent consent I think the object of the proviso is practically destroyed. The plain language of the proviso does not support such a construction. The same expressly reads as if an award may be taken into consideration as a compromise only with the consent of all the parties interested.

12. The efficacy of an award rests on its being an adjudication by an arbitrator who is a Judge of the parties choice and is like a decision of a Ct. It does not depend on the consent of the parties either prior to or subsequent to its passing. There is always consent implicit in every reference to arbitration that the parties will abide by the decision of the arbitrators. The mere circumstance that they expressly say so in their reference cannot make the award an adjustment or compromise of their differences which they have submitted for arbitration and decision.

13. An examination of the circumstances under which and the object with which S. 17, Indian Arbitration Act of 1940 was enacted though it may not be strictly speaking relevant, would throw considerable light on the meaning of its proviso. In para. 20 of their report the Civil Justice Committee which was constituted in 1926 to examine the reasons for delay in disposal of cases observed: As regards arbitration in suits the chief question which requires attention is the question whether it is advisable to permit parties to a suit referring their dispute to arbitration otherwise than by the procedure provided by Arts. 1-16 of the Sch. 2 to the Code. Whether the language of Sch. 2 or of S. 89 of the Code amounts to a prohibition of arbitration in suits other wish than by the means described in the schedule is divided. The H. C. of Bombay in Manilal Motilal v. Gokal Das 45 Bom. 245: (A. I. R. (8) 1921 Bom. 310) has held that an arbitration in a suit, without any order as required by Sch. 2, may be enforced as an adjustment of the suit under O. 23, R. 3. We consider that it would be advantageous if all arbitration in suits, except as provided by Sch. 2 were made void; the awards should only be recorded as adjustments of the suits when the Ct. is asked to do so by all parties." Thereafter S. 47 of the Act was enacted. The report of the Select Committee on this section was as follows: "The effect which this section as redrafted is designed to produce is that arbitrations shall not be conciliated in any way repugnant to the Act and that any arbitration award may with the consent of the parties be used for the purposes of R. 3 of o. 23, C. p. C. This i think would clearly mean consent given subsequent to the award, as otherwise the Ct. trying the suit would have to abandon the trial of the suit and embark on a probably long and complicated enquiry as to the factum and validity of the reference and award.

14. On a consideration of the above circumstances I think the decision in 28 Mys. C. C. R. 182 that, if in a pending suit the parties refer their differences to arbitration without the cognizance of the Ct. the reference and the resulting award unless agreed to by the parties cannot constitute an adjustment or compromise nor can be acted upon under O. 23, R. 3, C. P. C. is fully in accordance with the real intent and meaning of S. 47, Arbitration Act as well as O. 23 R. 3, C. P. C. It lays down, if I may say so with respect, a safe, convenient and correct rule. Nor is there any hardship to the parties following it. It is open to the parties in a pending suit to have a formal reference made through the Ct. under Chap. iv of the Act in respect of the matters concerned in the suit and the award passed hereon would be given effect to between the parties.

15. I, therefore, see no reason to differ from the orders of the Cts. below and dismiss this revn. petn. The conduct of the parties in resiling from their agreement does not merit either of them being awarded any coats. Revision dismissed. AIR (38) 1951 MYSORE 59 [C. N. 28.] "Rahmath Unnissa v. Shimoga Co-op. Bank" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) Rahmath Unnissa Begum, Pltf., Applt. v. Shimoga Co-operative Bank, Ltd. and another, Defts., Resps. Appeal No. 120 of 1948-49, D/- 7 -11 -1950. (A) Specific Relief Act (1 of 1877), S.22 - AGREEMENT - WAIVER - ESTOPPEL - Agreement to purchase land - Waiver of strict compliance with agreement. Evidence Act (1 of 1872), S.115. Estoppel. The pltf. entered Into an agreement with the deft. on 7-1-1941 to purchase the suit property for Rs. 1400 A sum of Rs. 200 was to be paid as part of the purchase money and the balance in monthly instalments of Rs. 15, the entire amount being payable by the end of December 1947. It was agreed that if any one instalment was not paid the property could be otherwise disposed of by the deft. The pltf. was very irregular in paying the instalments but the defts. accepted the irregular Instalments: Held, that (1) by accepting the irregular instalments the deft had waived his right to insist upon regular payments and the pltf. was lulled into belief that if be paid the full amount by the end of December 1947, the deft. would convey the property to the pltf; (Para 6) (2) that as the agreement further contained express provision that the full purchase money might be paid by the end of December 1947, the deft. ought to have given notice to the pltf. of his intention to cancel the contract before disposing of the property to a third person; (Para 11) (3) that the pltf. could, therefore, treat the contract as still subsisting and seek specific performance of it; (Para 14) (4) that as the pltf. was rather negligent and dilatory in making payments and the deft had sold the property to third person it was a fit case in which the Ct. should, in its discretion, properly refuse specific performance and grant compensation to the pltf, for breach of the agreement. (Para 17) Anno. Spe. Relief Act, S. 22, N. 2, 3, 6 ; Evidence Act, S. 115, N. 3. (B) Specific Relief Act (1 of 1877), Pre. - PREAMBLE - English law. As the Act has been founded on English law it is permissible to refer to English law wherever the Act does not deal specifically with any matter. (Para 10) Anno. Spe. Relief Act, Pre. N. 1. (C) Contract Act (9 of 1872), S.55 - CONTRACT - AGREEMENT - Agreement to purchase land. Time is not normally to be considered of the essence in a contract to sell or purchase immoveable property though ether party has a general right to have the contract performed within a reasonable time according to the circumstances by giving a notice to the other side. (Para 10) Anno. Contract Act, S. 55, N. 5.

V. Krishna Murthy and G.V. Krishna Iyengar - for Applt.; M.P. Somasekhara Rao and H.L. Sinha - for Resp. No. 1; M.P. Krishnaswamy - for Resp. No. 2. Judgement Vasudevamurthy, J. :- The pltf is the applt. before us. She filed a suit in O. S. No. 12/46-47 on the file of the Dist. J, Shimoga, against the Shimoga Co-operative Bank Ltd., as deft. 1 and one A. K. Nannesab as deft. 2 Her case was that the plaint schedule house which is situated in Shimoga Town belonged to her that deft. 2 claiming that they had purchased the same in Ct. auction had sought to take possession from her when as she did not want to involve herself in further litigation, she entered into an agreement with deft. 1 on or about 7-4-1941 to purchase the property for Rs. 1,400; of this a sum of Rs. 200 was to be paid as part of the purchase money and the balance in monthly installments of Rs. 15, the entire amount being payable by the end of December 1947; that accordingly she had paid a sum of Rs. 200 and had also paid some instalments and that nevertheless deft. 1 had purported to sell the property to deft. 2 for a sum of Rs. 3,300 on 17-7-1945. She, therefore, sought for specific performance of the agreement, or in the alternative for possession of the house or damages. Deft. 1 admitted the agreement but contended that the pltf. had been extremely irregular in the matter of payment of the instalment in spite of numerous chances given to her, that the contract had, therefore, come to an end and that they were justified in conveying the property to deft. 2.

2. The learned Dist. J. who tried the case, dismissed the pltfs suit. He held that the agreement and the conduct on the part of deft. 1 Bank showed that time was not meant to be of the essence of the contract, that the pltf. was responsible for the breach of the contract and not deft. 1, that deft. 2 was not a bona fide purchaser for value of the suit property without notice and that the pltf. was not the owner of the property and was not entitled to any relief except to receive back from deft. Rs. 441 which she had paid to deft. 1 in pursuance of the agreement. Hence this appeal.

3. The point whether deft. 2 was a bona fide purchaser for value without notice dots not really arise in this case as in the sale deed executed in his favour by deft. 1 the prior agreement in favour of the pltf. is mentioned and deft. 2 has undertaken to take possession of the property himself. The claim that the pltf. is the owner of the property is not also seriously pressed before us, nor is there any evidence therefor.

4. In this case many of the facts are admitted or are conclusively established by the documentary evidence Deft. 1 purchased the property in Ct. auction and took delivery of the same through Ct. under Ex. II dated 15-5-40. On the same day the pltf. executed in favour of deft 1 a lease deed under which she acknowledged the title of the Bank and agreed to pay monthly rent of Rs. 8 for the property. Later she made an appln. on 22-5-40 to deft. 1 Bank saying that she and her children had no other residence and that the Bank should allow her to retain the house for herself for the amount for which they hid purchased the same in the auction. She offered to pay immediately Rs. 200 towards the purchase money and the balance in instalments of Rs. 15 p m. After some correspondence this request of hers was accepted by the Bank and on 28-1-41 the Honorary Secretary of the Bank wrote the letter Ex. XV informing her that the Bank had agreed to her proposal subject to the condition that if any one instalment was not paid the house could be otherwise disposed of by the Bank. The pltf. paid Rs. 200 on 7-4-41 and went on paying several instalments as is evidenced by Exs. E. to E-21, As the pltf. failed to pay further instalments the Bank issued through their lawyer a notice, Ex. XXIX dated 4-5-1944 in which she was called upon to pay the rents that had accrued and to vacate the house and informing her that if she failed to do so a suit would be filed. The pltf. sent, the reply as per Ex. XXX, in which she pointed out that she had not taken the house for rent, that she had been paving the instalments of Rs. 15 every month irregularly and that she found it difficult to pay the same as she found it heavy. Ex. XXX, does not seem to have been replied to by deft. 1 and on 17-7-45 the Bank executed the sale deed, Ex. XXXV, in favour of deft. 2 for Rs. 3,351-1-6, which has led to the present suit.

5. For the applt. it is contended that the stipulation that if any instalment was not paid, the agreement would stand cancelled was not meant to be acted upon and was really a clause interrorem; that time viz. the regular payment of the monthly instalments was not meant to be the essence of the contract and that both the parties understood that if payment of the entire purchase money was made by 31-12-1947 deft. 1 would convey the property to the pltf though she might be irregular in the payment of the intermediate instalment; that the pltf. has substantially performed the conditions which were binding on her under the agreement, that the Bank was wrong in selling away the property to deft 2 and in particular without terminating the contract with the pltf. and that the contract is, therefore, still open and subsisting A the pltf. is entitled to obtain specific performance of it.

6. There is no doubt that deft. 1 appears to have been content to receive the instalments as and when they were paid, irregularly by the pltf. A waived the observance of the stipulation regarding their prompt payment every month. It is seen from Ex E-19 that only for three months, viz. June, July and August 1941, a sum of Rs. 15 was paid A thereafter the Bank has received at Rs. 10 a month for six months, then sums of Rs. 13 Rs. 3, Rs. 30 during next three months, A at Rs. 13 for six subsequent months, then Rs. 19 and Rs 7 in May 1943 and January 1944. Even on 4-2-44 and 27-3-44 the Bank has received at Rs. 13 p. m. as is evidenced by Exs. E-20 A E-21 which are the latest receipts These payments have been received apparently without any protest by the Bank. By this con. duct of theirs, it is argued, and we think rightly, for the applt. that the Bank has waived their right to insist upon regular payments A the pltf. was lulled into the belief that she need not pay the instalments at Rs. 15 p. m. regularly but that if she paid the full sum by the end of December 1947, the Bank would be content and convey the property to her and that they cannot now say that the pltf. has committed a breach of the agreement and that it is no longer enforceable by her.

7. In support of his arguments a case in Kilmer v. British Columbia Orchard Lands, Ltd, 1913 A. C. 319; (82 L. J. P. C. 77), is relied on strongly by Mr. V. Kriahnamurthi, the learned counsel for the applt. In that case the resp. company agreed to sell some lands in British Columbia to the applt. under an agreement which provided that the purchase money was to be paid by specified instalments at certain specified dates. Time was declared to be of the essence of the agreement In default of punctual payment at an appointed date the agreement was to be null A void, all payments already made were to be absolutely forfeited to the vendor, A the vendor was to be at liberty to resell the property immediately. The first instalment was duly paid but the second was not paid on the day fixed for payment A the date was extended by three weeks to 7-7-1910. On 8th July the applt. wrote to the company explaining the circumstances which prevented his paying on the 7th but promising to pay positively on the 12th. On the 9th the company sent him a telegram saying the deal was off A brought the action to enforce their rights according to the strict letter of the agreement. The applt. counter-claimed A asked for specific performance after paying the balance of purchase money into Ct. It was held by the P. C. that by the law of British Columbia as well as by English law the condition of forfeiture was in the nature of a penalty from which the applt. was entitled to be relieved on payment if the purchase money A they accordingly decreed specific performance on the counter-claim. In his judgment Lord Macnaghten pointed out "that in such a case the penalty stipulated in the agreement if enforced according to its letter becomes more and more severe as the agreement approaches completion, and the money liable to confiscation becomes larger." In that case it will be noticed that even the second instalment was not paid in time but that was not considered sufficient by itself to put an end to the agreement A to disentitle the purchaser to specific performance. In arriving at their conclusion their Lordships were apparently of the opinion "than the stipulation as to time had ceased to be applicable." This has been pointed out A explained in a later case of the P. C. in Steedman v. Drinkle, (1916) 1 A. C. 275 : A. I. R. (2) 1915 P. C. 94, at p. 280.

8. In the latter case by an agreement in writing dated 9-12-1909 land in the province of Saskatchewan was to be sold for 16,000 dollars, of which 1000 dollars were paid on signing the agreement A the balance was payable by six annual instalments on December 1 of each year. The agreement provided that, if the purchaser should make default in any of the payments the vendor should be at liberty to cancel the agreement and to retain, as liquidated damages, the payments already made, and time was to be considered as of the essence of the agreement. Default having been made in the payment of the first instalment, the vendor cancelled the agreement : and the assignees of the purchaser sued for specific performance. The S. C. of Saskatchewan decreed specific performance in addition to relief from forfeiture. On appeal the P. C. reversing that judgment held that the parties having made time the essence of the agreement, specific performance could not be decreed as they found that there had been no agreement to extend time nor anything that amounted to waiver of the right to treat time as of the essence in the case before them. Their Lordships pointed out "that Cts. of Equity which look at the substance as distinguished from the letter of agreements, no doubt exercise an extensive jurisdiction which enables them to decree specific performance in cases where justice requires it, even though literal terms of stipulations as to time have not been observed. But they never exercise this jurisdiction where the parties have expressly intimated in their agreement that it is not to apply by providing that time is to be of the essence of their bargain. If, indeed, the parties having originally so provided, have expressly or by implication waived the provision made, the jurisdiction will again attach."

9. With these may be compared the case in Stickney v. Keeble No. 1, 1915 A. C. 386 : (84 L. J. Ch. 259) where by an agreement in writing the applts. agreed to purchase from the resps. certain agricultural lands and received a sum of money by way of deposit; a date was also fixed for the completion of the contract but it was not stated that time was to be of its essence; at the date of the contract the deft. had no legal title to the land and delayed completion of the pltfs. contract in order to perfect their title by obtaining conveyances in their own favour; about 3 months after the expiry of the period fixed for the completion of the contract the pltf. who had repeatedly pressed for completion gave notice to the defts. requiring them to complete it in a fortnight and on their failure to do so brought an action for the return of the deposit. It was held by the House of Lords that there had been unnecessary delay in the completion ofhe contract for which the defts. were responsible, and that in the circumstances the time limited by the notice was sufficient to cancel the contract.

10. In India the rights and liabilities of parties and the powers of the Ct. in granting specific relief is governed by the Specific Relief Act. But it has always been recognised that as that Act has been founded on English law it is permissible to refer to English law wherever the Act does not deal specifically with any matter; vide Aredeshir Mama v. Flora Sassoon. 52 Bom. 597 : (A. I. R. (15) 1928 p. C. 208) It is a well recognised rule that time is not normally to be considered of the essence in a contract to sell or purchase immoveable property though either party has a general right to have the contract performed within a reasonable time according to the circumstances by giving a notice to the other side; see Jamshed Khodaram v. Burjorji Dhunjibhai, 40 Bom. 289 : (a. i. R. (2) 19 5 p. C 83), Dau Alakhram v. Mt. Kulwantni, I. L. R. 1950 Nag. 386 ( a.I.R. (37) 1950 Nag. 288) and Mahadeo Prasad v. Narain Chandra 24 C. W. N. 330 : (a. i. R. (7) 1920 Cal. 65 ).

11. In the present case there are also certain other important circumstances in favour of the applt. Deft. 1 has by his conduct clearly waived the defaults in the regular payment of instalments. In addition to the stipulation regarding instalments, there is a further express provision in the agreement that the full purchase money may be paid before the end of December 1947. Deft 1 did not issue any notice or otherwise intimate the pltf of their intention to cancel the contract before disposing of the property to deft. 2.

12. Mr. Somasekhara Rao, the learned counsel for resp. 1 relies on a case reported in Shanmugam Pillai v. Annalakskmi Ammal, 1950 S. C. J. 1 : (A. i. R. (37) 1950 F. C. 38). The facts of that case however, are clearly distinguishable from those of the present one. In that case the properties in suit along with others had been mortgaged to the resps. family by the applts who were their owners. For the sum found due on the taking of an account between them the mtgors. sold the properties in suit to one of the family of the mtgees. Two days later two further documents came to be executed by and between the parties. The first was a lease deed executed by the purchaser as lessor and applt 1 as a lessee, and the second was a registered agreement whereby the purchaser agreed to reconvey the properties to the applt. on payment by a specified date of the same sum as was the consideration for the earlier sale deed but subject to the condition that if the lessee was in arrears as to the lease amount, the agreement should stand. It was also seated in the agreement that time was the essence of the agreement. The lessee defaulted in the payment of the lease amounts but paid them subsequently and they were accepted by the lessor. But when default was committed in respect of the fifth instalment the member of the lessors branch to whom the suit property had in the meanwhile been allotted at a partition, gave notice to the lessee terminating the lease and also declared that the agreement to repurchase had also become cancelled. There was a default, in regard to the sixth instalment also and the lessor sent notices demanding payment of the amounts due as damages. The previous notice terminating the lease was also referred to. Sometime later the lessee paid certain sums and made an endorsement on the lease deed of such payment and also stated that a certain amount still remained due. A suit was filed by the lessee prior to the specified date for specific performance of the registered agreement. It was held, Mahajan and Mukherjea JJ. dissenting, that "the lessee secured the privilege of repurchase only subject to the conditions set forth in the agreement. Such condition; though relating only to payment of money, cannot be regarded as penalty and Cts. will not afford relief against a forfeiture or their breach. As the privilege was conferred upon payment of money at a stated period, it was lost as the money was not paid accordingly. The acceptance of payments alter the notice terminating the lease and intimating the cancellation of the agreement to repurchase could not, in the circumstances of the case, operate in any event as a revival of the agreement." Their Lordships have pointed out in their judgment that it is well-settled that, when a person stipulates for a right in the nature of a concession or privilege on fulfilment of certain conditions, with a proviso that in case of default the stipulation should be void the right cannot be enforced if the conditions are not fulfilled according to the terms of the contract." They also refer to the decision in Kilmer v. British Columbia Orchard Lianas, 1913 a. C. 319 : (82 L. J. p. C. 77) and find that decision has no application to the case before them on the ground that it was not a case of a right in the nature of a privilege or concession on fulfilment of specified conditions They also found that in the case before them the agreement was not kept alive but had been determined expressly by notices.

13. A case on similar facts reported in 51 Mys. H. C. R. 388 supports the pltf In that case also there was an agreement by the deft. to reconvey the property to the plff on payment of an agreed sum, and simultaneously a lease deed by which the property was leased to the pltf The lease deed contained a covenant for forfeiture for non-payment of rent and it was expressly provided in the agreement that on breach of any of the conditions in the lease deed the agreement to reconvey should stand cancelled. Sometime after the arrangement was given effect to, the pltf. defaulted in the payment of rent whereupon the deft. sued the family of the pltf for ejectment. In that suit the Ct. made an order under S. 114, T. P. Act, granting time to pay the arrears of rent and directing that on such payment the suit shall stand dismissed. The pltf. complied with the order and continued in possession paying the rent regularly thereafter. After the expiry of the term of the lease and within the time allowed by the agreement the pltf. tendered the purchase money to the deft. and applied for a deed of reconveyance. On the defts refusal he filed the suit for specific performance of the agreement to reconvey. The deft. pleaded that the agreement to reconvey stood cancelled as the pltf. had committed a breach of the covenant for payment of rent. It was held that the condition in a lease relating to non-payment of rent was one which can always be relieved by statute and that the parties must be deemed to have entered into the contract with this incident; in mind and that the effect of relief against forfeiture for non-payment of rent under S. 114 was as if there was no breach at all and the same had disappeared. It was further held that the quest on in such cases is not whether the lessee has observed and performed the covenants all through the terms of the lease but whether at the time when the specific performance was asked there was an existing right of action and to existing breach of the covenant. This decision appears at first sight to be contrary to the decision in Shanmugam Pillai v. Annalakshmi Ammal, 1950 S. C. J. 1 : (a. I. R. (37) 1950 P. C. 38) But the circumstance that: there had been only one breach and its consequence had been wiped out by a decree of Ct. a result which would bind both the parties and there was existing no further breach of the agreement which could disentitle the pltf. from claiming under the agreement distinguish it from the case in Shanmugam Pillai v. Annalakshmi Ammal, 1950 S. C. J. 1 : (A. I. R. (37) 1950 S. C. 38). Moreover, in the present case there was no subsisting lease arrangement between the pltf. and deft. 1 the same having been superseded and given place to the agreement to sell.

14. Mr. Somasekhara Rao also relied on a case reported in Aredeshir Mama v. Flora Sassoon, 52 Bom. 597 ; (a. I. R. (15) 1928 P. C. 208) and contends that the aggrieved party suing for specific performance is required to allege and prove a continuous readiness and willingness from the date of the contract to the time of the hearing to perform the contract on his part. He argues that the pltf. has been most irregular in the payment of instalments and has not shown that readiness and willingness which is necessary before she can claim specific performance. There is no doubt that it is an absolutely necessary element in a suit for specific performance that the pltff. must establish that he was "ready and willing" to perform his part of the contract. As we have pointed out above the pltf. has certainly been irregular in payment of the instalments but deft. 1 appears to have been content to receive without any protest these later instalments and in varying amounts and altogether given the go by to that portion of the agreement. In fact it appears as if deft. 1 was quite willing to reconvey the property if the full amount of purchase money was paid before 31-12-1947 and attached little or no value to the regular payment of the instalments After the pltf. had committed several defaults in the payment of instalments deft. 1 issued through their lawyer a notice Ex. XXIX dated 4-5-44 in which it is significant to note that the agreement was not sought to be put an end to. There is no reliable evidence that the resolutions of the Committee of the Hank passed on 23-1-44 and 23-12-44 putting an end to the contract was ever communicated to the pltf. Even subsequent to 23-1-44 the Bank has admittedly received two payments. The Honorary Secretary of deft. 1 Bank has stated that the resolutions were so communicated, but he does not say that ha himself communicated the same, nor has any witness been called or document produced to prove such a communication. Defendant 1 issues notices as per Ex. XXI dated 27-1-42 and Ex. XXIV dated 3-11-42 threatening to put an end to the arrangement and to adjust payments already made by the pltf towards rents. The pltf. replied to them denying that she had agreed to pay rents and asking for time to pay the overdue instalments ; and even subsequently instalments appear to have been more or less irregularly paid and received without demur. Even as late as on 17-4-43 the Bank wrote as per Ex. XXVIII clearly admitting that the amounts paid by the pltf. after adjusting towards rents had beenkept in suspense towards the sale consideration of the house" The result therefore is that the contract was never put an end to by deft. 1 and the pltf. can treat it as still subsisting and seek specific performance of it.

15. The next question that arises is as to what relief is the pltf. entitled. We do not think that this is a case in which the pltf. ought to be granted a decree for specific performance. Under S. 19, Specific Relief Act, it is provided that in any suit far specific performance of a contract, if the Ct. decides that specific performance ought not to be granted but that there was a contract of which the deft. has committed a breach and that some compensation for such breach should be made to the pltf. it shall award him such compensation accordingly. Mr. Somasekhara Rao refers to the case in Aredeshir Mama v. Flora Sassoon, 52 Bom 597 : a.I.r. (15) 1928 P. C. 208, and contends that in cases where specific performance cannot be granted damages cannot be recovered for the breach of the contract. In that case the pltf. by his plaint claimed, in accordance with S. 19, Specific Relief Act, specific performance of a contract and compensation in addition to or in substitution of that relief. He subsequently gave notice abandoning his claim for specific performance. It was held that he could not recover damages since relief under S. 19 could be decreed only when the pltf. is ready and willing to perform the contract and it is therefore still subsisting. The P. C. pointed out that the pltf. had by his notice in effect intimated that he was no longer either willing or ready to perform the contract on his part and had not only thereby renounced but as from that moment disentitled himself to a decree for specific performance and had thus brought upon himself the untoward cousequence that there was under the statute in the circumstances of the case no power left in the trial Judge to award him in the suit any damages at all. In the present case the pltf. has clearly asked for specific performance as welt as damages in the alternative.

16. In 46 Mys. H. C. R. 125, which is another case relied on for resps. in this connection and which was a suit for specific performance of a contract of service, damages by way of compensation was not granted. It was held in that case that S. 19, Specific Relief Act, did not apply to cases in which specific performance could not be claimed at all or where specific performance was barred under S. 21 of the Act, and that S. 19 applies only to cases in which specific performance might have been granted though for some reason the Ct. does not think fit to grant such relief in that case. That case, therefore, does not help the resps.

17. Under S. 22, Specific Relief Act, jurisdiction to decree specific performance is discretionary and the Ct. is not bound to grant such relief merely because it is lawful to do so. No doubt such discretion must be exercised judicially and having regard to all the circumstances of the case. In the present case the pltf. has been rather negligent and dilatory. Deft. 1 Bank appears to have been very lenient towards her and given her numerous opportunities for payment which she did not avail herself of. Deft 1 has also sold the property to deft. 2 and we think it would act very oppressively on the defts. if they are now forced to part with the property. We, therefore, hold that this is a case in which we should in our discretion properly refuse specific performance but grant some compensation for the breach of the agreement.

18. As regards the quantum of such damages we have given the matter our careful consideration. The pltf has been declared by the lower Ct. to be entitled to recover from deft. 1 the sum of Rs. 441 which she has paid towards the purchase money Deft. 1 has also paid assessments on the property. They have lost the rents and profits of the house and been deprived of the use of the amounts which the pltf. should regularly have paid to them. Taking into account all the circumstances, including the conduct of the parties, we think that in the peculiar circumstances of this case a sum of Rs. 800 may be awarded as compensation to the pltf. This will be in addition to the sum of Rs. 441 which the lower Ct. has allowed her to recover. We direct that deft. 1 do deposit into Ct. the said sums and that the pltf. should vacate and deliver possession of the property to deft. 2 before she is permitted to draw the sum.

19. As regards costs, we think the pltf. is entitled to costs proportionate to her success in both the Cts. and we order accordingly. As the suit and appeal have been brought in forma pauperis the court-fee payable to Govt. will be paid by the pltf. and will be a first charge on the amount payable to her under the decree. Resps. 1 and 2 will bear their own costs throughout. Order accordingly. AIR (38) 1951 MYSORE 65 [C. N. 29.] "Govt. of Mysore v. Mahantha Devaru" MYSORE HIGH COURT Coram : 2 ENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) Govt. of Mysore v. Mahantha Devaru - Accused - Resp. Criminal Appeal No. 36 of 1950-51, D/- 19 -3 -1951. (A) Mysore Food Acquisition (Harvest) Order (1949) - AGRICULTURAL PRODUCE - AMENDMENT - REPEAL AND SAVINGS - FREEDOM OF TRADE - Amendment to - Validity. Constitution of India, Art.301, Art.366, Art.372. So long as the defence of india rules continue unabrogated, the powers vested in the Provincial Govt. under those rules could be exercised to issue orders for the purpose of maintaining supplies and services essential to the life of the community. The amendment to Food Acquisition (Harvest) Order (1949) does not constitute a new law requiring previous permission of the President. The Constitution of India has not the effect of putting an end to the defence of india rules, or divesting the powers vested in the Provincial Govt. to make orders thereunder. The notfn. dated 31-1-1950 imposing restriction on the sale, purchase etc, of the food grainsSave made therein is perfectly intra Vires and does not contravene the provisions of the Constitution. The amendment to the order issued under the defence of india act, which is the existing law is not opposed to Art. 301 of the Constitution. (Para 4) (B) Mysore Food Acquisition (Harvest) Order (1949), Cl.19 - AGRICULTURAL PRODUCE - Punishment. Where the offence is committed in a distant village by an ignorant person on 26-2-1950 within less than a month after the notfn., dated 31-1-1950 no imprisonment is called for and a sentence of fine adequately serves the ends of justice. (Para 5) Advocate-General - for Govt. of Mysore; V. Krishna Murthy - for Resp. Judgement Balakrishnaiya, J. :- This is an appeal by the State of Mysore under s. 417, Criminal P. C. against the judgment in C. C. No. 749 of 49-50 of the Special First Class Mag. of Nanjangud. The resp. was prosecuted for an offence under R. 81 (4), Defence of India Rules read with cl. (19) of the Articles of Food Acquisition (Harvest) Order, 1949, for having unauthorisedly sold foodgrains.

2. The possession and sale ofSave is the food-grain concerned in the offence. The Mag. on evidence, found that the accused soldSave and in addition, had in his possession 600 seers of the commodity in two gunny bags kept for sale in the shop and 10 bags ofSave were found to have been stored inside the house attached to the shop which was seized by the Police. The accused pleaded that he has not committed any offence either by possession or by sale ofSave.Save is not one of the food, grains mentioned in the Harvest Order of 1949 as it stood on 26-1-1950; but it was introduced therein by an order made by the Provincial Govt. in the exercise of their powers under Rr. 75 and 81, Defence of India Rules by a notfn. dated 31-1-1950. The learned Mag. held that this notfn. was invalid inasmuch as it imposes a fresh restriction on the freedom of trade offending Art. 301 of Part XIII of the Constitution of India and consequently found that the accused is not guilty and acquitted him.

3. Sri V. Krishnamurthy, the learned counsel for the accused, supported the judgment of the Mag. and contended that after the commencement of the Constitution of India, the Provincial Govt. is precluded from passing an order which will affect the provisions of the Constitution. It is argued that under the amendment in question, rights conferred in Part XIII of the Constitution regarding the freedom of trade, commerce and intercourse are affected and that it is only the Parliament that could impose restrictions on the freedom of trade and commerce and if the Legislature of any State seeks to make a law in that respect it must obtain the previous sanction of the President.

4. The question for consideration is whether the amendment issued on 31-1-1950 under the notfn. by the Provincial Govt. subsequent to the commencement of the Constitution of India is ultra vires. The termexisting law under cl. (10) of Art. 366 means: "any law, Ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, Ordinance, order, bye-law, rule or regulation." It is undisputed that the rules made under the defence of india act and continued by the Miscellaneous Provisions Act XX [20] of 1947 form the existing law on 26-1-1950 and such law : "shall continue to be in force therein until altered or repealed or amended by a competent Legislature or other competent authority" as provided by Art. 372 (1) of the Constitution. It is contended that though the rules under the defence of india act are continued as the existing law, no power is reserved in the Provincial Govt. under the said rules to pass orders for regulating or prohibiting the storage, distribution and disposal of the foodgrains. We are unable to agree with this contention. So long as the defence of india rules continue unabrogated, the powers vested therein in the Provincial Govt. under those rules could be exercised to issue orders for the purpose of maintaining supplies and services essential to the life of the community. The amendment to the Harvest order does not constitute a new law requiring previous permission of the President. The Constitution of India has not the effect of putting an end to the defence of india rules, or divesting the powers vested in the Provincial Govt. to make orders thereunder. It is not denied that the notice of amendment was duly published as required by R. 119, Defence of India Rules and the procedure followed is not in any way defective. The notfn. dated 31-1-1950 imposing restriction on the sale, purchase etc. of the food-grainSave made therein is perfectly intra vires and does not contravene the provisions of the Constitution. We are, therefore, unable to agree with the interpretation of the learned Mag. that the amendment to the order issued under the defence of india act, which is the existing law is opposed to Art. 301 of the Constitution.

5. This leads us to the consideration as to whether the acts of the accused in having stored and soldSave constitutes an offence. Clause (4) of sub-cl. (1) of the Harvest Order imposes restriction on the persons from selling or otherwise disposing of food-grains except as provided in the said order. Sub-cl. (2) enacts that no person shall purchase, receive or come into possession of any foodgrains without the permission of the Govt. and sub-cl (3) also slates that even the foodgrains permitted to be retained shall be sold to Govt. and any sale otherwise shall be null and void. Either possession or sale without permission is prohibited and the contravention of the requirements is made punishable. The accused who possessed and soldSave the article of food is guilty nudes the amended Harvest Order. Rule 19 of the Harvest Order imposes punishment by imprisonment to a term which may extend to three years in addition to fine unless for reasons to be recorded in writing the Ct. is of opinion that in the circumstances of the case, the sentence required is adequate and the imprisonment is not called for, and if the Ct. is satisfied that the order has been contravened the property shall be forfeited to Govt. In this case the offence is committed in a distant village by an ignorant person on 26-2-1950 within less than a month after the notfn. We are of opinion that no imprisonment is called for in the circumstances of the case and a sentence of fine will adequately serve the ends of justice.

6. In the result, we set aside the order of acquittal, find the accused guilty under cl. (19) of the Harvest Order read with R. 81, Defence of India Rules and sentence him to pay a fine of Rs. 50 and in default to undergo imprisonment, simple for three months. The entire commodity seized shall be forfeited to Govt. as undoubtedly the order is contraversed by the accused. Order accordingly. AIR (38) 1951 MYSORE 66 [C. N. 30.] "Ratilal Bros. v. Govt. of Mysore" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VENKATA RAMAIYA, J. ( Division Bench ) Ratilal Bros. - Petnrs. v. The Govt. of Mysore and another - Resps. Civil Petn. No. 17 of 1950-51, D/- 6 -11 -1950. (A) Mysore House Rent and Accommodation Control Order (1948) - HOUSES AND RENTS - ACCOMMODATION CONTROL - Houses and Rents - Several applns. Where on the date of the first appln. for eviction bated on the allegation that the landlord required the premises for his own occupation there was no provision for enabling the landlord to seek possession of the property for his own occupation and the landlord availed himself of the amendment subsequently made in this behalf in the later apple, the second appln. cannot be held to be barred on account of the need for the building being stated to be the same as that in the prior appln. (Para 4) (B) Mysore House Rent and Accommodation Control Order (1948), Cl.9, Cl.12 - HOUSES AND RENTS - ACCOMMODATION CONTROL - Houses and Rents - Scope of. Clause 12 no doubt states that without the written permission of the Controller a residential building cannot be converted into a non-residential one. But this is not a condition imposed under cl. 9 for disposal of an appln. made by the landlord. In other words the existence of the permission of the Controller for converting a residential building into a non-residential one is not a condition precedent to a valid appln. for eviction under cl. 9. (Para 4) (C) Mysore House Rent and Accommodation Control Order (1948), Cl.9(3) - HOUSES AND RENTS - WORDS AND PHRASES - Houses and Rents - "Occupation" - Meaning of. The word occupation is not synonymous withresidence under cl. 9 (3). It is not necessary that the landlord should himself live in the building. Where the landlord is an association and it wants to conduct a school, the building must be in the occupation of the members of the association directly if they themselves conduct it or constructively if it is done through others: A. I. R. (14) 1927 All. 214 ; 10 Bom. L. R. 38 and (1842) 114 E R 198, Ref. (Para 5) (D) Constitution of India, Art.226 - WRITS - Writ of certiorari - When can be issued. Tbe writ of certiorari does not issue to correct purely executive acts but, on the other band, its application is not narrowly limited to inferior "Courts" in the strictest sense. Broadly speaking, it may be said that if the act done by the inferior body is a juridical act, as distinguished from being a ministerial act, certiorari will lie: A. I. R. (30) 1943 P. C. 164, Rel. on. (Para 2) B. Shankar Rao for K.V. Subbarao - for Petnrs. Advocate-General - for the Govt. of Mysore; M.V. Srinivasa Iyengar - for Resp. No. 2. Judgement Venkata Ramaiya, J. :- This petn. is under Art. 226 of the Constitution of India for the issue of writs of certiorari and prohibition to quash the order passed by resp. 1 and for a direction that the said order should not be executed. The ground on which the writs are sought is that the order passed by resp. 1 for eviction of the petnrs from the premises of which resp. 2 is the owner is without jurisdiction under the provisions of the Mysore House Rent and Accommodation Control Order. Respondent 2 is said to be an unregistered association of Jains of the Swetambar cult and purchased the building in about the year 1947 for the purpose of running a residential Hindi school. The petnrs. have been the tenants of the premises from a time long prior to the date of the purchase by resp. 2. An appln. made by resp. 2 to the House Rent Controller for eviction of the petnrs. on the ground that it was needed for opening the school was unsuccessful. A similar appln. filed in the following year was allowed by the House Rent Controller dismissed by the Labour Comr. on appeal but eventually granted by the Govt. It is this order of Govt. which is attached by the petnrs. and wish respect to which the write are prayed for.

2. It is beyond dispute, this Ct. has jurisdiction to issue the writs as this is clearly provided for in Art. 226 of the Constitution of India, but the conditions for the exercise of the power are not mentioned therein. The nature of these writs is explained by Atkin L. J. in The King v. Electricity Commrs., (1924) 1 K. B. 171 at p. 204 : (93 L. J. K. B. 390) thus : "The matter comes before us upon rules for writs of prohibition and certiorari which have been discharged by the Divisional Ct. Both writs are of great antiquity, forming part of the process by which the Kings Cts. restrained Cts. of inferior jurisdiction from exceeding their powers. Prohibition restrains the tribunal from proceeding further in excess of jurisdiction; certiorari requires the record or the order of the Ct to be sent up to the Kings Bench Division, to have its legality inquired into, and if necessary, to have the order quashed. It is to be noted that both writs deal with questions of excessive jurisdiction, and doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a Ct. of Justice. But the operation of writs has been extended to control the proceedings of bodies which do not claim to be, and would not be recognised as Cts. of Justice. Wherever and body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the Kings Bench Division exercised in these writs." As observed by Lord Chancellor (Viscount Simon) in Ryots of Garabandho v. Zamindar of Parlakimedi, A. I. R. (30) 1943 P. C. 164 : (I. L. R. (1944) Mad. 457) the writ of certiorari does not issue to correct purely executive acts but, on the other hand, its application is not narrowly limited to inferior "Courts" in the strictest sence. Broadly speaking, it may be said that if the act done by the inferior body is a juridical act. as distinguished from being a ministerial act, certiorari will lie.The order passed by the Govt. against the petnrs. cannot be said to be of a ministerial kind and it is, therefore, necessary to see as to whether it was beyond the powers given to them by the House Rent and Accommodation Control Order.

3. Sri B. Shankar Rao, the learned counsel on behalf of the petnrs has advanced three contentions to show that the order is one passed in excess of the powers conferred by the House Rent and Accommodation Control Order and these are: (1) when once an appln for eviction based on the allegation that the premises were required for running a school was dismissed, a second appln. Betting forth the same reason does not lie: (2) Clause 12, House Rent Control Order, requires permission to be obtained for converting a residential building into a non-residential one and since no such permission has been obtained by resp. 2, to make use of the budding for running the school, the appln. for eviction was not maintainable and (3) running a school in the building cannot be regarded as occupation under cl. 9 (3) (i), House Rent Control Order and it is necessary that resp. a should himself live there for the application of that provision.

4. As it is conceded that on the date of the first appln. there was no provision for enabling the landlord to seek possession of the property for his own occupation and resp 2 availed himself of the amendment subsequently made in this behalf in the later appln., the objection to the second appln. as being barred on account of the need for the building being stated to be the same as that in the prior petn. fails. The second objection relates to the effect of cl. 12. Clause 12 no doubt states that without the written permission of the Controller a residential building cannot be converted into a non-residential one. But this is not a condition imposed under cl. 9 for disposal of an appln. made by the landlord, in other words the existence of the permission of the Controller for converting a residential building into a non residential one is not a condition precedent to a valid appl. for eviction under cl. 9. Clause 9 (3) (a) for the application of which exception is taken reads as follows: "A landlord may also apply to the Controller for an order directing the tenant to put him in possession of a house in the following cases

(i) if the house, being a residential building, is required for the bona fide occupation of the landlord and he is not already occupying another residential building of his own in the same city, town or other area ;

(ii) if the house, being a non residential building, is required for a business which the landlord is carrying on or which he wants to start and he is not already in occupation of a non-residential building in the same city, town or other area for purposes of such business." It is thus seen that the wordpossession is used with reference to the order the Controller makes and occupation for the requirement of the landlord. The wordoccupation occurs in both sub-cls. 1 and 2 with reference to residential as well as the nonresidential buildings. Whether the meaning to be attached to these is the same or different is not clear but a distinction is male betweenpossession andoccupation in the strict legal sense. While occupation includes possession and also something more, legal possession does not of itself constitute possession (Strouds Judicial Dictionary). If as contended for the petnrs.occupation is synonymous withresidence, then the word could not find a place in sub-el. (ii) and the wordresidence in the place ofoccupation in sub-cl. (i) would be more appropriate and have better fitted with the petnrs construction.

5. The termoccupation is not defined in the House Rent Control Order and seems to have wider signification thanresidence. Such a construction has been placed on it in the application of other enactments in which the word is used. In Baladin v. Lakhan Singh, A. I. r. (14) 1927 ALL. 214 : (99 I. C. 376) it was observed that the word "occupation" in S. 60 (c), Civil P. C., does not necessarily mean residence only. In Emperor v. Taylor, 10 Bom L. R. 88, the question as to how the word "occupation" in the Factories Act is to be construed arose for consideration, Chandavarkar J., remarked : "What is an occupation is a question of fact in each case to be determined with reference to certain well-known principles of law. The learned Mag. who has made the reference seems to think that the legal meaning of "occupier is a person who is in actual possession. But a person may occupy or possess a land or building actually or constructively..... The question who is the occupier of a factory must therefore depend among others upon these considerations namely who alone has the right of using the factory for the purpose for which it is constructed and worked. whose is the predominant possession of and general superintendence over it." The wordoccupy is a word of uncertain meaning. Sometimes it indicates legal possession in the technical sense. At other timesoccupation denotes nothing more than physical presence in a place for a substantial period of time. In Queen v. The Justices of the West Biding of Yorkshire, (1812) 114 E. R. 198 : (2 Q. B. 504) Patteson J. expressed thus: "Now i quite concede that the wordoccupy applies to a house, conveys to any man the meaning of living in the house; ninety-nine persons in a hundred, at least would so understand it ... . Even "actual occupation" would not necessarily meanresidence, because a man might dwell in one parish and "rent a house and land in the adjoining -one, occupying it by his servants. Some other words therefore, are necessary to show residence. Wightman J., explicitly said "A man may occupy either land or dwelling house without residing." The definition oflandlord induces guardians, trustees and receivers for any other person and if such persons happen to be more than one should they all or all the legal owners reside in the premises in order to invoke the aid of cl. 9 (3) (i), House Rent Control Order? In this case resp 2 is not an individual person but an association the members of which cannot possibly reside together. But they want to conduct a school and for this the building must be in their occupation, directly if the members themselves conduct it or constructively if it is done through others. Clause 9 (3) (b) states that if the Controller is satisfied that the claim of the landlord is bona fide, he can direct the tenant to put him in possession of the building. The order of the Govt. implies that it is so and cannot be considered to be without jurisdiction. The petn. is, therefore, dismissed. Petition dismissed. AIR (38) 1951 MYSORE 68 [C. N. 31.] "The Dominion of India v. B. R. C. and Sons" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) The Dominion of India - Deft.-Petnr. v. Batchu Ramiah Chetty and Sons - Pltfs. - Resps. Civil Revn. Petn. No. 90 of 1949-50, D/- 28 -2 -1951. (A) Limitation Act (9 of 1908), Art.30, Art.31 - LIMITATION - APPLICABILITY OF AN ACT - RAILWAY - Applicability - Risk Note A. Railways Act (9 of 1890), S.72. Six cases containingAspro bundles were booked with M. S. and M. Rly. with Risk Note A. When the goods were offered for delivery on 6-8-1947 to the pltf. the contents of the consignment were found short by 14 bundles. The pltf. thereupon insisted upon open delivery which the Rly. agreed to do without prejudice to their legal position but this reservation was not accepted by the pltf. Ultimately when after some correspondence the pltf. took delivery on 20-11-1947 there was further shortage by 24 bundles : Held, that (1) the conduct of the pltf. in refusing to take delivery of the articles without prejudice to the Rlys. legal position was not justifiable or reasonable as it was in any event open to him to prefer his claim in a Ct. of law. The further loss found on 20-11-1947 was not due to any misconduct on the part of the Rly. and the mere fact that the Rly. required the pltf. to take delivery without prejudice to their legal position could not be characterised as misconduct : A. I. R. (35) 1948 Nag 65, Rel. on. (Paras 3, 4) (2) That the Article applicable was Art. 30 and not Art. 31. The loss wan discovered on 6-8-1947 and the pltf. could not claim extension of time on account of correspondence with the Rly. which was uncalled for ; A. I. R. (22) 1935 All. 407, Rel. on. (Para 6) Anno. Lim. Act, Art. 30, N, 1, 7; Art. 31 N. 2, 10; Rlys. Act, s. 72 N. 5. (B) Limitation Act (9 of 1908), Art.31 - LIMITATION - Non-delivery of goods. The expressiongoods has reference to the unit number of articles tendered for carriage and not to the details of its contents.Delivery of the articles ordinarily implies the delivery of the number of articles entrusted, irrespective of the condition in which they are found.Non-delivery would therefore mean the failure to deliver the unit number mentioned in the consignment either as a whole or in part. (Para 6) Anno. Lim. Act, Art. 31, N 7. E. Nanjundiah and C.K. Narayana Rao - for Petnr.; S. Govinda Rao - for Resps. Judgement Order. - This petn. is to revise the judgment and decree in S. C. No. 83 of 1948-49 on the file of the learned Dist. J Civil Station, Bangalore. The facts of the case in brief are as under : Six cases alleged to containAspro bundles were booked on 1-8-1947 with M. S. and M. Rys. owned and managed by the petnr-deft. under invoice No 4165 Ex Salt Cotaurs Madras to Bangalore Cantonment with Risk Note Form A, by Messrs. J. L. Morrison Jones, India, Ltd., Madras to the pltf. When the goods were offered for delivery on 6-8-1947 to the pltf. one case was found damaged and when all the cases were opened the contents of the consignment were said to have been short by 14 bundles ofAspro of the value of Rs. 34-7-0 according to the pltf. The pltf. thereupon appears to have insisted on obtaining open delivery of the goods and the defts. agreed to do so without prejudice to their legal position, which reservation, it is averred, was not accepted by the pltf. Ultimately, when the goods were, in fact, taken delivery by the pltf., i. e. on 20-11-1947, delivery being without prejudice to the legal position of either party it was claimed by the pltf. that there was further shortage by 24 bundles ofAspro The pltf. has, therefore, claimed Rs. 102-4-0, the value of 39 bundles ofAspro together with Rs. 82-8-0 towards loss of interest on the amount invested on the goods. The deft. denied his liability for the condition in which the cases were received and delivered and for the shortage of 14 bundles ofAspro as the pltf. was bound by the terms of Risk Note A as under the said Note, the deft. was not liable except on proof of the loss being due to the misconduct of the deft. co. The deft. did not admit any liability in respect of the further shortage of 24 bundles ofAspro on the ground that it was occasioned by the untenable attitude of the pltf. who it is averred could have taken open delivery of the goods and accepted the offer of payment of Rs. 34-7-0 towards the shortage of 14 bundles ofAspro, without prejudice to the legal position of the deft. It was also asserted that the pltfs. claim for interest was untenable. The learned Dist. J. however, decreed the suit in respect of the value of 89 bundles ofAspro with proportionate costs. This revn. petn. is against the said judgment and decree.

2. The point for consideration in this petn. is as to whether the deft. is liable for the shortage of goods discovered on 5-9-1947 and 20-11-1947 respectively. In regard to the shortage of 14 bundles of Aspro" found on 5-9-1947, the Rly. Administration offered to pay its value and sent a cash order for Rs. 34-7-0; the offer which was not withdrawn till "the filing of the suit, amounted to an acknowledgment of the liability under S. 19, Limitation Act, on the part of the deft. and I am inclined to agree with the finding of the learned Dist. J. and held that the decree to that extent cannot be disturbed.

3. In regard to the claim for the loss of 24 bundles ofAspro found on 20-11-1947 the question is whether it was due to the misconduct of the deft. or his servants in which case, the terms in the Risk Note a would be enforceable and the liability for the loss would be fixed on the deft. or whether it was occasioned by the unreasonable attitude of the pltf. in refusing to take delivery of the goods on 6-8-1947 in which case the suit would be barred by time Admittedly, the goods were received on 5-8-1947 and on 6-8-1947 when the pltf. went to take delivery of the goods he found that the planks of some of the cases ofAspro had been broken and on 7-8-1947 he wrote to the Chief Commercial Manas of the deft. co. intimating the above fact and requesting him to issue instructions for open delivery of the goods. The pltf. is unable to show that he was entitled to insist on or get an open delivery of the goods whether by reason of any established principle of law or terms of contract; the deft. however, agreed to do so and gave necessary instructions for giving an open delivery of the goods. On 5-9-1947, the pltf. went to take delivery of the goods in accordance with the instructions but refused to do so on the ground that the Rly. authorities asked him to note in the delivery book without prejudice to the Rlys. legal position". The conduct of the pltf. in refusing to take deli-very of the articles without prejudice to the Rlys legal position cannot by any means be said to be justifiable or reasonable, as it was in any event open to him to prefer his claim in a Ct. of law. It is admitted that the contract is covered by Risk Note a which is prescribe! when the goods tendered for carriage are defectively packed as to render them liable to damage, and one of the terms therein is that the consignor holds the Rly. administration free from all responsibility for the condition in which the aforesaid goods may be delivered to the consignee at the destination and for any loss arising from the same except on proof that such loss aross from the misconduct on the part of the Rly. administration. There is no liability cast on the Rly. administration under Rick Note a to account for the loss, if any, but on the other hand, it throws the entire onus on the pltf. to prove misconduct on the part of the Rly. administration.

4. The further loss of 24 bundles ofAspro found on 20-11-1947 is neither alleged, nor proved to be due to the misconduct on the part of the deft. or his servants and the mere fact that the deft. required the pltf. to take delivery of the goods without prejudice to his legal position cannot id any event be characterised as misconduct.

5. It is urged that the Rly. administration is responsible for the loss as the goods were left in their custody till 20-11-1947. It is not denied that the goods were ready for delivery on 6-8-1947. Even on 6-9-1947 the shortage was discovered to be only 14 bundles for which the Rly. administration admitted their liability. The goods had to be retained owing to the unreasonable attitute of the pltf. The pltf. should not have refused to take delivery or imposed his own conditions whatever remedy he may have had to enforce damages for the liability of the carriers. The proper remedy of the consignee is to take delivery of the damaged goods and claim damages thereafter. This aspect was the subject matter of decision by the Nagpur H. C. in Jusaf and Ismail Co. v. Governor-General in Council, A. I. R. (35) 1948 Nag. 65: (i. L. R. (1947) Nag. 335), wherein it was laid down thus: "The consignee should take delivery of the consignment in the condition in which it is found after giving notice to the officer giving delivery as to its condition and then sue the Rly. Co for damage or shortage, if any. He has no right in law to insist that either the Rly. Officer should make or he himself should be permitted to make an endorsement as to the damaged condition of the consignment in Rly. registers before taking delivery."

6. The next point for consideration is about the bar of limitation. It is indisputable that the goods were presented to the pltf. to take delivery on 6-9-1947; the pltf. refused to take delivery on the ground that there was injury or damage to the cases and demanded open delivery as evidenced by his letter dated 7-8-1947, A reply was sent to him on 14-8-1947 acceding to his request, but he presented himself on 5-9-1947 and did not even then take delivery. He chose to enter into unnecessary correspondence and finally took delivery of the goods only on 20-11-1947. It is argued that since the question of his taking delivery was under correspondence, the point of time when the goods ought to have been delivered must be deemed to be 20-11-1947 and the suit would then be within time under Art. 31, Limitation Act. Art. 31 applies to a suit against a carrier for compensation for non-delivery of goods. The expressiongoods has reference to the unit number of articles tendered for carriage and not to the details of its contents.Delivery of the articles ordinarily implies the delivery of the number of articles entrusted; irrespective of the condition in which they are found.Non-delivery would therefore mean the failure to deliver the unit number mentioned in the consignment either as a whole or in part; the expressionshort-delivery connotes the delivery of articles short of the number consigned for delivery. In the present esse, the packages consigned were six in number and all of them were delivered. The complaint is about the absence of a portion of the contents and not non-delivery of the cases or portion thereof The argument that the absence of a portion of the contents of the cases consigned for delivery should be deemed asshort-delivery to that extent, and in consequence to be construed asnon-delivery as contemplated under Art. 31, Limitation Act, does not command itself. The shortage in the contents of the goods consigned is loss or injury to the goods. The article of the limitation act applicable to the circumstances of the present case is Art. 30 and not Art. 31. A period of one year is fixed under that provision and the time begins to run when the loss or injury occurs. The loss or injury to the goods was discovered on 6-8-1947 as admitted in the letter of the pltf. dated 7-8-1947. The pltf. cannot claim extension of time on account of the correspondence - which was uncalled for - regarding open delivery he obtained, as observed in Secretary of State v. Neaz Ali Hamid Ali, A. I. R. (22) 1935 ALL 407 : (157 I. C. 46). "Under Art. 30, time begins to run from a perfectly definite date that is when the loss or injury occurs. Hence when it is clearly shown by the admission of the consignors letter of 5-8-1931 that the loss had occurred prior to that date, a suit brought on 15-10-1932 is clearly time-barred. In such a case pltf. cannot claim that limitation runs only from date of open delivery to him by the company." I am therefore of opinion that the present suit filed on 18-11-1948 is clearly barred by time as the loss was discovered on 6-8-1947 itself and time begins to run from that date alone.

7. In the result, the decree of the learned Dist. J. is modified by allowing the pltfs. claim for Rs. 34-7-0 only. The rest of the suit claim is dismissed, parties bearing their own costs throughout. Order accordingly. AIR (38) 1951 MYSORE 70 [C. N. 32.] "Rama Iyer v. Govt. of Mysore" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) G. V. Rama Iyer and others - Accused - Petnrs v. Government of Mysore - Complainant - Resp. Criminal Revn. Petns. No. 164, 165 and 290 of 1950-51, D/- 13 -3 -1951. Mysore Sales Tax Act (46 of 1948), S.20(b) and S.22 - SALES TAX - Sales Tax - Validity of assessment if can be questioned in criminal Ct. The remedy allowed under S. 20 (b) for the enforcement of payment of assessed tax in a criminal Ct. is of a summary nature. Where, therefore, it is proved to the satisfaction of the Ct. that the assessee has become liable under the Act for payment, of sales tax, it is not the province of a criminal Ct. to enter into an enquiry about the correctness of the levy or the validity thereof. A. I. B (36) 1949 Mad. 418, Distd. (Para 5) M.R. Subramanyam (in Nos. 164 and 165) and Nittoor Srinivasa Rao (in No. 290) - for Petnrs.; The Advocate General - for Resp. Judgement Order. - The petnr. in Crim. Revn. Petn. No. 164 is the proprietor of a Coffee Club and Catering Establishment at Horakote who has been assessed to a tax of Rs. 156 on the turnover of his business estimated at Rs. 10,000 a year. The levy is stated to be provisional and a demand notice was served on him on 26-3-1949. He failed to pay the assessment though the time prescribed for payment had .expired. The petnr. in Crim Revn. petn. No. 165 is a Soda Manufacturer and Bakery merchant at Hosakote. He was also provisionally assessed to a tax of Rs. 156 for the year 1948-49 on the turnover of his business. A demand notice was served upon him and he failed to pay the tax within the time allowed. Both of them were prosecuted under S. 20 (b), Mysore Sales Tax Act In both the cases, the receipt of the notice is admitted and the plea raised isnot guilty. They have challenged the validity of the tax. A preliminary objection was raised by the prosecution that the Ct. is precluded from considering the validity of the tax which was overruled holding that the accused is perfectly at liberty to question or challenge the assessment or any other action taken by the authorities under the Act. On merits, the learned Mag. held that the levy of the tax is justified and disallowed the objection and that the rules were not ultra vires of the Rule Making Power of the Govt. and the rules relating to the provisional assessment were well within the ambit authorised. The accused in both the cases were convicted and sentenced to pay a fine of Rs. 25 with a direction that the tax assessed shall be recovered as if it were a fine.

2. The petnr. in Crim. Revn. Petn. No. 290 is a merchant dealing with ground nuts at Davangere who was also prosecuted for non-payment of the tax levied and convicted to pay a fine of Rs. 150 in addition to the tax levied. His plea, while not disputing the facts of the case, is that he was not liable to pay the tax assessed as the assessment order is itself illegal and ultra vires and outside the provisions of the Mysore Sales Tax Act. The Mag. in the latter case came to the finding that a criminal Ct. cannot assume jurisdiction to question the legality or propriety of the order of assessment passed by the assessing authority.

3. The common question that is canvassed in all these cases is whether a criminal Ct. is or is not precluded from examining the validity of the assessment. It is argued for the assessees that they are not liable to pay the tax by reason of the fact that the turnover does not exceed Rs. 10,000 per year and the Assessing Officer has to prove their liability without which the tax levied is invalid and illegal. The assessee in the cases under consideration comes under the definition of adealer meaning any person who carries on business of buying and selling. Sections 5 to 9. Mysore Sales Tax Act provide for the grant of licences of exemption from taxation. Sections 10 and 11 deal with registration of dealers and collection of tax. The procedure to be followed by the Assessing Authority is prescribed in S. 12 under which every dealer is required to submit a return and the Assessing Authority shall assess the tax if he is satisfied that the return is correct and complete; If the return is not submitted or, if it appears to the Assessing Authority that the return submitted is incorrect and incomplete, the Assessing Authority shall assess the dealer to the best of his judgment, after giving a reasonable opportunity to the assessee to prove the correctness and completeness of the return submitted by him. Section 14 of the Act provides for filing an appeal objecting to an assessment. Section 15 constitutes the Govt. as the Revising Authority. Alter appeal and revn., the dealer or the Assessing Authority may, by appln. in writing, require the Appellate or the Revisional Authority to refer to the H. C. any question of law arising out of such order and if the Appellate or the Revising Authority refuses to make such reference, the appct. may apply to the H. C. within thirty days of such refusal order under S. 16 of the Act. It is thus seen that in the words of Lord Uthwatt Raleigh Investment Co. Ltd. v. Governor General in Council, a. i. R. (34) 1947 P. C. 78 : (74 i. a. 50). "Effective and appropriate machinery is therefore provided by the Act itself for the review of the grounds of law of any assessment".

4. Section 20 deals with offences and penalties and the relevant portion of the section applied to these cases is cl. (b) which reads with the section thus: "Any person who fails to pay within the time allowed, any tax assessed on him, or any fee due from him, under this Act shall on conviction by a Mag. of the First Glass be liable to a fine .... and the tax, fee or amount so specified shall be recovered as if it were a fine". Under S. 22 of the Act, the assessments fixed by the Assessing Authority are precluded from being questioned in civil Cts. Section 25 of the Act enables the Govt. to make rules to carry out the purposes of the Act and the rules made by the Govt. prescribe a detailed procedure to be followed in the levy of tax. Rule 30 empowers the Assessing Authority to fix provisionally the tax on the basis of a return, the correctness of which if the Assessing Officer is satisfied; if he is not so satisfied, the officer may, after such enquiry, determine the turn-over of the dealer to the best of his judgment and fix provisionally the annual tax payable. After the provisional assessment, the assessee is given an Opportunity to file a return when the provisional assessment will be finalised.

5. It is not disputed that in all these cases, the Assessing Officer has complied with the provisions of the Act and the rules thereunder. The prosecution has thus made out a prima facie case regarding the levy of tax. It was open to the assessees to prove before the Assessing Authority that the turn-over upon which the tax is levied was incorrect. The assessees have defaulted in not having taken steps in that direction. If the assessees felt aggrieved by the order of the assessing Officer they might have questioned the decision of the Assessing Officer on facts or on law involved, by either an appeal under S. 14 or revn. under S. 15. In the absence of any such appeal or revn. within the tone prescribed, the decision of the Assessing Authority becomes final and the tax becomes payable. On failure to comply with the demand notice, it is open to the authorities under S. 13 to enforce the payment as if it were an arrear of land revenue. The assessee also incurs the penalty under S. 20 and the payment of tax would be enforced by an appln. to the concerned Mag. It is thus seen that a statutory obligation to pay arises by virtue of levy of the assessment under the provisions of the Act itself. The remedy for the enforcement of payment in a Criminal Ct. is of a summary nature and it is proved to the satisfaction of the Ct. that the assessee has become liable under the Act for payment. It is not the province of a Criminal Ct. to enter into an elaborate enquiry about the correctness of the levy or the validity thereof.

6. It is argued that S. 22 of the Act which runs thus : "Save as provided in S. 16, no assessment made and no order passed under this Act or the rules made thereunder by any assessing authority shall be called in question in any Civil Ct. and save as is provided in Ss. 14 and 15, no appeal or appln. for revn. shall lie against any such assessment or order." Only precludes a civil Ct. from calling in question the assessment made and the assessee is free to raise the question in a criminal Ct. As observed by Lord Uthwatt in the case referred to above at p. 81 : "Jurisdiction to question the assessment otherwise than by use of the machinery expressly provided for by the Act would appear to be inconsistent with the statutory obligation to pay arising by virtue of assessment." I have held earlier on 6-12-1950 in Cri. Revn. Petn. No. 230 of 1950-51 Thimmina Katte Kotrappa v. Asst. Sales Tax Officer, (A. i. R. (38) 1951 Mysore 37) that: "Section 22 prohibits the Civil Cts. from questioning by appeal or appln. by way of revn., the assessment made or an order passed by the Assessing Authority. If the provisions contained in the Act or the rules made thereunder, and the method and manner in which the orders are made are precluded from the cognizance by the Civil Cts. which evidently constitute proper forum, to test the legality or otherwise of the orders a fortiorari it follows that in the prosecution which are merely meant to penalise the default and enforce the payment of the tax assessed, the validity of the tax assessed cannot be questioned."

7. Relying upon a decision of the Madras H. C. in In re Appa Rao, A. I. R. (36) 1949 Mad. 418 : (50 Cr. L. J. 547) it was contended that under S. 15 (b), Madras General Sales Tax Act which is similar to S. 20 (b), Mysore Act, the H. C. came to the conclusion that: "... before that question can be decided, it is fully open to the accused to prove that the tax was not lawfully due and that no offence was, therefore, committed." The expressiondue used in S. 15(b) which penalises for failure to pay the tax due is interpreted to meanlawfully due. But the expression in our Act isfax assessed. It cannot be said that the expressionstax due and tax assessed" connote the same meaning. As there is fundamental difference between those expressions the decision under the Madras General Sales Act is inapplicable. The Madras Legislature amended the Act by adding S. 16 (A) which bars the criminal Cts. from entering into the legality or otherwise of the assessment. Even after the amendment the ruling is applied to the assessment for the period prior to the date of amendment. It is represented at the Bar that the Mysore Legislature has recently adopted an amendment of S. 22 by omitting lie expressionCivil in S. 22, Mysore Act, which in effect precludes any Ct. civil or criminal, from entering into the validity of the taxation. On the grounds of the Madras decision. I am asked to apply similar interpretation since the tax under consideration relates to a period earlier to the amendment. The amendment in Mysore is introduced to remove possible doubts that may be entertained in construing the provisions of the Act. Even without the amendment, this Ct. had come to the conclusion that criminal Cts. have no jurisdiction to question the validity of the tax. The prosecution has proved the liability of the assessees on facts in the first two cases and on law in the last mentioned case. I am, therefore, of opinion that the conviction in all the three cases should be upheld. Regarding the sentence, the amount of fine levied in Cri. Revn. Petns Nos. 164 and 165 is Rs. 25 each, which is by no means heavy; but the levy of Rs. 150 in cri. Revn Petn. No. 290 appears to be rather severe, and I, therefore, reduce it to Rs. 50.

8. In the result, with the modification of sentence in cri. Revn. Petn. No. 290, all the petns. fail and are dismissed. Petitions dismissed. AIR (38) 1951 MYSORE 72 [C. N. 33.] "Abdul Khader v. State of Mysore" MYSORE HIGH COURT FULL BENCH Coram : 3 VENKATA RAMAIYA, BALAKRISHNAIYA AND MALLAPPA, JJ. ( Full Bench ) Pailwan Abdul Khader and others - Accused - Petnrs. v. State of Mysore. Cri. Petns. Nos. 69 to 72 of 1950-51, (Cri. Referred Nos. 7 and 6 of 1949-50), D/- 22 -1 -1951. (A) Mysore Special Criminal Courts Act (24 of 1942) - CRIMINAL COURT - CIVIL COURT - RIGHT TO LIFE - LAW - EQUALITY - Act setting up special criminal Cts. - Executive authorities given discretion to determine cases for trial before them - Special procedure prescribed - Validity - Constitutional law - Delegated legislation. Civil P.C. (5 of 1908), S.9. Constitution of India, Art.13, Art.14, Art.21. Per Venkata Ramaiya and Balakrishnaiya, JJ. - (Mallappa J. dissenting): - The Mysore Special Criminal Courts Act even when Mysore had not become integrated into the Union was not ultra vires the Legislature. Nor has it been, after the commencement of the Constitution of India, rendered ab initio void on the ground that its provisions are repugnant to the fundamental rights guaranteed under Arts. 14 and 21 of the Constitution. (Para 40) The Act on account of the Constitution of Sp Cts. and cases for trial before them being left to the discretion of the Govt. or a servant of a Govt. and not fixed by the Legislature itself, cannot be impugned as delegating legislation since it dots not give any right to the executive to make the law but only provides hat it will come into operation at such time and in such areas as may be determined by the Govt. or a servant of the Govt. (Para 8) Nor can it be urged that the trial in the Sp. Ct. is illegal because the charge-sheets were in the first instance placed in ordinary Cts. of the land and subsequently the cases were tried in the Sp. Ct. by the Sp. J. without the formality of the transfer provided for in the ordinary procedure. (Para 33) A Sp. J. is not therefore debarred from taking cognizance of the case pending before another Mag. (Para 33) Nor is it ultra vires on the ground that the Special Criminal Courts Act deprives the persons their vested rights in the ordinary procedure prescribed by the general law in the matter of evidence and the right of appeal. No person could be said to have a vested right to a particular remedy in procedure. (Para 35) It is open to the Legislature to determine what evidence may be received and the effect of such evidence so long as fundamental rights are preserved. A right of appeal is not considered to be essential for protection of due process of law. (Para 35) Equal protection of law affords no guarantee as to a particular form of procedure, or the usual form of evidence, or the right of appeal so long as there is equal protection in the treatment of all persons equally circumstanced. (Para 36) There is neither vested right to any particular form of trial or procedure for to a right of appeal they being the creation of the Statute should be governed by the Statute with which a particular offender is tried. (Para 38) As the accused do not get a vested right of trial in the ordinary Cts. merely because the proceedings were initiated in such Cts. trial of such persons by the Sp. Cts. after a direction by the Govt. that the offences committed are to be tried by the Sp. Ct. cannot be said to be illegal. (Para 39) Assuming that the Act has become void after the Constitution, it does not affect the pending proceedings launched earlier to the commencement of the Constitution. Having regard to S. 6, General Clauses Act, it cannot be said that the Special Tribunal set up by the impugned Act and before which the proceedings were pending, ceased to exist or the proceedings have been rendered void. The proceedings remain unaffected and could continue under the impugned Act as if the Act has not been repealed. (Para 45) Per Mallappa J. - It cannot be said that the Special Criminal Courts Act was ultra vires prior to the Constitution. (Para 49) But the impugned Act has, after the Constitution, to be declared void as it is inconsistent with Art. 14 of the Constitution. (Para 57) The Act makes it possible even for a Police officer to discriminate between one person and another without reasonable basis. The Act enables the Govt. or an officer authorised by Govt. to indiscriminately take away the privileges an offender has under the Criminal P. C. and thus "equality before the law or the equal protection of the laws" is denied by the State by proceedings under the Special Criminal Courts Act. (Para 54) The Act is, therefore, void on the morning of 26-1-1950. (Para 57) Where the proceedings under the impugned Act have not been concluded before 26-1-1950, it is difficult to hold that after the Constitution which has declared this Act to be void, it is correct to allow the accused to be subjected to the review proceedings under the Act declared to be void. (Para 60) Section 6, General Clauses Act, does not authorise the trial of the accused under the Special Criminal Courts Act declared to be void, to be continued at any rate after the Constitution, in the review proceedings which form part of the procedure provided under the impugned Act. (Para 72) (B) Constitution of India, Art.374(2) and Art.141 - FEDERAL COURT - PRECEDENT - Retrospective effect - f. C. decisions - If binding on Cts. not subject to its jurisdiction, after commencement of Constitution. Up to the date of the Constitution neither the judgments of the F. C. nor those of the P. C. were binding on the Mysore H. C. Both were of persuasive and not authoritative value and decisions of the Mysore H. C. were final, not subject to appeal or judicial interference from any tribunal. Under the Constitution of India the decisions of the Mysore H. C are subject to appeal to the S. C. and that Court is bound by the law declared by the S. C. This cannot be construed as giving retrospective force to previous decisions of the F. C. so as to bind Cts. not formerly subject to its jurisdiction. (Para 6) (C) Constitution of India, Art.374(2), Art.141, Art.372, Art.395 - FEDERAL COURT - PRECEDENT - REPEAL AND SAVINGS - F. C. judgments reversed by P.C. - If binding after commencement of Constitution. Abolition of Privy Council Jurisdiction Act (5 of 1949), S.8. In those cases in which judgments of the F. C. were reversed by the P. C. what determines the rights of parties and to be given effect to is the decision of the P. C. because of Arts. 372 and 395 of the Constitution of India. (Para 6) (D) Abolition of Privy Council Jurisdiction Act (5 of 1949), S.8 - PRIVY COUNCIL - Construction. A construction which seeks to limit the application of the Section to conclusions as distinguished from the reasons assigned in support thereof, to Orders in Council and not to judgments of P. C. which are expressed in an advisory or recommendatory form, seems to be narrow and opposed to the spirit if not the letter of the section. (Para 6) (E) INTERPRETATION OF STATUTES - Interpretation of Statutes - Ultra vires - Burden of proof - Constitutional law. When the question is whether a Provincial legislation is repugnant to an existing Indian Law, the onus of showing its repugnancy and the extent to which it is repugnant should be on the party attacking its validity. There ought to be a presumption in favour of its validity. A.I.R. (26) 1939 F. C. 74, Folld. (Para 23) (F) INTERPRETATION OF STATUTES - Interpretation of Statutes - Retrospective effect - Change in procedure. A change in procedure will apply to pending proceedings unless there is something in the Statute showing that it is not to apply to pending proceedings. (Para 33) Anno: C. P. C. Pre. N. 3. (G) Constitution of India, Art.14 - EQUALITY - WORDS AND PHRASES - Equality before law - Meaning. Equality before the law does not require mathematical equality of all persons in all circumstances. From the very nature of Society, there should be different laws in different places and the Legislature controls the policy and enacts laws In the best interests of the safety and security of the State. (Para 37) (H) Constitution of India, Art.21 - RIGHT TO LIFE - WORDS AND PHRASES - Procedure established by law - Meaning. In Art. 21 in the expressionprocedure established by law the wordprocedure is not used in its technical sense indicating a particular law as contained in the Civil or Criminal Procedure Codes but is employed in a general sense to mean the steps to be taken in an orderly trial. There is neither vested right to any particular form of trial or procedure, nor to a right of appeal; they being the creation of the Statute should be governed by the Statute with which a particular offender is tried. The expression "procedure established by law" means the law of the land having statutory origin. (Para 38)

(I) CONSTITUTIONALITY OF AN ACT - Constitutional Law - Ultra vires. An Act cannot be declared to be invalid, merely because it may be feared that the Govt. may abuse it in future; nor are the Cts. at liberty to declare an Act void, because it is in their opinion opposed to the spirit that is supposed to pervade the Constitution but not expressed in words. (Para 40) (J) Constitution of India, Art.13 - LAW - Retrospective effect. Per Balakrishnaiya, J. - The wordsshall be void are to be interpreted to mean that such laws willbecome void from the date of the commencement of the Constitution, and not from the very inception. Article 13 (1) of the Constitution is not retrospective but prospective. (Para 41) (K) INTERPRETATION OF STATUTES - LAW - WORDS AND PHRASES - GENERAL CLAUSES - Interpretation of Statutes - Law declared void - Effect on pending proceedings - "Void" and "repeal" - Distinction. Words and Phrases. General Clauses Act (10 of 1897), S.6(b). Constitution of India, Art.13. Per Venkata Ramaiya and Balakrishnaiya, JJ. - The action taken under a valid Act which is subsequently declared void cannot be erased out. The consequences ensued, remain unaffected and could never be undone. The policy of Legislature is that a subsequent repeal or rescission of an Act could not have retrospective effect so as to completely undo the consequences already ensued or continue to be ensuing. Not merely the previous operation of the Act is saved, but that the continuation of the pending proceedings under the repealed Act are suffered to continue as if the Act had not been repealed. (Para 43) Per Mallappa J. - There is a great deal of difference between an Act which is void and an Act repealed. To say that a law is inoperative is to say something less than to say that an Act is repealed. The wordvoid may not have its full force and effect when it is used in an enactment for the benefit of particular persons and understood asvoidable at the election of those persons but when it relates to persons not capable of protecting themselves or when it has some object of public policy which requires the strict construction, the word receives its full force and effect. The wordvoid has to be understood to have its full meaning as when it is used with the wordnull to indicate nullity. (Para 63) The wordvoid is used when total lack of existence is intended to be conveyed. The wordinoperative is used when the existence of the law is recognized but its operation is stopped during the time, a law of superior origin is prevailing. The word repeal is used when a law, which is not void, is in existence and it has to be withdrawn. (Para 67) Section 6, General Clauses Act, is not applicable either to revive, for any purpose whatsoever, Acts which have ceased to have any effect, having expired by efflux of time or Acts which have been declared to be void by the Constitution itself. (Para 77) Anno. Gen. Cls. Act, S. 6, N. 2.

(L) INTERPRETATION OF STATUTES - Interpretation of Statutes - Reference to previous state of law. In interpreting an Act of Parliament, the Cts. are entitled and in many cases bound to look to the state of the law at the date of the passing of the Act in order properly to interpret the statute. (Para 58) Anno. C. P. C., Pre. N. 7. K.S. Jayarama Iyer (in Nos. 69 and 70); Md. Askar Ali and M.A. Allam (in Nos. 71 and 72) - for Petnrs. Advocate-General - for the State of Mysore. Judgement Venkata Ramaiya, J. :- These are applns. filed under Art 226, Constitution of India, for issue of writs of certiorari calling for records and quashing; the proceedings in Crim. case Nos. 1 and 2 of 1948-49 on the file of the Ct. of the Sp. J, Tumkur and writs in the nature of habeas corpus directing the release of petnrs. from detention. The two cases referred to arise out of disturbances which occurred on 1-3-1949 in the shandy of Sira, a Town in Tumkur District, from a clash between Hindus and Mussalmans resulting in the death of a Jamedar, grievous hurt to a Police Inspector and injuries to others. It is alleged in the affidavits filed in support of the petns. that charge sheets for offences under Ss. 302, 326, etc., I. P. C., were presented on 9-4-1949 in the Ct of the Sp First Class Mag. Madhugiri, by the Police against the petnrs that by a Notn dated 22-4-1949, the Govt. of Mysore constituted the Ct. of the Special J. Tumkur, under S. 2 of the Sp. Criminal Courts Act, 1942 (Act XXIV [24] of 1942) that the cases against the petnrs were sent to that Ct. on 16-4-1949 and that the Sp. J. Tumkur, following the procedure laid down by S. 5 of the Act tried the said cases as warrant cases. The cases before the Sp. J ended on 5-10-1949 with petnrs 1 and 2 in Crim. petn. No. 69 of 1950-51 being sentenced to death for the murder of the Jamedar and rigorous imprisonment for causing grievous hurt to the Inspector; Petnr. 3 to transportation for life for the same murder and to R. I. for grievous hurt to the Inspector. The petnrs. In the other cases are sentenced to varying terms of imprisonment. The grounds on which the writs are sought are that the entire proceedings before the Sp J. are void and of no effect, that the Special Criminal Courts Act, by prescribing a procedure contrary to that provided in Criminal P. C. has prejudicially affected the fundamental rights the petnrs. are entitled to under Part III of the Constitution of India and that the petnrs are also deprived of many valuable rights which they had under the Criminal P. C. by virtue of the Notn. of the Govt. The conviction and sentences passed by the Sp. J. are challenged as illegal and as being no better than those of a private person without authority. These petns. were filed just before a day fixed for review of the sentences by the learned Chief Justice of Mysore appointed for the purpose under S. 7 of the Act. At the request of the petnrs counsel, the proceedings of review were stayed till the disposal of these petns. and the petns. were first heard by a D. B. Consequent on a reference by the D. B. the petns. were posted before the D. B. and arguments were addressed on behalf of all the petnrs. by Sri Jayarama Iyer and Janab Askar Ali of the Madras Bar in the course of which they pressed for consideration a number of important points bearing on these cases.

2. The Special Criminal Courts Act, Act XXIV [24] of 1942, was enacted on 7-7-1912. It was made applicable to Tumkur District within which the petnrs. are alleged to have committed the offences by a Notn. issued under cl. (3) of S. 1 so far back as 5-11-1942, so that it is clear that on the date of the commission of the alleged offences the Act was in existence; but the appointment of a Sp. J. under S. 3 and the direction under S. 4 of the Act that he should try these cases were made by the Govt. subsequent to 9-4-1949 when the charge sheets were filed in the Ct. of the Sp. First Class Mag., Madhugiri.

3. Without reference to the merits of the cases the arguments were directed to show that the Act and proceedings thereunder considered either independently of or with due regard to the provisions of the Constitution of India are invalid and to this end these were attacked from every conceivable angle.

4. There can be no doubt that the Special Act curtails some of the important rights available to the accused under the Criminal P. C. by disallowing appeals against convictions and sentences by the Sp. J. by providing for trials in the absence of the accused, by empowering a Sp. J. to take cognisance of offences without a committal after a preliminary enquiry, by permitting only a memorandum of the substance of the evidence instead of the full evidence of the witnesses examined being recorded and by requiring the proceedings before the Sp. J. being reviewed only in certain cases and that by a nominee of the Govt. Section 25 of the Act places the proceedings before the Sp. J. beyond the scrutiny, revn. or control of the H. C. in any manner. The provisions of this Act are virtually the same as those of Ordinance II [2] of 1942 passed by the Governor-General of India. The validity of the Ordinance and its application to cases concerning offences committed prior to it were questioned before several Cts. in what was then British. India but were upheld by all the High Cts. except the Calcutta H. C. a F. B. of which set aside the convictions and sentences passed in trials conducted under the Ordinance. The appeal preferred by the Govt. against this to the Federal Ct. was unsuccessful. Varadachariar C. J. and Mafrulla Khan J. having held that the Cts. constituted under the Ordinances had no jurisdiction to try the case though Rowland J. dissented from this view. In the course of the judgment reported in Emperor v. Benoarilal A. I. R. (30) 1943 F. C . 36 : (1943 F. C. R. 96: 45 Cr. L. J. 1.) the learned Chief Justice observed thus: We are of the opinion that the Ordinance has not by itself repealed Ss. 28 and 29, Criminal P. C. (if such repeal were necessary-as we think it was) that notwithstanding drafting devices, is only the order of the executive authority passed under Ss. 5, 10 or 16 of the Ordinance, in respect of each case or group or class of cases that in fact operates to repeal those provisions of the Code to divest the regular Cts, of their jurisdiction and to invest the Sp. Cts. with jurisdiction to try any particular case or group or class of cases. We are also of the opinion that such executive orders cannot in law have any such effect and that Ss. 5, 10 and 16 of the Ordinance are open to objection as having left the exercise of the power thereby conferred on executive officers to their absolute and unrestricted discretion, without any legislative provision or direction laying down the policy or conditions with reference to which that power is to be exercised. The powers of the H. C. though in form taken away by S. 26 of the Ordinance are in fact only taken away by the order of the executive officer, because it is only on such order or direction being given that any case becomes a proceeding before a Sp. Ct. for the purpose of S. 26. We accordingly agree with the H. C. that the Ct. which purported to try and convict the resps. had no jurisdiction to do so."

5. Sections 5, 10 and 16 of the Ordinance correspond to Ss. 4, 9 and 15 of the Mysore Act which are as follows: Section 4-"a Sp. J. shall try such offences or classes of offences, or such cases or classes of cases as the Govt. or a servant of the Govt. empowered by the Govt. In this behalf, may, by general or special order in writing, direct." Section 9 - "A Sp. Mag. shall try such offences or classes of offences, or such cases or classes of cases other than offences or cases involving offences punishable under the Penal Code, as in force in Mysore with death, as the Govt. or a servant of the Govt. empowered by the Govt. in this behalf, may, by general or special order in writing, direct." Section 15 gives similar powers to the Dist. Mag. to direct trials by summary Ct. In Mysore too, the legality of the convictions and sentences in cases tried under the Act was questioned in this Ct. and before the reviewing Judge though on other grounds but these were negatived. To meet the situation brought about by the decision in regard to the cases under the Ordinance in British India, the Governor-General promulgated another Ordinance No. (19 [XIX] of 1943) whereby Ordinance II [2] of 1942 wag repealed and provisions were made with respect to sentences passed by the Sp. Cts. and to cases pending in such Cts. on that date. An appeal was also filed against the decision of the F. C. to His Majesty in Council. The appeal was allowed by their Lordships of P. C. in the judgment reported in Emperor v. Benoarilal, a. I. R. (32) 1945 P. C. 48: (46 Cr. L. J. 589) holding that Ss. 5, 10 and 16 of the Ordinance are not ultra vires on the ground that they empower the executive to decide what offences or class of offences and what cases or class of cases shall be tried by the Sp. Cts. and not by the ordinary and well established criminal Cts. and that the convictions of persons tried under the provisions of the Ordinance were valid. According to the decision of the P. C. the Act in Mysore which is substantially identical with the Ordinance must be regarded as valid at the time it was passed.

6. Sri Jayarama Iyer says that nevertheless the view taken by the F. C. must prevail by virtue of Arts. 141 and 374, Constitution of India. Article 141 states that the law declared by the S. C. shall be binding on all the Cts. within the territory of India and according to Art. 374 cl. (2), "......the judgments and orders of the f. C. delivered or made before the commencement of this Constitution shall have the same force and effect as if they had been delivered or made by the S. C." It is argued that since the decisions of the F. C. before the commencement of the Constitution are given the same force and effect as those of the S. C. and the law declared by the S. C. is binding on all the Cts. it is unnecessary for this Ct. to examine the question of validity of the Act as it cannot in any event give a finding contrary to that in Emperor v. Benoari Lall, A. I. R. (30) 1943 F. C. 36: (1943 F. C. R. 96 : 45 Cr. L. j. 1). There are difficulties in the way of accepting the suggestion as up to the date of the Constitution neither the judgments of the F. C. nor those of the P. C. were binding on this Ct. Both were of persuasive and not authoritative value and decisions of this Ct. were final, not subject to appeal or judicial interference from any tribunal. Under the Constitution of India the decisions of this Ct. are subject to appeal to the S. C. and this Ct. is bound by the law declared by the S. C. I do not think that this can be construed as giving retrospective force to previous decisions of the P. C. so as to bind Cts. not formerly subject to its jurisdiction. It is conceded that as regards the particular cases in which judgments of the F. C. were reversed by the P. C. what determines the rights of parties and to be given effect to is the decision of the P. C. because of Arts. 372 and 395 of the Constitution of India. Under Art. 372 the laws in force before the commencement of the Constitution shall continue in force but subject to the other provisions of this Constitution. The laws repealed under Art. 395 except the Abolition of Privy Council Jurisdiction Act, 1949. Section 8 of this Act is as follows : "Any order of His Majesty in Council made on an Indian appeal or petn. whether before, on or after the appointed day, shall for all purposes have effect, not only as an order of His Majesty in Council, but also as if it were an order or decree made by the f. C. in the exercise of the jurisdiction conferred by this Act." Sri Jayarama Iyer seeks to limit the application of the section to conclusions as distinguished from the reasons assigned in support thereof, to orders in Council and not to judgments of P. C. which are expressed in an advisory or recommendatory form Such a construction seems to be narrow and opposed to the spirit if not the letter of the section. Sec. 212, Govt. of India Act, 1935, expressly states that the law declared by the F. C. and by any judgment of the P. C. shall, so far as applicable, be recognised as binding on, and shall be followed by, all Cts. in British India, and so far as respects the application and interpretation of this Act or any order in Council thereunder or any matter with respect to which the Federal Legislature has power to make laws in relation to the State, in any Federated State. The judgments of the P. C. prior to 1935 are couched in the same advisory form as those subsequent to it. The H. Cts. in India have in several cases referred even to obiter dicta in the judgments of the P. C. as binding on them and in Mata Prasad v. Nageshar Sahai, A. I. R. (12) 1925 P. C. 272 : (47 ALL. 883), "their Lordships think it desirable to Joint out that it is not open to the Cts. in India to question any principle enunciated by the P. C. although they have a right of examining the facts of any case before them to see whether and bow far the principle on which stress is laid applies to the facts of the particular case. Nor is it open to them, whether on account of "judicial dignity," or otherwise, to question its decision on any particular issue or fact." These observations cannot apply to this Ct. as the Govt. of India Act had no operation in this State and this Ct. was under the Mysore High Court Act the highest Ct, of criminal jurisdiction at the time of the decision in Emperor v. Banoari Lall, a. i. r. (30) 1943 F. C. 36 : (1943 F. C. R. 96 : 45 Cr. L. j. 1).

7. The constitutional position of this State was also different from that of British India at that time and considerations about competency of the Governor-General to promulgate the Ordinance cannot be applied to the authority of the local legislature to enact the law as this has to be ascertained from the Govt. of Mysore Act. Under this Act it was perfectly open to the Legislature to pass the Special Criminal Courts Act.

8. What needs to be considered is whether the Special Act falls in the category of "delegated legislation" on account of the constitution of S. Cts. and cases for trial before them being left to the discretion of the Govt. or a servant of a Govt. and not fixed by the Legislature itself. The P. C. treated it as conditional and notdelegated legislation refering to Empress v Burah, 4 Cal. 172 : (5 I. A. 178 P. C.) and Charles Russell v. The Queen, (1882) 7 A, C. 829 in which legislation of this kind was held to be valid. Treating the point as res integra, I think that the Act cannot be impugned as delegating legislation, since it does not give any right to the executive to make the law but only provides that it will come into operation at such time and in such areas as may be determined by the Govt. or a servant of the Govt. The cases referred to are sufficient authority in support of this and as the view of the S. C. is the same about similar provisions as regards detention, I deem it unnecessary to state anything more on the point. The objection raised to the Act on this account is in my opinion untenable.

9. The next ground of attack is that there has been deprivation of the rights vested in the petnrs. for a trial under the Criminal P. C. by reason of the trial being held under the Act and that; this is not legal. It is argued that since the cases were instituted in the Ct. of the Sp. First Class Mag., Madhugiri, these were taken cognisance of and proceeded with to some extent in that Ct. it is only that Ct. which had to dispose them of under the Code either by passing judgment or an order of commitment to the Ct. of Session. As already mentioned, the trial under the Special Act denies to the accused some of the rights available to them in a trial under the Code. Unless all such rights are shown to have accrued to the petnrs. before the Sp J., started the proceedings the grievance on this account is not justified The stage at which in proceedings under the Criminal P. C. the accused is vested with rights to claim the benefit of its provision is sometimes alleged to be the time at which the case is taken cognizance of and sometimes at the time of the initiation of the proceedings. The expressiontaking cognizance of" is not defined in the Code but the circumstances under which a Mag. can take cognizance of an offence are specified in s. 190 of the code. clause (a) provides for it on receiving a complaint of facts which constituted such offence and cl. (b) on getting a report in writing by any police officer. In 46 Mys. H. C. R. 435 at p. 451, Reilly C. J. observed as follows : "If we examine Ss. 190, 191 and 192, which all appear in the same part, i. e., Part B, of Chap. XV of the Code as that in which S. 195, appears, and if we further examine Ss. 200, 202 and 204 of the Code, we find that "taking cognizance" of a case is used in the sense of taking up the case for judicial disposal the sense in which we say in our official language that a Ct. takes a case on file." Applying this rule, it must be held the cases were taken cognisance of by the Mag. What is its effect? In 48 Mys. H. C. R. 430, the trial under the Special Act was upheld though the offences were committed before the Act came into force, the Sp. J. under the Act had not appointed when the charge sheet was filed and the case was subsequently tried by him as directed by an order of the Govs. The question now is not whether the Act may be applied to cases relating to offences alleged to hive been committed prior to the enactment as it is long after that the cases arose but whether the accused acquired any rights by virtue of the proceedings in the Mags. Ct. which could not be later disturbed or taken away. One of the rights affected is the right of appeal. Though it is settled that no one has a vested right in procedure [See Wellbury v. Parker, (1916) 2 Ch, 1 : (85 L. J. Ch. 564)] and as stated in Delhi Cloth and General Mills Co. Ltd v. Income-tax Comr. Delhi, A. I R. (14) 1927 P. C. 242 : (54 I. A. 424), provisions of a Statute dealing merely with patters of procedure may properly, unless that construction be textually inadmissible have retrospective effect attributed to them, a right of appeal is held to be a substantive right. (Salmonds Jurispridence page 647). [See Colonial Sugar Refining. Co. Ltd. v. Irving, 1905 A. C. 369 : (74 L. J. P. C. 77), Delhi Cloth and General Mills Co. v. Income-tax Comrs. Delhi. 9 Lah 284: (A. I. R. (14) 1927 P. C. 242) and In re Vasudeva Samiar, 52 Mad. 361 : (A. I. R. (16) 1929 Mad. 381 S. B.) which says that the institution of a suit carries with it the implication that all appeals then in force are preserved to it through the rest of its career.] The date on which an offence is taken cognizance of cannot be treated as analogous to the date on which a suit is instituted for the purpose of determining the rights, as process need not necessarily be issued to the accused and without it the case cannot be said to be instituted against him. There are two decisions of the Patna H. C. in Banwari Gope v. Emperor, A. I. R. (30) 1943 Pat. 1 at p. 18 : (44 Cr. L. J. 273 F. B.), which is of a F. B. and the other of a Sp. B. Gopal v. Emperor at p. 245 : (45 Cr. L. J. 177 S. B.) in which the question as to when a case can be said to be taken cognizance of and the accused is vested with rights under procedural law is discussed. The proceedings in both cases at first were started under the Criminal P. C. in a Mag.s Ct. but the trial was by a Mag. under the Ordinance. In the earlier case at p. 22 Fazl Ali J. as he then was stated : "In my opinion as soon as the Mag. takes cognizance of an offence there is a criminal case against the accused person and at that point of time he acquires such right of appeal or revn. as the case may be as the law confers on him." In the later case the learned Chief Justice, as he then was, explained this at p. 268 as having reference to only those cases where the Mag. having taken cognizance of an offence decides to proceed against the accused either by summoning him or taking such step as is equivalent to the issuing of summons." Meredith J. at p 251 also construed the decision at p. 18 as laying down thatsuch rights as accrued to an accused person become vested in him at the point when judicial proceedings are commenced against him" and proceeds to state : "The prosecution does not start until the Mag. makes up his mind to act upon a charge-sheet and takes some overt action to implement his decision .... That is the point at which vested rights such as a right of appeal or right of trial by jury may accrue to a person proceeded against if the law as it stands at that date gives them to him." The proceedings in the Mags. Ct. Madhugiri, show that after the charge-sheets were presented on 9-4-1949, the cases were posted to 20-4-1949, adjourned on that date to 22-4-1949 with a note that the accused were remanded and that some properties were produced : that on the latter date a bail appln. was heard and the accused were remanded till 6-5-1949; that on 27-4-1949 orders on the bail application were passed and the case was posted to 6-5-1949 with a direction that P. Ws. will he produced; that on 6-5-1949 it is noted that the Sp. Ct. was constituted and the case was adjourned to 16-5-1949. Beyond passing orders on the bail appln. the Mag. does not appear to have done anything else. Even if it is assumed that the prosecution was started against the accused by the Mag. the trial by the Sp. J. was proper for the reason that those proceedings preceded the trial and had to be carried on in that Ct. As Meredith J. points out at p. 250 in Gopal v. Emperor, A. I. R. (30) 1943 Pat. 245 : (46 Cr. L. J. 177). "An examination of the Ordinance as a whole shows that it seta up new Cts and prescribes a new procedure for trial of cases in those Cts. The procedure it seta up is only for the trial of cases. It lays down no new procedure for dealing with cases in the preparatory stages up to the point when the case becomes ready for trial. It clearly contemplates that the taking of cognizance and all preliminary orders such as orders for inquiry, shall be made by the Sub Divisional Officer or the Dist. Mag. as the case may be in the ordinary way under the provisions of the Criminal P. C." Fazl Ali C. J. also states at p. 273 thus : The words of S. 27 (26 of the Mysore Act) are wide enough to suggest that S. 192 as well as a number of other provisions, specially those relating to matters which precede the commencement of a trial, were never intended to be abrogated. The Ordinance itself contains no provision for the stages which precede the trial and the order under S. 192 which is passed before the trial begins must necessarily be governed by the Criminal P. C."

10. In Srikant v. Emperor, A. I. R. (30) 1943 Bom. 169 : (44 Cr. L. J. 616 F. B.), Beaumont C. J. too observed at page 174, " ....any case or offence which is awaiting trial can be placed for trial before the Special Judges." The trial begins in a case exclusively triable by the Ct. of Session only after the charge is framed by the committing Mag., See In re Palaniandi, 32 Mad. 218 : (9 Cr. L. J. 146) and in a warrant case when the accused is called upon to plead to a charge. As the proceedings in the Ct. of the Sp. First Class Mag. had not reached either of these stages when the cases were seat to the Sp. J. and the Special Act was already in force when the proceedings commenced, I do not think that the trial can be challenged on the ground of the procedure adopted being at variance with the provisions of the Criminal P. C. 10a. The learned counsel for the petnrs. urged that apart from the contentions discussed so far which pertain to the validity of the Special Act prior to the Constitution of India it must be now held void under Art. 13 as its provisions contravene Arts. 14 and 21. He urged that the convictions and sentences should be quashed as these cannot be given effect to without being reviewed and no review is possible under a void Act. Section 7 of the Act requires that the proceedings in the cases in which the sentence is that of death or imprisonment for more than seven years and other cases referred by the Sp. J are to be reviewed by a Judge nominated by Govt. and states that his decision is final. Without the review the sentences awarded by the Sp. J. cannot be executed as, in cases which fall under S. 7 it is obligatory for giving validity and finality to the decision in the cases. The powers of the Reviewing Judge are not defined in the Act but I think are meant to be exercised for giving relief when the convictions or sentences are unjust. So construed, the review in two previous instances, crim. refd. cases Nos. l and 4 of 1942-43 resulted in acquittal of some of the accused and modification of the sentence passed on some persons tried under the Special Act. By the date of the Constitution the cases had been submitted for review and interim orders too obtained from the Reviewing Judge on petns, for suspension of the sentences imposed on some of the accused. While it is not disputed that if the review was over these petns. would not be competent, the pendency of those proceedings has been urged as being sufficient to attract the operation of the constitutional provisions. In Emperor v. Shibnaih Banerjee, 1944 F. C. R. 1 : (A. I. R. (30) 1943 P. C. 75 : 45 Cr. L. J. 341), for the purpose of distinguishing cases which were terminated and those which were pending under Ss. 3 and 4 of the Ordinance by which the Special Courts Ordinance was" repealed, cases which were awaiting review were held to be pending.

11. The question therefore is as to how far pending cases are affected by the Constitution and this has to be determined by the construction of Art. 13 which states, "all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part shall, to the extent of such inconsistency be void." Two other Arts. 372 and 367 need to be noticed to make out the scope of this article. Article 372 declares that "notwithstanding the repeal by this Constitution of the enactments referred to in Art, 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority." As this is not an enactment referred to in Art 395, it must be deemed to continue in force unless the other provisions in the Constitution forbid it. Article 367 provides that "unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Art. 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India." Relying on S. 6, General Clauses Act, by which, "unless a different intention appears, the repeal shall not - .....(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; .....(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation. liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed," the learned Advocate-General argued that the combined effect of Arts. 367 and 372 is to leave the proceedings under the Special Act untouched and unaffected by the provisions of the Constitution, that the words "be void" in Art. 13 are synonymous with "repeal. Learned counsel of the petnrs. argued that there is a distinction between Acts which are void and which are repealed, that the latter imply Acts having had validity and the farmer denote Acts without validity at any time, in other words, void ab initio. To emphasize this to be the proper construction he mentioned that the word "be" was deliberately employed instead of "become" so that there may be no doubt that Acts which offend provisions in part iii of the Constitution must be treated as invalid from the inception. The para in Mathews American Constitutional system containing the following quotation was referred to. Field J. in Norton v. Shelby County, (1886) 118 u. S. 425, has observed thus : "An unconstitutional Act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed." There ate no provisions in the American Constitution corresponding to Arts. 13, 367 or 372 of the Indian Constitution and the effect of the Constitution coming into force upon existing laws and pending actions depends on the meaning conveyed by the words employed in these Articles. As pointed out in A.K Gopalan v. State Of Madras., A. I. R. (37) 1950 s. C. 27 : (51 Cr. l. 1383), by the S. C. the Constitution as a whole has to be read with the same sanctity without giving undue weight to Part III except to the extent expressly provided for. The import of the words "shall be void" in Art. 13 and applicability of provisions in Part iii to pending cases was considered by a F. B. of the Bombay H. C. in In re Keshav Madhav, (a. i. R. 138) 1951 Bom 188 : 52 cr. l. j. 30 f. b.), when objection was raised to a case instituted under the Press Emergency Powers Act 1931 prior to the Constitution being proceeded with on the ground that s. 18 of the Act was in conflict with Art. 19. The learned Chief Justice held on an examination of the words in Arts. 13, 367 and 395 that there is no difference between an Act which is repealed and an Act which is declared void, that S. 6, General Clauses Act, applies to those laws which have become void on their becoming inconsistent with the provisions of part in of the Constitution k therefore the proceedings under the Press Act instituted prior to the Constitution were not affect, ed by the provisions of the Constitution. This case is referred to and the view expressed therein has been adopted by a D. B. of this Ct. composed of my learned brothers in Amritlal v. Govt. of Mysore, Cr. R. P. No. 7 of 50-51:(a. i. R. (38) 1951 Mys. 26 : 52 Cr. l. J. 251) and by one of them in Abdul Sattor v. Govt. of Mysore Cr. R. P No. 17 of 50-51 Showkat un nissa Begum v. State of Hyderabad, A. i. R. (37) 1950 Hyd. 20 (F. b.), cited in support of petnrs. was a case of detention and as such is distinguishable. The joint is not free from doubt or difficulty. But having regard to all the factors to be taken into account it seems to me that the interpretation of the article in the above cases may be adopted in these cases, Section 1 of the Special Act provides that trials and proceedings pending at the time of rescission may be continued or completed as if the provisions of this Act were still in force.

12. Assuming that there is anything in the Act which impairs the rights conferred by Part III of the Constitution it does not follow that the Act as a whole is void. If what remains to be done is the criterion it is difficult to treat review asinconsistent" with the articles in part III as that would not offend any of these and the result if at all would be of benefit to the accused. Amongst the accused tried by the Sp. J. about twenty nine are said to have been acquitted. Of those who were convicted one is said to have fully served the sentence and the period of sentence in the case of some is nearing completion. The consequence of holding that the review should not proceed is to invalidate the convictions and sentences by the Sp. J. though these were legal at the time the cases were tried, write off all that is done, deprive the petnrs. of the chances of possible early relief and subject them to expense, trouble and suspense of a fresh and prolonged proceeding under the Criminal P. C These are considerations which may have a bearing on the question whether provision in the Special Act for the review can be regarded as "inconsistent" with part III. It seems to me that the proceedings under the Special Act in these cases are not affected by the Constitution. In this view the other contentions advanced on behalf of the petnrs. about the provisions of the special act being in conflict with those in the Constitution do not require to be examined in detail and need be briefly referred to. The articles which the Special Act is alleged to contravene are Arts 14 and 21, the corresponding provision to both of which is contained in the 5th and the 14th Amendment of the American Constitution in these words : ".....Nor shall any statute deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction equal protection of the laws." The words "procedure established by law" are substituted for "due process of law" in Art. 21 which leads thus :No person shall be deprived of his life or personal liberty except according to procedure established by law." In A.K Gopalan v. State Of Madras., 1950 s. C. j. 174 : A. i. R. (37) 1950 s. C. 27 : 51 Cr. l. J 1383) the learned Chief Justice of the S. C has stated thus ; "The omission of the worddue, the limitation imposed by the wordprocedure and the insertion of the word established thus brings out more clearly the idea of legislative prescription in the expression used in Art. 21. By adopting the phrase, "procedure established by law" the Constitution gave the Legislature the final word to determine, the law." and at p. 187 "No extrinsic aid is needed to interpret, the words of Art. 21, which; in my opinion, are not ambiguous. Normally read, and without thinking of other Constitutions, the expressionprocedure established by law" "must mean procedure prescribed by the law of the State." Relying upon the observation of Patanjali Sastry J. in the same case at p. 238 that : "Procedure established by law" may well be taken to mean what the P. C. referred to in King Emperor v. Benoari Lal, (A. I. R. (32) 1945 P. C. 48 : 46 Cr. L. J. 589) as "tbe ordinary and well-established criminal procedure," that is to say, those settled usages and normal modes of proceeding sanctioned by the Criminal P. C. which is the general law of Criminal Procedure in the country . . . In the view I have indicated, it must not be a change ad hoc for any special purpose or occasion, but a change in the general law of procedure embodied in the code"; the provisions of the special act are impugned on the ground that these are applicable only to some cases and constitute a drastic change in the general law of procedure. The reasonableness or otherwise of these is not a matter for inquiry by the Ct. The Act was passed eight years back and not for the pur. poses of these cases; when the legislating authority has allowed it to remain in force so long, when it has been applied in several cases previously tried, it cannot be regarded as a change ad hoc for these cases. Though the rights and facilities conferred on the accused by the Code are materially abridged, it cannot be said that what remains will not satisfy the test of an orderly procedure. Willis in his book on Constitutional Law at p. 672 under the heading "Essentials of Orderly Course of Procedure" states : "What will amount to an orderly course of procedure when it is required; neither a jury trial nor an appeal is necessary for an orderly course of procedure. An orderly course of procedure does not require a Ct. to weigh the evidence; but it does require it to examine the entire record, to ascertain the issues, to discover whether there are facts not reported and to see whether or not the law has been correctly applied to the facts. The requirement of an orderly course of procedure does not require any particular form of procedure. Procedure sanctioned by settled usage will satisfy the requirement but an Orderly course of procedure is not limited to procedure which has been sanctioned by settled usage. New forms of procedure are as much due process of law as old forms, provided they give a person a fair opportunity to present his case." Mathews in his book on American Constitution, at p. 439, states thus: "In criminal trials the only limitation upon the States found in the Federal Constitution is the due process clause in 14th amendment. This clause requires that the defendant shall have due notice and a fair hearing. Provided these conditions are fulfilled the methods of procedure in criminal trials are within the control of the State. The due process clause prevents arbitrary procedure but does not require any particular procedure. . . . Due process does not require the right of appeal nor does it require that the deft. in criminal trial be exempt from compulsory self incrimination " In these cases it is not suggested that the accused had not the assistance of counsel or that the proceedings were in any respect arbitrarily conducted. Under the Constitution there is also a right of appeal to the S. C. provided for in Act. 136. In view of these and the interpretation of Art. 21 by the S. C. in the above case, the Special Act cannot be regarded as contravening Art. 21.

13. As regards Art. 14, viz., "The State shall not deny to any person equality before the Jaw or the equal protection of the laws." the learned Advocate-General argued that it does not apply to procedural law, that there is no discrimination made in the application of the substantial law in regard to these persons, that the direction for the cases being tried by the Sp. J. makes no distinction between the peinrs. and the other offenders involved in the disturbances, as the order was that the cases against all persons accused of offences committed at that time should be tried by the Sp. J. Willis, at p, 579, on Constitutional Law states thus: "The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed. The inhibition of- the amendment.... was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation." At the next p. 580, it is stated that a law applying only to one person or one class of persons is constitutional if there is sufficient basis or reason for it.

14. Though the Special Criminal Courts Act mainly relates to procedure, apart from other handicaps entailed on the accused it takes away the right of appeal which as pointed out is a substantive right. It is true that nothing is stated in the Act as being applicable to any one in. particular. Nor does it specify the class of persons or cases subject to its provisions but leaves the option of selecting cases to be tried under it to the discretion of the executive without regulating the exercise of such discretion.

15. As is said in an American case, "the constitutional command for a State to afford equal protection of the law sets a goal not attainable by the invention and application of a precise formula." It is by examining the nature of the provisions in the light of well recognised principles of law that an opinion may be formed in a case. Pollock in his first book of Jurisptudence at p. 37 explaining the general marks of law says: "every rule must at least have regard to a class of members of the State and be binding on or in respect of that class as determined by some definite position in the community," and in regard to procedural law at p 78 states, "when we consider a system of law from the citizens point of view rather than the lawyers as a material element in the political stability of the commonwealth, we may almost say that certainty in procedure is more important than certainty in the substance of law." The existence of two enactments governing procedure one of which restricts the rights available under the other, absence of anything to indicate as to which class of offenders or offences the Special Act will apply render its operation arbitrary and uncertain. In support of the argument that Art. 14 does not prevent the State from making different laws and different systems of judicature in different parts the learned Advocate General cited the case, Missouri v. Lewis, 101 U. S. 22, in which the question was whether the law providing a Sp. C. of appeals with exclusive jurisdiction over certain areas denying to people in those areas access to the general Ct. of appeals was constitutional and did not deny equal protection. The S. C. held "there is nothing in the Constitution to prevent any State from adopting any system of laws or judicature it sees fit for all or any part of its territory .... The 14th amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies." The facts are distinguishable inasmuch as the law in question in that case was applicable to all the litigants in a locality or area, whereas the Special Act may be made applicable or not to any offence in a place at the will of the Govt. or its servant. It was also argued on the analogy of the executive having power to order detention under the Preventive Detention Act, discretion could be legally vested in the Govt. to direct trials under the Special Act. Reasons are required to be furnished to order the detention and absence of a provision for it was held to be opposed to the Constitution, by the S. C. The Special Act is silent about the need for giving any reason to dispense with the ordinary mode of trial in any case. Willoughby in his book on the American Constitution, at p. 1677, states "generally speaking it may be said that while wide discretionary power may be constitutionally granted to administrative agents, this discretion must be one which must be guided by reason, justice, impartiality and must be exercised in the execution of policies predetermined by legislative Act or fixed by the common law." Even before the Constitution of India was framed, the Ordinance was held to give power to discriminate between one accused and another by directing trial in different Cts. and held valid in Emperor v. Benoari Lal, a.i.R. (32) 1945 P. C. 48: (46 Cr. L. J. 589), with the following remarks : "It may be that as a matter of wise and well-framed legislation it is better if circumstances permit to frame a statute in such a way that the offender may know in advance before what Ct. he will be brought if he is charged with a given crime ; but that is a question of policy, not of law. There is nothing of which their Lordships are aware in the Indian Constitution to render invalid a statute which does not accord with this principle." These reasons cannot now prevail since there is a written constitution in which Art 14 guarantees a fundamental right. Had the trial by the Sp. J. taken place after the date of the Constitution all these considerations may have been of force but cannot be of help to the petnrs. since the trial was concluded and the cases had reached a stage beyond it when the Constitution came into force.

16. The remaining contentions against the validity of the Special Act are that it is repugnant to the Criminal P. C., and by virtue of Art. 254 the latter has to prevail; that it purports to deprive the H. C, of the powers vested in it by theConstitution and this cannot be done by State Legislation. The Criminal P. C., does not state that the procedure it prescribes has to be followed in all criminal proceedings and on the other hand provides in S. 1 for procedure being different under Special Laws. The attack, based on the score of repugnancy must therefore fail. As regards the Act interfering with the powers of this Ct the learned Advocate-General argued that consideration of the legality of this does not arise, since the petns. are filed only under Art. 226 of the Constitution and this is not affected by the Special Act. The question whether in spite of S. 25 of the Special Act this Ct. can exercise any powers under other provisions of law in cases tried under the Act does not arise now for decision and I refrain from expressing any opinion about it at present. The petns. are, in my opinion, to be dismissed. 16a. Balakrishnaiya, J. :- These four petns. are filed under Art. 226, Constitution of India, against the convictions by the Sp. J. Tumkur, acting under the Mysore Special Criminal Courts Act, 1942. The petns. in Cr. Petns. Nos. 69 and 70 of 1950-51 are by the three accused in C. C. No. l of 1948-49 and crim. Petns. Nos. 71 and 72 of 1950-51 by 21 accused in C. C. No. 2 of 1948-49 on the file of the Sp. J. The relief asked for by each of the two sets of accused in the twin petns. is the grant of writs in the nature of certiorari and of habeas corpus respectively.

17. Briefly stated, the facts leading to the petns. are as under. On 1-3-1949 in the town of Sira belonging to the Revenue District of Tumkur there was a rioting between the Hindus and Muslims in consequence of which five persons were killed and seven injured amongst whom were one Police Daffedar who died on the spot and one Police Constable who sustained injuries.

18. The two cases were filed against the accused 55 in number on 9-4-1949 before the First Class Mag. Madhugiri, under Ss. 302, 307, 333 and 335 of the Penal Code and adjourned to 22-4-1949 after remanding the accused to custody. On 22-4-1949 arguments were heard on the bail petns. which were posted for orders to 27-4-1949 and the main cases were adjourned for further action to 6-5-1949.

19. In the meantime, i. e. on 22-4-1949 a Notfn. was issued by the Govt. under s. 3, Special Criminal Courts Act of 1942 appointing a Sp. J. subsequently, by another Notfn. under s. 4 of the same Act, the cases were directed to be tried by the Sp. J. so appointed. The Sp. J took cognizance of the cases on 6-5-1949 and posted them for trial to 16-5-1949. After trial judgment convicting some of the accused was passed on 5-10-1949 awarding varying sentences. The proceedings in entirety were submitted by the Sp. J. for review and they are still pending before the learned Chief Justice of this Ct. nominated by the Govt. under S. 7 of the Act.

20. The petns. under consideration, were filed on 10-7-1950. They are all heard together as the points involved are common to all, touching the validity of the trial. The main contentions raised by the patnrs. are two fold viz., that the Mysore Special Criminal Courts Act, even when Mysore had not become integrated into the Union is ultra vires the Legislature, and that ever conceding that the Act is valid it has been after the commencement of the Constitution of India, rendered ab initio void as its provisions are repugnant to the fundamental rights guaranteed under Arts. 14 and 21 of the Constitution. In connection with the first objection, it was urged by Sri Jayarama Iyer, the learned Advocate for the petnrs. that the Special Act is delegated legislation and therefore ultra vires the Legislature. Reliance was placed on the decision in Emperor v Benoari Lall, 6 F. L. J. 79: (A. I. r. (30) 1943 P. C. 36. 45 Cr. L. J. 1), where it is held that the Special Criminal Courts Ordinance of 1942 is a delegated legislation. It was strenuously urged that the above ruling is binding on all the H. Cs in the Indian Union including this Ct. after the commencement of the Constitution. It is argued that Art. 374 (2) of the Constitution declared that- ".....the judgments and orders of the F. C. delivered or made before the commencement of the Constitution shall have the same force and effect as if they had been delivered by the s. C." and this Article read with Art 141, it is urged has the same effect as the law declared by the S. C. The judgment of the P. C. above referred to has since been reversed by the P. C. and the order in Council of His Majesty under S. 8, Abolition of Privy Council Jurisdiction Act, 1949- "shall for all purposes have effect, not only as an order of His Majesty in Council, but also as if it were an order or decree made by the P. C., in the exercise of the jurisdiction conferred by this Act." The F. C. at that time was bound by that decision of the P. C. and its decree stood modified and the decree so modified had to be given effect to as if it were its own decree. A distinction is sought to be made between a decree and a judgment on the ground that the decree reversed or modified by an order in Council of His Majesty will be given effect to and not the judgment of the Judicial Committee which forms the report which is merely of an advisory character. It is maintained that the judgment of the Federal Ct. is not superseded bat is left intact and has still the force of law in view of Art. 374 of the Constitution

21. Before the commencement of the Constitution, the decisions of this Ct. were final in the sense that they were cot subject to appeal. The judgments of the F. C. or the P. C. were, however, entitled to much respect. After the Constitution, this Ct. is bound by the law declared by the S. C. under Art. 141. Article 374 found in the Chapter styled as "Temporary and Transitional Provisions" is in my opinion intended to give a continuity of the proceedings and the provision that judgments and orders of the F. C. delivered and made before the commencement of the Constitution shall hive the same force and effect as if they had been delivered and made by the S. C. is meant only to give a finality and the binding effect on the parties and causes so as to facilitate further proceedings.

22. Before the commencement of the Constitution of India, the principles enunciated by the P. C. were not open to question by the Cts. in India as has been observed by the Board in Mata Prasad v. Nageshar Sahai, a. I. R. (12) 1925 p. C. 272: (47 ALL. 883) thus: It is not open to the Cts. in India to question any principle enunciated by the P. C., althoughthey have a right of examining the facts of any case before them to see whether and how far the principle on which stress is laid applies to the facts of the particular case. Nor is it open to them, when on account ofJudicial dignity or otherwise, to question its decision on any particular issue of facts;" That such precedents are binding has been reiterated by the Indian H. Cs also. The principle of law enunciated before the Constitution is, however, unaffected by the new Constitution. The theory put forward by the petnrs. that the law enunciated by the Judicial Committee in Emperor v. Benoari Lall, a. I. R. (32) 1945 P. C. 48: (46. Cr. L. J. 589) should be treated as non-existing and the judgment of the F. C. in Emperor v. Benoiri Lal, a. I. R. (30) 1943 F. C. 36: (45 Cr. L J. 1) though reversed by the F. C. should be held to be of a binding nature appears to be rather too extravagant to be accepted.

23. This leads me to examine the grounds upon which the impugned act is characterised as a delegated legislation. It is not disputed that the Mysore Special Criminal Courts Act 1942 was passed by the State Legislature. The State Legislature was supreme at the time and had plenary powers under S. 28 of the Govt. of Mysore Act 1940 to pass an Act of that nature. That the powers exercised by the Legislature in passing the Act are well within the limits prescribed by the Constitution and not beyond the competency of the Legislature admits of no doubt. That an Act of a Legislature should be presumed to be valid is an established proposition of law both in India and elsewhere and when a Ct. is called upon to pronounce an Act of legislation ultra vires the presumption is always in favour of its validity as laid down in Shyamakantlal v. Rambhajan, a. I. R. (26) 1939 P. C. 74: (I. L. R. (1939) Kar 165). Their Lordships hold : "When the question is whether a provincial legislation is repugnant to an existing Indian Law, the onus of showing its repugnancy and the extent to which it is repugnant should be on the party attacking its validity. There ought to be a presumption in favour of its validity. . . ." The same principles are affirmed by the S. C. in A. K. Gopalan v. State of Madras, A. I. R. (37) 1950 S. C. 27: (51 Cr. L. J. 1383).

24. It is undoubted that the impugned Special Criminal Courts Act is an existing law which is in force. Article 395 of the Constitution repeals certain Acts in existence at the time, while Art. 372 declares the continuance of certain other existing laws and their adaptation. Clause 1 of the said Article reads thus: "Notwithstanding the repeal by this Constitution of the enactments referred to in Art. 395 but subject to the other provisions of this Constitution, all the law in force In the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority." The Special Criminal Courts Act of Mysore is not an Act repealed under Art. 395 of the Constitution and it is one of the Acts of the Slate which was in force immediately before the commencement of the Constitution and continues to be in force until altered or repealed or amended by a competent Legislature.

25. In order to appreciate the arguments in this respect, it is necessary to briefly set out the substance of the provisions of the impugned Act. The Mysore Special Criminal Courts Act substantially follows the provisions of the Special Courts Ordinance of 1942 of India. The first three sections deal with the Constitution and the rest pertain to the appointment of Judges and the procedure to be adopted in the trial of cases. Though it is conceded that the portion dealing with the Constitution of the Cts. is intra vires, it is all the same maintained that the previsions dealing with the procedure are wholly unconstitutional. The relevant sections about which objections are raised are reproduced below.

26. Section 4 deals with jurisdiction of Special Judges and runs as follows: "A Sp. J. shall try such offences or classes of offences, of such cases or classes of cases, as the Govt. or a servant of the Govt. empowered by the Govt. in this behalf, may, by general or special order in writing, direct."

27. Section 5 contains procedure of Special Judges and reads thus: "(1) A Sp. J. may take cognizance of offences without the accused being committed to his Ct. for trial, and in trying accused persons shall follow the procedure prescribed by the Code for the trial of warrant cases by Mags : Provided that a Sp. J. shall ordinarily record a memorandum only of the substance of the evidence of each witness examined, may refuse to summon any witness if satisfied after examination of the accused that the evidence of such witness will not be material, and shall not be bound to adjourn any trial for any purposes unless such adjournment is, in his opinion, necessary in the interests of justice. (2) In matters not coming within the scope of sub-s. (1) the provisions of the Code, so far as they are not inconsistent with this Act, shall apply to the proceedings of a Sp. J,; and for the purposes of the said provisions the Ct. of the Sp J. shall be deemed to be a Ct. of Session."

28. Section 7 provides for review of convictions and runs as follows: "If in any proceedings before a Sp. J. - (a) a person convicted is sentenced to death, or to transportation for life, or to imprisonment for a term of seven years or more, or (b) though no person is so sentenced the Sp. J. certifies that in his opinion the case has involved questions of special difficulty, whether of law or fact, or is one which for any other reason ought properly to be reviewed, the proceedings shall be submitted for review by a person nominated in this behalf by the Govt., which person shall be chosen from the Judges of the H. C. and the decision of that person shall be final."

29. Section 26 excludes the interference of other Cts. and runs thus: Notwithstanding the provisions of the Code, or of anything having the force of law by whatsoever authority made or done, there shall, save as provided in this Act,, be no appeal from any order or sentence of a Ct. constituted under this Act and save as aforesaid, no Ct. shall have authority to revise such order or sentence or to transfer any case from any such Ct. or to make any order under S. 491 of the Code or have any jurisdiction of any kind in respect of any proceedings of any such Ct."

30. Section 26 is concerned with the application of ordinary law and runs thus : "The provisions of the Code and of any other law for the time being in force in so far as they may be applicable and in so far as they are nut inconsistent with the provisions of this Act, shall apply to all matters connected with, arising from or consequent upon a trial by Special Criminal Cts. constituted under this Act.",

31. It is argued that s. 4 of the Act invests arbitrary powers to the Govt. or a servant of the Govt. to direct a tribunal for trial of any offence and such direction has the effect of repealing the ordinary law of "procedure and divesting the regular criminal Cts. of the powers to deal with offences. This, it is argued, constitutes delegation of power of the Legislature to an external authority who by an administrative act beings into operations the Special Act which has the effect of abrogating, the ordinary law of Criminal Procedure and is thus, opposed to the principles of legislation and renders the Act wholly unconstitutional.

32. Legislature has ample powers to pass any Act either conditional or absolute. It is the basic rule that the power conferred on Legislature to make laws cannot be delegated by that Dept. to any other body or authority but it is however recognised that for the sake of convenience, the commencement of the Act or the application of the same to a certain area are generally allowed to depend on the discretion of a local authority, without the Legislature by itself directly fixing them. If the external authority is not enabled to make laws but only empowered to give effect to the provisions of the Act, it cannot be said that it amounts to delegation of Legislative powers. As observed by their Lordships of the P. C. in Emperor v. Burah, 4 Cal. 172: (5 I. a. 178 P. C.) "the proper Legislature has exercised its judgment as to the place, person, laws, powers; and the result of that judgment has been to legislate conditionally as to all things. The conditions having been fulfilled, the legislation Is now absolute." The House of Lords, in Charles Russell v. Queen, (1882) 7 a. C. 829 when an objection was raised that the Parliament of Canada though it had the authority to pass a law could not delegate its powers to bring into force the prohibitory and penal provisions of the Act on a vote of majority of voters, answered thus : ".....The Act does not delegate any legislate powers whatever. It contains within itself the whole legislation on matters with which it deals. The provision that certain parts of the Act shall come into operation only on a petn. of a majority of the electors does not confer on these persons power to legislate. Parliament itself enacts the conditions and everything which is to follow upon the condition being fulfilled." The competency of Legislature is stated thus at p. 138 by Willis in his Constitution : "Legislature may delegate the power to determine the conditions or contingencies under which a Statute shall be operative" It may also delegate the power to ascertain the facts and to apply rules of law in controversies, i. e, to administer standards etc." In considering the validity of the Special Courts Ordinance their Lordships of the P. C. stated their opinion in Emperor v. Benoarilal, A. I. R. (32) 1945 P. C. 48: (46 Cr. L. J. 589), thus : "The actual setting up of a Special Ct. under the terms of the Ordinance should take place at the time and within the limits judged to be necessary by the Provincial Govt. specially concerned. This is not delegate 1 legislation at all. It is merely an example of the not uncommon legislative arrangement by which the local application of the provision of a statute is determined by the judgment of a local administrative body as to its necessity." While interpreting S. 4, Punjab Public Safety Act, His Lordship the C. J. of the S. C. expressed that "the power to make the order of externment given to the Provincial Govt. or the Dist. Mag. whose satisfaction is final is not legislative delegation" : (See N. B. Khare v. Sate of Delhi, A. I. R. (37) 1950 S. C. 211 : (1950 S. C. R. 519). Again, while considering the scope of S. 3, Preventive Detention Act of 1950 the learned C. J. of the S. C. observed at p. 42 in A. K. Gopalan v. State of Madras, A. I. R. (37) 1950 S. C. 27 : (51 Cr. L. J. 1383), thus: "This contention of delegation of the legislative power in such cases has been considered and rejected in numerous cases by our F. C. and the English Cts......A reading of the various speeches in Liversidge v. Anderson, (1942) A.C. 206: (110 L.J.K.B. 724), clearly negatives the contention that s. 3 of the impugned act is no delegation of legislative powers to make laws. It only confers discretion on the Officer to enforce the law made by the Legislature."

32. The Mysore Special Criminal Courts Act, 1942, under consideration, extends to the whole of Mysore; and under S. 1 (2) and under sub cl. (3), it comes into force in any part of the Mysore State by a notfn. of the Govt. declaring it to be in force in such area and S. 4 gives jurisdiction to the Sp. J. to try a case entrusted to him. The Govt. may by an order in writing direct such offence or class of offences to be tried by a Sp. J. and after such direction the trial is subject to the procedure fixed by the Special Act itself which should be followed. The Act is complete and self-contained. The mere fact that the Legislature has left it to the discretion of the Govt. to constitute Sp. Cts. in appropriate cases does not amount to any delegation of legislative authority; but if the Legislature has laid down in the Statute the principles and left it to the executive to carry them out subject to the provisions of the enactment, the enactment would be constitutional, and the provisions of the enactment are automatically attracted. The provision that the Act would be brought into operation at the discretion of the Govt. does not amount to the delegation of the legislative powers. The executive Govt. is not empowered to make laws but is only allowed to exercise powers fixed by the Legislature itself. The mere provision that the operation of the Act is to be determined by some officer does not amount to delegation of any legislative power but merely an authorisation to enforce the Act on the fulfilment of the conditions specified therein. I am unable to accept the contentions of the petnrs. and therefore, hold that the impugned Act is only conditional legislation and notdelegated" legislation.

33. It is next urged that the trial in the Sp. Ct., is illegal as the charge-sheets were in the first instance placed in ordinary Cts. of the land and subsequently the cases were tried in the Sp. Ct. by the Sp. J. without the formality of the transfer provided for in the ordinary procedure. It is urged that these were pending cases in the ordinary Cts. and the application of the Special Act deprived the right of the petnrs. to be tried under the ordinary procedure. This Court has held in Sandada Gurusanthappa v. Government of Mysore, 48 Mys. H. C. R. 430, that a change in procedure will apply to pending proceedings unless there is something in the Statute showing that it is not to apply to pending proceedings. Maxwell on Interpretation of Statutes, at pp. 198 and 199 states thus : "No person has a vested right in procedure. He has only a right of prosecution or defence in the manner prescribed for the time being by or for the Ct. in which he sues and if an Act of Parliament alters that mode of procedure he has no other right than to proceed according to the altered mode. The general principle however seems to be that alterations in procedure are retrospective." In vol. 31 of Halsburys Laws of England, at p. 537, the principle is stated thus : "A penal Statute which does not create a new offence but deals only with procedure and punishment, may be retrospective." The application of the Criminal P. C. is also limited by sub-s. 1 of S. 2 of the Code. The portion relevant runs thus : "In the absence of any specific provision to the contrary nothing herein contained shall .... affect any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force." The provision of the Criminal P. C. will not affect any special jurisdiction or power conferred by any other law for the time being in force and the Special Criminal Courts Act is one such law and the special form of procedure prescribed by such law will not be affected by the Criminal P. C. Consequently, on the application of the Special Act, the procedure prescribed by the Criminal P. C. ceases and the Sp. J. gets jurisdiction and the special form of procedure prescribed by the Special Act will apply. The trend of decisions in India are all to the same effect. Beaumont C. J. in Shreekant v. Emperor, A. I. R. (30) 1943 Bom. 169 at p. 174 : (44 Cr. L. J. 616 F.B.), held thus : "It the trial has net commenced it seems to me plain, that under S. 5, (S. 5, Special Criminal Courts Ordinance corresponds to S. 4, Mysore Special Criminal Courts Act) the case can be placed before a S. J. and I see no reason why this Ct. should not give effect to the plain and natural meaning of the words used." In Gopal v. Emperor, A. I. R. (30) 1943 Pat. 245 at p. 250 : (45 Cr. L J 177 S. B.), while examining the Ordinance of 1942, Meredith J. observed that: "An examination of the Ordinance as a whole shows that it sets up new Cts. and sets up new procedure for trial of cases in those Cts. The procedure it sets up is only for the trial of cases. It lays down no new procedure for dealing with cases in the preparatory stage up to the point when the case becomes ready for trial. It clearly contemplates that the taking of cognizance and all preliminary orders, such as orders, for inquiry, shall be made by the S. D. O. or the Dist. Mag. as the case may be in the ordinary way under the provisions of the Criminal P. C." In another passage, the learned Judge states thus : "The fact that cognizance is in the first instance taken by the S. D. O. and preliminary orders are passed by him can be no indication that trial in the ordinary Cts. is contemplated and obviously the fact that such steps are taken in the Ct. of the S. D. O. can give rise to no right to be tried in his Ct. or under Ordinary procedure." A Sp. J. is not therefore debarred from taking cognizance of the case pending before another Mag.

34. It is next urged that the provisions of the special act curtail ordinary procedure prescribed in the Criminal P. C. and the Evidence Act and also deprive the right of appeal. It is also argued that the provisions relating to the procedure prescribed in the Special Criminal Courts Act is a discriminatory legislation offending the fundamental rights guaranteed under Arts. 14 and 21 of the Constitution. Article 14 lays down that the State shall not deny to any person equality before the law of the equal protection of the laws", and Art. 21 provides that "no person shall be deprived of his life or personal liberty except according to procedure established by law." Article 14 is analogous to the Fourteenth Amendment of the American Constitution and Art. 21 is included in the Fifth Amendment to the Constitution to the effect that no person will be deprived of life, liberty or property without due process of law. The expression "procedure established by law" in Art. 21 of our Constitution, is substituted for "due process of law."

35. It may here be useful to examine the principles laid down in the interpretation of the Fifth and Fourteenth Amendment to understand the scope of Arts. 14 and 21 of our Constitution. The American law aims at equality of treatment and all persons enjoy the protection of due process Equality before law means that there should be absence of privilege and equal subjection of all classes to the law of the land. Willis in his Constitutional Law at p. 579 states : "The guarantee of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed. "Hayes v. Stales of Missouri, (1887) 120 U. S. 68." The inhibition of the amendment......was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation." Pembina," Consolidated Silver Mining Co. v. Pennsylvania, (1888) 125 U. S. 181-187 The same learned author observes at p. 560 thus : "Many different classifications of persons have been upheld as constitutional. A law applying only to one person or one class of persons is constitutional if there is sufficient basis or reason for it " It is contended that the Special Criminal Courts Act deprives the persons their vested rights in the ordinary procedure prescribed by the general law in the matter of evidence and the right of appeal No person could be said to have a vested right to a particular remedy in procedure. In Brown v State of New Jersy, (1899) 175 U. S. 172 it is laid down that: "The State has full control over the procedure in its Cts. in both civil and criminal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights." "Prescribing of different modes of procedure and the abolition of Cts., and the creation of new ones leaving untouched the substantial protection with which the existing laws surround the person accused of crime, are not considered within the Constitutional inhibition ex post facto laws." Vide, Duncan v. State of Missouri, (1894) 152 U. S. 485. It is open to the legislature to determine what evidence may be received and the effect of such evidence so long as fundamental rights are preserved. A right of appeal is not considered to be essential for protection of due process of law. Willoughby on the Constitution at p. 1727 states that: Due process of law does not require the provision of a right of appeal." In Mckane v. Durston, (1894) 153 U. S. 684, the Ct. declared that: " A review by an appellate Ct. of the final judgment in a criminal case, however grave the offence of which the accused is convicted, was not at common law, and Is not now a necessary element of due process of law. " According to State of Ohio v. Akron Metropolitan Park, 281 U. S. 711: "The equal protection of the provisions of the Federal Constitution do not require a State to adopt a unifying method of appeals which will insure to all litigants within the State the same decisions on particular questions which may arise." It, therefore, follows that equal protection of law affords no guarantee as to a particular form of procedure, or the usual form of evidence, or the right of appeal so long as there is equal protection in the treatment of all persons equally circumstanced.

36. It is not disputed that the Legislature has wide discretion in determining the subject-matter of laws. The State of Laws and judicial systems are not required to be uniform throughout the State. Willoughby in his Constitution, at p. 1941, states as follows: "In Missouri v. Lewis, 101 U. S. 22, the important principle was laid down that the equal protection clause of the Fourteenth Amendment does net prevent the application by a State of different Laws and different systems of judicature to its various local dub-divisions. In this case was questioned the constitutionality of a law providing a Special Ct. of appeals with exclusive jurisdiction for the City, of St. Louis and a few specified countries. To the claim that this law denied to the people of these districts the equal protection of the laws in that they were denied access to the general Ct. of appeals of the state, the S. C. replied :There is nothing in the Constitution to prevent any State from adopting any systems of laws or judicature it sees fit for all or any part of its territory......The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies ....... Diversities which are allowable in different States are allowable in different parts of the same State. "

37. It may be observed here that equality before the law does not requite mathematical equality of all persons in all circumstances. Prom the very nature of Society their should be different laws in different places and the Legislature controls the policy and enacts laws in the best interests of the safety and security of the State. "So long as the fundamental rights of the litigants to a fair trial as regards notice, opportunity to present evidence, etc., and adequate relief, are provided and specific requirements of the Constitution are not violated, the Congress has full discretion as to the form of trial and adjudication and the character of remedy to be furnished." (See Joseph Hurtado v. People of the State of California, (1884) 110 U. S. 232 and Maxwell v. George N. Dow, (1900) 176 U. S. 581. Dodd on Constitution states at p. 919 thus: "The due process clause does not guarantee to the citizen of a State any particular form or method of State procedure. Under it he may neither claim a right to trial by jury nor a right of appeal. Its requirements are satisfied if he has reasonable notice and reasonable opportunity to be heard and to present his claim or defence, due regard being had to the nature of the proceeding and the character of the rights which may be affected by it (Dohany v. Rogers, 281 U. S. 362 at p. 369)" The essentials of an orderly course of procedure are set out in p. 673 of the Constitutional Law by Willis thus: "Neither a Jury trial nor an appeal is necessary for an orderly course of procedure. An orderly course of procedure does not require a Ct. to weigh the evidence; but it does require it to examine the entire record, to ascertain the issues, to discover whether there are facts not reported, and to see whether or not the law has been correctly applied to the facts. The requirement of an orderly course of procedure does not require any particular form of procedure. Procedure sanctioned by settled usage will satiety the requirement but an orderly course of procedure is not limited to procedure which has been sanctioned by settled usage. New forms of procedure are as much due process of law as old form?, provided they give a person a fair opportunity to present his case. New methods in jury trial are legal; thus a verdict may be set aside in part.

38. In Art. 21, Const. Ind, in the expression procedure established by law the word procedure is not used in its technical sense indicating a particular law as contained in the Civil or Criminal P. C. but is employed in a general sense to mean the steps to be taken in an orderly trial. The expressionprocedure established by law has been recently interpreted by the S. C. of India in A. K. Gopalan v. State of Madras, A. I. R. (37) 1950 S. C. 27 : "(51 Cr. L. J. 1383). The learned Chief Justice observes at p. 39 that: "No extrinsic aid is needed to interpret the words of Art. 21, which in my opinion are not ambiguous. Normally read and without thinking of other constitutions, the expressionprocedure established by law must mean procedure prescribed by the law of the State.....By adopting the phraseprocedure established by law the Constitution gave the Legislature the final word to determine law." The principles that could be gathered with reference to the authorities quoted above are, that there is neither vested right to any particular form of trial or procedure, nor to a right of appeal; the being the creation of the Statute should, be governed by the Statute with which a particular offender is tried; and the expression "procedure established bylaw means the law of the land having statutory origin.

39. Applying these tests to the case under consideration, the Special Criminal Courts Act is the law of the land having been enacted by the State Legislature in the year 1942. The Act had been extended to the revenue district of Tumkur so far back as 1942. Once the law is declared to be in force, and the subjects of the District are put upon notice of that fact by official publication, no one can have any just grievance, if the acts and rights are thereafter to be determined in accordance with that law. In fact, the Special Act was in existence long prior to the commission of the offence and even before any steps were taken against the petnrs. Though the Cts. under the Special Criminal Courts Act were not actually functioning, yet the petnrs. must be deemed to have known that these Cts. could be brought into existence at any time by an order of the executive Govt. which in fact was a natural consequence particularly after the promulgation of the law in the District. As the petnrs. do not get a vested right of trial in the ordinary Cts merely because the proceedings were initiated in such Cts., trial of such persons by the Special Cts. after a direction by the Govt. that the offences committed are to be tried by the Special Ct., cannot be said to be illegal.

40. The trial Ct. finished the trial and convicted the accused to varying terms of imprisonment. The sentences are given effect to and are being-served by the petnrs. and some of them who had been awarded smaller sentences have fully served out their terms of imprisonment. The actual existence of a Statute prior to such a determination is an operative fact and may have consequents and this cannot justly be ignored. The past cannot always be completely erased by a new declaration It is argued that the power vested in the Govt. or any servant of Govt. who may be empowered in that behalf by the Govt. is to drastic and is capable of being arbitrarily applied. But an Act cannot be declared to be invalid, merely because it may be feared that the Govt. may abuse it in future; nor are "the Cts. at liberty to declare an Act void, because it is in their opinion opposed to the spirit that is supposed to pervade the Constitution but not expressed in words " See A. K. Gopalan v. State of Madras, A. I. R. (37) 1950 S. C. 27 : (51 Cr. L. J. 1383) In the present case the accused had notice and were in fact tried regularly by the Ct. The Special Criminal Courts Act was applied to the town of Sira and to the group of persons-both Muslims and Hindus- concerned in all the offences said to have been committed on that particular day. It is not the case of the accused that there was any discrimination made in regard to parsons involved in the rioting. If the Act is applied to the entire town of Sira, and there is no discrimination made in respect of persons or offences involved therein, all the persons concerned must be held to have been treated alike without offending fundamental rights The law in itself does not make any discrimination and no distinction between the offenders has been made within the ambit of the particular law for the trial of all the offences in the particular circumstances. It is not shown that either the petnrs. or other persons accused of similar offences were tried otherwise than under the Special Act. The petnrs. in my opinion have not substantiated their claim that the law under which they were tried is inconsistent with fundamental rights and is therefore void. I am constrained to hold that the existing Special Criminal Courts Act is not unconstitutional.

41. Article 13 deals with laws inconsistent with or in derogation of- the fundamental rights and cl. (1) of the saidArticle declares that "all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of Part III, Fundamental Rights, shall to the extent of such inconsistency, be void," and it is claimed that the provisions of the Special Criminal Courts Act are inconsistent with Art. 14 providing equality before law and Art, 21 dealing with protection of life and personal liberty. Assuming that certain provisions of the special act are void they shall become void only after the commencement of the Constitution. The petnts. contend that the expressionshall be void in Art 13 (1) renders the Act void from its very inception with the result, the action taken already while the Act was in force will automatically be rendered illegal. I am unable to agree with that contention and am of opinion that the wordsshall be void are to be interpreted to mean that such laws willbecome void from the date of the commencement of the Constitution, and not from the very inception. Article 13 (1) of the Constitution is not retrospective but prospective.

42. The Advocate General representing the State very ably assisted the Ct. with elaborate arguments touching all aspects involved. It is argued that even should the Ct. deem any of the provisions of the special act void after the commencement of the Constitution, it does not in the least affect the proceedings that were taken and continue to be taken under the said Act. In the view I have taken that the Special Criminal Courts Act is not repugnant to the Constitution, it is unnecessary to deal at length about this aspect. I may however briefly state my view on that aspect.

43. Assuming that an Act has become void after the Constitution, its bearing on the pending proceedings launched earlier to the commencement of the Constitution has now to be considered. The petnrs. contended that the trial cannot be said to have been concluded inasmuch as the proceedings of the Special Judge are still pending review. Review being a proceeding in continuation of the trial and the trial being incomplete without the review, the trial it is argued should be deemed to be a pending proceeding which cannot be continued under law which has become void. The action taken under a valid Act which is subsequently declared void can not be erased out. The consequences ensued, remain unaffected and could never be undone. The policy of Legislature is that a subsequent repeal or rescission of an Act could not have retrospective effect so as to completely undo the consequences already ensued or continue to be ensuing. Not merely the previous operation of the Act is saved, but that the continuation of the pending proceedings under the repealed Act are suffered to continue as if the Act had not been repealed.

44. Section 6, General Clauses Act, declares that: "Where this Act," or any Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different Intention appears, the repeal shall not- (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ; and any such Investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not, been passed." Article 367 (1) of the Constitution lays down as follows : "Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Art. 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India." Clause 6, General Clauses Act, therefore applies to cases where the effect of a subsequent legislation is to make an earlier legislation to have no effect. Presumably, Art. 13 (1) provides that those laws although valid when they were enacted and valid up to the date of the commencement of the Constitution become void when the Constitution cornea into force by reason of the inconsistency with the fundamental rights. In Piare Dusadh v. Emperor, A. I. R. (31) 1944 F. C. 1 ; (45 Cr. L. J. 413), Spens C. J. observes at p. 7 : "On the principle embodied in s. 6 (e), General Clauses Act, the result of the repeal of an enactment on cases pending at the time of the repeal would be that they would continue as if the enactment had not been repealed. But this is subject to the qualification that the repealing enactment contains no provision or indication to the contrary," In a recent case, where prosecution under S. 18 (1), Press Act, 1931 was launched before the commencement of the Constitution and was pending at the time of its commencement, it was held by F. B. of the Bombay H. C. in State v. Keshav Madhav, A. I. R. (38) 1951 Bom. 188 : (52 Cr. L. J. 30 F. B.), thus : "The prosecution is not affected by reason of S. 18 (1) being declared as void under Art. 13 (1) of the Constitution, since S. 6, General Clauses Act, is not confined to cases where the Legislature expressly repeals a named legislation. Section 6 must apply even to cases where the effect of a subsequent legislation is to matte an earlier legislation as of no effect and therefore void. Section 6, therefore, applies to those laws which have become void."

45. The application of the provisions of the General Clauses Act has been made in this Ct. in Subbanna v. Government of Mysore, 53 Mys. H. C. R. 32, wherein it has been laid down that the proceedings taken under the repelled Silk Control Order against the accused were saved in spite of the repeal, by S. 6, Mysore General Clauses Act. The application of S. 6 General Clauses Act, by the F. B. decision of Bombay, referred to above, has been followed by this Ct. in Amritlal v. Government of Mysore, Cr. r. P. No. 7 of 1950-51 : (a. i. R. (38) 1951 Mys 26 : 52 Cr. L. J. 251) and in Abdul Sattar v. State Of Mysore, Cr. R. P. No. 17 of 1950-51 also. Having regard to the provisions contained in S. 6, General Clauses Act, it cannot be held that the tribunal ceased to exist, or the proceedings have been rendered void. Following the principles laid down in the cases cited, I am of opinion that the review proceedings are unaffected and could continue under the impugned Act as if the Act has not been repealed.

46. In the result, the petnrs. are not entitled to any relief in either set of the petns. ; the petns. therefore fail and are dismissed. 46a. Mallappa, J. :- Petitioners have been convicted of offences under some of the sections of the Penal Code by the Sp. J. appointed under the Special Criminal Courts Act - Act xxiv [24] of 1942. Some of the petnrs. have been convicted of murder under S. 302, Penal Code, and sentenced to death or transportation for life, while others have been convicted of grievous hurt and other offences and sentenced to various terms of rigorous imprisonment. The conviction is under review by a Judge appointed under the above Act. The petnrs. have filed these petns. for getting the records to examine them and to issue writs of habeas corpus for releasing them on the ground that the proceedings are void.

47. The learned Advocates who appeared for the petnrs. raised three important points in the course of their arguments. In the first place it was contended that the Special Criminal Courts Act is ultra vires even prior to the Constitution. In the second place it was contended that the Act is void as it offends Art. 14 of the Constitution and that since the proceedings have not bean completed before 26-1-1950, thepetnrs. are entitled for a writ as applied for. The third contention raised is that the proceedings had been instituted before the Sp. First Class Mag., Madhugiri, who had taken cognisance of the offences and the Sp. J. had no jurisdiction to try such cases.

48. The main contention raised regarding the first point is that the Legislature does not itself state in the Act what cases or classes of cases have to be tried by the Sp J. but that the power to divest the regular Cts. of their jurisdiction and to invest the Sp. Cts. with the jurisdiction in particular cases or classes of cases is delegated to the Govt. or to any officer authorised by the Govt. It is contended that while the Legislature has full authority to legislate in whatever manner it likes it cannot delegate its powers of legislation to some, one else. On this aspect of the matter, the decision of the F. C., Emperor v. Benoari Lall, 6 F. L. J. 79: (A. I. R (30) 1943 P. C. 36 : 45 Cr. L. J. 1) is relied on. It is not disputed that this decision was the subject-matter of an appeal before their Lordships of the P. C. in the case reported in Emperor v. Benoari Lall, 72 i. a. 57 : (A. i. R. (32) 1945 P. C. 48: 46 Cr. L. J. 589), and that it was held in that decision that what has been referred to by the majority of the Judges of the F. C. as delegated legislation is conditional legislation and that the Legislature at that time was quite competent to pass the Special Criminal Courts Ordinance. All the same, an argument which is almost ingenious was put forward. It was urged that this Ct. is bound to follow the F. C. decision, though in fact their Lordships of the P. C., had, on appeal, against the very decision, taken a contrary view. It was contended that though this Ct. was not bound prior to the Constitution to follow either the decisions of the P. C. or those of the F. C. of India, it is now bound to follow the decisions of the F. C. while it is not bound to follow the P. C. decisions. Article 141 of the Constitution states that the law declared by the S. C. shall be binding on all Cts. within the territory of India. Under Art. 374 (2) of the Constitution, the judgments and orders of the F. C. delivered or made before the commencement of the Constitution shall have the same force and effect as if they had been delivered or made by the S. C. It was contended that it follows therefore that the law laid down in the judgment of the F. C. delivered or made before the commencement of the Constitution is binding on all the Cts. within the territory of India. It has to be observed that Art. 374 is found in Part xxi which deals with "Temporary and Transitional Provisions" and it has not been laid down that the law declared by the F. C. before the commencement of the Constitution shall be binding on all the Cts. within the territory of India. The context in which the latter part of cl. (2) of Art 374 is used is important. A careful examination of Art. 374 as a whole shows that the Judges of the F. C. holding office prior to the Constitution shall, unless they elected otherwise, become on such commencement the Judges of the S. C. All suits, appeals and proceedings, Civil or Criminal pending in the F. C. at the commencement of the Constitution shall stand removed to the S. C. The S. C. shall have jurisdiction to heat and determine the same. In this context it is said that the judgments and orders of the F. C. delivered or made before the commencement of the Constitution shall have the same force and effect as if they had been delivered or made by the S. C. Evidently what is intended is that the judgment should be followed by decrees and that the parties would be entitled to get relief, as if the judgments and orders are these passed by the S. C. It is true that it is not open to the persons against whom the judgments or orders were delivered or passed by the F. C. prior to 26-1-1950, to contend that the judgments and orders are of no force and effect after 26-1-1950, on the ground that the E. C. itself has ceased to exist. But, Art. 374 does not appear to contemplate that the H. Cs of India are bound to follow the decision of the F. C. in spite of the fact that a contrary view has been taken by their Lordships of the P. C. in an appeal against that very decision. The view of their Lordships of the P. C. in Emperor v. Benoari Lall 72 I. A. 57 : (a.I.R. (32) 1945 P. C. 48 : 46 Cr. l. j. 589), is, that in cases of this kind, the point involved is whether Legislature is competent to pass the impugned Act or Ordinance and that the Cts. have nothing to do with the policy. The principle lad down by their Lordships was recognized by the F. C. itself. Spens C. j. observed in Piare Dusadh v. Emperor, 1944 M. W. N. 1, at p. 12 : (a. I. R. (31) 1944 P. C. 1 : 45 Cr. l. j. 413), in respect of Ordinance xix [19] of 1943 that, "it was said that the provisions of the Ordinance were hardly likely to conduce to peace and good govt..... It is sufficient answer to this to say that the judicial committee have laid down that this is not a matter for the Cts. to investigate." Even otherwise it has to be said that according to the opinion of the S. C. itself, legislation of the kind in question is conditional legislation and not delegated legislation. The point was for consideration in Gopalans case, 1950-2 M. l. j. 42 : (A.I.R. (37) 1950 S. C. 27 : 51 Cr. l J 1383), and his Lordship the Chief Justice of the S. C. in dealing with Preventive Detention Act observed : "It was first argued that by s. 3, the Parliament had delegated its legislative power to the executive officer in detaining a person on his being satisfied of its necessity. It was urged that the satisfaction must be of the legislative body. This contention of delegation of the legislative power in such cases has been considered and rejected in numerous cases by our F. C. and by the English Cts. It is unnecessary to refer to all those cases, A reading of the various speeches in Liversidge v. Anderson, (1942) A. C. 206 : (110 l. J. K. b. 724), clearly negatives this contention. section 3 of the impugned act is no delegation of legislative power to make laws. It only confers discretion on the Officer to enforce the law made by the Legislature." Then again as observed by His Lordship in N.B Khare (Dr.) v. State Of Delhi, in connection with s. 4, East Punjab Public Safety Act : (A. i. R. (37) 1950 S. C. 211 at p. 214) : "It was argued on behalf of the petnr. that under S. 4, the power to make the order of externment was given to the Provincial Govt. or the Dist. Mag., whose satisfaction was final. That decision was not open to review by the Ct. On that ground it was contended that there was an anreasonable restriction on the exercise of the citizens right. In my opinion, this argument is unsound. This is not legislative delegation. The desirability of passing an individual order of externment against a citizen has to be left to an officer. In the Act such a provision cannot be made."

49. If prior to the Constitution, the Legislative Council in Mysore had the power to pass the Criminal P. C., it has to be said that it had equally the power to modify it or to pass a similar Code and set up other Cts. in which the procedure laid down by it had to be followed. It has not been shown that there was any limitation on the powers of the Legislative Council in Mysore, coming in its way to legislate, that any cases or classes of cases selected by any officer referred to by it, should be tried by the new Cts. The machinery was complete! when the Special Criminal Courts Act was passed by the Legislative Council and it had only to be set in motion by someone authorised in the Act. So long as the Legislative Council had the power to do it - it has not been shown that it had no such power-it cannot be said that the Special Criminal Courts Act was ultra vires prior to the Constitution. The powers of a Legislature, unless limited by Constitution is supreme and it is not open to the Cts. to find out in such cases whether any enactment. is reasonable or unreasonable. Nothing came in the way of Parliament in England in legislating that Richard Rose who had poisoned Bishop of Rochester is directed to be put to death by boiling in oil without any advantage of his Clergy (Statute 22, Henry VII, Sn. 9)." Nothing came in the way of drastic actions being directed to be taken against any person or class of persons chosen by any authority named by the Legislature not bound by the Constitution of the country to act otherwise. So long as the Statute is within the powers of the Legislature, Cts. cannot say that such a legislation is ultra vires. As observed in Queen v. Burah, 5 I. A. 178 : (4 cal. 172; P. C.) "the only way in which the Cts. could touch such questions is by looking to the terms of the instrument by which affirmatively the legislative powers are created and by which negatively they are restricted." It cannot be said that the Legislative Council in Mysore had not the power to pass an Act like the Special Criminal Courts Act prior to the Constitution. As observed in Russel v. The Queen, (1882) 7 A. C. 829 at p. 935, "Conditional legislation of this kind, is in many cases, convenient and is certainly not unusual." The result is that the first point fails.

50. Coming to the second point it has to be observed that there is a vital change in the powers of the Legislature as under the Constitution "the State shall not deny any person equality before the law or the equal protection of the laws within the territory of India," as is clear by Art. 14. In fact the Constitution goes further and states in Art. 13, cl. (1), that "all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void." The point that arises for consideration is whether the Legislature to-day can enact, an Act like the Special Criminal Courts Act consistently with the right of equality before the law of all persons as declared in Art. 14, and if it cannot, whether the Special Criminal Courts Act is not void, as per Art. 13, cl. (1) of the Constitution, after the midnight of 25-1-1950. In this connection certain observations made in the decision of the Sp. B. of the Calcutta H. C. against which an appeal had been filed before the F. C. and the decision of the F. C. in that appeal have to be referred to, as they refer to "the grave inroads made on the rights of the subject under the ordinary law." In the Calcutta case, Rowland J. observes : "Derbyshire, C. J., pointed out that grave inroads were made on the rights enjoyed by the subject under the ordinary law. A Mag. of the Second Class under the Code can impose a sentence up to six months imprisonment only ; the same Mag. sitting as a summary Ct. can give up to two years. There is no provision that the Mag., to be vested with the powers of a summary Ct. must have had any particular length of judicial experience. Under the Code, on conviction, there would be an appeal from a conviction in all cases; under the Ordinance, only if the sentence exceeds three months imprisonment or Rs. 200 fine. Under the Code there is a further right to move the H. C. in revn. By the Ordinance this right is barred. A Mag, of the First Class under the Code can impose a sentence limited to two years imprisonment ; the same Mag. sitting as a Sp. Ct. can give up to seven years. Under the Code there is an appeal unless the sentence is within the limit of Rs. 50 fine; under the Ordinance only if the sentence exceeds two years imprisonment. As before there is no right to move any Ct. in revn. To be qualified to exercise these enlarged powers a Mag. must have exercised first class powers for two years. In the Ct. of Session, powers are exercised by Ses. JJ., Addl. Ses. JJ. and Asst. Ses. JJ. under the Code. An Asst. Ses. J. can impose sentence upto seven years; a Ses. or Addl. Sea J. any sentence authorised by law, but a sentence of death is subject to confirmation by the H. C. Under the Code there is an appeal if the sentence exceeds one months imprisonment or Rs. 50 fine. By the Ordinance there is no appeal whatever and no one has any re-visional jurisdiction. There is no reference to the H. C. for confirmation of the death penalty; and no superior Ct. can be moved in revn. Where however, a sentence of seven years or upwards has been imposed, a reference Is made to a certain person who must be a H. C. Judge; and his order is final. A similar submission can be made by the Sp. J. if he finds the case involves points of special difficulty. (It is to be noted that a Sp. Mag. dealing with a case of special difficulty is not able to make any such submission to any one; nor is a summary Ct. empowered to do any such thing) To be qualified to exercise the enlarged powers of a Sp. J. a person must have exercised for two years the powers of a Ses. J. or Asst. Ses. J. But the defeat of jurisdiction alleged is not that the Legislature could not constitute new Cts. and entrust to them new powers as wide as these; or that it could not change the procedure of inquiry it, trial as has been done by permitting a memo. only of the substance of the evidence to be recorded instead of the whole of the evidence; In permitting a Sp. J. to take cognizance of offences without the accused being committed to his Ct. for trial, whereas under the Code, a Ct. of Session shall not take cognizance of any offence as a Ct. of original jurisdiction unless the accused has been committed by a Mag. duly empowered; and in abolishing completely the right of trial by jury or with assessors, it is not even said that the Legislature was incompetent to enact S. 26 barring appeals save as provided in the Ordinance and barring the exercise by any Ct. of revisional jurisdiction or jurisdiction to transfer a case or jurisdiction to make an order under S. 491 of the Code, or jurisdiction of any kind. It is said that the Legislature could do these things, drastic as they are. But they could not be done by any other or subordinate authority.......... The learned Chief Justice dwells on the grave consequences, with which be seems to be much impressed. I may say here that I have had the advantage of seeing in advance the judgment that His Lordship the Chief Justice has just delivered; and had it been within our province to enter on questions of policy I would associate myself with much if not all of what he has said, as to the value and importance, when delegating a discretionary power, of proper safeguards and of sufficiently directing the entrusted authority (either by provision in the Act or by rules) as to the principles in which he ought to be guided in the use of his discretion."

51. It may be noticed here that Rowland J., who has stated that he is not speaking in a spirit of levity and was commenting on the contrary with warmth and whose view was upheld by the P. C. in preference to that of Varadachariar C. J., does not take exception to the fact that hardship is caused by the special enactment or to the fact that there is unequal treatment of different persons committing the same kind of offences in one and the same area. On the other hand, he states that if it had been within the province of Judges to enter upon the question of policy, he would associate himself with much if not all of what has been said. His point is that it was not open to him to do so and if the Indian Legislature had at that time the power to enact such an Ordinance as the one in question, it was not for the Cts. to lay down the policy. It is also equally necessary to point out that the P. C. decision in Emperor v. Benoari Lall, 72 I. A. 57 : (A. I. R. (32) 1945 P. C. 48 : 46 Cr. L. J. 539) does not also take exception to what has been stated by Varadachariar C. J. of the F. C. or by the Judges of the Calcutta H. C. as to the effect of the Ordinance. The following is a passage from the P. C. decision : "There remains to be considered another objection to the validity of the Ordinance which is, as their Lordships understand, the main ground on which it has been held to be ultra vires. The objection may perhaps, be stated in more ways than one, but the substance of it, as appears both from the judgment of Sir Harold Derbyshire in the H. C. and of the Chief Justice in the F. C,. is that the Ordinance makes it possible to discriminate between one accused and another, or between one class of offence and another, so that cases may be tried either in the sp Cts. or under the ordinary and well established criminal procedure according to the direction and decision of provincial authorities. It la evident that this is an aspect of the matter which has greatly troubled the majority of the Judges in India who have had this case before them, and in view of the well-established practice in India by which decisions in criminal cases are open to review by a higher Ct. it is natural that those who are versed in applying this system should feel disturbed by the totally different arrangement contained in the Ordinance. The sections of the Ordinance which appear to have given the Judges in India most concern are Ss. 5, 10, 14 and 16. (His Lordship read the Sections and continued). Sir Harold Derbyshire found that these sections were invalid. He pointed out, with justice, that the ordinance left it to the local Govt. or to some officer of the local Govt. empowered by it in that behalf, to direct what offences or classes of offences. and moreover what cases or classes of cases, should be tried by the sp. Cts.......In the F. C, the Chief Justice dwelt on the value of the revisional jurisdiction, but considered that the most serious defect in the impugned Ordinance was the power it conferred to discriminate between one accused and another by directing trial in different Cts........He concluded that Ss. 5, 10 and 16 of the Ordinance are open to objection as having left the exercise of the power thereby conferred on executive officers to their absolute and unrestricted discretion without any legislative provision or direction laying down the policy or conditions with reference to which that power is to be exercised. This was the ground on which the Chief Justice and Zafrulla Khan, J., based their decision that the appeal of the Grown should be dismissed. With the greatest respect to these eminent Judges,their Lordships feel bound to point out that the question whether the Ordinance is intra vires or ultra vires does not depend on considerations of jurisprudence or of policy. It depends simply on examining the language of the Govt. of India Act and of comparing the legislative authority conferred on the Governor-General with the provisions of the Ordinance by which he is purporting to exercise that authority. It may be that as a matter of wise and well-framed legislation it is better, if circumstances permit, to frame a statute in such a way that the offender may know in advance before what Ct. he will be brought if he is charged with a given crime; but that is a question of policy, not of law. There is nothing of which their Lordships are aware in the Indian Constitution to render invalid a Statute, whether passed by the Central Legislature or under the Governor-Generals emergency powers, which does not accord with this principle,"

52. It will be noticed here again that their Lordships of the P. C. do not take exception to the observations of Sir Derbyshire C. J. of the Calcutta H. C. or of Varadachariar C. J. of the F. C. that the Ordinance makes it possible far the Govt. or its officers to arbitrarily discriminate between one accused and another under like circumstances and in the same territorial jurisdiction. There can be no valid objection to the delegation of power but a valid objection can be taken in respect of the power that the Act conferred on the Govt. to discriminate between one accused and another. If during times of emergency, the legislature introduces a new Act superseding the Criminal P. C. in any area and prescribing another procedure in respect of ail offences or in respect of offences of a particular kind, it may not be correct to say that this offends the principle of equality of all persons before the law. "Discriminating against some and favouring others is prohibited." Delegation by itself is harmless if the impugned Act does not enable "any person or class of persons from being singled out as a special subject for discrimination and hostile legislation." In the present case, the persons accused of having committed murder and other offences during Sira disturbanceshave been directed to be proceeded against in the Ct. of the Sp. J. Other persons committing the same offences punishable under the Penal Code in the some territorial sub-division are being tried in the ordinary Cts. This discrimination is made possible by the Special Criminal Courts Act. The discrimination is for no public purpose. It has no reasonable basis. There is nothing to indicate in the Act what kind or class of persons have to be singled out for being summarily dealt with under the Act. Even the Police Officer authorised to discriminate need not be satisfied of the existence of any particular circumstance for his singling out any persons for this treatment. He can at his sweet will and pleasure, pick and choose any one. Only a few of the accused in these cases could have been chosen under the Act. It is true that all parsons chosen by Govt. or by an officer authorised by the Govt. for the special treatment under this Act are treated alike, but that does not take away the fact that the impugned Act makes a discrimination against them possible while persons under similar circumstances in the same territorial jurisdiction are being tried in the ordinary Cts. and have all the advantages, a trial in those Cts. admittedly lias.

53. As some reference was made to the doctrine of equal protection of the laws in U. S. A., it is necessary to point out that the impugned Act offends the 14th Amendment which provides that no State shall "deny, to any person within its jurisdiction, equal protection of the law." The prohibition under the 5th Amendment is in respect of due process of law. The following observation by Taft C. J. in Truax v. Corrigan (1921) 257 U. S. 254, makes clear the principle on which both the 6th and 14th Amendments are based and the sphere of the protection they offer: "This brings us to consider the effect in the case of that provision of the 14th Amendment which forbids any State to deny to any person the equal protection of the laws. The clause is associated in the Amendment with the due process clause, and it is customary to consider them together ......The due process clause requires that every man shall have the protection of his day in Ct., and the benefit of the general law, - a law which hears before it condemns, which proceeds not arbitrarily or capriciously, but upon inquiry, and renders judgment only after trial, so that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society" ......"All men are equal before the law;This is a Govt. of laws, and not of men;No man is above the law, are all maxims showing the spirit in which Legislatures, executives, and Cts., are expected to make, execute, and apply laws. But the framers and adopters of this Amendment were not content to depend on a mere minimum secured by the due process clause, or upon the spirit of equality which might Dot be insisted on, by local public opinion. They therefore, embodied that spirit ho a specific guarantee. The guarantee was aimed at undue favour and individual or class privilege on the one hand, and at hostile discrimination or the oppression of inequality, on the other. It sought at equality of treatment of all persons even though all enjoyed the protection of due process. Mathews J. in Yick Wo v. Hopkins, (1886) 118 u. S. 356, 369, 30 L. ed. 220, 226, 6 Sup. Ct. Rep. 1064, speaking for the Ct., of both the due process and equality clause of the 14th Amendment said: "These provisions are universal in their application, to all persons within the territorial jurisdiction without regard to any differences of race, of colour, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. The accuracy and comprehensive felicity of this description of the effect of the equality clause are shown by the frequency with which it has been quoted in the decision] of this Ct. It emphasizes the additional guarantee of a right which the clause has conferred beyond the requirement of due process." Then again as observed in Barlier v. Connolly, (1835) 113 u. S. 27: "The 14th Amendment in declaring that no State shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws, undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty or arbitrary spoliation of property but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the Cts. of the country for the protection of their person and property, the prevention and redress of wrongs and the enforcement of contracts; that no impediment should be interposed to the pursuits by anyone except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition, and that in the administration of criminal justice no different for higher punishment should be imposed upon one than such as is prescribed to all for like offences." Then again it was laid down in Hayes v. Missouri, (1887) 120 U. S. 68: That the 14th Amendment,does not prohibit legislation which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subject to such legislations shall be treated alike, under like circumstances and conditions both in the privileges conferred and in the liabilities imposed." The meaning and effect of guarantee according to Willis as stated at p. 579 of his book on Constitution Law, is as follows: "The guarantee of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate.It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposedThe inhibition of the amendment... was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation. "It does not take from the States the power to classify either in the adoption of police laws, or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis."

54. It will be noticed that legislation by the State should be of the type that all persons subject to it shall be treated alike under like circumstances and conditions But as observed by their Lordships of the P. C., the objection to the Ordinance corresponding to the Special Criminal Courts Act is, "that it makes it possible to discriminate between one accused and another or between one class of offences and another" so that cases may be tried in the Sp. Criminal Cts., or under the ordinary and well-established Criminal Procedure according to the direction and decision of Provincial authorities. The existence of such an objection was recognized by their Lordships but they were of opinion that legislature at the time was competent to pass such an Ordinance. Prior to this Act all persons who committed offences under the Penal Code were tried in accordance with what his been referred to by their Lordships as the well-established Criminal P. C. After the Special Criminal Courts Act was enacted, some persons arbitrarily chosen are tried in Sp. Cts and are denied the safeguards which other people in the same jurisdiction committing the same offences are having, in ordinary criminal Cts. in accordance with "well-established practice." There is no apparent reason for this distinction. It cannot, on account of the impugned Act, be said that all persons committing offences of the same kind are treated alike under like circumstances and conditions both in the privileges conferred and on the liabilities imposed. It is no answer to say that all persons chosen arbitrarily for the special treatment under the Act are treated alike. There is no classification. The Act does not say what kind of cases are to be directed to be tried by the Sp. Ct. If the Act stated that old offenders or persons committing particular offences or persons who to the satisfaction of a particular officer are committing offences with a political object have to be tried under the special procedure fixed by the Act, one can see some kind of classification and something of reasonable grounds for distinction. The Act makes it possible even for a Police Officer to discriminate between one person and another without reasonable basis. The Act enables the Govt. or an officer authorised by Govt. to indiscriminately take away the privileges an offender has under the Criminal P. C., and thus "equality before the law or the equal protection of the laws" is denied by the State by proceedings under the Special Criminal Courts Act. If it is said that persons are chosen arbitrarily from a class and are treated alike, the answer is as stated in 165 U. S. 150 "Classification to relieve a law from the charge of a denial of equal protection, cannot be made arbitrarily, but must be based on some difference which bears a just and proper relation to the attempted classification." Tin facts and the exposition of the law in that case are of great help for the decision of this case and a few lines are worth a perusal: "The S. C. of the State considered this statute as a whole and held it valid and as such it is presented to us for consideration. Considered as such, it is simply a statute imposing a penalty upon rail road corpus, for a failure to pay certain debts. No individuals are thus punished, and no other corpns. The act singles out a certain class of debtors and punishes them when for like delinquencies it punishes no others. They are not treated as other debtors, or equally with other debtors. They cannot appeal to the Cts. as other litigants under like conditions and with like protection. If litigation terminates adversely to them, they are mulcted in the attorneys fees of the successful pltf.; If it terminates in their favour, they recover no attorneys fees. It is no sufficient answer to say that they are punished only when adjudged to be in the wrong. They do not enter the Cts. upon equal terms. They must pay attorneys fees if wrong; they do not recover any if right; while the adversaries recover if right and pay nothing if wrong. In the suits, therefore, to which they are parties they are discriminated against, and are not treated as others. They do not stand equal before the law. They do not receive its equal protection. All this is obvious from a mere inspection of the Statute. It is true the amount of the attorney which may be charged is small, but if the State has the power to thus mulct them in a small amount it has equal power to do so in a larger sum. The matter of amount does not determine the question of right, and the party who has a legal right may insist upon it, if only a shilling be involved. As well said by Bradley J. in Boyd v. United States, (1886) 116 u. S. 616, 635 (29: 746, 752)Illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of Cts. to be watchful for the constitutional rights of the citizens and against any stealthy encroachments thereon. Their motto should be obsta principiis. * * * * But it is said that it is not within the scope of the 14th Amendment to withhold from States the power of classification, and that if the law deals alike with all of a certain class it is not obnoxious to the charge of a denial of equal protection. While, as a general proposition, this is undeniably true, yet it is equally true that such classification cannot be made arbitrarily. The State may not say that all white men shall be subjected to the payment of the attorneys fees of parties successfully suing them, and all black men not. It may not say that all men beyond a certain age shall be alone thus subjected, or ail men possessed of a certain wealth. These are distinctions which do not furnish any proper basis for the attempted classification. That must always test upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis."

55. It will be noticed in this case that there was a classification and the class consisted of railroad corpns. The impugned Act imposed a penalty upon them for failure to pay certain debts. It is found that all railroad corpns were treated alike but it was observed: "The Act singles out a certain class of debtors and punishes them when for like delinquencies it punishes no others. They are not treated as other debtors or equally with other debtors. They cannot appeal to the Cts. as other litigants under like conditions and with like protection." It will be noticed that compared to the Special Criminal Courts Act, under which some persons accused of offences are indiscriminately chosen for being deprived of some important privileges to which other persons accused of the same offences in the same territorial jurisdiction are entitled to under the Criminal P. C. during trial for the said offences, the Act referred to in the decision relied on must be regarded as practically harmless. Still it was held "that the statute in controversy cannot be sustained". For, as observed in the decision "Arbitrary selection can never be justified by calling it classification. The equal protection demanded by the 14th Amendment forbids this." The authorities relied on in this case support the same conclusion.

56. As observed by Black J. in State v. Loomis, (115 M. O. 307), "classification for legislation purposes must have some reasonable basis upon which to stand." After a review of a number of cases, it was concluded in Stratton v. Morris, 89 Tem. 497 that "whether a statute be public or private, general or special in form, if it attempts to create distinctions and classifications between the citizens of this State, the basis of such classification must be natural and not arbitrary." It was observed by Mathews J. in Yick Wo v. Hopkins, (1886) 118 U. S. 356: "When we consider the nature and the theory of our institutions of Govt. the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. The first official action of this nation declared the foundation of the Govt. in these words:We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable tights, that among these are life, liberty, and the pursuit of happiness." The following observation in North and South Ala R. Coy. v. Morris, 65 Allen. 193, deserves mention: Justice cannot be sold or denied by the exaction of a pecuniary consideration for its enjoyment from one. When it is given freely and open-handed to another, without money and without peice. Nor can it be permitted that litigants shall be debarred from the free exercise of this constitutional right by the imposition of arbitrary, unjust, and odious discriminations, perpetrated under color of establishing peculiar rules for a particular occupation. Unequal, partial, and discriminatory legislation, which secures this right to some favoured class or classes and denies it to others, who are thus excluded from that equal protection designed to be secured by the general law of the land, it in clear and manifest opposition to the letter and spirit of the foregoing constitutional provisions." Considering that the petnrs. who are tried under the procedure laid down in the Special Criminal Courts Act. are deprived of the right to file an appeal while others tried for offences under the same section of the penal code are entitled to that privilege it is worthwhile noting the following observation in Chicago St. L. and N. O. R. Co. v. Moss, 60 Miss. 641: "The right of appeal cannot be fettered and clogged with; reference to the parties litigant or the attitude they occupy as pltf. or deft. All litigants, whether pltf. or deft. should be regarded with equal favour by the law, and before the tribunals for administering it, and should have the same right to appeal with others similarly situated. All must have the equal protection of the law and its instrumentalities. The same rule must exist for all in the same circumstances." As pointed out in Durkee v. Janesville: "It is obvious there can be no certain remedy in the laws, where the Legislature may prescribe one rule for one suitor or class of suitors in the Cts. and another for all others under like circumstances, or may discriminate between parties to the same suit." Then again as observed in Southern B. Co. v. Samuel E Greene, (1910) 216 U. S. 400 : The Federal Constitution, it is only elementary to say, is the supreme law of the land, and all its applicable provisions are binding upon all within the territory of the United States. Whenever its protection is invoked, the Cts. of the United States, both State and Federal, are bound to see that rights guaranteed by the Federal Constitution are not violated by legislation of the State. One of the provisions of the 14th Amendment, thus binding upon every State of the Federal Union, prevents any State from denying to any person or persons within its jurisdiction the equal protection of the laws. If this statute, as it is interpreted and sought to be enforced in the State of Alabama, deprives the pltf. of the equal protection of the laws, it cannot stand. "The equal protection of the laws means subjection to equal laws, applying alike to all in the same situation. It the pltf. is a person within the jurisdiction of the State of Alabama within the meaning of the 14th Amendment he is entitled to stand before the law upon equal terms, to enjoy the same rights as belong to, and to bear the same-burdens as are imposed upon, other persons in a like situation."

57. A perusal of all these authorities makes it clear that mere classification of some sort does not justify unequal treatment between one set of persons and another set of persons who are proceeded against for offences under the same sections of the Penal Code is the same locality. In fact it can-not said that a more change in the procedure of trial does not affect the accused in a serious manner, In this case, rights such as the right to file an appeal, the right to have confirmation by two Judges of this H. C. of a sentence of death, are all taken away under the Special Criminal Courts Act. As observed by Lord Macnaughten in Colonial Sugar Refining Co., Ltd. v. Irving, 1905 A. C. 369 : (74 L. J. P. C. 77), "the only question is, was the appeal to His Majesty in Council a right vested in the applts. at the date of the passing of the Act or was it a mere matter of procedure ? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. These, like the right to file an appeal, are valuable rights and such rights are taken away by the impugned Act. As observed in the P. C. case, Emperor v. Benoari Lall, 72 I. A. 57 : (A. I. R. (32) 1945 P. C. 49 : 46 Cr. L. J. 589): "Sir Harold Derbyshire.... pointed out, with justice, that the Ordinance left it to the local. Govt. or to some officer of the local Govt. empowered by it in that behalf, to direct what offences or classes of offences, and moreover, what cases or classes of cases, should be tried by the Sp. Cts.....In the f. C. the Chief Justice dwelt on the value of the revisional jurisdiction, but considered that the most serious defect in the impugned Ordinance was the power it conferred to discriminate between one accused and another by directing trial in different Cts..... He concluded that Ss. 5, 10 and 16 of the Ordinance areopen to objection as having left the exercise of the power thereby conferred on executive officers to their absolute and unrestricted discretion, without any legislative provision or direction laying down the policy or conditions with reference to which that power is to be exercised "If this can be said of the impugned Act with justice, can it be said that it is consistent with the principle of Art. 14 of our Constitution which corresponds to the equal protection clause in the 14th Amendment of the American Constitution? The following was brought to our notice as an observation of his Lordship Mukherjea J. of the S. C. with which his Lordship the Chief Justice of that Ct. concurred in the recent case of Charanjitlal v. The Union of India, (A.I.R. (33) 1951 S. C. 41) and I may with respect adopt the line of reasoning: "It would be bad lawif it arbitrarily selects one individual or a class of individuals, one corpn. or a class of corpns. and visits a penalty upon them, which is not Imposed upon others guilty of like delinquency. The Legislature undoubtedly has a wide field of oh doe in determining and classifying the subject of its laws, and if the law deals alike with all of a certain class it is normally not obnoxious to the charge of denial of equal protection : but the classification should never be arbitrary. It must always rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect to which the classification is made : and classification made without any substantial basis should be regarded as invalid." Judging from this standard there is hardly any doubt that the impugned Act has, after the Constitution, to be declared void as it is inconsistent with Art. 14 of our Constitution as well as it is inconsistent with the 14th Amendment of the Constitution of U. S. A.

58. It is not unusual to refer to the history of the country prior to the Constitution to understand the Constitution from what lead to it: "In interpreting an Act of Parliament, you are entitled and in many cases bound to look to the state of the law at the date of the passing of the Act ... in order properly to interpret the statute" (Craies on Statute Law, p. 933). The feelings roused in our country price to the Constitution are clear from the following extract from the introduction of Anand Swarup Chaudhri, to his book onHigh Prerogative Writs". "The emergency legislation enacted in States not democratically governed and its enforcement there presents a picture much different from the one in Democratic Countries .....The case of India furnishes the best example of such a State. The Provinces in India had at the commencement of the war attained a certain degree of autonomy and the citizen had the control of legislation in certain fields, but with the declaration of emergency by the Governor General under S. 102 Govt. of India Act, on the commencement of the war, this power came to be vested In the Centre. The Central Legislature was in its turn altogether ignored and the Govt. was being carried on by him through Ordinances .... Early in 1942 was enacted an Ordinance called the Special Criminal Courts Ordinance (II [2] of 1942) making provision for the trial of offences by Sp Cts. The application of this Ordinance to any particular Province was left to the Provincial Govts. who were to decide to put it into force on being satisfied of the existence of an emergency. Power was given to the Provincial Govt. to direct that cases or class of cases were to be tried by the Sp. Cts. The procedure provided for these Sp. Cts. was a special procedure and the rights of revn. and appeal given by the ordinary law were rigorously cut down. By S. 26 of the Ordinance, all authority in the h. Cts. to revise an order or sentence, or to transfer any case, or to make any order under S. 491, Criminal P. C and all their jurisdiction were excluded in respect of the proceedings of the Sp. Cts. The validity of this Ordinance was also challenged before the Ordinary Cts. The decision of their Lordships of the f. C. in Emperor v. Benoarilal, A. I. R. (35) 1948 P. C. 48 : (46 Cr. L. J. 589) is well worth noting . ... As a result of this decision the Special Courts Ordinance was repealed and provision was made for a review of the sentence passed by the Sp. Cts. Notwithstanding the repeal the executive, determined to retain the widest legislative and executive power to itself appealed to the P. C. The P. C., negatived the broad view of the majority of the F. C. based upon the peculiarity of conditions in India and of Great Britain. This judgment of the P. C. has been widely criticised. It baa even been characterised as a judgment based on considerations of policy." The passage is only referred to, in order to show how in India prior to the Constitution feelings were roused against the Ordinance corresponding to the Special Criminal Courts Act and it is easy to see why the line of argument was sometimes stretched in order to hold that the Ordinance, which made it possible for even a Police Officer to arbitrarily discriminate between the case of one person and another within the same territorial jurisdiction and under the same circumstances and conditions, was invalid. It must be stated that the argument was no doubt not tenable and nothing could have been then done as the Constitution of the country as it existed then made it possible foe the foreign Govt. to enact any law however much it was opposed to the maxim, "All men are equal before the law". The moment India became free and independent the reaction began. It is not unlikely that Arts. 13 and 14 were intended to hit at enactments like the Special Criminal Courts Act.

69. What then is the effect of holding that Special Criminal Courts Act is void on the morning of 26-1-1950 ? Before considering this aspect of the matter, it would be useful to consider, what stage the proceedings under the Special Criminal Courts Act are at. As observed already the Sp. J. has pronounced his judgments and the cases are under review by a Judge of the H. C. appointed for that purpose by the Govt. Sections 6 and 7, Special Criminal Courts Act are as follows : "6. A Sp. J. may pass any sentence authorised by law,

7. If in any proceedings before a Sp. J.- (a) a person convicted is sentenced to death or to imprisonment for a term of seven years or more, or (b) though no person is so sentenced, the Sp. J. certifies that in his opinion the case has involved questions of special difficulty, whether of law or fact, or is one which for any other reason ought properly to be reviewed, the proceedings shall be submitted for review by a person nominated in this behalf by the Govt., which person shall be chosen from the Judges of the H. C. and the decision of that person shall be final." The words "shall be submitted for review" make it clear that there is no option in the matter either to the prosecution or to the accused to submit to or prevent a review. It is the decision of the Review Judge that is final. In fact unless there is a review which is obligatory under the scheme, the accused sentenced to death cannot be hanged and the sentence of imprisonment which some of the accused have to undergo cannot be given effect to. The person sentenced to death at any rate would not run the risk of a review under those circumstances if he can stop it. It cannot be said that the review is for the benefit of the accused as, if they have a choice they would like to stop the review and that is what they are now doing. They would prefer a regular trial under the Criminal P. C. with all its advantages, that being the alternative, if review which is a portion of procedure under the impugned Act, cannot be proceeded with as being void under the Constitution. Anyway there is no doubt that in no sense can it be said that the trial under the Act is complete before the judgment of the Sp. J. is reviewed under the Act. 69a. This aspect of the matter is covered by authority in Piare Dusadh v. Emperor, 1944, M. W. N. 1 : (A. I. R. (31) 1944 F. C. 1: 45 Cr. L. J. 413). Spens C. J. who pronounced the judgment of the F. C. observed : "The wordReview does not appear to have been used in any technical sense there, but it obviously differs both from review as understood in the Civil P. C. as well as from an appeal, because these proceedings are ordinarily initiated by the party concerned. The scheme of S. 8 of the Ordinance II [2] of 1942 is that in the more serious classes of crimes therein referred to, the sentence of the Sp. J. should, apart from any initiative of the accused be considered by the reviewing Judge. There is of course, a difference between cls. (a) and (b) to this extent that in cases falling under cl. (a) the review follows compulsorily and automatically, whereas in cases falling under cl. (b) the review procedure becomes available only if the Sp. J. thinks it necessary to submit the case to the reviewing Judge. But once the case has been so submitted, there is no difference in the legal position between cases falling under cl. (a) and cases failing under cl (b) of S. 8. It may perhaps be putting the position too high to describe the sentence of the Sp. J in these cases as only provisional or tentative; but the scheme of the section undoubtedly is that the proceeding against the accused in such cases is not to be regarded as complete till after the review is over. In this view, we are of the opinion that in all cases falling under S. 8 (a) and in all cases where references had been made by the Sp. J under S. 8 (b) the accused will have to be tried under S. 4 of Ordinance XIX [19] of 1943, unless the reviewing Judge acting under the Special Criminal Courts Ordinance, had given his decision before the new Ordinance XIX [19] of 1943, came into operation. It is thus clear that the proceedings under the Special Criminal Courts Act have not been concluded. There is no final order as yet. It may be stated here that the decision in Mahamad Beary v. Hasan Kutty, (1950) 2 m. L. J. 623 : (a. i. R. (38) 1951 Mad. 280) which deals with a case in which "the resp. became entitled to the benefit of the final order of the Subordinate Judge passed on 5-4-1949", is not applicable to the facts of the present case in which no final order has yet been passed. Similarly Bishindra Nath v. Sakti Bhusan, (a. I. R. (37) 1950 Cal 512) is not applicable as it deals with an order which had become final prior to the Constitution.

60. I have already held that the Special Criminal Courts Act is void under Art. 13 of the Constitution. The procedure adopted up to 26-1-1950, cannot be void but I find it difficult to hold that after the Constitution which has declared this Act to be void, it is correct to allow the petnrs. to be subjected to the review proceedings under the Act declared to be void. It is however not without hesitation that I come to this conclusion and it is so, not merely because I learn that my opinion on this point is opposed to the opinions of both of my learned colleagues, but also because I have against me a portion of the reasoning in the F. B. decision of the Bombay H. C. in Keshav Madhav, In Re 52 Bom. l. R. 540 : (A. I. R. (38) 1951 Bom. 188 : 52 Cr. l. J. 30 f. B.) which it must be said, has been followed in a Bench decision of this Ct. It has however to be stated that these cases are distinguishable and are not applicable to the facts of the present case as will be shown later, though they are authorities for holding that Art. 13 is not retrospective. Even otherwise, I feel in cases of this kind I would be failing in my duty if I do not express my present considered opinion and that is, that the matter requires reconsideration by this F. B. in case the reasoning referred to is applicable to the facts of this case.

61. I feel heartened to find an observation in the judgment of the F. C. decision referred to by me, i. e.; Piare Dusadh v. Emperor, 1944 Mad. W. N. 1 : (A. I. R. (31) 1944 F. C. 1 : 45 Cr. l. J. 413). That case was dealing with a Special Criminal Courts Repeal Ordinance XIX [19] of 1943 which was promulgated by the Governor-General repealing the Special Criminal Courts Ordinance but validating, in S. 3 (a), sentences passed previously subject however, to appeal and revision redirecting, in S. 4 fresh trials in cases which were not concluded. The opinion of the learned Judges as to what would happen to cases under Special Criminal Courts Act, not provided for under Ordinance XIX [19] of 1943, as a result of the repealed Ordinance declared void is clear from the following observation : "The contradistinction made by the Ordinance is between cases in which a sentence had been pasted by the Sp. Cts. and cases in which no such sentence had been passed, the former falling under S. 3 (1) and the latter under S. 4. If it should be assumed that the two categories might not be exhaustive and cases might be conceived which even while not falling under S. 4 might not fall under S. 3 (1) the result would only be that the proceedings in such cases would be void under the former decision of this Ct. and the a soused would have to be retried before the regular Cts."

62. The F. B. decision, Keshav Madhav, In Re, 62 Bom L. R. 540 : (A. I. R. (38) 1951 Bom. 188: 52 Cr. L J 30 F. B.), is a case in which it has however been held : "Section 6, General Clauses Act, 1897, applies not only to Acts which have been repealed, but also to those laws which have become void as a result of their being inconsistent with the provisions of Part III of the Constitution. In substance and in its effect there is no difference between an Act which is repealed and an Act which is declared void. Hence, a prosecution for an offence punishable under S. 18 (1), Press (Emergency Powers) Act, 1931, already launched before the Constitution came into force is not affected by the result of S. 18 (1) of the Act being declared to be void under Art. 13 (1) of the Constitution.

63. The first reason given is based on the assumption that there is no difference between a repealed Act and an Act declared void. The reasoning is as follows : "It is argued that the Constituent Assembly was conferring fundamental rights upon the subject, and if a particular statute was inconsistent with fundamental rights, it is inconceivable that the Constituent Assembly would countenance the continuance of a prosecution for contravention of a law which has been declared to be void and contrary to the fundamental rights. Put in that form, the argument appears to be very attractive, but we have to consider, looking to Art. 13 itself and to the other articles to which I shall presently draw attention, whether the Constituent Assembly contemplated a distinction being made between a repealed statute and a statute which it declared to be void, or, in other words, "whether it was in the contemplation of the Constituent Assembly when it declared certain laws to be void under Art. 13 (a) that it did not intend that S. 6, General Clauses Act should apply to such laws. In the first place, we have to consider whether there is any difference in substance between a repealed statute and a statute which is declared void by a Legislature or a Constituent Assembly. It is true, as urged by Mr. Purushottam, that repealing an Act implies a legislative process by which the Legislature applies its mind to specific pieces of legislation and puts an end to their lives. In this very Constitution we have Art. 395 where the Constituent Assembly has repealed certain Acts mentioned in that Article. It will be noticed that by that legislative process the Constituent Assembly applied its mind to those specific pieces of legislation and their lives. When we turn to Art. 13 (1) it was impossible for the Constituent Assembly to know which laws would be inconsistent with Part III of the Constitution. Therefore it could not specifically repeal certain laws as it did in the case of Art. 395. Under those circumstances all that the Constituent Assembly could do was to declare that any law or any part of the law which is inconsistent with Part III of the Constitution would be void. Mr. Purushottam is right that it will be for the Cts. of law to determine which law is inconsistent with the Constitution. But in substance and in its effect there is no difference between an Act which is repealed and an act which is declared void. In both cases the Act ceases to be operative. The law is annulled." It is true that both in the case of an Act repealed and an Act declared void, they cease to be operative and the law is annulled. There is however, I feel, .with very great respect to the learned Judges, at great deal of difference between an Act which is void and an Act repealed. An opponent, whether he is dead, unconscious or asleep is in effect equally harmless. Though there is no difference in effect, there may be substantial difference in what brings about the effect. A void sale need not be set aside. A sale that required to be and is set aside is as ineffective as a void sale. There is nothing in what is void and a void Act needs no repeal. Whether the wordvoid is traced to the Latin form "Viduus" meaning bereft as some do or to the Latin formVacare meaning to be empty, the word connotes empitness, a vacuum or a nullity. Repealing denotes withdrawing something which is in existence (re, back, apeler, appeler, to call - Chambers Twentieth Century Dictionary). To me it looks, that to say that a law is inoperative is to say something less than to say that an Act is repealed. Anyway, the two ideas are different. The wordvoid may not have its full force and effect when it is used in an enactment for the benefit of particular persons and understood asvoidable at the election of those persons but "when it relates to persons not capable of protecting; themselves or when it has some object of public policy which requires the strict construction, the word receives its full force and effect," as observed by Maxwells Interpretation of Statutes (p. 189, eighth Edn.). In this case the word is not used in respect of particular persons. It is used to lay down a general policy applicable to every citizen. The word void has to be understood to have its full meaning as when it is used with the word null to indicate nullity.

64. It looks to me that those words are used studiedly in different articles of the Constitution and before considering this aspect of the matter it is worthwhile perusing the observation on the point in the Bombay decision and it is as follows : "It is clear that no particular efficacy attaches to the expressionvoid used in Art. 13 (1), when one looks at another Article in which the same expression has been used, and that Art. is 254. That deals with the inconsistency, that there may be, between laws made by Parliament and the laws made by the Legislature of the states, and it declares that to the extent that there is such an inconsistency the laws made by the Legislature of the State shall be void. Therefore, any argument based upon the fact that the expressionvoid used in the particular context of Part III should be given a special meaning loses much of its force when one finds the same expression used by the Constituent Assembly in Art. 254 which has nothing to do with any fundamental right. It is instructive to note also that is Art. 251. which again deals with inconsistency between the laws made by Parliament and the Laws made by the Legislature of the States, the expression used by the Constituent Assembly isinoperative and notvoid. Therefore, the Constituent Assembly has used different expressions in different parts of the Constitution to indicate that a particular law has ceased to have any effect and is no longer in operation. There is no reason why we should apply S. 6, General Clauses Act, only to Art. 395 where the expressionrepealed is used and not to other articles where different expressions are used, although in substance the meaning and the connotation of this expression is the same."

65. In the first place, it is desirable to remember that the expressions "void and inoperative", cease to have effect" have been used so much near one another that it is difficult to avoid the conclusion that the different expressions have been used to convey different ideas; otherwise the same expression would have been used. Anyway, a careful examination of the articles in which these expressions are used shows that they are used to indicate different ideas. These articles are found in part XI of the Constitution and it deals with the relation between the Union and the States. It is clear from the very first article that a State is a limb of the Union. The State, it need hardly be stated is subsidiary to the Union of which it forms only a part. Under Art. 245, while the Legislature of the Union has power to make laws for the whole or any part of the territory of India, the Legislature of a State has power to make laws for only the Stare or a part of it. Article 246 states that the Union has exclusively right to make laws in respect of matters mentioned in what is known as Union list while the State has exclusive right of making laws in respect of matters mentioned in what is known as State List. There is also a concurrent List of matters in respect of which both Union and State have powers to legislate. The policy of the Constitution is that when the Union makes laws even in respect of matters mentioned in concurrent list, the State has no jurisdiction to make laws in respect of those matters. This is necessary in order to avoid conflict. In order to show the lack of jurisdiction of the State to make laws inconsistent with the laws made by the Union Legislature, in respect of matters over which it his power to legislate the wordvoid is used in Art. 254 (1) to denote non-recognition of their existence. The word void is also used in Art. 13 to denote the same idea when a law is inconsistent with the fundamental rights. Article 254 (1) is as, follows: "254 (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Cl. (2), the law made by Parliament whether passed before or after the law made by the Legislature of such State, or as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State specified in Part A or Part B of Sch. 1 with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State." It will be noted that what is declared void if Art. 254 (1) is a law made by the Legislature of the State". It is declared void when it is repugnant to a law made by the superior Legislature i. e., Parliament on a subject it is competent to enact. For instance, the powers of the H. C. and S. C. to interfere with the decisions of lower Cts. in appeal or revn. are effected by the provisions of the Special Criminal Courts Act enacted by the State Legislature though that subject is not either in the State List or concurrent List. It is clear that in such cases the Legislature of the State lacks total competency and the laws made by it in such circumstances are no laws at all. No question of repealing them arises. The wordvoid is therefore intentionally used to indicate that such laws should be treated as if they are not in existence.

66. The Parliament which is the Supreme Legislature has, in the interest of the Nation or when an emergency is declared, power to legislate even in respect of matters enumerated in the State List as stated in Arts. 249 (1) and 250 (1). Here again there is a likelihood of conflict between a law made by Parliament and a law made by the State. Article 249 (3) and Art 250 (2) deal with the laws made by Parliament in national interest or when an emergency is proclaimed. They are as follows: "249 (3) A law made by Parliament which Parliament would not but for the passing of a resolution under Cl. (1) have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the resolution has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period.

250 (2) A law made by Parliament which Parliament would not but for the issue of a Proclamation of Emergency have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period." It will be noticed that the law referred to is a law made by the Parliament. It will then be noticed, the Parliament would not have been competent to make laws but for the resolution of two thirds of its members that to do so is in the interest of the nation or for the fact that an emergency is declared. It is not a case of total lack of competency to make laws. So it is stated that the laws made by the Parliament which was competent to make them under the exceptional circumstances shall cease to have force or effect after the time fixed, in view of the fact that it is the State that normally has to legislate in such matters. The wordvoid would be totally out of place to express the termination of .the laws made by Parliament in exceptional circumstances.

67. Now Art. 251 requires a careful study. It is as follows: "251. Nothing in Arts. 249 and 250 shall restrict the power of the Legislature of a State to make any law which under this Constitution it has power to make, but if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament has under either of the said articles power to make, the law made by Parliament, whether passed before or after the law made by the Legislature of the State, shall prevail, and the law made by the Legislature of the State shall to the extent of the repugnancy, but so long only as the law made by Parliament continues to have effect, be inoperative." It dealswith laws which the State has power to make under the Constitution, when they are in conflict with laws which, under the exceptional circumstances referred to above, the Union has equally a power to make. The point to be noted is that both the laws are laws made by Legislatures who have power to make them. The laws made by the State are declared to be inoperative during the period in which the laws made by the Parliament continue to have effect under Arts. 249 (3) and 250 (2). There is not in this case total lack of competency for the State to legislate and the wordvoid would be most inappropriate. It is thus clear that the wordvoid is used when total lack of existence is intended to be conveyed. The word inoperative is used when the existence of the law is recognized but its operation is stopped during the tuna, a law of superior origin is prevailing. The word repeal is used when a law, which is not void, is in existence and it has to be withdrawn. It is in this sense that the word repeal is used in Art. 395. Thus, if these different expressions have been used in different parts of the Constitution they have not been used indifferently to convey the same meaning. If one expression is used to convey a particular meaning, another is used to convey another meaning. Each expression is weighed and used to convey its own idea and it is difficult to find indifferent use of different expressions to convey the same meaning.

68. "In short," as observed by Maxwell, at p. 6 of his book on Interpretation of Statutes, "when the words admit of but one meaning, a Ct. is not at liberty to speculate on the intention of the Legislature and to construe them according to its own notions of what ought to have been enacted. Nothing could be more dangerous than to make such considerations the ground for construing an enactment that is unambiguous in itself. To depart from the meaning on account of such views is, in truth, not to construe the Act, but to alter it. But the business of the interpreter is not to improve the statute; it is, to expound it. The question for him is not what the Legislature meant, but what its language means; i. e., what the Act has said that it meant. To give a construction contrary to, or different from, that which the words import or can possibly import, is not to interpret law, but to make it, and Judges are to remember that their office is Jus Dicere, not Jus Dare."

69. The wordsvoid,repeal,inoperative have been used in the sense in which they are generally used and understood. There is no reason to construe that they all have the same meaning when used in the different articles of the Constitution and not their natural meaning.

70. As observed in the Bombay decision, "Looking to Arts. 395, 13 and 372, the scheme seems to be that the Constituent Assembly has repealed the old Constitution Act and under Art, 372, it has continued in force all the laws which were in force before the commencement of the Constitution subject to their being altered or repealed by a competent legislature or other competent authority. But this is subject to Art. 13 which makes an exception in the case of those laws which are inconsistent with the provisions of Part III." What follows is that if the Special Criminal Courts Act is inconsistent with part III - I feel no doubt it is so-it is not one of the Acts that are continued. Nay, there is something more sad in respect of it. It shall be void i. e., it must be regarded from the morning of 26-1-1950 as if it does not exist after that date.

71. I may here state that it is significant that Arts. 249 and 250 which deal with a law made by Parliament which, Parliament would not have been competent to make them, but for an exceptional circumstance and refer to their becoming inoperative after a period of six months, make an exception in respect of things done or omitted to be done before the expiration of the said period. On the other hand, Art. 254 (1) which refers to a law, made by the Legislature of the State when it is not competent at all to make such a law, in view of a superior Legislature having made a law in that matter, becoming void, does not contemplate the law being inoperative or making any exception in respect of things done or omitted to be done in accordance with that law. That is, for the reason that nothing done under a void law can ever be operative at all and a law which is declared to be void cannot be conceived to have any existence after it is declared to be void.

72. Under Art. 367, the General Clauses Act, is made applicable for the interpretation of the Constitution unless the context otherwise requires. In the first place, the context in which an Act is declared to be void after the Constitution makes it clear that the Act must, after the Constitution be treated as if it had never any existence. This is clear from the fact the wordvoid is used in laying down the policy and what is used is not a word like inoperative. The wordvoid, as pointed out, previously on the authority of Maxwell, receives its natural full force and effect as it is used in laying down the policy. In the second place, S. 6, General Clauses Act, itself is subject to chap. III of the Constitution. If S. 6 has to be construed as treating an Act which is declared void, as if it exists for any purpose after the Constitution, the section itself offends Part III of the Constitution and it must be deemed void after the Constitution. In the third place it purports to refer only to repealed Acts. It has no reference to Acts declared void. I do not think therefore that S. 6, General Clauses Act, authorises the trial of the petnrs. under the Special Criminal Courts Act declared to be void, to be continued at any rate after the Constitution, in the review proceedings which form part of the procedure provided under the impugned Act.

73. The recent decision of this Ct. in which the Bombay F. B. decision was followed and the said F. B. decision have to be distinguished from the facts of this case. Such a distinction is made in another F. B. decision of the Bombay H. C. Jeshingbhai v. Emperor, a. I. R. (37) 1950 Bom. 363: (52 Cr. L. J. 120 F.B.). The question before the F. B. was that a restriction placed upon a petnr. in that case to the effect that he should not be in any area in the district of Ahmedabad except with the permission of the Dist. Mag. affected a fundamental tight guaranteed to the citizen under the Constitution That order was made on 12-12-1949. The contention was that prior to the Constitution the H. C. had no power to interfere with such an order. Chagla C. J. with whom the other Judges concurred on this point observed as follows: "The other argument advanced by the Advocate-General is that this order was made, as I pointed out, on 12-12-1949 and inasmuch as the order was made prior to the commencement of the Constitution, the Advocate-General contends that in view of S. 6, General Clauses Act, the operation of the order is saved and the order cannot be challenged. But what Mr. Purshottam is doing before us to-day is not so much the challenging of that order as the assertion of a fundamental right which is granted to him after 26-1-1950. If we are satisfied that to day when we are hearing this petn. the pelnr. Is deprived of his fundamental right of movement and of residence, then we can undoubtedly interfere. The saving of the order under S. 6 does not mean that the State is entitled after the 26th January to deprive a citizen of a fundamental right which is guaranteed to him. These fundamental rights have come into existence after 26th January. Our Constituent Assembly has provided remedies for safeguarding these rights. These rights have been made justiciable and therefore, even though the operation of the order may have been saved by S. 6. General Clauses Act, as I said before, we are not so much concerned with the validity of the order as the violation of the fundamental rights which have come into existence after 26-1-1950." In the same case Shah, J. observed : "Even though prior to 26-1-1950 this Cts jurisdiction to issue high prerogative writs was a limited jurisdiction and was confined to certain specified writs I agree with my Lord the Chief Justice that the jurisdiction of this Ct. is now not confined to the issue of these writs but extends to the issue for the purpose of enforcement of the rights conferred by Part III or for other purposes. This Ct. Is constituted, under the provisions of Art. 226, a custodian of the fundamental rights which have been guaranteed to the citizens of the State, and for the purpose of protecting those rights and for enforcement of the obligations arising therefrom, it is open to this Ct. to issue writs, though they may not be writs which have been recognised heretofore. It was argued by the learned Advocate-General that so far as the present application is concerned by reason of the provisions of S. 6, General Clauses Act, the petnr. is not entitled to claim any fundamental right contrary to the order passed on 12-12-1949. It is difficult to accept that contention. What the petnr. is seeking to do is not to ask for an order or a writ to have the order, dated 12-12-1949, set aside but he is asking this Ct. to grant him protection against what he conceives to be a threatened action of the executive against his personal liberty which has been guaranteed to him under the provisions of Art, 19 of the Constitution. Consequently, there is no question of applying the provisions of S. 6, General Clauses Act. Section 6, General Clauses Act, only effectuates what has already been done or suffered and provides that the rights, obligations and proceedings which have already arisen or taken place under the authority of a statute will not be affected by reason of a subsequent repeal of the Statute. But in the present case, if by reason of the provisions of Art. 19, a right of freedom of movement or a right to reside and settle in any part of the territory of India is granted and guaranteed to the petnr. for the first time that provision does not in any manner repeal the provisions of any earlier statute so as to bring into operation the provisions of S. 6."

74. Even in this case what the petnrs. are entitled to seek for is not that the trial under the procedure prescribed by Special Criminal Courts Act up to the date of the Constitution is bad, but that it is illegal that they should be proceeded against, at any rate after the date of the commencement of the Constitution, when proceedings under the Act have been declared to be void. They could have no objection to what has been done prior to the Constitution being regarded as valid for any purpose. They are entitled to object to their being proceeded against in review proceedings prescribed in the Special Criminal Courts Act after it has become void. The earlier Bombay decision in which it had been held that cl. (6), General Clauses Act is applicable, as well as the recent decision of this Ct. which followed the Bombay H. C. decision, dealt with the question whether the Act of am accused which had been committed prior to the Constitution and was then an offence could be punished after the Constitution. It was rightly held that Art. 13 is not retrospective and the act which had been done prior to the Constitution could be punished even after the Constitution, as the act was an offence when that was committed. When a Ct declares an Act void on the ground that the Legislature which enacted it had no power to enact it, the Act is declared void ab initio, i. e,, treated as if it had never any existence. Nothing comes in the way of Parliament recognizing the validity of an Act and of what is done under it, till it declares it to be void. That is in fact what the Constitution has done under Art. 13. In that sense Art. 13 is prospective and not retrospective. If what was done by any one was an offence under the Press Act prior to 26-1-1950, it could be regarded as an offence even after 26-1-1950. In that sense what Art. 13 does, is as good as repealing Acts inconsistent with fundamental rights. The wordrepeal is not used and the wordvoid is used in order to emphasize the fact that nothing can be done after 26-1-1950 if it is inconsistent with the fundamental rights and that it is so even if what remains to be done is to complete what was validly done prior to 26-1-1950, when what remains to be done is inconsistent with the fundamental rights.

75. The Bombay F.B. case of Keshav Madhav In re, (52 Bom. L. R. 540 : A. I. R. (38) 1951 Bom. 188 : 52 Cr. L. J. 30 F.B) was for publishing am Urdu pamphlet sometime in December 1949. The prosecution case was that he committed an offence under Ss. 26, 15 and 18, Press (Emergency Powers) Act, and that even though S. 16 of the said Act might be deemed to have become void from the date, the Constitution came into force, the case was not thereby affected as the publication of the pamphlet had taken place and the case put up before the Mag. prior to 26-1-1950. It may be stated here that the case of this Ct., in which, the Bombay H. C, decision has been followed, is a similar one. This case dealt with an act which was committed prior to the Constitution coming into force. The act was admittedly an offence prior to the Constitution. It was assumed that the sections of the Press (Emergency Powers) Act, were ultra vires of Art. 19 (1) (a) read with Art 13 of the Constitution. The question was whether what was done by the accused could be punished as an offence after the Constitution came into force when such acts were no longer offences, though they were offences prior to the Constitution. This very much depends upon the question whether Art. 13 of the Constitution must be regarded as prospective or retrospective. Article 13 itself is not very clear on the point. "When it is not clear the presumption is, that it is prospective. According to the Constitution, enactments which are repugnant to any of the Articles in part III of the Constitution are declared to be void. If it is considered that the wordsto be void are intended to mean that the sections must be deemed to have been void even prior to the Constitution, what was done by any one cannot be punished as, though it was regarded as an offence prior to the Constitution, it must be regarded after the commencement of the Constitution as if it was not an affence even prior to the Constitution. However, what is meant by Art. 13 is that the enactments repugnant to the Constitution become void on the commencement of the Constitution. What follows is, that when what was done by any one was an offence at the time it was committed, it must be regarded as an offence and punished even after the date of the Constitution, though if a similar thing is done after the Constitution that cannot be regarded as an offence. It is in this sense that in cases of that kind dealing with the question as to what had been done prior to the Constitution, that one has to see whether Art. 13 of the Constitution is merely prospective and not retrospective. Such a question does not arise in a case where what is impugned is not complete prior to the Constitution. What is impugned in this case is the procedure in accordance with which the accused have been tried. If the trial of the accused had been completed under that procedure prior to the Constitution, the question whether Art. 13 is prospective or retrospective would arise for consideration. What is meant is, if in the cases on hand, the convictions and sentences awarded to the accused were confirmed in review prior to the Constitution or if no review was provided in cases tried under the Special Criminal Courts Act, the judgment of the Special Judge could have been given effect to even after the Constitution. It cannot be said that writs could have been obtained after the Constitution declaring that such procedure was void and the persons were illegally detained. In such a case, it could be said that the petnrs. had been tried in accordance with the procedure fixed by the Special Criminal Courts Act when that enactment was not void and that the trial had been completed by that procedure before the Constitution declared the enactment void. In the view that Art. 13 is only prospective, it cannot be said that the petnrs. in such a case are illegally detained. That is not, however, the case now. As already pointed out, the accused were rightly tried in accordance with the procedure laid down under the Special Criminal Courts Act, which was not void up to the date of the Constitution. To the extent if their trial up to 26-1-1950, it cannot be said that the procedure is illegal or void. The evidence recorded, for instance, may be good in the sense that if any person has perjured he could be proceeded against for perjury. But however good might be the procedure under which the trial proceeded before the Constitution, it cannot be said that the proceedings against the petnrs. were completed prior to the Constitution and the conviction and sentence could be given effect to without further review proceedings, as has already been pointed out. Now what is sought to be done after the Constitution came into force is for continuing the proceedings under the Special Criminal Courts Act, that is, after that Act has become void. It is true that Art. 13 is not retrospective and it is only prospective. But the review proceedings under the Special Criminal Courts Act cannot be allowed to proceed after the commencement of the Constitution as after that date, they are void The accused have been detained pending review proceedings under the Special Criminal Courts Act, which has become void after the Constitution and as such their detention cannot be legal The Bombay F. B. decision of Keshav Madhav, In re, (52) Bom. L. R. 540 : A. I. R. (38) 1951 Bom 188 : 52 Cr. L. J. 30 F. B.) and the decision of this Ct. following the decision are not applicable to cases of this kind, as in cases of that kind what was done by the accused had been completed before the commencement of the Constitution and was an offence. It continued to be an offence as Art. 13 could be said to be merely prospective and not retrospective. Those decisions do not apply to the facts of this case as even if it is held that Art. 13 is not retrospective, the procedure prescribed under the impugned Act had not been completed before the Constitution and what remained to be done in accordance with that procedure cannot be allowed to be completed after that procedure prescribed under the Special Criminal Courts Act has become void. In this view also it may be said that the Bombay F. B. case is not applicable.

76. The following observation of Spens C. J. in Piare Dusadh v. Emperor, A. I. R. (31) 1944 F. C. 1 : (46 Cr. L. J. 413), made prior to the Constitution, not only brings to our mind the change brought about by the Constitution in the power of the Indian Legislature bat also makes it clear how proceedings which are void cannot be validated by retrospective legislation : "It is again necessary to examine the basis of the American rule in order to determine whether it can be followed here. It is clear from the American authorities, that this limitation has been derived from the interpretation placed by the American Cts. on what are known as the Fifth and Fourteenth Amendments which provide against any person being deprived of life, liberty or property without due process of law. The expressiondue process of law has been interpreted as referring only tojudicial process and as not including legislation, andjudicial process was held to imply competence or jurisdiction in the Ct. and an opportunity for a hearing. As this requirement had been made part of the written constitution, it followed that no enactment passed by a Legislature limited by that constitution could authorise anything in violation of it : (See Willougbbys Constitution of the United States, paras. 1115 to 1117, 1122 and 1123). Hence the rule (stated by Cooly) that It would be incompetent for the Legislature, by retrospective legislation, to make valid any proceeding which had been had in the Cts. but which were void for want of jurisdiction over the parties. "The Constitution position in India is different. Comparing the American Amendments with the provisions of the Constitution Act, 1935, it will be seen that the latter contains nothing corresponding to so much of the Amendments as related to deprivation oflife or liberty and that even as toproperty it only requires that such deprivation should beby authority of law. See S. 209. This does not, of course, mean what the well-established principle of British jurisprudence as to the sacredness of personal freedom is not part of the law of British India. But as pointed out by Dicey, the rule remains only as a principle ofprivate law and is not a part of the Constitution (See Diceys Law of the Constitution Edn. 9, p. 203, and Wade and Phillips, Constitutional Law, Edn. 2 p. 354). While its enactment as an article of the Constitution would have placed it beyond the power of the Indian Legislature to alter it, the position must be different so long as it remains a rule of private law, however cardinal and fundamental," The constitutional position of India now is different from what it was at the time of the above decision. Article 14 of the Constitution, it may be noted, corresponds to the equal protection clause in the Fourteenth Amendment of the American Constitution which declaresno state shall deny to any person within its jurisdiction the equal protection of law, as per observation of Mukherjea J. in the recent case of Charanjilal v. The Union of India, (A. I. R. (38) 1951 S. C. 41). It cannot now be said that the Special Criminal Courts Act is within the competency of the Indian Legislature. If it is therefore void under Art. 18, it cannot be said that anything in Cl. 6, General Clauses Act, can make what had become void on the morning of 26-1-1950 valid to enable the accused being proceeded against after that date on which, at any rate, they are declared to be void.

77. This aspect of the matter may be concluded by referring to the decision reported in Thiagarayan Chettiar v. Emperor, 1947 M. W. N. 45: (A. I. R. (34) 1947 Mad. 325 : 48 Cr. L. j. 403) in which it is observed that "S. 6, General Clauses Act, and S. 38 (1) English Interpretation Act, relate to repealed Acts and not to temporary Acts which have expired by efflux of time." This observation is inconsistent with the observation of the Bombay decision that: "The Constituent Assembly has used different expressions in different parts of the Constitution to vindicate that a particular law has ceased to, have any effect and is no longer in operation. There is no reason why we should apply S. 6, General Clauses Act only to Art. 395, where the expression repeal is used and not to other Articles where different expressions are used although in substance the meaning and connotation of this expression is the same." The Madras decision supports the contention that S. 6, General Clauses Act, applies to repealed Acts and not even to temporary Acts which have ceased to have any effect and are no longer in operation as they expired by efflux of time. I am, therefore, of opinion that there is much to be said against the view taken by the Bombay H. C. and the matter requires reconsideration by this F. B. In my view S. 6, General Clauses Act, is not applicable either to revive, for any purpose whatsoever, Acts which have ceased to have any effect, having expired by efflux of time or Acts which have been declared to be void by the Constitution itself.

78. The last point that remains to be considered is whether the Sp. C. had jurisdiction to try the cases under consideration even prior to the constitution as they had been taken cognizance of by the First Class Mag. at Madhugiri in whose Ct. a charge sheet had been placed prior to the starting of the proceedings before the Sp. J. under the Special Criminal Courts Act. This question was raised before this Ct. and after consideration at length has been answered in the negative in the decision reported in 48 Mys. H. C. R. 430 and those relied on in it. The decisions reported in Ram Pratap v. Emperor, a. i. R. (30) 1943 Pat. 239 : (44 Cr. l. j. 708) and Gopal v. Emperor, a.i.R. (30) 1943 Pat. 245 : (45 Cr. l. j. 177 S. b.) explain the scope of the earlier decision in Banwari Gope v. Emperor, a.i.R. (30) 1943 Pat. 18 : (44 Cr. l. j. 273 F.b.) which appeared to be against the view taken in our Ct. I agree with respect with the view taken in these decisions.

79. To sum up, the Special Criminal Courts Act was perfectly valid prior to the commencement of the Constitution. After the Constitution it is void under Art. 13 of the Constitution. A section like 25 of the Act, as observed by Nagesvara Iyer J. in 48 Mys. H. C. R. 430 "undoubtedly deprives an accused person of some of the valuable rights which he had under the Criminal P. C." He had then to observe, "the policy underlying the Act is a matter with which I am not concerned." He has also added : "No doubt, in several matters the provisions of the Act operate very much to the prejudice of the accused. But that is not a matter with which we are concerned." Now we are concerned with the policy underlying the Act as a different policy is laid down in Art. 14. There is unequal treatment and unhappy distinction made between persons arbitrarily chosen under the Special Criminal Courts Act and those committing similar offences and are allowed to be proceeded against under the Criminal P. C. Classification is permitted but arbitrary selection is not classification and is not protected under Art. 14. The Special Criminal Courts Act is also void under Art, 254 as it takes away the powers vested in the H. C. under the Constitution and a State Legislature cannot do so. All the same it is possible to consider that acts done prior to the Constitution are not affected by it and Art. 13 may be regarded as prospective and not retrospective. In this view an act completed prior to the Constitution and was an offence then, may be punished subsequent to the Constitution, Art. 13 being regarded as declaring only that a similar act done subsequent to the Constitution is not an offence, if it offends Art. 14. But if an act which was an offence prior to the Constitution is partly done prior to the Constitution and partly after the Constitution and what was done after the Constitution has to be taken into consideration before the act could be said to be an offence but for Art. 14, it is clear that Art. 13 which is it least prospective applies and the offender cannot be punished. In this case the act said to have been affected by the Constitution is the proceeding under the Special Criminal Courts Act. If the proceeding had been completed, i. e., if the review was over prior to the Constitution, it may not have been open to the petnrs. to have stated after the Constitution that their trial is illegal and they have to be let off. No trial under the procedure prescribed in the Special Criminal Courts Act can begin against any person, at any rate after the Constitution, as it is void under Art. 13 of the Constitution, what we are concerned in such a case being the prospective operation of Art. 13 about which there is no doubt and not its retrospective operation. For the same reason no proceeding which is incomplete at the time of the commencement of the Constitution, however good or valid it was prior to the Constitution, can be allowed to continue after the Constitution, when the Special Criminal Courts Act which prescribes the procedure or any portion of it is declared to be void under Art. 13. This is so whether the proceeding had just begun before the Special Judge or is under review before a Judge appointed for the purpose under that Act, so long as the portion of the proceeding which remains to be completed after the Constitution is one prescribed under the impugned Act. The result is that the petns. in my opinion, have to be allowed and the petnrs. set at liberty for being arrested and proceeded against before the Sp. First Class Mag., Madhugiri, in accordance with the Criminal P. C. in case the Govt. think it necessary. Petitions dismissed. AIR (38) 1951 MYSORE 101 [C. N. 34.] "Anoopchand v. Amerchand" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) Anoopchand Revashanker Metha - Deft. - Petnr. v. Amerchand - Pltf. - Resp. Civ. Revu. Petn. No. 224 of 1950-51, D/- 31 -3 -1951. (A) Specific Relief Act (1 of 1877), S.9 - POSSESSION - "Otherwise than in due course of law." The possession of the property obtained through the medium of an officer of the Ct. not authorised to Act in that direction will not be less a dispossession caused without consent of the person in control of the property and otherwise than in due course of law. (Para 5) Anno. s. R. Act s. 9, N. 2, 4. (B) Court-fees Act (7 of 1870), S.7(xi)(e) - COURT-FEE - TENANCY - Tenant holding over. A tenant holding over after the termination of tenancy will still continue to maintain that character for the purpose of enforcing his rights as a tenant and on such title he is not precluded from bringing a suit against the landlord. (Para 6) Anno. Court-fees Act, s. 7 (xi), N. 4. K.R. Parthasarthy - for Petnr.; B. Ramchandra Rao - for Resp. Judgement Order. - This is a defts. appln. to revise the judgment and decree in a suit filed by the resp. u/S. 9, Specific Relief Act, for the recovery of the possession of the plaint schedule property on the ground that the dispossession was otherwise than in due course of law.

2. Briefly stated the facts leading to the suit are as under: The pltf. was a tenant in occupation under the deft. For the arrears of rent due, the deft. obtained a decree in the Ct. of Small Causes and in execution thereof obtained an order for attaching the moveables belonging to the pltf. by breaking open the lock of the premises in the occupation of the pltf. The warrant of attachment of moveables was duly executed by the Amin who, in addition to the articles attached, is said to have given vacant possession of the premises to the deft. under a surety bond obliging the deft. to comply with the further orders of the Ct. The pltfs appln. to the Ct. of Small Causes for restitution of possession is said to have been resisted by the deft. and the deft. is alleged to have otherwise refused to restore the premises to the pltf. The pltf., therefore, filed this suit.

3. The plea of the deft. is that the pltf. cannot be consd. to have been a tenant in occupation of the premises at the time when the delivery was given to him, as a notice to quit had been served upon him terminating the tenancy by 1-1-1949, and he, having obtained possession of the premises in a lawful manner from an officer of the Ct. cannot be held to have dispossessed the pltf. otherwise than in due course of law and that the suit as at present brought is, therefore, not maintainable.

4. The circumstances in which the deft. got possession of the suit house are not disputed. Admittedly, the pltf. was not present at the spot as the house was found locked. No consent, implied or express, of the pltf. in respect of the delivery of possession could, therefore, be inferred. The authority to the Amin was merely to attach the moveables and if he has delivered possession of the house, he has done so in excess of his authority and the deft. getting possession of the house in that way cannot be deemed to have obtained possession in due course of law.

5. The object of S. 9, Specific Relief Act, is to protect peaceful possession against the illegal dispossession by persons who take the law into their hands. The possession of the property obtained through the medium of an officer of the Ct. not authorised to act in that direction will not be less a dispossession caused without consent of the person in control of the property than in due course of law contemplated under the Specific Relief Act. I am, therefore, of opinion that the trial Ct. has rightly found that the suit is maintainable and the pltf. is entitled to relief claimed.

6. The next contention raised is regarding the under-valuation of the suit for the purpose of jurisdiction and c.-f. It is urged that a tenant whose tenancy is determined is rendered a trespasser as the relationship of the landlord and the tenant will have ceased and that it is not competent for such a person to bring an action on the basis of tenancy and pay the c.-f. on the annual rent; but a regular suit for possession ought to have been filed by payment of the c.-f. on the market value of the property. I am unable to agree with this contention. A tenant holding over after the termination of tenancy will still continue to maintain that character for the purpose of enforcing his rights as a tenant and on such title he is not precluded from bringing a suit against the landlord. The finding of the lower Ct. that the suit comes under the purview of S. 4, cl. xi (e), Court-fees Act, is not incorrect.

7. In the result, I do not find any reason to disturb the judgment and decree of the Ct. below. The petn. is therefore dismissed with costs. Advocates fee Rs. 15/-. Revision dismissed. AIR (38) 1951 MYSORE 102 [C. N. 35.] "Basappa v. Marule Gowda" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND MALLAPPA, JJ. ( Division Bench ) K. M. Basappa and another - Pltfs. Applts. v. Patel Marule Gowda and another - Defts-Resps. Second Appeal No. 696 of 1947-48, D/- 13 -3 -1951. Negotiable Instruments Act (26 of 1881), S.87 - NEGOTIABLE INSTRUMENT - Alteration of date of pronote is material alteration - Burden of proof. a party who has the custody of an instrument made for his benefit is bound to preserve it in its original state and any material alteration will vitiate the instrument. (1844) 67 R. R. 638, Foll. (Para 7) The alteration of the month in the date mentioned in a pronote is a material alteration. (Para 5) Where a party sues on an instrument which, on the face of it, appears to have been altered, it is for him to show that the alteration has not been improperly made. (1828) 5 Bing. 183, Rel. on. (Para 6) Where the pltfs. alone are responsible for the alteration, they cannot claim any amount as due under the pronote : 12 Mad. 239, Ref. (Para 6) Anno. Neg. Ins. Act, S. 87, N. 1, 3, 4. Cases Referred : Chronological Paras

1. (1828) 5 Bing 183 : (130 E. R. 1031). 6

2. (1844) 67 r. r. 638 : (13 l. j. e. x. 276). 7

3. (89) 12 Mad. 239. 6 Ramachandra Rao - for Applts.: T.P.R. Rudraradya - for Resps. Judgement Judgment. - This appeal arises from a suit filed fry applts. for recovery of Rs. 727-5-6 from resps. under an on-demand-promissory note. The consideration for the pronote marked Ex. I is mentioned as Rs. 682 which the resps. owed in respect of transactions carried on with the applts. A sum of Rs. 264-7-0 realised by sale of areca left with the applts. by the resps. was deducted from the debt due under Ex. I and the amount claimed is alleged to be the balance due. The execution of the pronote and consideration therefor are admitted, but liability is disputed on the ground that the areca was worth more than the amount mentioned in the plaint and that there is a material alteration of the instrument. The trial Ct. negatived both these pleas and decreed the suit, but on appeal by the defts. the learned Subordinate Judge has dismissed the suit with costs.

2. The contention as regards the value of the areca cannot be properly advanced to avoid liability as it is not alleged that the pltfs. acted contrary to any understanding for its disposal. Having failed to fix any terms or even give instructions in this behalf, defts. cannot expect the pltfs. to be custodians of the articles for an indefinite period. The pltfs. allege that the sale was effected with consent of the defts. and the sale list is signed by them. Defts. deny this. Whether it is true or not, the objection to the sale is, we think, highly belated and untenable.

3. The only point for consideration, therefore, is whether there is an alteration in the pronote such as to disentitle the pltfs. to seek payment. The body of the pronote is in print, the dates at the top and names of executants only being in manuscript. The date of execution is stated at the beginning to be 30-6-1940. At the foot of the pro-note and below the signature of defts. the figures 28-9-1940 are found.

4. The date at the top has to be ignored as it is not the case of either party that the pronote was then executed and both agree that the figures at the bottom are to be treated as furnishing the date of actual execution. But there is difference between the parties about the figure denoting the month, as according to the pltfs. it is9 which would make itSeptember and6 according to the defts. fixing it asJune. The figure appears to be undoubtedly changed, unlike the other figures, from its original form and does not seem to have been inserted at first as9. It is not clear as to how and by whom this was meddled with. (After discussing the evidence, the judgment proceeded.) The deft.s statement that it was on 28-6-1940 that they executed the pronote after the accounts were taken up to end of June is nearer the truth than pltfs. If the true date of execution was 28-6-1940 as we think it was, the date 28-9-1940 now found must be held to be an alteration.

5. It remains to see whether the alteration affects the rights of parties and the suit is maintainable. Section 87, Negotiable Instruments Act, states : "Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties." The section does not mention as to what constitutes "material alteration" but S. 64 in the English Bills of Exchange Act which corresponds to this specifies . . . "(2) In particular the following alterations are material namely any alteration of the date, the sum payable, the time of payment, place of payment ..." In Halsburys Laws of England, vol. 10, p. 227 it is said "A material alteration is one which varies the rights, liabilities, or legal position of the parties as ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally expressed. . . . The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the bond." As regards suits being barred on account of "material alteration" there is the following passage : "If an alteration (by erasure, interlineation, or otherwise) is made in a material part of a deed, after its execution . . . without the consent of the party or parties liable thereunder, the deed is thereby made void. The avoidance .....operates as from the time of such alteration and so as to prevent the person who has made or authorised the alteration and those claiming under him from putting the deed in suit to enforce against any party bound thereby who did not consent to the alteration, any obligation, covenant, or promise thereby undertaken or made." The alteration found in this case must be held to be, therefore, a material one.

6. The pltfs have not explained as to how the alteration occurred though the burden of proof as regards this lies on them. As explained in Hen-man v. Dickinson, (1828) 5 Bing 183, "where a party sues on an instrument which, on the face of it, appears to have been altered, it is for him to show that the alteration has not been improperly made." The figure denoting the month is, as already mentioned, strikes at first sight as a correction of or substitution for another previously put. In view of this, the 1st issue is wrongly framed by requiring defts. to prove execution of the pronote on 28-6-1940 instead of calling upon pltfs. to show that it was on 28-9-1940. The pltfs. do not suggest that the doubtful form of the figure having reference to the month was due to the act of the defts. or that it was changed by them or with their consent. The promissory note remained in the custody of the pltfs. and produced by them. The alteration serves to help the pltfs. if at all by enlarging the period of time to file the suit. The suit was filed on 1-7-1946 and would be time barred if it was executed on 28-6-1940 as pleaded by defts. There is no proof of any demand for payment prior to the suit. The account books in which the debt due under the pronote is said to have been noted, the references to show that particulars of the claim were sent subsequent to Ex. I and that a demand was made for settlement, are not filed and there is no satisfactory reason for withholding the same. A consideration of all these leads to the inference that plfs. alone are responsible for the alteration and cannot claim any amount as being due under the pronote. In Govindasami v. Kuppusami, 12 Mad 239, a suit filed on a bond the date of which was altered from 11 to 20-9-1882 was dismissed on the view that the alteration vitiated the instrument, the bond was void and not receivable in evidence to prove the debt. There is stronger reason to take the same view in the present case as it is on a pronote governed by express provisions of S. 87, Negotiable Instruments Act.

7. The pltfs. are traders who profess to have dealings to the extent of three or four lakhs of rupees and are not unfamiliar on their own showing with proceedings in Cts. They should have taken care to avoid suspicion being raised against them on account of the date being tampered with. So long back as 1884 it was held by Lord Den-man C. J. in Davidson and Cooper, (1844) 67 R.R. 638 : "that a party who has the custody of an instrument, made for his benefit is bound to preserve it in its original state and that any material alteration will vitiate the instrument." On the principle ex turpi causa non ori tur actio (from a base cause no action arises) the pltfs. cannot seek any relief in Ct. on a document which is found to be materially altered.

8. The appeal is dismissed with costs. The defts. have in their written statement pressed for the pltfs. being prosecuted for altering the month with a view to make illegal gain. Let notices be issued to the applts. to show cause why they should not be prosecuted. Appeal dismissed. AIR (38) 1951 MYSORE 103 [C. N. 36.] "Bommarayigowda v. Kalegowda" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND MALLAPPA, JJ. ( Division Bench ) Bommarayigowda and others - Pltfs.- Applts v. Kalegowda and others - Defts-Resps. Second Appeal No. 707 of 1947-48, D/- 13 -3 -1951. (A) Transfer of Property Act (4 of 1882), S.53 - IMMOVABLE PROPERTY - Sham transaction - Applicability. S. 53 implies the existence of a transfer and cannot apply to cases in which the transfer is characterised as sham or a mere show without effecting any change of title or affecting the right of parties: 7 My. l. J. 418, a. I. R. (31) 1944 Nag. 44 (F. b.) a. I. R. (27) 1940 All. 407 and a. I. R. (3) 1916 P. c. 238, Rel. on. (Para 3) a case of this kind is not affected by the requirement of S. 53 that it should be filed on behalf of all creditors. (Para 3) Anno: T. P. Act, S. 53 N. 5. (B) Transfer of Property Act (4 of 1882), S.53 - IMMOVABLE PROPERTY - Creditor- Auction purchaser or his transferee-Suit to enforce right acquired at Ct. sale - If should be representative. a purchaser at an execution sale or his transferee cannot be termed creditor of the J. D. and a suit by him to enforce the rights acquired by virtue of the Ct. sale alleging that the settlement deed by the J. D. was executed with intent to defraud the D. H. need not be a representative one u/s. 53. A. I. R. (8) 1921 Pat. 53 ; A. I. R. (20) 1933 Cal. 312, Rel. on.; 50 Mys. H. C. R. 321, Disting. (Para 4) Anno: T. P. Act, S. 53 N. 10, 24. Cases Referred : Chronological Paras

1. (17) 44 Cal. 662 : (A.I.R. (3) 1916 P.C. 238). 3

2. (40) A.I.R. (27) 1940 All.407 : (I.L.R. (1940) All. 542). 3

3. (07) 34 Cal 999 : (6 C. L. J. 410.). 4

4. (33) A. I. R. (20) 1933 Cal. 812 : (146 I. C. 1010). 4

5. 50 Mys. H. C. R. 321. 2,5

6. 7 Mys. l. J. 418. 3"

7. (44) A. I. R. (31) 1944 Ngp, 44 : (I. L. R. (1944) Ngp. 342 F. B). 3"

8. (21) A. I. R. (8) 1921 Pat. 53 : (6 Pat. L. J. 48). 4"

V. Krishnamurthy - for Applts.; Murle N. Lakshmi Naranappa and S.R. Ramanathan - for Resps. (Nos, 2 and 4). Judgement Venkata Ramaiya, J. :- The question for decision in this appeal is whether the dismissal of the suit filed by applts. on the ground that it is not a representative type is correct. The undisputed facts are that the properties described in the plaint schedule belonged to the joint family of defts. 1 to 4 of which deft. 1 is manager, that in a suit filed against deft. 1 for recovery of money due by his father to the heirs of one Kale Gowda there was a decree on 16-7-1937 for Rs. 1420 against the assets of deceased Dase Gowda in the hands of deft. 1 and the properties belonging to him: the appeal preferred by deft. 1 against the decree was eventually dismissed on 11-9-1940; Deft. 1 executed a settlement deed on 22-8-1940 giving away the properties to defts. 2 and 3: in execution of the decree against deft. 1 the properties were sold. Pltfs. 1 and 2 as vendees from the auction purchaser filed the suit from which this appeal arises for declaration of right, possession and mesne profits alleging that the settlement deed is a sham document executed with intent to defraud the decree, holders.

2. Both Cts. have held that the suit is not maintainable by virtue of S. 53 (1), T. P. Act, as it has not been filed on behalf of all the creditors of deft. 1 and reld. upon 50 Mys. H. c. Reports 321 for dismissing it. On behalf of the pltfs. who have preferred this appeal, Sri Krishnamurthy contended that the view taken by the Cts. below is erroneous as the suit is not one filed by a creditor but is one filed by a purchaser who claims to be solely and absolutely entitled to the properties. Sri Lakshminaranappa on behalf of resps. contended that since the settlement deed is impugned as being fraudulent and sought to be avoided on that ground it is not permissible under the section for the pltfs. to claim the benefit of the reliefs in the suit to themselves exclusively and that this has been rightly disallowed.

3. S. 53, T. P. Act reads as follows: (1) Every transfer of immoveable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this sub section shall impair the rights of a transferee in good faith and for consideration. Nothing in this sub section shall affect any law for the time being in force relating to insolvency. A suit instituted by a creditor which term includes a D. H. whether he has or has not applied for execution of his decree to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor, shall be instituted on behalf of, or for the benefit of, all the creditors. (2) Every transfer of immoveable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee. For the purposes of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made." The section provides for suits the object of which is to get rid of fraudulent transfers and requires that a creditor who files such a suit must file it on behalf of all the creditors of the ostensible transferor, so that there may not be multiplicity of proceedings and advantage to any one creditor as against others. Unless the pltfs. can be said to be creditors of deft. 1 the objection to bring the suit in that form does not arise. Nor can it exist when according to the pltfs. there is, in fact, no transfer. The allegation in the plaint is that the settlement deed executed by deft. 1 is a sham and nominal document brought about with the object of defrauding the pltfs. of the decree amount. If the document is a sham, the purpose and effect of its execution are not material except for throwing light on its being real or unreal. The section implies the existence of a transfer and cannot apply to cases in which the transfer is characterised as a mere show without effecting any change of title or affecting the rights of parties. The difference between a transfer which is sham and which is fraudulent is pointed out in 7 Mys. L. J. 418 by D. B. of this Ct. which held that S. 53 has no application if the transaction which is impeached is a sham and colourable transaction not intended to pass any title to the transferee. Bose J. expressed the same view in Vinayak v. Moreshwar, A. I. R. (31) 1944 Nag. 44 at p. 52 thus : "The lower Appellate Ct. says .... that the transaction was bogus and liable to be set aside u/S. 53, T. P. Act. Now a bogus transaction is one which is not intended to have legal effect. It is a pretence and has no actual legal existence. Consequently, there is nothing to set aside. Only real transactions intended to have effect can be set aside. S. 53, T. P. Act, speaks of fraudulent transfers and so indicates that it is dealing with real transactions and not sham one ... S. 53 does not apply to sham transfers," Parbhu Nath v. Sarju Prasad, A. I. R. (27) 1940 ALL. 407, was a case under O. 21, R. 53 in which the pltfs. prayed for a declaration that the property which was professed to be sold by J. Ds. to another was liable to be attached and sold in execution of pltfs. decree. The objection that the suit was not filed on behalf of all the creditors as required by para 4 of S. 53, T. P. Act, was rejected on the ground that the provision does not apply to the case in which the sale-deed was alleged to be fictitious, without consideration, not intended to be acted, upon. The cases of other H. Cs. In support of this view are cited in the judgment and it is not necessary to refer to them. The following passage in Minakumari v. Bijoy Singh, 44 cal. 662 at p. 670 is, however, instructive : First, then, as to the alienation is favour of the pltf. being, as it is termed in the resps. case, collusive and fictitious, it is there alleged thatthe J. D. was, and always remained, the real owner of the properties in dispute. Strictly this means that the transaction was benami and not that it was a fraudulent transfer within the meaning of S. 53, T. P. Act. The difference is distinct, though it is often slurred." As the case of pltfs. is that the settlement is nominal, the properties continue to be in possession of the settlor and that pltfs. are owners entitled to possession, the question is whether Ex. II is what it looks to be or whether it is fictitious, not evidencing a genuine transaction. A case of this kind is not affected by the requirement of S. 53 that it should be filed on behalf of all creditors.

4. Another reason to hold that the case is not subject to this requirement is that it applies to a suit by a creditor and that the pltfs, cannot be now termed creditors of deft. 1 as there is no money due to them and what was due under the decree has already been satisfied by sale of the properties. The pltfs. do not want to make the properties available for being proceeded against to realise debts payable by deft. 1 and do not admit that any one except themselves has any right in these. They claim possession of the properties in their own right. If the suit is to be representative, it is difficult to see how possession of the properties can be sought for at all and rights of ownership be advanced by any one. The suit is to enforce the rights acquired by virtue of the Ct. sale and there is nothing in the section to justify the purchaser or his transferee being called upon to give up his rights in favour of others. Sri Lakshminaranappa has not also explained how the creditors of deft. 1 would be affected by the result in this suit as the properties will not become available for recovery of their dues even if the transfer by deft. 1 is declared ineffective and there remains the Ct. sale to be got rid of. A suit u/S. 53 cannot be availed of to resolve disputes amongst the several creditors. Sri Thakurji v. Narsingh Narainsingh, A.I.R. (8) 1921 Pat. 53, cited on behalf of the applts. supports the contention that the suit is not defective. It was held that a purchaser in execution of a decree need not sue for declaration that a conveyance by J.-D. was fraudulent and possession of property on behalf of the several body of creditors. This case has been folld. in Radhika Mohan v. Hari Bashi, A.I.R. (20) 1933 Cal. 812. The facts in that case were that the pltf. after purchasing the properties in execution of a decree for money and obtaining symbolical delivery sued the wife of the J.-D. for declaration of his right and possession alleging that" the gift of the properties by J. D. in favour of his wife was a fraudulent and benami transaction. The objection to the suit that in so far as it challenged the gift as fraudulent was really a suit u/S. 53, T. P. Act and as such should have been brought by or on behalf of all the creditors was negatived thus : "Reliance is placed on the observations of Mookerjee J. in Karim Lal v. Mooshabar, 34 Cal. 999 at p. 1007. The observations are perfectly correct if the suit is one for the benefit of all the creditors; but if it is not meant to be for that and though the claim in it proceeds on the principle enunciated in S. 53, T. P. Act, it is not a suit within that section. I entirely agree with the observations of Das J. in A. I. R. (8) 1921 Pat. 53."

5. The lower Cts. have proceeded on the impression that the rule laid down by the F. B. in 50 Mys. H. C. R. 321 applies to this case and therefore felt it unnecessary to examine with reference to the terms of S. 53 question of the maintainability of the suit. Apart from the features which distinguish the present case from that considered by the F. B. the statement of the learned Chief Jusice "In the case of a transaction which is benami the property really is in the J.-D. and S. 53 would not apply to the case at all" helps the applts. as that is what in effect as already pointed out, their case is. The finding of the learned Subordinate Judge is that the settlement deed is only a make-believe, that there was no need for it, that deft. 1 continued to be in possession of the properties after it. The transaction was, therefore, unreal and not intended to be acted upon or convey title. The other statement in the decision "that if the transfer is impeached on the ground of fraud the suit should be filed on behalf of all the creditors" cannot apply to this case as the pltf. is not a creditor to whom anything is due or alleged to be due. The suit under consideration of the F. B. was one under O. 21, R. 63 to set aside an order allowing a claim petn. so as to enable the D.-H. to proceed against certain immovable property in execution for realisation of the decree debt. The present suit is for possession on the basis of a perfected right. The view expressed in the F. B. decision is not applicable to this case.

6. The only question material for the disposal of the suit is whether the settlement deed was a sham document and on this the finding of the learned Subordinate Judge that it is so is in our opinion correct. The deed has come into existence when there was a decree against the executant and without making any provision for payment it purports to deprive the J.D. of rights in all the properties; presented for registration by the executant himself. There was no demand or bona fide need for the arrangement just at that time and the properties in spite of the settlement remain in possession of deft. 1 as before. The so-called settlement was, therefore, a make-believe and not intended to convey title to defts. 2 and 3 who are close relations of deft. 1 in the properties.

7. As a result of the finding that the suit is maintainable and that the settlement deed executed by deft. 1 is a sham document it follows that the applts. are entitled to succeed. The appeal is allowed and in reversal of the decrees of the lower Cts. the suit is decreed as prayed for with costs throughout.

8. Mallappa, J. :- I agree. The evidence in the case justified the conclusion that the settlement deed purporting to convey all the properties in favour of the nearest relations and making no provision for the discharge of the decree debt was not intended to transfer any interest in the immoveable property. The provision of law which according to the lower Cts. required the pltf. in such cases to file a suit in a representative capacity is S. 53 (1) of the Act which deals with the transfer of property. The provision in that section is applicable only if there is a transfer and that transfer is sought to be avoided. It is not the pltfs case that there is a transfer and he has not filed the suit to avoid any transfer. As the pltfs. case is that the settlement deed evidences a sham transaction and that it does not transfer any property, S. 53 (1), T. P. Act is not applicable.

9. Moreover the pltf. claims possession under a transfer which according to him is valid. His filing a suit in a representative capacity would mean that the transfer in his favour has to be avoided in favour of other creditors, if any, though it is nobodys case that the sale in pltf.s favour is fraudulent and has to be avoided. Even if the settlement deed amounts to a transfer without consideration, and the suit is one to avoid such a sale, it falls u/s. 53 (2), T. P. Act, which does not require that the suit should be instituted on behalf of or for the benefit of all the creditors.

10. The lower Cts. are wrong in thinking that S. 53 (1), T. P. Act is applicable. The appeal is, therefore, allowed and the suit decreed as prayed for. Appeal allowed. AIR (38) 1951 MYSORE 106 [C. N. 37.] "L. S. Raju v. Govt. of Mysore" MYSORE HIGH COURT Coram : 2 MALLAPPA AND VASUDEVAMURTHY, JJ. ( Division Bench )

L. S. Raju - Accused - Petnr. v. Government of Mysore - Complainant - Respondent. Criminal Revn. Petn. No. 358 of 1950-51, D/- 23 -3 -1951. Criminal P.C. (5 of 1898), S.173(4) - POLICE OFFICERS - INVESTIGATION - CHARGE SHEET - Right of accused to copy of entry in col. 6 of charge-sheet. Cr. r. P. 192 of 43-44, Overruled. a charge-sheet is something more than a report u/s. 173, Cr. P. C. Col. 6 of the charge-sheet contains the substance of the statements of the witnesses made before the Police and this is not required to be stated in a report u/s. 173, Cr. P. C. The accused is not entitled to a copy of this at the commencement of the trial. a copy of such portion of charge-sheet as contains information which is prescribed in S. 173, Cr. P. C. alone is what the accused is entitled to. The amendment in 1927 of S. 173 has not in any way affected the right of the accused to get copy of only certain columns of the charge-sheet. Cr. R. P. 192 of 43-44, OVERRULED, 8 Mys. l. J. 16, held rather broadly stated. Case law discussed. (Para 4) Anno. Cr. P. C., S. 173, N. 7, 8a. Cases Referred : Chronological Paras (96) 19 Mad. 14. 2 (97) 20 Mad. 189 : (7 M. L. J. 167 F. B.) 2, 4, 9 (07) 30 Mad. 466: (6 Cr. L. J. 346) 4 (29) 1929 M. W. N. 504 : (A. I. R. (17) 1930 Mad. 191: 31 Cr. L. J. 387) 5, 16

19 Mys. C. C. R. 121 4, 7, 8, 10, 11, 12, 13, 14, 15, 17

4 Mys. L. J. 231 4, 10, 11, 13

7 Mys. L. J. 189 4, 11

8 Mys. L. J. 16. 4, 5, 12 Cr. R. P. No. 192 of 43-44 (Mys.) 3, 4, 13 (22) 65 I. C. 421 : (A. I. R. 1922 Pat. 294 : 23 Cr. L. J. 69) 5, 16 H.V. Krishna Rao - for Petnr.; M.K. Srinivasa Iyengar for Advocate General - for Respondent. Judgement Mallappa, J. :- This is a revn. petn. against the order in C. C. No. 2519 of 50-51 on the file of the City Mag. Bangalore, refusing to furnish the petnr. with a copy of the entries in Col. No 6 of the charge-sheet placed against him.

2. The point has come up before this Ct. for consideration several times, and if it has come up before a Bench for consideration, it is because after the amendment of S. 173, Cr. P. C., the opinions expressed in some unreported cases on this aspect of the matter are not uniform and it is desirable to lay down a definite view on this question which often arises in the criminal Cts. S. 173 lays down that the Police report under that section must be in the form prescribed by the Govt. setting forth the names of the parties, the nature of the information, the names of the persons who appear to be acquainted with the circumstances of the case and stating whether the accused (if arrested) has been forwarded in custody, or has been released on his bond. S. 190, Cr. P. C. states that a Mag. can take cognizance of any offence upon receiving a complaint of facts which constituted such offence. It is clear that the report refd. to in this section is the report required u/s. 173, Cr. P. C. It is by this report that the Criminal law is set in motion by the Police before a Mag. The Police Officer is a Public Officer. The report u/s. 173, Cr. P. C. is enjoined on the officer under that section. It is, therefore, a public document within the meaning of S. 74, Evidence Act, according to which documents which form the acts or records of the acts of public officers, whether legislative, judicial or executive are public documents. In the H. Cs. outside Mysore there was a divergence of opinion on this aspect of the matter as is clear by the decisions in Queen Empress v. Arumugam, 20 Mad. 189 and Queen Empress v. Venkataratnam, 19 Mad. 14. The difference was set at rest by the amendment of S. 173, Cr. P. C. by the addition of cl. 4 which is to the effect that a copy of the report under that section should be given to the accused on appln. before the commencement of the enquiry or trial.

3. So far as Mysore is concerned, no amendment was necessary as this Ct. had taken the view, even before the amendment, that a report u/s. 173, Cr. P. C. was a public document and that the accused was entitled to a copy of it. As observed by Venkataranga Iyengar J. in the unreported case Cr. R. P. No. 192 of 43-44; "The point is made clearer by the amendment to S. 173, Cr. P. C.; made by Act VI [6] of 1927." That is, what was clear before is made clearer and the amendment makes no change in the law as understood in Mysore before the amendment.

4. Before considering the effect of the amendment, it has to be stated that what is refd. to as charge-sheet is something more than a report u/s. 173, Cr. P. C. Col. 6 of the charge-sheet contains the substance of the statements of the witnesses made before the Police and this is not required to be stated in a report u/S. 173, Cr. P. C. The accused is not entitled to a copy of this at the commencement of the trial consistently with the provisions of Ss. 163 and 172 Cr. P. C., as will be stated later. It may not be correct, therefore, to say that the accused is entitled to a copy of all the entries in the charge-sheet including col. No. 6 in it. In the unreported case refd. to above, Venkataranga Iyengar J., however, observes as follows: "Even before the amendment of S. 173, Cr. p.C. it was held by this Ct. in 4 Mys. L.J. 231 that the charge-sheet in the form prescribed by the Govt. is a public document u/S. 74, Evidence Act. When it is held to be a public document, ft necessarily follows that the accused is entitled to a copy of all the columns in that document." It is true that it is stated in 4 Mys. Law Journal case refd. to above as follows : "In Boregowda v. Govt. of Mysore, this Ct. has held the following opinion of Shephard and Subramania Iyyar JJ. in Queen-Empress v. Armugam, 20 Mad. 189 that a report u/s. 173, Cr. P. C. is a public document within the meaning of S. 74, Evidence Act, and that an accused whose interests are affected thereby will be entitled to a copy. It was further held that a charge-sheet being a report which the Police Officer submits u/s. 173, an accused person whose interests are involved by such a report is entitled to a copy of such portion of it as contains information which as prescribed in S. 173 should be submitted to a Mag." It will be noticed that in this decision Doraiswami Iyer and Rama Rao JJ. are merely approving of what has been held in Boregowda v. Government of Mysore. At first sight it looks, however, that according to them it has been held in Boregowda v, Govt. of Mysore, that a charge-sheet is a public document of which an accused is entitled to a copy. But a careful reading of the decision makes it clear thata copy of such portion of it as contains information which as prescribed in S. 173, Cr. P. C., alone is what the accused is entitled to. This is further clear by the decision in Boregowda v. Govt. of Mysore which states that "If a charge-sheet contains more information than is prescribed u/s, 173, an accused person is entitled to copies of only such portions of it as are prescribed by S. 173." It also makes it clear that Ss. 172 and 162 forbid the grant of copies to an accused except under circumstances, refd. to them: "We agree with the majority of the Madras H. C. F. B. in the ruling quoted in 20 Mad. 189 that reports u/ss. 157 and 168 are notpublic documents, but for reasons given above we are of the opinion expressed by two of the Judges in the above case, that a report u/s. 173, Cr. P. C. is a public document within the meaning of S. 74, Evidence Act, and we think it would follow that, unless there is any special provision in law or statutory restriction to the contrary, an accused person would be entitled to a copy thereof, when that document affects some interest of his for the protection of which inspection of the document was necessary." The view taken by this Ct. in Boregowda v. Govt. of Mysore is not only quoted with approval in 4 Mys. L. J. 231, but also in 7 Mys. L. J. 189 where the question of accused being entitled to copy of a large number of documents came up for detailed consideration : "As to S. 548, Cr. P. C., no doubt the Mag. passes his orders after perusal of all parts of the documents, but they are merely interlocutory orders before the final stage is reached, and as such they cannot automatically convert the mere police statements into judicial evidence or record. Otherwise it may become necessary to draw an unreasonable and untenable distinction between statements folld. by orders for remand and disposal of property, and others, when there was no occasion at all for arrest of persons or seizure of property. The bare wordrecord in S. 541, Cr. P. C. does not seem to permit any such interpretation and thereby nullify the express provisions of Ss. 162 and 172, Cr. P. C. - Compare also Emperor v. Muthaia Swamiyar, 30 Mad. 466. The particulars given in the reports comprise partly of acts that strictly pertain to the special diaries and partly informations gathered by the police and statements of witnesses examined by them. Under S. 167 the Police have to submit to the Mag. a copy of the entries in the diary before an order on the appln. for remand could be obtained. In other cases also the Mag. may have to call for the Police papers and consider them before passing the needed orders. It is only to facilitate his persual of those papers that their abstracts are given in the several reports or applns. Since the originals are privileged the abstract also partakes of that character and cannot be open to inspection except in the manner provided by law, Adopting therefore the limitations imposed in Bore Gowda v. Govt. of Mysore, in respect of the charge-sheet, with regard also to the papers above mentioned we are of opinion that copies could be granted of only the columns giving descriptions of the properties seized, the date and hour of arrest, the facts actually observed and recorded during the inquest, but not of the column or columns giving details of the police investigation and the informations collected by the police to fix the offence and the offender which are covered by Ss. 162 and and 172, Cr. P. C." It follows from some of these decisions that while a report u/s. 173, Cr. P. C. is a public document and that the accused is entitled to a copy of it, the information contained in col. 6 what is popularly known ascharge-sheetandapos; is a record containing summary of statements of witnesses made before the police during investigation and that it is merely intended as a guide to the Prosecutor to elicit what is necessary from each witness, as well as for the Ct. to know what each witness is likely to state. Venkataranga Iyengar J. in the unreported case states: "I am unable to understand the learned Mag.s reasoning as to how the particulars contained in Col. (6) of the charge-sheet contradict the provisions of S. 162, Cr. P. C." It has to be stated that S. 162, Cr. P. C. is clear on the point. "S. 162 (1): No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, the Ct. shall, on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner-provided by S. 145, Evidence Act, 1872. When any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter refd. to in this cross-examination: Provided, further, that, if the Ct. is of opinion that any part of any such statement is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, it stall record such opinion (but not the reasons therefor) and shall exclude such part from the copy of the statement furnished to the accused." Ss. 162 and 172, Cr. P. C. prohibit the grant of copies except at the stage and in the circumstances refd. to in them and the decision in cr. r. P. 192 of 43-44 is evidently due to the decision in Bore Gowda v. Govt. of Mysore, 19 Mys. C. C. r. 121 and 8 Mys. l. J. 16 not being brought to the notice of the learned Judge. It may be stated here that amendment of S. 173 does in no way alter the position, as what is stated in the newly added clause is: "That a copy of a report under that section should he given on appln. so the accused before the commencement of the enquiry or trial." This does not mean that copy of that portion of the charge-sheet which does not come within the scope of a report u/s. 173, Cr. P. C. is what the accused is entitled to before the commencement of the enquiry or trial. It may be stated here that in the F. B. decision of the Madras H. C. refd. to above where there was a difference of opinion about the grant of copies of charge-sheets prior to the amendment it is stated: "As a fact, however, they have been enlarged so as to contain much more than the Code requires" (observations of Benson J.). If it was intended by the amendment that a copy of the entire charge-sheet including portions which are not directed to be included in a report u/S. 173, Cr. P. C. and what has been prohibited u/Ss. 162 and 172, Cr. P. C. should also be given, the amendment would not have confined itself to the direction that copy of a report u/S. 173, Cr. P. C., alone should be given. On the other hand, it would have been stated that a copy of the entire charge-sheet itself might be granted. We do not, therefore, think that the amendment has in any way affected the right of the accused to get copy of only certain columns of the charge-sheet.

5. It was contended in the revn. petn. that the lower Court has overlooked the decision in 8 Mys. l. J. 16. It is observed in that case: "Where the Police report on which the Mag, takes cognisance of an offence is defective and does not comply with the provisions of S. 173 the prosecution is not one legally instituted u/S. 190 (1) (b), Cr. P. C. If the information required to be given by S. 173, Cr. P. C. is not contained in the charge-sheet, the Mag. may refuse to take cognisance. If the omission relates to information required to be furnished in the form prescribed for the Police report, cognisance taken by a Mag. on such defective report is not necessarily invalid in law. S. 173, Cr. P. C. makes it incumbent on the Police to adopt the form prescribed by the Govt. for furnishing information required by the section. Under Col. 6 of that form the Police are required to Statewhat point each witness is called upon to prove. The object is to give earliest information to the accused as to the point or points which each witness would depose to in regard to the accusation brought against him." Moreover, as observed by Coutts J. in Grant v.Emperor, 65 I. C. 421: "The last contention of Mr. Manuk is that on the charge-sheet as submitted the Mag. could not, under law, take cognizance because it does not show exactly what each of the witnesses named in the charge-sheet will prove. I can find no provision of the law which requires that the Mag. before taking cognizance should know exactly what each of the witnesses named in charge-sheet will prove nor can I find any authority for such a proposition. The charge-sheet alleged that a certain offence will be established by the evidence of certain witnesses and in my opinion, this is sufficient to enable the Mag. to take cognizance." Similar observations were made in Balasundaram v. Emperor by Reilly J. 1929 Mad. W. N. 504: "The information given in the charge sheet in this case is not very full, but I cannot Bay that it does not comply with the provisions of S. 173, Cr. P. C. The contention that that section requires that an abstract of the evidence to be given by each of the witnesses mentioned should be entered in the report or charge sheet appears to me unsound. Nor is there in my opinion anything in the suggestion that this form of charge-sheet prescribed by G. O. No. 3487 law (General) dated 16-10-1928 and published in the Fort Saint George Gazette dated 23-10-1928, could not legally be prescribed u/S. 178, Cr. P. C. because it requires less details to be given than were required in the form previously prescribed." Sreenivasa Iyer J. has distinguished the observations of the above two cases by stating that the observations are based on the amended form of charge-sheet prescribed by the Govt. of Madras. But the reasons given by the learned Judges are not based on any such form and deserve careful consideration. It has to be observed that according to S. 190, Cr P. C., a Mag. can take cognizance of any offence (a) upon receiving a complaint of facts which constituted such offence; (b) upon a report in writing of such facts made by any police officer, etc. It is clear that such fasts mean facts which constitute an offence. There is, therefore, nothing wrong in a Mag. taking cognizance of an offence when a Police Report merely contains the facts which constitute the offence and not the evidence with which the prosecution propose to prove the case. It may be added that while it is the duty of the Police Officer to make a report of all the information refd. to in S. 173, Cr. P. C., a Mag. would not be wrong in taking cognisance of an offence if facts which constitute the offence alone are mentioned in the report. It has to be stated, therefore, with respect that the observations made by Sreenivasa Iyer J. in 8 Mys. L. J. 16, are rather broadly stated and in fact they do not in any way affect, as contended, the decision in this case.

6. We think, therefore, that the learned Mag. was right in refusing to grant copies of Col. (6) of the charge-sheet disclosing information as to what point each witness cited therein is called upon to prove. The revn. petn. is dismissed.

7. Vasudevamurthy, J. :- The question whether an accused person is entitled to a copy of the entries in col. No. 6 of the charge-sheet placed against him, viz. the summary of what the witnesses for the prosecution are cited to speak to, has been decided by a Bench of this Ct. consisting of Chandrasekhara Aiyar and Wallace JJ. so far back as in the year 1914 in 19 Mys. C. C. R. 192. They held that the report of a police officer prescribed by law u/S. 173, Cr. P. C. is a public document within the meaning of S. 74, Evidence Act, and the accused person would be entitled to a copy thereof, but if acharge-sheet contains more information than is prescribed u/s. 173 then the accused person is entitled as of right to copies only of such portions of it as are prescribed by S. 173. They observed: "But while the petnr. would be therefore entitled to a copy of a report u/s. 173, Cr. P. C. affecting his interests, we do not hold that he is necessarily entitled to a copy of what is called thecharge-sheet. The document usually called thecharge-sheet is a document which contains much more information than is prescribed u/s. 173."

8. Section 173, Cr. P. C. lays down that as soon as an investigation by the police is completed the officer in the charge of the police station shall forward to the Mag. empowered to take cognizance of the offence on a police report, a report in the form prescribed by the Govt. setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody, or has been released on his bond, and, if so, whether with or without sureties. As further observed in 19 Mys. C. C. R. 121 a charge-sheet should, therefore, contain more or less what a private complaint usually contains such as the names of the parties, the main facts leading up to the complaint and the names of the witnesses on whom the complainant relies to prove his case. But if a charge-sheet contains any record of the police investigation or details of the evidence which particular witnesses are expected to give, the same goes beyond the requirements of S. 173 and such extra matter is not apublic document. The learned Judge who decided that case said, and I think very correctly, if I may say so with respect, that this view was fully supported by the "specific prohibition in S. 172 and the implied prohibition in S. 162, which forbid an accused, except under special circumstances therein detailed, having access to the details of the police investigation A the details of the statements made by any person to the police."

9. By an amendment of the Cr. P. C. in British India as it then was in 1923, a sub-section was added to this section which provided that a copy of any report forwarded under the section shall, on appln. be furnished to the accused before the commencement of the inquiry or trial. This was rendered necessary as there were some differences of opinion in the British Indian H. Cs. on the question whether such a police report was or was not a public document and it had been held by a F. B. of the Madras H. C. in 20 Mad. 189 that an accused person was not entitled to have a copy of the charge-sheet before the commencement of the inquiry or trial as the same was not a public document within the meaning of S. 74, Evidence Act.

10. In Mysore also that sub-section was added to S. 173 by Act VI [6] of 1927. It is contended for the petnr. that by reason of that amendment the decision in 19 Mys. C. C. R. 121 requires re-consideration. He relies for his contention also on certain later decisions of this Ct. which may be considered. After 19 Mys. C. C. R. 121, the next case in which the matter appears to have come up for consideration of this Ct. is in 4 Mys. L. J. 231. It was decided in that case by Doraiswami Iyer and Rama Rao JJ. that ab report like a charge-sheet is a report submitted by a police officer to the Ct. in compliance with S. 173, Cr. P. C. and being therefore a public document within the meaning of S. 74, Evidence Act, an accused person was entitled to a copy of it u/s. 76, Evidence Act. In coming to that conclusion 19 Mys. C. C. R. 121 was refd. to with approval and it has to be noticed that the learned Judges expressly observe that the accused is entitled under the later section to have a copy only of so much of the report as a police officer is bound to furnish in accordance with the requirements of S. 173, Cr. P. C.

11. The question was consd. again by this Ct. in 7 Mys. L. J. 189. In that case the accused had applied before trial for copies of quite a large number of documents connected with the investigation or leading up to the complaint. The learned Judges, who were the same as those who decided the case in 4 Mys. L. J. 231, pointed out that some particulars given in the police report may comprise partly of facts that strictly pertain to the special diaries and partly information gathered by the police and the statements of witnesses examined by them; and though u/s. 167 the police may have to submit to the Mag. copy of the entries in the diary for purposes of obtaining remand or the Mag. may call for all the police papers, the originals are privileged and cannot be open to inspection except in the manner provided by law. "Adopting therefore the limitations imposed in 19 Mys. C. C. R. 121 in respect of the charge-sheet with regard also to the papers above mentioned," they say "We are of the opinion that copies could be granted of only the columns giving description of the properties seized, the date and hour of arrest and the facts actually observed and recorded during an inquest but not of the column or columns giving details of the police investigation and the informations collected by the police to fix the offence on the offender which are covered by Ss. 162 and 172 Cr. P. C."

12. In 8 Mys. L. j. 16, Srinivasa Iyer J. had to consider an application by the accused persons to quash certain criminal proceedings instituted against them on the ground that the information set forth in the charge-sheet did not contain any statement that the accused had committed any act constituting an offence and that the charge-sheet was further defective as the point to which each witness had to speak was not mentioned therein. That learned Judge held that as the charge-sheet in the case did not contain the nature of the information against each of the accused and did not give particulars which should have been furnished in col. 6 of the form prescribed by the Govt. there was not sufficient compliance with S. 173; but nevertheless that requirement of the law could sufficiently be complied with if the information was furnished by the prosecution later. The question of the accused being entitled to a copy of the entries in col. 6 did not arise directly in that case and neither 19 Mys. C. C. r. 121 nor 4 Mys. L. j. 231 was apparently brought even to the notice of the learned Judge. It may be that it is incumbent on the police to adopt the form prescribed by the Govt. u/s. 173, Cr. P. C. but that does not necessarily make it incumbent on the Ct. to furnish a copy of that column to the accused.

13. The point under consideration, however, arose directly for decision before another single Judge, Venkata Ranga Iyengar J. in Cr. r. P. No. 192 of 43-44 where he held that a charge-sheet in the form prescribed by the Govt. is a public document u/s, 74, Evidence Act, and therefore it necessarily folld. that the accused was entitled to a copy of all the columns in that document. To come to this conclusion he reld. on the amendment to S. 173, Cr. P. C., and the decision in 4 Mys. L. j. 231 and he observed that even before such amendment it had been held in 4 Mys. L. j. 231 that such charge-sheet was a public document. Before us Mr. H. V. Krishna Rao, learned counsel for the petnr. placed strong reliance on this judgment. The distinction made by this Ct. between the requirements of a report required of the police u/s. 173 and the contents of a charge-sheet which they may file, and the limitation on the right of the accused to obtain a copy only of what the report is to contain as decided in 19 Mys. C. C. r. 121 does not appear to have been expressly brought to the notice of Venkata Ranga Iyengar J. though in 4 Mys. L. j. 231 a reference has been made to that decision. He has merely observed that the point decided in 4 Mys. l. j. 231 is made clearer by the amendment to s. 173 effected by Act vi [6] of 1927. To support this he quotes in extenso the speech made by one of the members of the legislature in moving the amendment pointing out that there has been considerable difficulty in the matter of obtaining a copy of the charge-sheet by the accused on account of the rulings of the various Cts. but he has not consd. the distinction made in 19 Mys. C. C. r. 121.

14. The next case, which is also unreported, in which the matter came up for consideration was before my learned brother Mallappa J. in Cr. r. p. 268/50-51 where following 19 Mys. C. C. r. 121 he confirmed the order of the Mag. refusing to grant copies of what each witness for the prosecution was called to speak to.

15. So far as Mysore is concerned, the amendment made in 1927 was really unnecessary at all, to enable the accused to obtain a copy of a report made u/s. 173, in view of the decision in 19 Mys. C. C. r. 121. There can, of course, be no doubt that if there is a conflict between a form prescribed by Govt. and the requirements of S. 173, it is the latter that should prevail. Supposing for instance in the form prescribed a column was provided for noting previous convictions or an abstract of confessions either before the police or even a Mag. or other antecedents of an accused which ought not to be consd. against him at that stage surely it cannot be contended that the form should prevail and that no Mag. can take cognizance on a report or charge-sheet in which those cols, are not filled up by the police.

16. In Madras the earlier form which had a column similar to Col. 6 was later on changed and the particulars of the evidence which each witness was called upon to give has been omitted; and this has been held not to offend the provisions of S. 173, Cr. P. C. See 1929 Mad. W. N. 504 in which Reilly J. observed: "S. 173, Cr. P. C. does not require that an abstract of the evidence to be given by each of the witnesses mentioned should be entered in the report or charge-sheet. The form of charge-sheet prescribed by Govt. requiring less details to be given than are required in the previous forms is not illegal." It may be that the giving of that information would help the Mag. in passing orders on interlocutory applns. for remand, bail etc., and also be a guide to the prosecutor as the investigating officer is not permitted to conduct the prosecution and may not some times be present when the witnesses are examined. But there is no statutory provision in the Cr. P. C. which entitles the accused to obtain a copy of those particulars.

17. In the result, I think that there is no need to reconsider the decision in 19 Mys. C. C. r. 121, and the amendment to S. 173 by Act VI [6] of 1927 has not made it necessary to reconsider that decision. The decision of Venkata Ranga Iyengar J. in Cr. r. P. 192 of 43-44 being opposed to that of the Bench cannot, in my opinion, have preference. I, therefore, agree with Mallappa J. that this revn. petn. must be dismissed. Revision dismissed. AIR (38) 1951 MYSORE 111 [C. N. 38.] "Chayanna v. Nanjappa" MYSORE HIGH COURT Coram : 2 MALLAPPA AND VASUDEVAMURTHY, JJ. ( Division Bench ) Puvadi Chayanna - Deft. - Appellant v. Nanjappa and others - Pltfs - Respondents. Second Appeal No. 485/50-51, D/- 19 -1 -1951. Court-fees Act (7 of 1870), S.7(IX), and Sch.1, Art.1 - Mysore Court-fees Act (3 of 1900), S.4(IX) and Sch.1, Art.1 - COURT-FEE - APPLICABILITY OF AN ACT - Applicability - Separate appeals arising from same suit for redemption - Court-fee. As suit for redemption of a mortgage against B was decreed on payment of certain amount of money. A appealed against the decree and the appellate Court reduced the amount on payment of which redemption was decreed. In Bs appeal against the decree challenging As right to redeem the appellate Court confirmed the decision of the trial Court upholding As right to redeem. B thereupon filed two appeals against the two decrees: Held that as the Court-fees Act does not provide for the consolidation of appeals the appellant B must pay full court fee on each of his appeals: a. I. r. (8) 1921 All. 395, Rel. on. (Para 13) Held further that court-fee on appeal in which B sought to obtain a decree for higher amount than that was awarded to him by the appellate Court must be paid ad valorem on the difference of the amount now claimed and that decreed by the appellate Court. In such a case Sch. I Art. 1 and not s. 4 (IX), Mysore Court-fees Act is applicable: a.I.r. (30) 1943 Mad. 146, Rel. on; Case law discussed. (Para 14) Anno : Court-fees Act, S. 7 (IX) N. 5; Sch. I, Art. 1 N. 25. Cases Referred : Chronological Paras (05) 27 All. 447 : (2 A. l. j. 105). 7, 8 (08) 30 All. 547 : (5 A. l. j. 531). 8 (09) 31 All. 265 : (6 A. L. j. 155). 9 (14) 36 All. 40 : (a. I. r. (1) 1914 All. 520 F. B.). 10 (21) 43 All. 56 : (A. I. r. (8) 1921 All 395). 13 (31) A. I. R. (18) 1931 Lah. 633: (134 I. C. 124). 11 (06) 29 Mad. 367 : (16 M. L. j. 287.). 5a (09) 3 I. C. 459 : (6 M. l. t. 245). 5 (26) 92 I. C. 624 : (a. I. r. (13) 1926 Mad. 225). 6 (43) a.I.r. (30) 1943 Mad. 146 : (I.lr. (1943) Mad. 819). 4, 5a (22) a. I. r. (9) 1922 Oudh 82 : (25 O. C. 30). 12 (24) A. i. r. (11) 1924 Oudh 170 : (74 I. C. 88). 12

V. Krishnamurthi - for Appellant.; M.R. Janardhanam and M.V. Raghunathan - for Respondents. Judgement Judgment. - The question before us at present in this second appeal is as to the amount of court-fee payable on the memo of appeal. The pltfs. filed a suit for redemption of a mortgage with possession evidenced by a deed of mortgage for Rs. 800. They claimed to do so as purchasers of the mortgaged properties from defts. 1 to 6. Deft. 7, who is the appellant before us, pleaded that the pltfs. were not entitled so to redeem as the sale in their favour was nominal and collusive and was not meant to convey any title at all and that he himself had subsequently purchased the properties from defts. 1 to 6 in pursuance of a prior agreement of sale of which the pltfs. had notice. He also pleaded that he had spent monies for re-building and improving the first item mortgaged which is a house, as it had fallen down, that he had also paid some taxes and that in any event he was entitled to receive these sums aggregating Rs. 3,506-8-0 before the pltfs. could redeem him. The pltfs. paid a court-fee of Rs. 80 on the plaint under s. 4 (ix), Mysore Court fees Act, which runs in the same terms as the corresponding s. 7 (ix), Indian Court-fees Act, as follows: "To redeem: ix. In suits against a mortgagee for the recovery of the property mortgaged...... according to the principal money expressed to be secured by the instrument of mortgage:"

2. The learned Munsiff passed a decree holding that the pltfs. were entitled to redeem deft. 7 but that they were bound to pay Rs. 2,960 to him including the mortgage money as being the value of the improvements made and taxes paid by him. Against that decision the pltfs. preferred an appeal in R. A. No. 151/48-49 on the file of the Additional Subordinate Judge at Kolar complaining that the amount decreed as payable to deft. 7 was much too high. Deft. 7 also preferred an appeal in R. A. No. 153/48-49 against the portion of the decree declaring that the pltfs. were entitled to redeem. The Subordinate Judge allowed the pltfs appeal R. A. No. 151/48-49 in part. He held that deft. 7 had failed to prove that he had effected improvements and therefore, reduced the sum payable to him to Rs. 949-12-0 including the mortgage amount. He upheld the pltfs. right to redeem and dismissed the appeal R. A. No. 153/-48-49 preferred by deft. 7. Deft. 7 has preferred two appeals to this Court.

3. The first is against the concurrent decisions in R. A. No. 153/48-49. He has in that appeal paid a court-fee of Rs. 80 under S. 4 (ix) as in the suit and the same has been accepted as correct. He has filed this second appeal in respect of the decision in R. A. No. 151/48-49 and has paid on the appeal memo, a court-fee of a similar sum of Rs. 80 as payable under the same section of the Mysore Court-fees Act The office called upon him to pay court-fee ad valorem on the difference between the amount awarded in his favour by the Munsiff and that awarded by the Subordinate Judge. The appellant questions the correctness of that demand and has brought up the matter before us.

4. Mr. V. Krishnamurthi, the learned Advocate for the appellant, contends that though S. 4 [IX] purports to apply to suits the principle in it is also applicable to appeals in those suits; that the court-fee he has paid in this second appeal is really more than what was really payable by him and that he need not have paid any court-fee at all in this second appeal in respect of the amounts claimed by him as he had already paid court-fees under S. 4 [IX] in the other second appeal where the question of the right to redeem was raised; that his client was forced to file two second appeals as there were two decrees passed by the Subordinate Judge and that his client cannot be compelled to pay court-fees in both the appeals merely on that account. There have been quite a large number of decided cases on this subject and they are not uniform and it is not quite easy to reconcile all of them, or to deduce any common general principle. But in Pachayakkal v. Shanmugavelayudhasami, A. I. R. (30) 1943 Mad. 146, Happell J. has sought to do so and observed that in assessing court-fee it is not the form but the substance of appeal that has to be considered, and has held that if an appeal against a decree in a suit brought for redemption relates only to the amount payable and not to the right of redemption, the court-fee must be paid ad valorem on the amount claimed to be payable. If the appeal purports to dispute both the right of redemption and the amount payable but in substance relates only to the amount payable, again court-fee must be paid ad valorem on the amount claimed; but if the right of redemption and the amount payable are disputed in appeal and both grounds are grounds in substance and not merely in form, the court-fee payable will be as if in a suit, under S. 7 [IX]. In the present case it is only the first of the alternatives that we are concerned with; and in such cases the practice of this Court also appears to be to demand court-fees on that principle. That such a principle is correct is supported by the rulings of the several High Courts which we may consider.

5. In Sekharam Nair v. Kongat Eacharan Nair, it has been observed that in a case where in an appeal by the plff. or the deft. against a decree in a redemption suit the only question is as to the amount payable, the existence of a right to redeem cannot be said to be the subject-matter in dispute in the appeal memo, for the existence of that right is not disputed (as in the present appeal); the subject-matter in dispute is a definite amount and the memorandum falls under Art. 1 of Sch. I for the purpose of computing court-fee; that is, court-fee is calculated ad valorem on the subject-matter of the appeal. 5a. In Reference under Court-fees Act, 1870, 29 Mad. 367, Sir Arnold White C. J. and Subrah. mania Ayyar J. held that S. 7 (e) Cl. (IX) of the Court-fees Act applies only to suits and not to appeals and in the case of appeals in mortgage suits, Art. 1 of Sch. I of the Act applies. The court-fee in such cases is payable on the value of the subject-matter in dispute in the appeal and not on the subject-matter in dispute in the suit. Though their observation that S. 7 (e), Cl. [IX] applies only to suits and not to appeals may be rather broadly stated, viewed in the light of other and more recent cases of other High Courts and even of the Madras High Court itself (vide A. I. R. (30) 1943 Mad. 146) that case is an authority for the position that the court-fee payable by a mortgagee in such circumstances as the present is to be calculated with reference to the amount in dispute in the appeal.

6. In re Tiruvangalath Nellyoton Paidal Nayabi, 92 I. C. 624, it is observed that the principle of the Court-fees Act is that the pltf. should pay court-fee in proportion to the value of relief he seeks. That was a suit for redemption of a kanom and a decree for possession was passed on payment of the amount of the mortgage and the value of improvements. An appeal was filed which related only to the value of improvements payable. It was held in that case that S. 7 (ix) of the Court-fees Act was inapplicable and that court-fee was payable on the memo, of appeal and not on the mortgage amount but ad valorem on the amount in dispute in appeal under Art. 1 of Sch. 1 of the Court-fees Act.

7. In Nepal Rai v. Debt Prasad, 27 ALL. 447, in a suit for the redemption of the mortgage the pltff. obtained a decree for redemption conditional on the payment by him of a sum fixed in the decree. Thepltff. appealed on the ground that such sum was in excess by a specified amount of the sum rightly payable by him for redemption. It was held that the court-fee payable on the memo, of appeal was to be calculated according to the sum which the appellant claimed to have deducted from his decree and not as in the case of a suit for redemption according to the principal sum secured by the mortgage.

8. In Mahadeo Prasad v. Gorakh Prasad, 30 ALL. 547, which follows 27 ALL. 447, it has been held that in the case of an appeal from the decree allowing the deft. mortgagor to redeem the mortgage on payment of a sum named therein based upon the ground that the mortgage debt has been satisfied out of the usufruct of the mortgage and nothing whatever was due from him, the proper court-fee payable was ad valorem fee upon the total amount of the decree under appeal.

9. In Bajilal v. Gobardhan Singh, 31 ALL. 265, in a suit for foreclosure a decree was passed in favour of the pltff. conditionally on redeeming a prior mortgage on payment of Rs. 5,914-6-5. The pltff. appealed assailing the validity of the prior mortgage and stamped his memo. of appeal with an ad valorem court-fee on the amount of the principal sum of money secured by the prior mortgage. It was held that the proper amount of court-fee payable was an ad volorem court-fee on the amount which the pltf. had been ordered to pay to the prior mortgagee.

10. Raghbir Prosad v. Shanker Bux, 36 ALL. 40 it is pointed out that the criterion laid down in S. 7 (ix) of the Court-fees Act, 1870, for determining the court-fee payable in respect of a suit for redemption or foreclosure of a mortgage does not apply to the appeal in such a suit.

11. In Harlal v. Siri Ram, A. I. R. (18) 1931 Lah. 633, it has been held that the court-fee payable on a memo of appeal is determined by the value of the subject-matter of the appeal and that if a redemption suit is decreed and the deft -appellant merely challenges the right to redeem, the court-fee payable on the memo, of appeal has to be computed in accordance with the provisions of cl. (ix) of S. 7; while if a pltff. or deft. in appeal merely challenges the amount to be paid on redemption without questioning the right to redeem, the court-fee payable on the memo. of appeal ought to be on the subject-matter in dispute, that is on the .additional amount claimed or the amount in respect of which the Appellant seeks to avoid liability.

12. In Sangat Baksh v. Rawat Dijdeo. A.I.R. (9) 1922 Oudh 82 this subject of court-fee. payable under cl. (ix) of S. 7 is discussed in detail and it has been observed that it does not follow that where plaints are chargeable under Cl. (ix) of S. 7 the memo. of appeals filed against decrees passed in such suits are invariably chargeable in the same manner for, it is said the suit may change its nature in appeal and though the original suit may be for redemption or foreclosure the appeal may be merely in respect of the amounts made payable by the original Court. In such a case the subject-matter in dispute in the appeal would clearly not fall under the provisions of cl. (ix) of S. 7. This case has been followed in Sant Baksh v. Dildar Hussain, A. I. R. (11) 1924 Oudh 170 where it has been held that a mortgagee in appeal claiming a larger amount than that awarded by the decree of the lower Court allowing redemption, must pay ad valorem fee on his memo of appeal calculated on the difference between the amount found due by the lower Court and that claimed by him in appeal.

13. With regard to Mr. Krishnamurthis contention that merely because he has been forced to file two appeals he should not be compelled to pay court-fee on both of them, reference may be made to Shib Dayal v. Meharban, 43 ALL. 56 wherein it has been observed that the Court-fees Act does not provide for the consolidation of appeals and therefore, if there are two appeals in the same suit and when one party files two second appeals, one against each decree in first appeal, the appellant will have to pay full court-fee on each of his appeals.

14. In the present appeal the appellant is seeking to obtain a decree for the higher amount which was awarded to him by the Munsiff and which has been partly cut down by the Subordinate Judge. The extent of the difference which he claims now is the subject matter of this appeal. The proper provision of the Court-fees Act applicable to an appeal like the present one is not S. 4 (ix) of the Act but Art. 1 of Sch. I which prescribes that on a memo, of appeal not otherwise provided for ad valorem court-fee according to the scale prescribed in col. 3 of that article and calculated on the subject-matter in dispute must be paid.

15. We are, therefore, of the opinion that the appellant is bound to pay ad valorem court fee on the amount in respect of which he has preferred this second appeal and we order accordingly.Time for payment one month. Order accordingly. AIR (38) 1951 MYSORE 113 [C. N. 39.] "Muninanjappa v. Agneesamma" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) R. Muninanjappa - Appellant v. Agneesamma and another - Respondents. Misc. Appeal No. 101 of 1950-51, D/- 5 -7 -1951. Workmens Compensation Act (8 of 1923), S.12(1) - WORKMENS COMPENSATION - "Ordinarily part of the trade or business of the principal". By an agreement A took on lease Bs lorry for a period of one month. The lorry was taken on lease for the express purpose of As business in Kolar District of transporting articles. The deceased was employed by A as a cooly to load and unload the lorry which A was driving. Held that the work or business of B was merely to let out his lorry for hire while that of A was quite different, viz., to use the lorry to convey materials in connection with some trade or business of his own. Thus on the facts and circumstances of the case it had not been shown that B was the principal and A the contractor within the meaning of S. 12 (1) and therefore the mother of the deceased could not have any recourse against B for compensation for injuries sustained by the deceased. A. I. R. (16) 1929 Bom. 179, A. I. r. (37) 1950 Cal. 548, Rel. on. (Paras 6, 7) Anno. W. C. Act s. 12 n. 4. Cases Referred : Chronological Paras (29) A. I. r. (16) 1929 Bom. 179 : (53 Bom. 203). 5 (50) A.I.R. (37) 1950 Cal. 548: (54 C.W.n. 716). 5 E.V. Mathews - for Appellant; E. Kanakasabapathi - for Respondent No. 1. Judgement Vasudevamurthy, J. :- Respondent 1 filed an application against the Appellant; who was respondent 1 in the lower Court and who is a permanent resident of Bangalore, in the Court of the Commissioner for Workmens Compensation, Kolar District, for compensation on account of the death of her son and later added Respondent a as a party thereto. She alleged that her son had been employed by the Appellant in his lorry service which he was plying in the Kolar Gold Fields, and that on 26-2-49 while the lorry was so plying the deceased met with his death owing to an accident which took place during the course of his employment under the Appellant as his workman. The Appellant pleaded that he never employed the deceased and did not even know him and that there was no privity of contract between himself and the deceased. He no doubt owned the lorry but on the concerned date he had leased it out to Respondent 2 who was a motor driver for a period of one month from 5-2-1949 to 5-3-1949. He was therefore not in possession and control of the lorry or of the persons employed by respondent 2 during the period of the lease. Respondent 2, who is from Andersonpet, K. G. F., pleaded that he was not the owner but only a driver of the vehicle, that the Appellant had informed him that the insurance on the vehicle and road taxes had been paid by him and that he (Respondent 2) was not responsible for any claim under the Workmens Compensation Act which should be paid by the Insurance Company or by the owner of the vehicle.

2. The Commissioner held that the deceased was an employee under the Appellant and had died in the course of his employment and that the case fell within the Workmens Compensation Act. He based his decision on the ground that the Appellant had obtained a Public Carrier permit and his business was to transport goods and commodities for hire; and as respondent 2 had taken the lorry from the Appellant for the same purpose, more or less, on a contract basis, the Appellant became the principal and respondent 2 a contractor within the meaning of S. 12, Workmens Compensation Act, and that the Appellant was therefore liable to pay compensation. He, therefore, awarded compensation of Rs. 810 against the Appellant only.

3. The terms and conditions under which the lorry came to be in possession of respondent 2 is evidenced by an agreement dated 5-2-49 executed by him in favour of the Appellant so that that portion of the case is clear and cannot be seriously disputed. By that agreement respondent 2, took on lease, the Appellants lorry for a period of one month. He agreed to drive it himself and not to sub let it or deliver it to anybody elses possession. He undertook to hold himself responsible for its proper care, to keep it cleaned and oiled and to be liable for any damages to the lorry or its tyres and tubes. The Appellant was to supply a cleaner for the lorry whose salary was to be paid by the Appellant alone, but respondent 2 had to pay him some daily batta and pay for his food expenses. The lorry was taken on lease for the express purpose of respondent 2s business in Kolar District of transporting articles.

4. The deceased was employed by respondent 2 as a cooly to load and unload the lorry which, respondent 2 was driving. P. W. 2 has deposed that on the date of the accident he heard that somebody was caught under the lorry and he went and saw the deceaseds body under the lorry. He, however, says that he does not know how the accident occurred. Respondent 2 has deposed that the deceased was working as a cooly for loading and unloading things from the lorry from about 15 or 20 days, that he was being paid weekly wages at the rate of 14 annas a day and that on the date of the accident the deceased along with some other coolies was sitting in the loaded body of the lorry which he was driving; apparently he must have fallen out of the lorry and met with his death.

5. It is contended by Mr. Matthews, learned Counsel for the Appellant, that the deceased was not employed by his client within the meaning of S. 12 of the Act. Under S. 12, where any person, referred to as the Principal. in the course of or for purposes of his trade or business, contracts with any other person, referred to as contractor, for the execution by or under the- contractor of the whole or part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay compensation to a workman employed in the execution of the work as if that workman had been immediately employed by him. Rabia Mahomed Tahir v. G.I.P. Rly., a. I. R. (16) 1929 Bom. 179. was a case in which the G.I.P Bail way in connection with the electrification of their line were building a power station and constructing a transmission line to carry power to various sub stations on the railway. They had entrusted the work of construction the transmission line on a contract to an independent firm. That firm had employed the deceased as a fitter. His duties were to assist in the erection of the steel towers which were to carry an overhead cable. These towers were not erected on the track out on the adjacent land at a short distance from the railway line. The deceased was knocked down by a train and killed while carrying material from a nearby store to the site of the work. On a reference of the question whether G.I.P. Railway were liable to the representatives of the deceased, it was held that the construction of the original works which would be necessary to convey power to the locomotives was not part of the ordinary trade or business of the G. I. P. Railway within the meaning of the wordordinarily in S. 12, Workmens Compensation Act. In Ghose S.M. v. National Sheet and Metal Works Ltd.. A.I.R. (37) 1950 Cal. 548, a workman sustained injury as a result of an accidental fall from a scaffolding whilst he was painting a factory shed which formed part of the premises occupied by the National Sheet and Metal Works Ltd. He had been employed by the appellant, a contractor. The Commissioner for Workmens Compensation held that the case came within S. 12 (2), Workmens Compensation Act and that the appellant was liable to indemnify the Metal Works as the accident had occurred to the workman when he was employed in the course of or for purposes of the business of the principal. Harries C. J., relying on A.I.R. (16) 1929 Bom. 179, pointed out that in order to come within S. 12 (1) the workman must prove two things firstly that the principal, in the course of and for the purpose of his trade or business, entered into a contract with the contractor and secondly that the subject matter of the contract with the contractor was work which ordinarily formed the whole or part of the trade or business of the principal. He held that : "the question of indemnifying the principal under sub-S. (2) of S. 12 arises only when the case falls within sub-S. (1). Where the work done by the workman is not the work which ordinarily forms the whole or part of the work of the principal, the case is not governed by S. 12 (1) and right to claim indemnity does not arise." He went on to observe : "Where compensation is claimed by a workman against the principal instead of against the contractor, his immediate employer, it is not for the contractor to prove that the work which he contracted to do was not ordinarily the kind of work performed by the principal. The onus rests in the first place upon the workman to prove that the work done by the contractor under the contract was work which ordinarily formed the whole or part of the principals business and on establishing that fact, a right of indemnity would arise." In that case the workman had offered no evidence at all as to the nature of the work or business of the Metal works and had not suggested that painting work ordinarily formed the whole or part of their business.

6. In the present case we have no evidence to hold that the work which was being carried on by respondent 2 was the whole or any part of any work which is ordinarily part of the trade or business of respondent 1 (sic). It appears to be more proper to hold in this case that the work or business of the principal the Appellant, was merely to be out his lorry for hire while that of respondent 2 was quite different, viz., to use the lorry to convey materials in connection with so one trade or business of his own.

7. The learned Commissioner has relied upon no decided cases to come to his conclusion but has relied upon some stray passage at pages 46-47 in the Book "The Workmens Compensation Act of 1923 by Ramanatha Aiyar and Krishnamurthy Aiyar". It is not at all clear from the reference in that book under what circumstances and under what terms and conditions the horse and the driver referred to in that passage had been let by the employer into the service of another and the control which the employer continued to have over the driver. On the facts and circumstances of the present case it has not been shown that the Appellant was the principal and respondent 2 the contractor within the meaning of S. 12 (1), Workmens Compensation Act. Respondent 1 cannot therefore have any recourse against the appellant for compensation for injuries sustained by the deceased.

8. It was contended by Mr. Kanakasabhapathy learned counsel for respondent 1, that his client must at least be able to recover compensation from respondent 2 who directly employed the deceased. That matter has not been gone into by the lower Court and we have not been shown any provision of law under which we can convert the award which has been granted against the Appellant into one against respondent a. Respondent 2 is not also represented before us. We, therefore, propose to set aside the order passed by the Commissioner and dismiss the application filed by respondent 1 as against the appellant and to remand the case for further consideration of the Commissioner and to pass such orders as he may choose against respondent 2 in the light of the observations we have made above. We order accordingly. The parties will bear their own coats in this Court. Order accordingly. AIR (38) 1951 MYSORE 115 [C. N. 40.] "Govt. of Mysore v. Lakshmamma" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) Government of Mysore - Complainant - Petitioner v. Lakshmamma and others - Accused-Respondents. Criminal Revn. Case No. 8 of 1950-51, D/- 10 -7 -1951. Provinces and States (Absorption of Enclaves) Order (1950) , Cl.3, Cl.5 and Cl.8 - CHARGE SHEET - CRIMINAL COURT - STATE - Effect - Offence in Kote Shirur prior to Order - Charge-sheet after Kote Shirur became part of Mysore - Jurisdiction of Mysore Court to proceed with case. Criminal P.C. (5 of 1898), S.179. In respect of an offence alleged to have been committed in Kote Shirur which at the time of the commission of the offence formed part of the Madras State but part of the Mysore State at the time of the charge sheet, the proper Magistrate having jurisdiction to proceed with the case is the Magistrate in Mysore and not the Court in South Canara. The combined effect of Cls. 3, 5 and 8 is to vest the Magistrate in Mysore with jurisdiction to deal with the cases relating to offences alleged to have been committed even prior to the order. The question whether the act complained of is punishable according to the law in Mysore if the law in Madras on the date of the commission of the offence was different is not a factor determining the Court by which the case can be tried (Para 2] Advocate-General - for Govt.; K.R. Gopivallabha Iyengar - for Respondent No. 2. Judgement Venkata Ramaiya, J. :- This is a reference by the learned District Magistrate, "Shimoga, under S. 438, Criminal P. C. seating orders in R. C. No. 136 of 50-51 on the file of the Special First Class Magistrate, Sagar. The reason for the reference is that the learned Magistrate declined to entertain the charge-sheet presented by the Hosanagar Police alleging commission of offences by the accused on 21-5-1949 in Kote Shirur which at the time formed part of the Madras State but part of Mysore State at the time of the charge sheet. The case was originally instituted in the Court of the Magistrate, Coondapur, and consequent on the passing of the Provinces and States (Absorption of Enclaves) Order, 1950, an objection was raised by the accused for the case being proceeded with before that Magistrate in South Canara. The objection was upheld and the proceedings in the case before that Magistrate ceased. Subsequently the Hosanagar Police placed a charge sheet before the learned Magistrate, Sagar, which he declined to entertain on the view that the proper Court having jurisdiction to proceed with the case was the Court in South Canara and not in Mysore.

2. We are unable to agree with the learned Magistrate either in the reasoning or the view adopted by him on the question of jurisdiction. The cases referred to by him in support of the conclusion are not helpful to decide the point as they only serve to show that the Magistrate in South Canara is competent to proceed with the case and not that the Court in Mysore has no jurisdiction to deal with it. Instead he would have done well to have examined the provisions of the Enclaves Order which have a direct and material bearing on the question for consideration, cl. 3 states: "As from the appointed day, every enclave specified in the First Schedule shall cease to form part of the surrendering unit, and shall be included in, and form part of the absorbing unit." Clause 5 declares: "As from the appointed day every enclave specified in the Sch. 3 shall be administered in all respects as if it formed part of the absorbing unit." According to Cl. 8 which is important "All laws in force in an enclave immediately before the appointed day shall, as from that day, cease to be in force in that enclave, and all laws in force in. the absorbing unit shall, as from that day, extend to, and be in force in, that enclave: Provided that anything done or any action taken under the laws in force in the enclave before the appointed day shall be deemed to have been done or taken under the corresponding law extended to, and in force in, that enclave as from the appointed day." It is clear from these that from 25-1-1950 Kote Shirur within which the offence was committed became part of Mysore from that day, that since then in all respects this place has to be administered like any other part of Mysore that the laws in force in Mysore apply to the said area from 25-1-1950 and that anything being done up to or on that day must be deemed to have been done under the laws in force in Mysore. If it were a case pending before the Magistrate in Coondapur and by virtue of the provisions of the Enclave Order it had to be continued in Mysore the law which would govern the case would be the law in Mysore. That is not a question which arises in this case since the charge-sheet is presented afresh by the police in Mysore. It cannot be disputed that the Magistrate having jurisdiction to try persons for offences committed within the limits of Kote Shiroor is the Magistrate in Mysore at present. Reading the 3 Cls. in the Enclave Order referred to, it seems to us that the combined effect of these is to vest the Magistrate with jurisdiction to deal with the cases relating to offences alleged to have been committed even prior to the order. The question whether the act complained of is punishable according to the law in Mysore if the law in Madras on the date of the commission of the offence was different is not a factor determining the Court by which the case can be tried. The only point we are now concerned with is one of jurisdiction and as regards that we have no doubt the Magistrate at Sagar is competent to proceed with the case.

3. We therefore, accept the reference and direct the Magistrate to proceed with the case in accordance with law. Reference accepted. AIR (38) 1951 MYSORE 116 [C. N. 41.] "The State of Mysore v. Abdul Salam" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) The State of Mysore v. Abdul Salam - Accused - Respondent. Criminal Appeal No. 47 of 1950-51, D/- 5 -7 -1951. Influx from Pakistan Control Act (23 of 1949), S.1 - MIGRATION - Applicability to Mysore State. Govt. of India Act (1935) (25 and 26 Geo Vi and 1 Edw VIII Cl. (2)), S.18. Mysore Instrument of Accession, Sch., Item 2. The Influx from Pakistan (Control) Act, 1949, which extends to the whole of Dominion of India to which the Mysore State acceeded for certain purposes, is applicable to and enforceable within the Mysore State with effect from the date when it received the assent of the Governor-General, namely 22-2-1949. In the matter of control of the admission into and regulating the movements in India of persons from Pakistan the Dominion Legislature, which expression should be construed as the Constituent Assembly by virtue of S. 18 of the Government of India Act, 1935, as substituted by the India Provisional Constitution Order, 1947, was clearly authorised and empowered to make laws for the Mysore State under item 2 underB External Affairs of the Schedule to the Instrument of Accession entered into by the Ruler of the Mysore State on 16-8-1947. (Para 3) Advocate General - for State of Mysore. Judgement Vasudevamurthy, J. :- This is an appeal by the State against the judgment of the learned Additional First Class Magistrate, Ramanagaram in C. C. No. 1/50-51 acquitting the respondent one Abdul Salam who was charged before him for an offence under S. 5, Influx from Pakistan (Control) Act, 1949 read with Rr. 19 and 26 of the Permit System Rules, 1949 framed under S. 4 of that Act.

2. The facts of the case are not in dispute. The accused was a native of a village in Magadi taluk. He left India about 3 years ago to Pakistan. He returned to India to visit Nalabandvadi in Bangalore City under a temporary permit issued on 30-9-1949 by the High Commissioner for India at Karachi. Under that permit, the accused was allowed to stay in India for two months from 30-9-1949 to 30-11-1949. The accused was arrested on 27-2-1950 at Kudur in Magadi taluk on the ground that he had over-stayed in India after 30-11-1949 in contravention of R. 19 of the Permit System Rules of 1949 and that he had visited certain places other than those mentioned in the permit in contravention of R. 26 of the said Rules without informing the local police. The learned Magistrate held that the Influx from Pakistan (Control) Act, 1949 was an Act of the Dominion Legislature and it had not been shown that it was extended into Mysore State and was in force at the time in question. He observed that that Act had been published in the Mysore Gazette of 9-6-1949 only for the general information of the public and that it was not clear from the said Act as to when or how it had to come into force in Mysore.

3. The learned Magistrate has in his judgment referred to Arts. 245 and 246 (1) of the Constitution of India and doubts whether all Acts passed by the Dominion Parliament will have the force of law in the States acceding to the Dominion unless it is expressly provided in the concerned Act that it should do so and the date on which it should come into force is also fixed therein. The order of the learned Magistrate is not correct and cannot be upheld. Even under Art. 245 of the Constitution of India the Parliament may make laws for the whole or any part of the territory of India subject to the provisions of the Constitution. Next under Art. 246, the Parliament has exclusive power to make laws with respect to any of the matters enumerated in List i in the Seventh Schedule. "Admission into, and emigration and expulsion from, India; passports and visas" comes under item 19 of List I (Union List). These Articles however do not appear to us to be relevant for the present case because Act xxiii [23] of 1949 was enacted before the Constitution of India came into force. The Influx from Pakistan (Control) Act, 1949 (Act xxiii [23] of 1949) received the assent of the Governor-General on 22-2-1949 and became law from that date. In S. 1 of that Act it is expressly provided that it extends to the whole of India Section 4 provides that the Central Government may by notification in the official Gazette make rules for the carrying out of the purposes of the Act. It has to be seen whether that Act has the force of law in Mysore and, if so, from what date. On 16-8-1947 His Highness the Maharaja of Mysore who was then its Ruler, and in the exercise of his sovereignty which he then possessed in and over the State of Mysore, executed the Instrument of Accession. He thereby declared that he acceded to the Dominion of India with the intent that the Governor-General of India, the Dominion Legislature, the Federal Court and any other Dominion Authority established for the purposes of the Dominion shall by virtue of the said Instrument of Accession but subject always to the terms thereof exercise in relation to the State of Mysore such functions as may be vested in them by or under the Government of India Act of 1935; and he further accepted the matters specified in the schedule to that Instrument as matters with respect to which the Dominion Legislature may make laws for the Mysore State. The schedule to that Instrument of Accession sets out matters with respect to which the Dominion Legislature may make laws for the State. Item 2 under "b. External Affairs" of the Schedule to the Instrument clearly includes "admission into, and emigration and expulsion from India, including in relation thereto the regulation of the movements in India of persons who are not British subjects domiciled in India or subjects of any acceding State." Therefore, in the matter of control of the admission into and regulating the movements in India of persons from Pakistan the Dominion Legislature was clearly authorised and empowered to make laws for the State also. By the India Provisional Constitution Order of 1947, S. 18, Government of India Act, 1935 was substituted by a new section. That section declared that the powers of the Dominion Legislature under the Government of India Act should until other provisions were made by or in accordance with law made by the Constituent Assembly be exercisable by that Assembly and that accordingly the references under the Government of India Act to the Dominion Legislature should be construed as references to the Constituent Assembly. That Assembly could therefore legislate for the Dominion of India; and by virtue of the Instrument of Accession that Assembly could and did validly legislate for the Mysore State in matters relating to external affairs. It is one of the items mentioned in the schedule to the Instrument of Accession. Act xxiii [23] of 1949, which was to extend throughout India, which expression has been defined in the Order of 1947 as meaning the Dominion of India to which His Highness the Maharaja came to accede though, during that period, it was only for certain purposes specified in the Instrument of Accession, is, therefore, applicable to and enforceable within the Mysore State with effect from the date when it received the assent of the Governor-General.

4. The accused must therefore be held to be guilty of an offence under s. 5 (1) of Act xxiii [23] of 1949 in that he has committed breach of the conditions of his permit by over-staying in India after the expiry of its period and by visiting places not specified in that permit. We, therefore, convict the accused for an offence under s. 5 (1) of Act xxiii [23] of 1949 and sentence him to rigorous imprisonment for 6 months. The accused will be arrested and will undergo the sentence. Appeal allowed. AIR (38) 1951 MYSORE 117 [C. N. 42.] "Rudrappa v. Chigaterappa" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) Rudrappa, Petitioner v. Gowda Chigaterappa - Respondent. Criminal Revn. Petn. No. 48 of 1951-52, D/- 14 -6 -1951. Criminal P.C. (5 of 1898), S.19(1)(c) - CONTEMPT OF LAWFUL AUTHORITY - In respect of a document produced or given in evidence in such proceeding. Section 195 (1) (c), Criminal P. C., contemplates the production of the document alleged to be forged and not a copy of it. Hence, where only a copy of the alleged forged document is produced in Court and a decree is passed by consent with the result that the Court was not in a position to give any decision thereon, a prosecution under s. 471, Penal Code, in respect of the document would not be bad for want of sanction under s. 195 (1) (c): a. i. r. (37) 1950 p. C. 31 and 8 Oudh Cas. 313, Rel. on. (Para 2 and 3) Anno. Cr. P. C., S. 195, N. 13, Pts. 12 and 13. Cases Referred : Chronological Paras (50) A.I.R. (37) 1950 P. C. 31 : (51 Cr. l. j. 651). 2 (05) 2 Cr. l. j. 653 : (8 O. C. 313). 2 U. Krishna Murthy and V. Balaratnam - for petitioner. Judgement Order. - This revision petition is filed by accused 1 in C. C. No. 1273/50-51 on the file of the Additional I Class Magistrate of Davanagore. The respondent filed a complaint dated 16-10-50 for taking action against the accused for offences under Ss. 416 and 471, Penal Code., and S. 82, Registration Act. During the progress of the case, on 21-3-1951 the petitioner filed an application in the trial Court under S. 195 (1) (c), Criminal P. C., stating that the complaint is incompetent without the previous sanction of the civil Court before which the offence is said to have been committed under S. 471, Penal Code. It is not disputed that merely a copy of the alleged forged document was produced in this case.

2. Lord Simonds, in a recent case before the Privy Council Sanmukh Singh v. The King, A. I. R. (37) 1950 P. C. 31, has observed as follows: "Section 195 (1) (c) only refers to a document alleged to be forged and not to a copy of it. The reason is that the Court before which a copy of a document is produced is not really in a position to express any opinion upon the genuineness of the original. Though by production of a copy secondary evidence of the contents of a document might be said to be given, the forged document itself cannot be said to be given in evidence.... and in such circumstances the absence of a complaint under S. 195 (1) (c) cannot operate as a bar to the trial of the accused." In a case reported in Emperor v. Mustafa Ali Khan, 2 Cr. L. J. 653 (Oudh) where no original document was produced except a copy of the mortgage deed obtained from the registration department, the defendant did not appear to defend the suit, nor did he produce the original and the suit was decreed ex parte. In criminal proceedings instituted subsequently, it was objected on behalf of the accused that the prosecution could not proceed without the previous sanction of the Court under S. 195 (c), Criminal P. C., it was held that no previous sanction was necessary as the original mortgage-bond had not been produced to enable the Court to determine upon the genuineness or otherwise of the document impeached.

3. In the present case, the defendant consented to the decree with the result that neither the original was produced or acted upon; only a copy of the impugned document was produced and the Court was not in a position to give any decision thereto. In the circumstances no sanction of the Court is necessary.

4. In this view the order of the learned Magistrate rejecting the application and posting the original complaint for evidence is not incorrect. This revision petition fails and is dismissed. Revision dismissed. AIR (38) 1951 MYSORE 118 [C. N. 43.] "Chennegowda v. Venkatachalasetty" MYSORE HIGH COURT Coram : 2 MALLAPPA AND VASUDEVAMURTHY, JJ. ( Division Bench ) Chennegowda - Appellant v. Venkatachalasetty and Others - Respondents Second Appeal No. 15 of 1950-51, D/- 27 -6 -1951. Civil P.C. (5 of 1908), S.11, S.47 and O.21, R.22 - RES JUDICATA - EXECUTION - SALE - Execution proceedings Absence of notice under O.21, R.22 Effect Subsequent notice under O.21, R.66 Execution sale - Application for setting aside sale on ground of want of notice under O.21, R.22 - Maintainability. A failure to issue notice under O. 21, R. 22 goes to the root of the jurisdiction of the executing Court and is fatal to the validity of the sale. Where, however, during the course of further execution the judgment-debtor is served with notice under O. 21, R. 66 and also a notice of assignment of the decree but the judgment debtor fails to take any objection as to want of notice under O. 21, R. 22, it is not open to him subsequently to file an application under S. 47 for setting aside the sale on the ground of want of notice under O. 21, R. 22. 42 Mys. h. C. R. 190, A. i. R. (8) 1921 Lah. 384, A. i. R. (16) 1929 Pat. 79, A. I. R. (18) 1931 Cal. 476 and A. i. R. (26) 1939 Lah. 473, Rel on. (Para 3, 5) Anno, C. P. C., S. 11, N. 23; S. 47, N. 61; O. 21, R. 22, N. 5, 8. Cases Referred : Chronological Paras (31) A. I. R. (18) 1931 Cal. 476 : (131 I. C. 702) 4 (21) A. I. R. (8) 1921 Lah. 384 (55 I. C. 816) 4 (39) A. I. R. (26) 1939 Lah. 473 : I L.R. (1940) Lah. 231 4

42 Mys. h. C. R. 190 3 (29) A. I. R. (16) 1929 Pat. 79 : (7 Pat. 790) 4 (38) A. I. R. (25) 1938 Pat 162 : (174 I. C. 463) 3 U. Krishnamurthy - for Appellant; R. Rangiah - for Respondent 1. Judgement Mallappa, J. :- This is an appeal against an order of the learned Additional Subordinate Judge of Mandya, in Mis. A. No. 2/48-49 setting aside the order of the Munsiff, Mandya, who had dismissed the application in Misc. No. 22/47-48 filed for setting aside a sale held in Execution No. 1117/43-44 on his file.

2. The facts of the case are that a decree was obtained against the petitioner and his brothers in O. S. No. 608/40-41 on the file of the Munsiff, Mandya, and that in execution of the decree the property in dispute was sold on 14-6-45. The sale was confirmed, possession was obtained and the purchaser paid kandayam as well as contribution and water rate for conversion of the dry land into wet land. It is after this that the petitioner, who is one of the judgment debtors, filed Mis. No. 22/47-48 for setting aside the sale on the ground that he had not been served with a notice under Order 21, rule 22, C. P. C It is clear from the records that no such notice was served on him though a notice of that kind was served in person on the eldest brother of the petitioner. A notice was issued to the petitioner to Hoskote where he is said to have been in service but it was returned unserved on the ground that he was not there. No further notice appears to have been taken. There is hardly any doubt that, the failure to issue such a notice is fatal to the validity of a sale. The decision in 24 Mys. L. J. is clear on the point and there are also numerous authorities of other Courts. The above decision of our Court has also been followed in numerous decisions of this Court subsequently.

3. It has, however, to be noticed that the petitioner was served with a notice under O. 91, R. 66, C. P. C. and later on he was also served with a notice of the assignment of the decree. The notices were served on his house on his refusal to receive them. There is not sufficient material for holding that he was not served with these notices, the service of which has been held by the executing Court to be sufficient. This raises an important point of law. It is no doubt true that as observed, by Fazl Ali J. in Brojobala Debi v. Madhusudhan Singh, A. I. R. (25) 1938 Pat. 162: "As the absence of notice under O. 21, R. 22 goes to the root of the jurisdiction of the executing Court, the objection can be taken at any time." This does not however mean that if the judgment-debtor was served with some notices during the course of further execution and was aware of those proceedings and had thus an opportunity to take the objection but failed to do so, it is open to him to stand by, allow all the proceedings to take place and take the objection by filing an application under S. 47, for setting aside the sale on the ground that he was not served with a notice under O. 21, R. 22, C. P. C. That principles of res judicata are applicable even to execution applications is clear from the decision of our High Court in 42 Mys. H. C. R. 190, and it may be deemed that the purpose of a notice under O. 21, R. 22 is served by the judgment-debtor being served with a notice in the execution case before sale.

4. There are a large number of decisions which support the view that a person who was not served with a notice under O. 21, R. 22, C.P.C. but was served subsequently in the execution case and failed to take the objection of his not having been served with notice under O. 21, R. 22 cannot be allowed to take that objection at a later stage. In Kora Lal v. Punjab National Bank Ltd. Multan, A. I. R. (8) 1921 Lah. 384 it was held by Shadilal J.: "Where the Court did issue a notice to the judgment-debtor, though it was issued not under Rule 22 but under Rule 66, and the latter was afforded an opportunity to show cause why the decree should not be executed against him the object aimed at by Rule 22 should be held to be carried out and the mere fact that the notice was not under that rule does not vitiate the proceedings." Fakhrul Islam v. Bhubaneshwari Kuer, A. I. R. (16) 1929 Pat. 79 deals with a case in which the sale held after notice under O. 21, R. 22 was set aside. No further notice under O. 21, R. 22 was issued but after fresh sale proclamation the property was again sold It was held that there was no necessity for taking out fresh notice under O. 21, R. 22 and the sale was not without jurisdiction although it was without service of notice. It was observed that: ... the question as to whether the notice was dispensed with under sub-r. 2 does not arise in the present case, because a notice had actually been issued and although not served, yet the judgment-debtors had notice of the execution and appeared in Court." Again in Chandranath v. Nabadwip Chandra, A. I. R. (18) 1931 Cal. 476 Rankin C. J. with whom Ghose J. agreed observed thus: "Dealing with that kind of objection, the learned Judge Kulwant Sahay J. said:All that O. 21, R. 22 requires is that an opportunity should be given to the judgment-debtors against whom execution is taken out more than a year after the decree to show cause why execution should not proceed. In my judgment, that is the substance and the meaning of the requirement. i do not in any way seek to throw doubt upon the proposition that where such a notice has not issued and the party who is entitled to notice does not in substance get notice and is not given or does not take an opportunity to object to the execution of the decree, the sale which follows will be without jurisdiction in the sense that, even if the sale is to a stranger, the sale will not be binding or valid. The parties in the present case have been litigating actively with each other upon the question whether this execution should proceed and how it should proceed. I have pointed out that, at one stage of the cast, the matter was by agreement referred to a gentleman to report as to the amount of the valuation to be inserted in the proclamation of sale. In the appeal which came previously before this Court, there was an affirmation that the sale was to take place and the proclamation was to issue: It appears to me to be merely piling unreason upon technicality to hold upon the circumstances of this case that it is open to the judgment debtors on these grounds to object to the jurisdiction of the Court because they have not got a formal notice to do something, namely to dispute the execution, of the decree when in point of fact they were busy disputing about it in all the Courts for the last two years. I decline to push the doctrine so far as that and it seems to me that the execution should proceed." Then again in Ladli Pershad v. Chaman Lal, A. I. R. (26) 1939 Lah. 473 it was observed that: "Where notice of the execution proceedings and sale thereunder was issued under O. 21, Rule 66 and the judgment debtor appeared and contested these proceedings, it is unnecessary to give the judgment-debtor notice of proceedings that he was already well aware of and failure to give notice under O. 21 Rule 22 and the omission to record reasons dispensing with this notice is no more than an irregularity which does not take away the jurisdiction of the Court,"

5. It will thus be seen that it is not open to the respondent in this case to take objection that he was not served with the notice under O. 21, R. 22, C. P. C. after having failed to take such objection when he was served with other notices in the execution case.

6. In the result this appeal is allowed, the order of the learned Subordinate Judge is set aside and that of the learned Munsiff restored. The parties will bear their own costs. Appeal allowed. AIR (38) 1951 MYSORE 119 [C. N. 44.] "Hanuma v. Kencha Mariya" MYSORE HIGH COURT Coram : 2 MALLAPPA AND VASUDEVAMURTHY, JJ. ( Division Bench ) Hanuma - Plaintiff - Appellant v. Kencha Mariya and others - Defendants - Respondents. Second Appeal No. 148 of 1948-49, D/- 31 -7 -1951. (A) HINDU LAW - Hindu Law - Alienation - Alienees duty - Must prove legal necessity. In an alienation by the manager of a joint Hindu family the burden is on the alienee to show that the alienation in his favour was for family necessity or benefit. (Para 2) (B) HINDU LAW - Hindu Law - Alienation - Manager - Consent of adult member is necessary. In a joint Hindu family consisting of adults and minors, governed by the Mitakshara Law, express or implied consent, is necessary for an alienation of the joint family property by the manager of the joint family, even if it is for legal necessity or benefit to make the alienation binding on such adult members, though such alienation, if for legal necessity or benefit, is valid us against the minor coparceners : 54 Mys. H. C. R. 371 (F.B.), Rel. on. : Held, there was no such express or implied consent proved in this case and hence the alienation was not binding on the adult son. (Paras 3, 5) Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases).

24 Mys. C. C. R. 376. 3 (49) 54 Mys. H. C. R. 371 (F.B.). 3 (85) 12 Cal. 389. 4 D. Puttaswamy for E. Kanakasabapathy - for Appeltant; V.K. Govindarajulu - for Respondents. Judgement Vasudevamurthy, J. :- The plaintiff and defendant 4 are brothers. On 25-8-1928 they and their father Munidasaiah, now dead, borrowed Rs. 100 from one Siddalingappa and executed a registered hypothecation bond agreeing to pay interest at Rs. 1-4-0 per cent. per mensem and to repay the principal and interest within one year. As security for the debt they mortgaged five items of their joint family properties including the piece of land concerned in this suit. The recital in Ex. I that mortgage deed is that the amount was borrowed for family maintenance. On 18-1-1941 Munidasaiah alone sold the suit item to defendants 1 to 3 in this suit for Rs. 200. The sale was effected by a sale deed Ex. ii in order to pay off the debt borrowed under Ex. i. Defendant 4 attested that document in token of his consent. The plaintiff has brought the present suit for a declaration that the sale of the plaint schedule land by defendant 4 in favour of defendants 1 to 3 does not bind his half share and for partition and mesne profits. Defendants 1 to 3 pleaded that the sale was for legal necessity and for the benefit of the family estate as the plaintiff was also bound to discharge the earlier mortgage debt incurred by him and his father and defendant 4. The learned Munsiff held that though the plaintiff was bound to discharge the debt under the hypothecation deed, Ex. i, the sale was not shown to have been necessary as there was no proof of any pressure on the estate requiring such a sale. He found that the plaintiff could only claim a one-third share in the suit property and made a declaration in favour of the plaintiff, that the sale in favour of defendants 1 to 3 was not binding on the plaintiff and that he could recover his one-third share on payment into Court for payment to defendants 1 to 3 a sum of Rs. 53-12-0 and interest thereon from 16-1-1941 which represented one-third of the amount due under the hypothecation deed on the date of Ex. ii. On appeal, the learned Additional Subordinate Judge reversed that decision. He held that legal necessity for the sale under Ex. ii had been made out and that the act of the father in selling the property to defendants 1 to 3 to discharge the earlier hypothecation debt, which was binding on the family, was the act of a prudent manager. He found that the plaintiff was not in the village and his whereabouts were not known for 8 or 10 years before that sale and that the circumstance that his consent was not taken to the sale could not therefore affect it. He, therefore, dismissed the plaintiffs suit. The plaintiff has come up in second appeal.

2. It is not now disputed that the debt due under Ex. i was for purposes binding on the family of the plaintiff and in any case it was fully binding on the plaintiff as he was a party to that deed. But as regards the sale under Ex. ii, however, it has not been shown that it was necessary or even beneficial to the family. Mr. V. K. Govindarajulu, teamed counsel for the respondents, defendants 1 to 3, has argued that the hypothecation debt was outstanding from 25-8-1928 upto 16-2-1941 without any substantial reduction and that Ex. i - a endorsement of 16-2-1941 on it showed that only a sum of Rs. 17-4-0 had been paid towards that debt upto that date. He urges that by the action of the father in selling this item of property, all the other items of property owned by the family were saved for the family. He also points out that defendant 4, who was the eldest son of Munidasaiah. would not have given his consent to the sale and attested Ex. ii if the sale was not really necessary. These are no doubt relevant considerations bearing on the question but it must be remembered that the burden is upon the alienee in such cases to show that a particular alienation in his favour was for family necessity or benefit. In this case, defendant 1 has totally failed to discharge that burden. The creditor Siddalingappa has not been examined. His evidence would have been valuable to show whether he was pressing Munidasaiah and defendant 4 to pay off the mortgage debt and whether he was threatening to take legal proceedings if they failed to do so. Defendant 1 has not also let in any evidence to show that the other resources of the family was not enough to discharge this debt and that a sale of one of the items was necessary. In the absence of any such evidence it must be held that the learned Munsiffs conclusion in this matter, viz. that there was no necessity for the sale under Ex. ii, must be upheld.

3. Mr. Govindarajulu further contends that the sale by Munidasiah was effected by him as manager of the family and that this is clear by the fact that defendant 4 has not joined him in executing the sale deed but has only attested it. He argues that the powers of a manager to alienate joint family property for purposes of legal necessity are far wider than that of the other members of the family, particularly junior members, and that an alienation by a manager will bind both the minor and adult members of the family provided it is shown that the same was for legal necessity or benefit. There are two decisions of this Court, one in 24 Mys. C. C. R. 376 and the other in 54 Mys. H. C. R. 371, which are against his latter contention. In 24 Mys. C. C. R. 376, it has been held that the question in the case of an alienation, which is sought to bind the adult members of a joint family, is not whether the sale of the same was for the benefit of the family but whether there was an express, or implied consent of such adult member. In 54 Mys. H.C.R. 371 (F.B.), it has been held by a majority of the Full Bench that in a joint Hindu family consisting of adults and minors, governed by the Mitakshara law, express or implied consent of the adult members capable of giving consent, is necessary for an alienation of the joint family property by the manager of the joint family, even if it is for legal necessity or benefit, to make the alienation binding on such adult members, though such alienation, if for legal necessity or benefit, is valid as against the minor coparceners.

4. Mr. Govindarajulu, however, contends that there are some observations in the decision of the Full Bench case which help him in this case to say that there has been an express or implied consent of the plaintiff for the sale. It has been observed in that case at page 421. "This does not necessarily mean that the consent in the case of adult coparceners should always be express. The manager may find it necessary to alienate immovable property in the interest of the family or to avoid a calamity when other coparceners are seriously ill or happen to be in a distant place. In such cases it may be possible to hold, taking all other circumstances into consideration, that the alienation for legal necessity is with the implied consent of the adult coparceners. It is true that as observed by Mitter J. in Miller v. Runga Nath Maulick, (1885) 12 Cal. 389, the consent of members of the family other than the manager must be taken as implied as they in entrusting the management of family affairs in the hands of the manager, must be presumed to have delegated to the said manager the power of pleading the family credit or estate, where it is impossible or extremely inconvenient for the purpose of efficient management of the estate to consult them, and obtain their consent before pledging such credit or estate....."

5. Mr. Govindarajulu contends on the basis of these observations in the Full Bench case that in the present case the implied consent of the plaintiff for the sale must be presumed. It is, however, seen that even in the written statement of defendants 1 to 3 no such implied consent has been pleaded, the defendants being content merely with saying that the plaintiff was aware that the sale was for the benefit of the family, that is to discharge the prior mortgage debt which he was bound to discharge. Defendant 4 has not also stated that there was any implied consent on the part of the plaintiff, much less express consent; and defendant 1 has expressly admitted that the plaintiff did not know about the sale at that time, but that he might have known it subsequently as he was at Bangalore at that time since about 10 or 12 years. This is not a case in which the plaintiff was in a far off place. The village of the parties is about 20 miles from Bangalore and it cannot be said fiat it was impossible to get into touch with the plaintiff and secure his consent. It is not also shown in this case that the plaintiff had left the management of the joint family properties entirely to his father and had left for a distant place to enable the Court to presume any implied consent on his part for the sale. Even defendant 1 was aware that the consent of an adult son was necessary as he has secured the attestation of defendant 4 to the sale deed. While defendant 1 and his witnesses have stated that the plaintiff was in Bangalore at the time of the sale, there is no evidence worth considering in this case that his whereabouts in Bangalore were unknown to his family and that it was impossible to secure his express consent to enable defendant 1 to rely upon any implied consent on his part, In these circumstances, it must be held that there was neither express nor implied consent for the sale under Ex. II. The judgment and decree of the learned Subordinate Judge cannot, therefore, be supported.

6. In the result this appeal is allowed, the judgment and decree of the learned Subordinate Judge are set aside and those of the learned Munsiff restored. It is seen that the plaintiff claimed a half share in the suit land though he was really entitled to one-third and suppressed in the plaint the existence of the earlier hypothecation debt which was binding on him and which formed the consideration for the sale. Therefore the proper order to make as regards costs in this case is that the parties should bear their own costs throughout and it is ordered accordingly. Appeal allowed. AIR (38) 1951 MYSORE 121 [C. N. 45] "Srinivasiah v. Govt. of Mysore" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) D. Srinivasiah and others - Accused - Petitioners v. Government of Mysore. Criminal Revn. Petn. No. 401 of 1950-51, D/- 27 -6 -1951. Penal Code (45 of 1860), S.188 - CONTEMPT OF LAWFUL AUTHORITY - EVIDENCE - Essentials under - No evidence of causing obstruction, annoyance or injury - Validity of conviction. Section 188, I. P. C. requires four ingredients: (1) there must be an order promulgated by a public servant, (2) the public servant must have been lawfully empowered to promulgate such order, (3) a person must disobey such an order and (4) such disobedience must cause or tend to cause obstruction, annoyance or injury, or risk of it, to any person lawfully employed, or danger to human life, health or safety, or a riot or affray. Where, therefore, there is no evidence to show that the disobedience tended to cause obstruction, annoyance or injury or risk of obstruction, annoyance or injury to any person lawfully employed there can be no conviction for an offence under S. 188, I. P. C: Case law referred (Para 4) Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases). (1900) 4 Cal. W. N. 226 5 (30) A. I. R. (17) (1930) Cal. 130 : (31 Cri. L. Jour 771). 5 (31) A. I. R. (18) 1931 Cal. 122 : (32 Cri. L. Jour 511). 5 (49) 4 d. L. R. (Cal.) 267 : (A. I. R. (36) 1949 Cal. 677: 51 Cri. L Jour 59). 5 (28) 109 Ind. Cas. 606. (A. I. R. (15) 1928 Mad. 591 : 29 Cri L. Jour 590). 5 (34) 148 Ind. Cas. 518 : (A. I. R. (21) 1934 Oudh 162 : 35 Cri. L. Jour. 699). 5

L. Krishnamurthy - for Petitioners; Advocate-General - for the Govt. of Mysore. Judgement Order. - This is a revision petition against the judgment in Criminal Appeal No. 233 of 50-51, on the file of the Sessions Judge, Bangalore, confirming the conviction and sentence passed by the City Magistrate, Bangalore, in C. C. No. 1672/50-51 under s. 188, I. P. C. and sentencing the petitioners-accused to undergo simple imprisonment for 7 days.

2. The case against the petitioners is that the District Magistrate, Bangalore, issued a prohibitory order under S. 144, Cr. P. C., on 3-10-1950 prohibiting the assemblages and processions of more than 5 persons and all demonstrations shouting of slogans etc., for a period of 15 days within the limits of the City of Bangalore Municipal Corporation, and that the petitioners went in a procession defying the prohibitory order and as such the Police arrested the petitioners and placed a charge sheet for an offence under S. 188, I. P. C.

3. The learned Magistrate convicted the accused petitioners and the conviction has been upheld in appeal by the learned Sessions Judge. According to the learned Sessions Judge, the evidence clearly shows that the disobedience, though it did not cause any annoyance or obstruction was actually tending to cause such obstruction or annoyance as has been referred to in the section. He does not state what that evidence is or to whom there was obstruction or annoyance. The learned Magistrate no doubt says that there was likelihood of trouble, that the District Magistrate passed an order on 3-10-1950 to prevent breach of peace and that about 200 persons including the petitioner accused went in a procession shouting slogans in defiance of that order for a distance of -ths of a furlong before they were arrested. Prom this he concluded: "It is clear from the evidence that there was a prohibitory order in force and that the accused disobeyed the same. Hence, I find all the accused guilty of an offence under S. 188, I. P. C." He has not applied his mind as to whether any further ingredients were necessary for convicting the accused. The learned Sessions Judge had no material either to come to the conclusion that the behaviour of the accused tended to cause obstruction annoyance etc. to any person.

4. It will be noticed that S. 188, I. P. C. requires four ingredients: (1) there must be an order promulgated by a public servant, (2) the public servant must have been lawfully empowered to promulgate such order, (3) a person must disobey such an order and (4) such disobedience must cause or tend to cause obstruction, annoyance, or injury, or risk of it, to any person lawfully employed, or danger to human life, health or safety, or a riot or affray. In this case, there is evidence to satisfy the first three ingredients. Evidently there was an order duly promulgated by an Officer duly empowered to do so and the accused knowingly disobeyed it. However, before the accused could be convicted of an offence under S. 188, I. P. C., it must be shown that their disobedience caused or tended to cause obstruction, annoyance or injury etc., as stated in the section itself. There is no evidence to show that the disobedience tended to cause obstruction annoyance or injury or risk of obstruction, annoyance or injury to any person lawfully employed as was argued.

5. As observed in Brojo Nath v. Empress, 4 Cal. W. N. 226, by Prinsep and Hill JJ., "A conviction under S. 188, I. P. C., for the disobedience of an order under S. 144, Cr. P. C. in the absence of evidence as to the likely result of the disobedience of such order is bad in law." In the decision reported in Osman Gani v. Emperor, A I. R. (17) 1930 Cal 130, where Patterson J. agreed with Rankin C. J., it is observed, that: "It has to be proved that the accused not merely disobeyed the lawful order but that the act of disobedience was such as caused or involved the risk of a breach of the peace or other danger or trouble" to support a conviction under S. 188, I. P. C. The decision in Mt. Lachmi Devi v. Emperor, A. I. R. (18) 1931 Cal. 122 is also that of Rankin C. J., with whom Malik J agreed entirely and it was held that : "Under S. 188 mere disobedience of an order does not constitute an offence in itself. There must be a disobedience of the order and then it must be shown that the disobedience has a certain consequence or tends to somersault". Sitting in revision Devadoss J. held in the case reported in Paramasiva Mooppan v. Emperor, 109 Ind. Cas 606 (Mad.) that: "In order to justify a conviction under S. 188, Penal Code, for disobedience of a lawfully promulgated order of a Magistrate, there must be a finding that the presence of the accused was likely to cause or tended to cause obstruction, annoyance or injury or risk of obstruction, annoyance or injury to any person or any one of the things mentioned in Cl. (3) of the section." The same view is taken by Sen J. in the case reported in The King v Darbarilal Shaw, 4 D. L. R. (Cal.) 267. The decision in Emperor v. Niazu Khan, 148 Ind. Cas. 518 (Oudh) is relied on as against the above decisions but I do not think that there is anything in this decision that is really opposed to the observations referred to in the above decisions. The revision petition is, therefore, allowed. The conviction and sentence are set aside. Revision allowed. AIR (38) 1951 MYSORE 122 [C. N. 46.] "Basapva v. Nanjamma" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Basapva - Plaintiff-Appellant v. Nanjamma - Defendant - Respondent. Appeal No. 272 of 1950-51, D/- 17 -8 -1951. Civil P.C. (5 of 1908), O.38, R.5 - ATTACHMENT - Attachment before judgment - When can be ordered. Attachment before judgment is an extraordinary remedy which should be granted with due circumspection and only in those cases in which there is the most perfect good faith on the part of the plaintiff. Rule 5 of O. 38 lays down two conditions which are both indispensable first that the defendant is about to dispose of the whole or any part of his property from the local limits of the jurisdiction of the Court; secondly, that this has been done with intent to obstruct or delay the execution of any decree that may be passed against him: 27 Mys. H. C. R. 29 and 13 Mys. L. J. 143, Rel. on. (Para 4) Where there is no allegation on the part of the defendant to obstruct or delay execution in the affidavit of plaintiff in support of his application for attachment before judgment and the defendant in his counter affidavit states that he has no such intention, no case is made for issuing an order of attachment under O. 38, R. 5, Civil P. C. (Para 5) Anno. Civil P. C., O. 38, R. 5, N. 2, 4. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases).

27 Mys H. C. R. 29. 4

3 Mys. L. J. 143 4

13 Mys. L. J. 143. 3 (24) A.I R. (11) 1924 Pat. 312 : (73 Ind. Cas. 721). 3 M.K. Srinivasa Iyengar - for Appellant; C. Nagaraja Rao - for Respondent. Judgement Order. - This is an application under O. 38, R. 5, read with Ss. 107 and 151, Criminal P. C., for attachment before judgment of the properties described in the schedule, on the ground that the respondent-defendant is about to dispose of the properties and that her doing so will leave the plaintiff-appellant without any adequate means of recovering the decree amount in case he obtains a decree in this Court. An affidavit has been filed by the applicant and in the first portion of it he sets out under what circumstances he had got the properties attached in the lower Court. The suit was later dismissed and the order of attachment of that Court has come to an end.

2. The point for consideration is whether there is now any reason for attaching before judgment the properties of the defendant. As stated in O. 38, R. 5, the Court must be satisfied by affidavit or otherwise, first, that the defendant is about to dispose of the whole or any part of his property or that he is about to remove the whole or any part of the property from the local limits of the jurisdiction of the Court and secondly that his doing so is with intent to obstruct or delay the execution of any decree that may be passed against him. In the affidavit the plaintiff-appellant states, no doubt, that the respondent-defendant has been making preparations to sell away the properties. He has also stated that if the defendant does so, it will make it impossible for him (plaintiff-appellant) to recover any portion of the decree. Assuming what is stated in the petition in true, it is clear that it is nowhere stated that the intention of the defendant-respondent in selling away the property is to obstruct or delay the execution of any decree that may be passed against her. It is one thing to say that the selling away of the property would result in the obstruction or delay of the execution proceedings, and it is another thing to say that that result was intended. What is required under R. 5 of O. 38 is that the disposal of the property should be with the intention of obstructing or delaying the execution of any decree that may be passed against the defendant. Since there is no such allegation in the affidavit it is clear that, even if what is stated in the affidavit is true, it cannot be said that the Court has material to feel satisfied that the requirements of the section for attaching the properties before judgment are fulfilled.

3. The next point that has to be noticed is that a mere vague statement in an affidavit that the defendant is about to dispose of the property is not sufficient Full particulars as to what made the plaintiff think that the defendant is about to dispose of his properties and how the plaintiff-appellant came to know of them must be furnished. It is not uncommon for the lower Courts to attach immovable properties before judgment as a matter of course. This is not correct. Referring to the decisions of the Patna High Court, it has been observed in 13 Mys. L. J. 143 as follows: "In a later case, the same High Court has laid down that the power to attach is not to be exercised lightly or without clear proof of the existence of the mischief aimed at in the rule. To attach a defendants property before his liability has been established by a decree may have the effect of seriously embarrassing him in the conduct of his defence. This power should be exercised only when the Court is satisfied not only that the defendant is about to dispose of his property or to remove it from the jurisdiction of the Court, but also his object in so doing is to obstruct or delay the execution of any decree that may be passed against him and so deprive the plaintiff if successful, of the fruits of victory. Chandrika Pershad v. Hira Lal, A. I. R. (11) 1924 Pat. 312."

4. Then again, as observed in 27 Mys. H. C. R. 29 : "Attachment before judgment is an extraordinary remedy which should be granted with due circumspection and only in those cases in which there is the most perfect good faith on the part of the plaintiff. Rule 5 of O. 38 lays down two conditions which are both indispensable, first that the defendant is about to dispose of the whole or any part of his property from the local limits of the jurisdiction of the Court, secondly, that this has been done with intent to obstruct or delay the execution of any decree that may be passed against him. The fact that the defendants are involved in circumstances with suits (not being collusive ones) pending against them for the recovery of heavy sums is not equivalent to an attempt on their part to dispose of property." Moreover, in this case, the defendant-respondent has filed an affidavit saying that she has no intention of. alienating the properties at all. Normally that should be sufficient to meet vague allegations made by the applicant. This aspect of the matter is also supported by a decision reported in 3 Mys. L. j. R. 143.

5. On the whole, this is not a case in which it can be said that there is material for the Court to feel satisfied that the defendant-respondent is about to dispose of the whole or any part of her property and that she is doing so with the intention of obstructing or delaying the execution of any decree that may be passed against her. The application under O. 38, R. 5 read with Ss. 107 and 151, Civil P. C. stands dismissed, and the interim order of attachment is vacated. Application dismissed. AIR (38) 1951 MYSORE 124 [C. N. 47.] "Anke Gowda v. Fatima Khatum" MYSORE HIGH COURT Coram : 1 VASUDEVAMURTHY, J. ( Single Bench ) Anke Gowda, Petitioner v. Fatima Khatum and others - Respondents. Civil Revn. Petn. No. 310 of 1949-50, D/- 26 -3 -1951. Civil P.C. (5 of 1908), O.21, R.89 - SALE - Less any amount received" - Actual receipt by d. h. necessary. For the purpose of allowing the applicant to deduct from the amount to be deposited in Court, the amounts received by the d. h. since the sale proclamation, R. 89 contemplates the actual receipt of the amount by the d. h. and a mere payment into Court of the sale proceeds of other items sold under the decree will not satisfy the requirements of the rule. The applicant cannot take credit for any amount paid by co-judgment-debtors who have not joined him in the application and such credit could be taken only for any amount that may have been actually or constructively received by the D. H. and not for sum which having been deposited could have been received by him had he been minded so to do: Case law discussed. (Paras 3, 5) Anno. Civil P. C., O. 21 R. 89 N. 22. Cases Referred : Chronological Paras (Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases). (30) A. I. R. (17) 1930 All. 843 : (53 All. 152.) 4 (33) A. I. R. (20) 1933 All. 155 : (55 All. 123.) 4 (99) 23 Bom. 723 : (1 Bom. L. R. 215) 3 (23) A. I. R. (10) 1923 Bom. 299 (2): (73 Ind. Cas. 454). 3 (97) 1 Cal. w. N. 703. 3, 4 (16) 39 Mad. 429 : (a. I. R. (3) 1916 Mad. 717). 3, 4 (22) A. I. R, (9) 1922 Mad. 54 (1) : (65 Ind. Cas. 983). 3, 4 (33) A. I. R. (20) 1933 Mad. 54 : (140 Ind. Cas. 582). 4

3 Mys. L. Jour. 254. 3 M.P. Somasekhara Rao - for Petitioner: C.N. Ramaswamy Sastry - for Respondent No. 12. Judgement Order. - This revision petition has been filed by judgment-debtor 7 against the order of the Additional Subordinate Judge, Bangalore, confirming that of the Munsiff, Ramanagaram, rejecting an application made by him under O. 21, R. 89 of the Civil Procedure Code. The facts leading up to the petition are: four items of immovable property were brought to sale by the decree-holders in execution of their mortgage decree. The petitioner who was an alienee of item 1 was defendant 7 in the case. All the four items, were ordered to be sold on 17-5-1949. Before the sale the petitioner filed an application and obtained an order that items 2 to 4 of the mortgaged properties might be sold in the first instance, and for the balance of the decree amount, if any, item 1 in which he was interested might then be sold. Accordingly on the same day items 2 to 4 were sold in the first instance for Rs. 320 in the aggregate and item 1 was sold later for Rs. 410. The amount mentioned in the sale proclamation was Rs. 708-5-0. Respondent 12 purchased all the properties in the court sale held on 17-5-49. On 14-6-49 the petitioner filed an application for cancellation of the sale only of item 1 after depositing into Court Bs 410 being the price which it had fetched at the sale plus Rs. 21-4-0 being 5% of that purchase money. That application was dismissed by both the Munsiff and the Subordinate Judge. Hence this revision.

2. Mr. M. P. Somasekhara Rau, learned counsel for the petitioner, contends that the deposit which has been made by the petitioner is quite sufficient for the purposes of O. 21, R. 89, Civil P. C., to set aside the sale of item 1. He argues that the amount for which the other items were sold had already been deposited in Court by the purchaser and as the sales of those items had not been questioned by anybody those sales were bound to be confirmed and the purchase money of those items was bound to be paid to the decree-holders and was as a matter of fact paid to the decree holders after those sales were formally confirmed. There is no doubt that those amounts together with the amount deposited by the petitioner are quite sufficient to cover the amounts required under O. 21, R. 89, Civil P. C. But the question is as to whether the petitioner has complied with the conditions imposed on him under O. 21, R. 89 to obtain the benefit of that provision.

3. The relief to be granted under O. 21, R. 89 is in the nature of a special indulgence and there is no doubt that the person seeking such indulgence should strictly conform to its requirements; see 3 Mys. L. Jour. 254. Order 21, R. 89 requires that the person applying to have the sale set aside under that rule should deposit in Court for payment to the purchaser a sum equal to 5% of the purchase money and for payment to the decree holder an amount specified in the proclamation of sale, less any amount which may since the date of proclamation of sale have been received by the decree-holder. The short point for decision in this case is whether it could be said that the decree-holders have since the date of proclamation of sale received the amount which had been brought into Court as a result of the sale of the other items. On the plain reading of the section, that contention does not appear to be reasonable. It has been held so far back as in 1899 in 23 Bom. 723, where the facts were similar to those of the present case, that the mere payment of the sale-proceeds into Court was not a sufficient compliance with the requirements of S. 310 (a), Civil P. C. (corresponding to r. 89 of O. 21) and as it had not been shown that the sale-proceeds had been received by the decree-holder the sale could not be set aside. It was observed that the rule contemplates the actual receipt of the amount by the decree-holder and that a mere payment of the sale proceeds into Court does not satisfy the requirements of the section. That case has been followed in Totaram v. Chhotu, a. I. r. (10) 1923 Bom. 299 (2) where Macleod C. j. and Crump J. held that as long as the legislature had decided that only money received by the decree-holder can be taken into account, the Court cannot say that money paid into Court and not put into the pocket of the decree-holder is money received by him. In Karunakara Menon v. Krishna Menon, 39 Mad. 429, where 23 Bom. 723 and Kripa Nath Pal v. Ram Lakshmi Dasya, 1 Cal. w. n. 703 were followed, it was pointed out that o. 21, r. 89, Civil P. C. is in the nature of an indulgence to the judgment-debtors and that its provisions should strictly be complied with, and the applicant cannot take credit for any amounts paid by co-judgment-debtors who have not joined him in the application and that such credit could be taken only for any amount that may have been actually or constructively received by the decree-holder and not for sums which having been deposited could have been received by him had he been minded so to do. This case has been followed in K. Subbayyar v. Muthayyar, a. I. r. (9) 1922 Mad 51 (1).

4. Mr. Somasekhara Rau has, however, referred to and relied on some other cases which, according to him, are more applicable to the facts of the present case but they are easily distinguishable a. I. r. 1926 Mad. 765 was a case in which a decree had been passed against two different persons separately, each person being only liable to the extent of the decree passed against him. It was, therefore, held in that case that if the applicants property is sold to satisfy the decree, he could have the sale set aside by paying the amount due from him alone. 39 Mad. 429 was distinguished on facts and it was observed that when there is a specific mention in the proclamation of sale that certain amount only is realizable by the sale of certain items, it could not reasonably be contended that in order to redeem those items only the whole of the decree amount should be paid. In Panna Lal v. Bhola Nath, a. I. R. (17) 1930 all. 843 several properties were sold in execution of a mortgage decree in separate lots to different purchasers. One of the judgment-debtors who was interested in only one of the items deposited the amount for which that item had been sold plus 5 per cent thereon. It was held that the same was a good deposit within the meaning of o. 21, r. 89, Civil P. C. It has to be noticed that in that judgment no reference is made to any previously decided cases of other High Courts and the decision appears to have been mainly, if not wholly, based on the circumstance that the decree-holder was reported to have withdrawn the money fetched at the auction sale in full satisfaction of the decree. This decision has been distinguished in Mannu Naik v. Mathura Prasad, a. I. r. (20) 1933 all. 155. In that case Sulaiman C. J. and Kisch J. held that in order to avail himself of the provisions of r. 89 of o. 21 a judgment-debtor must comply strictly with its provisions and that the only amount which he need not deposit is the sum Which had been received by the decree-holder between the date of the proclamation and the date of the deposit, or at any rate, before the expiry of 30 days from the date of sale. In that case also several items of property were sold on the same date in separate lots and purchased by different auction-purchasers. An application was made under O. 21, R. 89 for the setting aside of the sale of one of the items and the applicant deposited only the amount for which it had been sold plus the penalty of 5% but not the whole of the decree amount for which the properties had been put up for sale. It was there held that the decree-holder cannot be deemed to have received the amount deposited by the auction-purchasers before the sale had been actually confirmed merely because it had been deposited to his credit. Referring to a. I. r. (17) 1930 all. 843 their Lordships observed that "presumably" the facts before their Lordships who decided a. I. r. (17) 1930 all. 843 were distinguishable from those of 1 Cal. w. N. 703 and a. I. r. (9) 1922 Mad. 54 (1) and was based on certain statements made before them at the Bar that the decree-holder had withdrawn the money as stated above. They further go on to say that if the learned Judges meant to lay down that the withdrawal of the money by the decree-holder after the expiry of 30 days would fulfil the requirements of the rule, we regret we are unable to agree with that view. The judgment-debtor can take advantage of the provisions of o. 21 R. 89 if he deposits the whole of the amount for which the property had been ordered to be sold minus what had been received by the decree-holder before the expiry of the prescribed time." In Raja Gopala Ayyar v. Adinarayana Chettiar, a. I. R. (20) 1933 Mad. 54 also which is another case relied on for the petitioner, the facts were different, as the liability of the applicants share in the property sold was held to be sufficiently defined in the decree itself to enable him to apply under the proviso to r. 89 of o. 21. In that case Venkatasubba Rao J. found that the applicant could seek the assistance of the proviso to r. 89 which was added by way of an amendment to that rule in Madras and which provides that where the immoveable properties sold are liable for the discharge of a portion only of the decree debt, the payment under cl.. (b) of the rule need not exceed such amount as under the decree the owner of the property is liable to pay. Reilly J. who agreed with him also based his decision on the effect of the new proviso and observed that the share of the applicant was liable at the time it was put up for sale for a determined part of the decree debt and therefore in consequence of the "curious way in which the decree was framed, the applicant was "fortunately for himself" able to come within the meaning of the proviso.

5. The petitioner has, in my opinion, failed to comply with the requirements of r. 89 of o. 21. He has not deposited into Court all the amounts required of him under that rule as it cannot be said that the decree-holders had since the date of the proclamation received the amounts which had been brought into Court as a result of the sale of the other items. The sale of item 1 in which he is interested cannot therefore be set aside.

6. The learned counsel for the petitioner also seeks to rely on the new r. 5 under o. 34. But it has clearly no application as the full decree amount plus 5% has not been deposited by the julgment-debtors, including the petitioner, who are all jointly and severally liable under the decree.

7. In the result I see no reason to interfere with the orders of the Courts below. This revision petition is therefore dismissed. No costs. Revision dismissed. AIR (38) 1951 MYSORE 126 [C. N. 48.) "Narayana Rao v. Karibasappa" MYSORE HIGH COURT Coram : 2 MEDAPA, C.J. AND VASUDEVAMURTHY, J. ( Division Bench ) C. D. Narayana Rao - Plaintiff - Appellant v. Karibasappa and others - Defendants - Respondents. Appeal No. 126 of 1948-49, D/- 5 -7 -1951. (A) Registration Act (16 of 1908), S.17, S.49 - DOCUMENTS - PARTITION - Partition - Palpatti in Mysore - Registration - Use of for showing nature of possession. The palpatti does not really evidence a partition which was made under it but merely is a record of a previous partition and in any event it can be used for the collateral purpose of showing the nature or origin of possession of a party though it may be inadmissible for want of registration. 39 My. h. C. R. 813, Rel. on. (Para 4) Anno. Reg. Act, s. 17, n. 81; s. 49, n. 29. (B) Transfer of Property Act (4 of 1882) - CONTRACT - Retrospective effect can be given to s.53-a. 51 Mys. h. C. R. 148 (F. B.) held no longer good law. A. I. R. (37) 1950 S. C. 1, Rel. on. (Para. 5) Anno. T. P. Act, S. 53a, N. 5. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases). (50) 1950 s. C. J. 317 : (A. I. R. (37) 1950 S. C. 1.) 6

39 Mys. h. C. R. 813 : 12 Mys. L. j. 236. 4

51 Mys. h. C. R. 148 (F. B.) 5 H. Lakshmanaswamy - for Appellant. V. Krishnamurthy - for Respondents Nos. 3 and 4. Judgement Vasudevamurthy, J. :- The plaintiffs suit for declaration of his title to and possession of a house in Chamarajanagar has been dismissed by the Subordinate Judge, Mysore, and he has come up in appeal. His case is that the site on which the house is built belonged to a Bank in Chamarajanagar now in liquidation and was sold to defendant 1 for Rs. 100 on 25-11-1934; that thereafter defendant 2 constructed the house on the site about 12 years before suit for and on behalf of defendant 1; that defendant 2 was leasing it out to several lessees and that defendant 5 is one of such lessees having entered into possession under a lease deed dated 22-11-1943 Defendant 1 is said to have sold the house to the plaintiff by a sale deed dated 15-3-1947 for Rs. 4,000 and he was compelled to bring this suit as defendant 5 set up title in the house in defendant 4 and is resisting his claim.

2. Defendants 1 and 2 have remained ex parte. Defendant 4 claims to have purchased the property from defendant 3 and leased it to defendant 5. Defendant 3 has pleaded that defendant 2 was his certificated guardian appointed by the District Court, Mysore, that after he attained majority defendant 2 did not furnish accounts to the Court or to himself and, as he was likely to be prosecuted there was a panchayati when the elder brother of defendant 1 and one Sahukar Basavannadevaru of Memballi interceded and at the panchayati it was decided that certain properties including the suit house which had been wrongfully acquired by defendants 1 and 2 out of the minors estate or from its help should be delivered over to defendant 3 and that they should each retain some other items as a kind of division of the properties movable and immovable which had been acquired with the aid of defendant 3s estate during his minority.

3. The learned Subordinate Judge held that the case setup by the defendants is true and that the plaintiff had not also made out that he had paid consideration for his Bale and was not a bona fide purchaser.

4. It is contended before us by Mr. H. Lakshmanaswamy learned counsel for the appellant, that the partition arrangement relied on by defendant 3 has not been established and that Ex. IX which is termed a palpatti evidencing that division is inadmissible in evidence. The learned Judge has held, and we are inclined to agree with him, that the palpatti does not really evidence a partition which was made under it but merely is a record of a previous partition and that in any event it could be used for the collateral purpose of showing the nature or origin of possession of defendant 3. In this he is fully supported by a decision of this Court in 39 Mys. h. C. R. 813: 12 My L. J. 236 where it has been held that an instrument of partition though inadmissible for want of registration may be received in evidence as a division of status, that such an instrument is also admissible in evidence to prove the nature of possession of the properties comprised therein, that where such a deed is inadmissible for want of registration the parties are not precluded by S. 91 of the Evidence Act from adducing oral evidence of the division. Moreover, Ex. ix appears to be more in the nature of an acknowledgment or receipt by the three parties concerned under it, viz., defendants 1 to 3 that they had taken to their custody the properties which had been allotted to each of them by the panchayatdars and is addressed to M. S. Basavannadevaru. It does not even purport to be executed by and between the parties and merely purports to give descriptions of the properties which have been taken by each of them.

5. Mr. Krishnamurthi, learned counsel for the 3rd respondent, has argued that in any event his client rely upon the doctrine of part performance embodied in s. 53 A of the Transfer of Property Act to save his possession; and he relies upon a decision in Maneklal v. Hormusji Jamsedji Ginwala and Sons. 1950 s. C. j. 317 where it has been held that retrospective effect can be given to that section. No doubt, in Mysore we have a decision in 51 Mys. h. C. R. 148 (F. b.) to the contrary. But after the Constitution has come into force, by virtue of Art. 141 of the Constitution, the law declared by the Supreme Court is to be the law binding on all Courts in the territory of India and it must, therefore, be held that 51 Mys. h. C. R. 148 (f. b) has ceased to have any force as it is contrary to the decision of the Supreme Court. (After discussing the evidence the judgment proceeded.) The learned Subordinate Judge has discussed the oral and documentary evidence fully in his judgment and it does not appear to be necessary to repeat the reasons he has given for holding that the plaintiff has not made out his case.

6. There is, however, one small matter which has been pressed before us by the appellant. One of the items included in the schedule of costs annexed to the decree of the lower Court as payable by the plaintiff to defendants 3 and 4 is a sum of Rs. 690-4-0 which was collected there by way of duty and penalty on Ex. ix. This is clearly not proper. The plaintiff was no party to that document and was in no way responsible for paying the stamp duty or the penalty for its non-payment. Under S. 29, Mysore Stamp Act, in the case of an instrument of partition the expense of providing the proper stamp is to be borne by the parties thereto in proportion to their respective shares in the whole property partitioned. The liability to make good the duty and penalty on Ex. ix is therefore on defendants 1, 2 and 3. Defendants 3 and 4 can therefore recover from defendants 1 and 2 only the portion of the duty and penalty properly payable by the latter under S. 29. It is represented that subsequent to the passing of the judgment of the lower Court defendant 3 has by means of an application to the Deputy Commissioner got the penalty reduced to some extent. It is of course that reduced amount which will have to be taken into account in assessing the individual liabilities of defendants 1, 2 and 3. The item of Rs. 690-4-0 will therefore be omitted from the schedule of costs as an item recoverable from the plaintiff and there will be a direction in the decree that defendants 3 and 4, or such of them as may be entitled, may recover the shares of duty and penalty payable by defendants 1 and 2 and that the same will be determined on the execution side.

8. For the above reasons we think that the decision of the learned. Subordinate Judge is correct. We accordingly confirm his judgment and decree subject to this slight modification as above and dismiss this appeal with costs. Appeal dismissed. AIR (38) 1951 MYSORE 127 (C. N. 49) "Vedantha v. Marigowda" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) A. N. Vedantha Iyengar, Accused No. 2, Petitioner v. H. S. Marigowda, Complainant; Respondent. Criminal Revn. Petn. No. 334 of 1950-51, D/- 7 -2 -1951. (A) Criminal P.C. (5 of 1898), S.192, S.202 - MAGISTRATE - ISSUE OF PROCESS - WORDS AND PHRASES - Enquiry - Meaning of - Transfer after stage of preliminary enquiry. The termenquiry in S. 192 is interpreted to refer to such enquiries as are held under Chapter VIII, XII and XVIII, and does not include theenquiry contemplated under S. 202 the scope of which is limited to the purpose of ascertaining the truth or falsehood of a complaint, with a view to take action under S. 203. When it could be gathered from the circumstances that the action taken by the Magistrate who transferred the case under S. 192 gives rise to the indication that the stage for the preliminary enquiry under S. 202 had passed, the Magistrate to whom the case was transferred ceased to have jurisdiction for making enquiry under S. 202, and he was bound to proceed under S. 204. AIR (28) 1941, Cal 185 and A I R (29) 1942 Mad 426, Rel. on. (Para 4) Anno: Cr. P. C., S. 192, N. 3, S. 202, N. 8. (B) Criminal P.C. (5 of 1898), S.202, S.203 - ISSUE OF PROCESS - DISMISSAL - COMPLAINT - Opportunity to complainant to substantiate allegations. Despite the duty cast upon the Court to protects the accused, ordinarily it will not be justified in throwing out a complaint without giving an opportunity to the complainant to substantiate his allegations. (Para 3) Anno. Cr. P. C., S. 202, N. 14, 15; S. 203, N. 5. Cases Referred : Chronological Paras(Arranged in order of Courts, and in the Courts chronologically. List of foreign cases referred to comes after the Indian Cases.) (41) AIR (28) 1941 Cal 185 : (42 Cri L Jour 490) 4 (02) 25 Mad 545: (12 Mad L Jour 280) 3 (42) AIR (29) 1942 Mad 426 : (43 Cri L Jour 670) 4 (31) AIR (18) 1931 Sind 113 : (32 Cri L Jour 926) 3 S.K. Venkataranga Iyengar, for Petitioner. Judgement ORDER: This is an application to revise the order of the District Magistrate of Chickmagalur passed in Cr. R. P. No. 3 of 1950-51.

2. The facts leading to the case, briefly stated, are as under : One Marigowda filed a complaint on 30-12-1949 before the District Magistrate for assault in an attempt to extract a bribe of Rs. 300/-against a police constable and a Sub-Inspector, the petitioner before this Court. The District Magistrate took cognizance of the case and recorded the sworn statement of the complainant. As per the request in para. 12 of the complaint petition to direct the medical authorities to examine the complainant as they were alleged to have declined to issue a medical certificate, a direction was sent to examine the complainant which was done on 30-12-1949 and a medical certificate regarding the injuries said to have been sustained by the complainant was produced before the District Magistrate on 3-1-1950. Thereupon, the District Magistrate acting under Section 192 of the Code of Criminal Procedure transferred the complaint petition along with the medical certificate to the Special First Class Magistrate, Chickmagalurfor disposal according to law. The said records reached the trial Magistrate on 8-1-1950. On 17-1-1950, the Special Magistrate directed notice to the complainant. On 25-2-1950, he further examined the complaint and directed him to produce witnesses for a preliminary enquiry under Section 202, Criminal Procedure Code, to ascertain the truth or falsehood of the complaint and ultimately dismissed the complaint petition under Section 203 for the reason that there were not sufficient grounds to proceed with the trial. In the revision petition against that Order, the District Magistrate reversed the order of dismissal of the trial Court and directed the case to be re-taken to the file for disposal according to law.

3. The case was evidently transferredfor disposal according to law after recording the sworn statement of the complainant by the District Magistrate; it was unnecessary for the Special Magistrate to have examined the complainant again, and having done so, the Special Magistrate could have proceeded under Section 204, Criminal Procedure Code, but instead, he himself conducted a preliminary enquiry under Section 202, Criminal Procedure Code. The Special Magistrate may, if he thinks fit for reasons to be recorded in writing, postpone the issue of process and direct an enquiry for ascertaining the truth or falsehood of the complaint; but he is bound to record his reasons in writing for doing so. Admittedly, he has not done so in this case. It is argued that failure on the part of the Special Magistrate to record reasons under Section 202 is at the most an irregularity which does not vitiate the proceedings, unless, in fact it occasions a failure of justice (SeeKrishnamachariar v. Appaswami Mudaliar, 25 Mad 545 andDharmadas Lilaram v. F. H. Pilcher, AIR (18) 1931 Sind 113. In the order under consideration, the District Magistrate has found that the preliminary enquiry is incomplete as the Special Magistrate has ignored altogether to record the medical evidence which, in his opinion, had occasioned injustice and held that the dismissal of the complaint was premature and that the complainant deserved a fuller opportunity to prove his case. It is not disputed that, despite the duty cast upon the Court to protect the accused, ordinarily it will not be justified in throwing out a complaint without giving an opportunity to the complainant to substantiate his allegations.

4. Another important point that arises for consideration is whether the Special Magistrate had jurisdiction to proceed under Sections 202 and 203, in the circumstances of the case. Any District Magistrate or Sub Divisional Magistrate may transfer a case which he has taken cognizance of, for enquiry or trial, to any Magistrate subordinate to him. There is no impediment to transfer a case at any stage either before or after recording the sworn statement, and the transferee Magistrate has the same authority to deal with the case which has been transferred to him as regards the issue of process and other matters connected with the enquiry or trial as vested in the superior Magistrate. The termenquiry in Section 192 is interpreted to refer to such enquiries as are held under Chapters VIII, XII and XVIII of the Code of Criminal Procedure, and does not include theenquiry contemplated under Section 202 the scope of which is limited to the purpose of ascertaining the truth or falsehood of a complaint, with a view to take action under Section 203, as observed by Edgley, J., inHafizar Rahman v. Aminal Hoque, A I R (28) 1941 Cal. 185. In this view, the case under reference was transferred not forenquiry butfor disposal according to law. The transferee Magistrate should have followed the procedure under Section 204, as the District Magistrate himself had already acted under Section 202 and satisfied himself that there were sufficient grounds for proceeding with the case. The transferring Magistrate had taken cognizance of the case, recorded the sworn statement of the complainant and received the medical certificate in support of the complaint and then transferred the case for disposal according to law. All these indicate that the District Magistrate had satisfied himself that there were grounds to proceed with the trial and directed the subordinate Magistrate to dispose of the case according to law. This could only mean that the Magistrate should proceed under Section 204, Criminal Procedure Code, and complete the trial according to law. When it could be gathered by the circumstances that the action taken by the Magistrate who transferred the case under Section 192 gives rise to the indication that the stage for the preliminary enquiry under Section 202 had passed, the Magistrate to whom the case was transferred ceased to have jurisdiction for making enquiry under Section 202, Criminal Procedure Code, and he was bound to proceed under Section 204, Criminal Procedure Code, to complete the trial. This view is supported by the decision reported inKasturi Chand v. Vaikumtan, A I R (29) 1942 Mad 426. The order of the District Magistrate is, therefore, upheld.

5. This petition thus fails and is dismissed. Revision dismissed. 1950 AIR (37) 1950 MYSORE 1 [C.N. 1.] "I.-T. Commr. v. Imperial Tobacco Co. of India" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND MALLAPPA, JJ. ( Division Bench ) Commissioner of Income-tax, Mysore v. Imperial Tobacco Co. of India Ltd. Civil Petn. No. 31 of 1948-49, D/- 26 -8 -1949. Income-tax Act (11 of 1922), S.42(1) - INCOME-TAX - SALE - Business connection - Head office and manufacturing establishment at Calcutta - Sale in Mysore through customers - Customers working on terms though buying product as wholesale, purchases - Salaried staff of assessee company checking observance of terms - Company has business connections in Mysore. Mysore Income-tax Act (5 of 1923), S.42(1). The assessee company which had its head office and manufacturing establishment at Calcutta was having sales of its product all over India including Mysore, through persons appointed and named "customers" of the company who operated within a particular defined "territory", and purchased the goods from the area depot of the company at wholesale prices and sold them with a margin of profit to the "dealers". The dealers sold them to the "retailers" from whom the consumers bought the articles. There was no written agreement touching the exact relations between these customers and the company which were all matters of oral understanding. The appointment of the customers was liable to be terminated without notice. There were also limitations as regards the area and the prices to which the "customers" were subject in addition to a prohibition against selling competitive goods of others. Information of existing stock was to be submitted thrice a month. The company also had a special staff of inspectors for the purpose of checking observance of the instructions by customers. Stale and excessive goods were taken back on payment. The assesses company contended that it had no business connection in Mysore: Held, that the above facts showed that the company had the effective and ultimate control over the business in Mysore, and therefore had business connection in Mysore. Case law referred. (Paras 3 and 15) Annotation: (46-Man.) Income-tax Act, S.42, N.3, Advocate-General-for Government. O.T.G. Nambiyar-for Respondent. Judgement Order - This is a reference by the Commissioner of Income-tax under S. 66 (2), Mysore Income-tax Act. The assessee is a company registered under the Indian Companys Act which has its head office in Calcutta and is engaged in the manufacture and sale of cigarettes. The manufacturing establishment is at Calcutta but the sales are effected all over India including Mysore. The Company does not sell the goods directly in the market and has provided a special machinery for carrying on the business. It has depots in several towns or cities one of which is at Madras to cater to the demands of the surrounding area for portions of which a "distributor" or "customer" as he is called since 1941 is appointed. During the period between 1st August 1935 and 15th November 1944, the depot in Madras was shifted to Bangalore C and M Station. In the year relevant to the case there were 43 "customers" of the company in Mysore each of whom had to operate within a particular, defined "territory". These "customers" purchased the goods in the C and M Station depot at wholesale prices and sold them with a margin of profit to the "dealers" and these in turn sold the goods to the "retailers" from whom the smoker or consumer brought the articles. In some cases the "customer" also sold the goods to the "retailer" and had an additional profit. The goods were paid for by the "customers" in the C and M station and if taken on credit a deposit was necessary. The prices at which the sales had to be effected by each of these, the places within which the "customers" are to function are fixed by the company.

2. The exact relations between the company and the "customers" the nature and extent of the control the company exercises over them and the consideration therefor are all matters of oral understanding. At any rate no written agreement touching these has been produced. In the affidavit filed before the Commissioner the Manager of the depot at Madras refers to the instruction from the Head Office that "No written agreement or rules should be issued to new distributors. All arrangements with distributors to be made verbally" and to be terminable without notice, and says that there were "no arrangements with customers having legal affect or having bin. ding obligations on either side". Nevertheless in some of the letters by the company to the customers, it is written "whilst the arrangements are subject to termination without notice we trust in actual practice they will prove to be the prelude to a long and profitable period of mutual trading co-operation". Instances of termination as a matter of fact are found to be rare and with the exception of one all the "customers" have remained undisturbed. In addition to the limitations as regards the area and the prices to which the "customers" were subject, they were not free to sell other goods or goods from others which may interfere with the sales of the companys products. They had also to furnish thrice a month a statement of the existing stock to the company. The intimation was to be made and orders placed for fresh supplies in the forms supplied by the company when goods became stale or were found excessive the "customers" could return the same and received payment from the company. The company had employed a special staff of Inspectors for the purpose of checking whether these instructions or conditions are adhered to and report to the company the need for changes, appointment of additional customers, and other steps to be taken for expansion and improvement of the business. This in brief was the modus operandi of the business.

3. The Manager of the companys depot was served on 3rd April 1944 with a notice under the Income-tax Act by the Additional Deputy Corn. missioner of Income-tax, Companies Circle, calling upon him to make a return of the total income of the company during the year ending on 30th June 1943. The depot Manager denied liability and on the information obtained after enquiries in the matter the Deputy Commissioner passed an order holding that the company had business connection in Mysore and was liable to pay the tax. The order of assessment was upheld by the Commissioner on appeal by the company. The assessment it is mentioned relates to the year beginning with let April 1942 and ending on 1st April 1943. The company sought for and obtained the present reference. The question formulated by the Commissioner for determination is: "Whether on the facts and circumstances of the case the applicants can be held to have any income accruing or arising to them directly or indirectly through or from any business connection in Mysore under S.4 and S.42 (1), Mysore Income-tax Act." Section 4 (1) of the Act reads "Save as hereinafter provided, this Regulation shall apply to all income, profits or gains, as described or comprised in S.6, from whatever source derived, accruing or arising, or received in Mysore, or deemed under the provisions of this Regulation to accrue, or arise or to be received in Mysore." Section 6 of the Act enumerates the heads of income, profits or gains of which No.(iv) is business and (iv) is other sources chargeable to income tax. Section 42 (1) states: "In the case of any person residing out of Mysore all profits, or gains accruing or arising to such person, whether directly or indirectly through or from any business connection in Mysore .... shall he deemed to be income accruing or arising within Mysore and shall be chargeable to income-tax either in his name or in the name of his agent...."

4. The assessment is objected to on the sole ground that the company had no business connection in Mysore during the year of assessment, and since the question is whether the facts make out such a connection or not, it is necessary to consider at first as to what is meant by "Business Connection". The expression is not defined in the Act and the construction of the term in cases in which it had to be considered is not definite or uniform. This is partly because of definition of "Business" in S.2 (3) as including any trade, commerce, manufacture or any adventure or concern in the nature of trade, commerce or manufacture. Though the term includes these, it does not follow that nothing else can be business. The definition is therefore enumerative and not exhaustive. What other categories of work, occupation or activity can be regarded as Business for the purpose of the Act is therefore a matter on which the Act is silent. Similar considerations apply to "Business connection" which though different from is not unrelated to "Business": Commr. of Income-tax, Bombay Presidency and Aden v. Currimbhoy Ebrahim and Sons, Ltd., AIR (23) 1936 P.C. 1 at page 4: (60 Bom. 172 P.C.). The words being thus of wide and indefinite import have given scope for varying view about the facts necessary for application of the section in which they appear. In Rogers Pratt Shellac Co. v. Secy. of State, AIR (12) 1925 Cal. 34 at p. 45: (52 Cal. 1), Mukerji J observes: "Business is used in the Act in the sense of an occupation continuously carried on for the purpose of profits. A concern by reason of which one can be said to have connection with such an occupation is business, occupation." That was a case in which an American Company had a branch office in Calcutta and a factory in United Provinces. The company was held liable to be taxed though there were no sales by the Agents in India and their business was to buy materials here and export them to the company.

5. In Commr of Income-tax v. Steel Brothers and Co., AIR (13) 1926 Rang. 97: (3 Rang. 614 F.B.) "business connection" was considered to be a "compendious expression to cover such concerns in the nature of trade, commerce or manufacture as arise through a branch, factorship, agency, receivership or management." According to Mackney J. in Commr. of Income-tax, Burma V.Vasalakshi Achi, AIR (24) 1937 Rang. 258 at p. 261: (1937 Rang. L.R.174, S.B.) "connection" is used in the sense of "that with which one is connected" so that the expanded meaning of "Business connection" in the light of definition of "Business" is any adventure or concern in the nature of trade, commerce or manufacture being a business with which the non-resident is connected. Roberta C J. and Leach J. do not say anything about the interpretation of the term but all of them hold that "Business connection" does not arise from an isolated transaction.

6. In Commr. of Income tax v. National Mutual Association of Australasia, Ltd., AIR (20) 1933 Bom. 427: (57 Bom.519), the construction of Rangoon High Court was not accepted. Beaumont C.J. said that definition of Business is not exhaustive and Rangnekar J. observed that "Business connection" is a comprehensive expression which includes not only the kinds of things specifically described as being included in the term Business but also the kinds of things which are specifically mentioned in S.3, English Finance Act, viz., through or from any branch, factories, agency, receivership or management." It was held that profits made by a company outside India on premiums of participating policies collected and sent by its branch in India, by investment outside India are profits liable to tax in India by virtue of S.3, S.4 and 42 of the Act. The point to be noticed is that for purpose of S.42 the profits need not be made in India. This has been clearly laid down in Bank of Chettinad Ltd. v. Commr. of Income-tax Madras, AIR (27) 1940 P.C. 183: (I.L.R (1940) gar P.C. 371) while considering the relations of a Bank outside India with a Bank in Rangoon.

7. The argument advanced on behalf of the non-resident Bank is stated thus: "In order to bring the case within S.42 it must be shown that the non-resident Bank had a business connection in India in relation to actual transactions in question, that a business connection arises out of business transactions, that the transactions in the case .... were made not in India but in the Malay States and moneys were to be repaid in Malay States in Malay States currency and therefore the profits which accrued to the non-resident Bank from the transactions did not accrue through a business connection in India". The argument was not accepted with the observation "The terms of S.42, are very wide and their Lordships are not prepared to place upon them the limitation for which the appellant contends." One of the factors taken into account in the decision is that the non-resident Bank and the Bank in India were controlled by the same person and particular mention is made of Commr. of Income tax v. Remington Typewriter, Co., Ltd., AIR (18) 1931 P.C. 42: (55 Bom, 243) where an American company was held liable on account of sale of its typewriters in India by two Indian companies. The following portion of what is quoted from this judgment is instructive: "Although no contractual obligation exists by which the Bombay Company is compelled to purchase any of the manufactures of the American company, the flow of business between the two companies secured by the fact that the ultimate and complete control of the Bombay Company is vested In the American company which owns all its shares". This enunciates that if the flow of business is secured by the non-resident exercising control over the persons doing business in the place of assessment the non-resident will have a "business connection" in that place and that it is not necessary that there should be a contract for this. Nandlal Bhandari Mills Ltd., Cawnpore v. Commr. of Income-tax C.P. and U.P., AIR (26) 1939 ALL.593: (I.L.R. (1939) ALL, 832) relates to a company of Indore having Branch in Cawnpore to sell the goods for which commission was payable at Indore. It was held that the company had "Business connection" in India under S.42 of the Act as the right to the commission accrued on the sales effected at Cawnpur between the branch at Cawnpore and company at Indore and that the former was the agent of the company under S.43. As to what is needed to constitute "Business connection" Collister, J. says In order to show that a non-resident has a business connection with a resident in India it must be established that the two persons have home sort of association in a business, that is to say, in a profit making occupation or activity in India". The words "some sort of association" are important as showing that it need not be of any particular or special kind or form.

8. In a later case, Hira Mills Ltd., Cawnpore v. Income-tax Official, Cawnpore, (1946) 11 I.T.R. 417 (ALL.) a Bench of the same Court has accepted the view expressed in this case and preferred the construction in Commr. of Income-tax v. National Mutual Association of Australasia Ltd., AIR (20) 1933 Bom. 427: (57 Bom. 519) to that in Commr. of Income tax v. Steel Brothers and Co., AIR (13) 1926 Rang. 97: (3 Rang 614 F.B.) of the term " Business connection and added "It may be that the use of the words 14msiness connection in" (as opposed to with) in S.42 (1) of the Act lays some slight emphasis on the more concrete meanings of the word "connection" but nevertheless we think it limits it too much to confine it to some organization, establishment or entity being in the nature itself of an operating business branch or agent of the potential assessee". It is therefore seen that there is preponderant authority for interpreting "Business" as not being confined to what is mentioned in the definition. As regards connection too there is no standard or formula with reference to which it has to be determined. The difficulty to apply a uniform rule as a test arises by reason of the varying conditions and kinds of business carried on, the difference in the methods employed for extending the range of the activities and the attempts sometimes subtle and sometimes apparent made to earn profits. To a large extent these depend on the intelligence and intention of the organisers the facilities available and conditions of the place. The question whether any one has Business connection in any place has to be answered on a consideration of the facts peculiar to each case and as such the views expressed in other cases can only be of help for ascertaining the guiding principles. From the cases which are referred to, it may be gathered that the exercise of control over the business by the nonresident is a means of the nonresident having business connection. It may be by the nonresident opening a branch in the place having an agent, salesman or representative but not necessarily or only by this. What is required is some sort of association as Collister, J. put it in Nandlal Bhandari Mills Ltd., Cawnpore v. Commr. of Income-tax C.P. and U.P., AIR (26) 1939 ALL. 593: (I.L.R. (1939) ALL. 832).

9. The existence of a business in Mysore is not disputed. But the assessee contends the business is that of customers, dealers or Retailers in the companys products with which the company itself has nothing to do. It is argued that the sale was effected in C and M station and completed, that the price for the goods was also paid there and therefore connection with the business in Mysore cannot be imputed to the company. Elliman, Sons and Co. v. Corrington and Son Ltd., (1901) 2 Ch. D.275: (70 L.J. Ch.577) was cited by Mr. Nambiar to show that the stipulation that the buyer should not sell the goods except at a particular rate is not a restraint of trade and does not affect the validity of the sale. No question of liability for income tax arose in that case and the point now for examination is not whether the terms of the sale are enforceable but whether the company did not exercise control over the business in Mysore notwithstanding the sale. The case is therefore of no help to decide this. It was said that the employment of Inspectors for supervising the dealings of customers and, others was meant only to study the conditions and make report and not to have connection with the business.

10. If as alleged, the transactions between the company and "customers" were finally closed or ended in the C and M station there was apparently no reason for the customers subjecting themselves to restrictions for disposal of what was their property, or submitting themselves to the condition of sending thrice a month reports of stock and not dealing in competitive goods; and for the company to provide forms and books to the "customers," engage salaried Inspectors to check whether the requirements are complied with. The repurchase of stocks found unfit for sale or excessive is also not explicable on the hypothesis of the company being unconnected with the business. The arrangement is deliberately and designedly made oral and in the absence of any satisfactory explanation, both parties must be deemed to have entered into it on considerations of mutual advantage. There can be no doubt that the obligations imposed upon the customers though not shown to be contractual have the effect of vesting the effective and ultimate control over the business in Mysore in the hands of the company for the purpose of securing the flow of business in Mysore. In such a case as held in Commr. of Income-tax v. Remington Typewriter Co. Ltd., AIR (18) 1931 P.C 42: (55 Bom. 243), S.42 (1) does apply.

11. Jessel M. R. whose statement as to what "business" means is quoted in oases under the Income-tax Act, says in Erichsen v. Last,(1881) 8 Q.B.D. 414 at p.416: (51 L.J.Q.B. 86) with reference to the term "Exercise of trade" in the English Act. "There is not, I think, any principle of law which lays down what carrying on trade is. There are a multiple of things which together make up the carrying on of trade but I know no one distinguishing incident for it is a compound fact made up of a variety of things." The term business having a more extensive signification than trade these remarks apply to a larger extent to Business connection.

12. An important feature of the restriction imposed by the company is that it is not limited to any particular area or "customers" in Mysore, or for only a temporary period. The fact that these are operative over all "customers" through. out Mysore in regard to the business as a whole carried on here signifies that the business is under the sway of the company and though the sale to the customer appears outright is attended with and followed by conditions of having to act in accordance with the directions and dictates of the company, when the sale is hedged in with conditions which fetter the purchaser from freely dealing with the goods as he likes at any place and when in all material respects the company has the option to insist systematic compliance on pain of removing the "customers" and a special staff of inspectors on behalf of the company to work in Mysore, there is hardly reason for doubt that the company has a patent and patent Business connection in Mysore. As stated in Commr. of Income-tax, Bombay v. Metro Goldwyn (India) Ltd., AIR (26) 1939 Bom. 257: (183 I.C.540.) "The adoption of descriptions (such as that of vendor and vendee) does not affect the nature of transactions and does not turn the transactions into a sale if in fact it is not a sale." That was a case of written agreement between a nonresident and resident in which they were described as vendor and vendee with a clause that nothing in the document is to be construed as constituting a partnership. The Court held that the relationship was in the nature of license and that there was business connection under S.42 of the Act. Hira Mills Ltd. Cawnpore v. Income-tax Officer, Cawnpore, (1946) 14 I.T.R. 417 (ALL) relied upon in support of the contention to the contrary is distinguishable- That was a case of sale through brokers who could sell the goods not only of the non-resident company but also of others. They were as remarked "freelance brokers" unlike the "customers" in this case who are enjoined from not selling competitive goods. Further the brokers in that case were not the employees of the assessee whereas only those selected by the company are customers while special forms are prescribed and furnished in this case by the company for placing orders by customers there were no such for the brokers.

13. The learned Advocate-General cited the case in Weiss Biheller and Brooks Ltd. v. Farmer, (1923) 1 K.B. 226: (92 L.J.K.B. 179) the facts of which were: An English company carried on business in London as manufacturers and sellers of incandescent and other mantles and under an agreement with a Dutch Company called the Ramie Union were the sole sellers in the United Kingdom of the goods manufactured by the Ramie Union which had its head office in Holland where its books were kept and its general business transacted. The transactions of the English Company with the Ramie Union formed only a small part of the business of the English Company. Under the agreement the Ramie Union manufactured mantles and added to the cost ten per cent. for expenses and the English Company sold the mantles in England at the best possible price- The English Company was entitled to 5 per cent. Commission for their expenses and del credere and profits were divided. The English Company kept a separate day bock showing the selling prices and this book was open to directors of the Ramie Union. The name of the Ramie Union did not appear on the invoices sent by the English Company to their customers in England but the provisions of the English Company had on them the name as agents of the Dutch Company though it was not proved that this had been authorized by the Ramie Union.

14. It was held that the Ramie Union was exercising a trade within the United Kingdom within the meaning of S.2, sch. D. of the Act of 1853 and on which they would find that the English Company were the agents of the Bernie Union within the meaning of S.41 of the Act of 1842 which is "...Any person not resident in Great Britain whether a subject of Her Majesty or not shall be chargeable in the name of...any factor, agent or receiver having the receipt of any profits or gains arising as herein mentioned and belonging to such person in the like manner and to the like amount as would be charged if such person were resident in Great Britain and in the actual receipt thereof".

15. The words "exercising a trade" do not appear in S.42 and the Commissioner has held that "customers are not agents of the assessee in the legal sense. Section 43 no doubt provides for a person to be "deemed" an agent for the purpose of the Act, that is to treat him as such though he is not. But the applicability of the section is not explicitly raised in the reference. Apart from this, the grounds on which the foreign Company was considered to have exercised trade in England are instructive. It was contended that the foreign Company was merely selling to the English Company as in this case to the "customers" who in their turn resold and that all the provisions of the agreement were merely for the purpose of defining the terms up on which there was to be an actual sale by the Ramie Union as principal to the English Company as Principals to do what they liked so far as selling was concerned with the mantles which they had bought. Another contention was that there was no privity between Ramie Union and ultimate purchaser and no contract binding on Ramie Union was made by the English Company. The further point raised was that the property in the goods did not remain in the Ramie Union but passed to the English Company and therefore the latter cannot be an agent. Lord Sterndale M.R. regarded these as not being conclusive and held that the assessment was justified. Atkin, L.J. expressed that "A person may act through an agent even though that agent does not make contracts that bind him" and as regards the question of the passing of property in the goods "It appears to me that a foreign principal may well as part of his trade send his goods to this country to be sold for and on his behalf and yet so conduct the business that the property in the goods for the purpose of the trade passes to the agent......I see no such substantial inconsistency in that fact as to cause this Court to come to the conclusion that where the property has passed to a so-called agent the relation of principal and agent must necessarily cease". The Dutch Company was held liable even though the contracts of sale to customers from which the profits arose were contracts to which it was not a party.

16. Though as I have mentioned the words in the English Act, are different from those in S. 42, these observations are useful for holding that the assessee in this case had business connection in Mysore. The answer to the question is accordingly in the affirmative. The assessee should pay the costs of the reference. Advocates fee is Rs. 50/-. M.K. Reference answered in the affirmative. AIR (37) 1950 MYSORE 6 [C.N. 2.] "Subbegowda v. Keshava Murthy" MYSORE HIGH COURT Coram : 2 BALAKRISHNAIYA AND MALLAPPA, JJ. ( Division Bench ) Subbegowda and others - Defendants Appellants v. H. L. Keshava Murthy, Plaintiff and others, Defendants-Respondents. Second Appeal No. 284 of 1947-1948, D/- 15 -11 -1949, against decree of Addl. Sub-Judge, Hassan, in R. A- No. 18 of 1946-47. Contract Act (9 of 1872), S.69 and S.70 - CONTRACT - SALE - Revenue sale of property in dispute - Bona fide claimant making payment to save it from sale - Property ultimately found not to belong to him - Person entitled should reimburse. Where a person who puts forward a bona fide claim makes a payment in respect of the disputed property to save it from revenue sale, be is entitled to reimbursement even though it ultimately transpires that he had not such an interest. The person ultimately found entitled to the property, having received the benefit of the payment lawfully made by the former, cannot retain the benefit and plead non-liability: 22 Mys. L. J. 150 and 21 Calcutta. 142 (P.C.), Rel.on. (Para 7) Annotation: (46-Man.) Contract Act, S.69, N.14; S.70, N.5. Judgement Balakrishnaiya, J.-This appeal arises out of O.S. No.632 of 1944-45 filed by respondent 1 in the Court of the Munsift of Hassan. Respondent-plaintiff 1 and defendants 7 and 8 are the sons of one Lakshminaranappa. The suit property is ancestral to the plaintiff and defendants 7 and 8 and the suit is for possession of the suit property both on his own behalf and on behalf of defendants 7 and 8, with memo profits from the date of suit till the date of delivery of possession.

2. It is common case that the property was acquired by Krishnappa, the grandfather of the plaintiff, who claims half of the same under the will of the grandfather and one sixth as the heir to his father. He claims two-third share and the remaining one-third is said to belong to defendants 7 and 8 together. His mother, Venkamma, who claimed the property under a gift deed from her father-in-law, Krishnappa, was in possession and enjoyment even during the lifetime of Lakshminaranappa, her husband, and owing to default in paying the arrears of revenue to the Government, the property in dispute was sold. In order to get the revenue sale set aside and regain the ownership of the property, Venkamma executed a usufructuary mortgage deed dated 22nd march 1943 in favour of one Manjegowda since deceased, the husband of defendant 2 and the undivided father of defendants 3 to 6, for a sum of Rs.312-0-10 and the said Manjegowda deposited the arrears of kandayam of the land together with the compensation in the Revenue Department and got the sale cancelled.Since then the schedule proper. ties were said to be in possession of Manjegowda and after his death, defendants 1 to 6, his legal heirs, are in possession of the same. They, however, denied the plaintiffs right to possession, but alternatively pleaded that in the event the Court should decide that the plaintiff is entitled to possession, they should become entitled to repayment of the arrears of revenue advanced by them before the delivery of the property to the plaintiff. The plaintiff in his turn denied that Venkamma had ever possession of the suit schedule property, or that she had any right to mortgage the same. He also stated that no arrears of revenue were due and pleaded that even if the payment was made towards revenue, it was made voluntarily and as such not binding on the plaintiff.

3. There is no dispute that the suit property belonged to Krishnappa, the grandfather of the plaintiff. Though Krishnappa and his son Lakshminaranappa were divided the suit property appears to have been kept in common enjoyment with the result that each of them had a right to the moiety of the property. The plaintiff claims the entire interest of Krishnappa under a will and a share through his father in the remaining half of the property. His mother Venkamma claimed the entire property under a gift deed from Krishnappa her father-in-law. She filed a suit in 1940 and obtained a decree on 25th February 1941 in her favour wherein it was held that the property belonged to her. The said decree was confirmed in the first appeal R.A. No. 111 of 1940-41, on 2nd December 1942. But in S.A. No. 356 of 1942-43 on the file of the High Court, both the decisions of the Munsiff and the Subordinate Judge were set aside and the pre. sent plaintiff was declared to be the owner of the suit schedule property. The mortgage deed, Ex. IX, in favour of Manjegowda is dated 22nd September 1943 when Venkamma, the mortgagor, was ostensibly the owner as held by the two Courts and at all events, on that date she had a right. That she was also in possession of the property is fully borne out by Ex. IX which is found to have been attested by H. Lakshminaraniah, who is no other than the father of the plaintiff through whom he claims a portion. There can, therefore, be little or no doubt that on that date, she was not only a declared owner but was also in actual possession of the property.

4. It is contended by the learned advocate for the respondents that Venkamma, the mortgagor, had no right to the property and could not pass interest under the mortgage, that the identity of the property in respect of which the arrears of revenue is said to have been paid by raising a debt is not established and that as the mortgagor Venkamma is ultimately declared to have had no interest, the defendants cannot resist possession till the money advanced is paid to them It is further contended that if at all the defendants are entitled to any money they should look to Venkamma for the recovery of the money under the mortgage bond and that the debt is not binding on the plaintiff or his share in the property.

5. From Ex v, the petition of H. Lakshminaraniah son of Krishnappa, it is clear that the vritti of the land belonging to Hanandammane Krishnappa situated in Jodi Satyamangala village had been sold and Patel Siddalingegowds, of Hassan had purchased the same in the revenue auction, On a request of Lakshminaranappa in a petition to the Amildar that the kandayam in full and the compensation amount may be received from Manjiah, Manjiah deposited the amount, whereupon the Amildar reported to the Sub-Division Officer to the effect that for arrears of kandayam, the vritti of Krishnappa had been auctioned on 27th February 1943 and that on behalf of the petitioner one Manjiah had paid the arrears of revenue with interest and process fee amounting to rupees 312-0-10 and that the sale may be cancelled. The sale was consequently cancelled. It is, thus, amply clear that the land sold for arrears of revenue, was in the name of Krishnappa and that the mortgage amount was deposited by Manjiah in the Revenue Department to avoid the said sale.

6. The next point for consideration is about the title of Venkamma on the death of Krishnappa, Venkamma asserted her title to the property and was in possession thereof. She filed a suit which was decreed in her favour and the decree was also confirmed by the appellate Court. It cannot be said that she did not set up a bona fide claim to suit property; and further both the Courts below have come to the conclusion that the payment of arrears of revenue was not a voluntary one. The plaintiff does not assert that revenue was not due or that he had paid the same. If no deposit had been made by the said Venkamma through her mortgagee, the revenue sale would have extinguished the title of the plaintiff in the suit property. It must therefore be presumed that Venkamma and her mortgagee acting in good faith paid the kandayam in order to protect the interest in the property which Venkamma apparently possessed at that time. Venkamma had in fact possession of the property and the Courts below have upheld her title. It does not in the least make any difference that Venkamma lost her title subsequently in the second appeal and the plaintiff was declared the owner. 7.It is an established principle of law that where a person who puts forward a bona fide claim makes a payment in respect of the disputed property he is entitled to the protection afforded by S.69, Contract Act, even though it ultimately transpires that he had not such an interest. It is consistent with general principles of equity that those who receive benefit from the payment lawfully made, by another cannot retain the benefit and plead non-liability and the terms of S.70, Contract Act are wide enough to give effect to this principle. The scope of S.69 and S.70, Contract Act is very well brought out by Venkataramana Rao C. J., in 22 mys. L.J 150 where in almost similar circumstances, he has observed that: "To cases like this, the doctrine of unjust enrichment is applied. The basis of the doctrine is that if a person has received some property or benefit from another, it is just that he should make restitution, as otherwise he would be unjustly enriched at the expense of the other." Lord Macnaghten applied the same principle in Dakhina Mohun Roy v. Saroday Mohan Roy, 21 cal.142: (20 I.A. 160 P.C.) to a case of payment of taxes pending litigation and observes at page 148 thus: "It seems to their Lordships to be common justice that when a proprietor in good faith pending litigation makes the necessary payments for the preservation of the estate in dispute, and the estate is afterwards adjudged to his opponent, he should be recouped what he has so paid by the person who ultimately benefits by the payment." It is just and equitable; therefore, that the plaintiff and defendants 7 and 8 should pay the amount of revenue paid by defendants 1 to 6 before possession is delivered to the plaintiff and defendants 7 and 8.

8. The trial Court decreed the plaintiffs suit for possession of the properties for two- thirds share and in favour of defendants 7 and 8 for one-third share on their payment of Rs.312-0-10 to defendants 1 to 6 in.proportion to their respective shares to the properties. The claim for mesne profits was dismissed. On appeal the learned Subordinate Judge decreed the suit in favour of the plaintiff in entirety without payment of Rs.312-0-10 and also awarded mesne profits of Re. 100 with proportionate costs in both the Courts. The plaintiff has asked for possession of the entire property on his own behalf and on behalf of defendants 7 and 8. But the trial Court has directed delivery of plaintiffs two-third share and defendants 7 and 8 to one third share on payment of proportionate liability. It does not appear to be convenient to split up the liability and introduce the complication of partition in respect of relief claimed by defendants 1 to 6. The property must be redeemed in full.

9. We, therefore, hold that in modification of the decrees of the Courts below, there should be a decree in favour of plaintiff and defendants 7 and 8 for possession of the suit property on payment of Rs.312-0-10. As defendants 1 to 6 are in enjoyment of the property in lieu of the interest under the mortgage with possession and their possession having been found to be lawful, the plaintiff or defendants 7 and 8 will not be entitled to mesne profits, till the date of deposit into the Court. The question of mesne profits may be enquired into on and from the date of the amount deposited into Court. The respondents will pay the costs of the appeal in this Court. Parties will bear their own costs in the Courts below. Decree modified. AIR (37) 1950 MYSORE 8 [C.N. 3.] "Narasimha Setty v. Chenamma" MYSORE HIGH COURT Coram : 2 VENKATA RAMAIYA AND BALAKRISHNAIYA, JJ. ( Division Bench ) Narasimha Setty - Appellant v. Chennamma and another-Respondents. Misc. Appeal No.64 of 1948-49, D/- 13 -8 -1949, against order of 1st Munsif, Bangalore, in Misc. Case No. 51 of 1947-48. Guardians and Wards Act (8 of 1890), S.25 - GUARDIANS AND WARDS - CUSTODY OF CHILD - Application by father for custody - Child handed over while infant Neglect of father - Person having custody bringing up child with care and affection - Child expressing no desire to go with father - Custody cannot be given to father. The parents delivered their infant daughter to another. The father bad neglected it for over twelve years so that the child when consulted neither recognised him nor desired to accompany him leaving the other who, being childless, had brought her up with care and affection and had also settled upon her his property: Held that the welfare of the child did not permit the application of the father for the custody of the child being granted. (Para 6) Annotation: (46-Man.) Guardians and Wards Act, S.25, N.6. Narasimhaiah for K. N. Srinivasan -for Appellant. B.R. Keshava Iyengar - for Respondents. Judgement Balakrishnaiya, J. - The appellant is the petitioner who filed misc. case No. 51 of 47-48 in the Court of the Munsiff, Bangalore, under the Mysore Guardian and Wards Act for the appointment of himself as the guardian of the person of his minor daughter, Lingamma, and for the custody of the minor. Respondent 1 is the mothers sister of the minor and respondent 2 is the husband of respondent 1. The trial Court has refused to grant either of the prayers of the petitioner and hence this appeal.

2. One of the allegations in the petition is that in view of the close relationship existing between the parties, the petitioner was sending the minor Lingamma to live with the respondents for sometime off and on and bring her back after a few days, that about six months ago, the respondents took the child with the consent of the petitioner to keep her with them for a few days, but have refused to send the child back, the other allegation is that the respondents are arranging to give away the child in marriage to some unknown person without the consent of the petitioner. The respondents admit that the child is the daughter of the petitioner, but they assert that at their request the child was given to them by the parents when she was seven months old for being reared up as a foster child as they themselves were childless. Ever since, they have been looking after the child with love and affection as if she were their own child and in June 1944 have made a settlement on her of three items of lands and a house to become the separate property of the minor for her fu ture welfare. Regarding the allegation of marriage, they deny any existing proposal and state that when that event is to happen they would take the express consent of the parents.

3. Respondent 1, the foster mother of the child, has examined herself in support of her assertions and produced the registered gift deed in favour of the minor. The petitioner has neither let in any evidence nor stepped himself into the box to substantiate the allegations in his petition. It has, therefore, to be accepted that the contentions of the respondents are true.

4. From the evidence on record it is clear that the parents have voluntarily parted with the custody of the child when she was seven months old. She is now 13 years old according to the age stated in the settlement deed. There is no evidence to show that the father had any contact with the minor in question during the long period of over 12 years; the child who could be said to have reached the age of discretion is unable to recognise the petitioner as her father and when consulted by the lower Court, has, more than once, indicated her choice to reside with the respondents whom she is accustomed to regard as her parents. The father is, no doubt, the natural guardian of his minor child under his personal law and needs no sanction of the Court for being appointed as such under the Act; but as he has waived the duties of a father towards the child, he has evinced little or no interest in her welfare which entails forfeiture of his legal right to the guardianship. We are supported in this view by the decision reported in Ponniah Asari v. Suppiah Asari, AIR (22) 1935 Mad. 363: (158 I.C. 95), where it is stated thus: "In proceedings under the Act for the custody of an infant, it is the welfare of the minor in the largest sense of the term that is to be considered. Though the father has as natural guardian, a prima facie right to the custody, still this may be negatived by the circumstances of case, showing either past indifference and neglect or tacit consent in the infant being brought up by other relatives."

5. It is not the case of the petitioner that the child is not looked after well, nor is any cruelty or ill-treatment alleged. Respondent 1 has sworn that she is bringing up the child with love and affection which is amply supported by the statements contained in the gift deed and the settlement of properties for her future provision. In fact, the respondents who are childless have done more than what the father himself would have done under the circumstances. In 1944, about 5 years ago, the properties are settled by the respondents on the child. The petitioner who is shown to have evinced no interest whatever in the child for such a long period is ill-fitted to guard her welfare when compared to the respondents. The remarks of Leach C.J. in Sivasankara Mudaliar v. Radhabai Ammal, AIR (26) 1939 Mad. 611: (185 I.C. 647) that: "Where a father delivers his infant daughter to the custody of another and for over fifteen years takes no interest in her, but allows others to do what he as a father should do, he is not fitted to exercise the rights of a father and is certainly not a person in whose favour the Court should pass an order under S.25." apply very aptly to the facts of the case.

6. In the appointment of a guardian under the Act, the paramount consideration is the welfare of the minor irrespective of technical rights and sentimental grounds. The willing entrustment of the child to the care and protection of other relations and her long and continued residence in other surroundings and consequent want of contact with her putative father are overriding circumstances to invalidate the father to enforce the custody of the child. In almost similar circumstances, it is observed by Beasley C.J. in the case quoted above, Ponniah Asari v. Suppiah Asari, AIR (22) 1935 Mad. 363: (158 I.C. 95) that "these considerations override any or all other claims advanced by the father, and his prima facie right as a father to the custody of the minor girl." The apprehension of the petitioner that the girl may be married without his consent has been guarded by the lower Court by imposing the condition that the marriage should not be brought about without the permission of the Court. In conclusion, following the principles in the cases referred to, we are satisfied that the interest and welfare of the minor will be better served by allowing her to remain with the respondents who have so well cared for her, even to the extent of making a decent provision by way of settlement of immoveable properties for her future welfare.

7. We, therefore, see no reason to interfere with the order of the lower Court; this appeal is dismissed, the parties bearing their own costs. Appeal dismissed. AIR (37) 1950 MYSORE 9 [C.N. 4.] "Hanumanthaiya v. Thavakal San" MYSORE HIGH COURT Coram : 2 BALAKRISHNAIYA AND MALLAPPA, JJ. ( Division Bench ) Hanumanthaiya - Plaintiff - Appellant v. Thavakal San and another - Defendants -Respondents. Second Appeal No.221 of 1949-50, D/- 6 -1 -1950, against decree of A. Sub-Judge, Tumkur, in R.A. No. 266 of 1947-48. (A) Evidence Act (1 of 1872), S.116 - EVIDENCE - TENANCY - Denial of landlords title subsequent to creation of tenancy. The rule embodied in S.116, no doubt, precludes the tenant from denying title at the time of the creation of the tenancy but admits of the qualification that subsequent to the creation of tenancy the tenant is not debarred from contending that the landlords title is subsequently lost or defeated. (Para 3) Annotation: (46-man.) Evidence Act, S.116 N.10. (B) TENANCY - EVICTION - LEASE - Landlord and Tenant - Eviction by title paramount-Attornment-Effect. Transfer of Property Act (4 of 1882), S.108(c). Where a third party dispossesses both the lessor and the lessee by purchase in execution of a decree by title paramount and the lessee subsequently attorns to such third party by payment of rent, the title of the lessor becomes extinguished and there is a surrender of lease by operation of law. Hence the lessor is not entitled to claim rent from the lessee subsequent to the period of eviction. (Paras 4 and 5) Annotation: (45-Com.) Transfer of Property Act, S.108 (c) N.3. T. Madhava Rao - for Appellant. Judgement Balakrishnaiya, J. - The appellant filed a suit for the recovery of "Wars" produce or its value for the agricultural year 1946-47. It is alleged that the defendants were cultivating the schedule laud for about five years prior to suit and failed to deliver the landlords share of the produce due in January 1947. The defendants denied the lease during the suit year and pleaded that one Gangamma, in pursuance of a decree against the plaintiff and his brother, brought the schedule property to sale and purchased the same; she also took possession of the property through Court; they plead that they have delivered the produce to the vendee of Gangamma and the liability is thus discharged.

2. The original lease of the suit land by the plaintiff has been established. The lease appears to be oral continuing from year to year and the agricultural year begins on 1st April of every year and ends on 31st march of the subsequent year. The Courts below have found on facts that Gangamma who obtained a maintenance decree against the plaintiff and his brother in O.S. No.307 of 37.38 on the file of the Munsiff of Tumkur, purchased the properties belonging to the plaintiffs family the suit land being one of the items charged for maintenance. The purchaser also obtained delivery of possession of the property in misc. Case No.176 of 1945-46 on 28th march 1946. These findings are not challenged in this Court. The trial Court held that the plaintiff is estopped from claiming the rent and dismissed the suit which finding was also confirmed by the first appellate Court. This second appeal is against the appellate decree.

3. Sri T. Madhava Rao contended that the tenants are estopped from denying the title of the landlord, during the continuance of the tenancy. According to S.116, Evidence Act, no tenant of the immoveable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy a title to such immoveable property. The rule embodied in the section, no doubt, precludes the tenant from denying title at the time of the creation of the tenancy but admits of the qualification that subsequent to the creation of tenancy the tenant is not debarred from contending that the land. lords title is subsequently lost or defeated. "Nor does the principle apply to prevent a tenant from pleading that the title of the original owner has come to an end" as observed in Krishna Prosad v. Baraboni Coal Concern Ltd., AIR (24) 1937 P.C. 251: (I.L.R. (1938) 1 cal.1). The tenancy may, amongst other reasons, be terminated by act of parties or by operation of law. Woodfall in his book Landlord and Tenant states at p.341: "Eviction of title paramount means eviction by a title superior to the titles both of the lessor and lessee, against which neither is enabled to make a defence" and Eviction by a title paramount is a defence by the lessor for subsequent rent."

4. The next point raised by the learned counsel for the appellant is that the original lease is still in force inasmuch as there is no surrender by the tenants as they never have been actually evicted from the demised land. Actual physical ouster by title paramount is not necessary to prove eviction. If there is clear proof of the person claiming paramount title, it constitutes cessation of title in the lessor (vide Ram Ranjan Roy v. Jayanti lal, AIR (13) 1926 cal. 906: (96 I.C. 11). As laid down in Jogendralaln v. Mohesh Chandra, AIR (16) 1929 cal. 22: (55 Cal. 1013), if the lessee consents to an attornment to such person to change the title under which he holds or enters into new arrangement for holding under him, it will be equivalent to an eviction and fresh taking. In the case of eviction by title paramount, actual surrender of possession to the intermediate owner is also unnecessary. "The surrender is an act of law and takes place independently of, and even in spite of, the intention of the parties": (Woodfalls Landlord and Tenant, P.900), Under S.108 (c), T.P. Act, the lessor shall be deemed to contract with the lessee that he may hold the property without interruption. In Ram Chandra v. Pramatha Nath, AIR (9) 1922 Cal. 237: (63 I.C. 754), it is held that the landlords undertaking for quiet enjoyment by the tenant is implied from the relationship of landlord and tenant from disturbance of strangers claiming title paramount. In the present case,, a third party dispossessed both the lessor and the lessee by purchase in execution of a decree by title paramount, and the landlord cannot obviously claim the rent without restoring possession, since every lease is deemed to convey a covenant for quiet enjoyment. Subsequent to the eviction by title paramount the tenants have, in this case, entered into an arrangement and paid rents which is in the circumstances a prima facie evidence of attornment. 5.In this view of the case, I am of opinion that the title of the plaintiff has been extinguished and there is surrender of the lease by operation of law and appellant-lessor is not entitled to claim rent subsequent to the period of eviction by title paramount. The decisions of the Courts below though based on different reasons must be affirmed.

6. This appeal, therefore, fails and is dismissed. Appeal dismissed. AIR (37) 1950 MYSORE 10 [C.N. 5.] "Ramachandriah v. Govt. of Mysore" MYSORE HIGH COURT Coram : 1 VENKATA RAMAIYA, J. ( Single Bench ) D. Ramachandriah - Accused No. 5 - Petitioner v. Government of Mysore - Respondent. Criminal Revn. Petn. No.112 of 1949-50, D/- 5 -12 -1949, from order of Special let Class Magistrate, Tumkur, in C.C. No.23 of 1948-49. Defence of India Rules (1939), R.81(2) and R.121 - NATIONAL SECURITY - Offence of contravening - Person other than registered owner using lorry - Participation by registered owner should be proved by prosecution- Conviction of owner in absence of proof is bad. By reason of mere registration of a motor vehicle in the name of an individual, he cannot be deemed to be guilty of any offence committed by another by using that lorry or vehicle. Therefore to convict him for having contravened R.81 (2) read with R.121, there must be something done or said by him for facilitating the commission of an offence, the burden of proving which lies upon the prosecution. (Para 3) A.R. Somanatha Iyer -for Petitioner,Advocate - General - for Respondent. Judgement Order.-In C.C. No.23 of 1948.49 on the file of the Special First Class Magistrate, Tumkur,the petitioner along with four others was prosecuted for having contravened R.81 (2) read with R.121, Defence of India Rules and also the Notification No. F.C.F.169 dated 4th october 1948 issued by the District Magistrate, Tum. kur District, on the ground that a certain quantity of rice without a permit was being transported from Tumkur to Bangalore. Accused 1 was the driver of the lorry, and accused 2 and 3 were the servants seated in the lorry, at the time the lorry was stopped the luggage was checked and seized on the way between Tumkur and Bangalore. Accused 4 was alleged to be the person who despatched the rice from Tumkur, and the petitioner was accused 5 said to be the owner of the lorry. The learned Magistrate acquitted accused 4 giving him the benefit of doubt but convicted all the rest. Accused 1 to 3 have not challenged the conviction, but the petitioner contends that on the facts of the case there is no warrant for his being considered guilty of the offence alleged against him.

2. For the purpose of this petition, it is unnecessary to discuss the evidence let in by the prosecution, as nothing turns upon that, and the point really arising for decision is whether inspite of what is alleged by the prosecution, the defence of india rules and the Notification justify the conviction. It is conceded that beyond the fact of the lorry being registered in the name of the petitioner, there is absolutely nothing to connect the accused with the offence imputed to him. The learned Advocate-General has not referred to any provision either in the Defence of India Rules or the Motor Vehicles Act to show that by reason of mere registration of a motor vehicle in the name of an individual, he can be deemed to be guilty of any offence committed by another by using that lorry or vehicle. On the other hand, Sri Somanatha Iyer on behalf of the petitioner argues that registration is only meant to facilitate the collection of Government dues, such as taxes, and by itself does not constitute title deed, and having regard to the volume of oral and documentary evidence, whatever initial presumption may arise from the registration of the vehicle in the name of the petitioner, it is dispelled and rebutted effectively.

3. Cal According to the petitioner, the lorry was nominally made out in his name as a security for the amounts advanced by him to one Murigappa and, therefore, to all intents and purposes, Murigappa himself acted as the owner. It is he that let it out on hire to others, received amounts due by others who used it, arranged to get renewal of the license, made periodic payments and in fact did all that was necessary to keep the lorry in service. Murigappa examined as D.W.3 unequivocally speaks to this, and Ex. D series corroborate his version. The learned Magistrate has remarked that the petitioner did not in his statement make reference to the transaction between him and Murigappa for the purpose of registration in his name. A perusal of the statement goes to show that he has in fact not only stated that the owner of the lorry is not himself but Murigappa, and the reason for the lorry being registered in his name is that it was meant to be a security for the loan advanced by him. The learned Magistrate has referred to Ex. D series, and finding that these are not sufficient to disprove his ownership, convicted the petitioner. lie has, however, overlooked that even so, it would not be sufficient to render the petitioner liable for the offence. Rule 121, Defence of India Rules says that any person who attempts to contravene or abets or attempts to abet or does any act preparatory to a contravention of the rules or any order made there. in shall be deemed to have contravened that provision. It is not disputed that the burden of establishing that there was either an attempt to contravene or attempt to abet or do any act preparatory to a contravention of the provisions, lies on the prosecution and in support of is no evidence whatever is available. No statutory provision or authority to justify a conviction of the registered owner of a motor vehicle in the absence of anything done or said by him for facilitating the commission of an offence, has been brought to my notice. The provision relied upon being a penal one, has to be strictly construed, and that being so, in my opinion the conviction cannot stand.

4. It is accordingly set aside and the petitioner acquitted. The fine, if paid, will be refunded. Conviction set aside. AIR (37) 1950 MYSORE 11 [C.N. 6.] "A. A. Khan v. Ameer Khan" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) A. A. Khan and others - Defendants - Petitioners v. Ameer Khan and others, Plaintiffs and another, Defendant-Respondents. Appeal No. 64 of 1949-50, D/- 30 -11 -1949, against decree of D.J., Civil Station, Banglore, in Original Suit No. 48 of 1946. Civil P.C. (5 of 1908), O.41, R.5 - APPEAL - DECREE - EXECUTION - Money decree - Execution of - Stay pending appeal - "Sufficient cause" made out - Court can stay on security - Direction to deposit decretal amount not necessary in all cases. The Court can stay execution of money decrees pending appeal on such security as it deems fit in proper cases in which sufficient cause for a stay has been made out, without requiring in all cases that the decree amount should be deposited in Court: AIR (8) 1921 Lah. 24 and Beng. L.R. Sup. Vol.1007, Rel. on; 9 Mys. L.J.R. 484, Disting.; 13 Bom. 241, Dissent. (Para 8) Annotation: (44-Com.) Civil P.C., O.41, R.5, N.6. A. V. Shankara Ran - for Petitioners.

L. S. Raps - for Respondents. Judgement Order. - This is an application under O.41, R.5, Civil P.C. The point for consideration is whether pending R.A. 64 of 49-10, the execution of the decree of the lower Court has to be stayed on appellants furnishing security.

2. The lower Court has passed a decree for payment of Rs.12,000 claimed to have been contributed by the plaintiffs towards their share of capital of a partnership concern for the dissolution of which the suit was filed and has passed also a preliminary decree for dissolution of partnership with a direction that accounts should be taken for ascertaining the income of the partnership concern. It is contended on behalf of the appellants that even if the plaintiffs have contributed Rs.12,000 towards capital of the partnership concern there can be no decree for any amount at this stage, i.e., before accounts are taken. What is due to the plaintiffs or by them can only be ascertained after going through the accounts and in case there was a loss as contended by appellants, their share of the loss has to be adjusted out of the capital contributed by them. Form No.22 of Appendix D of Sch. I, Civil P.C., support the contention of appellants that it is possible in a suit for partnership, for a decree being drawn up directing payment of money by a plaintiff to a defendant if on taking of accounts any money is found to be due to the latter by the former. It is also contended that defendants 2 and 3 are minors and they cannot be partners of a firm. It is not desirable to express any opinion on these matters and it is sufficient to say that the points raised by the appellants are not frivolous and they deserve consideration. It is urged that out of the three appellants two are minors and that payment of a heavy sum is difficult in these days of financial difficulties and that if the decree is allowed to be executed, the appellants including the minors will suffer substantially and there is no harm in staying execution on substantive security being furnished.

3. The point that was seriously urged by the respondents on the authority of 9 Mys. L.J. 484, is that no stay can be ordered in the case of a money decree unless the appellants deposit the decree amount in Court for payment to them on their furnishing security for restitution in case the decree is reversed in appeal. According to the head-note in the above case: "Where a decree directs payment of money and an appeal is lodged against that decree by the party directed to pay, the execution of the decree should be stayed so far as it directs payment, on his lodging the amount in Court, unless the other party gives security for the repayment of the money in the event of the decree being reversed. If such security be given by the successful party, then stay of execution should not be granted."

4. Inspite of this decision, the practice in this Court is to order stay of execution in proper cases irrespective of the question whether the decree is one for payment of money or for possession of immoveable property, and not tee insist on deposit of decree amount in a case of money decree as a condition precedent. I feel no doubt that it is not correct to make any such distinction, as is not recognized by O.41, R.5, Civil P.C., or to lay down a condition not contemplated by it. I was at first inclined to refer the matter to a bench under the impression that the head-note contained the unqualified opinion of Doraswamy Iyer C.J. who decided that case. The head-note is however misleading inasmuch as it haves an impression that the opinion expressed in it is that of our High Court, though it is a quotation from Dhunjibhoy v. Lisboa, 13 Born.241. The learned Chief Justice appears to be clear on the point that the above rule laid down in Dhunjibhoy v. Lisboa, 13 Bom. 241 may generally be followed; but it has not been laid down by him that it has to be followed invariably.

5. The decision in 9 Mys. L.J. 484 has to be distinguished on the ground that it does not lay down a rule that has to be followed in all cases. The rule laid down in Dhunjibhoy v. Lisboa, 13 Bom.241, is recommended as a useful guide. It is not stated to be obligatory. If unless decree amount is deposited, execution of a money decree cannot be stayed, it would be unnecessary in a case where no such amount is deposited to, find out whether appellant has made out that he would suffer substantial loss if the decree is not stayed. It is found in that decision itself that the rule referred to did not preclude the learned- Chief Justice from considering whether the appellant would suffer substantial loss in case execution was not stayed. Looking from another aspect of the matter, it was not necessary in that case to consider on what condition the money decree could be ordered to be stayed as it was, as found by the learned Chief Justice, a case which there was not sufficient material for holding that the appellant would suffer substantial loss in case execution of the decree was not ordered to be stayed.

6. Though Doraswamiyer C.J. thinks "that generally the rule laid down in Dhunjibhoy v. Lisboa, 13 Bom.241, may with advantage be followed in such casees", it is correct to say that what has been laid down in the Bombay case was intended to be applied to all cases, where a decree orders payment of money". What is laid down in the Bombay case appears to apply to cases where the appellant applies for stay of execution so far as it directs payment of decree amount deposited by him, inspite of the fact that the decree-holder is prepared to pay security for the repayment of the money in the event of the decree being reversed. It may however be taken, as contended from the actual order which appears to have been passed in the Bombay case, that according to it, no money-decree should be stayed unless the decree amount is deposited in Court for payment to decree-holder on his-furnishing security for restitution in case the decree is reversed in appeal. A distinction, it is urged, is evidently made between decrees for money and decrees involving immoveable properties and the rule laid down makes it difficult for appellants to obtain orders of stay of execution of money decrees. I am inclined to think that more hardship is caused in refusing to stay execution of money decrees appealed against than in refusing stay of execution of decrees for possession of immoveable properties, as in the event of a reversal of money-decrees it might be found that in execution of the decrees strangers have purchased properties of the appellants. The inconvenience of a decree-holder in not being allowed to execute a decree pending an appeal cannot be worth serious consideration provided that substantial security is taken. There was, therefore, more reason in the practice that prevailed in Calcutta High Court invariably allowing stay of execution in all cases of decrees for money whether sufficient cause was shown or not, than in the rule laid down in Dhunjibhoy v. Lisboa, 13 Bom 241. Good cause was required to be shown only for stay of execution of immoveable property even on security being furnished. It was evidently so as even if the decree for possession of immoveable property is executed it would be easy, in case the decree is reversed in appeal, to put the defendant in possession of the property without affecting the right of a third party. The practice of the Calcutta High Court was based on the following observation found in In the matter of Rani Ismai Kooer, 9 W.R. 448: (Beng, L.R. Sup. Vol.1007) "The principle laid down by the Court regarding the staying of the execution of decrees appears to be this. When the decree is for land or other immoveable property, the decree-holder is allowed to execute his decree, unless good and sufficient cause for staying it be shown. When the decree is for money, the Court, in the exercise of its discretion under S.330, allows the debtor to stay execution on giving good and valid security, and we think that course should be followed in the present case."

7. The distinction made, however, with reference to nature of decrees is not justi5ed by the wording of O.41, R.5, Civil P.C. The question was, therefore, referred to a Full Bench. Peacock C. J. who delivered the judgment of the Full Bench care pointed out the hardships that are caused to decree-holders by ordering stay without sufficient cause on security being furnished and then observed as follows: "The foregoing remarks apply to money decrees but the rule above laid down is equally applicable to decrees for immoveable property and to other decrees." Again as observed in Dheramal v. Haidar Shah, 2 Lah. 61: (AIR (8) 1921 Lah.24): "Under O.41, R.5, Civil P.C., no order of stay of execution during pendency of an appeal can be made unless the Court is satisfied that substantial loss may result to the applicant and this rule applies to immoveable equally with moveable property."

8. 9 Mys. L.J. 484 does not lay down any rule prohibiting stay of execution of money decrees on such security as the Court deems fit being ordered in proper cases in which sufficient cause for a stay as laid down in O.41, R.5, Civil P.C., is made out.To direct in all cases of money. decrees that the decree amount should be deposited in Court before stay, pending appeal, is ordered, is to defeat the very purpose for which O.41, R.5 is intended, though in suitable eases nothing comes in the way of laying down such a condition. The circumstances in which an application for stay of execution has been prayed for has been referred to already and I think sufficient cause has been shown for ordering execution to be stayed pending disposal of the appeal, on security being furnished within one months time to the satisfaction of the lower Court, It is ordered accordingly. Petition allowed. AIR (37) 1950 MYSORE 13 [C.N. 7.] "Adinaranappa v. Mallamma" MYSORE HIGH COURT Coram : 2 BALAKRISHNAIYA AND MALLAPPA, JJ. ( Division Bench ) Adinaranappa - Defendant - Appellant v. Mallamma - Plaintiff - Respondent. Second Appeal No 610 of 1948-49, D/- 18 -10 -1949. against decree passed by let A. Sub-J., Court of Small Causes, Bangalore, in R.A. No.105 of 1947-48. (A) Limitation Act (9 of 1908), S.29(2) - LIMITATION - AMENDMENT - Effect of amendment - Applicability of general provisions to suits, etc. under special or local law. The distinction made between special or local laws which are complete codes as regards limitation and those which are not complete codes as regards limitation in considering the applicability of general provisions of limitation act as per S.29 (2) does not arise after the amendment of that section. Under that section certain sections of the limitation act are applicable unless excluded and other sections are not applicable unless included, whether the special or local laws provide or do not provide a separate or self- contained body of provisions with regard to limitation of suits, appeals or applications. Case law before amendment referred. (Paras 9, 10) Annotation: (42-Com) Limitation Act, S.29 N.1. (B) Limitation Act (9 of 1908), S.2 - LIMITATION - APPLICABILITY OF AN ACT - Applicability - "Prescribes a period of limitation," meaning of - Mysore Agriculturists Relief Act, S.24, merely mentioning period of limitation and nature of suits - Commencement of period not stated-No period is "prescribed" - S.19 and S.20, Limitation Act, apply with modification - Suit filed within six years of endorsement for interest is in time. Mysore Agriculturists Relief Act (18 of 1928), S.24. An enactment cannot prescribe a period of limitation by merely stating the period of limitation and the nature of suits, appeals and applications without mentioning also the time from which limitation starts. (Para 12) The Agriculturists Relief Act, which merely mentions some periods of limitation for some suits, different from those prescribed in the Limitation Act, has not prescribed any period of limitation for the suits referred to in it in the above sense. Therefore, the provisions of limitation act, including those contained in Ss.19 and 20 apply to suits under that Act except to the extent the act indicates the limitation act to be read as modified: 22 Mys. L.J. 27, Rel. on. (Para 12) Therefore, a suit filed more than three years after the date of the endorsement for payment of interest but within six years thereof is within time where the defendant is an agriculturist entitled to relief under the Agriculturists Relief Act. (Paras 12 and 13) Annotation: (42- Com.) Limitation Act, S.29 N.3. (C) PRECEDENT - Precedents - Stare decisis-Law laid down in old decision neither unjust nor opposed to public interest -- Change likely to affect number of transactions - Re-opening of law by reference to Full Bench is improper. When there is nothing in the view of the law adopted in a decision which is in itself unjust or opposed to the public interest, and the case was decided many years ago so that it is not improbable that many transactions have been made in the light of that decision, it would be improper to re-open such a question by a reference to a Full Bench and so possibly create confusion and unsettlement: 40 Mys. H.C.R. 435, Foll. (Para 13) D. Krishna Iyengar - for Appellant. Judgement Mallappa, J.- This is an appeal against the judgment and decree in R.A. No.105 of 47-48 on the file of the Additional Subordinate Judge, Bangalore, confirming those of the II Munsiff, Bangalore, in O.S. No.131 of 1946-47 on the file of this Court.

2. The plaintiff-respondent filed the suit against the defendant-appellant for recovery of Rs.613 due on a promissory note executed by the defendant on 3rd september 1937 in favour of the deceased husband of the plaintiff. The plaintiff relied on an endorsement on the promissory note dated 7th September 1940 for the payment made towards interest. The defendant is admittedly an agriculturist within the meaning of the Mysore Agriculturists Relief Act and he has pleaded discharge. This has not been believed by both the Courts and the suit is decreed as prayed for.

3. The only point that was argued in this appeal is that the Courts below erred in the view that the suit is not barred by limitation by reason of the endorsement dated 7-9-1940 inasmuch as Ss.19 and 20, Limitation Act do not apply to the periods of limitation prescribed for agriculturists entitled to relief under the Mysore Agriculturists Relief Act. It is conceded that the law as laid down in 22 Mysore Law Journal 27 is against this contention of the appellant. It is argued, however, that as the decision in Kishore Lal Stores v. Jagannath, AIR (31) 1944 Bom.89: (I.L.R. (1944) Bom.71) on which the decision in 22 Mys. L.J.27 is based, has been overruled by a later Full Bench decision in Janardan Eknath v. Ganesh Sadashiv, AIR (82) 1945 Bom. 200: (I.L.R. (1945) Bom. 167 F.B) the point raised needs some consideration and it was urged that in case we are satisfied that the decision in 22 Mys. L.J. 27 is not correct, the point might be referred to a Full Bench.

4. In this ease the suit is based on a pronote dated 3rd September 1937. The suit was filed only on 6th September 1946 more than three years after 7th September 1940, the date of the endorsement of payment of interest, bat within six years from the date. If the defendant was not an agriculturist within the meaning of the Mysore Agriculturists Relief Act, it is clear that the suit would have been barred by the provisions of the Mysore Limitation Act, But the period of limitation substituted in S.24, Mysore Agriculturists Relief Act for three years prescribed in the Limitation Act to cases of the kind under consideration is six years, in case it could be held that the plaintiff is entitled to the benefit of S.20, Limitation Act. The main point for consideration is whether S.20, Limitation Act is applicable to suits filed against agriculturists entitled to relief under the Agriculturists Relief Act, is within time.

5. Section 29 (2), Limitation Act is as follows: "Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law: the provisions contained in S.4, Ss.9 to 18 and S.22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and the remaining provisions of this Act shall not apply. It is not disputed that the Mysore Agriculturists Relief Act is a special law. It cannot also be disputed that if this Act prescribed for any suit a period of limitation different from the period prescribed by sch. I.S.20, Limitation Act would be inapplicable, unless the special law makes it applicable.

6. Under S.24, Mysore Agriculturists Relief Act, the period of limitation of twelve years and six years as mentioned in cls. (a) and (b) of that section "shall be deemed to be substituted for the period of limitation prescribed by the Limitation Act". Can it be said that this section of the Agriculturists Relief Act prescribes for any suit any period of limitation different from the one prescribed under the Limitation Act? The matter came up for consideration in Keshav Krishna

v. Bhagwan Sambhu, AIR (29) 1942 Bom. 131:(200 I.C. 12) and Divatia J. held with reference to the provisions of the Deccan Agriculturists Relief Act, containing the same wording as the section under consideration, that S.20, Limitation Act cannot be applied to cases of this kind, as the Agriculturists Relief Act, which is a special enactment itself prescribed a period of limitation different from that prescribed in the Limitation Act. But in a subsequent decision in Kishore Lai Stores v. Jagannath, 45 Bom. L.R.1064 AIR (31) 1944 Bom.89, Wadia and Sen JJ., held that: "Deccan Agriculturists Relief Act merely substituted in the schedule to the Limitation Act a special period of limitation, and does not lay down as independent self-contained provision as regards limitation applicable to such suits." Of the two conflicting views, the view taken in Kishore Lal Stores v. Jagannath, AIR (31) 1944 Bom 89: (I.L.R. 1944 Bom. 71) was preferred by Venkataramana Rao C. J. and Venkata Ranga Iyengar J. in the case reported in 22 Mys. L.J.27. What is now to be considered is whether there is any point raised in the Full Bench decision reported in Janardan v. Ganesh, AIR (32) 1945 Bom. 200. (I.L.R (1945) Bom. 167 F.B.) which has overruled Kishore Lal Stores v. Jagannath, AIR (31) 1944 Bom. 89: (I.L.R. (1944) Bom.71) that justifies a change in the view taken by this Court in 22 Mys. L. J. 27 following Kishore Lal Stores v. Jagannath, AIR (31) 1944 Bom. 89: (I.L.R. (1944) Bom. 71). The decisions in Kishore Lal Stores v. Jagannath, AIR (31) 1944 Bom. 89: (I.L.R. (1944) Bom. 71) and 22 Mys. L.J. 27 give two reasons for holding that all the provisions of limitation act including S.20 are applicable to suits to which the provisions of Agriculturists Relief Act are applicable except to the extent modified by that Act.The first reason is that the Agriculturists Relief Act does not contain a complete body of provisions regarding limitation. The second reason is that Agriculturists Relief Act does not prescribe any period of limitation different from those prescribed in the Limitation Act though it modifies the Limitation Act to some extent.

7. According to 9. 29 (2), Limitation Act, as it now stands, sections other than 4, 9 to 18 and 22 shall not apply "if any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by Sch. I" of the Limitation Act. It need hardly be added that if the special law states that all the sections of the limitation act are applicable, they become applicable. The judgment of Lokur J who made the reference to the Full Bench shows that the distinction made between local or special Acts containing a complete body of provisions with regard to limitation and those not containing them, no longer arises for consideration after the amendment of S. 29, Limitation Act. There is much force in this line of argument as the amendment was made to avoid the conflict of opinion that existed on the point before amendment and the amended section is so worded as to make it clear what sections of Limitation Act are applicable to special or local Acts and when they are and when they are not applicable.

8. The opinion expressed in Kishore Lal Stores v. Jagannath, AIR (31) 1944 Bom.89: (I.L.R. (1944) Bom.71) on the distinction referred to above for holding that the general provisions of the limitation act like S.19 and S.20 are applicable to Agriculturists Relief Act which does not contain a complete body of provisions with regard to limitation for suits, is based on the decision in Srinivasa Aiyangar v. Secy. of State, 38 Mad. 92: (AIR (3) 1916 Mad.1093), and it has been observed that: Section 72, Dekkhan Agriculturists Relief Act merely substitutes in the Schedule to the Limitation Act a special period of limitation as regards suits falling under S. 3 (w), Agriculturists Relief Act, and does not lay down an independent and self contained provision as regards the limitation applicable to such suits. The plaintiff in such a suit is entitled to the benefit of S.20, Limitation Act, and to reckon limitation from the date on which date a certain payment towards the Khata balance has been made." Following Kishore Lal Stores v. Jagannath, AIR (31) 1944 Bom.89: (I.L.R. (1944) Bom. 71), 22 Mys. L.J. 27 at page 29 states: It is evident on a perusal of the various sections of the Mysore Agriculturists Relief Act that it does not provide a separate or self-contained body of provisions with regard to the limitation of suits and therefore it cannot be said that there is any means by which we can determine the period of limitation within the meaning of S.29, Limitation Act." 9.The above distinction made between special or local laws which are complete codes as regards limitation and those which are not complete codes as regards limitation in considering the applicability of general provisions of Limitation Act as per S.29 (2) of that Act, is based on decisions like Srinivasa v. Secy. of State, 38 Mad.92: (AIR (3) 1916 Mad. 1093) relied on in Kishore Lal Stores v. Jagannath, AIR (31) 1944 Bom. 89: (I.L.R. (1944) Bom. 71), followed in 22 Mys. L.J.27. Such a distinction does not arise, it has to be stated with respect after the amendment of S.29 (2), Limitation Act. Section 29 (2) originally stood as follows: "Nothing in this Act shall affect or alter any period of limitation specially prescribed for any suit, appeal or application by any special or local law now or hereafter in force in British India." Section 6, Limitation Act, 1877, was substantially re-enacted in this form in S.29, sub-s. 1, cl. (b) of the Act of 1908 which has been now replaced by S.29 (2), Limitation Act in what used to be termed as British India. There is a similar amendment in the section of our Act. As observed in statement of objects and reasons for the amendment in Gazette of India Extraordinary dated 21st February 1921: "This provision (S.29) has been the subject of conflicting decisions by High Courts. The Calcutta Maharaja of Jeypore V.Vikarama Deo Garu, 24 C.W.N.1: (AIR (6) 1919 P.C.84) and Madras Sivarammayya v. S. Bujanga Rao, 39 Mad.593: (AIR (3) 1916 Mad. 376) High Courts have in effect held that the general provisions of the Act cannot be applied in computing the period of limitation specially provided by any special or local law, whereas the Allahabad High Court has taken the contrary view on the ground that the special or local law is not in itself a complete code of limitation. The object of the Bill is to make it clear that the provisions in certain sections of the Act apply to the period of limitation prescribed by any special or local law unless they are specifically excluded." The commentary in Chitaley and Annaji Raos Indian Limitation Act, vol. I pages 913 to 916 makes it clear also that the amendment is made to avoid this distinction and Srinivasa v. Secy. of State, 88 Mad.92: (AIR (3) 1916 Mad.1093) is referred to in the notes at p.915 as one of the decision which held that the "Test is whether Act is a complete code." The commentary makes it also clear that "The amendment of the Section into its present form by the Limitation (Amendment) Act of 1922 has now set the conflict at rest. The words affect or alter have been deleted, and the extent and applicability of the several general provisions of the Act, to the periods prescribed by the special or local laws, specially laid down."

10. The result is that the distinction made between special and local laws which are complete codes as regards limitation and those which are not, in Srinivasa v. Secy. of State, 38 mad. 92: (AIR (3) 1916 Mad. 1093) and other decisions on which the decision in Kishore Lal Stores v. Jagannath, AIR (31) 1944 Bom.89: (I.L.R. (1944) Bom.71) followed in 22 Mys. L.J. 92 does not arise after the amendment of S.29, Limitation Act as the amendment has the effect of overruling the decisions like Srinivasa v, Secy. of State, 38 Mad.92; (AIR (3) 1916 Mad.1093) which are based on such a distinction. Section 29 (2), Limitation Act as it now stands is applicable only if the special or local Act prescribes a period of limitation different from that prescribed in the Limitation Act. In such cases it states that certain sections of the limitation act are applicable unless excluded and that other sections are not applicable (unless included). This is so whether the special or local laws provide or do not provide a separate or self-contained body of provisions with regard to limitation of suits, appeals or applications. If the Agriculturists Relief Act "prescribed for any suit appeal or application a period of limitation different from that prescribed therefor" by the Limitation Act the mere fact that it does not provide a separate or self-contained body of provisions with regard to the limitation of suits does not entitle the plaintiff in such a suit to the benefit of S.20. Section 29 as it stands after amendment makes it clear that in such a case only Ss.4, 9 to 18 and 22 are applicable unless excluded by such an enactment and that other provisions like S.20 shall not apply. It has to be stated with respect that after the amendment of S.29, Limitation Act, it is incorrect to apply the test whether the special or local law contains an independent and self-contained provisions as regards limitation or whether it does not, for the purpose of finding out whether general provisions of limitation act like S.20 of that Act are applicable to suits governed by the special or local Act.

11. fill The question whether the provisions of the limitation act other than those contained in Ss.4, 9 to 18 and 22 can be applied to suits governed by provisions of any special or local law such as the Agriculturists Relief Act depends mainly on the determination of the point whether the special or local law prescribes a period of limitation different from that provided in Sch. I, Limitation Act and it is, therefore, necessary to see whether the Agriculturists Relief Act prescribes any period of limitation. The main basis on which the opinion of Kania C.J. in the Full Bench decision in Janardhan v. Ganesh, AIR (32) 1945 Bom. 200: (I.L.R. (1945) Bom. 167 F.B.) rests is found in the following observation: In order to appreciate the true effect of S.29 (2), Limitation Act, it is necessary to first turn to Sch.I, Limitation Act. It is divided into three columns; the first is headed description of suit, the second `period of limitation and the third time from which period begins to run. The expression period of limitation is thus used in that schedule to mean what is prescribed under Col.2. Incidentally, in my opinion it negatives the contention that a period of limitation, must prescribe the starting point because, if that was correct there was no necessity for the Legislature to make Col.3 time from which period begins to run. It seems to me, therefore, that by the use of the words period of limitation in S.29 (2), Limitation Act, the Legislature clearly meant a period stated in another special or local law which could be put in place of the period shown under Col. 2 Sch. I." If analysed, the decision is based upon the assumption that the mention of periods of limitation in the Agriculturists Relief Act is equivalent to prescription of a period of limitation. The point for consideration is when it can be said that "A special or local law prescribes for any suit appeal or application a period of limitation different from the period prescribed therefor by the first schedule of Limitation Act." How is a period of Limitation prescribed in any enactment?

12. Periods of limitation are prescribed for instance in the Sch.I, Limitation Act, and in fact it is clear that S.29, Limitation Act, uses the word "prescribed" in the sense it is used when it is said that a period of limitation is prescribed in Sch.I of that Act. Supposing the period of limitation alone or the period of limitation and of the nature of suit, appeal or application alone were stated in appropriate columns in the Sch.I of Limitation Act and not also the time from which the period begins to run, can it be said that the period of limitation is prescribed? The nature of the suit, application, or appeal and the period of limitation are no doubt stated in such a case but before it could be said that the Limitation Act prescribes the period of limitation, it has also to state the time from which the period begins to run. It would not have been possible to apply to any case S.3, Limitation Act referred to in S.29 (2) of Limitation Act if in prescribing the period of limitation the Act had not stated the time from which the period begins to run. Section 6, Limitation Act refers to the time prescribed therefor in column 3 of Sch.I." According to S.12 (1). "In computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded" Column (2) in Sch. I mentions the period of limitation but the Limitation Act prescribes the period of limitation by what is mentioned in all the three columns of sob. I taken as a whole. An enactment cannot prescribe a period of limitation by merely stating the period of limitation and the nature of suits, appeals and application. The time from which limitation starts must also be mentioned before any prescription is laid down. It is true that the Agriculturists Relief Act mentions some periods of limitation for some suits, different from those prescribed in the Limitation Act but it does not prescribe those periods. The periods mentioned by it are to be read in place of periods mentioned in the Limitation Act which it is that lays the prescription by stating all that is necessary to state for that purpose. As the Agriculturists Relief Act has not prescribed any period of limitation for the suits, referred to in it in the above sense it could be said that periods of limitation have been prescribed in Sch. I of Limitation Act, it cannot be said that S.29 (2) of that Act is applicable. The result is that all the provisions of limitation act including those contained in Ss.19 and 20 are applicable to suits under the Agriculturists Relief Act, except to the extent the act indicates the limitation act to be read as modified.

13. The only other point considered in the Full Bench decision is the construction of the meaning of the word substituted found in the section of the Agriculturists Relief Act, modifying in the case of suits mentioned in it, the period of limitation as given in Sch. I, Limitation Act. It has to be observed with respect that proper significance of the word is noticed in 22 Mys. L.J. 27 and that the reasoning given in it cannot be improved upon. As observed at p.29: "The words shall be deemed to be substituted are significant. The expression the periods of limitation, in the specific context means the number of years mentioned in Clauses (a) and (b) of the Section. By a statutory fiction though six years is not mentioned In Col. 2 of the said Art. 67 you must read that article as though six years were there. The said article so read will apply to the case. Thus, it is the Mysore Limitation Act that governs the case with the statutory fiction imposed thereon. Once the Limitation Act applies, S.20 of the Act is attracted and the suit claim is not barred by limitation having been instituted within six years from the date of the list endorsement. This conclusion follows from the plain, meaning of the language of S.24, Mysore Agriculturists Relief Act". We would like to add one other reason for being reluctant to change the view already taken by this Court. As observed by Reilly C.J. in 40 Mys. I3. C.B. 435: "When there is nothing in the view of the law adopted in such a case which is in itself unjust or opposed to the public interest, and the case was decided many years ago so that it is not improbable that many transactions have been made in the light of that decision, it would be improper to re-open such a question by a reference to a Full Bench and so possibly create confusion and unsettlement". Thus the principle of stare decisis stares us in the face. It cannot be said that there is any need to refer the matter for reconsideration by a Full Bench and we agree with respect with the view taken in 22 Mys. L.J. 27 that S.20, Limitation Act is applicable to suits mentioned, in S.24, Mysore Agriculturists Relief Act. The result is that the appeal stands dismissed. Balakrishnaiya, J. - I agree. Appeal dismissed. AIR (37) 1950 MYSORE 18 [C.N. 8.] "Puttamma v. Hanumiah" MYSORE HIGH COURT Coram : 2 PUTTARAJ URS AND MALLAPPA, JJ. ( Division Bench ) Puttamma - Decree-holder - Appellant v. Chikka Hanumiah and others - Judgment debtors - Respondents. Second Appeal No. 289 of 1948-1949, D/- 31 -10 -1949 against order of 1st A. Sub. J., Bangalore, in R.A. No.145 of 1947-48. (A) Civil P.C. (5 of 1908), S.146 and O.21, R.16 - LEGAL REPRESENTATIVES - DECREE - EXECUTION - Death of decree-holder during pendency of execution proceedings - Death does not cause abatement - Legal representatives failure to prosecute - Court can dismiss application. Civil P.C. (5 of 1908), O.22, R.12. By death of decree-holder or by assignment of decree, the execution case does not abate but if the decree-holder or the person to whom his interest is transferred by assignment or by operation of law is not diligent enough to appear before Court and apply for execution to proceed, nothing comes in the way of the Court dismissing the execution case: Case law referred. (Para 10) Annotation: (44-Com ) C.P.C., S.146, N.4; O.21, R.16, N.19; O.22, R.12, N.1. (B) Limitation Act (9 of 1908), Art.181 - LIMITATION - APPLICABILITY OF AN ACT - EXECUTION - LEGAL REPRESENTATIVES - pplicability - Execution proceedings-Death of decree-holder pending proceedings - Dismissal of - Execution application by legal representatives not within three years is barred. Even in the case of execution cases, though they are not subject to O.22 relating to abatement, Art. 181 is applicable for fixing the time within which an application can be filed by the assignee-decree-holders or decree-holders legal representatives, to be brought on record and to proceed with the execution. Therefore, where the death of the decree-holder took place prior to the dismissal of his execution case, and his legal representatives brought in the second execution case more than three years after the date of the dismissed of the first it is clearly barred under Art.181: Case law referred. (Para 15) Annotation (42-Com.) Limitation Act, Art.181, N.8; Art.182, N.78. M.V. Raghunathachar for Janardanan - for Appellant. Madhava Rao for P. Bhima Rao-for Respondents. Judgement Mallappa, J.- This is an appeal against the decision in R.A. 145 of 1947 48 on the file of the Additional Subordinate Judge, Bangalore reversing that of the Second Munsiff, Bangalore in Execution No. 317 of 1946-47.

2. The point for consideration in this appeal is whether Execution Case No.317 of 1916-47 referred to above was rightly dismissed as barred by time. This execution case filed on 27th January 1947 more than 12 years after 27th November 1933, the date of the decree sought to be executed, and more than 3 years after the dis. missal of previous Execution case No. 802 of 1933- 34 on 23rd November 1934, is clearly barred both under S.48, Civil P.C. as well as under Art.182, Limitation Act unless it is construed to be continuation of the latter execution case.

3. The short point for consideration is, therefore, whether Execution No. 317 of 1946 47 can be construed to be a continuation of Execution No. 802 of 1933-34. The latter case was dismissed on 23rd November 1934 as decree-holder failed to file a "verified statement," but it is now argued that decree-holder had died before the execution application was dismissed and this fact is not denied. It is contended that Execution Case No.802 of 1933.34 should not have been dismissed and kept pending till decree-holders legal representative applied to be brought on record and the decision in Sundarabalakadiresa v. Avudai Ammal, AIR (29) 1942 Mad. 495: (202 I.C. 211) has been relied on. It has been held in that decision that "where the decree-holder dies pending an execution application the Court has no jurisdiction to pass any order dismissing the execution application. The application ought to be kept on file awaiting for any legal representative to continue it." It is contended that Execution No.602 of 1933- 34 was wrongly dismissed and it must be considered that it was dismissed for statistical purposes only and that it can in revived by a legal representative of the decree-holder. The decisions reported in 6 Mys. L.J. 265, 19 Mys. L.J. 82 and 21 Mys. L.J. 307 support the contention that execution cases dismissed for no fault of decree-holder could be revived oven more than 12 years after date of decree.

4. There is, however, no decision of our High Court which supports the contention that an execution application should not be dismissed after a decree-holder dies and his legal representative does not turn up to continue the proceedings on the date of hearing. No decision of any High Court has been brought to our notice that if an execution application is dismissed after decree-holder dies as no one has come forward to proceed with the case, the case can be revived more than three years after the death of the decree-holder and the dismissal of the case and more than 12 years after the date of the decree, The point, therefore, deserves some consideration.

5. The procedure that has to be followed when a party dies in a pending suit is laid down in O.22, Civil P.C. According to it the suit abates unless an application is filed to bring legal representative of the deceased on record within 90 days. The necessity of keeping the case pending till then arises as no fresh suit can be filed on the same cause of action. But on the dismissal of an execution case before the decree is satisfied a fresh execution application can be filed subject to law of limitation. Order 22, Civil P.C. which directs that suits shall abate unless legal representatives of deceased parties are not brought on record within 90 days is not made applicable to execution cases.

6. Section 146 and O.21, R.16, Civil P.C., enable the legal representatives of a decree- holder or the assignee decree-holders to file fresh execution applications within time allowed by law: but neither O.22, Civil P.C., nor any other provision of law comes in the way of decree-holder assignees, legal representatives of decree-holders or judgment-debtors being brought on record in pending execution cases filed by decree-holders before, as the case may be, the death of decree holder or judgment- debtor before the decree was assigned. The decision to the contrary in Palaniappa Chettiar V.Vallianmai Achi, AIR (14) 1927 Mad. 184: (50 Mad. 1), was overruled by the Full Bench decision in Venkatachalam v. Ramaswami, AIR (19) 1932 Mad. 73: (65 mad. 352).

7. Even if there is no provision of law in Civil Procedure Code to bring legal representatives of deceased persons who are parties to execution cases on record it cannot be said that they cannot be brought on record and the rights of parties are defeated by death of one or the other of the parties. As has been often held, Civil Procedure Code is not exhaustive and S.151, Civil P.C. gives power to Courts to do what is needful to prevent injustice. There is however no need to have recourse to S.151, Civil P.C. Order 21, R.16, provides that when a decree "is transferred by assignment in writing or by operation of law the transferee may apply for execution of the decree to the Court which passed it". This does not necessarily mean that the legal representative of decree-holder or the assignee decree-holder need file a fresh execution application.

8. The words of O.21, R.16, Civil P.C., are capable of being construed as enabling the transferee of the decree by assignment in writing or by operation of law applying for execution of the decree in the very execution case filed by decree-holder in case such an application is pending. At observed by Ananthakrishna Iyer J., in Venkatalakshmamma v. Seshagiri Rao, 131 I.C. 610 at p. 616: (AIR (18) 1931 Mad. 303). "If the only remedy open to the legal representative of a deceased decree-holder in such a case be to file a fresh execution petition, then fresh pleas of limitation might be open to the judgment-debtor, the intervening period affording him basis for such contention. Attachments which were effected pending the prior execution would prima facie no longer be available when a fresh execution petition is filed. The advantages which a decree-holder has ac a result of his having filed execution petition, such as the right to share in the proceeds of auction sales held by the same Court after the filing of such execution petition, might not be necessarily available to him on such fresh execution petition. Other disadvantages to the decree-holders representative also could be really imagined". As observed by Reilly J., in the same case at P.612. "If an execution petition is in progress and an attachment has been made, and then the judgment- debtor dies, according to the principle adopted in Palaniappa Chettiar V.Volliammai Achi, 99 I.C. 627: (AIR (14) 1927 Mad. 184), that petition comes to an end and the attachment must go. The accident that the judgment-debtor has died may, therefore throw a most serious obstacle in the way of a diligent decree-holder. In the same way persons who have come into those execution proceedings for rateable distribution in a proper way may be entirely defeated, And, if the decision is pressed to its logical conclusion, when a judgment debtor dies during the pendency of execution proceedings which have been taken on appeal or second appeal, the result will be that the whole proceedings fall to the ground end even at that late stages new execution petition has to be started". It is observed in the Full Bench case in Venkatachalam v. Ramaswami, AIR (19) 1932 Mad. 73 at p. 81: (55 mad. 352). "The practice in Indian Courts was always to allow the legal representative of a deceased decree-holder to continue the pending execution petition filed by him by substituting his name in it In the place of the deceased decree-holder and then to proceed with the execution. The correctness of this practice was affirmed in the Full Bench decision which held: "Though O.22, has no application to execution proceedings, still by reason of S. 146, and O.21, R. 16 the legal representative of a decree-holder who dies during the pendency of an execution petition can he substituted in the execution petition and be allowed to continue it. It is not obligatory on him to file a fresh application." Amar Singh v. Commr. of Income-tax, Punjab, 155 I.C. 968: (AIR (21) 1934 Lah. 919) and Sailendra Nath v. Surendra Nath, 129 I.C. 572: (AIR (17) 1930 cal. 614), support the same view.

[9] It is thus open to decree holders legal representative or a decree holder assignee to file a fresh execution application praying for execution of the decree or to apply for continuing the execution case filed by decree, holder before the decree was transferred by assignment or operation of law. It has, however, to be stated with respect that it is difficult to agree with Somayya J. in his observation in Sundarabalakadiresa v. Avadai Ammal, AIR (29) 1942 Mad. 495: (202 I.C. 211) that where the decree holder dies pending an execution application the Court has no jurisdiction to pass any order dismissing the execution application. The application ought to be kept on file awaiting for any legal representative to continue it". No authority has been cited and no reasons are given in the decision itself. A suit is ordered to lie over till the time fixed for filing a legal representative application is over, as in case it is dismissed meanwhile, no fresh suit can be filed. In the case of the death of a decree-holder or assignment of his decree, it is open to legal representatives of decree-holder or decree-holder assignees either to apply in the execution case to continue the execution of the decree or to file a fresh execution application. If he does not care to apply in the execution case for his being brought on record so that execution might proceed, it is not for the Court to keep the case pending for him to do so as he has the other remedy of filing a fresh execution application. This is particularly so when the decree-holder has still time under S.48 to file a fresh execution application.

10. It may be that when 12 years after date of decree is over, the Court might keep an execution case pending in order to enable a legal representative of decree-holder or decree-holder assignee filing an application. It is neither necessary nor desirable for the Courts to keep execution cases pending after death of decree-holders or after assignment of decrees, when the legal representative of decree-holders or assignees of decree-holders do not come forward with an application for continuing the execution proceedings, while they have as in this case the right to file fresh execution applications. By death of decree-holder or by assignment of decree, the execution case does not abate but if the decree- holder or the person to whom his interest is transferred by assignment or by operation of law is not diligent enough to appear before Court and apply for execution to proceed, nothing comes in the way of the Court dismissing the execution case.

11. As observed in Venkatalakshmamma v. Seshagiri Rao, 131 I.C. 610: (AIR (18) 1931 Mad, 303) by Anantha Krishna Iyer J. at p. 617: "If a plaintiff should not appear on the date fixed for the hearing of his suit, then the suit is dismissed. It is not open to him to file a fresh suit except under particular circumstances. His ordinary remedy is to have the old suit restored to the file and to have the relief prayed for therein granted to him in that suit. But in the case of execution petitions greater latitude has been, for obvious reasons, allowed to a decree- holder" "A decree holder who does not promptly and expeditiously carry on proceedings in execution but allows his petition to be dismissed because proper steps have not been taken by him is not thereby denied the relief claimed for all time. He is, subject to question of limitation which I am not considering here, entitled to file a fresh execution petition seeking the same reliefs. As I said there are also other rules of procedure applicable to suits but not applicable to execution petitions. The rules have been recognised by Courts long prior to the enactment of O.22, R.12, in the Code of 1908. It has been laid down that though a decree-holder has just like a plaintiff the right to have the legal representative of the deceased judgment-debtor substituted in the original execution petition and to go on with the same till complete effectual relief is afforded to him in execution he is not bound to do so and that the principle of abatement does not apply to execution petitions. In fact that disability is not cast on decree-holders in respect of execution petitions but decree-holders legal representatives are given the option, of which they may avail themselves or not in the circumstances".

12. As observed by Reilly J. in the same case: "If a suit is going on in a Court, the Court is interested in seeing that that suit is disposed of promptly both for the sake of its own business and out of fairness to other parties concerned. It is reasonable that, if a defendant dies and the right to sue survives, the plaintiff should be required under a penalty to make up his mind promptly whether he is going to continue to trouble the Court with that suit. It would be unreasonable that the suit should be left for a very long time pending on the Courts file while the plaintiff made up his mind what he was going to do about it, having already launched it. But, when we come to execution proceedings, after a decision has been given between the parties and a decree has been made, the Court is not interested in urging the decree-holder to press on with his execution. It matters nothing to the Court if the decree-holder takes the full time allowed by law for his execution proceedings or drops them altogether".

13. Though a suit has to be ordered to lie over after the death of a party till the time allowed by law for filing an L.R. application has expired, it has to be so done as a fresh suit on the same cause of action cannot be filed. When decree-holders legal representative or assignee has a right to file a fresh execution application, it cannot be said that there is any necessity for the Court to keep an execution case in which decree holder is dead or has assigned his decree, on file awaiting for any legal representative or assignee to continue it, though in case an application is filed by the latter when the case is still pending it is bound to bring them on record and proceed with the case.

14. Assuming however that the execution case has to be kept on file awaiting a legal representative of deceased decree-holder or assignee decree-holder to continue the application, it can only do so till the period of limitation for his filing an application for that purpose expires. Reilly J. observed in Venkatalakshmamma v. Seshagiri Rao, 131 I.C. 610 at P.614: (AIR (18) 1931 Mad. 303): "I think the correct view is that, if Rs.3 and 4, O.22, were not there still, if a defendant died and the right to sue survived the plaintiff could bring on record the legal representative of the defendant, and we should have to let him do so. Otherwise, we should be denying him his legal remedy. But in the absence of those rules he would have three years for doing it under article 181, Limitation Act." It is clear that even in the case of execution cases, to which order 22, Civil P.C., is not applicable, it follows that it is Art. 181, that is applicable for fixing the time within which an application can be filed by assignee decree- holders or decree-holders legal representatives to be brought on record and to proceed with the execution. Kalyani Pillai v. Thtrtivenkataswami, 47 M.L.J. 154: (AIR (11) 1924 Mad. 695) is also an authority on the point. It has been observed in the Full Bench decision reported in Venkatachalam v. Ramaswami, AIR (19) 1932 Mad. 73: (55 Mad. 352 F.B.) that the article applicable to cases of this kind is Art. 181. In this case the death of the decree-holder took place prior to the dismissal of execution case No.802 of 33-34 on 23rd November 1934 and the present execution case No.317 of 1946-47 filed more than three years after this date is clearly barred under Art.181. This execution case cannot, therefore, be treated as continuation of execution case No.802 of 1933-34. No other ground has been urged in the application for holding that the present application is in time. The application was therefore rightly held by the appellate Court as not maintainable.

15. The appeal stands, therefore, dismissed. There will be no order as to costs. Appeal dismissed. AIR (37) 1950 MYSORE 21 [C.N. 9.] "Sahadeviah v. Venkatamma" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) H. Sahadeviah and another - Accused- Petitioners V.Venkatamma - Complainant Respondent. Criminal Revn. Petn. No. 283 of 1948-49, D/- 3 -1 -1950, against order of 2nd Magistrate, Bangalore, in C.C. No. 812 of 1948-49. (A) Criminal P.C. (5 of 1898), S.342 and S.537 - EXAMINATION OF ACCUSED - CRIMINAL PROCEEDINGS - WITNESS - Omission to examine accused again after prosecution witnesses are recalled and cross-examined-Effect. Provided an accused person is examined generally on the case after the whole of evidence produced in support of the prosecution has been taken by the Court, it is not obligatory on the Court to further examine him after any prosecution witnesses, whose evidence has been already taken, are recalled at the instance of the accused and cross-examined and re-examined, and an omission to do so is neither an illegality which vitiates the trial nor an error or irregularity which requires to be cured under S.537: 29 Mys. C.C.R. 241, Rel. on. (Para 2) Annotation: (49-Com.) Criminal P.C., S.342, N.9, 35. Criminal P.C. (5 of 1898), S.367. The practice on the part of Magistrates of glibly believing what the prosecution witnesses have stated and coming to a finding without even attempting to give reasons for the same must be deprecated. (Para 3) Annotation: (49-Com.) Criminal P.C., S.367, N.6. (C) Criminal P.C. (5 of 1898), S.260 and S.530 - SUMMARY SUIT - CRIMINAL PROCEEDINGS - Offence not triable summarily-Court trying it summarily-Effect. When the complaint petition discloses very serious and heinous offences it is not competent for the Magistrate to reduce it into a lighter one so as to enable him to clutch at a jurisdiction to try the case summarily which is injudicious: Case law referred. (Para 3) Annotation: (46 Com.) Criminal P.C., S.260, N.5; S.530, N.6. (D) Criminal P.C. (5 of 1898), S.263, Cl.(h) - SUMMARY SUIT - CRIMINAL PROCEEDINGS - Statement of reasons in case of conviction. The statement of reasons under S.263 (h) should be so full and accurate as to enable the Court of Revision to find out whether the finding is right or wrong: 9 Mys. L. J 316, Rel. on. (Para 5) Annotation: (49-Com.) Criminal P.C., S.263, N.7. P.S. Devadas- for Petitioners. C. Nagaraja Rao-for Respondent. Judgement Order.-On a complaint petition filed by one Venkatamma who is examined as P.W. 2 in the case against the petitioners-accused, the learned Second Magistrate, Bangalore, directed the case to be taken on file and it was accordingly registered as C.C. No.812 of 48- 49. Amongst other things it was alleged in the complaint that the accused beat and kicked the complainant on 12-2-1919 at about 7.30 p.m. The learned Magistrate tried the case summarily for an offence under S.323, Penal Code, and found the accused persons guilty and convicted and sentenced them to pay a fine of Rs.30 or in default to suffer rigorous imprisonment for six days. It is against this order the accused have come up in revision before this Court.

2. The learned Advocate for the petitioners argued at the outset that the trial Magistrate having failed to comply with the mandatory provisions of S.842, Criminal P.C., by not examining the accused after prosecution witnesses were further cross examined by him and before they were called upon to enter their defence, the judgment of the learned Magistrate is liable to be set aside. But it is held by a Full Bench decision of this Court reported in 29 Mys. C.C.R. 241, that an accused person should be examined generally on the case after the whole of evidence produced in support of the prosecution has been taken by the Court: provided this is done, it is not obligatory on the Court to further examine him after any prosecution witnesses whose evidence has been already taken, are recalled at the instance of the accused and cross examined and re-examined and an omission to do so is neither an illegality which vitiates the trial nor an error or irregularity which requires to be cured under S.537, Criminal P.C. I, therefore, fail to see any force in this contention.

3. It was next urged by the learned counsel for the petitioners that the motive set up by the complainant for the assault on her by the accused was that the accused persons were backing up one Papiah who was a rival claimant for the very plot of land she had obtained from Government, which matter she avers in her complaint is being fought out by the parties before the second Munsiffs Court, Bangalore. That there being nothing on record to corroborate the said statement, it is urged that the motive set up by the complainant can neither be accepted as true nor taken proved. There is of course nothing on record to corroborate the allegation made in the complaint petition. The learned counsel has next pointed that the Magistrate has come to a ready conclusion without ever attempting to discuss critically the evidence placed before him which if done would not have warranted such a decision as is arrived at by him. Though the offence was said to have been committed on 12th February 1949, the complaint petition was actually presented on 18th February 1949 and there is no explanation forthcoming for the delay of six days. It is again stated in the complaint that she approached the police for redress and as the Police did not move in the matter she was obliged to file the complaint before Court. No attempt is made either to summon the complaint petition filed before the Police or the Police Officer before whom she complained to speak to that effect. That would certainly have strengthened her case if only it were true. The notes of evidence recorded by the Magistrate discloses that the offence complained of was committed in the dark half of the month just before the New Moon day at about 7.30 P.M. It would have been certainly a point for consideration whether it would be possible for anyone to identify properly the accused persons that committed the offence. The learned Magistrate has unfortunately not considered these aspects of the case in his judgment but has glibly believed what the prosecution witnesses have stated and has come to a finding without even attempting to give reasons for the same which practice must be deprecated. 3a. A still more important point canvassed before me is that the learned Magistrate acted improperly in trying the accused for an offence under S.323, Penal Code, while the complaint petition disclosed that the offences complained of were indeed more serious and heinous capable of being brought under Ss.355, 448, 506 307 and 342, Penal Code, than the one tried by him and the Magistrate was not therefore justified in ignoring the serious offences and take cognizance of a simple offence in order to enable him to try it summarily. In support of his contention the learned advocate for the petitioners relied on a series of cases decided by the High Courts of the Dominion of India some of which will be adverted to presently. Empress v. Abdul Karim, 4 Cal, 18:(3 C.L.R. 44); Kailash Chunder v. Joynuddi, 5 C.W.N. 252; Debi Ram v. King Emperor, AIR (11) 1924 ALL. 675 (2): (25 Cr. L.J. 1168), Balwant Singh v. Emperor AIR (26) 1939 ALL. 693: (41 Cr. L.J. 91) and Bishu Shaik v Saber Mollah, 29 cal. 409: (6 C.W.N. 713), In the case reported in Balwant Singh v. Emperor, AIR (26) 1939 ALL 693: (41 Cr. L.J. 91), where the accused was charged with offences under Ss. 147 and 452, Penal Code, in the complaint petition but the Magistrate issued summons under S.448, Penal Code, having tried summarily, convicted the accused under S. 452, it was held by their Lordships that the Magistrate was not empowered by law to hold a summary trial in such a case and proceedings were void under S. 530, Criminal P.C. In Bishu Shaik v. Saber Mollah, 29 Cal. 409: (6 C.W.N. 713), it was held that as the petition of complaint disclosed the commission of a much more serious offence than the offences for which the Magistrate held a summary trial and the examination of the complainant which had not been properly recorded did not show that such offence had not been committed, the Magistrate had acted without jurisdiction. Sri C. Nagaraja Rao, the learned counsel for the respondents, on the other hand relies on Empress v. Lachmi Narain, 1887 A.W.N 103; Queen Empress V.Vallabh Gopal, 1 Bom. L.R. 683 and Gudar v. Emperor, AIR (20) 1933 Oudh 50.(34 Cr L.J. 547), to show that it was not however incompetent for the Magistrate to try the case summarily. It is held in Gudar v. Emperor, AIR (20) 1933 oudh 50: (34 Cr. L.J. 547) that where the case was of a petty character, the Magistrate was held to have exercised his discretion in trying the accused for the offence of theft and not for that of rioting. Though it is possible to distinguish the facts of the present case from the one cited above, I am with due deference to the Judges who have expressed their view in the above decisions cited by the learned counsel for the respondents, inclined to agree with the preponderating view of the Dominion High Courts and hold that when the complaint petition discloses very serious and heinous offences as it does in the present case, it is not competent for the Magistrate to reduce it into a lighter one so as to enable him to clutch at a jurisdiction to try the case summarily which is injudicious.

4. It is further urged that the judgment contains mere conclusion without reasons for the finding. I am inclined to agree with this contention.

5. A Magistrate empowered under S.263, Criminal P.C., is entitled to exercise summary powers, but the summary procedure should not be reduced still more summarily. Section 263, no doubt, dispenses with the obligation of recording evidence, but S.263 cl. (h) makes it incumbent upon the Magistrate to record, in case of conviction, a brief statement of reasons therefor. The statement should he so full and accurate as to enable the Court of Revision to find out whether the finding is right or wrong. In other words, the brief statement should show "that there was such evidence as to form the existence of the ingredients necessary to constitute the offence of which the accused is committed" (Vide, 9 Mys. L. J, 316).

6. The Magistrate has believed the evidence, but the record is incomplete; the judgment is thus defective and cannot be upheld. The conviction and sentence of fine are set aside and the case is remitted back to the trial Court with a direction that it may be taken on file for trial under the regular procedure and for disposal according to law. Case remanded. AIR (37) 1950 MYSORE 23 [C.N. 10.] "Ramchandrasetty v. Nagappasetty" MYSORE HIGH COURT Coram : 1 VENKATA RAMAIYA, J. ( Single Bench ) M.L.Ramchandrasetty, Defendant 5 and others - Petitioners v. M.L.Nagappasetty and others - Respondents. Civil Revn. Petns. Nos. 527 and 363 of 1948-49, D/- 27 -9 -1949, from order of District Judge, Banglore, dated D/- 23 -11 -1948. (A) Civil P.C. (5 of 1908), O.1, R.10 - CIVIL PROCEDURE - PARTITION - Addition of parties - Suit for partition - Plaintiff claiming larger share under will consented to by defendants -Property alleged ancestral-Major sons of defendants applying to be made parties - Application should not be refused - Principle of dominus litis does not apply. The matter of adding or refusing to add a party is entirely discretionary with the Court. (Para 4) There is a distinction between necessary and proper parties and the guiding principle for making a person as a party is to see whether bus presence is "necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit." (Para 6) Where in a suit for partition of allegedly ancestral properties the eldest brother claimed a larger share than allowed to him by law, by setting up a will of the father consented to by his brothers who were the defendants, the application of their major sons to be brought on record so as to enable them to assert their claims on the basis of the property being ancestral should not be refused, as their presence in suit is necessary for an effective and complete adjudication. (Para 6) An objection to the petition of the major eons on the ground of dominus litis cannot be sustained, because in a suit for partition each of the sharers has a voice and an option as to who may be added as parties: Case law referred. (Para 7) Annotation: (44-Com.) Civil P.C., O.1, R.10, N.11 and 15. (B) Civil P.C. (5 of 1908), S.115, O.1, R.10 - REVISION - CIVIL PROCEDURE - PARTITION - Partition suit-Application by major sons of defendants to be impleaded - Applicants having right to challenge decision in suit if not made parties - Order refusing application can be interfered with in revision. An order refusing to bring on record the major sons of the defendants in a partition suit can be interfered with in revision, where the applicants have a right to challenge the decision in the suit in a separate suit if not made parties, in order to avoid the possibility of multiplicity of litigation: Case law referred. (Paras 4 and 6) Annotation: (44-Com.) Civil P.C., S.115, N.5: O.1, R.10, N.43. In No. 527/48-49.

V. Krishnamurthy-for Petitioner. Mirle N. Lakshminaranappa; S.R. Ramanathan (for Nos. 1 and 3) and M.P. Somasekhara Rau (for No. 2)-for Respondents. In No. 365/48-49. R. Venkata Rao- for Petitioners. Mirle N. Lakshminaranappa (for L. Rs. Nos. 1 and 3); M.P. Somasekhara Rau ( for L. R No. 2) and V. Krishnamurthy ( for Nos. 2, 4, 8 and 9) -for Respondents. Judgement Order.-These two cases may be conveniently disposed of by the same order as the points involved for consideration in both are practically identical. The order sought to be revised in both cases is one passed in a suit dismissing two applications one of which, I. A. No. IV was filed by a son of the plaintiff and the other I.A. No. VIII by the sons of the defendants for being added as parties in the suit. The original plaintiff now being dead the petitioner in I. A. No. IV has been impleaded as one of his legal representatives and in view of his being thus made a party in the case Sri Somasekhara Rao, the learned counsel, represents on his behalf that there is no need to consider the correctness of the order so far as he is concerned. The defendants and their sons have applied separately in these two cases for the order being set aside with respect to I.A. No. VIII.

2. The pleadings in the case are lengthy, the properties involved are of considerable value and the contest between the parties seems to be acute over several matters. It is sufficient for the purpose of these cases to state that the suit is for partition and that the plaintiff is the elder brother of defendants 1 to 8 and defendant 9 is their mother. The share claimed by the plaintiff is, however, more than what is conceded to the defendants and for this a will said to have been executed by the father and consented to by the defendants is relied upon. This is disputed by the defendants. The main reason for rejecting the application I. A. No. VIII as mentioned in the order is that in a suit for partition it is necessary only to make the head of each branch in the family a party and that defendants 1 to 8, who are plaintiffs brothers, represent each branch of the family and safeguard the interests of that branch. The learned Judge has apparently overlooked the fact that for upholding and enforcing the claim of the plaintiff it is not enough that the defendants are consenting parties to the arrangement and that the arrangement is such as would bind not only the defendants but their family including the petitioners in I.A. No. VIII. The contention of the eons is that/whatever may be the truth or effect of the arrangement between their fathers and the plaintiff in the eye of law, they are entitled to impeach it and this they propose to do by themselves independently of the defendants.

3. Sri Lakshminaranappa the learned counsel argued that the defendants and their sons being still joint the sons cannot in the absence of any intention on their part to separate, intervene in the proceedings; and if they are allowed to do so it would lead to unnecessary complication and prolongation of the suit. He further urged that persons cannot be added as parties against the plaintiffs will as he is the dominus litis and that in any event the order being interlocutory and discretionary cannot be interference with in revision. 30 My. H.C.R. 321 and 44 My. H.C.R. 319 are cited as authorities against interference. These cases no doubt lay down that interlocutory orders in pending cases are not lightly to be interfered with, and interference is called for only in cases of irreparable injury. Strong reliance was placed on the recent decision in Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Makras, AIR (36) 1949 P.C. 166: (76 I, A 67), where Sir John Beaumont observed that there can be no justification whatsoever for the view that S.115 was intended to authorise the High Court to interfere and correct gross and palpable errors of subordinate Courts. This case is however distinguish able in regard to the circumstances under which the observation was made as it related to an order in the course of a suit which was disposed of and the decree in which could be appealed against. As regards the correctness of the proposition laid down in these cases governing interference there is no doubt. Since these authorities do not preclude interference but only confine it to cases of exceptional kind and to cases in which irreparable hardship would follow from failure to interfere the question is whether this is a case of that kind.

4. On behalf of the petitioners, Lakshmi. devamma v. Nagayya, AIR (36) 1949 Mad. 369: (1948-2 M.L.J. 362) is cited to show that the question whether addition of a person as a party in a suit by a subordinate Court was raised and considered in revision, Moti Ram Motha Ram v. Lalchand Gulabchand, AIR (24) 1937 Nag 121: (I.L.R. (1937) Nag. 366) is another case in which the refusal of the lower Court to make the son of the defendant as a party to the suit was set aside in revision. This case bears some analogy to the present one, inasmuch as the suit was on the foot of a mortgage and the defendant was the mortgagor. The son of the mortgagor alleged that the property was the joint family property and there was no necessity for the mortgage. He therefore wanted to be made a party to the suit but the Court refused to do so. It was held that though he was not a necessary party he ought to have been joined in order to avoid multiplicity of proceedings, as the son himself may file a separate suit. This consideration strongly applies to the present case as there can be no doubt that the sons if shut out from the present suit can certainly file a suit on their own account for enforcement of their claims. In that event the proceedings in the present suit and the decree passed therein would not be final. Kunia Behari v. Chinto Moni, AIR (21) 1934 Pat. 425: (148 I.C. 347), is a case in which the High Court set aside an order rejecting the application of some persons who set up a claim to the properties involved to be made parties and directed that they should be added as par. ties. The observation of Fazl Ali. J. are pertinent: "Ordinarily, the High Court would be most reluctant to interfere with an order refusing to make certain persons parties to the suit; but where the Judge has omitted to take into consideration certain matters and the order of the Judge really amounts to a refusal to exercise a jurisdiction vested in him, the High Court can interfere." The learned Judge further expressed: "Under Order 1, Rule 10 the Court must consider whether the addition of the petitioners as parties is necessary to effectually and completely adjudicate upon the question at issue, Order 1, Rule 10 nowhere says that the Court in deciding whether a certain person should be made a party or not is to be guided by the wishes of those who are parties to the suit but throws the entire responsibility of deciding the matter upon the Court." It is also pointed out that though the matter is entirely discretionary with the Court that discretion must be exercised judiciously and with proper consideration. This Court has in 39 Mys. H.C.R. 22 set aside in revision an order for addition of parties. If the Court can direct removal of parties ordered to be added there can be hardly any objection to this Court exercising its powers in favour of persons being impleaded in the case.

5. With a view to show that this is not a fit case in which the petitioners are to be made parties, Sri Lakshminaranappa referred to, Bishamber Das v. Kanshi Pershad, AIR (19) 1932 Lab. 641: (13 Lab. 483); Thakar Singh v. Sant Singh, AIR (20) 1933 Lab. 465: (141 I, C. 667), Digambar v. Dhanraj, 1 pat. 361: (AIR (9) 1922 Pat.96) and Atma Ram v. Banku Mal, 11 Lah. 598: (AIR (17) 1930 Lah. 561). In the first of these cases, viz., Bishambar Das v. Kanshi Pershad, AIR (19) 1932 Lah. 641: (13 Lah. 483), (19) the headnote is as follows: "Where the suit is not for partition of the properties between all the alleged coparceners inter se but one for a division the two branches of the family, it is settled law that to such a suit the really necessary parties are the heads of each branch of the family and it is not obligatory on the plaintiffs to implead all the members of the two branches." But as a matter of fact in that case some of the eons and grandsons of the parties are made parties. The question in this case is not whether the suit is defective on account of the sons of the defendants not being made parties but whether in the light of the circumstances under which the claim for a higher share than what is permissible under the law is put forward by the plaintiff the sons of the defendants are not entitled to be added as parties. In the second case i, e. Thakur Singh v. Sant Singh, AIR (20) 1933 Lah. 465:(141 I.C. 567), it was held that the sons though not necessary are proper parties and as such it is not quite against the petitioners. The view expressed in 1 Pat. 361: (AIR (9) 1922 Pat. 96) was also the same. Mt. Sahodra v. Ram Baboo, AIR (36) 1949 All. 49: (1949 A.L.J. 38) which was referred to is distinguishable as that was a case in which the defendant was a person who claimed the property by collateral succession and as such his sons were considered not to have any interest in the property by birth. It was, therefore, held that the sons were not necessary parties. The observation that the father was the kartha of the family and as such represented the whole family including the sons must be taken to be obiter. In United Provinces v. Mt. Atiqa Begum, AIR (28) 1941 F.C. 16: (1940 F.C.R. 110) which was referred to by the learned counsel on either side, Sulaiman J. pointed out the difference between necessary and proper parties in these words: "A person would be a necessary party if he ought to have been joined, that is to say, in whose absence no effective decree can be passed at all. He would be a proper party to be impleaded if his presence is necessary for an effectual or complete adjudication." The question in that case was whether the United Provinces Government was rightly allowed by the High Court to intervene as a party. In considering this the learned Chief Justice referred to Vaithilinga Pandara Sannidhi v. Sadasiva Iyer, 50 Mad. 34: (AIR (13) 1926 Mad. 936), wherein Srinivasa Ayyangar J. refused an application by the Secretary of State to be added as a party in a case said to involve the question whether an Act of the Provincial Legislature was ultra vires, the view of Venkatasubba Rao J. in Secy. of State v. Murugesa Mudaliar, AIR (16) 1929 Mad. 443: (118 I.C. 780), dissenting from this on the ground that the distinction between necessary and proper party is ignored in the former case. Sri Lakshminaranappa emphasized the parenthetical note (that the learned Chief Justice does not share this view) as indicating that the view in Vaithilinga Pandara Sannidhi v. Sadasiva Iyer, 60 mad. 34: (AIR (13) 1926 Mad. 836) was held to be preferable to that in Secy. of State v. Murugesa Mudaliar, AIR (16) 1929 Mad. 443: (118 I.C. 780). But the facts in the said two cases are deemed to be different and the addition of the Government as a party was held to be proper. I do not find anything stated in this case which would forbid the petitioners being made parties.

6. What may be gathered from an examination of the provisions of O.1, R.10, Civil P.C. and the cases in which it has been applied is that there is a distinction between necessary and proper parties and the guiding principle for making a person as a party is to see whether his presence is "Necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit." The petitioners in I.A. No. 8 are majors and the properties involved in the litigation being alleged to be ancestral they have a right by birth, so that they are entitled to assert their claims to the same irrespective of their fathers wishes. It is not controverted that in the reference to arbitration prior to the suit the sons in addition to their fathers were named as parties. If the plaintiff felt it was either necessary or proper for the sons to be made parties in the arbitration proceedings, I do not see any reason why they should be denied an opportunity to participate in the suit when they seek it. It is premature at present to know whether they seek a share for themselves or prefer to be joint with their fathers. Having regard to the allegation that the defendants have assented to the arrangement enabling the plaintiff to get more than what is otherwise permissible under the law there may be difficulty or embarrassment for the defendants to safeguard the interests of the petitioners in I.A. No. 8. At any rate, the petitioners would be in a better position to assert their rights and advance their contentions than the defendants since these may raise the propriety of defendants own acts. In any event for shortening litigation and avoiding the possibility of the sons challenging the decision arrived at in this case in a separate suit, they may be added as parties.

7. The learned Judge in my opinion has not taken these considerations into account while holding that the defendants can duly safeguard the interests of the petitioners. Mayne in his book on Hindu Law at p.570 states the rule as to who are to be and can be parties thus: "Where the partition is claimed as between branches of the family only, the heads of all the branches alone need be made parties. Of course in such a case, it is open to the others to apply to be made parties." That the eons would be proper parties even though their fathers are on record as parties is recognised in Swaminatha Odayar v. Gopala. swami Odayar, AIR (24) 1937 mad. 741: (172 I.C. 776). The petitioners contend that they are necessary parties. It seems to me that viewed in any light that this is a case in which the petitioners are entitled to be impleaded in the case and that interference with the order disallowing their prayer is called for. The plaintiff himself would be spared the contingency of another litigation by I. A. No. 8 being allowed. I would also add that the objection to the petition on the ground of dominus litis cannot be sustained for the reason apart from others that the suit being regarded as one for partition; each of the sharers has a voice and an option as to who may be added as parties. I, therefore, allow the petitions, set aside the order of the lower Court and direct petitioners in I. A. No. 8 be added as defendants. Parties will bear their own costs. Revision allowed. AIR (37) 1950 MYSORE 26 [C.N. 11.] "M. S. David v. Sudha" MYSORE HIGH COURT Coram : 1 MALLAPPA, J. ( Single Bench ) Martha Samadhanam David - Complainant-Petitioner v. Sudha - Accused - Respondent. Criminal Revn. Petn. No. 107 of 1949-50, D/- 11 -11 -1949, from order of 1st A.S.J., Bangalore, in Cr. Revn. Petn. No. 74 of 1948-49. Penal Code (45 of 1860), S.494 - BIGAMY - Re-converted Hindu Christian marrying Hindu woman after reconversion while Christian wife is alive - No offence of bigamy is committed. A Hindu Christian convert relapsing to Hinduism and marrying a Hindu woman during the lifetime of his first wife married to him when he was a Christian does not commit the offence of bigamy. Case lam referred. (Para 11) Annotation: (46-Man.) Penal Code, S.494 N.5. C. Nagaraja Rao - for Petitioner. Judgement Order. - This is a revision petition against the order in Criminal Revision Petition 74/48-49 on the file of the let Additional Sessions Judge, Bangalore, confirming the order of discharge passed by the City Magistrate in C.C. No. 1157 of 1948-49 on the file of his Court.

2. The complaint is one of bigamy, an offence punishable under S.494, Penal Code. The accused a Hindu by birth was, after conversion into Christianity married to the complainant a Christian by birth. Both of them were later on converted into Hinduism by Aryasamaj and be then married a Hindu girl. The Magistrate discharged the accused holding that his second marriage after he was converted into Hinduism does not amount to an offence and this view was upheld in revision by this Sessions Judge. It is against this order of the Sessions Judge that the complainant has filed this revision petition.

3. The offence punishable under S.494, Penal Code is based on the law of England. According to 24 and 25 Vict. C.100, S.57: "Whoever, being married shall marry any other person during the life of the former husband or wife shall be guilty of felony." It will be seen that according to this definition any domicile subject to the Law of England commits the offence, if he or she marries again during the lifetime of the former husband or wife as the case may be, as according to that law neither plurality of wives, nor plurality of husbands is recognised. A second marriage by a Hindu or a Muslim male during the lifetime of his first wife allowed by their religion cannot be made punishable in India where the Hindus and Muslims form the major portion of the population and an exception had to be made in the case of these persons. According to S. 494, Penal Code, therefore, "Whoever having a husband or wife living married" is punishable only "in any case in which such marriage is void by reason of its taking place during the life of such husband or wife." The result is that Polygamy or Polyandry is protected wherever it is allowable. The Hindu or Muslim male can marry again though the first wife is alive but a Hindu or Muslim female cannot do so. A Toda woman cannot be punished for bigamy as amongst Todas Polyandry is recognised. A Christian male or female is guilty of this offence both in England and in India, if being married marries another person during the lifetime of the first wife or husband.

4. No difficulty arises in applying the law when the facts are as simple as stated above, but some difficulty arises in the application of the law when a man or woman of a religion in which Polygamy is not allowed embraces a religion in which it is allowed or vice versa and in this revision petition a case of this kind has to be dealt with. Converts to Christianity commit this offence, if they marry when their first husband or wife as the case may be is alive, unless the first marriage has been annulled. Does it follow that this is so when a married Christian relapsing into Hinduism marries again and if not why? No decision of this Court on the point, is brought to my notice. Them is a certain amount of conflict of opinion in the decisions of Indian High Courts and the matter has, therefore, to be examined.

5. The conversion of a Hindu by birth to Christianity deprives him of the right to marry a second wife during the lifetime of his first wife. He would be clearly guilty of bigamy if he marries again while his first wife is alive when both the marriages are celebrated in Christian form after he becomes a Christian, It is so, as, though Christianity does not prohibit polygamy which in fact was in vogue amongst the early Christians, the law of Christendom by which the Indian Christians are governed prohibits it. In the case of conversion of married Hindus, the point for consideration is whether their first marriage comes in the way of a second marriage. It was observed in Abraham v. Abraham, 1 W.R.P.C. 1 at p.5, that change of religion would release the converts from the trammels of the Hindu law. Can it be said that conversion puts an end to the marriage relationship which existed prior to the marriage 2 The decision is Rehman Bee Bee v. Rokeya Bee Bee, 1 Nortons Leading cases on Hindu Law p.12) supports an answer in the affirmative. This is based on the fact that Hindu law regards a converted person as beyond its pale; he is regarded as civilly dead but as observed in In the matter of Ram Kumari, 18 cal. 264 "This may be so as regards her civil rights, but we find no authority in Hindu law for the position that an apostate is absolved from all civil obligations incurred before the degradation or apostacy." According to Vridda Harita IV. 152. The hermit, the ascetic, the celebrate the heretic, the outcaste, or one who does not perform vedic ceremonies does not get a share in the properties. The hermit and the outcaste are classed together in this respect since wealth is regarded in Hindu law as acquired for performance of sacrifices and all these persons are not fit to perform them. According to Katyayana cited by Ratnakara and Apararka: As wealth is acquired for sacrifice, it is to proper and virtuous persons and not to women or to fools or to men of other religions that it can be appropriated. It will thus be seen that if Hindu law ordains that a person who forsakes Hinduism is not entitled to inherit, it is because it regards that wealth will not be utilised by them for the purpose of which it is intended.

6. From this it does not follow that the marriage tie is severed by conversion or by any sot of the parties. Hindu law does not regard marriage as a mere contract. It regards that marriage makes the husband and wife one person. According to it, marriage is indissoluble and not even by sale or by repudiation is a wife released from her husband: Manu IX: 45 and 46. It follows therefore that mere conversion from Hinduism has not the effect of unfastening the marriage tie. The result is that it has been held that a married Hindu convert to Christianity commits the offence of bigamy if he or she marries when the Hindu spouse is alive unless the first marriage is dissolved. Under the Native Converts Marriage Dissolution Act, it is recognised. The marriage prior to conversion is not dissolved by the conversion. I may here refer to In re Millard, 10 Mad. 218 and Gobardhan Dass v. Jasadamoni Dassi, 18 cal. 252.

7. The decisions that deal with cases of conversion from Hinduism are applicable to cases of conversion into Hinduism to the extent that in both kinds of cases, the marriages prior to conversion have been regarded as valid for the purpose of considering whether an offence under S.494, Penal Code is committed when the converted persons marry again after conversion during the lifetime of the first wife or husband, but whether they commit an offence under S.494, Penal Code in such a case depends also upon whether the religion into which they are converted allows a second marriage or not. A Christian man or woman is not allowed to marry again during the lifetime of the first wife or husband as the case may be, it has been held that he is guilty of bigamy if he or she does so, even though the first wife or husband is a Hindu and the marriage took place before conversion. This is also the case when married women converted to Hinduism marry again, as Hindu law which is applicable to them after conversion does not countenance plurality of husbands though it allows plurality of wives is what is enjoined in Aitereya Brahmana 3-2-12. The prohibition is applicable to a woman converted to Christianity or Mahomedanism marrying again during the lifetime of her first husband as these religions do not also recognise plurality of husbands. Mt. Nandi v. Emperor,1 Lah. 440: (AIR (7) 1920 Lah. 379: 22 Cr. L.J. 1); Govt. of Bombay v. Ganga, 4 Bom.330; In re Millard, 10 mad. 218 and Gobardhan Dass v. Jasadamoni Dassi, 18 cal. 252, might be cited as authorities on the point. In 5 Mys. C.C.R. 131, it was observed that "mere conversion to Mahomedanism does not dissolve a Hindu marriage" and the conviction under S.494, Penal Code of a Hindu wife marrying after con. version to Mahomedanism during the lifetime of her Hindu husband was upheld. The head note in the case reported in 7 Mys. C.C.R. 100 is misleading and it appears from it that what is decided in it is inconsistent with the previous decision though the acquittal ordered in that case appears to have been due to the fact that the first marriage of a Christian woman prior to conversion to Mahomedanism had been dissolved by a notice issued to the first husband in accordance with Mahomedan law. In the matter of Ram Kumari, 18 Cal. 561, recognises a divorce of this kind, but United Motor Transport Co., Ltd. v. Sree Lakshmi Motor Trans. port Co., Ltd., 49 C.W.N. 142: (AIR. (32) 1945 Cal. 260), deserves notice when the point arises directly for consideration.

8. Hindu or Mahomedan males are legally entitled to have more than one wife, subject to the limit of four wives in the case of Mahomedem males. So if a Christian male is converted to Hinduism or to Mahomedanism and marries again during the lifetime of his first wife whom he had married prior to conversion, he is not guilty of bigamy as polygamy is allowed by Hindu and Mahomedan laws. It is wrong to say as was argued that Hinduism does not recognise conversion. During the time Buddhism was prevalent in India, conversion from Hinduism to Buddhism or from Buddhism to Hinduism was so frequent that it was not uncommon for a Brahmin to become a Buddhist for some time and later to relapse into Hinduism. Conversion to Vaishnavism by Sri Ramanuja is well known and the case of Vishnuvardhana a Jain King is a familiar instance. In this case the accused is a born Hindu Lingayat and it is not disputed that be was reconverted to Lingaitism before his second marriage. There is a sect amongst Lingayats who are converts from Joins and there is an inscription showing conversion of numerous Jains to Lingaitism. It cannot, therefore, be said that conversion to Hinduism is not recognised and that a Christian converted into Hinduism does not acquire the rights of a Hindu. It is stated in Maynes Hindu Law that as it is open to a Hindu by birth to become a convert to Christianity or Mahomedanism it is equally open to a Christian or Mahomedan to become a convert to Hinduism." As observed in High Court Proceedings, 8th November 1866,

3 M.H.C. (Appx.) VII: "It seems impossible to assume that a man is not equally free to go from Hinduism to Christianity and if he pleases, back from Christianity to Hinduism." Moreover, a Hindu by birth converted into Christianity relapsing into Hinduism as in this case is more a case of taking back into the fold of Hinduism by purification a man who is Hindu by birth but had gone astray,

9. The question of a Hindu Christian convert relapsing to Hinduism and marrying a Hindu woman during the lifetime of his first wife married to him when he was a Christian as in this case came up for consideration in 1866 in the Madras High Court in the last mentioned case. Holloway J., who made the remarks quoted above, gave two reasons for holding that the accused was not guilty of an offence under S.494, Penal Code. The first reason is that as Hindu law allows polygamy and the accused was a Hindu at the time of his second marriage, it is impossible to say that the second Hindu marriage is void on account of a previous valid Hindu marriage: "It is manifest therefore that the second Hindu marriage cannot be rendered void in consequence of a previous marriage which the Hindu law would not have recognised, it not having been performed with reference to its provisions." The second reason given is as follows: "It again as it seems to me impossible to do, the man is to be treated as still a Christian, the union entered into with the Hindu woman would not in the view of any law governing Christian union be considered a marriage at all."

10. It has, however, to be stated with respect that though this decision is the basis for most of the later decisions, the second reason given in it is not tenable. If a Christian having a wife married in accordance with Christian rites marries another in accordance with Hindu rites he is clearly guilty of the offence of bigamy. The legality of the first marriage in such a case is beyond doubt. It is because that the second marriage by a Christian cannot be considered as a marriage at all that he is punished for bigamy. The fact that the second marriage is also void as it was entered into with a Hindu woman does not make it less bigamous. In 10 con. 411, an Irish case, the second marriage was void by statute as it was celebrated by a Roman Catholic, Priest between a Protestant who falsely stated he was a Roman Catholic and a Roman Catholic. It was held in that case that the second marriage was not a marriage at all and that the offence of bigamy was not, therefore, committed; but later on in R. v. Allan, (1872) L.R. 1 C.C.R. 367: (41 L.J.M.C. 97), which is the leading case on this point, this decision was not approved of and it was pointed out by Cock. burn C.J., that the English Statute was not intended to prevent the co-existence of two real wives, which was not possible under that law, but that it was intended to prevent the co-existence of a real and an unreal wife. R. v. Robinson, (1938) 26 Cr. App. R.129, is a more recent came on the point. The dictum of Holloway J., that the second marriage of a Christian male with a Hindu female in Hindu form during the lifetime of his Christian wife does not amount to bigamy as the second marriage is a nullity according to the law of Christendom, cannot therefore be accepted.

11. There is, however, no doubt that a Christian convert relapsing into Hinduism and marrying a Hindu woman during the lifetime of his Christian wife cannot be convicted of bigamy as Hindu law which is applicable to his case after his conversion to Hinduism allows polygamy. The case is different if a Christian having a Christian wife living, marries a Hindu woman according to Hindu rites without renouncing his religion, he is guilty of bigamy as in that case the law of Christendom which does not allow polygamy is applicable. This was what was held in Emperor v. Lazar, 30 Mad. 550: (6 Cr. L.J. 338), but the observation made in that case, that the result would have been the same, if the Christian had become a Hindu before the second marriage is an obiter. It is incorrect and was not followed in Emperor v. Anthony, 33 mad. 371: (11 Cr. L.J. 682), in which the decision in High Court Proceedings, 8th November 1866, 3 M.H.C. (Appx.) VII was followed with approval. The correctness of this decision was not questioned in High Court Proceedings, 18th February 1868, 4 M.H.C.R. (Appx.) III, in which it is referred to. In Gladys Sainapathi v. Sainapathi, AIR (19) 1932 Lah. 116: (136 I.C. 262), it was held that: "When a Hindu male has contracted his first marriage with a Christian woman in England in Christian form and subsequently marries for a second time, while his first Christian wife is living, a Hindu female, in Hindu form, it cannot be said that he has committed bigamy under the Penal Code." It has to be observed here that this opinion was arrived at after it was held that the first marriage was a valid Christian marriage. It has been observed in Mrs. Chitnavis v. A.S. Chitnavis, AIR (27) 1940 Nag. 195: (I.L.R (1941) Nag. 260 S.B.), that "where a Hindu after marrying a Christian wife and while that Christian wife is living, marries a Hindu wife in a Hindu form, though the second marriage does not amount to bigamy it amounts to a second marriage." There is thus no doubt that so long as the accused is a Hindu at the time of his second marriage he does not commit an offence of bigamy though the second marriage takes place when his first wife whom he had married, when both of them were Christians, is alive. The decisions dealing with second marriages of converts to Christianity are not applicable to cases of second marriages of converts to Hinduism as the former religion does not allow polygamy while the latter does.

12. It appears to me that it is very unlikely that S.494, Penal Code was intended to be applied to the abnormal cases of converted persons who are sometimes force to marry a second time when their spouses who have not been converted refuse to live with them. It is much more likely that it was intended only to apply to cases of a Christian marrying a second time during the lifetime of the first Christian wife or husband as the case may be and to the case of a Hindu or Mahomedan wife marrying a second time during the lifetime of her first husband. It is one thing to say that a converted person is bound to maintain his wife married to him before conversion and that he cannot avoid by changing his religion, the responsibility which, by marrying her he had undertaken before conversion. It is another thing to say that he is bound to remain unmarried, unless he could manage to get a divorce and that his marriage without getting a divorce amounts to a criminal offence. The matter might need reconsideration when the point arises directly for consideration.

13. A married Hindu or Mahomedan converted to Christianity can be convicted of the offence of bigamy only if it is shown that the second marriage is void by reason of an earlier marriage with another person alive is valid and subsisting according to the laws of Christendom. The case of R v. Allen, ((1872) L.R. 1 C.C.R. 367: 41 L.J.M.C. 97), previously referred to shows that the second marriage is void for some reason other than its being bigamous does not come in the way of a conviction for bigamy. This case does not however support conviction of a Christian for bigamy when the first marriage is not legal according to the law of Christendom If the first marriage is invalid as for instance when it is between two persons within prohibited degree, it cannot make a second marriage bigamous (Chandwick0, 1847-11 R.B.205 and Rex v. Kay, 1887-16 Cox. C.C.292). In dealing with case of persons marrying after conversion to Christianity, it is the law of Christendom that is applicable and if so can it he said that a Hindu marriage which took place prior to conversion, however indissoluble it may be according to Hindu law has to be regarded as a real subsisting marriage according to law applicable to Christendom so as to form the basis for a conviction for bigamy? It was observed by Lord Brougham in Warrender v. Warrender, (1835) 2 Cl. and Fin. 488 at p.533: (37 R.R. 188), as follows: "Marriage is one and the same thing substantially, all the world over. Our whole law of marriage assumes this; and it is important to observe that we regard it as a wholly different thing a different statue from Turkish or other marriages among infidel nations, because we clearly never would recognise the plurality of wives, and consequent validity of second marriages. It is thus clear that marriage in accordance with Hindu or Mahomedan law which allows polygamy cannot be basis for holding that a second marriage is invalid unlike the case of a Christian marriage which does not allow polygamy and invalidates a second marriage during the lifetime of the first husband or wife. In short, as observed by Lord Pemmener in Hyde v. Hyde, (1838) 1. P. and D. 130: "a marriage as understood in Christendom which for this purpose may be defined to be the voluntary union for life of one man and one woman to the exclusion of all others." It is thus clear that the law applicable to a converted Christian does not recognize the validity of a marriage which takes plane in Hindu form as according to Hindu law polygamy is permitted. If the Hindu law is applied to a person converted from Hinduism to Christianity his second marriage during the lifetime of his first wife is not an offence. If the law of Christendom is applied to him, it does not recognize the first polygamous marriage as valid.

14. For holding that an offence of bigamy is committed, the second marriage must be found to be invalid on account of a valid first marriage, Would it be correct to apply Hindu law for holding that the first marriage is valid and to apply the law of Christendom for holding that the second marriage is void as a basis for conviction of an offence of bigamy? Whatever the law in England might be, we are governed in India by the wording of S.494, Penal Code, and an offence of bigamy is committed only if the second marriage is void on account of the first marriage. Can a marriage in Hindu form which allows polygamy be the basis for holding that the second marriage is void, is the short question that arises for consideration. There may be other points for and against this view but these doubts may have to be cleared in a case in which the question directly arises for consideration. It is sufficient to state in this case that the decisions that hold that a married Hindu commits Vie offence of bigamy if after conversion to Christianity he marries during the lifetime of his first wife are not applicable to cases of a male converted to Hinduism marrying again during the lifetime of his first wife, as Hindu law by which he is governed allows polygamy.

15. The Magistrate was therefore, right in discharging the accused. This revision petition is dismissed. Petition dismissed. AIR (37) 1950 MYSORE 30 [C.N. 12.] "Chikkadodiah v. Mysore Govt." MYSORE HIGH COURT Coram : 2 MEDAPA, C. J. AND VENKATA RAMAIYA, J. ( Division Bench ) Chikkadodiah and others-Accused-Petitioners v. Government of Mysore - Complainant -Respondent. Criminal Revn. Petns. Nos. 148 and 149 of 1949-50, D/- 9 -1 -1950, against order of Special 1st Class Magistrate, Madhugiri, in C. Cs. Nos. 610 and 579 of 1148-49 respectively. (A) Mysore Articles of Food Acquisition (Harvest) Order (1948), Art.17 - ESSENTIAL COMMODITIES - NATIONAL SECURITY - Accused attempting to transport paddy without permit or committing act preparatory to such transport-Accused must be deemed guilty for contravening Art.17 by virtue of Rule 121, Defence of India Rules, operation of which is continued by S.5 of Act 20 of 1947. Mysore Supplies, Services and Miscellaneous Provisions (Temporary Powers) Act (20 of 1947), S.5. (Para 6) (B) Mysore Articles of Food Acquisition (Harvest) Order (1948) - ESSENTIAL COMMODITIES - APPLICABILITY OF AN ACT - Government notification dated 24-11-1948 - Effect of, is not to supersede or suspend the operation of the Harvest Order by Hoarding and Profiteering (Foodgrains) Prevention Order, 1948. (Para 5) (C) Defence of India Rules (1939), R.121 - NATIONAL SECURITY - Rule is not ultra vires the powers conferred by S.2 (1) of Defence of India Act (1939). AIR (34) 1947 Mad. 203, Rel. on. (Para 7) (D) INTERPRETATION OF STATUTES - Interpretation of Statutes - Two inconsistent statutes-It must be seen if one cannot be read as a qualification of the other. (Para 5)

V. Krishnamurthy - for Petitioners. Advocate General - for Respondent. Judgement Order.-The question for decision in these two cases is whether the convictions of the petitioners for contravention of Art.17, Food Acquisition (Harvest) Order of 1948 by removing certain quantities of paddy on the night of filth December 1918 without permits are correct. In one case 10 bags of paddy were found in a double bullock cart belonging to accused 1 on the way from his village Gutte to another village Dandinadibba, at a river bed. In the other case, there were 61 bags of paddy loaded or about to be loaded in a lorry at or near the same place for the purpose of being taken to a village in another Taluk viz., Koratagere. The prosecution evidence about this and the seizure of the paddy in the course of transit outside the village is not challenged and admittedly the petitioners had no permits with them for removal of the paddy. They contended, there was no need for a permit as the paddy was intended to be taken to the Government depot for disposal and even otherwise they are not culpable as the order said to have been contravened is itself ultra vices. The learned Magistrate, taking into account the place and time at which the paddy was found for being conveyed and the suspicion attaching to it, disbelieved the plea of accused that it was about to be taken to the Government depot, and held that even if it were so, the absence of a permit rendered it wrongful. The objection to the prosecution on the ground of the order not being in force at the time was rejected and the petitioners in both cases were convicted for breach of the Food Acquisition (Harvest) Order. 1948. The sentence in each case being that of fine and not being appealable, the petitioners seek revision of the convictions. The petitions were referred to a Bench as the point involved was of some importance and consideration of the view expressed in another case about the same.

2. Sri Krishnamurthy on behalf of the petitioners did not dispute the finding of fact in the two cases but attacked the convictions as illegal firstly by urging that the Food Acquisition Order was not in force on the date of the alleged offence and secondly by arguing that the acts of petitioners do not amount to a contravention of the order. In support of these contentions, the unreported decisions in criminal Revn. Petn. No.152 of 1944-45 and criminal Revn. Petn. No.64 of 1949-50 wherein convictions for similar acts under orders issued under defence of india rules were set aside, were relied upon.

3. The Articles of Food Acquisition Order, 1948, came into force in November 1948 by virtue of a notification of Government dated 4th November 1948. It purports to have been made in exercise of the powers conferred by Rr.75A, 75B and 81, Defence of India Rules as applied to Mysore and continued by the Supplies, Services and Miscellaneous Provisions (Temporary Powers) Act.XX [20] of 1947. Rule 75A provides for requisitioning of property, R.75B for maintenance of food supplies and under R.81 (2). Government so far as appears to it to be necessary or expedient for maintaining supplies and services essential to the life of the community may, by order provide, (2) for regulating or prohibiting the production, treatment, keeping, storage, movement, transport, distribution, disposal, acquisition, use or consumption of articles or things of any description whatsover. Clause (iv) of R.81 says that if any person contravenes any order made under this rule he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both and if the order so provides the Court trying such contravention may direct the property regarding which there is contravention to be forfeited. According to S.2 (1), Defence of India Act, Government may by notification in the Gazette make such rules as appear to it to be necessary or expedient . . . . . . for maintaining supplies and services essential to the life of the community. Subsection (3) of S.2 states that the rules made under subs. (i) may further provide that any contravention of, or any attempt to contravene and any attempt or attempt to abet the contravention of any of the provisions of the rules or any order issued under any such provision shall be punishable.

4. In view of these provisions, it cannot be said that the Food Acquisition Order is ultra vices the Rules or the Act. The authority to make the order is conferred by the rules and the section referred to. The validity of these being clear and not doubted, these petitioners were not entitled to remove the bags of paddy outside the village without permits therefor as Art.17 of the order prohibits movement or transport of foodgrains from one place to another except when it is for the purpose of Government or when it is authorised by a permit or when the quantity of the grain is less than 10 seers in certain circumstances or the removal is from the land of the holder to his residence in the same village. None of the conditions necessary for the permit being dispensed with exists in these cases as the quantity is more than 10 seers, the removal is beyond the village and not for Government purposes. The acts of the petitioners must be considered to be prima facie unlawful as offending Art.17. Assuming that there was no movement or transport for the reason that the paddy had not reached the destination at the time of seizure, but was in the course of transit, the case is clearly one of attempting to transport or committing an act preparatory for such transport and as such comes under the purview of R.121. That Rules states: "Any person who attempts to contravene or abets or attempts to abet or does any act preparatory to, and contravention of any of the provisions of these Rules or any order made thereunder shall be deemed to have contravened that provision or as the case may be that order."

5. With a view to show that consideration of R.121 does not arise by reason of the Food Acquisition Order being non-existent at the time Sri Krishnamurthy referred to a notification of Government dated 24th November 1943 which states that: " ..... Notwithstanding the provisions of the Articles of Food Acquisition (Harvest) Order, 1948, issued ... the power to make order under Cl. 3, Hoarding and Profiteering (Foodgrains) Prevention Order, 1948, issued under notification etc., shall continue to be in force and that the other provisions of the said Hoarding and Profiteering (Foodgrains) Prevention Order, 1948, shall apply to any such order as if the Articles of Food Acquisition (Harvest) Order, 1948, was not in force." The words found in the notification do not denote that the Food Acquisition Order was superseded or suspended by the later order but that irrespective of the provisions in the former the latter will be operative. If the case of the petitioners was that the Hoarding and Profiteering Prevention Order sanctions transport of paddy without a permit it would have had some force. But no such provision is pointed out. In the absence of specific words to show that the Acquisition Order was repealed or suspended from being effective, it is not reasonable to assume that it ceased to be in force. Its provisions can only be deemed to be qualified by those of the Hoarding and Profiteering (Prevention) Act if there be inconsistency between the two as "it is a cardinal principle in the interpretation of a statute that if there are two inconsistent enactments it must be seen if one cannot be read as a qualification of the other." Ebbs v. Boulnois, (1875) 10 Ch. A. 479 at p. 484: (44 L. J. Ch. 691) when there is nothing to relieve a person from the need for a permit to transport, under the Hoarding and Profiteering Act even this rule of construction cannot help the petitioners.

6. Another important contention raised against the conviction relates to the applicability of R.121 as it is found that the accused did not actually transport the paddy and were arranging to do so which can at best be deemed only preparatory to contravention of Art. 17,Food Acquisition Order. It is urged that the Defence of India Act and the Rules under the Act ceased to be in force on the date of the offence and R.121 is not saved from being ineffective by any express legislation. The provisions of the De. fence of India Act operative at the time are to be gathered from Act XX [20] of 1947. Section 2 of this Act is as follows: "The rules made under the Defence of India Act, 1939, as applied to Mysore, etc., which are specified in the schedule to this Act and as in force on 30th September 1946, shall, by virtue of this Act continue in force notwithstanding the expiry of the said Act and have effect as if references (if any) therein to any of the purposes specified in S.2 of the said Act were omitted therefrom." Sri Krishnamurthy points out that Sch. 1 to the Act does not specify R.121 and therefore the rule can have no application for anything done in December 1948. There is, however, S.5 which states that: "The provisions of Cl.1 of the Schedule to the Defence of India (Adaptation to Mysore) Act, 1939, and the provisions of sub-ss. (4) and (5) of S.2 and Part XVII and Part XVIII, Defence of India Rules, as applied to Mysore, shall, notwithstanding their expiry for all other purposes, continue to apply (so far as applicable) to any rule continued by S.2 and to any order made under such rule and to any appointment made, license or permit granted or direction issued under any such order, and whether or not it is necessary or expedient for the purposes (if any) specified in any of the aforesaid provisions of the said Act or the defence of india rules, as applied to Mysore." Rule 121 occurs in Part XVIII, defence of india rules and, therefore, according to S.5 applies to orders made under Rules said to be continued under S.2. The Food Acquisition Order was made under R.81. Since that is one of the Rules declared to be continued, it follows R.121 clearly applies. But from the words "so far as applicable" which can only mean so far as circumstances permit" it is sought to be made out that the application of R.121 being excluded by the provisions of S.2, cannot by S.5 be regarded as being continued though some other rules in chap. XVIII may be taken as continued. The words following the bracketed words as well as those preceding it do not warrant a construction in such a limited sense. Reliance is placed on the order of Puttaraj Urs J. in criminal Revn. Petn.No. 54 of 49-50 to show that Act XX [20] of 1947 cannot be construed as extending the operation of R.121. In that case, conviction under the Cotton Textile (Control of Movement) Order, 1946, for attempt to transport mill cloth from Bangalore to Secundarabad without a permit was set aside on the view that there is no provision in the notification of the order or the order itself to render a mere attempt to transport an offence and that R.121 by which it could be an offence cannot be applied. If the order declares in any of its clauses that an attempt to contravene the same is an offence there is no need to consider the applicability of R.121 and if this rule applies, the existence of such a provision in the order is superfluous and its absence immaterial. The learned Judge has expressed that R.121 creates a substantive offence, that it is expressly deleted by s.2 of act xx and is not saved by S.5 of that Act. The decision is that of a single Judge and not binding on us. It is difficult to see how R.121 creates a substantive offence when it comes into play only on proof of something done in relation to an act which is forbidden. Unless an act is prohibited by law an attempt to commit it cannot be wrongful. Rule 121 has to be applied with reference to other provisions and is only procedural as shown by the heading to the chapter in which it is found. The rule cannot be said to be expressly deleted by S.2 of Act XX [20] of 1947 as it makes no reference to it. Section 6 lays down the conditions necessary for its being applicable and these are that there should be an order under the Rules specified. When these are made out R. 121 is made applicable to such orders. To hold otherwise would be ignoring the scope and purpose of S. 5 of the Act. We are unable to agree that operation of R. 121 is not continued by virtue of S. 5 of Act XX [20] of 1947.

7. The learned Magistrate has referred in the judgment to an unreported decision of this Court in criminal Revn. Petn. No. 152 of 44-45 in which Ghani J. apparently thinking of S. 2 (3) of the Act observed: "It is doubtful, in my opinion, whether the mention of preparation in R. 121 is not ultra sires because the provisions of the Act under which these rules are made do not contemplate making rules which include preparation to commit an offence as an offence in addition to an attempt to commit it." Though the learned Judge did not determine the point and remarked: Anyway, I need not go into that aspect as it is not necessary to do so at present." We may point out that the doubt raised by the learned Judge is resolved in Emperor v. Sibnath Banerji. AIR (32) 1945 P.C. 156: (I.L.R. (1945) Kan P.C. 371) by Lord Thankerton who expressed that: "The function of sub-s. (2) is merely an illustrative one, the rule-making power is conferred by sub-s. (1) and the rules which are referred to in the opening sentence of sub-s. (2) are the rules which are authorised by and made under sub-s. (1): the provisions of subs. s (2) are not restrictive of sub-s. (1) as indeed is expressly stated by the words without prejudice to the generality of the powers conferred by sub-s. (1)." These words are quoted in Picha Mooppanar

V.Velu Pillai, 1946-2 M.L.J. 404: (AIR (34) 1947 Mad. 203) where the identical contention that R. 121 is ultra vires was advanced. The learned Chief Justice rejected it saying: "Rule 121 is a rule made under S.2 (1) of the Act and is within the power conferred by the Central Government by that clause. The accused were preparing to contravene the Act. The fact that sub-s. (3) of S.2 does not contain any reference to preparation does not affect the validity of R.121." These observations with which we respectfully agree, apply to these cases. The petitioners were rightly convicted and the sentences being only of small amounts of fine do not call for interference. The petitions are dismissed.

8. It is represented that the value of the paddy seized from the accused has been paid to them and they should not be made liable to refund it. The learned Advocate-General on behalf of the Government has no objection to the amounts received by the accused being retained by them. There is no need, therefore, for the lower Court to take any steps for the accused returning the amount. Petitions dismissed. AIR (37) 1950 MYSORE 33 [C.N. 13.] "Syed Abdul Wajid v. Vishwanathan" MYSORE HIGH COURT FULL BENCH Coram : 3 MEDAPA, C.J., BALAKRISHNAIYA AND MALLAPPA, JJ. ( Full Bench ) Rukn-ul-Mulk Syed Abdul Wajid and others-Appellants v. R. Vishwanathan and others-Respondents. Appeals Nos.104 and 109 of 1947-48, D/- 29 -7 -1949, against decree of D.J., Civil Station, Bangalore in C.S. No. 60 of 1944. (A) HINDU LAW - EVIDENCE - Hindu Law - Joint family business - Some members sharing business as partners-Business if joint family business-Burden of proof. Evidence Act (1 of 1872), S.101, S.102, S.103. Where only some of the members of a joint family share a business as partners it cannot be said to be a joint family business. If the business is started with the assistance of joint family property, the property acquired might be regarded as joint family property, but the question whether a business carried on by a member of a joint Hindu family was begun or carried on with the assistance of joint family property is a question of fact upon which the burden of proof lies upon the plaintiff who claims a share in the business. The burden of proving that the business was separate in its inception cannot be cast upon the defendant who asserts it. A son who starts a business with the help of money borrowed by himself and his father and who later discharges that debt cannot be said to start his business with the help of any joint family property. That will be only a case of contracting a debt under a pronote and becoming liable to discharge it. The amount cannot be regarded as joint family property merely because two of the members of the family consisting of more than two members borrowed the amount on their personal liability under a pronote and it was utilised by one of them. (Paras 9, 10 and 11) Annotation: (46-Man.) Evidence Act, Ss.101-103 No. 16. (B) HINDU LAW - Account - Amount received by son credited in account of father-Inference. If amounts received by one have not been credited to his Bank account and almost a similar amount has been credited in the account of another, a few days later, even though that person happens to be the father of the first, it cannot follow that the amount received by the former has gone into the account of the latter. (Para 13) (C) HINDU LAW - Hindu law - Self-acquired property - Such property, how acquires characteristics of joint property. The separate property of a Hindu ceases to be his property and acquires the characteristics of his joint family or ancestral property, not by any physical mixing with his joint-family or ancestral property, but by his own volition and intention, by his waiving or surrendering his special right in it as separate property. A clear intention to waive separate rights must be established and will not be inferred from acts which may have been done merely from kindness or affection. (Para 16) (D) HINDU LAW - Hindu law - Family settlement-Minors if can question such settlement. When parties representing different branches of the family arrive at a settlement, such settlement cannot be questioned either by them or by the persons who are represented by them even though they are minors, except in a suit properly instituted for that purpose within the time allowed by law. If after a bona, lids settlement between the managers of a joint family the other members could be allowed to question the settlement without getting that settlement set aside in a proper Court, there could be no finality to disputes. (Para 18) (E) HINDU LAW - Hindu law - Self-acquired property-Member meeting expenses of family and paying money to his brothers out of kindness - Members self- acquired property whether ceases to be such. The mere fact that a member of a joint family meets the expenses of the family and employs his brothers in his business and pays them for their services or pays some money to each of the brothers out of generosity or kindness cannot show that the property acquired by him was not his self-acquired property or what was paid by him to his brothers should be regarded as their joint family property. (Para 24) (F) HINDU LAW - Hindu law - Joint family business - Father using sons money for purposes of his business. Where A out of kindness pays certain amount to his brother B and Bs son and the amount paid to the son is utilised by B for his business, it cannot convert the business into a joint family concern. (Para 24) (G) HINDU LAW - GIFT - Hindu law - Gift-Payment by one brother to another - Payment in consideration of latter giving up his claim-Payment, it gift. Transfer of Property Act (4 of 1882), S.122. Where one brother pays a sum of `money to his brother it does not strictly speaking amount to a gift if the money is paid In consideration of the latter giving up his claim, however imaginary such claim might be, to the property of the former. (Para 25) Annotation: (46-Com.) T. P. Act, S. 122 N. 1. (H) Civil P.C. (5 of 1908), O.14, R.1 - CIVIL PROCEDURE - Adoption of draft issues filed by Advocates. It is always safe for Judges of the lower Courts to read the pleadings carefully, frame issues without adopting the draft issues filed by Advocates and be familiar with the points really in dispute so as to enable them not merely to check unnecessary evidence, but also unnecessary arguments on points which do not really arise. (Para 26) Annotation: (44-Com.) Civil P.C., O.14, R.1, N.2.

(I) HINDU LAW - Hindu law - Self-acquired property - Property bequeathed to son-Interests of sons sons in such property. Where a self-acquired property is bequeathed by the testator to his son exclusively to be enjoyed by him as he likes after the death of the testator it becomes the exclusive property of the son and his sons can claim to have no interest in it. (Para 27) Judgement Medapa, C. J. and Mallappa, J.-The appellants in these two regular appeals are defendants to 3 in O.S. No.60 of 1944 on the file of the District Judge, Civil and Military Station, Bangalore, as well as in O.S. No.66 of 1942-43 on the file of the District Judge, Bangalore City, re-numbered as O.S. No.60 (A) after its transfer to the District Court, Civil and Military Station, Bangalore. These two suits were disposed of by a common judgment and it is against this judgment of the District Judge, Civil and Military Station decreeing the two suits as prayed for that the appellants have come up in appeal. The appeals were first heard by Sri Balakrishnaiya and Sri V. Kandaswami Pillai JJ. but on a difference of opinion, they were referred to a Full Bench by Sri Balakrisbnaiya J. and have come up, therefore, for decision before the Full Bench.

2. The three plaintiffs in the two suits referred to above are sons of V. Ramalinga Mudaliar who died after disposing of the plaint schedule properties under a testamentary disposition dated 30th July 1942 leaving major portion of the properties for charity and appointing the appellants as executors. The suits have been filed for a declaration that the properties are the joint family properties of plaintiffs and their father and that the latter had thus no right to dispose of the same by a will. Plaintiffs have prayed for possession of the properties blind for a declaration that defendants 1 to 8 should render accounts of their possession till date of suit. The appellants contend that the properties are the self acquired properties of the testator and that he had every right to dispose of the same in any manner he liked. Defendant 4 in the two cases is the mother of the plaintiffs. The other defendants except one, who has been impleaded as purchaser of one of the plaint schedule properties are their sisters.

3. The basis of the claim of the plaintiffs was laid as follows in the plaint in O.S. No. 60 of 1944 on the file of the District Judge, Civil and Military Station: "The said V. Ramalinga Mudaliar came into possession of movable and immovable properties including some houses in Arunachala Mudaliar Road, Civil and Military Station, Bangalore, which had belonged to his father, Vydyalinga Mudaliar. The said properties were sold by Ramalinga Mudaliar and the sale proceeds were invested in several businesses In or about the year 1928 plaintiff 1 joined his father and actively assisted him in the several businesses of the family. . . . . Apart from the fact that there was a nucleus of ancestral property with which the businesses were carried on, the plaintiffs submit that the adult members of the family, viz., plaintiff 1 and late Mr. V. Ramalinga Mudaliar were actively associated with the family businesses and that all the properties were treated by V. Ramalinga Mudaliar as family properties.

4. This was also exactly the case put forward by the plaintiffs in the other suit filed in the District Judges Court, Bangalore City. Separate suits had to be filed as properties were within the jurisdiction of different Courts. The very words used by the plaintiffs in the plaint are quoted above but we find to our great surprise that the case as laid in the plaint has been allowed to develop from stage to stage and a good deal of evidence which has no reference to the stand taken by the plaintiffs in the plaint has been adduced and points not arising out of the pleadings have been traversed and dealt with, with the result that the suits which are as simple as most of the suits filed in the Munsiffs Courts in respect of properties of lesser value have been complicated on account of the huge mass of irrelevant evidence allowed to be adduced in the case and discussion of points not raised in the pleadings.

5. The simple case of the plaintiffs that the properties in dispute are the joint family properties is based on the allegations, (i) that the proceeds of the sale of two houses of Ramalingams father formed the nucleus of ancestral property with which Ramalingam carried on his business, (ii) that he actively associated plaintiff 1 with the family business and (iii) that all the properties were treated by him as family properties. There is not even a suggestion that the properties were acquired with the money realised in a joint family business of plaintiffs father and uncles. It is nobodys ease that the plaint schedule properties are joint family properties as they were acquired from out of a business started by Ramalingam with money paid to him by his brother Shanmugam and none of the parties have raised any contention as to the nature of the business by which Shanmugam the eldest of the brothers acquired considerable property. The learned District Judge, however, has based his conclusion mostly on his finding on this aspect of the matter and it is, therefore, that some attention to this aspect of the matter has become unavoidable.

6. A brief summary of the family history of the plaintiffs up to the date of suit has to be stated to understand the case as argued by the learned District Judge to support the case of the plaintiffs though it is not set out in the plaint. Their maternal grandfather Loganathan had been doing business till some time before his death on 3rd December 1900. Their paternal grandfather Vaidyalingam was at first a translator on a pay of Rs.70 in this Court and retired as a District Court Sheristedar. He died in 1904 leaving two houses and there is nothing to show that he had any other assets. On the other hand, the accounts of C.R. Bank show that he died indebted. He had three sons of whom Shanmugam was the eldest, Devaraj was the next and plaintiffs father Ramalingam was the youngest. Evidently encouraged by the success that Loganathan attained in building contracts entrusted to him by Mining Companies at Kolar Gold Fields, he began to do the same business before or at any rate in May 1898. At about this time, a sum of Rs. 2,000 was borrowed by Vaidyalingam on the security of a pronote executed by him and his son Shanmugam from C. R Bank in which he had opened an account. It is not improbable that this amount was utilised by Shanmugam for purposes of his contract work though there is no definite oral or documentary evidence adduced on the point. It is equally clear that Shanmugam paid back Rs.2,000 in 1902. It is found that he had also opened an account in C.R. Bank and was borrowing small sums of money till 1904 when for the first time he was able to credit to his account as 7 000. It is not disputed that his business was very successful and that ha acquired considerable property. Both Devaraj and Ramalingam were employed by him in his business. The brothers lived amicably and the eldest brother who was successful in his business met the expenses of the family before and after the death of their father. He paid his brothers money in consideration of their employment in his business. Ramalingam sold under Ex.A, dated 20th July 1919 one of the houses of his father as having been given to him exclusively, by his father whose self-acquired property it was. He on his own behalf and as guardian of his son, as well as Devaraj executed Ex. B a release deed in which it is clearly stated that the properties acquired by Shanmugam were all his self-acquired properties and that the two houses of their father had been bequeathed to Ramalingam as his elder brothers had got some self-acquired properties of their own while Ramalingam had no such property then. This document was executed on 30th march 1912 and a day later, i.e , on 1st April 1912, we find from Ex. K that Shanmugam entered into a partnership with Ramalingam though Ramalingam contributed no money for his share. Shanmugam divided the assets of his business valued at about its. 4000 into two investments, one of Rs.34,220 being considered as capital contributed by him, the other of Rs.5000 being considered as capital contributed by Ramalingam and leaving Rs.742-14-3 in the drawing account. The cheque of Rs.2500 received by Ramalingam both on his behalf and his son from Shanmugam under Ex. B is credited to his bank account 23 days later. It is likely that Ramalingam was drawing money from the Bank for his business and it may be taken that this sum has been made use of also for purposes of his business before and after the partnership with his brother which ended in 1916. He continued his business thereafter without any partner and amassed considerable wealth. He attempted to train his son plaintiff 1 by placing him in charge of one or the other of his businesses but like most of the spoilt children of rich people he was found to be useless. Ramalingams wife and his eldest son were loved by him tenderly. But differences arose; wills were executed by Ramalingam with the consent of his wife and plaintiff 1 and it was mentioned in them that the properties were self-acquired properties of Ramalingam. Later, plaintiff 1 and his sisters and their mother rebelled against the authority of Ramalingam and their conduct towards him was felt by him to be outrageous as he puts it, with the result he executed the will in question, bequeathing the major portion of the properties for charitable purposes. Plaintiff 1 and his mother at first contended that the property was acquired with the help of streedhana of the mother, in their objections in the probate proceedings to the appellants taking possession of the properties as executors. Later, in these suits, filed by plaintiffs they changed their stand and contended that the property was acquired by Ramalingam from out of the business started with the proceeds of the sale of two houses of his father. They developed their case at the time of arguments by urging that the source of the plaint schedule properties was an ancestral joint family business started by their grandfather Vaidyalingam Mudaliar. They succeeded in convincing the District Judge on this aspect of the matter, with the result that the executors-defendants 1 to 3 have now come up in appeal against the decision of the District Judge.

7. The learned District Judge has begun by stating in Para. 9 of his judgment that: "No doubt according to plaintiffs case, on their pleadings and even more particularly as sought to be pressed during arguments of counsel on their behalf, the properties were said to have come to be and to partake of the character of joint family properties in several ways alternative as well as cumulative " It was urged by the plaintiffs not in their plaint, but at the time of arguments that the suit proparties partake the character of joint family properties as they were acquired with the assets of a joint family business carried on by their paternal grandfather through Loganatha Mudaliar who is their maternal grandfather. It is not necessary to consider this point as even the District Judge who has gone out of the way to make out a case for plaintiffs not raised in their plaints concludes "that as regards the plaintiffs case that their grandfather Vaidyalingam may have done business at Kolar Gold Fields through their maternal grandfather Loganatha Mudaliar, there is no adequate evidence in proof thereof." It is, however, necessary to state before leaving this point that the District Judge refers in Para. 18 of his judgment to "circumstances that may be found on reference to Ext. CCCV, the Mines Cash Bank account and Exs. H and H-1 Vaidyalingams account with the Cavalry Road Bank viz , that an amount almost equal to Rs.23,000 received by Loganatham from the Mines during the period between May and 26th November 1898 had come to be credited in Vaidyalingams Cavalry Road Bank account." A thorough examination of Exs. H and H-1 shows that the statement that Rs. 23,000 of Loganatha Mudaliar was credited to Vaidyalingams Cavalry Road Bank account during the period referred to above is absolutely an incorrect statement, and it is surprising that such incorrect statements on questions of fact should find a place in the judgment of an experienced District Judge. Such incorrect statements are likely to influence an appellate Court and as a matter of fact, in this case, the incorrect statement has been taken as correct by Sri Kanda. swami Pillai J., as he did not evidently expect statements made by an experienced District Judge being incorrect. The following observation of his Lordship makes it clear how it has influenced him to agree with the opinion of the District Judge and has necessitated this reference to the Full Bench: "It would be also seen from Exs. H and H-1 that about Rs.23,000 in the aggregate received by Loganatha Mudaliar between May and 26th November 1898 from the Mines was credited in Vaidyalingams accounts in the Bank. As observed by the learned District Judge, the inference from all these is irresistible that K.G.F., contract business in the name of Shanmugam was run with the said initial capital of Rs.2000 by amounts credited in the accounts of Vaidyalingam and Shanmugam in the Bank and by amounts received into Vaidyalingams account In the Bank from the Mines in respect of bills of Loganatha Mudaliar to it."

8. The next point raised before the District Judge at the time of arguments though not set out in the plaint is that Vaidyalingam was doing contract business in the name of his eldest son Shanmugam, that the business was a joint family concern in which all his sons including Shanmugam were helping him and that the property thus acquired must therefore be deemed to be joint family property. In support of the ease of the plaintiffs that Vaidyalingam took over the business of Loganatham, the learned District Judge observes as follows: "No doubt having regard to the nature of the contract business, that he bad been doing with the Gold Mining Company at K.G.F., the making over by him and the taking over by Vaidyalingam of such business, spoken to by the witness P.W.6, could have been merely by way of his having recommended Vaidyalingam to the Gold Mining Company Authorities at K.G.F., and having got them to assent to entrust, in future to his nominee, the contract works, similar to those he himself had been given so far by the Mining Companies." He adds: "We have also the confirmatory circumstances In the case that, as could be seen from Ex. CCCV, the Nandidroog Mines Cash Book extracts, it was also the same kind of building and masonry work, that Loganatham had been doing for the company, for which the last payment made to his hands by the company was in May 1899, that since December 1900 Vaidyalingams eldest son Shanmugam in whose name the business was started, had come to be paid for, by the Mining Company, and so, the execution of the same works must have been taken up much before them. Thus, it seems also that the contract business at K.G.F., with the Mining Company, in the name of Shanmugam, the seniormost uncle of the plaintiffs and eldest son of their grandfather Vaidyalingam came to be carried on, almost as it were in succession or continuation of similar business, which Loganathan, their maternal grandfather, had been doing for the company before."

9. The District Judge is wrong in thinking that the last payment made to Loganathan by the Mining Company was in May 1899, and it is more correct to say that the last payment was made in 1900 as is clear by Ex. 305 and that Shanmugam had began his contract business about two years earlier in 1898 as is clear by Ex. B. Even if it could be said that Shanmugam continued the business of his maternal uncle Loganatha Mudaliar, it does not follow that his father or his brothers had anything to do with Shanmugams business. Even if the business was started by Shanmugam and his brothers when Vaidyalingam was alive, it cannot be said to be their joint family business as there is nothing to show that Vaidyalingam who was a District Court Sheristedar working in Shimoga or Mysore had anything to do with the business. Where only some of the members of a joint family share a business as partners it cannot be said to be a joint family business. As observed by Reilly J., in Official Assignee, Madras v. Neelambal Ammat, AIR (20) 1933 Mad. 920: (147 I.C. 417): "A joint family business need necessarily be the business of a whole joint family, or a whole branch of a joint family, and it cannot be the business of some group of members of a joint family or members of a branch of a joint family less than the whole joint family or the whole branch."

10. It may be that if the business is started with the assistance of joint family property, the property acquired might be regarded as joint family property, but, as observed in Bhurumal V. Jagannath, AIR (29) 1942 P.C. 13: (I.L.R. (1942) Kar. P.C. 33): "The question whether a business carried on by a member of a joint Hindu family was begun or carried on with the assistance of joint family property is a question of fact upon which the burden of proof lies upon the plaintiff who claims a share in the business. The burden of proving that the business was separate in its inception cannot be cast upon the defendant who asserts it."

11. It is true that in this case it is likely that Shanmugam utilised in his business a sum of Rs.2,000 which he and his father borrowed from Cavalry Road Bank and discharged the debt later, but a son who starts a business with the help of money borrowed by himself and his father and who later discharges that debt cannot be said to start his business with the help of any joint family property. That will be only a case of contracting a debt under a pronote and becoming liable to discharge it. The amount cannot be regarded as joint family property merely because two of the members of the family consisting of more than two members borrowed the amount on their personal liability under a pronoto and it was utilised by only one of them. It cannot, therefore, be said that the learned District Judge was right in drawing an inference from the above facts that the business started by Shanmugam was a joint family concern. On the other hand, the fact that Shanmugam opened another account in C.R. Bank in his own name and the fact that the business was run only in his own name and not even in the name of himself and his brothers indicates that it was his own business. It might be added that the mere fact that Shanmugam took the help of employees like Rama Iyer and Kumaraswamy Mudaliar trusted by his father cannot convert his business into a family concern as made out by the learned District Judge.

12. Another reason given by the learned District Judge is as follows: "We now reach the stage in January 1904 when the father Vaidyalingam joined his sons, after retiring from the post of Sheristedar at Shimoga on medical certificate, and it is indeed significant that in this very month January, while over Rs.15,000 is shown by Ex. CCCV, the Mining Companys cash book extract, to have been received by Shanmugam, as cash, only about Rs.3,100 had come to be credited into his C.R. Bank account, as per Ex. G. (2) while on the other hand, such a large amount as over Its. 12,000 had come to be credited into the father Vaidyalingams Bank account as per Ex. G (3) and it is no less significant."

13. This inference is absolutely unwarranted. If Shanmugam got Rs.15,000 and only Rs. 3,000 had come to be credited to his account it may be that the balance must have been required to pay his employees, to buy materials for contract work and to discharge such debts as he might have borrowed in executing the contract work. If amounts received by one have not been credited to his Bank account and almost a similar amount has been credited in the account of another, a few days later, even though that person happens to be the father of the first, it cannot follow that the amount received by the former has gone into the account of the latter.

14. The Cash Book produced from the Mines begins at p.175 of vol. II-A. It is seen on p.188 that on 9th January three items of cash have been paid making up a total of its. 15,902-3.1. That shows that Shanmugam received cash of Rs.15,902-3.1 on 9th January. On 19th and 20th of January, a total sum of Rs.3,100 is received in Shanmugams cash account in the Cavalry Road Bank (vide vol. 11-B p. 368,) Earlier account is found in vol. II p.391. In January there is no other entry beyond these entries. Vaidyalingams account is found at p.382 in Vol. II. A sum of Rs.12,120-6-9 has been credited to this account on 23rd January; a similar sum has been debited to this account on 29th January, These three transactions are sought to be connected, and made the foundation of the reasoning of the District Judge that the Mining Companys money went into the account of Vaidyalingam. The whole of the District Judges reasoning is fallacious; the dates are different, the amounts are different and there is no evidence except what is contained in the entries and the entries by themselves do not show anything.

15. This and other similar mistakes made by the District Judge had, as already stated, the effect of misleading Sir Kandaswami Pillai J., who evidently could not conceive of an experienced District Judge being capable of making such mistakes and adopted them; this resulted in his agreement with the findings of the learned District Judge. His Lordship observes: "On 28th November 1904, Devaraja Mudaliar had drawn from the business account in the Bank Rs.2,030 by cheque drawn by Shanmugam in his favour and credited that account with Rs.2,000 on 11th February 1905." This is based on the following observations of the District Judge in his judgment: "It is admitted that neither Devaraja nor Ramalingam had any account in their own name in the C.R Bank, and we still see from the K.G.F. business ledger account relating to the C.R. Bank at page 67 of Ex. CXLII, that on 28th November 1904, Devaraja had drawn from the business account in the C.R. Bank by way of cheque Rs.2,030 and had credited into the account Rs.2,000 on 11th February 1905." The learned District Judge has made a confusion between credit and debit, found at page 67 of Ex. CXLII, which is the ledger page in Shanmugams K.G.F. account showing his dealings in Bangalore Cavalry Road Bank. Whatever money is put in by him into the Bank, that amount is naturally debited in that page to the account of the Bank, The entry dated 28th November 1904 shows that Shanmugam got through his brother Devaraj Mudaliar a sum of Rs. 2,030 deposited in the Bank. This amount has actually been credited to the account of Shanmugam in C.R. Bank account in the same month after the cheque amount was realised as is clear by Ex. C-4, printed at page 892 in Vol. II. It is therefore clear that the learned District Judge was mistaken when be stated that Devaraj had drawn Rs.2,030 from the business account in the C.R. Bank by means of cheque. He proceeds to connect Rs.2,030 which he imagined Devaraj withdrew from C.R. Bank on 23rd November 1904 with an amount of Rs.2,000 he imagines to have been credited by Devaraj into his account 3 months later on nth February 1905. At page 571 of Ex. BBBBBBBB referred to above printed at page 124 in Vol. II (a), we find that Shanmugam to whose account the amount of Rs.2,000 referred to is debited, has drawn the amount from the Bank by sending a letter with Davaraj Mudaliar. It is a wonder whether it is due to incapacity of seeing the difference between debit and credit entries or whether it is due to a preconceived notion that the property is joint family property as claimed by the plaintiffs that such mistakes have become possible. Anyhow there they are, and it is equally surprising that attempts are made to connect different items of credit and debit entries found in account books though the amounts are not the same, and the dates are different, in order to weave an imaginary theory. It seems to us that entries in one set of account hooks were taken hold of and dovetailed into the entries in another set of account books without any evidence to connect them. This process of reasoning is utterly fallacious. A number of other instances showing mis-statements can be pointed out but this would serve no useful purpose. It is sufficient to say that the learned District Judge has confused himself in the mass of irrelevant documentary evidence adduced in the case and his reasoning is likely to confuse others.

16. Considering all the circumstances, there is little doubt that Vaidyalinga Mudaliar, who was away in Shimoga and Mysore working as District Sheristedar had nothing to do with the contract business at K.G.F. On the other hand, Shanmugam Mudaliar his eldest son appears to have been as enterprising a businessman as his youngest brother Ramalingam was later on proved to be. His maternal uncle Loganatha Mudaliar amassed some wealth in his business as a contractor employed by mines for construction of buildings. It is natural that Shanmugam who was by that time an adult, should look to him for guidance and help and the guidance and help of his maternal uncle was no doubt available. He induced his father to execute a pronote along with him in favour of the C.R. Bank for borrowing Rs.2,000. With the amount so borrowed and with the help of small sums of money otherwise borrowed from the Bank on his own account and with such amount of profits as he was able to realise in the early days, he was able to carry on his contract business with such success that he was not only able to discharge the debt he contracted with the help of his father, but also to deposit by about the year 1904 Rs.7,000 in the C.R. Bank. He was, how. ever, not the sort of man who would neglect his parents or brothers. He allowed his father to draw money he wanted by writing letters to the Bank. He met all the family expenses and trained his younger brothers in the same kind of business as he was doing. But at no time did he show the idea of treating his self-acquired property as joint family property. The learned District Judge has confused himself in stating that his brothers were operating on his bank account. It is true that money was either debited or credited through them to his account. The entries show that he has done so through strangers also. It cannot follow that either Vythialingam, Ramalingam or Davaraj had any right to the amount deposited in the Bank in Shanmugams account, any more than the other persons, who were allowed to deposit or withdraw money for him. On the other hand, it was made clear in the R. G.F. account books of Shanmugam that his brothers and father had nothing to do with the business. It is true as observed by the learned District Judge that money spent for the household expenses finds a place in the accounts under a separate heading. That is because Shanmugam met the family expenses out of kindness and the money thus spent has to find a place in the accounts. If any money was paid either to his father or to his brothers these sums were mentioned in separate ledger pages opened in their names. So also his own personal account has been opened, and the significant word kasa is found in the accounts with reference to himself and that makes it clear that he is the proprietor. If, on the other hand, the business was a joint family concern, a single ledger account for all the members of the family would have been opened in the name of the joint family. After all, we find that Shanmugam has paid for the services of his brothers. As much as a sum of Rs.1,000 has been paid to Devaraj in the year 1910. As observed in the decision reported in 50 Mys. H.C.R.177: "The separate property of a Hindu ceases to be his property and acquires the characteristics of his joint family or ancestral property, not by any physical mixing with his joint-family or ancestral property, but by his own volition and intention, by his waiving or surrendering his special right in it as separate property. A clear intention to waive separate rights must be established and will not be inferred from acts which may have been done merely from kindness or affection." It is clear that Shanmugam at any rate had at no time conceived the idea of treating his proparty as the joint family property of himself, his father and brothers.

17. That the brothers or the father of Shanmugam had no such idea, even prior to the time of settling their affairs is clear from the fact that when Ramalingam, one of the brothers had to sell a house, it was clearly stated in the sale deed that the house had been bequeathed to him by his father, and in view of the fact that the father realised that his elder sons were in enjoyment of their self-acquired properties. It is nobodys case that at that time, there was any idea of making any false statements and if the District Judge conceives that there was any such idea, that is because of his imagination which he could not avoid on account of what appears to be his preconceived notion that the plaint schedule properties are the joint family properties. The fact that the executant of the document is referred to in it as "contractor Vythialinga Mudaliars son Ramalinga Mudaliar" is merely intended to show that the executant was the contractor and not his father, Vytbialinga Mudaliar. It is no doubt true that this description mold either be applied to the father or his son, but it has to be applied to such person as was actually doing contract work. There is nothing to show that Vythialinga Mudaliar was doing contract work. On the other hand, there is everything to show that Ramalinga Mudaliar was doing contract work. Use of the word contractor as referred to above in Ex. A in no way helps the plaintiffs.

18. The exact relationship between the parties is clarified by a document which came into existence to evidence the same after the parties sat for that purpose, and that document is Ex. B, the release deed executed by Devaraj Mudaliar and Ramalinga Mudaliar in favour of their brother Shanmugam. It is of such a great importance that it is necessary to quote here at least a good portion of the document. The document referred to is as follows: "Whereas from about the year 1898, the said V.V. Shanmuga Mudaliar started life as a contractor and merchant by his own exertions without the use-or aid of funds of the joint family to which he belonged when he was forced to find his own means of living on the Kolar Gold Fields and elsewhere, whereas contenting himself with the general education he had with the limited means of his father, the late V.Vaidyalinga Mudaliar aforesaid; whereas the said V.V. Shanmuga Mudaliar by intelligent, honest and hard labour as a contractor and merchant of the Kolar Gold Fields has been able to make the self acquisitions described In the schedule hereto affixed and has all along kept them as his separate properties; whereas the said V.V. Shanmugs Mudaliar and his younger brothers, V.V. Devaraja, Mudaliar and V.V. Ramalinga Mudaliar have already given effect to their father V.Vaidyalinga Mudaliars intentions orally declared by him as his last wishes during his illness shortly before his death on or about the 3rd May in the year 1905 in regard to the disposal of his immoveable and moveable properties, which were all his self-acquisitions . . . . . . whereas according to the disposals already made agreeably to the orally declared intention of late V.Valdyalinga Mudaliar aforesaid, the two dwelling houses above described have already become the sole and exclusive properties of V.V. Ramalinga Mudaliar, the youngest of the three brothers aforesaid, his elder brothers V.V. Shanmuga Mudaliar and Devaraja Mudaliar, then agreeing to claim no right, title or interest therein in deference to their fathers last wishes and all the movable properties of the late V.Vaidyalinga Madaliar, including the amount of his Endowment Policy aforesaid, have already been well and truly appropriated towards discharge of his just debts and his other liabilities with the knowledge and consent of all the parties to these presents viz. V.V. Shanmuga Mudaliar, V.V. Devaraja Mudaliar and V.V. Ramalinga Mudaliar, so that nothing in the nature of undivided joint Hindu family properties remains to be shared or divided between the said parties to these presents% whereas it is however true that V.V. Shanmuga Mudaliar on account of the natural love and affection and considering the limited means of his father, the late V.Vaidyalinga Mudaliar aforesaid, not only gave promising aids to the family to which he belonged from time to time from his self-acquisitions, both during and after the lifetime of his said father but also has enabled his brother V.V. Devaraja Mudaliar to form business oonneetions with him from the year 1905 after the close of about 2 years apprenticeship in the latters line of business and whereas the said Shanmuga Mudaliar has given his other brother V.V. Ramalinga Mudaliar also a training in business and enabled the latter to form business connections with him from about the month of October in the year 1910, with the happy result that both his brothers V.V. Devaraja Mudaliar and V.V. Ramalinga Mudaliar are now able to stand on their own legs as businessmen and each of them, the said V.V. Devaraja Mudaliar and V.V. Ramalinga Mudaliar, has earned moneys as separate properties to carry on his profession without any extraneous help in future; And whereas the said V.V. Shanmuga Mudaliar has now made arrangements to go abroad and considering the uncertainties of human life and nature, in spite of the splendid relations existing between the parties to these presents the said V.V. Shanmuga Mudaliar wishes to set his house in order and avoid all chances of any future dispute relating to his self-acquired and separate properties described in the schedule hereto affixed and the said V.V. Devaraja Mudaliar for himself and V.V. Ramalinga Mudaliar for himself and as guardian and father of his minor son V.R Viswanathan, are willing and hereby agree to comply with the said V.V. Shanmuga Mudaliars wishes in the circumstances above set forth and to release and relinquish and quit claim. their right, title and interest, if any in the said properties of the said V.V. Shanmuga Mudaliar in a formal manner. Now this Indenture witnesseth that in pursuance of the said agreement and in consideration of a sum of Rs.2,500 given this day by the said V.V. Shanmuga Mudaliar to his brother V.V. Devaraja Mudaliar and another sum of Rs.2,500 to his other brother V.V. Ramalinga Mudaliar and his minor son V. R. Viswanathan, which sums of money the said brothers V.V Devaraja Mudaliar for himself and V.V. Ramalinga Mudaliar for himself and as guardian of his minor son, V.R. Viswanathan aforesaid, do hereby acknowledge receipt. the said V.V. Devaraja Mudaliar for himself and V.V. Ramalinga Mudaliar for himself and as guardian and father of his minor son, V. B. Viswanathan do hereby declare that they or any of them shall not be entitled to claim any manner of right or title or interest in the said V.V Shanmuga Mudaliars property (described in the schedule hereto affixed) which are his self-acquisitions as herein before recited and agree that even if they or any of them ever had or have any right or title or interest on the said properties in spite of the truth relating to their separate and exclusive acquisitions by the said V.V. Shanmuga Mudaliar, the same shall hereby be and have hereby been released, relinquished and quit claimed, so that the said Shanmuga Mudaliar shall be and remain the sole and absolute owner thereof." This document which evidences a family settlement solemnly entered into by the three brothers of whom Ramalingam, father of plaintiffs represented his branch of joint family as it existed then, clearly mentions their exact relationship and the extent and nature of interest they had, if any, in it. It is made clear that the entire property referred to in the document was the self-acquired property of Shanmugam alone, except for the two houses, which were the self-acquired property of their father and which were referred to as having been bequeathed to Ramalingam alone. While it specifically stated that none, apart from Shanmugam had any interest in the properties, it is mentioned that a sum of Rs.2,500 was paid as consideration to Devaraj on one hand and that Rs.2,500 was paid to Ramalingam and his son for releasing such right as they might be deemed to have, if any, in the said properties. The settlement as evidenced by this document has been acted upon for nearly four decades and neither Devaraj, nor plaintiffs or their father, are shown to have questioned it. Before considering the evidentiary value of what has been stated in the document, itself, we shall consider the question of law whether Ramalingam or his sons of whom plaintiff 1 alone had been born and was a minor then could question it. Numerous authorities could easily be quoted for upholding the position that so far as a manager of a joint family is a party to a suit in a representative capacity, the minors and other members of a joint family are bound by the decision. And it is equally certain that when parties representing different branches of the family arrive at a settlement, such settlement cannot be questioned either by them or by the persons, who are represented by them even though they are minors, except in a suit properly instituted for that purpose within the time allowed by law. If after a bona fide settlement between the managers of a joint family the other members could be allowed to question the settlement without getting that settlement set aside in a proper Court, there could be no finality to disputes. As observed in Partap Singh v. Sant Kaur AIR (25) 1938 P.C. 181: (I.L.R. (1938) Lah. 313) "It is true that if a compromise has been entered into in good faith by the manager of joint Hindu family or by a father in such family a minor member of the family cannot be allowed to disturb it, on the ground of inequality of the benefit unless there was fraud or some other ground which in law vitiates it. This rule proceeds upon the principle that the minor was properly represented by the father as the manager of the family, and he was therefore a party to the compromise." We do not think, therefore, it is open to the plaintiffs to question in these suits the finality of the terms of settlement as evidenced in Ex.B or the nature of interest the parties to the settlement had in the properties according to the settlement.

19. It has, however, to be observed that no one has questioned the settlement as evidenced in this document in the pleadings in this suit and in fact P.W.1, Padmanabhan, who is the husband of one of the sisters of the plaintiffs and who claims to know the family affairs has stated that the release deed Ex.B evidences the final settlement between the parties, and that he has gone through it and advised the plaintiff to rely on the truth of the recitals in it in support of their contentions that they and their father were members of a joint family. Plaintiff 1 himself in his evidence admits that he accepted all the recitals except the portion Ex.B (6) which refers to Shanmugam having started life without the use and aid of joint family funds. It may be said here that plaintiff 1 has thus admitted the other recitals in Ex.B and. if he questions the truth of the statement that Shanmugam did not begin his business with the help of any joint family funds, he is questioning the truth of what he does not know, having been horn long after Shanmugam started his business. It is nobodys ease that any fraud was practised by Shaumugam on the brothers. The learned District Judge has out-heroded herod to use his own expression with reference to one of the witnesses, in making out a case for the plaintiffs, not conceived by them even when the plaint was drafted, alleging that the suit properties are their joint family properties.

20. Even if it is open to the plaintiffs to question the truth of what is stated in Ex. B to which their father was a party, can it be said that there is any ground to support such a contention? Under the settlement evidenced by Ex. B, properties of great value were taken by Shanmuga Mudaliar and what was received by his two brothers, including even the items referred to by the learned District Judge and not mentioned in Ex. B were disproportionately small in value. It cannot be conceived that Ramalinga Mudaliar, plaintiffs father, who has been found to be a very shrewd businessman of a great intellect, would have given up his share in the valuable property if in case he had any interest in it. It is not shown that either Ramalinga Mudaliar or his brothers had any intention of deceiving or defrauding their own sons by recording in the release-deed, Ex. B, that the properties were the self. acquired properties of Shanmuga Mudaliar. The document itself came into existence evidently after great deliberation and in fact after consulting P.W. 11, Diwan Bahadur Masilamani Pillai who subsequently retired as a Judge of the High Court of Madras. It has not been shown that there was any motive or reason for stating in Ex. B what is not true and there is nothing to show that anything but truth finds a place in it.

21. Let us however examine what is stated in Ex. B and see if any of the statements is false. The first statement in Ex. B that needs some comment is the reference t the fact that V.Vythialinga Mudaliar, father of the brothers, died after bequeathing the two houses which he owned as his self-acquired proparty to Ramalinga Mudaliar exclusively and leaving no other property. There is nothing to show that the two houses were the ancestral property of Vythialinga Mudaliar and in fact in the mortgage deeds executed by him and attested by his son, the houses have been referred to as his self-acquired property. That he was not a man of any great means is clear from the fact that even the houses had been mortgaged. He died leaving some debts as is clear from the account books of the C. R. Bank. Even the ledger opened by his eon Shanmuga Mudaliar in respect of monies paid or received by him does not show that he died leaving any assets other than the two houses which he had bequeathed to Ramalinga Mudaliar, father of the plaintiff. The statement in Ex. B that the two houses had been bequeathed to Ramalinga Mudaliar in view of his two brothers having acquired some properties of their own, is corroborated by the recital in the sale-deed Ex. A executed by the plaintiffs father Ramalinga Mudaliar about two yearn before the date of Ex. B. There could hardly have been any reason for such statements being made in Ex. A long before the settlement between the parties as evidenced in Ex. B, unless it be that what is stated about the be- quest in Ex. B is the truth.

22. The next statement in Ex. B that needs consideration is that V.V. Shanmuga Mudaliar who started life as a contractor and merchant attained success by his own exertions without use or aid of funds of the joint family to which he belonged. This is proved by the fact that till iso4 he had hardly any. thing to fall back upon except the debt of Rs.2,000 borrowed by him with the help of his father and small sums of money which he borrowed from the Cavalry Road Bank in his own khata. Thus the statement referred to above is found to be true.

23. The document, Ex.B further states that considering the limited means of his father, Shanmugam not only gave aids to the family to which he belonged. from time to time from his self-acquisitions but also helped his brother V.V. Devaraja Mudaliar to form business connection with him from the year 1904 after the course of about two years apprenticeship in the latters line of business and that Shanmuga Mudaliar has given his other brother V.V. Ramalinga Mudaliar also training in business and business connection with him from about the month of October 1910 with the happy result that both his brothers were able to stand on their legs. It is clear from the personal ledgers opened in the name of the brothers and the father of Shanmuga Mudaliar as well an from other entries in the account-books of the concern owned by Shanmuga Mudaliar that the latter was helping them out of affection towards his father and brothers and that he was meeting the family expenses. It is also clear that he. employed his brothers in the business and not. only gave them training but also paid for the work done by them. This is found by the learned District Judge to be true but he is making use of these facts to show that all the brothers were interested in the business. That this is a misconception of the District Judge has been amply shown already. The learned District Judge should not have started with the presumption that all that has been stated in Ex. B regarding the settlement between the brothers did not contain the truth. It looks as if he viewed with suspicion not warranted by any circumstance disclosed in the evidence adduced in the case. If as it should be believed, it is believed that Ex. B contains the true state of affairs it clearly shows that all the properties referred to in it except the two houses were self-acquired properties of Shanmugam alone, and that it is out of affection for his brothers and their families that he gave Rs.2,500 to Devaraj and Rs.2,500 to Ramalingam and his son plaintiff 1.

24. As observed in Appalaswami v. Suryanarayana Murti, AIR (34) 1947 P.C. 189: (1947 A. L. J. 587): "It is dangerous to construe act of generosity or kindness as admissions of legal obligation. Hence the fact that at the instance of mediators assisting in the partition one of the members of the joint family agreed to apply some of his self-acquired property for the benefit of the members of the family cannot be taken as establishing that the member intended to bring into partition his entire self-acquired interest." This clearly shows that the mere fact that Shanmugam met the expenses of the family and employed his brothers in his business and paid them for their services or that he paid Rs.2,500 to each of the brothers at the time the release deed was executed out of generosity or kindness cannot show that the property acquired by him was not the self-acquired property of Shanmugam or what was paid by him to his brothers Devaraj on the one hand and Ramalingam on the other both on behalf of himself and his son, plaintiff 1, should be regarded as their joint family property. It is in evidence that Shanmugam started the partnership concern on the very next day with Ramalingam as his partner and generously divided the assets of his business allotting Rs.5,000 to the share of his brother. It will be noticed that Shanmugam was no longer a member of the joint family of which the plaintiffs and their father could be said to be members. As observed in Daiva Animal v. Ramanuja Nayakar, AIR (23) 1936 mad, 479: (168 I.C. 913): "Where the manager of a joint Hindu family is a member of a trading partnership, the family as a whole does not become a member of the partnership." It will thus be seen that the partnership started by Shanmugam and Ramalingam cannot be said to be a joint family business in which plaintiff 1 was interested. It is no doubt true that 23 days after this partnership was formed Ramalingam deposited Rs. 2,500 paid to him by Shanmugam both on his behalf and on behalf of his son in his Bank This shows that he kept the amount separately and did not invest it in business. It is no doubt true that plaintiff 1 was interested in Rs. 1,250 out of this sum and even if this sum could be said to have been included in the amounts drawn by Ramalingam for purposes of his business, it cannot convert the business into a joint family concern. In fact, it has been observed in Venkata Suryanarayana v. A. Ramayya, 40 M.L.J. 153: (AIR (S) 1921 Madras. 98): "A guardian of minors cannot enter into an agreement with a third person which can give the wards the status of partners with the third person." 25.The payment of Rs.2,500 to plaintiff 1 and his father does not strictly speaking amount to a gift as was argued, since it was paid in consideration of those two persons giving up their claim, however imaginary such claims might have been. The father and son were entitled to Rs. 1,250 each, and the father who received Rs. 1,250 on behalf of the son as his guardian, became liable to return the amount. This does not, however, mean that the amount of Rs. 2,500 paid for giving up imaginary claims, unlike the case of some of the members of a point family releasing their right in joint family properties, is their joint family property, and it is particularly so, as it was paid out of what has been held to be the self-acquired property of Shanmugam. The plaintiffs have no interest in the business started by the father even if he wrongly utilised in his business the sum of Rs. 1,250 belonging to plaintiff 1. Plaintiff 1 is entitled to recover the same, if at all, together with damages, if any.

26. All aspects of the matter on which the learned District Judge has mainly relied on have been so far considered, but it must be remembered that none of these aspects arise out of the pleadings. Consideration of these matters in detail became inevitable as the main basis on which the District Judge decreed the suit of the plaintiffs, is the one so far dealt with, and as this line of thinking was accepted by His Lord-ship Kandaswami Pillai J. though that was due to his acting on the incorrect statement of facts made by the District Judge, who could not have been expected to make such incorrect statements. All the same, we cannot pass without remarking that it would always be safe for Judges of the lower Courts to read the pleadings carefully, frame issues without adopting the draft issues filed by Advocates and be familiar with the points really in dispute so as to enable them not merely to check unnecessary evidence, but also unnecessary arguments on points which do not really arise. As in this case, copies of documents like EX. QQQQQQQQ should not be allowed to be lugged in at a late stage of the case or relied on without any evidence on the genuineness of the document. It has to be impressed on their mind that the danger of allowing evidence being let in on points not raised in the pleadings or allowing parties to argue on points not really pertinent to the case end in unnecessary waste of time, and the party against whom such points are decided will suffer, as he cannot be expected to have adduced evidence to rebut the case not set out in the pleadings. It may be added that the lengthy cross examination of the witnesses could have been avoided if the Court had confined the attention of the parties to the points raised in the pleadings. Unnecessary length in arguments and judgment could also have been avoided.

27. Coming to the case of the plaintiffs as put forward in the plaint, it has to be stated that it has not been shown that Ramalingam came to be in possession of any moveable property of his father Vythialingam Mudaliar. It has been specifically stated that the two houses of Vythyalinga Mudaliar were sold by Ramalingam and the sale proceeds invested in several businesses and there was thus a nucleus of ancestral property with which the businesses were carried on. The adult members of the family viz., plaintiff 1 and late Mr. V. Ramalingam were actively associated with the family business and as all the properties wore treated by Ramalingam as family properties, the properties are their joint family properties. This is the basis of plaintiffs case as set out in the plaint. It is no doubt true that Ramlinga Mudaliar sold the two houses of his father. It has already been shown that these two houses ware the self-acquired properties of Ramalinga Mudaliar. They were bequeathed exclusively to Ramalinga Mudaliar by his father. It is clearly a case of the property being bequeathed to only one of the three members of the joint family and Ex. A also makes it clear that it was bequeathed to him to be enjoyed by him as he liked. It is, thus, clear that the father intended that Ramalinga Mudaliar should take the property as his self-acquired property and it may be added that at that time none of the plaintiffs were even born and it cannot be said that the property was bequeathed with the intention of making it a joint family property of Ramalingam and his sons. Following observations in 48 mys. H. C R. 363 with reference to a gift are equally applicable to case of bequests "Where a gift is made to the members of a joint family by a paternal ancestor, whether they take the property as joint family property or self-acquired property would depend on the question whether the ancestor intended that the property should be taken by them as members of a joint family on behalf of the family. If the gift is to the family, the members take the property and hold it as joint family property. Where the gift is only to some members of a joint family, they most be deemed to take the property as tenants-in-common in the absence of anything to the contrary." We might also cite the Privy Council decision in Mt Bahu Rani v. Rajendra, Baksh, 60 I, A. 95: (AIR (20) 1933 P.C. 72): "Prima facie, a gift to a member of a joint Hindu family is his separate property and will only become joint family property when it descends to his eons, unless he himself has made it joint family property by throwing into the common stock." As the two houses referred to above which were the self-acquired properties of Ramalingams father, were bequeathed to him exclusively to be enjoyed as he liked, it is clear that after the death of the testator it became his exclusive property and the plaintiffs can claim to have no interest in it. Ramalingam sold the houses for Rs.4,000 and there is nothing to show what he did with the money, though there is some oral evidence that he discharged some debts. Even if he had invested this sum of money in his businesses, it cannot be said that the businesses became a joint family concern as the amount belonged to him exclusively. [Their Lordships considered the claim of the plaintiffs, as put forward in the plaint that both Ramalingam and plaintiff 1 were actively associated in the business and that the properties were treated as the joint family properties of Ramalingam and his sons and found against the plaintiffs. Their Lordships also considered how the will came to be executed.]

28. In the view we take, the appeals are allowed and the suit of plaintiffs stand dismissed with costs throughout. The stay order passed is vacated. Balakrishnaiya, J. - I concur with the decision. Appeals allowed. AIR (37) 1950 MYSORE 43 [C.N. 14.] "Govindappa v. Narayanappa" MYSORE HIGH COURT Coram : 1 BALAKRISHNAIYA, J. ( Single Bench ) Govindappa and another-Judgment-debtors -Petitioners v. K. Naranappa -Decree-holder -Respondent. Civil Revn. Petn. No. 289 of 1949-50, (D/- 6 -2 -1950, against order of Munsif, Sager, D/- 7 -12 -1949. Mysore Debt Conciliation Act (6 of 1937), S.4, S.9 and S.17 - RECOVERY OF DEBT - Debt Laws - Application under S.4 - Dismissal of, under S.9 or S.17 - Fresh application under S.4 - Maintainability. Once an application made under S.4 is dismissed either under S.9 or S.17 no fresh application is maintainable under S.4 in respect of the same debt. (Paras 3 and 5) R.V. Sreenivasaiya-for Petitioners. Judgement Order.-The petitioners are judgment-debtors 5 (a) and 5 (b) in Ex. Case No 488 of 48.49 on the file of the Munsiff, Sager, who filed I. A. No. II under s. 26, Mysore Debt Conciliation Act (Act VI [6] of 1937) claiming stay of execution proceedings on the ground that they bad preferred an application in D.C. No. 10 of 49 -50 before the Debt Conciliation Board for conciliation of the debt involved in the execution petition. The decree-holder maintained that the judgment- debtors are not entitled to claim the suspension of the execution proceedings as the present application before the Debt Conciliation Board was the fourth of its kind in relation to the same debt and that it is neither a valid application nor otherwise maintainable according to law. The learned Munsiff refused to stay the execution proceedings.

2. The decree-holder obtained the decree in O.S. No. 261 of 28-29 on 15-7-1931, more than 18 years ago, and he has not recovered the debt as the judgment-debtors obtained stay repeatedly by filing a number of applications before the Debt Conciliation Board. No attempt is made to settle the debt. O.C. No. 1 of 44.45 was dismissed on 16-3-1915, O.C. No. 6 of 45 46 was dismissed on 17-1-46 and D. C. No.19 of 46-47 which is admittedly made by the present judgment-debtors is not pending before the Debt Conciliation Board.

3. Sri R. V. Sreenivasaiya on behalf of the petitioners urges that in view of the present pending application D.C. No. 10 of 49-50, it is mandatory under S.26, Debt Conciliation Act, to stay further proceedings and that the judgment- debtors are not precluded by the provisions of the Act to make more than one application. Section 26, Debt Conciliation Act runs as follows: "When an application has been wade to a board under S.4, any suit or other proceedings then pending before a Civil Court in respect of any debt for the settlement of which application has been made shall be suspended until the Board has dismissed the application." The debtor is entitled to make an application for settlement of the debt with the creditor under S. 4. Section 5 provides certain formalities to be observed and S.6 mentions the particulars to be stated in the application, Under S.7, an application may be rejected if it does not comply with the requirements contained in Ss.5 and 6 and it is also provided that the rejection of the application under this section shall not preclude the applicant from making a fresh application. Sections 9 and 17 empower the Board to make an order dismissing the application; but neither section makes a reservation for filing a fresh application; the persons interested may make an application to the Board under S.24 for review of any order passed by it.

4. In the general scheme of the Act, as discussed above, a second application is not precluded if the previous application is invalid and a review is provided of the orders once made by the Board. In the present case, it is obvious that the previous applications to the Debt Conciliation Board were not rejected under S.7 nor is the present application D.C. No.10 of 49-50 one for review under S.24

5. The point for consideration is whether the debtors could make successive applications so as to postpone indefinitely the execution of the decree and impede the realisation of the debt. Section 26 provides that when an application has been made to the Board, under S.4 any suit or other proceeding then pending for the settlement of which application has been made shall not be proceeded with until the Board has dismissed the application. Neither S.9 nor S.17 does provide for filing further applications when the previous applications are dismissed. It follows, therefore, that the debtor cannot make successive valid applications. The intention of the Legislature is to create facility for conciliation by providing an opportunity and when that concession is exhausted, the debtor cannot ask for stay of proceedings repeatedly. Under S.26 of the Act, the debtor therefore cannot have a stay more than once. This view is supported by the decision in Natesa Ayyar v. Singaravelu Pillai, AIR (28) 1941 Mad. 350: (1940-2 M.L.J. 923), where Burn J. lays down as follows: "The meaning of the provision in part II of S.7 in that if an application has to be rejected merely for want of some formality, the debtor should not be precluded from bringing a fresh application. The absence of any provision for a fresh application with regard to the same debt when the application has been dismissed on the merits indicates that in such cases the Legislature did not contemplate a fresh application by the same debtor. The presence of the provision in S.7 by which an applicant can make a fresh application if his application has been rejected on formal grounds and. the absence of any similar provision in S.9 conclusively indicates that the Legislature did not Intend debtors to he allowed to make more than one effective application for the conciliation of a particular debt under the provisions of the Act and inasmuch as the Act does not contemplate successive petitions by the same debtor in respect of the same debt a judgment- debtor is not entitled to obtain a stay under S.25 in any individual suit or proceeding more than once." (Section 25, Madras Debt Conciliation Act, is similar to S.26, Mysore Debt Conciliation Act).

6. The order of the Munsiff must therefore be upheld. This petition fails and is dismissed. Petition dismissed. AIR (37) 1950 MYSORE 44 [C.N. 15.] "Krishniah v. Mysore Govt." MYSORE HIGH COURT FULL BENCH Coram : 3 VENKATA RAMAIYA, BALAKRISHNAIYA AND MALLAPPA, JJ. ( Full Bench ) T. Krishniah - Accused - Petitioner v. Government of Mysore - Complainant-Respondent. Criminal Petn. No.151 of 1948-49, D/- 9 -3 -1950, Decided by Full Bench on difference of opinion between: Balakrishnaiya and Puttaraj JJ. D/- 26 -9 -1949. (A) Criminal P.C. (5 of 1898), S.215 - COMMITMENT OF CASE - "On a point of law"-Absence of evidence. (Per Venkata Ramaiya and Balakrishnaiya JJ., Mallappa J., contra) -The High Court cannot be required under S.215 to examine the evidence to determine whether any portion of it is admissible or not and whether the evidence justified the commitment or not. Absence of evidence is not a point of law within the meaning of S.215. (Paras 10, 20) Annotation: (49-Com.) Criminal P.C., S.215, N.8. (B) Criminal P.C. (5 of 1898), S.162 - POLICE OFFICERS - INVESTIGATION - Statement - Identification of person. (Per Mallappa, J.) - Where the girl points out the accused when questioned by the Police Officer as to whether the accused was the person who raped her it is a statement to the Police Officer within the meaning of S.162 and is not admissible in evidence. (Para 14) Annotation: (49 Com.) Criminal P.C., S.162, N.3.

V. Krishnamurthy-for Petitioner. Advocate - General -for Respondent. Judgement Venkata Ramaiya, J. - The petitioner who has been committed to the Court of Session for trial on a charge under S.376, Penal Code, has applied for the commitment being quashed on the ground that there is no legally admissible evidence against him to justify it. In accordance with the existing practice of this Court, the petition was posted before a Division Bench. As the Bench was of divided opinion whether the petition is to be allowed or dismissed it has been referred to the Full Bench.

2. The case against the petitioner is that he raped a girl of 7 years on the afternoon of 16th February 1949 in his house at Madhugiri. The Magistrate has in the order of commitment referred to the opinion of P.W. 8, the lady doctor who examined the girl that she might have been raped, the evidence of P.W. 4 that he law the girl weeping near the accuseds house and took her to her fathers house and that of P.W. 5 that the girl identified the accused as the person who raped her after inducing her by holding out some eatables to go with him to his house, to Ex. P-2 the mahazar recording this and attested by P. Ws. 5, 6 and 7 and expressed that there is no reason to disbelieve the prosecution version and that the evidence may justify a conviction.

3. It is contended on behalf of the petitioner that this view of the evidence is erroneous and that the commitment is liable to be quashed for want of evidence to connect the accused with the offence. Objection is raised to the evidence of P.W. 5 as being inadmissible by virtue of the bar placed by S.162, Criminal P.C., on the statement made during investigation before the Police.

4. The learned Advocate-General argued that the question whether there is evidence or not to justify the commitment is one of fact which cannot be considered in revision and that this is not the stage at which objections to the reception of evidence are to be decided. Two oases viz. Ramadhin v. Emperor, AIR (16) 1929 Nag. 36: (29 Cr. L.J. 963) and Lala Lalung v. Emperor, AIR (26) 1939 Cal. 176: (40 Cr. L.J. 240), are cited in the order as showing that the evidence concerning identification of the accused as the person who committed rape on the girl is admissible. Sri Krishnamurthy on behalf of the petitioner contends that a contrary view is taken in a large number of cases and, in particular referred to Surendra Dinda v. Emperor, I.L.R. (1945) 2 cal. 513: (AIR (36) 1949 cal. 514: 48 Cr. L.J. 804), where a distinction between identification by one-self as mental process and when it is followed by a communication to another is sought to be made. It was open to the Magistrate to disallow the evidence or discard it while weighing the evidence for the purpose of making an order under S.213, Criminal P.C., as he is required by that section to determine on a consideration of the evidence whether there is a prima fade case against the accused.

5. The point now for decision is not what the Magistrate could or might have done but whether there are grounds on which this Court can in revision interfere with the order passed by him. According to S.215, a commitment once made under S.213 by a competent Magistrate can be quashed by the High Court only and only on a point of law. As stated by Rankin C.J., in Girish Chandra v. Emperor, AIR (16) 1929 Cal. 756 at p. 759: (31 Cr. L.J. 506 F.B.): "Section 215 is a restrictive or negative section. It is intended to negative the existence in Sessions Courts of power to quash commitments and it is intended to restrict the High Court to cases in which it can be said that the commitment is bad in law. This last restriction is a restriction put upon all powers which the High Court might otherwise possess. I have no doubt at all that it is a restriction which attaches to the powers of the High Courts in revision." The petitioner must, in order to succeed, make out that what is urged for him is a point of law and a point of law on which the commitment can be quashed, as it is possible that there may be a point of law and yet the commitment may not be disturbed if materials other than those relating to it are available, to support the commitment, or the point is such as can be cured by Ss. 532 and 537 of the Code. The expression "point of law" is not defined in the Code but without difficulty it may be said to arise when there is a breach of a statutory condition or requirement. In Belli Gowder v. Emperor, AIR (21) 1934 Mad. 691: (36 Cr. L.J. 319), a commitment was quashed because evidence was recorded by the Magistrate in the absence of the accused contrary to S. 353, Criminal P.C. In 50 Mys. H.C.R. 364, this Court quashed a commitment as all the witnesses were not allowed to be examined by the prosecution as provided for in S. 347. Where no violation of the statute is alleged, and what is alleged is want of evidence against the accused the question whether it would be a point of law for quashing the commitment under S.215 is not free from doubt. Woodroffe explains "point of law" as being a point other than that of fact in his commentary on Criminal Procedure Code (1914 Edn). For purposes of appeal, the Code makes a distinction between matters of fact and matters of law and to avoid doubt about severity of sentence being a matter of law there is an explanation added to 8. 418. Likewise it is provided in S.232 that when the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved the High Court in the exercise of its powers of revision may quash a conviction. There is no similar provision in or explanation attached to S. 215 for want of evidence being deemed a point of law on a ground for quashing commitment. The provisions of the Code do not apparently help the petitioner on a plain construction to support his contention. With a view to show that the question whether evidence is admissible Or inadmissible is a point of law, Sri Krishnamurthy relied upon Pakala Narayanaswami v. Emperor, AIR (26) 1939 P.C. 47: (40 Cr. L.J. 364) and P. Kottayya v. Emperor, AIR (34) 1947 P.C. 67: (48 Cr. L.J. 533). Both these were appeals against convictions and the decision turned upon the application of S.27, Evidence Act. It is hardly necessary to point out how limited is the jurisdiction of this Court in revision as compared with that in appeal and how different it is while dealing with a case of conviction from that of a commitment. Even in revision its powers under S.215 are not the same as under S. 439 but less extensive and more circumscribed. Reference to considerations as to what is taken to be "point of law" in second appeals under the Civil Procedure Code is not in my opinion for the same reason of much assistance for the application of S.215.

6. No case of any Court in which a commitment is quashed on account of the evidence recorded by the Magistrate being held to be not admissible is brought to my notice. Reliance was placed on the observation of Rachpal Singh J., in Emperor v. Mihi Lal, AIR (27) 1940 ALL. 396: Cr. L.J. 869), on a reference by the Sessions Judge for quashing a commitment: "There may be oases in which there is no evidence to warrant a commitment; then there may be another class of cases in which commitment is made on no legal evidence at all. In such oases action may be taken under S. 215, Criminal P.C." The decision in the case did not involve a consideration of the evidence being admissible or not as the learned Judge found that there was evidence sufficient to support the committal and dismissed the petition. But the following statement in the course of the order suggests that the evidence placed before the Magistrate is not to be taken as the sole criterion for dealing with the case against the accused: "Another question which we have to take into consideration is this: that it often happens that there may be other evidence available while a case is being tried in the Court of Session. There may be witnesses whom the learned Sessions Judge might wish to summon under the provisions of S.540, Criminal P.C." In Venkata Gopala Narasimha Rama Rao V.Venkata Ramayya, AIR (22) 1935 mad. 257: (36 Cr. L.J. 781), the order of the Magistrate allowing statements made by the complainant in an income-tax return to be used as evidence was questioned. Rejecting the petition the Division Bench observed: "we are influenced by the consideration that if the case is committed for trial it will rest upon the trial Court independently to decide upon the admissibility of this evidence and it seems undesirable at this stage we should in any way interfere with that Courts discretion." A Full Bench of this Court has in 34 Mys. H.C.R. 285 held that: "A revision Court will scarcely be justified in interfering with a ruling given by a trial Court within its discretionary powers as to the admissibility or otherwise of particular questions in the course of the examination of witnesses before it. It may also be observed that the reception of inadmissible evidence would be lees injurious to the persons affected by it than the rejection of admissible evidence because in the former case in arriving at a decision the evidence wrongly admitted can well be excluded from consideration whereas in the latter case the evidence (sic would have to be) brought on record by having recourse to further proceedings necessitating thereby the prolongation of the trial and harassment of the persons concerned." These observations though made in regard to pending proceedings are entitled to consideration in this case. If, as is said in this case, it is not proper to interfere with a ruling about admissibility of evidence during the trial of a case, it would be even more improper to express an opinion about it before the commencement of the trial. The need for adopting the rule is obvious in cases which may be said to be in the border line, cases in which the guilt of the accused depends only on a piece of evidence admissibility of which is subject to difference of view and it may well happen that the view of the Revision Court is adverse to the accused. In such an event the accused will be prejudiced and the Court of Session will be embarrassed during the trial and the appellate Court too may be fettered in the decision of the case.

7. More important than the question of deciding the admissibility of evidence is that of absence of evidence against the accused being a ground for quashing the commitment. If as was held in 15 Mys. Law. Jour. 141, this Court cannot examine the evidence to see whether the commitment is justified or not, the question of the evidence or portion thereof being inadmissible will not arise. This ease was sought to be distinguished from the present one as being concerned only with insufficiency and not lack of evidence and reconsideration of the opinion expressed by the single Judge who decided the case about the limitations under S. 215 to look into the evidence was said to be necessary. Judicial opinion as regards this is by no means clear, consistent or uniform. Conflicting views are entertained by Judges of the same High Court on the question and there is a sharp cleavage of opinion between one High Court and another about it.

8. The earliest case in which absence of evidence to connect the accused with the offence is stated to be a defect in point of law sufficient to justify the commitment being quashed is Empress v. Narottam Das, 6 ALL. 98 decided by a single Judge. The judgment shows that the main reason for quashing the commitment was that there was no valid sanction for the prosecution under S. 195, Criminal P.C., and the absence of evidence is mentioned as an additional reason, so that the case is not one in which the commitment was quashed solely on the ground of want of evidence. There is no discussion of the evidence or the scope of S. 216, Criminal P.C. In two cases of the Calcutta High Court, Jogeshwar Ghose v. King Emperor, 5 C.W.N. 411 and Sheo Bux Ram v. Emperor, 9 C.W.N. 829: (2 Cr. L.J. 534), the commitments were quashed on a consideration of the evidence holding that absence of evidence is a point of law. These cases no doubt support the petitioners contention. But in Danamia v. Mamtazal Karim, AIR (28) 1941 cal. 271: (43 Cr. L.J. 16), a Division Bench while rejecting the objection to a commitment on the score of the Magistrate being himself competent to try the case remarked: "Sitting as a Court of Revision we do not enter into the facts of a particular case and we see no reason to depart from that well-established practice." The High Courts of Bombay and Madras have, however, definitely refused to countenance the contention relating to absence of evidence as a ground for interference under S. 215. In Emperor v. Suleman Ibrahim, 13 Bom. L.R. 201: (10 I.C. 802), the argument urged against the commitment was that there was no evidence on record to sustain the charges. Chandavarkar J. observed: "That may be so, but that alone is not a ground for this Courts interference at this stage and quashing the order of committal." Heaton J. agreeing to dismissal of the petition remarked: "The order may be convenient or indiscreet but is not illegal. In In re Sessions Judge Coimbatore, 27 M.L.J. 593: (AIR (2) 1915 Mad. 24: 15 Cr, L.J. 665), there was a reference by the Sessions Judge for a charge of murder framed against the accused being quashed on the ground that there was no evidence to show that the person alleged to have been murdered was dead, Shankaran Nair and Tyabji JJ. preferred the view in Emperor v. Sulaiman Ibrahim, 13 Bom. L.R. 201: (10 I.C. 802) to that in Empress v. Narottam, 6 ALL. 98 and dismissed the petition stating; "He (Sessions Judge) asks us to quash the commitment on the ground that there is no evidence to justify the commitment. We are of opinion that on this ground it is not open to the High Court to quash a commitment." In Maruti Jairam v. Emperor, AIR (22) 1935 Nag. 202: (36 Cr. L.J. 1389), Grille J. C. adopted the views of the Bombay and Madras High Courts and refused to treat absence of evidence as a point of law to quash a commitment under S.215, Criminal P.C. Sri Krishnamurthy on behalf of the petitioner pressed for acceptance of the opinion of Beckett J. in Bhagat Ram v. P.T. James, AIR (32) 1945 Lah. 1: (46 Cr. L.J. 648) which is stated thus: "My own view is that the absence of evidence sufficient to justify an order of commitment may be regarded as a legal ground though it may be sometimes difficult to draw a line between a ground of this kind and mere weakness of the defence. The criticism may possibly be as my learned brother suggests that a number of ingredients are generally required to make up an offence and if it appears from the evidence that one of these ingredients is entirely lacking from the prosecution case this would be a legal ground for quashing the commitment." Though the application for quashing the commitment was dismissed, the opinion of the learned Judges being in keeping with the decisions of the Calcutta and Allahabad High Courts and supported by the view of a single Judge of the same Court is entitled to careful consideration. The difficulty presented by embarking on a scrutiny of the evidence is well pointed out by Tapp J. in Hassan DM v. Emperor, AIR (18) 1931 Lah. 467: (32 Cr. L.J. 867) in these words: "Assuming for the moment that the absence or insufficiency of evidence is a point of law it would be necessary for me to go through and consider the evidence before I min arrive at a finding that there is no evidence to justify the commitment. In short I have to decide first a point of fact and in so doing usurp the functions of the trial Judge and deciding the guilt or innocence of the accused before the trial." If as the learned Judge points out the distinction between absence and insufficiency of evidence is tenuous, as it often is, it is hardly possible except by being arbitrary to fix with any definiteness or certainty the limits of interference. It would seem unjust or unreasonable to deny interference only because there is a scintilla of evidence, however worthless and unacceptable the same manifestly is, and freely quash the commitment when it is found absent. Cases which rest on circumstantial evidence present, and decision in which depends on inferences further indicate the possibility of risk of interference since there is no bard and fast rule governing the conclusion arrived at and every case of that category may be said to fall under S. 215 with the result that this Court may be required to read the evidence in any case and determine before the trial whether it justifies the committal, The disadvantage to the accused resulting from the rejection of the application for quashing based on an unfavorable view of the evidence is not to be lost sight of. I have already referred to this aspect in connection with the question of deciding admissibility of evidence. The remarks of Sir George Rankin C. J. in the Full Bench case Glrishchandra v. Emperor, AIR (16) 1929 cal. 756: (31 Cr. L.J. 506 F.B.) about such applications are pertinent: "If such an application was entertained and refused the result would be that a prisoner committed upon evidence, sufficiently weak to make the result of a trial doubtful, would come to his trial prejudiced by the opinion of the High Court pronounced against him to the effect that the commitment ought not to he quashed. Applications of this character would clearly be objectionable. But S. 273 provides suitably for this very class of cases." Chagla J. in Emperor v. Husain Ali, AIR (29) 1942 Bom. 212: (43 Cr. L.J. 773) observed: "To my mind it is clear that if on the evidence recorded by the committing Magistrate it is found that no offence has been committed the proper procedure is for the Court to make an entry under S.273 that the charge is unsustainable." Section 273 by which an entry to the effect that the charge is clearly unsustainable may be made by the High Court before the trial commences is omitted in the Mysore Code but I think the words in S.215 being the same as in the Indian Code the class of cases to which the section was meant to apply is not different in Mysore.

9. It was argued that refusal of interference will entail unnecessary harassment to the accused and waste of time to the Court of Session. As against this, there is the consideration of prejudice to the accused occasioned by matters in doubt being judged against him and time of this Court being occupied with deciding matters to be dealt with by the Court of Session. The Code provides for accused being relieved from needless prolongation of proceedings by enabling the Public Prosecutor under S.494 to withdraw the case and if he does not choose to do so by empowering the Court of Session under S.289 (2) to record a finding of not guilty or direct the jury to return a verdict of not guilty in cases where there is no evidence.

10. Lastly, the materials on which the Court of Session has to come to a decision are not necessarily confined to the evidence recorded by the Magistrate. Section 540 gives an option to any Court to summon any person at any stage of any inquiry or trial- as a witness if it considers the evidence material for a just decision. It is possible that by the Court of Session exercising this option there may be evidence other than what is adduced during the inquiry. The effect of quashing the commitment on account of want of evidence before the Magistrate would render the section to be of no avail in such cases. Though there are some cases and something may be said in favour of the view that absence of evidence is a point of law on which a commitment can be quashed, the volume of opinion in support of the view taken in 16 Mys. L.J. 141 is sufficient and strong enough not to depart from it. Having regard to the weight of authority and considerations mentioned above, it seems to me that this Court cannot be required under S.216 to examine the evidence to determine whether any portion of it is admissible or not, and whether the evidence justifies the commitment or not. In my opinion, there are no grounds to quash the commitment in this ease under S.215, Criminal P.C. The petition is, therefore, dismissed.

11. Balakrishnaiya, J. - I agree with the decision.

12. Mallappa, J. - This is a criminal revision petition filed under S.215, Criminal P.C., to set aside the order committing the petitioner accused to take his trial before Court of Session for an offence under S.376, Penal Code, passed in C.C. 546 of 48-49 on the file of the Special First Class Magistrate, Madhugiri.

13. The prosecution case is that the accused raped P.W. 3 Lakshamma, a girl of about 7 years. Of the 14 witnesses examined in the case P.W. 3, Lakshamma states that she does not know the accused and that somebody took her to a room in a choultry and raped her. P.W. 2 is her mother, who came to know about the incident in the evening of the date on which the incident is said to have taken place, while P.W. 1 is the girls father, who came to know about the incident a day later, as be was not in station on the date of the incident. He filed the complaint before the Police as per Ex. P. 1 on the subsequent morning. P.W. 4 states that about months prior to the date of his deposition, he saw the girl crying near the house of the accused and that this was one day prior to the date of his examination before the Police, He was examined some days after the incident and it is clear that P.W. 4 did not see the girl on the date on which she is said to have been raped. P.W. 6 Papanna states that on being questioned by the Sub-Inspector, the girl pointed out to the accused by touching him as the person who raped her, after inducing her by giving eatables, and that the girl showed the house of the accused and a room in it. P. Ws. 6 and 9 are said to have been present at the time the girl identified the accused before the Police Sub-Inspector. They state that the girl did not touch the accused or point at him as the person who rapid her. P.W. 7 is the Lady Sub-Assistant Surgeon who has stated that there was yellow discharge and inflammation of the private parts. According to her, this might have been caused either by rape or due to disease. P.W. 8 is the Sub-Assistant Surgeon who examined the accused and did not find anything incriminating. P.W. 10 says that on a Sunday he saw the girl Lakshamma standing and the accused going. P. Ws. 11, 12 and 13 are witnesses who refer to some articles being sent to the Chemical Examiner, and their evidence is not material, as nothing incriminating is discovered by the Chemical Examiner. P.W. it is the Investigating Officer, While the evidence of P. we. 6 and 9 do not corroborate the Investigating Officer, P.W. 14 about the girl having identified the accused, P.W. 14 the Sub-Inspector says that the girl identified the accused; but P.W. 5, the mahazer witness adds that she identified him as the person who raped her. This is all the evidence in the case, The point that is contended before us is that even assuming that the girl identified the amused before the Sub-Inspector, it does not necessarily follow that he raped her, that as the evidence, that she pointed out the accused and his house in answers to the questions put by the Sub-Inspector is inadmissible, there is absolutely no evidence to connect the accused with the offence and the commitment which is illegal has to be quashed, On the other hand, it has been urged that mere absence of evidence cannot be a ground for quashing a commitment under S.215, Criminal P.C., according to which, a commitment once made under S.213 by a competent Magistrate or by a Civil or Revenue Court under S.478, can be quashed by the High Court only, and only on a point of law.

14. The main point for consideration, therefore, is whether the commitment without any evidence connecting the accused with the offence or only on the basis of evidence which is inadmissible is a point of law enabling the High Court to quash the commitment. It is, therefore, necessary to find out whether the evidence of P.W. 5, when he says in answer to a question put to P.W. 3, by the Sub-Inspector, that she pointed out the accused as the person who raped her, is admissible in evidence or not. We are not on the point as to whether P.W. 5 could be believed or not, as he says much more than what the Sub-Inspector whom he is said to be corroborating, has stated, or as two other persons present at that time have stated that the girl did not point out the accused. What we are concerned with is, whether her pointing out the accused when she was questioned by the Police Officer as to whether the accused was the person who raped her, amounts to a statement made to the Police Officer, and is inadmissible in evidence. Moreover, if an identifying witness examined in Court, states there that be cannot identify anyone, there is obviously nothing to corroborate him and so the evidence of the previous statement, express or implied made in the course of the identification proceedings is not admissible, There are a number of oases that support this view, but I may only refer to a few of them. In Nagina v. Emperor, AIR (8) 1921 ALL. 215: (27 Cr. L.J. 813), it is observed that: "The law does not allow statements of this kind to be made available as evidence in the trial unless and until the persons who made those statements are called as witnesses. When these persons are called as witnesses, then these previous statements become admissible, not as substantive evidence in the ease, but merely as evidence to corroborate or contradict the statements made by these witnesses in Court. It when an identifying witness called in the Sessions Court, states there that he can identify no one, there is obviously nothing to corroborate and so the evidence of the previous statement express or implied, made In the course of the Identification proceedings in the Jail is not admissible." It is to corroborate the evidence of the girl that she identified the accused before the Police that the evidence of P. Ws. 5, 6, 9 and 14 could be let in. P. Ws. 6 and 9 do not support the prosecution; while the evidence of P. Ws. 5 and 14 is useless and cannot be substantive evidence in the case as held in Nagina v. Emperor, AIR (8) 1921 ALL. 215: (27 Cr. L.J. 813). It cannot be said to corroborate the evidence of P.W. 3, as she has not stated that she identified the accused before the Police Sub-Inspector and no one is corroborating her that she was raped in a choultry, Further, as observed in Khabiruddin. v. Emperor, AIR (80) 1949 Cal, 644: (45 Cr. L J. 258). "Pointing out by finger or nod of assent in answer to a question is as much a verbal statement as a statement by word of mouth. The witnesses should not be allowed to depose to the fact that they had identified the stolen property in the presence of the Police Officer." It is observed in Krishnachandra v Emperor, AIR (22) 1935 cal. 311: (86 Cr L.J. 1470), that: "A statement express or implied by the complainant to the investigating officer to the effect that the accused was the person who attempted to rob her is inadmissible in evidence." As regards the distinction made between the verbal statement and identification by pointing out a person, it has to be remembered that identification is a mental act and this can only be known to the person that identifies. The fact that he identified something can only be known to others by his telling so or by his making signs conveying to them the fact that he identifies the person. While the person who identifies even before a Police Officer can say that he did so, as that cannot be a statement made to a Police Officer, the fact that that matter was conveyed to a Police Officer either by words or by signs cannot be spoken to either by him or by the Police Officer or by any person present as S. 162, Criminal P.C. prohibits this being done. As observed in a very illuminating judgment in Surendra Dinda v. Emperor, I. L.R. (1945) 2 cal. 513: (AIR (36) 1949 cal. 514:48 Cr. L.J. 804): "Identification is essentially a mental act ....what is said or done after the mental act may be, deliberately done, to conceal the tact. In any case, the actual fact of identification is something known only to the identifier and can only be known to others by a statement having the effect of communicating the fact of identification." The position can be made clear by considering whether a sign made to a Police Officer by an accused, conveying the idea that it is he who committed the offence is or not a statement made to a Police Officer. An accuseds affirmative nod in answer to the question of the Investigating Officer whether the girl raped by him is the girl in question cannot but be a statement to a Police Officer and thus inadmissible in evidence. If so, the girls sign to the Investigating Officer showing that the person who raped her is the accused is equally a statement made to the Police Officer. In the first place the evidence of P. Ws. 6 and 14 that refer to the identification by P.W. 3, of the accused is not admissible in evidence under S. 162, Criminal P.C., and even otherwise evidence of these two persons cannot be a substantive piece of evidence, as it can only be taken into consideration to corroborate the evidence of P.W. 3 in case she had stated that she identified the accused before the Police. It will thus be seen that the evidence of P. Ws. 5 and 14 about the identification is neither admissible nor can be taken as substantive evidence. As observed in Emperor v. Nga Tha Din, AIR (13) 1926 Rang. 116: (27 Cr. L.J. 881 F.B.): "The provisions of S. 162 as amended absolutely bar the use of statements, both oral and written and make those statements inadmissible for any purpose under the Evidence Act in any enquiry or trial except for one purpose and that is by the accused to contradict a prosecution witness in the manner provided by S.145, Evidence Act."

15. The next point for consideration is whether absence of evidence or the fact that the only piece of evidence that connects the accused in any way with the offence is inadmissible raises a point of law enabling the High Court, under S.215, Criminal P.C. to quash a commitment made under S.213, Criminal P.C. It was contended that the High Court is not entitled to go into evidence under S. 215, Criminal P.C., as a commitment can be quashed only on a point of law. In considering this aspect of the matter it would be useful to keep in view the scheme of trial of cases triable by a Sessions Court as against that of the cases triable by a Magistrate. It will be noticed that before a case can be tried by a Court of Session, an enquiry under chap. via by a Magistrate is contemplated while in other cases a Magistrate can make an enquiry prior to the charge and try the accused himself. Therefore, the intention of the Legislature in ordering an enquiry and stating when a commitment has to be made is clearly to save the trouble, time and expenses involved in the trial of sessions oases, by preventing cases in which there is absolutely no evidence warranting a trial before that Court being tried by that Court. This, however, should not enable the Magistrate to take on himself the functions of a Jury and to decide a question of fact and to weigh the evidence in order to see whether the case is fit for conviction or not. While the Magistrate, in cases that have to be tried by him has to frame a charge under S. 254, Criminal P.C. only when he is of opinion that there is ground for presuming that the accused has committed an offence, the Magistrate, who is to frame a charge for an offence triable by a Sessions Court need not be satisfied that there are grounds for presuming that the accused has committed an offence. He has to frame a charge under S. 213, Criminal P.C., when he is satisfied merely that there are sufficient grounds for committing the accused for trial before a Court of Session. While in some decisions it has been held that the Magistrate has got a right to weigh the evidence in order to say whether the case is fit for being tried by a Sessions Court, it has been held in other decisions that it is sufficient for a charge being framed under S. 210, Criminal P.C., if he finds some evidence which if believed would show a prima facie case against the accused. It may be taken for the purpose of this case that a committal order in which there is some evidence connecting the accused is legally sufficient to warrant a committal, though in the case of a Magistrate framing a charge, he can do so only when the evidence on record enables him to presume that an offence has been committed. The result is that the powers of a Revision Court in a case triable by a Magistrate are wider than the powers of the High Court to revise the order of commitment made under S.213, Criminal P.C. In the latter ease the commitment is legal if there is some evidence which, it believed, would show that the accused is guilty. It would not be legal if there is absolutely no evidence connecting the accused with the alleged offence. This would be apparent from the fact that even in cases triable by the jury, the Sessions Judge is bound under S.289 (3), Criminal P.C. to withdraw a case from the decision of the jury when there is no evidence that the accused committed the offence and to direct them to return a verdict of not guilty. Thus, the scheme of trial of Sessions cases as found in the Criminal Procedure Code makes it clear that a commitment to a Sessions Court is only legal when there is some legal evidence connecting the accused with the offence. I may add here that it is very usual, as is clear by this very case, for the Magistrate holding enquiries in cases triable in Sessions Court to commit the cases, even when there is absolutely no evidence justifying a commitment. If they are encouraged in committing almost all the cases, as they have been doing, as in this case, the time of the Sessions Court will be wasted, and the very object of having a preliminary enquiry before a Magistrate to save the time expenses and inconvenience of a Sessions trial in cases which are not fit to come before a Sessions Court would be defeated if the High Court does not interfere under S.215, Criminal P.C., in cases of this kind. The argument that this Court would be resorted to in a large number of cases if the sphere of interference by this Court is enlarged, has therefore no substance, as I think S.215, Criminal P.C. is intended to give relief in cases in which the Magistrate cannot legally pass an order of commitment.

16. It was urged that the absence of reference to the word evidence in S.215, Criminal P.C. makes it clear that the Court cannot consider whether there is evidence to justify a commitment or not. The section no doubt says that a commitment can be quashed only on a point of law. But nowhere has the phrase "point of law" been defined in the Code. How can one understand when it can be said that there is a point of law as distinguished from a point of fact? There are, however other sections in the Criminal Procedure Code referring to points of law and points of fact. For instance, the point of law has to be decided by the Judge and a point of fact has to be decided by the jury in certain cases. There is also the provision under S.100, Civil P.C., under which a second appeal can lie on a point of law. So, luckily what a point of law is, has been considered in a number of cases and the observations make it clear that in all these cases the phrase point of law has got the same meaning. What then is meant by point of law? In Emperor v. Md. Israil, AIR (17) 1930 ALL.24: (31 Cr, L.J. 33), it was observed: "If the verdict of the Jury has been influenced by evidence which was inadmissible or proceeds upon no evidence at all, this is a matter of law, As observed by Jackson J. in The Queen v. Bahar Ali Kahar, 15 W.R. Cr. 46: If there is a total absence of all evidence to show that the prisoner had committed the crime, the conviction by the Jury cannot be allowed to stand: it will be bad in law and must be set aside." Mookerjee J. added: "I entirely concur. I think there was no evidence in this case to go to a jury." In Queen v. Chand Bagdee, 7 W.R. Cr.6, Markby J. observed: "In the case of these three prisoners also, therefore, we think there was no evidence against them, and that the Sessions Judge ought so to have directed the Jury; it follows that the convictions are illegal," It might here be noticed that a distinction is made between total absence of evidence and some evidence, which in the opinion of the High Court may not justify a conviction. It is clear from this decision that even if the High Court is of opinion that the evidence does not justify a conviction, the High Court cannot interfere if there is some evidence that can go before the Jury. It was observed in the above decision as follows: "We share the doubts expressed by the Sessions Judge as to the genuineness of the confession made by this prisoner and since retracted. The case against this prisoner was one which required very close and attentive consideration. But the lamentable incompetence which this Jury has displayed in the performance of their duties, with respect to the other ten prisoners, does not induce us to place much reliance on their verdict in this case. We are, however, unable to say that there was no evidence against the prisoner upon which the Jury would be justified in convicting the prisoner; and the law has made the verdict of a Jury once passed upon the evidence final." It is, therefore, clear that absolute lack of evidence is a point of law and the case in which there is no such evidence need not go, for decision, before a Jury.

17. We may next refer to observations in cases where the phrase point of law has been explained and it is shown that its scope when the point is raised in connection with the maintainability of a second appeal is the same as its scope when the point is raised in criminal cases. As observed by Lord Watson in the Privy Council decision reported in Ananqamanjari v. Tripura Sundari, 14 cal. 740 at P.747: (14 I.A. 101 P.C.): "It was in the opinion of their Lordships within their jurisdiction to dismiss the case if they were satisfied that there was, as an English lawyer would express it, no evidence to go to the Jury, because that would not raise a question of fact such as arises upon the issue itself, but a question of law for the consideration of the Judge." It is Lord Watson again that made it clear that if a finding is based on some evidence, however, unsatisfactory, the finding is one of fact and that no question of law arises. This opinion is expressed in the Privy Council decision reported in Ramratan Sukal v, Nandi, 19 cal. 249: (19 r. A. 1 P.C.), where it is observed that: "It has now been conclusively settled that the third Court, which is in this case the Court of the Judicial Commissioner cannot entertain an appeal upon any question as to the soundness of findings of fact by the second Court; if there is evidence to be considered, the decision of the second Court, however, unsatisfactory it might be if examined, must stand final." It has, however, to be observed that the evidence available must be admissible, as observed by Lord Buckmaster in the Privy Council decision reported in Na far Chandra v. Shukur Sheikh,

46 Cal. 189: (AIR (5) 1918 P.C. 92): "Questions of law and of fact are sometimes difficult to disentangle. The proper legal effect of a proved fact is essentially a question of of law, so also Is the question of admissibility of evidence and the question of whether any evidence has been offered on one side or the other, but the question whether the fact has been proved, when evidence for and against has been properly admitted, is necessarily a pure question of fact." While, therefore, there appears to be no doubt that when there is some admissible evidence, however small it might be no question of point of law arises and the High Court cannot quash the commitment made under S.215, Criminal P.C., unless the committal is illegal on other grounds, if there is total lack of admissible evidence connecting the accused with the offence, a point of law arises and the commitment has to be quashed.

18. I may now refer to a number of cases in which absence of evidence has been held to be a point of law enabling the High Court to quash commitments. The first case that might be referred to as directly on the point is the decision reported in Sheobux Ram v. Emperor, 2 Cr. L.J. 534: (9 C.W.N. 829), Harrington J. observed that: "The test which should be applied to decide whether a committal ought or ought not to be made on the facts is this-assuming that the whole of the evidence telling against the accused is true, is there a case which a Judge at a trial could leave to a jury ? If the evidence is such that a Judge would have been bound to rule that there was no evidence on which a Jury could convict then a committal ought not to be made. If there was any evidence which called for an answer-however great the preponderance in favour of the prisoner might be-then the committal was proper." Henderson J. observed that: "The object of a preliminary enquiry in a criminal case is to ascertain whether there is any real case against the accused before a commitment is made and if all that can be said is that there is a mere scintilla of evidence then there should be no commitment." In Jogeshwar Chose v. King-Emperor, 5 C.W.N. 411, it was observed that: "Absence of evidence to warrant a commitment is a point of law and may furnish a good ground for the quashing of a commitment. Under the present Code of Criminal Procedure, a Court of Session does not possess the power to withdraw a case from the jury on any ground whatsoever. Where the case is such that the Sessions Judge would, if he possessed the power of withdrawing the case from the jury, exercise that power, the High Court will exorcise its powers of revision." In Gansham Das v. Emperor, AIR (17) 1930 Lab. 545: (31 Cr. L.J. 814) it was observed: "Where there is no evidence to support an "order of commitment, the commitment must be quashed because absence of evidence is a question of law and not of fact." The decisions in Jogeshwar Chose v. King.Emperor, 5 C.W.N 411, Empress v. Narotham Das, 6 ALL. 98, Shea Bux Ram v. Emperor, 9 C.W.N. 829: (2 Cr. L.J. 534) and Rustam v. Emperor, 38 ALL. 29: (AIR (2) 1915 ALL.411: 16 Cr. L.J. 801), have been followed in this case. In Jogeshwar Ghose v. King Emperor, 5 C.W.N. 411, it was observed: `Insufficiency of evidence has never been treated as a ground for quashing a commitment, bat this Court following the principle laid down by the Courts in England has held that the absence of evidence to warrant a commitment is a point of law and may furnish a good ground for quashing the commitment......This Court has to consider whether there is such evidence as would justify the case going before a jury." This decision has been followed with approval in Nock Hinyin v. Emperor, 43 I.C. 326: (AIR (5) 1918 U.B. 11: 19 Cr. L.J. 102) in which it was observed "The absence of evidence to warrant a commitment is a point of law." I might add that the observations made in Anangamanjari v. Tripura Sundari,11 Cal. 740: (14 I. A. 101 P.C,) by the Privy Council has also been relied on in this case making it clear thereby what is meant by a point of law in civil or criminal cases is the same. In Tambi v. Emperor 46 1. C. 817: (AIR (6) 1919 L.B. 146: 10 Cr. L.J. 801), again, it was observed: "Under S. 215, Criminal Procedure Code the High Court is precluded from entertaining an application for revision on a question of fact against an order of commitment made under Se. 213 and 214 of the Code, but it has power to quash a commitment if there is no evidence to support it, the absence of such evidence being a question of law and not of fact." It was observed in Emperor v. Mihilal, AIR (27) 1940 ALL. 396: (41 Cr. L.J. 869). "In oases in which there is no evidence to warrant a commitment and in cases in which commitment is made on no legal evidence at all, action may be taken under S. 215." The decision in Shea Bux Rain v. Emperor, 9 C.W.N. 829: (2 Cr. L.J. 534) has been quoted with approval in this case.

19. I may now refer to oases which are relied on to show that a commitment made under S. 213, Criminal P.C., cannot be quashed, even if the committal is not based on any legal evidence. As regards the cases reported in Emperor v. Suleman Ibrahim, 10 I.C. 802: (13 Bom. L.R. 201) and In re Sessions Judge, Coimbatore, 16 Cr. L.J. 665: (AIR (2) 1915 Mad 24) the judgments are short and the question as to whether absence of evidence is a point of law or not are not considered in these cases. The orders here are based on references made by Sessions Judges and it was observed that even if there was no evidence as stated by the Sessions Judge no interference can be made. The decisions do not, therefore, throw any light as to how the absence of evidence is not a point of law. The decision reported in Emperor v. Nga Taung Thu, 15 Cr. L.J. 270: (AIR (1) 1914 L. B. 9), refers to a case of evidence which is not beyond doubt. It was observed in this decision that: "A commitment order can be quashed under S.215, Cr. P.C., only on a point of law-A commitment order cannot be quashed merely on the ground that the evidence was doubtful." That is no doubt correct, as sufficiency or insufficiency of evidence cannot be considered under S. 215, Cr. P.C. The decision in Hassan Din v. Emperor, AIR (18) 1931 Lah. 467: (32 Cr. L J. 867) was also relied on. This decision deals with a case in which the Magistrate, it was observed, had found a prima facie case had been made out against the petitioner, and it cannot be said that it is strictly a case in which there was total absence of evidence. Dana Mia v. Mamtazul Karim, AIR (28) 1941 Cal. 271: (43 Cr. L.J. 16) is clearly a case in which the commitment was based on some evidence as what was questioned is the propriety in the exercise of discretion of the Magistrate in having committed the accused. The decision in Ismail v. Emperor, AIR (12) 1925 Nag. 409: (26 Cr, L.J. 1045) that a commitment cannot be quashed on the ground that there is no evidence does not give any reasons and it merely follows the decision in Emperor v, Suleman Ibrahim, 10 I, C. 802: (13 Bom. L.R, 201) and In re Sessions Judge, Coimbatore, 27 M.L.J. 593: (AIR (2) 1915 mad. 24: 15 Cr, L.J. 665) referred to above. Maruti Jairam v. Emperor, AIR (22) 1935 Nag. 202: (36 Cr. L.J. 1389) deals with a case in which it was observed that The evidence against Maroti is admittedly meagre." It is thus made clear that it is a case of insufficiency of evidence, As observed in, Girishchandra v. Emperor, AIR (16) 1929 Cal. 756: (31 Cr. L.J. 506 F.B.), S. 215 Cr. P.C. "is intended to restrict a High Court to oases in which It can be said that the commitment is bad in law." It does not state that a commitment based on no evidence or only on evidence prohibited under S. 162, Criminal P.C., is or is not illegal. In Hussainbhoy Mahomadbhoy v. Emperor, 35 Cr. L.J. 884: (AIR (21) 1934 sind. 27) it was observed that "Where there is no evidence at all, the commitment.. May be quashed, because, absence of evidence for commitment is a point of law." Burjorji Nowroji v. Emperor, AIR (15) 1928 Bom 220: (29 Cr. L.J. 987), is again a6 case in which it cannot be said that the question whether total absence of evidence is a point of law or not is considered. The last case I may refer to on this aspect of the matter is the decision of this Court in Rangiah v. The Government of Mysore, 15 Mys. L.J. 141, Chari J. sitting in revision held that: Section 215, Criminal P.C., restricts and circumscribes the power of the High Court to quash com commitments once made under S.213. Though a commitment can be quashed on a point of law, for example, on a question of jurisdiction or on the ground that the facts did not necessarily establish the offence charged or that it was an unnecessarily commitment, it cannot be quashed on the ground that there is no evidence to justify a commitment and even if the order is inconvenient or indiscreet, unless it is also illegal." In this case the observation that there was no evidence to justify a commitment makes it clear that the evidence was not sufficient to justify the commitment. As observed by the learned Judge in that case: The impression left upon ones mind is that theme has been a great deal of hesitation on the part of the Magistrate in coming to a conclusion that there was a prima facie case against the accused in both the cases justifying a commitment." The observations make it clear that it was a case in which there was some prima facie evidence and no question arose as to whether total absence of evidence was a point of law, enabling the High Court to quash the commitment. fact the learned Judge observed that a commitment can be quashed "on the ground that the facts did not necessarily establish the offence charged." This is evidently what was meant by Beckett J. when in explaining in, Bhagat. Ram v. P.T, James, AIR (32) 1945 Lah. 1: (46 Cr. L J. 648), how absence of evidence may be regarded as a legal ground for quashing the commitment, he agreed with the suggestion of Martin J. that "A number of Ingredients are generally required to make up an offence and if it appears from the evidences that one of these ingredients is entirely lacking from, the prosecution case this would be a legal ground for quashing the commitment." As observed in 8 Mys. L. J. 121: "If there is no evidence at all, not a scintilla of evidence on which the prosecution case can stand, the Judge may under S. 289 Cl: (2), Criminal P.C., direct the Jury to return a verdict of not guilty. If he did not do so, it may amount to such a misdirection that the High Court can set aside the verdict." 20. To sum up, a large number of decisions including those of their Lordships of the Privy Council hold that a point of law arises when there is a finding without any evidence and that its scope is the same in criminal and civil cases. A number of cases directly on the point consider that absence of evidence as distinguished from insufficiency of evidence, to warrant a commitment is a point of law furnishing a good wound for quashing the commitment while the hew cases that appear to hold that it is not so, give no reasons and appear to be classing absence of evidence with insufficiency of evidence. I am, therefore, of opinion that "in eases in which there is no evidence to warrant a commitment and in cases in which commitment is made on no legal evidence at all, action may be taken sander S. 315, Criminal P.C." As well put in Emperor v Mihilal, AIR (27) 1940 ALL. 396: (41 Cr. L.J. 869.) I might also refer again here to the opinion expressed by Lord Buckmaster in Nafarchandra v. Shukur Skeikh, 46 cal. 189: (AIR (5) 1918 P.C. 92), that admissibility of evidence raises a point of law.

21. Even if it is assumed that all the evidence adduced in this case is admissible, it has to be stated that the commitment can be quashed in this case as, as stated in Rangiali v. The Government of Mysore, 15 Mys. L.J. 141. "The acts did not necessarily establish the offence charged." There is evidence to show that the girl P.W. 3, was raped in a choultry. That the accused it is that did so is not proved by any evidence admissible or inadmissible. There is the evidence that the girl showed the house of the accused to the Investigating Officer. She did not point out the choultry where according to her she was raped. It is in the evidence of the Police officer P.W. 14, that before him the girl identified the accused; even if this is Admissible it does not show that the accused her. P.W. 5, states much more than P.W. 14, though the former was examined to corroborate the latter. He says that the girl pointed out, to the Police Officer P.W. 14, the Accused as the person who raped her. This is evidence of what the girl did before the Police Officer and not of what the accused did. To recall the observation in Nagina v. Emperor, AIR (8) 1921 ALL. 215: (27 Cr. L.J. 813). "The law does not allow statements of this kind to the made available as evidence in the trial unless and until the persons who made those statements are called As witnesses. When these persons are called as witnesses, these statements become admissible not as substantive evidence in the case but but merely as evidence to corroborate or contradict the statements made by these witnesses in Court." In this case P.W. 3, whose statement is referred to by P.W. 5, has been examined. The evidence of P.W. 5 about what P.W. 3, stated before the Sub-Inspector contradicts her evidence, but as observed in the above decision the evidence of P.W. 5 is not substantive evidence in the case. If any further authority is necessary, I would support myself on the authority of the legal luminary Sir John Beaumont according to whose observation in Brij Bhushan v. Emperor, AIR (33) 1946 P.C. 38: (47 Cr. L J. 336): "A statement made under S. 164, Criminal P.C. cannot be used as a substantive piece of evidence, The statement can be used to cross-examine the person who made it and the result may be to show that the evidence of the witness is false. But that does not establish that what he stated out of Court under S. 164, is true." This case is of some importance as the point involved is almost the same as the one now under consideration. The Privy Council made it clear that it normally refuses to reject the view which the High Court or Chief Court takes of the evidence. It was found however that witnesses turned hostile and the finding was not based on that eye-witnesses stated before Court but was based on what they had stated under S.164, Criminal P.C. out of Court. That cannot be regarded as evidence before Court, and the Privy Council had to interfere and set aside the conviction based on no evidence. In this case also P.W. 3, the only eye-witness in the case does not support the prosecution. What she conveyed to the Sub-Inspector out of Court is not evidence and does not establish the truth of what she intimated to him. Even if S. 162, Criminal P.C. did not come in the way of adducing evidence of what she said or did before an Investigating Officer, evidence of what she said or did is not evidence of what the accused did. There is no evidence connecting the accused with the offence. Thus, the commitment in this case is based on no evidence and has to be quashed.

22. But the evidence of what P.W. 3, communicated to the Police Officer, adduced by the prosecution is inadmissible in evidence under S.162, Criminal P.C. Where the only piece of evidence connecting the accused with the offence is what is prohibited under S.162 or what is prohibited under S.353, Criminal P.C. as expressed in the case reported in Belli Gowder v. Emperor, AIR (21) 1934 Mad. 691: (36 Cr. L.J. 319), the admission of evidence is clearly illegal. A commitment based on inadmissible evidence is worse than a case of committal based on no evidence. If the Magistrate knew that the evidence was not admissible he would not have recorded it, and if he later on came to the con elusion that it was not admissible ho would not have committed the accused for trial before the Sessions Court. As regards consideration such as that fresh evidence could be adduced in Sessions Court under S.560, Criminal P.C. urged by the learned Advocate-General on the authority of Mt. Niantat v. Emperor, AIR (23) 1936 Lah. 633: (37 Cr. L.J. 742 F.B.), it will be noticed that in 50 mys. H.C.R. 364, the observation did not find favour with Venkata Range Iyengar J. and our present Chief Justice, who considered that it was an obiter dictum. Arguments such as that interference under S.215, Criminal P.C. is not necessary as the Public Prosecutor could later on withdraw the case or that the Sessions Judge would withdraw the case from the Jury and direct them to return a verdict of not guilty or that the accused would even otherwise be ultimately acquitted by the High Court in appeal, could only cloud the issues. Such arguments are applicable even in cases in which the committal can be quashed on other points of law. The argument that in case the High Court dismisses the revision petition holding that there is some evidence, the case of accused would be prejudiced is no ground for restricting the scope of S. 215, Criminal P.C. The scope of interference in revision in cases in which charges are framed by Magistrates on insufficient grounds is not restricted on the ground that the accused will be prejudiced in case the revision petition is dismissed by the High Court for the reason that the evidence as it stood then was sufficient to raise a presumption under S. 351, Criminal P.C. that the accused committed the offence. If a commitment based on no evidence or only on inadmissible evidence cannot be quashed on the ground that no point of law arises, it follows that a High Court cannot interfere with a finding of Jury based on no evidence or on inadmissible evidence and that under S. No, Civil P.C. such a finding cannot be said to raise a point of law. I feel no doubt that the commitment based as it is, on no legal evidence but based only on inadmissible evidence has to be quashed under S. 215, Criminal P.C. I would order accordingly. Petition dismissed. AIR (37) 1950 MYSORE 55 [C.N. 16.] "Abdul Wajid v. Visvanathan" MYSORE HIGH COURT FULL BENCH Coram : 3 MEDAPA, C. J., BALAKRISHNAIYA AND MALLAPPA, JJ. ( Full Bench ) Rukn-Ul-Mulk Syed Abdul Wajid and others - Defendants-Appellants v. R. Visvanathan and others, Plaintiffs and others, Defendants - Respondents. Civil Petns. Nos. 61, 62, 49 and 50 of 1949-50, D/- 10 -11 -1949. (A) Mysore High Court Act (1 of 1884), S.15(3) - HIGH COURT - APPEAL - REVIEW - Reference to Full Bench - Entire case referred - Failure to formulate questions ii ground for review. Civil P.C. (5 of 1908), S.98 and O.47, R.1. Under S.15 (3) it is not necessary that a material. question or questions about which there is a difference of opinion should always be formulated before a reference is made to the Full Bench though a specific question. questions may be formulated and referred. In the events of differences of opinion on all the material questions: which are necessary for the disposal of the ease the entire case will have to be referred to the Full Bench with the opinions of the differing Judges on the entire matter and the formulation of any question or questions becomes unnecessary. (Para 3) An objection that the reference to a Full Bench under S. 15 (3) is irregular for want of formulating, the questions must to raised before the Bench decldec the case and even if it be deemed an irregularity it cannot form a ground for review of a judgment on merits. (Para 3) Annotation: (44-Com.) C. P.C., S.98 N. 11 and O.47, R.1, N.16B. (B) Civil P.C. (5 of 1908), O.47, R.1 - REVIEW - APPEAL - Any other sufficient reason - Absence of counsel or his refusal to take part in argument at hearing of appeal is not a sufficient ground for review: AIR (9) 1922 P.C. 112, Rel. on. (Para 4) Annotation: (44-Com.) C.P.C., O.47, R.1, N.16 16B. (C) Civil P.C. (5 of 1908), S.151 and O.47, R.1 - INHERENT POWERS - REVIEW - Inherent power to review. The inherent powers of the Court cannot be invoked regarding petitions falling under the other provisions of the Code. Hence a Court will not exercise those: powers in granting review or judgment on grounds not falling within O.47, R.1. (Para 6) Annotation: (44-Com.) C.P.C, S.151 N.2. (D) Civil P.C. (5 of 1908), S.151 and O.41, R.21 - INHERENT POWERS - APPEAL - DECREE - Inherent power to order rehearing - Respondent having notice of hearing- His counsel appearing but refusing to take part in hearing and arguments -Decree passed - Application for re-hearing appeal under O.41, R. 21 read with S.151 is not maintainable. (Para 7) Annotation: (44-Com.) C.P.S. 151 N.2. K. Hanumanthaiya - for Petitioners. Judgement Order.-The petitioners in these four petitions are the respondents in R.A. Nos. 104 and 109 of 1947-48.*Two civil petitions are filed under S.151 and O.41, R.21, Civil P.C. praying that the Court may be pleased to set aside the ex parte decree passed respectively in the appeals. Two other petitions C. Ps. Nos. 50 and 49 of 49-50 relate respectively to the above appeals and are filed under S.114 and O.47, R.1 of the C.P., for review; of the judgment passed in the above appeals. * See AIR (37) 1950 Mysore 33 (F.B.)

2. Before discussing the merits of these petitions., it is necessary to set out in brief the history of these cases. Before these appeals were posted for hearing, the parties filed an application in or about march 1948 to advance the hearing et the appeals for an early disposal of the same, The appeals were subsequently heard by a Bench consisting of the then Chief Justice and when the arguments were almost concluded, the parties.took time with a view to effect a compromise. Later, they were heard by another Bench and the Judges composing the Bench delivered differing opinions with the result that the cases were referred to a Full Bench for final decision. The appeals were posted to 25 July 1949 before the Full Bench for arguments. The respondents filed an application for adjournment on the ground that they had requested the Government for the constitution of a Special Bench. The counsel for the respondents also filed memos praying for permission to retire from the cases. The applications for adjournments were dismissed after arguments and orders were passed on the memos refusing permission to the counsel to retire. Thereupon, the Court proceeded to hear the arguments and ultimately judgment was pronounced in bath the appeals on 29 July 1919. As noted in the order-sheets in these appeals, the respondents-plaintiffs and their counsel were all present on 25 July 1949. On 26 July 1949 also, Messrs. L. S. Raju and Venkatanarasimhaiya, the advocates for the respondents were present and on 27th July 1949 and 29th July 1919 Sri Venkatanarashnliaiyas presence is noted.

3. Sri K. Hanumanthaiya, the learned advocate, who now represents the petitioners respondents addressed a common argument in relation to all the petitions and so, they were heard toga. then The first point raised by Sri Hanumanthaiya is that the reference by the Division Bench to the Full Bench is irregular and contrary to the provisions of S.15, High Court Act. His contention is that sub-clause 3 of S.15, High Court Act requires the Judge, differing in opinion to formulate a material question pending before them for reference to a Full Bench and that if a reference is made without formulating a material question in that manner, it becomes incompetent. The scope of the application under S.98, Civil P.C. as also S.15, High Court Act, has been fully dealt with by the Full Bench of this Court in a case (S.A. No 179 of 47-48 Mysore). sub-clause 3 of S.15, High Court Act, runs as follows: "The decision of the majority of Judges comprising any Full Bench of the High Court or other Bench of the said Court consisting of not less than three Judges shall be the decision of the High Court. (When a Bench of the High Court consists of only two Judges and there is a difference of opinion between such Judges on any material question pending before it, such question shall be disposed of in the manner prescribed in S.98, Civil P.C. or S.429, Criminal P.C., as the case may be or at the discretion of either of the Judges composing the Bench, it shall be referred to a Full Bench and the decision of the majority of the Judges on such Full Bench shall be the decision of the High Court.) It is true that when the Bench consists of only two Judges and there is a difference of opinion between such Judges on any material question pending before it, such question at the discretion of either of the Judges composing the Bench shall be referred to a Full Bench. There is no warranty in the words of the Section for the contention that a material question or questions about which there is a difference of opinion should always be formulated before a reference is made to the Full Bench though a specific question or questions may be formulated and referred. In the event of differences of opinion on all the material questions which are necessary for the disposal of the case the entire case will have to be referred to the Full Bench with the opinions of the differing Judges on the entire matter and the formulation of any question or questions becomes unnecessary. This is also in accordance with the precedent and practice of this Court. A number of cases have been referred like this in this Court to a Full Bench without specifying all the material questions involved in the cases. Moreover, an objection of this kind should be raised before the Bench decides the case and what is more an irregularity of this nature oven if it is deemed an irregularity cannot form a ground for review of a judgment on merits.

4. The next point urged by the learned advocate for the petitioners is that his clients were only very anxious to get the services of their senior advocate who was then in Delhi and that in the interest of justice another opportunity may be given to them to have their case argued by admitting the review or re-hearing the case Order 47, R. 1 is restricted in its scope and con. fines itself to obtain a review on the ground of the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by the party at the time when the decree was passed or order made, on account of some mistake or error apparent on the face of the record. The learned advocate does not deny that the grounds upon which the admission of review is urged do not come under any of these two categories; but he desires that the grounds urged by him should be considered to fall under any other sufficient reason contained in the Section. It is explained by the Privy Council in Chhajju Ram v. Neki, AIR (9) 1922 P.C. 112: (3 Lah. 127) that "any other sufficient reason as meaning a reason sufficient on grounds at least analogous to those specified immediately previously." It is obviously that neither the absence of the counsel nor the refusal to take part in the arguments which in fact is the case in these appeals can be brought under sufficient reason as they cannot be said to be analogous to the grounds immediately preceding. We are, therefore, of opinion that the grounds urged for the review are not within the purview of O.47, R.1, Civil P.C. as held by the Privy Council in Chhujjurams case (AIR (9) 1922 P.C. 112: 3 Lah. 127) referred to above.

5. Sri Hanumanthaiya next pleaded for the exercise of the inherent powers of the Court in granting a review in these cases especially as the ex parte decisions constitute a great hard-ship on his clients. The inherent powers of the Court cannot be invoked regarding petitions falling under the other provisions of the Code. Even so, the exercise of inherent powers should be for sufficient reason and if the meaning of sufficient reason defined by the Privy Council and followed by all the Courts is adopted, then the absence of the counsel or the counsels refusal to take part in the arguments do not constitute a sufficient reason for granting a review.

6. The other two petitions filed under O.41, R.21 do not satisfy the requirements of the provision. Rule 21 of O.41 states that when an appeal is heard ex parte the respondent may apply for rehearing of the appeal and the condition precedent for consideration of such an application is that he should satisfy the Court that no notice was duly served or that he was prevented by sufficient cause from appearing when the appeal was called for hearing. It is seen from the history of these cases that the date fixed for arguments was notified about a month earlier and the parties and their counsel were present on the date of hearing and did take part in the earlier proceedings. After the first day of arguments, the respondents were absent but one of their counsel continued to be present in Court throughout though he did not take part in arguments or help the Court in any way. The petitioners wantonly refused to avail themselves of the opportunity afforded to them to argue their cases. Their wilful ban on their counsel to argue their cases cannot in any way be construed as an irregularity in the proceedings of the Court.

7. It cannot, by any means, be said that the appeals were heard ex parte as the respondents had notice of the hearing and were, in fact, present during the proceedings. As stated above, the party was not prevented by sufficient cause from appearing or taking part in the arguments and hence it is not open to the petitioners to say that the inherent powers of the Court may be invoked for the grant of the relief asked for. In the circumstances, we are of opinion that there are no grounds to admit the review petitions and we hold that the petitions under O.41, R. 21 read with S. 151, Civil P.C. are not maintainable.

8. In the result, all the four petitions are dismissed. It follows that the stay petitions numbered as I. A. I in each of the appeals shall also stand dismissed. Petitions dismissed. AIR (37) 1950 MYSORE 57 [C.N. 17.] "Abdul Wajid v. Gajambal" MYSORE HIGH COURT Coram : 2 BALAKRISHNAIYA AND MALLAPPA, JJ ( Division Bench ) Rukn-ul-Mulk S. Abdul Wajid and others -Plaintiffs - Appellants v. Mrs. Gajambal Ramalingam and others - Defendants-Respondents. Appeal No. 147 of 1946-1947, D/- 6 -1 -1950, against decree of Principal D.J., Bangalore, in O.S. No. 7 of 1945-46. (A) Evidence Act (1 of 1872), S.41 - EVIDENCE - PROBATE - SUCCESSION - Probate jurisdiction-Judgment conferring status of administrators if judgment in rem. Succession Act (39 of 1925), S.273. A judgment of a Court of Probate which confers the status of administrators of the estate is on the face of it a judgment in rem which will not only be binding between the parties but upon all other persons and on all Courts regarding the legal character invested. (Para 3) Annotation: (46-Man.) Evidence Act, S.41, N.3; Succession Act, S.273 N.1. Judgments of the foreign Courts are not excluded from the operation of S.41 provided they are competent to pronounce a judgment as contemplated by that section. (Para 4) Annotation: (46-Man) Evidence Act, S.41, N.1. (C) Succession Act (39 of 1925), S.263, Cl.(d) - SUCCESSION - PROBATE - Probate and Administration Act (5 of 1881), S.50 - Just cause - Revocation of the will proved by a subsequent will may amount to a just cause. (Para 7) Annotation: (46-Man,) Succession Act, S.263, N.12. (D) Succession Act (39 of 1925), S.263 - Probate and Administration Act (5 of 1881), S.50 - SUCCESSION - PROBATE - Revocation of grant-Suit for, if maintainable. The Probate Courts are invested with exclusives jurisdiction and the Legislature has prescribed a special procedure for the revocation of probates and a probate granted can be impugned only in the Court that originally granted the same. No civil suit lies to challenge the judgment of a Probate Court, nor can any objection be raised in derogation of the will probated in any other proceedings (e.g.. one under S.5, Probate Act corresponding to S.228, Succession Act) as the judgment of a Probate Court will be binding ort the parties, and all Courts. (Para 7) Annotation: (46-Man.) Succession Act, S.263, N.5. S. V. Subramanyam-for Appellants. Venkatanarasimhiya -for Respondents. Judgement Balakrishnalya, J.-This is an appeal by the plaintiffs as executors of a will who applied to the Court of the District Judge, Bangalore, for grant of Letters of Administration with an authenticated copy of the will annexed in respect of the schedule assets belonging to deceased V. Ramalingam. The respondents are the wife and children of the testator. The plaintiffs filed O.S. No. 4 of 1943 in the Court of the District Judge, Civil Station, Bangalore. The suit was decreed granting probate in respect of the deceaseds properties within the jurisdiction of that Court. Against that judgment, R.A. Nos. 1 and 2 of 1944 were filed by the respondents, the wife and children of the deceased in the Court of the Honble the British Resident in Mysore at Bangalore and the said appeals were dismissed on 5th July 1944. Against the appellate judgment, the respondents preferred an appeal to the Privy Council which was pending on the date of the judgment of the lower Court. The executors also filed O.P. No. 45 of 1944 in the High Court of Judicature at Madras against the respondents praying for grant of probate of the said will and codicil and that Court granted probate on the basis of the will proved in the Court of the District Judge, Civil Station, Banglore, in respect of the properties within its jurisdiction. Thus, the executors have obtained probates of the last will dated 10th September 1942 and the codicil in two Courts. The learned District Judge, after consideration of all aspects, held that the judgments of the District Court, Civil Station, Bangalore, operated as judgments in rem and the plaintiffs are entitled to the grant of letters of administration, but owing to the fact that the respondents had taken up the judgment of the Honble the Residents Court in appeal to the Privy Council, the learned District Judge passed a decree granting letters of administration to the plaintiffs with en authenticated copy of the last will and codicil of the said Ramalingam in respect of the plaint schedule properties subject to the result of the appeal by the respondents before the Privy Council against the decree in R.A. Nos. 1 and 2 of 1944 on the file of the Honble the Resident in Mysore, Bangalore. Against this judgment, the plaintiffs filed the appeal under consideration and the respondents entered cross-objections.

2. The main ground of appeal in this Court is that the plaintiffs are entitled to an unconditional grant of letters of administration with an authenticated copy of the will attached and the condition attached is unsound and erroneous. This appeal came up for hearing on a number of occasions and on the representation of both the parties that the appeal pending before the Privy Council was likely to be disposed at an early date, the hearing of the appeal was postponed from time to time by consent of parties.

3. It is brought to the notice of this Court that the Privy Council has disposed of the appeal on 12th December 1949 and the appellants there upon filed a memo on 14th December 1949 submitting that they do not press the above appeal and it may be dismissed, Apparently, they claim that the conditional grant has been automatically resolved by the disposal of the appeal by the Privy Council There is no objection to comply with the prayer of the appellants. Sri Venkatanarasimhiah, learned Advocate for the respondents, submitted that ho would press the cross objections and desired to argue the respondents case in spite of the decision of the Judicial Committee. A proof copy of the judgment of their Lordships of the Privy Council is also filed which shows that the Judicial Committee have expressed the view that they have no jurisdiction to entertain the appeal. Sri Venkatanarasimhiah urged that the matter in appeal to the Privy Council has not been finally disposed of inasmuch as their Lordships have held that they had no jurisdiction to entertain the appeal implying thereby that the respondents might have remedies elsewhere open to them, That matter is of no concern in the decision of this appeal. The relevant point for consideration is whether the judgments of the Court of the Honble the Resident in Mysore have become final so as to operate as judgments in rem. As the Privy Council have rejected the appeal, the subject matter in appeal is no longer sub judice and the judgments of the Court of the Honble the Resident in Mysore are rendered final. A judgment of a Court of Probate which confers the statue of administrators of the estate is on the face of it a judgment in rem which will not only be binding between the parties but upon alt other persons and on all Courts regarding the legal character invested. This Court has laid down in 5 Mys. L.J. 107 thus: "Under S. 41, Evidence Act, the final judgment of a Probate Court granting probate is a judgment in rem and is conclusive so far as the question of genuineness and validity of the will on which the probate is granted is concerned." Hence the judgments are conclusive and binding till they are set aside. 4.It is further contended that the District Court, Civil Station, is a foreign Court and the judgment of a foreign Court is not deemed to be binding on the Mysore Courts. Judgments of the foreign Courts are not excluded from the operation of S.41, Evidence Act provided they are competent to pronounce a judgment as contemplated by that section. If the Courts are so competent, the judgment is conclusive against the whole world as to the status or title which it establishes. In 49 Mys. H.C.R. 188, where a will under the Indian Succession Act has been proved and deposited in a Court of competent jurisdiction beyond Mysore and the executor named in the will applied in Mysore for an ancillary grant, it is laid down the letters of administration which partake the nature of a probate could be granted in Mysore. In that case, the probate of the will was granted by the High Court of Justice in England and it was deemed to be a judgment in rem binding on the Courts.

5. It is next contended by the respondents Advocate that the plaintiffs had undertaken in the lower Court to prove the will and the codicil in the common form for the grant of letters of administration and not for the grant of letters of administration, with the copy of the authenticated will attached, and the application was not made under S.5, Probate Act. The appellants explain that S.25 entered in the application was clearly a mistake for S.5. Section 25 deals with the grant of a probate of the copy of the draft of a lost will. The application is obviously not based on the copy or draft of a lost will. In their reply, the appellants have unequivocally prayed for the grant of letters of administration on the basis of the will proved and have also produced the judgment of the Honble the British Resident in Mysore confirming the judgment of the District Judge, Civil Station. They further pleaded that the judgment of the Probate Court constituted a judgment in rem binding on the parties and consequently they are entitled in law to the grant of the letters of administration without any contest, on the basis of the will proved in a Court of competent jurisdiction; S.5, Probate Act, relates to the grant of letters of administration with the copy of the will annexed based on a will proved in a Court of competent jurisdiction situated beyond the limits of Mysore. In these circumstances the explanation of the appellants that the provision of law cited is due to a mistake appears to be not unfounded. Moreover, the parties and the Court have proceeded on the basis that the suit is for the grant of the letters of administration which would necessarily fall under S.5. As the parties are not misled and no prejudice is caused to the respondents we are inclined to accept the contention of the appellants that the proceedings were understood and conducted by the parties under S.5 and not under S.25, Probate Act.

6. The respondents further argued that they have raised a new point which has the effect of invalidating the last will which is said to have been proved and the trial Court has not recorded any finding thereon. The respondents entered a caveat to the petition of the appellants attacking the validity of the will and praying that the proceedings may be stayed till the disposal of the appeal in the Privy Council. After the petition was registered as a suit, the respondents in their written statement raised the new plea that the last will of the deceased testator was revoked just before his death and an issue touching the revocation of the will was also raised by the lower Court; but in the view the lower Court took that the judgments of the Probate Court operated as judgments in rem binding on the parties, the Court appears to have felt it unnecessary to decide that issue. The new objection amounts to the plea that will proved has become inoperative as it was revoked by a subsequent will.

7. Section 50, Probate Act, provides for the revocation of the probate on the availability of a just cause. The revocation of the last will if proved, may amount to a, just cause entitling them to get the probate also revoked. The question then is the procedure to be followed in the matter of revocation of probates; the appellants contend that the respondents are not entitled to raise such an objection in a suit for the grant of letters of administration on the basis of a will proved. This contention appears to be not entirely devoid of force. The probate jurisdiction is exclusive jurisdiction and the judgment of the Probate Court is rendered a judgment in rem under S.41, Evidence Act. As observed by Mukherji J. in Hemangini Debi v. Sarat Sundari Debya 34 C.L.J. 457:(AIR (8) 1921 Cal 292). "It is an elementary rule that where a judgment operates as a judgment in rem, it is not subject to any kind of collateral attack; while it remains in force it is conclusive not only on the persons who are parties to the judgment, but upon all persons and on all Courts." It is undeniable that the judgment has not ceased to be operative; if so, the objection raised is no better than a collateral attack. In Komollochun Dutt v. Nilrutten Mundle, 4 Cal 360: (4 C.L.R.175), it is laid down that: "The grant of probate is the decree of a Court, which no other Court can set aside, except for fraud or want or jurisdiction. Where it has been alleged that probate has been wrongly granted, the proper course to be pursued is to apply to the Court which granted the probate to revoke the same." Following this Calcutta decision, the Lahore High Court in Mt. Daropti v. Mt. Santi, AIR (16) 1929 Lah. 483: (116 I.C. 452) has hid down that under S.263, Succession Act (corresponding to S. 50 Probate Act) thus: "Where it is alleged that letters of administration have been wrongly granted, the proper course is to apply to the Court which granted the letters to revoke the same. The grant of letters of administration so long as it subsists conclusive evidence as regards the proper execution of the will and the legal character conferred on the administratior." The Calcutta High Court, in a later decision has affirmed the decision in Komollochun Dutt v. Nilrutten Mundle, 4 Cal. 360: (4 C.L.R.175). In Panalal v. Hansraj Gupta, AIR (27) 1940 Cal 236,: (I. L.R. (1940) 1 Cal. 14) where a suit was filed for declaration that the will was a forgery and the grant of probate which was obtained fraudulently should be revoked, Panckridge J. expressed the view that S.264 (1), Succession Act empowers the District Judge to grant or revoke probates thus: "No civil suit lies to revoke a probate on any ground for it was the intention of the Legislature that the exclusive remedy in every case should be an application under S.263. Jurisdiction to revoke probate is limited to the probate Court within the meaning of S. 264 (1)." Ordinarily, the last will together with codicil, if any, should be proved at one and the same time. The respondents contention that the revocation was not known to them at the time of the previous proceedings and it was only subsequently that it was discovered oven if true, will not entitle them to raise an objection that the probate is void in subsequent proceedings. It is observed by Amir Ali J. in O.V. Forbes V.V.G. Peterson, AIR (28) 1941 Cal. 417: (196 I.C.111) that: "Where the probate of a will is already granted and a codicil subsequently discovered vitally changes the will, the grant of the probate of the will and codicil together is in effect a new grant necessitating revocation of the probate of the will." His Lordship further states that: "A subsequently discovered codicil must be proved at a place where the will is sought to be proved." Applying the principles enunciated in the oases cited, I have no hesitation in holding that the Probate Courts are invested with exclusive jurisdiction and the Legislature has prescribed a special procedure for the revocation of probates and a probate granted can be impugned only in the Court that originally granted the same and that no civil suit lies to challenge the judgment of a Probate Court, nor could any objection be raised in derogation of the will probated in any other proceeding as the judgment of a Probate Court will be binding on the parties, and all Courts.

8. In this view, affirming the judgment of the learned District Judge, the appeal and the cross-objections are dismissed without costs. Appeal dismissed. AIR (37) 1950 MYSORE 60 [C.N. 18.] "Abdul Rahiman v. Narasimhiah" MYSORE HIGH COURT Coram : 2 BALAKRISHNAIYA AND MALLAPPA, JJ. ( Division Bench ) Abdul Rahiman - Appellant v. M. L. Narasimhiah - Respondent. Appeal No. 91 of 1948-49, D/- 13 -3 -1950, against order of A.D.J., Mysore, D/- 20 -7 -1948. (A) Civil P.C. (5 of 1908), O.20, R.12, R.18 - DECREE - PARTITION - Distinction - Suit for partition - Mesne profits - Determination in absence of direction in decree. Order 20, R.12 is a provision in respect of meals profits, that is, only when a person is in wrongful possession of the property. In a suit for partition of joint family property, it cannot be said that any one is in wrongful possession. Order 20, R.12, therefore, does not apply to the suit for partition and the mere fact that the preliminary decree is silent on the point does not come in the way of the Court directing an inquiry into ascertainment of profits realised from the properties directed to be divided: 14 Cal. 493 (P.C.); AIR (34) 1947 Mad. 106 and unreported decision in R.A. No. 8 of 45.46 decided by Mayeore High Court, Rel. on; AIR (6) 1919 Mad. 998 and 21 Mys. L.J. 270, Disting. (Para 7) Annotation: (44-Com.) Civil P.C., O.20, R.18, N.6, Pts. 3, 2. (B) Civil P.C. (5 of 1908), S.54, O.20, R.18 - PARTITION - DECREE - Decree -Nature of- Defendant is entitled to claim share of profits. A decree for partition amounts to a joint declaration of the rights of the persons interested in the property of which partition is sought and it must be taken that a decree in such suits is a decree, when properly drawn up, in favour of each share-holder, whether a plaintiff or a defendant in the suit. A defendant who is entitled to half a share in the suit property is therefore entitled to claim also the share in profits. (Para 9) Annotation: (44.Com.) Civil P.C., S.54, N.4, Pt. 2, O. 20, R. 18, N. 6.

V. Krishna Marti -for Appellant. S. K. Venkataranga Ivengar- for Respondent. Judgement Mallappa, J.-This is an appeal against the order in O.S. No. 5 of 38-39 on the file of the District Judge, Mysore, directing inquiry into and payment of defendant 2s share of the profits derived from the suit property till he is put in possession of it.

2. The suit was filed by the plaintiff against defendant 1, his father and defendant 2 his cousin for recovery of his 1/4th share in the family properties and for his share of the income from them. The appellant was also impleaded as one of the properties was mortgaged with possession to him by defendant 1. The appellant pleaded that the debt was binding on the family as it was contracted for legal necessity but his contention was negatived and a preliminary decree was drawn up for division of the properties on the footing that the debt was binding only on 1/4th interest of plaintiffs father. The appellant filed an appeal against the plaintiff only and succeeded in showing that the mortgage debt was binding not only on the share of his father, but also on plaintiffs 1/4th share as the latter was not born on the date of alienation. He did not implead to his appeal, defendant 2 and did not agitate against the finding that the alienation was not binding on defondant 2s share as it was not contracted for legal necessity. The appellant is not disputing that defendant 2 can have his half share in the property mortgaged to him. He is contesting only that this defendant is not entitled to mesne profits now claimed by him.

3. The first point raised by him is that the preliminary decree for partition does not direct an inquiry into future mesne profits and as such the Court has no power to direct an inquiry into future mesne profits. The decision in 21 Mys. L.J.R. 270 is relied on. In that decision it was held that an application under O.20, R.12 for future memo profits was not maintainable when the decree did not award future mesne profits. In that case, a final decree had been passed for possession and past mesne profits but was silent on the question of future memo profits claimed in the plaint. Order 20, R. 12 is as follows: "(1) Where a suit is for the recovery of possession of immoveable property and for rent or means profits, the Court may pass a decree: (a) for the possession of the property; (b) for the rent or mesne profits which has scorned on the property during a period prior to the institution of the suit or directing an enquiry as to such rent or mesne profits; (c) directing an enquiry as to rent or mean profits from the institution of the suit until:

(i) the delivery of possession to the decree-holder,

(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court,

(iii) the expiration of three years from the date of the decree whichever event first occurs (2) Where an enquiry is directed under cl. (b) or cl (c) a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such enquiry

4. According to cl. (2) a final decree in respect of rent or mesne profits can be passed in accordance with result of the inquiry directed ender cls. (b) and (e) of O.20 R.12 (1). It is possible to construe that under O.20, R. 12, a Court can direct an inquiry into mesne profits only when there is a direction in the preliminary decree under O.20, R.1. That there is room for reconsideration of this aspect of the matter is Blear by the decision reported in Kalidas v. Saraswati, AIR (30) 1913 Cal. 1: (I.L.R. 1942-2 Cal. 268), but that is not the matter now under consideration. Order 20. R.18, Civil P.C. at any rate does not circumscribe the limits within which an inquiry for a share in the mesne profits of the property to be divided can be ordered to be held in the sense in which the ordering of such an inquiry is limited under O.20, R.12, Civil P.C. according to Ghulusam, Beevi v. Ahamadsa Rowther, 42 Mad. 296 (AIR (6) 1919 Mad. 998). The reasoning in Ghulusam Beevi v. Ahmadsa Rowther, 42 Mad. 296:(AIR (6) 1919 Mad. 998) to the extent it applies to cases under O.20, R.12, is followed in 21 Mys. L. J. 270. The correctness of the extension of same principles to O.20, R.18, Civil P.C. as found in the above Madras decision did not arise for consideration in 21 Mys. L.J. 270 and it cannot therefore be taken as an authority on that point.

5. Before considering the desirability of extending the principles recognised in 21 Mys.

L.J. 270 for ordering of an inquiry as to mesne profits under O.20, R.12, to the ordering of an inquiry as to memo profits after a decree as per O.20, R.18, the provisions of the two orders have to be compared. Order 20, R.18 is as follows: "Whore the Court passes a decree for the partition of property or for the separate possession of a share therein then,- (1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Deputy Commissioner or any revenue officer not below the rank of a Deputy Amildar deputed by him in this behalf, in accordance with such declaration and with the provisions of S.54; (2) if and in so far as such decree relates to any other immovable property, or to movable property the Court may if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several par ties interested in the property and giving such further directions as may be required."

6. The first point to be noticed in O.20, R.18 is the absence of reference to any inquiry as to memo profits as found in O.20, R.12. The second point is that the decree for partition of immoveable properties assessed to the payment of revenue to the Government under cl. (1) is a final decree. Clause (2) alone contemplates a preliminary decree or final decree. The Court has been given the discretion to pass a preliminary decree, if the properties mentioned in cl. (2) cannot conveniently be partitioned without further inquiry. The inquiry contemplated in this clause is only to find out the convenient method of dividing the property and to ascertain what directions have to be given to divide it. It is not possible to construe as has been done in Ghulusam Beevi v. Ahamedsa Rowther, Mad. 296: (AIR (6) 1919 Mad. 998) that the directions contemplated here could refer to mesne profits. The language is not capable of such construction and when a final decree cannot be drawn up in respect of properties mentioned in (2) without any inquiry a preliminary decree declaring the rights has to be passed with directions required for effecting a partition. If these directions have to include a direction for inquiry as to the profits it will be noticed that malt a provision is made in respect of properties referred to only in cl. (2) and no such direction is contemplated in respect of profits of properties mentioned in cl. (t). It follows that there is no need to infer from the wording in Cl. (2) that directions required to be made under that clause necessarily include a direction to ascertain memo profits. At any rate the absence of a direction is a decree ender O.20, R.18, can under no circumstances be construed as negativing a claim for a share in the profits of the properties directed to be divided. 7.Order 20, R.12, Civil P.C. is a provision in respect of mesne profits. It is only when a person is in wrongful possession of the property that the rightful owner claims insane profits. In a suit for partition of joint family property, it cannot be said that any one is in wrongful possession. The claim in such a case is for a share not only in the property but also in the income realised out of the property jointly owned, till the claimant is put in possession of his share of the property. As decided by the Privy Council in Pirthi Pal v. Jawahir Singh 14 cal. 493: (14 I.A. 37 P.C.): "The sections of the Code of Civil Procedure relating to mesne profits were not applicable to a suit for partition or for an account of the proceeds of a family estate in which a plaintiff has no specific interest until decree." The opinion of their Lordships in this case that a sharer has a "clear right to an account of the profits received by the person in possession of the whole, and to be awarded his share thereof not as mesne profits received by a person in wrongful possession but as appurtenant to the plaintiffs right in his share of the lands" is followed in Ramaswamy Iyer v. Subramania Iyer, 43 M.L.J. 406:(AIR (10) 1923 Mad. 147). The decision in Ghulusam Beevi v. Ahmadsa Rowther, 42 mad. 296: (6) 1919 Mad. 998; and Ramanath Chhoturam v. Goturam Radhakisan, 44 Bom. 179:(AIR (7) 1920 Bom. 236) support, as observed by Sadasiva Iyer J. in Ramaswamy Iyer v. Subramania Iyer, 43 Mad L.J. 406: (AIR (10) 1923 Mad. 147) at p. 411 the conclusion. "(1) That O.20, R.12, Civil P.C., does not apply to the claim of a plaintiff suing far partition of lands and the profits which are accruing on the lands which ultimately might fall to his share under the decree. (2) That unless a preliminary decree for partition refused or should be deemed to have refused to grant profits the court is not precluded from granting profits in final decree." This being a suit for partition O.20, R.12, does not apply. As to the second point, as observed by Sadasiva Iyer J. at page 412: " In all adjudications which are not intended to be final but only to be termination of sonic of the questions involved in a suit there is and ought always to be implied the reservation of leave to all parties to apply for further directions and adjudications necessary for the complete trial and complete disposal of the litigation." The mere fact that the preliminary decree is silent on the point does not come in the way of the Court directing an inquiry into ascertainment of profits realised from the properties directed to be divided Ghulusam Beevi v. Ahamadsa Rowther, 42 Mad. 296:(AIR (6) 1919 Mad. 998) has not been followed in the later decisions of the Madras High Court and it was held in Raghava Mannadiar v. Theyyunni Mannadiar, AIR (34) 1947 Mad. 106: (231 I.C. 295): "The fact that the plaint in a partition suit does not contain a specific prayer for profits from the date of the suit and the preliminary decree in the partition suit does not provide for profits subsequent to the date of the suit and does not contain a direction that the defendants should be liable for profits does not preclude the Court from entertaining the plaintiffs claim for such profits at the stage of the final decree."

8. As regards the decisions of this Court, it has to be stated that while the decision in 21 Mys. L. J. 270, which interprets the scope of O.20, R.12, Civil P.C. is not an authority on a point that arises under O.20, R.18, Civil P.C., there is a clear authority directly on the point in the decision of Venkataramana Rao C.J. and the present Chief Justice in R.A. No.8 of 45-46 on the file of this Court. It has been observed in it as follows: "The preliminary decree did not give any direction in regard to future mesne profits. .The question is whether the direction in the preliminary decree can held to have negatived plaintiffs claim for mesne profits We are inclined to think that the preliminary decree could not be held to negative the plaintiffs claim for mesne profits."

9. The second point raised in this appeal is that whatever might be the right of a plaintiff to claim a share in the profits of the property directed to be divided that cannot be the case of defendant. Defendant 2 in this case is entitled to half a share in the property in dispute in the possession of the appellant. The policy of law recognised as early as 1873 in Khoorshed Hossein v. Nubbee Fatima, 3 Cal. 55: (2 C.L.R.187) which lays down: "That a decree for partition amounts t3 a joints declaration of the rights of the persons interested 1131 the property of which partition is sought and that it must be taken that a decree in such suits is a decree, when properly drawn up, in favour of each share-holder or set of share-holders having a distinct share" is accepted in 50 May. H.C.R. 46. There can therefore be no distinction between the case off a plaintiff and that of a defendant entitled to a share.

10. This appeal fails on both the points raised by the appellant and the order of the District Judge directing an inquiry into the profits realised from the property is correct and has to be upheld. The appeal is dismissed with costs. Balakrishnaiya, J.- I agree. Appeal dismissed. AIR (37) 1950 MYSORE 62 [C.N. 19.] "Lakshmiah Setty v. Rama Nanjundiah" MYSORE HIGH COURT Coram : 1 PUTTARAJ URS, J. ( Single Bench ) P.R. Lakshmiah Setty - Plaintiff-Petitioner v. Rama Nanjundiah Setty - Defendant -Respondent. Civil Revn. Petn. No. 272 of 1948-1949, D/- 3 -2 -1950, against decision of Sm. C. C.J., Bangalore, in S.C. No. 910 of 1947-48. (A) Mysore House Rent Control Order (1942) - HOUSES AND RENTS - CIVIL COURT - Houses and Rents -Enhancement of rent- Dispute as to -Jurisdiction of civil Court. Civil P.C. (5 of 1908), S.9. All the disputes between the landlord and tenant with regard to increase of rent need not be decided by the Rent Controller. There is still scope for civil Courts to exercise their jurisdiction to enforce the enhanced rents. (Para 2) Annotation: (44-Com.) Civil P.C., S.9, N.50, 55. (B) Mysore House Rent Control Order (1942) - HOUSES AND RENTS - TENANCY - Houses and Rents - Notice of enhancement by landlord -No reply by tenant -Presumption. In the absence of reply by the tenant to a notice by the landlord demanding enhanced rent, it has to be presumed that the tenant has not refused to pay enhanced rent. The implication is that he has agreed to pay the rent at the enhanced rate. (Para 2) K.P. Muddappa -for Petitioner. S. Gundappia-for Respondent. Judgement Order. - The petitioner is the plaintiff in S.C. No. 910 of 47.48 on the file of the Judge, Court of Small Causes, Bangalore. The suit was filed by him against the present respondent to recover twenty-four months rent at the rate of Rs.13, per mensem. The respondent-defendant admitted that he was a tenant but denied that he had agreed to pay Rs.13 or that he was liable to pay it. On this, the learned Judge of the Court of Small Causes held that he had no jurisdiction to give relief at the enhanced rate, and gave a decree for the rent at Rs. 9-8-0 only which he considered the defendant had agreed to pay. It is against this that the present revision petition is filed.

2. The main ground that has been taken in this petition is that the Judge of the Court of Small Causes is in error in holding that the jurisdiction of the civil Courts in these matters is ousted by the House Rent Control Order. The learned Judge of the Court of Small Causes seems to be under the impression that all disputes between landlord and tenant in regard to the increase of rent claimed should be decided by the House Rent Controller and that the civil Courts have no jurisdiction. This view does not seem to be correct. I have discussed this point in O.R.P. No. 239/48-49, and I have held that the civil Courts jurisdiction is not ousted. It is not necessary for me to reiterate the grounds on which I have held like that. It is enough to state that there is still scope for civil Courts to exercise their jurisdiction to enforce the enhanced rents. But, in this case, it has to be observed that there is no evidence to show that the defendant agreed to pay the enhanced rent. Though in the plaint nothing is mentioned about the notice issued to him demanding increased rent, yet in the course of the evidence the defendant himself has admitted that he had received a notice from the plaintiff asking for enhanced rent and that he replied to him that he was not liable to pay the enhanced rent. The defendant has produced an acknowledgment Ex. I which goes to show that the defendant issued a reply to the plaintiff. The reply itsel is not made available and there is no knowing whether the alleged reply was in connection with this increased rent. The plaintiff has denied that he received any reply. In the absence of such a reply, it has to be assumed that the defendant has not refused to pay the enhanced rent. The implication is that he has agreed to pay the rent at the enhanced rate.

3. The next question that arises for consideration is whether the plaintiff is entitled to claim the enhanced rent as rent or as damages for use and occupation. There is no evidence to show that the house is capable of fetching a rent of Rs.13. But, however, there is this fact that the tenancy was long prior to 1942 at the original rent of Rs. 9-8-0 as held by the learned Judge of the Court of Small Causes, and the increment claimed is only Rs. 3-8-0, and having regard to the increased cost of living and the increased cost of other articles, it will not be unfair to allow this small increment in he rent.

4. I am, therefore, inclined to think that the judgment and decree of the learned Judge of the Court of Small Causes are to be set aside, and they are accordingly set aside. There will be a decree as prayed for by the plaintiff in the plaint. No costs. Order accordingly. AIR (37) 1950 MYSORE 63 [C.N. 20.] "Siddarama v. Kalappa" MYSORE HIGH COURT Coram : 2 BALAKRISHNAIYA AND MALLAPPA, JJ. ( Division Bench ) T.K. Siddarama Setty - Defendant - Appellant v. V.K. Kalappa -Plaintiff - Respondent. Second Appeal No.558 of 1943-1949, D/- 28 -2 -1950, against decree of Addl. Sub-J. Chitaldurg, in R.A. No. 80 of 1948-49. (A) Transfer of Property Act (4 of 1882), S.106 - TENANCY - Notice must end with end of month of tenancy. Where though the period of notice is more than 15 days, the expiry of the period falls in the middle of the month of tenancy and does not end with it as required by S.106, the notice is not in accordance with law. (Para 2) Annotation: (50-Com.) Transfer of Property Act, S.106, N.40, Pt. 1 (B) Transfer of Property Act (4 of 1882), S.106 - TENANCY - PLEA - APPEAL - Plea of want of notice-Plea can be raised for first time in second appeal. Civil P.C. (5 of 1908), S.100. (Para 2) Annotation: f (50-Com.) Transfer of Property Act, S.106, N. 24, Pt. 7; (44-Com.) C. P.C. S.100, N.58 Pt. 6. Judgement Balakriehnaiya, J.- This is an appeal by the defendant against whom the respondent plaintiff filed a suit for recovery of arrears of rent as also for ejectment. The defendant pleased that he had paid rents regularly and was not, therefore, liable to be ejected. Both the Courts found against the defendant and awarded a decree for rent as also for possession of the property.

2. Sri V. Krishnamurthy on behalf of the appellant contends before this Court that a proper notice contemplated under S.106, Transfer of Property Act had not been given and, as such, the relief for ejectment ought not to have been granted to the plaintiff. Exhibit B is the notice dated 6th September 1947 in which the plaintiff states: " .. you are required to vacate the said schedule houses within one month from the date of receipt of this notice and deliver possession of the same in a proper manner..." Section 106, Transfer of Property Act, lays down that the notice should he served clearly fifteen days before the expiry of and ending with the month of tenancy. It is undisputed that the month of tenancy is the British calendar month and though the period of notice is more than 15 days, the expiry of the period falls in the middle of the month of tenancy and does not end with it as required by S.106, T. P. Act. The notice is not, therefore, in accordance with law. The defendant has not raised the question of notice at all in his written statement and though a feeble attempt appears to have been made about the question of notice during arguments in the first appellate Court, it was not raised in the technical manner as required under S. 106 of the said Act. However, Sri Krishnamurthy relies upon a decision of this Court reported in 13 Mys. C.C.R 207 which states that a plea of want of notice may be taken at any time and argues further that the compliance with the requirement of S.106 is a part of the cause of action upon which the plaintiff bases his suit which is not a question relating to the maintainability of the suit, but one relating to the plaintiffs cause of action or his right to sue as laid down in 20 Mys. L.J.194. We are, therefore, of opinion that the plaintiff had no right to eject inasmuch as the notice given is bad in law and the plaintiffs suit to that ex. tent should inevitably fail. The portion of the decree ejecting the defendant from the suit premises cannot, therefore, be supported. We therefore set aside that portion.

[3] In this view, the direction of the trial Court in the decree that future rents from the date of suit till delivery of possession be determined at the time of execution has also to be set aside. But the decree for rent claimed till the date of suit is confirmed, Since the defendant succeeds on a technical point not raised in the trial Court he is not entitled to any costs and parties will bear their own costs in the Courts below.

4. Mailappa, J.- I agree.

5. This is an instance in which the plaintiffs suit has failed, after it has come up to the High Court, on a very technical ground. The provisions of S.106, T.P. Act, regarding notice to be issued to entitle a lessor to file a suit foe ejectment have not been properly understood and, in fact the wording of the section itself on this aspect of the matter is not very clear. The very fact that objections have not been taken to the maintainability of the suit either in the trial Court or in the Court of first appeal makes it clear that even the lawyers in the moffusil have not clearly understood the meaning of the words. Such cases causing unnecessary waste of time and labour are not un common and there are two reported cases of this kind. The section needs amendment so as to make the meaning clear and it would be better if a notice of such period as is fixed in the section is stated to have the effect of terminating the tenancy at the end of the appeal partly allowed. Appeal partly allowed. AIR (37) 1950 MYSORE 64 [C.N. 21.] "Marulasiddappa v. Lakshmipathi" MYSORE HIGH COURT FULL BENCH Coram : 3 MEDAPA, C. J., BALAKRISHNAIYA AND MALLAPPA, JJ. ( Full Bench ) Marulasiddappa - Judgment-debtor - Appellant v. Lakshmipathi and others - Decree- holders-Respondents. Second Appeals Nos. 12 and 341 of 1948-49, D/- 30 -3 -1950, decided by Full Bench on order of reference by Puttaraj Urs and Mallappa JJ., D/- 24 -11 -1949. (A) Civil P.C. (5 of 1908), S.48, O.21, R.17 - EXECUTION - DECREE - Failure to file schedule of immovable property with execution application - Defect can be cured after 12 years. The failure to file a schedule of immovable properties along with the execution application is a mere defect which can be cured by filing a schedule of snob properties more than twelve years after the date of the decree, as it is a defect which comes within the scope of Rs.11 to 14 of O.21, Civil P.C., and can be allowed to be remedied under R.17 of that Order: Case law discussed. (Para 16) Annotation: (44-Com.) Civil P.C., S.48, N.7; O.21, R.17, N.3. (B) Civil P.C. (5 of 1908), S.48, O.21, R.17(2) - EXECUTION - DECREE - Fresh application - Application for execution after 12 years against property not mentioned in schedule. An application of a decree-holder flied twelve yearn after the decree, for execution against certain immovable property not mentioned in the original application containing a schedule of immoveable properties, cannel be considered as a continuation of the pending original application, but has to be regarded as a fresh applies lion. In cases of this kind, R.17 (2) of O.21 is not applicable as the first application was not defective and the second application is not one intended to remedy the defect: Case law discussed. (Paras 16 and 17) Annotation: (44-Com.) Civil P.C., S.48, N.7, O.21, R.17, N.3. B. S. Puttasiddiya - for Appellant.

V. Krishnamurthi - for Respondent 1. Judgement Puttaraj Urs, J.- The point involved in this appeal is whether a decree-holder can be allowed to proceed against the properties which were not included in the original application for execution but a schedule of it was filed more than twelve years after the application was first filed. The identical point arose in S.A. No. 12 of 1948-49, and there was a difference of opinion between the two Judges that heard the came, and it has been referred to a Full Bench. The result of this case will follow the decision of the Full Bench. It is but right that the counsel in this case also should be given an opportunity to argue this point before the Full Bench when that case is taken up.

2. Therefore, this case also will be referred to the Full Bench so that the advocate on both sides may have an opportunity to argue their respective cases.

3. Mallappa, J. - I agree. Opinion of the Full Bench

4. The points referred to the Full Bench in second Appeal No. 12 of 1948 49 are: (1) Whether the failure to file a schedule of immovable properties along with the execution application is a mere defect which can be cured by filing a schedule of such properties more than twelve years after the date of the decree; (2) Whether the application of a decree-holder twelve years after the decree against certain immovable properties not mentioned in the original application can be considered as a continuation of the original application which is pending or a fresh application.

5. The first point arises also in S.A. No. 341 of 48-49 and it has also been referred to the Full Bench. The second point is simpler than the first point and there is no divergence of opinion worth considering on this point. It has to be stated at the outset that the first application contemplated in both the points referred to above must be execution applications filed within time. Otherwise, the first application itself has to be dismissed as barred by time and no question of a second application to amend it arises. The first point evidently refers to an execution application which is defective on the ground that no schedule of immovable property has been filed though there is a prayer for proseeding against such property. The point deals with an attempt to remedy the defect after the period of limitation. The second point evidently refers to an execution application which is not defective as a schedule of immovable property to be proceeded against is given in it. The point does not deal with an attempt to remedy a defect. It deals with an attempt to get relief not claimed in the execution application after the claim for such a relief is barred.

6. When there is a legal and valid execution application filed within time and in it certain reliefs are prayed for, can a decree-holder file after the period of limitation an interlocutory application praying for other reliefs not claimed in the execution application. It is clear that if he files ft fresh execution application, it will be dismissed as barred by time. It cannot be said that he can circumvent the provisions of limitation act by filing an application for amendment of the prayer in the pending execution application so as to enable him to obtain a relief barred by time. Such methods to overcome statutes of limitation are nowhere recognized. As observed in Weldong v. Neal, (1887) 19 Q.B.D. 394: (56 L.J.Q. B 621): "A plaintiff will not be allowed to amend by setting up fresh claims in respect of causes of action which since the issue of the writ have become barred by the statute of Limitation." As observed in this case by Lord Esher M.R.: "If an amendment be allowed to set up a reuse of auction which if the writ were Issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitation, it would be allowing the plaintiff to take advantage of her former writ to defeat the Statute and taking away an existing right from the defendant."

7. As regards the decisions of other High Courts, we may first refer to the decision of Allahabad High Court in Bandhusing v. Kayastha Trading Bank Ltd., Gorakhpur, 129 I.C. 716: 53 ALL. 419: (AIR (18) 1931 ALL. 134), as it is relied on in a decision of our own High Court reported in 16 Mys. L.J. 461. It was observed in the Allahabad case that: "An application to attach now property is a fresh application within the moaning of S.48, Civil P.C. and if such an application is made more than 12 years after the date of the decree it cannot be entertained. The mere fact that the execution proceedings were still pending and had not been struck off would not be sufficient to save limitation." The next case of Allahabad High Court that can be referred to is the Full Bench decision in Shivashankar Das v. Yusuff Hassan, 66 ALL. 791: (AIR (21) 1934 ALL 481). In that case, Sulaiman C.J. relied on Bandhu Singh v. Kayastha Trading Bank Ltd., Gorakhpur, 53 ALL 419: (AIR (18) 1931 ALL 134) and Rant Rattan v. Data Kaur AIR (15) 1928 Lah. 808: (120 I.C. 622), as well as on Krishna Dayal v. Sakina Bibi, 34 I.C. 27: (AIR (4) 1917 Pat. 485), refereed to in Bandhu Singh v. Kayastha Tradiny Bank, Ltd., Gorakhpur, 53 ALL. 419: (AIR (18) 1931 ALL. 134). He was of opinion: "Where the subsequent application is in character and substance different from the previous one or any relief different from that claimed in the previous one is asked for, or any new property is sought to be attached or sold, it cannot be treated as a mere revival but is a fresh application within the meaning of S.48, Civil P.C." Though the other Judges differred from him on another aspect of the matter, their view on the point under consideration was the same as that of Suleiman C.J. The observation of Rachhpal Sing J. is as follows: "The case of Hayatunessa v. Achia Khatun, AIR (11) 1924 Cal 131: (50 Cal. 743) appears to be distinguishable. That was a case in which the decree-holder had made an application for execution of a mortgage decree on 29th June 1920, in which he had mentioned certain properties against which he wanted to proceed. On 21st August he put in a petition asking for permission to be allowed to add certain properties to the list given in his original application. This prayer appears to have been made after 12 years from the date of the decree and so it was held that it was time barred. But in the case before us, the decree-holders do not teak to add any new properties, but all that they ask is that a part of the mortagaged property which has not been sold as yet should be put to sale. Similarly, the ease of Krishna Dayal Gir v. Sakina Bibi, 34 I.C. 27: (AIR (1) 1917 Pat. 485), appears to be distinguishable. There the decree-holder had made several applications for execution, one of them was made on 28th of July 1911. It was struck off on 29th of June 1912, after the decree-holder recovered a part of the decree-money. After that another application was made on 6th of September 1912, which was dismissed for want of prosecution on 5th of December 1912. Then another application was made on 18th of July 1913 and it was contended before the Court that this last application was in continuation of the application of 28th of July 1911. The learned Judges rejected this contention. The properties sought to be sold under the last application were not the same as those mentioned in the application of 1911. In the case before us the facts are different. Here a prayer had been made by the decree-holders that they should be allowed to proceed against other mortgaged properties: in case the sale proceeds of a part of the mortgaged property proved insufficient for the satisfaction of the decree." While all the three Judges agreed, that an application filed after period of limitation for proceeding against properties not included in the relief column of the pending application is not maintainable, there was difference of opinion as to whether, by stating in the first application that the mortgaged properties not given in the schedule would be proceeded against later, the decree-holder had or had not claimed relief against all the mortgaged properties. As stated in this case: "In Harsarup v. Balgovind, 18 All. 9: (1895 A.W.N. 133), a second application for attachment and sale of property was held not to be in continuance for the previous application for arrest."

8. The observation of Allsop J. in Bhanpal Singh v. Siyaram AIR (29) 1942 ALL. 442: (203) I.C. 590) it may be stated with respect deserves consideration: It is incorrect to say that there is some general application for the execution of a decree and that the various steps in aid of execution are subsidiary thereto. Their is no such thing as an application for execution of a decree properly so called. There is an application for the attachment and sale of certain property in execution of a decree or an application fur the arrest of the judgment-debtor in execution of a decree or an application asking the Court to take some other steps. If on objection taken it is found by the Court that the steps mentioned in the particular application cannot be taken, the application must be dismissed. The Court cannot give opportunity to the decree-holder to amend it as to execute the decree by some other means and thus allow the decree-holder in effect to present a new application by amending the old one when the presentation of a new application is barred by limitation". There are a large number of cases of Calcutta High Court on this aspect of the matter. The observation of Field J. in Sreenath Gooh v. Yusoof Khan, 7 cal 556 (9 C.L.R. 334), that: "If a supplementary list of property were allowed to be in put in after the expiration of twelve years the essential portion of the law would be practically defeated" was followed with approval by Suleiman C.J. in Shivashankar Das v. Yusuff Hassan, 56 ALL.791:(AIR (21) 1934 ALL. 481FB). In Hayatunnissa v. Achia Khatun, 50 Cal. 743: (AIR (11) 1924 Cal 131) it was held: "A decree-holder should not be allowed by subsequent application made after the expiry of the period of limitation for execution of the decree to add other properties to the list given in his original application presented within the period of Limitation." It would be sufficient to mention Badri Narayan v. Baidyanath, AIR (22) 1935 Cal. 149: (154 I- C. 555), Aziz Rahman v. Bepin Behari, AIR (25) 1938 Cal. 162: (174 I.C. 589) and Prafulla Nalini Dassi v, Nrishingha Kumari Dasi, AIR (29) 1942 Cal 255: (I.L.R. (1942) 1 cal. 245) as other authorities of the Calcutta High Court on the point.

9. As regards Lahore High Court, the opinion of Tekchand J. with which Bhide J. agreed Ram Rathan, v. Datar Kuar, AIR (15) 1928 Lah. 808: (120 I.C. 622), is as follows: "The present application asking for permission to file a supplementary list of the properties against which the decree-holder wanted to proceed was not made till 18th November 1925 which is more than 21 years after the date of the decree. if the contention of the appellant in a cam like this were accepted, the clear provisions in S.48, will he rendered nugatory." This decision has been relied on in a number of later decision of other High Courts including the decision in 16 Mys L.J.R. 461. As regards Madras, it is sufficient to refer to Alapati Syamaladoss v. Subhayya, 52 Mad, L. J. 137 (AIR (14) 1927 Mad 347) in which it was held: "A decrer-holder cannot file a complete execution application before the expiry of the twelve years prescribed by S.48, Civil P.C. and then after the expiry of that period apply for execution against other items of property, treating that application as one for amendment of the previous application. No peculiar equity lies in over-riding limitation. The law which limits the period within which a decree is to be executed is neither more nor less just than the law which authorises the decree". Ram Ran Bijaya Prasad Singh, v. Kesho Prasad, 191 I.C. 492: (AIR (28) 1941 Pat. 635) a case of Patna High Court, and Prayagdas v. Mt. Indirabai, AIR (35) 1948 Nag. 189: (I.L.R. (1947) Nag.497), support this view.

10. The decision in 16 Mys. L.J.R. 461 is as follows: "An application made after 12 years from the date of the decree for permission to proceed against the judgment-debtors immovable properties while an execution petition filed long before 12 years, which contained no relief against the immovable properties was still pending is a fresh application which will be governed by S.48, Civil P.C. and hence is barred." This opinion is in accordance with that expressed in decisions of other High Courts and there is no reason to differ from it. The result is that application of decree-holder twelve years after the decree against certain immovable properties not mentioned in the schedule given in the original application has to be considered as a fresh application.

11. The first point referred to the Full Bench deals, as already stated, with an attempt to remedy the defect in a defective execution application. The point has to be considered with reference to Sub-r. (2) of R.17 of O.21, Civil P.C. That sub-rule deals with amendment of certain defective execution applications, and it lays down that a defective execution application, when amended remedying the defect, may be regarded as a valid application, filed on the date on which it was presented. Rule 17, cls. (1) and (2) states as follows: "(1) On receiving an application for the execution of a decree as provided by Rule 11, Sub-rule (2), the Court shall ascertain whether such of the requirements of Rules 11-14 as may be applicable to the case have been complied with; and it they have not been complied with, the Court may reject the application, or may allow the defect to be remedied then and there or within a time to be fixed by it. (2) Where an application is amended under the provicious of sub-rule, it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented." It will be noticed that O.21, R.17, deals with amendment of an execution application which is not in accordance with Rs.11 to 14 of O.21, and it has no reference to execution applications which are not defective under Rs.11 to 14. When an execution application is filed, the Court is bound to examine it as is clear by the use of the word shall in R.17 (1). If it is defective, being not in accordance with Rs.11 to 14, the Court has the option of either rejecting the execution application or of giving time for its rectification. If the Court does its duty, on receiving an application, by ascertaining whether requirements of Rs.11 to 14 are complied with, the party is not prejudiced even if the application is rejected, though all this happens on the last day of limitation; for the applicant has got the chance of immediately tiling a fresh execution application which is not defective. If, on the other hand, time is given to rectify the defect, by, for instance, directing the furnishing of description of the property when that had not been given in a case in which attachment of immovable properties had been prayed for, the applicant does not suffer, as Sub-rule (2) says that even when the defeat is rectified after the period of limitation is over, it must be taken for purposes such as limitation, as if the amended application had been filed in time. It is clear that the rule doss not say that the order directing the rectification of mistake should be made by the Court within the time by which period of limitation for the filing of a valid execution application expires. It does not say that the defeat must be rectified within such time. In fact, all this cannot be conceived when a defective execution application is filed on the evening of the last day of limitation, and it is clear that O.21, R.17, is applicable even to such cases. There is nothing in O.21, R.17, which comes in the way of the Court, permitting, even after the period of limitation, the defeat being remedied. There is nothing in cl. (1) or (2) of O.21, R.17, justifying the opinion that an order for amendment cannot be passed after the execution application is registered, though it is true that its power to reject it has to be exercised on its receipt and before it is registered. If the execution application is not rejected, it follows that the Court has exercised its discretion to get the defect remedied and nothing comes in the way of the Court getting this done at a later stage. Whatever may be the time at which the defect is remedied, the amendment will take effect from the date on which the execution application was filed and no question of limitation arises. Whatever might have been the law before Sub. R. (2)of R.17 of O.21. was introduced, this sub-rule enables a defective application to be retrospectively validated as in the case of S.149 which was introduced for a similar purpose.

12. The decision which is usually relied on in support of the opposite view is the one reported in Asgar Ali v. Troilokya Nath, 17 Cal. 631. It is a Fall Bench decision in which it was held that the Court has no power to allow amendment of defective applications after they are registered. Though it is a case which was decided in 1890 before the sub cl. (2) of R.17 of O.21 was introduced, it has been followed in Hayat-unnissa v. Achia Khatun, 50 cal 743, (AIR (11) 1924 Cal. 131). The High Court of Calcutta was of a different view in J.G. Maggregor v. Tarinichurn Sircar, 14 cal. 124 and in one or two later decisions of that Court, such as Gnanendra Kumar v. Shayama Sunder 22 C.W.N. 540. (AIR (5) 1918 cal. 73); Asgar Ali v. Troilokya Nath, 17 cal. 631 has not been followed. There is, moreover, a Privy Council decision, Husain Asgar Ali v. Ramditta Mal, 60 Cal.662: (AIR (20) 1933 P.C. 68),in which the principle upheld in Asgar Ali v. Troilokya Nath, 17 Cal. 631 was not accepted. The argument for the appellants printed at p.663, is as follows: "The original application to execute the decree was not in accordance with O.21, R.11, and the Court had no power to allow the amendments. Under O.21, R.17, the Court had power to allow defects to be amended only "on receiving" the application, but in this case the amendments were allowed about a year later." The decision printed at pages 668 and 669 is as follows: "The only other question which has been argued on the appeal is as to the omissions in the application for execution, which led to its return to the respondents in the lower Court for amendment. It is contended for the appellants that no amendment should have been allowed, and that the application should have been rejected. Under O.21, R.17, Civil P.C. the executing Court clearly bad a discretion to allow the amendments, and the appellate Court thought that the discretion had been properly exercised." This Privy Council decision has not been evidently relied on, in oases which have not agreed with Asgar Ali v. Troilokya Nath, 17 Cal.631 as the effect of the decision in the former decision cannot be noticed fully unless the argument of the appellant is also read.

13. The point came up for consideration in a number of cases in other High Courts, and the view expressed in Asgar Ali v. Troilokya Nath, 17 Cal, 631 has not been accepted. In Pitchayya v. Ankineedu, AIR (11) 1924 Mad. 367: (76 I.C. 750) it was held: "The words on receiving an application for the execution of a decree in R.17, are not intended to make a party suffer for the failure of the Court establishment, which bailee plaints and execution petitions on their presentation, to notice at once all defects in any application that may be received and these words do not preclude a Ceurt from making an order allowing a defect to be remedied at a later stage. Asgar Ali v. Troilokya Nath, 17 C. 631 Sttaimultak Bahadur v, Saineddi Sarkar, 18 C.L.J. 538: (22 I.C. 337) Dissented Varadiah V.Venkata Perumaf, 1914 M.W.N. 157: (21 I C. 782) Foll)." According to Muthu Krishna V.Viswalinga, AIR (27) 1940 Mad. 893. (1940 M.W.N. 547), "the mere fad that a list of the properties was not given in the original execution application does not deprive the decree-holder of the benefit of O.21, R.17 (2)." In Nambudiripad v. Brahmadathan Nambudiripad, (1945) 1 M.L.J. 447: (AIR (32) 1945 Mad. 241), it was held: "There is no option or discretion in the Court with regard to ascertaining whether the requirements of Rs.11 to 14 of O.21. Civil P.C., have been complied with. Where an execution petition after referring to moveables also contained a prayer for the sale of immovable property but no particulars of the properties were given, it is the duty of the Court to return the petition for amendment for the purpose of having the defects remedied. The amendment can be made even after the expiry of the twelve years period of limitation prescribed by S.48, Civil P.C." That the view of the other High Courts is the same, is clear from Jiwat Dube v. Kalicharan Ram, 20 ALL. 478: (1898 A.W.N. 128), Ganesh Das v. Fattehchand, AIR (7) 1920 Lah. 122: (55 I.C. 16), Sheogobind Ram v. Mt. Kishun Bansikuar, AIR (19) 1932 Pat. 222: (11 Pat, 546), Ahmad Ali v. Mt. Fatima Sultan, AIR (21) 1934 Pesh. 40: (152 I.C. 443), In re Janki Prasad, AIR (24) 1937 Bom. 365: (I. L.R. (1937) Bom. 691) and Mahomed Bhai v. M.A. Dawood Bhai and Co., AIR (25) 1938 Bom. 405: I.L.R. (1938) Bom. 708) It is, however, the last case that we would like to quote from at some length for a clear exposition of the law on the point. Beamount C. J., after noting the difference of opinion on the point, observed: "In that state of the authorities, one has to look rather critically at the words of the Rule, and I am disposed to agree that if sub-r. (1), which I have already referred to, stood alone, the view taken in Asgar Ali v. Troilokya Nath, 17 Cal. 631 would be right, and I should say that the Rule only applies when the Court is considering taking the application on its file. But then one has to look at the later sub- rules. Sub-rule (2) is not relevant to the argument, for it merely directs that the amendment shall relate back to the presentation of the application. But sub-r. (3) provides that every amendment made under this Rule shall be signed or initialled by the Judea and sub-r. (4) provides that when the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions thereinafter contained, order execution of the decree according to the nature of the application. That sub-rule seems to contemplate, first of all a ministerial act in entering a note of the application in the proper register, and secondly, a judicial act, namely, the ordering of the execution of the decree, and the doing of both acts is mandatory. But that judicial act could not in this case, have been performed unless the application was amended, and that would probably be so in many oases. So that the direction in sub-r. (4) that an order for execution shall be made, certainly, I think, tug. goat that the application must be put in order at the time when the C nut is considering whether the order for execution should be made or not. That view is also strongly supported to my mind by sub-r. (3), which requires every amendment made under the Rule to be signed or initialled by the Judge. Clearly, the Judge could not be expected to sign or initial amendments which were required by the office before the application was entered on the file. The amendment musk in fact be signed at the time of the hearing. In my view, therefore, reading the whole of R.17 together, although no doubt the office can and should require the application to be in the condition required by the Rules at the time when it is presented, nevertheless is open to the Court at any time, upto and including the hearing, to make an amendment under the terms of the Rule. In my opinion, therefore, the learned Judge was right in making the amendment under the terms of R.17. Even if I had thought that he had no power to make the amendment under R.17, I should have said in this particular case that he was right to allow the amendment under the general jurisdiction of the Court to allow amendments, because the application did not seek execution against a particular property which subsequently proved not to be subject of the execution, the applicant therefore being compelled to ask for leave to execute against another property after limitation had run. The application here did not specify any property; it merely referred generally to attachment of property under R.54, that is of imovable property. The amendment therefore only involves giving particulars of that which was dealt with in general terms by the application. I am not prepared to to accept Mr. Vachhas contention that the application was a mere nullity, because it did not describe the property in detail. However, if the amendment was made under R.17, there is express power to make it and sub-r. (2) makes it clear that the fact that limitatation has expired is irrelevant. In my opinion, the appeal must be dismissed with costs. I express no opinion on the further question whether giving leave under O.21, R.22, is a step in execution."

14. Before leaving the point, it may be necessary to make it clear that the principle laid down in these cases, that an amendment made to cure defects in an execution application which is not in accordance with Rr. 11 to 14 of O.21, retrospectively validates the application as stated in O.21, R.17 (2), is not applicable to interlocutory applications made for purposes of adding a prayer for proceeding against properties not mentioned in the execution applications which are not defective.The following observations at p. 464 in 16 nays. L.J. 461, make the point clear: "It was also contended by Mr. Srinivasan that sub-r. (2) of R.17 of O.21 of the Code of Civil P.C. permitted amendments of execution applications and that if allowed such amendments would date back to the date of the original application itself, and that Therefore the present application should be deemed to be in time. But that provision, it will be noticed, refers to certain defects in the execution petition arising from non-compliance with the requirements of Rules 11 to 14 of Order 21 of the Code. But we are not concerned with such defects in the present case. This is a case in which the decree-holder wants permission to proceed against the properties of the judgment-debtor which were not all mentioned in the original application and in these circumstances, Sub-rule (2) of Rule 17 of Order 21 of the Code of Civil P.C., can have no application." Fazl Ali J. in Gajanand Sha v. Dayanad Takur, AIR (30) 1943 Pat. 127: (21 Pat. 838) made the distinction between the two kinds of oases clear by the following observation: "The view which has been generally taken as to the meaning of O.21, R.17 is that it is intended to deal with only formal amendments but for which the application for execution or attachment will not be regarded as complete. For example, under R. 11, the judgment- debtor is required to state that details of the number of the suit, names of the parties, the date of the decree etc., in his application and if upon scrutiny of his application it appears that any of these details is missing in the application, the Court may give an opportunity to the decree-holder to remedy the defect. Similarly, what O.21, R.13 contemplates is that the property which is sought to be attached should be described in such a way in the application for attachment as to show that the property is identifiable. If, therefore, there are found wanting in the description such details as are necessary for the proper identification of the property, the Court has full power to allow the decree holder to remove the defect by supplying such details. Rule 17, however, was never intended in my opinion to enable the decree-holder to ask the Court to delete from his application a property which is fully described and to substitute in place thereof another property with a totally different description. In my opinion, therefore, the present case cannot be said "to be covered by O.21, R.17." This case deals with an attempt to substitute a new property in place of another property mentioned in the schedule of properties the attachment and sale of which were prayed for in the execution application. The argument is applicable much more strongly to cases in which an attempt is made to add another property to the list of immovables for proceeding against which alone the execution application had been filed.

15. Failure to file a schedule of immovable property along with the execution application is a defect which comes within the scope of rules 11 to 14 of order 21, and on receipt of such an application, the Court is bound to ascertain whether the application is defective; it might thereon either reject the application before it is registered or allow the defect to be remedied within a time fixed by it. It follows that if the application is not rejected, the Court has followed the only other course open to it, and that is, it has allowed the decree-holder to get the defect remedied. There is nothing to prevent this being done after the execution application is registered and even after the expiry of the period of twelve years from the date of the decree. Our answer, therefore, to point No. 1, referred to the Full Bench, is that the failure to file a schedule of immovable properties along with the execution application is a mere defect which can be cured by filing a schedule of such properties more than twelve years after the date of the decree.

16. As regards the second point, it has to be stated that when an execution application is filed for proceeding against certain immovable properties, relief Claimed in that execution petition can only be given and any application fuel for relief in respect of other immovable properties must be regarded as a new application, When the second application is filed within the period of limitation, there is nothing wrong in giving relief in the same execution case as this would, if at all, be a formal defect. If, on the other hand, the application for proceeding against immovable properties other than those mentioned in the first execution application is filed after the period of limitation, this application has to be dismissed and relief claimed in it cannot be granted in the execution case, in which an application had been filed within time for proceeding against certain other immovable properties. In cases of this kind, Rule 17 (2) of Order 21 is not applicable as the first application was not defective and the second application is one intended to remedy the defect. 17.Our opinion, therefore, on the second point referred to the Full Bench is that an application of a decree-holder filed twelve years after the decree, against certain immovable property not mentioned in the original application containing a schedule of immovable properties, cannot be considered as a continuation of the pending original application, but that it has to be regarded as a fresh application. The records in S.A. No.12 and 341 of 48.49 will be returned to the Division Benches with these ans. were, for the cases being disposed of in the light of our opinion. Reference answered. AIR (37) 1950 MYSORE 70 [C.N. 22.] "Sharafudin v. Jagadeesan" MYSORE HIGH COURT Coram : 2 MEDAPA, C. J. AND MALLAPPA, J. ( Division Bench ) A.K. Sharefudin - Appellant v. S. Jagadeesan - Respondent. Misc. Appeal No.69 of 1949.1950, D/- 20 -3 -1950, against order of Addl. Sub-Judge, Chiokmagalur, in Mis. Case No. 26 of 1948-49. (A) Civil P.C. (5 of 1908), O.3, R.4(1) - ADVOCATE - Formal defects in vakalat, if fatal. The pleader wrote to his client to sign the vakalat sent by him. He, however, sent a wrong valcalat form bearing the name of another pleader. The client who did know the language in which the vakalat was printed signed it before a Magistrate who affixed his signature to it. On receiving the vakalat the pleader by mistake struck out the certificate printed in the form to indicate that the person before whom the vakalat was signed knew the person: Held that the pleaders striking oil the certificate-and his failure to write his name to indicate that he was the person engaged by the client were not fatal defects. (Para 8) Annotation: (44-Com.) C.P.C., O.3, R.4, N.14, Pt. 3. (B) Civil P.C. (5 of 1908), O.9, R.13; O.6, R.14 and R.15 - DECREE - PLEADINGS - Ex parte decree -Application to set aside, not verified nor signed - Defects cannot defeat ends of justice. (Para 8) Annotation: (44.Com.) C.P.C., O.6, R.15, N.4, O.6, R.14, N.3; O.9, R.13,N.2. (C) Civil P.C. (5 of 1908), S.151 - INHERENT POWERS - DECREE - Ex parte decree - Setting aside of, under section Civil P.C. (5 of 1908), O.9, R.13. When an application is filed to set aside an ex parte decree on the ground that the petitioner was not duly served with summons or that he was prevented by sufficient cause from appearing before Court, the ex parte decree can be set aside only under O.9, R.13 on these allegations being proved; relief cannot be given in such cases under S.151 on the ground of hardship when the allegations are not proved. If an application is filed making allegations that do not come within the purview of O.9, R.3 nothing comes in the way of relief being given under S.151, Civil P.C. by setting aside ex parte decree in proper cases. (Para 18) Annotation: (44-Com) C.P.C., S.151, N.2, Pts.16 to 25, O.9, R.13, N.17. M. Ramachandra Rao - for Appellant.

V. Krishnamurthy - for Respondent. Judgement Judgment. - This is an unfortunate case. It is unfortunate for the appellant as the plight in which he is placed is not due to his own fault, but due, to the carelessness of the lawyer whom he engaged to defend the suit filed against him, to the indifference of the lawyer who had agreed to look after the case - in case he had been asked to do so and to the incapacity of the lawyer who took a defective vakalat from him and filed a defective miscellaneous petition to set aside the ex parte decree.

2. A suit in O. S.22 of 48-49 was filed against the appellant. He engaged Sri Seetharamiah as his counsel. A statement was filed and the case was posted for reply statement to 24th march 1949. A memo for particulars was filed and the case was posted for particulars being furnished on 17th May 1949. Sri T. Seetharamiah had gone away on a tour in Northern India and according to his evidence he had asked Sri Sundara Rao to attend to his cases. Sri Sundara Rao did not appear for appellant on 17th may 1949, but some other advocate appeared and took an adjournment till 25th May 1949. Nobody appeared for the defendant in that case on that day and the suit was decreed ex parte. It may be noticed here that the office had put up a note that some of the items of suit claim were barred and it had been noted in the order sheet that this matter was reserved for consideration at a later stage. This was not considered, however, at the time the case was finally disposed of.

3. As pointed out by the learned Subordinate Judge: "The Court fixed 17th May 1949 as the date on which the defendant should furnish these particulars. It is clear from the note on the order sheet dated 24th March 1949 that Sri Seetharamiah appeared in the Court and also filed the counter-affidavit. No doubt Sri Seetharamiah in his evidence before the Court, has stated that he is not sure of his having appeared before the Court. But the note made on the counter-affidavit shows that it is Sri Sestharamiah who presented it in person and the note made in the order sheet of 24th March 1949 is also to the effect that he filed it. So it is rather difficult to believe that Sri T. Seetharamiah was not aware of the order passed by the Court on 24th March 1949 directing the petitioner-defendant to file the particulars by 17th May 1949. It was the duty of Sri Seetharamiah to have informed the petitioner- defendant that the Court had ordered the petitioner- defendant to file the particulars and that he should file the same by 17th May 1949. No doubt according to Sri Seetharamiah he was very busy preparing for his tour in Northern India, and that be did not write to the petitioner. I do not know whether it was correct on his part in having omitted to inform the petitioner about this.... According to Sri Seetharamiah he had informed Sri S.G. Sundara Rao to look after his oases. But Sri S.G. Sundera Rao is positive that no particular instructions had been given to him to do any particular thing in any particular case of Sri Seetharamiah. Sri Seetharamiah had given only a general and vague instruction to look after his work."

4. A lawyer is certainly entitled to have a tour in North India, like any one else and a busy lawyer is possibly in need of one at least sometime. This does not mean he can do so at the cost of those who pay him for looking after their work. It does not appear from the evidence of Sri Seetharamiah that he told Sri Sundera Rao what he had to do in each case or that he entrusted the files of all the cases to him. Apart from his failure to make proper arrangements, there is a certain amount of inexcusable carelessness and indifference in what he did before he left for his tour. If he had only been attending to his cases as a lawyer is expected to attend, he would have noticed that the case was posted for particulars. His client was living in Trichinopoly and could not be expected to be in close touch with what was going on, except by a communication from his lawyer. Sri Seetharamiah was careless in not noticing that the case was posted for particulars in case he did not notice it. His diary and his office cover of this case showing what note he had made on tab march 1949 are not produced and it is likely that he knew that the case was posted for particulars and he failed in his duty in not writing to his client to come and furnish the particulars called for by Court. It is likely that, as his mind was full of the intended tour, he failed to write to his client that the ease was posted for particulars. His intention of going to Northern India should have made him very careful. Such negligence and indifference as he has shown in this case makes a lawyer unfit to be entrusted with the fate of litigants and if we do not intend to take any more notice of this conduct, it is because we hope that this is not the usual way, the gentleman is looking after the work of his clients and that the unfortunate negligence was due to his being busy preparing to go on a North India Tour.

5. If the advocate whom he had asked to look after his work had been entrusted with the records of this case, his failure to attend to appear on 25th April 1919 is responsible for the ex parte decree being passed. The suit was for recovery of certain items of money which the plaintiff as Manager of an estate of an absentee landlord spent for the estate. In the very nature of things the defendant could not be expected to know what was spent by the plaintiff. He had denied that plaintiff was Manager and had put the plaintiff to the proof of each of the hand-loans alleged to have been advanced for the upkeep of the estate. The defendants presence was not necessary and if only his advocate had appeared and brought the matter to the notice of the Court there could have been no ex parte decree. It must however be stated that it is in evidence that Sri T. Seetharamiah had entrusted Sri Sundar Rao with some statements to be filed in some cases and there is nothing to show that Sri Sunder Rao had been entrusted with the records of all the cases of Sri Seetharamiah, including the one under consideration.

6. The next phase of the case is the application to set aside the ex parte decree. Sri Ananta Subba Rao, younger brother of Sri T. Seetharamiah, wrote to the defendant to sign the vakalath sent by him in order that he might apply to get the ex parte decree set aside. He, however, sent a wrong vakalath form bearing the name of his brother Sri Krishnappa and his father Sri Ramachar. Defendant, a resident of Trichinopoly is evidently illiterate in Kanarese language in which the vakalath was printed. He signed it before a First Class Magistrate at Trichinopoly who affixed his signature to it. Evidently the Magistrate knew that the vakalath contains the necessary certificate and be had merely to sign in the place marked. After it was received Sri Anatasubba Rao had merely to strike out only the words indicating acceptance of the vakalath as these words were also above the Magistrates signature. He committed the mistake of striking out also the certificate printed in the form to indicate that the person before whom the vakalath was signed knew the person. This is clear from the fact that the ink in which it has been struck off is the one in which the advocate has affixed his signature. In fact his initials have been put in, to indicate that it is he who struck off the certificate. Then again he should have known that a petition had to be signed and verified by the petitioner. He drafted a petition for setting aside the ex parte decree, signed it and filed it along with an affidavit which, it appears, it is usual to file along with petition to set aside an ex parte decree.

7. The defects in the petition and the Vakalath were made much of at the time of arguments in the lower Court and the result is that the lower Court has devoted the major portion of its order to show how Sri Ananthsubba Rao is not the person authorised under the vakalath to file the petition to set aside the ex parte decree and bow the petition itself not duly signed and verified by the petitioner is not maintainable.

8. The pleader Sri Ananthasubba Rao is evidently an inexperienced junior and the defects do not deserve therefore any further notice. We do not think that such defects should result in justice being refused to the parties for the fault of their lawyer. As regards the vakalath it must be remembered that Sri T. Ananthasubba Rao sent it to the defendant-appellant as sworn to by him and a letter had been written by him. The defendant-appellant signed it in order to authorise by it Sri Ananthasubba Rao, who had sent the vakalath form to him for that purpose. The First Class Magistrate before whom he affixed his signature must have known that the vakalath contained the necessary certificate. Sri T. Ananthasubba Raos striking off the certificate, and his failure to write his own name to indicate that he is the parson engaged by the party are defeats which are not fatal. There is the hard fast that, as is clear by his evidence, it is he who was engaged by the defendant and it is with that intention that the defendant affixed his signature to the vakalath. Sri T. Ananthasubba Rao accepted it when he affixed his signature. As against the decision in Muhamad Ali Khan v. Jasram, AIR (1) 1914 ALL. 536: (36 ALL.46), we prefer to follow the later decision of the same Court in Ram Sarup v. Bhagwati Prasad, AIR (23) 1936 ALL.636: (58 ALL.912) in which it is observed as follows: "It was apparently by an error that the name of another vakil remained in the document. Under O.3, R.4 (1) is provided that no pleader shall act in any case unless he has been appointed for the purpose by such person by a document in writing and signed by such person..... The question is whether actually this vakil was appointed by the appellant. The document in question was signed by the appellant and we are satisfied that he intended to appoint the vakil who made the application. The mere mistake that the name of some other vakil remained in the body of the document does not make any difference. In actual fact the vakil in question has been acting throughout for the appellant and it is a mere quibble to hold, as the learned Subordinate Judge has held, that he was not entitled to make the application. There have been recent pronouncements of this Court to the effect that where the vakil is actually intended by a party to act on his behalf and does so act, formal defects of this nature are of no importance. This was the main ground on which the lower Court has held against the appellant. We hold that the decision of the lower Court was wrong." Again as observed in Maharashtraya Jnankosh Mandal Ltd. v. Bijjulal, AIR (10) 1923 Nag. 182: (19 N.L.R. 36): "where a party delivers a duly signed vakalatnama to a pleader without putting his name in the body of the vakalatnama he impliedly authorises him to till in the details, and if, the pleader simultaneously accepts the vahalatnanta and signs his name in token of acceptance, the provisions of the law have been sufficiently complied with, and the vakalatnama is valid, though the name of the pleader does not appear after the word Mr. in the printed form. Where a vakalatnama did not contain the name of the pleader after the word Mr. in the printed form but bore the signature of the party as well as that of the pleader. Held that the ambiguity in the document was not a patent ambiguity such that S.93, Evidence Act would exclude evidence to explain it, but was a latent ambiguity which may be cleared up by extrinsic evidence under S.96 of the same act." As observed in Mulchand v. Radhabai, AIR (10) 1923 Nag. 281: (73 I.C. 251): "where a vakalatnama was signed by plaintiff and accepted by the pleader, the mere fact that, in the body of vakalatnama, the name of other pleader appeared in print and the name of the pleader actually employed was absent altogether does not invalidate it."

9. As regards the defects in the petition which has neither been verified or signed by the petitioner it has to be observed that such technical defects cannot again defeat the ends of justice. As observed in 7 Mys. L.J. 149: "Omission on the part of the petitioners to sign and verify their application for setting aside an order of dismissal of a suit was a mere irregularity which did not affect the merits of the case, and when the defect was pointed out the lower Court should have given them time to rectify it." Again as observed in 7 Mys. L.J. 151: "The mere fact that the application was not signed and verified by a party at the time it was presented to the Court will not necessarily make the application absolutely void. It is a mere irregularity which can subsequently be cured. It will not affect the merits of the case or the jurisdiction of the Court." I might add in this case that no objections were taken specifically on those points in the objection statement filed by the respondents and the lower Court should not have allowed the witnesses to be cross-examined on the point in the absence of such objections. If the respondent became aware of those defects at late stage, he should have obtained permission to amend his statement by adding these objections. If this had been done, the petitioner would have had an opportunity to apply for permission to rectify the mistake. Moreover, an affidavit of the petitioner bearing his signature is filed with the petition and could be read as part of the petition; the defects referred to above might be taken as cured.

10. A more important point not considered in the lower Court arises for consideration. This cannot strictly be a ease that falls under O.9, R.13. That rule enables the Court to set aside an ex parte decree, if the defendant satisfies the Court that the summons was not duly served or that he was prevented from sufficient cause from appearing when the suit was called on for hearing. This is not a case in which the defendant was not duly served. This cannot also be a case in which the defendant was prevented by any cause from appearing before Court. That is possible only when the defendant would have come to Court but for the prevention. In this case the defendant did not even think of going to the Court on the date on which there was an ex parte decree. He had filed his statement and the case had been posted for reply statement. He did not know that any particulars were call. ed for, the particulars called for were such that his lawyer alone could have pointed out that they had been furnished in the statement already filed in the case. He did not know that his lawyer had gone on a long tour in North India or that he had made perfunctory arrangements for the progress of his cases. He could have had no idea of coming all the way from Trichinopoly to Chikmagalur. How can it be said that he was prevented from coming to Court? Order 9, R.13 is, therefore, not applicable. It is a clear case in which by his advocates mistake the idea of going to Court did not even strike him. The only other section to be thought of is S.151, Civil P.C. As observed in 31 Mys. C.C.R. 161: "A Court has no power to act under S.151, Civil P.C., when a remedy is specifically provided for in the Code itself. A party who has failed to avail himself of a remedy provided by law cannot invoke the help of S.151. But where there is a doubt or difficulty in applying other provisions of the Code to any particular case, or where the Code is silent, the Court may apply the provisions of S. 151, to meet the ends of Justice." This decision was followed with approval in 37 Mys. H.C.R. 399. in which it was observed: "Section 151, Civil P.C., does not confer a new poser in the Court but makes a statutory recognition of the inherent powers of the Court to do certain things ex debito justitice. It was open to the Munsiff in the present case to have treated the second ex parte decree passed on 5th October 1939 as inoperative and granted the defendants application."

11. Though there does not appear to be any doubt, so far as Mysore is concerned, that when an application to set aside an ex parte decree comes within the scope of O.9, R.13, Civil P.C., the only provision under which relief can be given is that rule and not S.151, Civil P.C. It is equally clear that the Court has power under S.151, Civil P.C., to set aside in proper cases ex parte decrees when the application do not fall within the scope of O.9, R.13. As regards the decisions outside Mysore State, the applicability of S.151, Civil P.C., to such cases is consistently recognized in the decisions of the High Court of Bombay, while there appears to be some inconsistency in the opinion of some of the other High Courts. When the decisions are examined carefully. it will be noticed, however, that the view taken is fairly uniform, and while relief is given under S.151, when the application is one outside the scope of O.9. R.13, Civil P.C., no relief is given under that Section when the application to set aside the ex parte decree is one within the scope of O.9, B.13, Civil P.C.

12. In considering this aspect of the matter, one has to study carefully the wording of Rs.9 and 13 of O.9. It might generally be taken, that, as observed in U Aung Gyi v. Govt. of Burma, 189 I.C. 338 at p.340: (AIR (27) 1940 Rang. 162 F.B.), the principles that govern a case under O.9, R.9, Civil P.C. are the same as those that apply to the setting aside of an ex parte decree under O.9, R.13. An ex parte decree under O.9, R. 13 with which we are concerned in this case could only be set aside, if the petitioner proves that he was not served or that he was prevented by sufficient cause from appearing before Court on the date of hearing. Before an act such as that of an appearance of a party could be prevented, he must intend to appear and his appearance must have been prevented by some cause. If a Court clearly had given a wrong date to a party inadvertently or dishonestly, can it be said that the party thought of appearing on the date of hearing and that something prevented him from appearing before Court? Unless the party proves that he intended to come to Court and that he was prevented from sufficient cause from doing so the ex parte decision cannot be set aside. It has to be remembered that as held in 31 Mys, C.C.R. 161, it is a well recognised principle of law that "A Court has no power to act under S.151, Civil P.C., when a remedy is specifically provided for in the Code itself. A party who has failed to avail himself of a remedy provided by law cannot invoke the help of S.151." If, therefore, a party files the application under O.9, R.13, stating that he was prevented by sufficient cause from appearing before Court on the hearing date, and fails to prove his allegations, relief cannot be given to him under S.151, Civil P.C. The most important decision on the point is the Full Bench decision reported in Neelaveni v. M. Narayana Reddi, 43 Mad. 94 (AIR (7) 1920 Mad. 640 F.B.). The facts of the case as set out in the order of reference are as follows: "An ex parte decree was passel in the suit. The defendant applied to have it set aside under O.9, R.13, Civil P.C., the Munsiff found that the allegations in the affidavit were not true. In fact his finding would not have enabled him to set aside the decree under R.13. He however held that as the amount involved was heavy and as the person who stood surety for the defendant on a previous occasion refused to continue to be a surety, the decree could be set aside." This is a clear case which fell within the scope of O.9, R.13, and merely because the defendant would suffer a heavy loss, it cannot be said that in spite of his failure to prove that he was prevented by sufficient cause to appear before Court, the Court has power to restore the suit under S.151, Civil P.C. Similarly, in Manikam Pillai v. Mahudam Pathumal, AIR (12) 1925 mad. 209: (85 I.C. 499), "where there was an application for setting aside the dismissal of the Butt for default and where the lower Court held that the grounds alleged are insufficient to set aside the order, but as a matter of grace, taking into consideration that the suit was nearly for Rs.10,000 and the plaintif was a gosha lady and had recently lost her husband set aside the order of dismissal," it was held that "Order 9, R.9, gives no power to Court to set aside an ex parte order of dismissal as a matter of grace; nor has the Court any inherent power to do so." In the Full Bench decision of the Rangoon High Court reported in U Aung Gyi v. Govt. of Burma, 189 I.C. 338: (AIR (27) 1940 Rang. 162 F.B.), it is clear from the judgment of Roberts C.J. that the facts of the case are as follows: "The rule says that where a suit is dismissed for want of appearance on the part of the plaintiff, the Court shall upon his application to set the dismissal aside, consider whether there was sufficient cause for non-appearance when the suit was called on for hearing. The learned Subordinate Judge addresses himself to this issue, but has refrained from expressing a definite conclusion upon it. He thought that even if no sufficient cause is shown that the Court had inherent powers to restore it, apart, from the provisions of the rule, provided there was just and reasonable cause for doing so." It is, therefore, a clear case which fell within the scope of O.9, R.9, and it cannot be said that S.151 could have been applied. In that case, it was not disputed that "action under inherent powers of the Court is applicable to those instances in which no provision is made by the Code of Civil Procedure for relief in special set of circumstances." In Ram Mandar v. Mandoo Lal, AIR (14) 1927 Pat. 369: (103 I.C. 620) it was rightly observed that "if a suit dismissed under O.9, R.3, cannot be restored under R.4, for want of sufficient cause for nonappearance, recourse cannot be had to S.151 to restore the same." It was also held in Serajul Hague v. Sashim Ali, 39 C.W.N. 894 that "after finding, on an application" under O.9, It. 13, Civil P.C. that sufficient cause for non-appearance had not been proved, the Court cannot properly restore the suit under other grounds purporting to act under S.15, Civil P.C. As observed in that case where there is an express provision for dealing with a certain matter it is not always the case that on failure of such provision, inherent powers of the Court could be invoked. In A.H. Ghaznavi v. Gurcharan Singh, AIR (24) 1937 ALL. 691: (172 I.C. 72), the facts are as follows: "On the materials in the shape of affidavits placed before the trial Court the conclusion at which that Court arrived was that if the applicants were preoccupied with other business and could not attend Court an intimation ought to have been given in time to counsel to apply for adjournment and that there was nothing from which one could say that information regarding the date fixed for hearing was not received by counsel or by the parties in proper time." An examination of the above decisions has made it clear that they are all cases which come within the scope of O.9, R.13, and the application of S.151, Civil P.C. could not have been even thought of.

13. At the same time, it is also to be noticed that these cases have disapproved of the decisions which have held that ex parte decrees could be set aside under S. 151, Civil P.C. This is possibly due to the fact that though the decisions which have applied S.151, Civil P.C. to set aside ex parte decisions are cases in which the applications to set aside the orders of ex parte disposals did not fall within the scope of O.9, the opinion has been expressed in such general terms that it looks as if they are authorities for setting aside ex parte decrees under S.151, even when allegations made in the petitions come under O.9, R.9 or 13, and these allegations are not proved. In fact there are some cases which have gone to the length of holding that relief could be given under S.151, Civil P.C. even when the application falls under O.9, R.13, and the allegations are not proved. For instance, in the case reported in Ram Narain v. Ramdhan Singh, AIR (11) 1924 Pat.274: (72 I.C. 668) the following observations are found: "Now the Munsiff, although he did not find that there was sufficient cause for the plaintiffs non-appearance which would have required him to restore the suit, does not appear to have considered whether this was not a case in which to exercise his inherent powers. That there is such a power in the Court has been repeatedly held. See Bilasirai v. Cursondas, 44 Bom. 82:, (AIR (7) 1920 Bom. 337) and Somayya v. Subbamma, 26 Mad. 599." As observed in the decision of this Court already referred to and as observed in Serajul Haque v. Kashim Ali, 39 C.W.N. 894, after finding on an application under O.9, R.13, Civil P.C., that sufficient cause for non-appearance had not been proved, the Court cannot properly restore the suit on other grounds, purporting to act under S.151, Civil P.C. It may be stated with respect that the decisions that go to the length of stating that relief can be given even when the application falls under O.9, R.13, and the Court finds it not possible to give relief, on the allegations being not proved, are not consistent with the well recognized rule that where there is an express provision in the Code for dealing with a certain matter it is not always the case that on failure of such provision inherent powers of the Court should be invoked.

14. There are decisions of the Bombay High Court, which have uniformly held that relief can be given in setting aside ex parte decrees in proper cases under S.151, Civil P.C. As there is no divergence of opinion in that Court, it is not necessary to refer to the cases of that Court. As regards cases which justify the application of S.151, Civil P.C., for setting aside ex parte decree in certain cases the best decision that could be thought of is the decision in Somayya v. Sabbamma, 26 Mad. 599, that being a decision which has been relied on frequently to support an application of S.151, Civil P.C., in cases of this kind. It has however been dissented from in the later Full Bench case of the Madras High Court, previously referred to. The facts of the ease which led to the decision in Somayya v. Subbamma, 26 mad. 599 are stated to be as follows: "On Civ. Revn. Petn. No. 123 of 1902 coming on for hearing before the High Court on 13th August 1902 and the vakil for the petitioner representating that he was not furnished with funds to purchase printed papers and the petitioner himself not appearing in person, the petition was dismissed. Subsequently, the petitioner alleged by affidavit that, being informed by his Pleader at Ellore that he (petitioner) should furnish necessary funds to his vakil at Madras with regard to the above petition, he immediately sent money direct to the vakil at Madras which reached him on 15th August 1902 (two days after the dismissal of the petition). The petitioner further alleged that he lived at an out-of-the way place, where the delivery of letters was not regular and consequently the vakil at Madras got the money-order and instructions late. The respondents vakil contended that the facts disclosed in the petitioners affidavit, or otherwise ascertained on reference to the record did not establish that the petitioner or his vakil was prevented from any sufficient cause from attending when the petition was called on for hearing and, that being so, the Court had no discretion to restore the petition to file for any other cause". This is clearly a case, as stated by the respondents vakil, that cannot come within the scope of R.9 or 13 of O.9. The question was whether the ex parte disposal can be set aside under S.151, Civil P.C. Bhashyam Ayyangar J. observed as follows: "No doubt statutory enactments, although expressed in affirmative language, may sometimes be construed as having a negative implied; but such implication must be a necessary and reasonable one. There is nothing in any of the above Sections of the Code to imply that the application for restoration cannot be granted unless there was sufficient cause which prevented the appearance though if there was such a cause it is made obligatory on the Courts in the case of original suits to set aside the order of dismissal or decree passed ex parte as the case may be. Such a narrow construction of the Sections would lead to most startling results and serious consequences which certainly could not have been intended by the legislature. A suit may be dismissed for default for appearance because, in the opinion of the Judge the vakalat authorising the vakil to appear for the absent party is invalid or has been exhausted or the vakil is not entitled to practise in his Court, or the person who appears as plaintiff or defendant in the case is not the real party but personates such party. There can be no appeal against such an order Gilkinson v. Subrantania Ayyar, 22 Mad. 221, and a revision petition under S.622, Civil P.C., can rarely, if ever, be of any avail, nor can a review be applied for to the successor of the Judge who passed the order except on the ground of the discovery of new and important matter or evidence (S.624, Civil P.C.); and, if an application for review be made to the Judge who passed the order but is rejected by him or his successor, there can be no appeal against the order so rejecting it... Besides the instances already referred to and similar ones, there may be cases in which, without any default or blame on the part of a suitor, the suit or appeal may have been dismissed for default of appearance of his vakil, next friend or guardian ad litem, as the case may be, and the non-appearance of such vakil, next friend or guardian may be due to their negligence or they may fail to prove that they were prevented by sufficient cause from appearing when the case was called on. It would be impossible to lay down a hard and fast rule that a party who, under the law, can engage as his pleader only a person who has been enrolled as a pleader by the Court or that an infant who can appear only by a next friend or a guardian ad liters appointed by the Court must necessarily suffer for the non-appearance of his Pleader next friend or guardian and seek his redress, if any, only against him. It may be that the party who has thus suffered is only able to obtain a decree for nominal damages or a fruitless decree for substantial and adequate damages against such pleader, next friend or guardian, and in the majority of cases it will be impracticable to establish before the Court in which he sues for damages, which may happen to be a Court of Small Causes that he could ultimately have succeeded in the suit or appeal which was pending in the High Court or some other tribunal and which has beau dismissed for default. And in a large class of suits in which the claim is not a mere pecuniary one, compensation by way of damages will be no remedy at all. The Courts have sufficient disciplinary jurisdiction over Pleaders as such, as well as over next friends and guardians ad-litsm of infants, and ample power to subject parties to terms as to costs when relieving them on reasonable and proper grounds from the serious and in some cases irreparable consequences of refusing to restore to file cases which have been dismissed for default or in which decrees were passed ex-parte. The distinction is that when appearance was prevented by a sufficient cause the Court has no discretion in the matter under the Code and must restore the ease to file whatever may prima facie be the merits of the suit or the defence thereto; whereas in other cases when there may be other just and reasonable cause for restoring a case to file the merits of the applicants case will form a very important element in the exercise by the Court of its judicial discretion". It will be noticed that in this case all the reasons are marshalled for the relief being given under S.151, Civil P.C. by setting aside orders of ex parte disposals in cases in which a party has, for being absent, good reasons other than those contemplated under O.9, Rr.9 and 13. It is no doubt true that the opinion of Bhashyam J. has been expressed in such general terms that it looks as though he is of opinion that relief can be given even in oases that come within O. 9 R. 13, and it is this aspect of the matter that was possibly responsible for this decision being overruled by the later Full Bench case of the Madras High Court, which dealt with a case in which allegations which fell within the scope of O.9, R.13 were not proved. All the same the soundness of the view taken by Bhashyam J. in giving relief under S.151 for cases that do not come within the scope of O.9, R.9 or 13 cannot be doubted, and this is also in accordance with the decision of this Court already referred to.

15. As observed in Abdullabhai, v. Isabhai

141 I.C. 402: (AIR (19) 1932 Bom. 634): "Where the defendants are present in Court when the case is called, the mere fact that their counsel are not present by reason of their being then engaged in other Courts in the same building is not a sufficient cause within the meaning of O.19, R.3, Civil P.C. to set aside a decree passed ex parte in the case. But the Court may, under its inherent jurisdiction, restore the suit the terms upon which the Judge may do so being discretionary." As observed in Sorabji Rustomji v. Ramji Lal, 80 I.C. 237: (AIR (11) 1924 Bom. 392): "The mere fact that a party or his Pleader has arrived in Court after the proper hour when the suit has been dispossed of ex parte is no reason whatever why the suit should net be restored to the board and the case heard on its merits, the Court imposing such conditions on the defaulting party as might meet the justice of the case." It is observed in S. N. Banerjee v. H. S. Suhrawardy, AIR (15) 1928 Cal. 772: (106 I.C. 91), that where there is even an element of negligence, the Court on the original side may restore the suit upon proper terms. In Maung Saw v. Ma Bwin Byu, 95 I.C. 521: (AIR (13) 1026 Rang. 109) an appeal which was 17th on the list for the day was, owing to some extraordinary circumstances, called at 12-30 P. M. much earlier than the appellants advocate had anticipated, and was dismissed in default. On an application for restoration, it was held "that the case was one in which, whether there was sufficient cause or not, the Court should exercise its inherent jurisdiction to restore the case for the ends of justice, provided the respondent was protected in the matter of costs." In Adit Prasad v. Ramharakh Ahir, 4 Pat. 180: (AIR (12) 1925 Pat. 435), it was observed: "Where a litigant handed over to his Pleader the balance of the court-fee due on a plaint and the Pleaders clerk, to whom the money was entrusted to be paid into Court, misappropriated the same and filed bogus applications for time to pay the deficit court- fee with the result that the Court ultimately rejected the plaint held, that after having paid the money, to the Pleader who was a duly constituted agent and officer of the Court under the Legal Practitioners Act and the rules of the High Court, and whose duty it was to deposit it in Court, the reponsibility of..... the Plaintiff ceased until he was informed of the default......where some other provisions of the Civil Procedure Code prohibits a thing from being done S. 151 does not empower the Court to direct such thing to be done. But where there is doubt and difficulty in applying the other provisions of the Code to the facts of a particular case there is no bar to S. 151, being invoked." The principles laid down in these decisions have been clearly followed in 31 Mys. C.C.R. previously referred to and it is held: "A Court has no power to act under S. 151, Civil P.C., when a remedy is specifically provided for in the Code itself. A party who has failed to avail himself of a remedy provided by law cannot invoke the help of S. 151. But where there is doubt or difficulty in applying other provisions of the Code to any particular case, or where the Code is silent, the Court may apply the provisions of S. 151, to meet the ends of justice."

16. As to the argument that no ex parte decree can be set aside except in circumstances mentioned under O.9, R.13, Civil P.C., as this provision which provides for ex parte decrees being set aside does not provide for such a case, it has to be stated that the correct way of looking at such cases would be that they are cases not provided for under the Code and in proper cases relief can be given under S.151, Civil P.C.

17. That when relief can be given under certain provisions of Civil Procedure Code, the same relief can be given under S.151, Civil P.C. in cases that fall outside the scope of those provisions is clear by the following instances of cases mentioned in the commentary of that section in Mullas Civil Procedure Code "(g) to allow a defence in formapauperis;

(i) to remand a case to which neither O.41, R. 23, nor O.41, R.25, applies; (1) to apply the principles of res judicata to cases not falling within S.11 of the Code; (p) to stay proceedings pursuant to its own order in view of an intended appeal; (u) to restore a suit dismissed for default in cases not provided for by O.9, R.9; (z) to set aside an order of dismissal made under O.9, R.8, for non-appearance of the plaintiff, when the non-appearance was owing to the plaintiffs death and the fact of the plaintiffs death was not brought to the notice of the Court dismissing the suit; (jj) to review an order of dismissal of an application under O.9, R.9; (mm) to stay a suit even if it does not come within S.10 of the Code." That an appellate Court can remand a suit for fresh disposal under S.151, Civil P.C., as distinct from its power to do so under O.41, R. 23 or 25 is recognized in 39 Mys. C.C.R.573. That apart from its power to set aside sale under O.21, R.92, a Court has inherent power to set aside a sale is recognized in 31 Mys. C.C.R. 47. 42 Mys. H C.C.R.545 and 42 Mys. H.C.R. 707, while it is made equally clear in 40 Mys. H.C.R. 187 that "when the judgment-debtors application is one falling within R.90, of O.21, Civil P.C., S.151, to set aside the sale is by its scope and intention clearly inapplicable." Similarly, in 34 MYS, C, C.R. 122. "When an appeal was dismissed under O.51, R.18, for non-payment of process-fee, an application for re-admission of the appeal under O.41, R.19, was presented more than 30 days after the dismissal, held that the application is barred under Art. 168, and the Court had no jurisdiction to readmit the appeal after the period of limitation. Section 151, cannot be construed as empowering the Court to act in defiance of the express provisions of Limitation Act." Section 151, Civil P.C., could not be applied as the application was one within the scope of O.41, R.19, corresponding to O.9, R.13. Miller C. J. did not in the case reported in 26 MYS C.C.R. 218, hesitate to confirm the order restoring a suit dismissed for default of appearance under S.151, Civil P.C., relying on the Privy Council Case, Debi Bukhsh Singh v. Habib Shah, 35 ALL. 331: (40 I.A. 151) already referred to, as it was found that both parties had taken a wrong date presumably owing to something done or said by the Judge or a Clerk by mistake and the case was, therefore, one which fell outside the scope of O.9, Civil P.C. 18.The result is that when an application is filed to set aside an ex parte decree on the ground that the petitioner was not duly served with summons or that he was prevented from sufficient cause from appearing before Court the ex parte decree can be set aside only under O.9, R.13, on these allegations being proved; relief cannot be given in such cases under S.151, on the ground of hardship when the allegations are not proved.If an application is filed making allegations that do not come within the purview of O.9, 11.13, nothing comes in the way of relief being given under S.151, Civil P.C. by setting aside ex parte decrees in proper cases.

19. It has already been shown in this case that this is a case which does not come within the provisions of O.9, R. 13, Civil P.C. and that the ex parte decree has to be set aside under S.151, Civil P.C., as it was passed for no fault of the defendant. At the same time to avoid any prejudice that might be caused to plaintiff by setting aside the ex parte decree on account of the negligence of the defendants counsel, it is ordered that this misc. appeal be allowed, the order of the lower Court and the ex parte decree be set aside on condition that the entire amount claimed in the plaint is deposited by the defendant in the Subordinate Judges Court within two months from this date and that this misc. appeal against the order dismissing the application of the petitioner to set aside the ex parte decree be dismissed in case he fails to do so. Bath parties to bear their own costs throughout. Order accordingly. AIR (37) 1950 MYSORE 77 [C.N. 23.] "Sannamma v. Earappa" MYSORE HIGH COURT Coram : 2 MEDAPA, C. J. AND MALLAPPA, J. ( Division Bench ) Sannamma - Plaintiff - Appellant v. Earappa minor by guardian ad litem mother Earamma -Defendant-Respondent. Regular Appeal No.206 of 1917-1948, D/- 20 -3 -1950, against the decree of Sub-J., Shimoga, in Original Suit No.21 of 1946-47. (A) Mysore Hindu Law Womens Rights Act (10 of 1933), S.9(2)(a), S.10(g) - HINDU LAW - ADOPTION - Stridhan Adoption -Divesting-Hindu law-Adoption. Where the sole surviving coparcener dies without leaving wife or children his mother inherits the estate as his heir and the property becomes her stridhan property and a subsequent adoption made by her to her husband cannot divest it. (Para 4) (B) HINDU LAW - ADOPTION - Hindu law - Adoption-Power of women. An adoption by a woman to herself so as to enable the adopted son to inherit her stridhan properties is unknown to Hindu law. (Para 7) (C) Specific Relief Act (1 of 1877), S.42 - DECLARATION OF TITLE - POSSESSION - Possession with third party. Where a third person is in possession of the suit properties not on behalf of the real owner but on behalf of the defendant, the plaintiff cannot file a suit for bare declaration of title without at the same time praying for possession. (Paras 12, 13) Annotation: (46-Man) Specific Relief Act S.42 N. 16 Judgement Mallappa, J.-This is an appeal against the judgment in O.S.21 of 1946-47 on the file of the Subordinate Judge, Shimoga, dismissing the plaintiff-appellants suit for declaration that the plaintiff is the owner of the plaint schedule properties and that the defendant is not the adopted son of her deceased father.

2. The properties in dispute are, according to the plaint, ancestral properties of plaintiff Rudrammas father Shivappa Gowda. He and his wife Basamma took Rudrappa in adoption, but he predeceased Shivappa Gowda who thereon took Isvarappa in adoption. The latter survived Shivappa Gowda, but died issueless soon after his fathers death. Basamma, widow of Shivappa Gowda, is stated to have taken Errappa the defendant in adoption and it is the truth and validity of this adoption that the plaintiff disputes. The defendant-respondent has asserted that he is the adopted son of Isvarappa (sic) and that he is the owner of the properties in dispute and pleaded that the suit for declaration of plaintiffs title is bad as plaintiff is not in possession of the properties and has not filed the suit for possession of the same.

3. There is hardly any doubt that Basamma took the defendant in adoption. The adoption is evidenced by a registered document and the writer and attestors have sworn that the adoption ceremony took place. There is no reason to doubt their evidence. Apart from the presumption under S.9 (1), Hindu Law Womens Rights Act (10 of 1933) that the widow had the authority of her husband to take the boy in adoption, it is likely that he authorised her to take in adoption a third boy as Rudrappa the first adopted eon had died and the second adopted son who was sickly was expected to share the same fate. There is, therefore, sufficient material for upholding the decision of the lower Court that the widow had authority of the husband to adopt. The next point that arises for consideration is whether there is any property of Shivappa Gowda to which his adopted son can lay claim. Isvarappa, the adopted son of Shivappa Gowda, survived the latter and thus became entitled to the entire estate of the joint family, after the death of his father. After Isvarappas death his mother Basamma inherited them. Basamma took the defendant in adoption to her husband and the point for consideration is whether the adoption divests the estate vested in the heir of the last surviving coparcener.

4. It was held by the Full Bench decision of this High Court reported in Chikkavva v. Chikkappa., 54 Mys. H.O.B. 12, following the Privy Council decision reported in Anant Bhikkappa v. Shankar Ramchandra, AIR (30) 1943 P.C. 196: (LL.B. (1944) gar. P.C. 28): "That,where, after the death of the last surviving coparoener in a joint Hindu family, the family pro. perty passes by inheritance to his heir and subsequently the widow of a predeceased coparcener makes an adoption in pursuance of an authority to adopt given to her by her husband, the adoption dates back to the death of the adoptive father and will have the effect of divesting the estate in the heir of the last surviving coparoener or any persons claiming through such heir and vesting the property in the adopted son subject to lawful alienations made in the meantime by the person who was entitled to hold the estate until the adoption." This divesting of the estate by adoption is in effect recognized in act 10 of 1933, S. 9 (2) (a) by making an exception which proves the rule, that an adoption has got the effect of divesting estate vested in the heir of the last surviving coparoener. After the death of Shivappa Gowda, the property belonged to the sole. surviving coparoener, Isvarappa his adopted son. On the death of Isvarappa, his adopted son, leaving no wife or children, his mother inherited the estate as his heir and the property became her Stridhana property, as Stridhana includes according to S.10 (g) of Act 10 of 1933 "Property taken by inheritance by a female from her husband or son except when there is a daughter or daughters son of the propositus alive at the time the property is so inherited". The adoption made by her would have divested her of this estate vested in her as the heir of her son Isvarappa, but for the fact that he died leaving no children and under 5. 10 (g) of Act 10 of 1933 it became her Stridhana property which an adoption cannot divest as stated in 9.9 (2) (a) of Act x Rol of 1933. To such a case the ruling of the Full Bench is not applicable, the effect of the Special enactment being to make it an exception to the general rule B.12 (1) of Act 10 of 1933 makes the children male and female heirs to their mothers properties and the plaintiff who is the daughter of Basamma would have been a hair to her estate after her death. It is, however, contended that the defendant became the owner of Basammas properties before her death under the document evidencing his adoption.

5. As regards the contention that a woman can take a child in adoption to herself so as to convey her properties to him as distinguished from an adoption to her self and her deceased husband, it has to be stated that no such adoption is recognised in Hindu law. The adoption of plaintiff in a case reported in 22 Mys. C.C. II, 194 was held to be invalid "on the ground that the person who made it was a female who had not been proved to be competent either by law or custum to make a valid adoption." That was the case of an old prostitute taking a girl in adoption. There is hardly any doubt that Hindu law does not conceive of an adoption to a woman. Why the idea of adopting children was conceived in ancient India throws a flood of light on the point.

i. e., there is no place for a man without a son is the saying in Aitereya Brahmana vii 3.1,

i.e., do not break the thread of progeny, was the injunction given in Taitherea Upanishad to students after they completed their studies. The reason that according to ancient Hindu conception a man is born with three debts and these debts must be discharged by him Taittareya Sametita V. 3. 10 5. The debt due to the sages is discharged by studying Veda as a Brahmachari, the debt due to the Gods is discharged by sacrifices and the debt due to man by the birth of a son. A man who has no sons has to suffer in a hell called Put and a son is called Puke as he delivers him from, that hell. is authority of Mann on the point (Ix-139). This explains the anxiety of the Hindu to have a son. Though according to the general rule the offering of funeral cake and inheriting the estate go together (Mann Ix, 142) the son should offer the funeral cake to the father even though he gets no property of his, is this saying in Vishnu XV. 43. Hence men who had no children of their own had to think of adopting methods of acquiring sons. Those who had daughters and no sons gave them in marriage on condition of begetting sons for them. As stated in Manu IX. 127, A man who has no eons may in this way appoint his daughter to beget a son for him stating that the son born to her should be his son for purposes of performance of his obsequies. Mann says that Daksha himself appointed his daughters to raise up sons for him. Mann and other authorities make it clear that a daughters son of this kind cannot claim the family name and estate of his natural father. The grandfather becomes his father and it is to him that he has to offer the funeral cake and inherit the estate: "Mann IX, 136) A man who had no sons or daughters could appoint his wife to beget to his younger brother, a son for him and this method of getting sons was called Niyoga. Even a sonless widow could beget a child to her husbands brother for her husband. There is a reference to this in the Rigveda passage:

10 M. 40, S. 2. The son so born was entitled to inherit the property of the husband of his mother like his own son as recognised by Manu in IX, 145: The next verse refers to a son born to a widow by this method, being entitled to get the entire property of her husband. The chief point that has to be stressed is that the son was regarded virtually as the son of his mothers husband and not as the son of his natural father and he had to offer funeral cake to the former and take his estate.

6. Twelve kinds of sons including a son born to the parents were recognized. The adopted son was the eighth and he belongs to him to whom his parents give: as stated in Vishnu XV, 18-19. The Niyoga was condemned even prior to Christian Era and Janaka is said to have discouraged it. As stated by Bruhaspati: Manu who refers to Niyoga has himself condemned it. The practice was discouraged by a number of restrictions and later on it was totally condemned in Kaliyuga. Adoption survived but the point that has an important bearing is that in all cases of substituted eons, they were as shown above, regarded as the sons of the men to whom they were given in adoption.

7. From the very conception of adoption as known to Hindu law, it is only to a man and his properties that a boy can be adopted. Adoption to a woman so as to enable the adopted son to inherit her streedhana properties is unknown to Hindu law. An unmarried woman cannot adopt at all. If a married woman or a widow can under certain restrictions take a boy in adoption, it is to her husband that she can do so and not to herself.

8. The restrictions imposed on women adopting a son even to their husbands also make it clear that the idea of women taking a son in adoption to herself could never have been conceived. Examination of the original texts may not be necessary in this case as that point does not directly arise for consideration in this case and it would be sufficient to give an extract of the opinion expressed by Westropp C. J. in Narayan Babaji v. Nana Monohar, 7 Bom. H.C.R. 153 in which the authorities on the point have been considered: "Recapitulating the Hindu authorities in highest repute here as to adoption by a wife. We find Manu and the Mitakehara silent as to adoption by any woman; Vasistha allowing adoption by a woman with the consent of her husband; Devanda Bhatta, reciting the text of Vasistha, and if our opinion be right. leaving that text uncontroverted and unexplained so far as it relates to a taking in adoption by a woman; Nanda Pandita reciting the same text, and admitting that a wife may, with the assent of her husband, adopt, but denying that widow can adopt at all, because she cannot, as he says, obtain the consent of her husband; and Nilakantha whose authority, amongst those who have actually written on the point stands highest here, also reciting the text of Vasistha, and requiring the order of command of the husband to the wife, but dispensing with It in the case of the widow, and substituting for it the consent of kinsmen."

9. Mayne in his treatise on Hindu law and Usage has stated: "It is hardly necessary to say that, as under the Hindu law, an adoption by a widow must always be to her husband and for his benefit; an adoption made by her to herself alone would not give the adopted child any right even after her death, to property inherited by her from her husband. Nor, indeed, to her own property, however, acquired, such an adoption being nowhere recognised as creating any new status, except in Mithila, under Kritrima system, and apparently in Pondicherry." The above observation was relied on in 15 mys. C.C.R. 83, and it was held that adoption by a step-mother is invalid. In 16 mys. C.C.R. 159 it was held that "According to the law of adoption prevailing in Southern India, a married woman who has a husband alive is not competent to take a son in adoption to herself. Such an adoption, except where the Kritrima form is allowed, is wholly void." In that case the following observations were made: "It is nowhere alleged in the written statement that the adoption was made by or to any one but the plaintiff herself. And even at the hearing of the second appeal before us, the case for the respondent-defendant was stated definitely to be that the adoption was the act of the plaintiff and not of her husband. There is no pretence that the adoption of the minor defendant (assuming it to be a fact) was in the Kritrima form, which requires, among other things, that the adoptee should be of an age to give his consent and which form moreover is at present obsolete except In Mithila. The parties here are Sivachars, bound by the ordinary law of adoption prevailing in Southern India, according to which it is not competent to a married vi omen who has a husband alive to take a son in adoption to herself. Such an adoption, except where the Kritrima form is allowed, would be wholly void." The contention, therefore that the defendant may be regarded as the son of Basamma and that he is entitled to her properties after her death cannot be accepted.

10. The deed executed by Basamma in favour of the defendant, however, not only recognizes that he was taken in adoption but also conveys to him all the right she had in the plaint schedule properties. The plaintiff cannot be said to have therefore any right to the plaint schedule properties after the death of her mother Basamma as the latter bad conveyed to defendant whatever right she had in them during her life time. Then again plaintiff was a party to the suit in O.S. 121 of 43-44 on the file of the Monsiff, Sagar. That was a suit filed by Gowramma, widow of Rudrappa the first adopted son of Basamma and their daughter Chitra. Plaintiff only claimed a right to the properties gifted to her by her father and did not raise any claim to the plaint schedule properties. The disputes between the parties were settled by a compromise to which the plaintiff is a party. Under these circumstances, it cannot be said that the plaintiff can re-agitate the matter again in this suit.

11. The last point for consideration is whether plaintiff who has filed this suit for declaration of title is in possession of the property. The evidence of plaintiff alone shows that one Somappa Gowda is in possession of the suit property and he has not given possession of the same to her inspite of her having pressed him to do so. It was however urged that when the property is in the possession of a third party a suit for mere declaration is sufficient. It is stated in the plaint that: "Somappa Gowda with the evil intention of creating rights in the schedule properties and to disturb the right and title of the illiterate and innocent plaintiff in the schedule properties has got up an adoption deed in favour of the defendant." It is clear therefore that Somappa Gowda is in possession of the property on behalf of defendant whose right be is setting up and his possession is hostile to the claim of the plaintiff. 12.It is no doubt true that when the property in dispute is in the possession of a third party suits can in some cases be filed for mere declaration of title but they are all cases in which the third party who is in possession is in possession of the property on behalf of real owner so that it could be said in cases in which plaintiff establishes his title, the person in possession has been in possession on his behalf. The facts of the cases reported in 16 Mys. C.C.R. 60 and 7 Mys. L.J. 43 disclose that they are oases for declaration of title to money deposited in Savings Banks. It was observed in 7 Mys, L.J. 43 that: "Where however the property in suit is In the custody of a third party, for example, a civil Court or the Court of Wards, and such third party merely holds the property as a trustee for the rightful owner, a person claiming to be the owner of such property may be entitled to maintain a suit for a bare declaration that he is the owner of such a property. In the present suit the Treasury Officer holding the Savings Bank deposit is not a party. The suit is between two rival claimants, each asserting that he is the owner entitled to the money in question. The Savings Bank merely holds the money to the credit of the rightful owner." Similarly in Harikishen Das v. Mt. Sundra Bibi, AIR (13) 1926 Oudh 43: (89 I.C. 424), it was observed as follows: "Where a certain property is in the custody of the Court which holds it not in its own right but in the right of the rightful owner a person claiming to be the owner of the property is entitled to maintain a suit for a declaration that he is the owner of the property." The case reported in Vedanayaga Mudaliar V.Vedammal, 27 Mad. 591, refers also to a case in which the property in dispute was in possession of a Court on behalf of rightful owner. In the case reported in Jagannath Gir v. Triguna Nand, 37 ALL. 185: (AIR (2) 1915 ALL. 104), the property was in the possession of Court of Wards. In all such oases, suits for declaration of title alone can be filed as it can be stated that the person in possession of the property in dis. puts is in possession on behalf of plaintiff in cases in which he is able to establish his title. In this case, however, Somappe, Gowda is in possession recognizing the title of defendant and on his behalf. His attitude to plaintiff is one of hostility. The plaintiff in such cases cannot file a suit for declaration of title without at the same time praying for possession of the property. In the case reported in 40 Mys. H.C.R. 277 the suit against Government was dismissed and the suit against the remaining defendant for mere declaration of title was held to be not maintainable, as the Government which had to be deemed a third party was in possession of the property recognizing the title of defendant and as it could not be said that the Government was in possession for plaintiff even if he established his title. 13.In this case, plaintiff is not in possession of the property and Somappa Gowda is in possession of it on behalf of defendant. The suit for declaration of title without praying for possession is not maintainable. The suit was rightly dismissed and this appeal stands dismissed with costs. (Advocates fee Rs.50). Appeal dismissed. AIR (37) 1950 MYSORE 81 [C.N. 24.] "Venkatarantana v. Veerappiah" MYSORE HIGH COURT Coram : 2 MEDAPA, C. J. AND BALAKRISHNAIYA, J. ( Division Bench ) Venkatarantana Jois - Defendant No. 3- Petitioner v. Shanbhog Veerappiah - Plaintiff -Respondent. Civil Revn. Petn. No. 88 of 1949-50, D/- 8 -8 -1950, against order of Munsiff, Hassan, D/- 17 -6 -1949. Mysore Agriculturists Relief Act (18 of 1928), S.3(1) and S.24 - DEBT RELIEF - OBJECT OF AN ACT - Debt Laws - Scope of S.3 (1)-All non-agriculturist executants of pronote, are not deemed to be agriculturists if any of the executants is an agriculturist-Section 3 has reference only to description and nature of suits and not to status of the parties to transaction, viz. whether all or any of them is agriculturist. (Para 2)

V. Krishna Murthy-for Petitioner. H. R. Ramanna-for Respondent. Judgement Medapa C., J.-The petitioner prays that the order, dated ]7th June 1949, passed by the Munsiff of Hassan in O. S. No. 658/47-48 on the file of his Court be revised. The suit was for the recovery of money due on a pronote executed by the petitioner and two others who have been impleaded as the co-defendants of the petitioner in the suit. The two co-defendants of the petitioner accepted the allegation of the plaintiff that they were agriculturists but the petitioner contended that he was not an agriculturist. The learned Munsiff, relying upon Se. 3 and 24, Mysore Agriculturists Relief Act, decided the issue against the petitioner (defendant 3) and held that he also was an agriculturist. Hence this petition. The Revision Judge, before whom this petition came up for hearing, has ordered the petition to be posted for a Bench as it involves an important question of law regarding the interpretation of S.3 and S.24, Mysore Agriculturists Relief Act.

2. The order of the learned Munsiff shows that he has relied entirely upon the interpretation of S.3 and S.24, Mysore Agriculturists Relief Act, to give the finding that defendant 3 is an agriculturist. The learned counsel for the petitioner contended that the interpretation of the learned Munsiff of S.3 and S.24, Mysore Agriculturists Relief Act, is not warranted by the language used in those sections. He submitted that the admissions of defendants 1 and 2 that they were agriculturists cannot in any way make the petitioner, who is a non-agriculturist, an agriculturist. The portion of S.3, cl. (i), Mysore Agriculturists Relief Act, relevant to the consideration of the question before us reads as follows: "3. The provisions of this Regulation shall apply to (i) suite in which the defendant or any one of the defendants is an agriculturist for the recovery of money alleged to be due to the plaintiff ...." These words show that the section has reference only to the description and nature of suits and has no reference to the status of the parties to a transaction, viz., whether all or any of them is an agriculturist. The section in the Act, which deals with the question whether and when a person can be deemed to be an agriculturist, is S.2 of the Act. That section reads as follows: "2. In construing this Regulation, unless there is something repugnant in the subject or context - First-Agriculturist shall be taken to mean a person who ordinarily engages in agriculture in the area to which this Regulation applies for the time being, provided that his yearly income from sources other than agriculture does not exceed Rs. 500, and that his aggregate income from all sources does not exceed Rs 1000. EXPLANATIONS (A) A person who is a female or minor member of the family of an agriculturist as above defined and who has, as such, a right either to be maintained by him or to participate in the family agricultural income shall be deemed to be an agriculturist for the purposes of this Regulation. (B) A person otherwise coming within the definition shall not be considered to be an agriculturist in reference to a certain transaction, unless he or the person through whom he claims was also an agriculturist, as hereby defined, at the time when the transaction took place. * * * * * Prima facie therefore a person has to satisfy the conditions in this section before he can be dubbed an agriculturist. It is clear that the petitioner, who states that he is an astrologer and a Vydik Brahmin does not satisfy the conditions referred to above. It is however urged on behalf of the counter petitioner that, inasmuch as S. 3 sets out "The provisions of this Regulation shall apply to- suits in which the defendant or any one of the defendants is an agriculturist for the recovery of money ..." and S. 21 reads: "In any suit of the description mentioned in S.3, cl. (i), for the recovery of money from a person who at the time when the transaction took place was an agriculturist, in any of the areas notified under Para. 2 of S.1, the following periods of limitation shall be deemed to be substituted for those prescribed in the second column of Sch.2 annexed to the Mysore Limitation Regulation (Italics are ours)." It follows that, if any one of the executants of a pronote is an agriculturist, then all the persons who joined him in executing the pronote must also be deemed to be agriculturists. This argument cannot be said to be entirely without force. The words in S. 3, cl. (i), viz., "the defendant or any one of the defendants is an agriculturist" taken along with the reference in S.24 to S.3, cl. (i) lend support to that contention A closer scrutiny of the words in the two sections and the scheme of the Act, however, are against the contention of the learned counsel for the counter petitioner. As already pointed out, the language of S.3 has reference only to the nature and description of the suit and has nothing to do with the status of the persons involved in the suit, viz., whether a person is or is not an agriculturist. It will be noticed that S.24, cl. (i), unlike cl. (i) of S.3, has reference only to: "a person who at the time when the transaction took place was an agriculturist." The use of the indefinite article a and the absence of words similar to those found in cl. (i) of S.3 such as-a person or persons or all or any of them was an agriculturist-strengthens the contention of the learned counsel for the petitioner that S.3 has no reference to the status of the parties. The words in S.3 (i), Mysore Agriculturists Relief Act: "the defendant or any one of the defendants is an agriculturist." and the absence of similar words in S.24 give point to this contention If it was the intention of the Legislature that all the executants of a pronote will be deemed to be agriculturists if any of them is an agriculturist, then that intention should and woul4 have been made clear by suitable words such as those already referred to. It may be useful in this connection to pursue the words seen in the proviso to S.24 as it seems to throw considerable light on the correctness of the respective contentions before us. The proviso reads: "Provided that nothing in this section shall-

(i) apply to a suit for the recovery of money from a person who is a surety merely of the principal debtor if the principal was not at the time when the transaction took place an agriculturist in any of the areas aforesaid ...." This proviso appears to make it clear that, in cases where the principal debtor is not an agriculturist but is a surety. then that fact will not enable the creditor to claim the extended period of limitation vouchsafed by the Mysore Agriculturists Relief Act. This circumstance lends colour to the argument that it was never the intention of the Legislature to confer upon a non-agriculturist debtor the benefit of the Mysore Agriculturist? Relief Act. We also think that it is not reasonable to hold that the status of a man can be deemed to have been altered merely because be helps or joins an agriculturist in borrowing money. The Act was meant to give relief to the agriculturist and one of the benefits so conferred is to extend the period within which an agriculturist debtor can pay his debt. It cannot be legitimately contended that this benefit was intended to be conferred on a non-agriculturist. Such an interpretation will have the effect of extending the scope of the Act which was not obviously the intention of the Legislature. It will be useful in this connection to refer to a decision of this Court reported in 51 Mys. H.C.R. 347, wherein it has been held that the word description in S. 24 in the expression-"in any suit of the description mentioned in S.3, cl. (i)," has reference only to the nature and description and not to the status of the parties For the foregoing reasons we are of the opinion that the contentions of the petitioner must be upheld.

3. It was submitted by the learned counsel for the respondent that, in the event of the petition being allowed, be may be given a chance to let in evidence in the lower Court to show that the petitioner is an agriculturist within the meaning of S. 2, Mysore Agriculturists Relief Act. The records do not show that the respondent, on whom the burden lay to prove that the petitioner is an agriculturist, was or was not given a chance to let in evidence to make good his allegation. If be has not had such a chance, the lower Court will give him and the petitioner a chance to adduce evidence.

4. Subject to the above condition, the petition is allowed with costs. Petition allowed. AIR (37) 1950 MYSORE 82 [C.N. 25.] "In re Ahamad" MYSORE HIGH COURT Coram : 2 RAMAIYA AND MALLAPPA, JJ. ( Division Bench ) In re Ahamad - Accused - Appellant. Criminal Appeal No. 27 and Cri. Referred Case No.11 of 1949-50, D/- 1 -8 -1950. (A) Evidence Act (1 of 1872), S.24 - CONFESSION - WORDS AND PHRASES - Accused-Meaning of. Even when a confession is made before a report was made to the police and before the person confessing was accused of an offence by others the confession must be regarded as one made by an accused. (Para 8) Annotation: Evid. Act S.24, N.1, 2. (B) Evidence Act (1 of 1872), S.24 - CONFESSION - Appears - Necessity of strict proof. Section 24 does not contemplate such strict proof, as is required by S. 3, for holding that the confession was caused by inducement, threat or promise. (Para 8) Annotation: Evidence Act, S.24, N. 12. (C) Evidence Act (1 of 1872), S.24 - CONFESSION - Confession whether due to inducement etc. The Court must in each case consider from the circumstances of that case to see whether the confession was due to inducement, threat or promise. (Para 9a) Annotation: Evidence Act, S. 24 N. 5. (D) Evidence Act (1 of 1872), S.24 - CONFESSION - Person in authority. Whatever authority a coffee planter may have in his estate, he has no such authority as can make the accused, a coolie in that estate. suppose that he could interfere in the criminal proceedings against him. (Para 13) Annotation: Evidence Act, S. 24, N. 8. (E) Evidence Act (1 of 1872), S.24 - CONFESSION - Retracted confession. It would be safe not to act on a retracted confession unless the confession is corroborated by other evidence circumstantial or otherwise. (Para 15) Annotation: Evidence Act, S. 24, N. 9. (F) Criminal P.C. (5 of 1898), S.342 - EXAMINATION OF ACCUSED - Examination - Nature of. Questions under S.342 are not intended to be put to the accused for obtaining admissions While the accused must have an opportunity to explain main points against him the questions put by Court should never tend towards cross-examination. (Para 16) Annotation: Criminal P.C., S. 342, N. 14. D. M. Chandrasekhar (By brief). R. S. Mahendra for the Advocate-General-for the Government. Judgement Mallappa, J.-This is an appeal against the judgment of tee Principal Sessions Judge, Mysore Division, in Hassan Sessions Case No. 2 of 1949-50 convicting the appellant accused of an offence under S.302, Penal Code, and Bentonding him to death. A reference is also made under S.374, Criminal P.C.

2. Tae prosecution case is that the accused, who is a coolie in what is known as Halekere Coffee Estate in Sakalespur Taluk murdered one Kunni alias Kunjapo. The motive for the offence is said to be that the accuseds father- in-law refused to give the accuseds wifes sister in marriage to him and that it had been settled that she had to marry Kunjapo.

3. The material witnesses, however, are his wife, father-in-law and other relatives who depose to the accused being angry on the refusal of his father-in-law to give his wifes sister in marriage to him and to his having gone alone with Kunjapo holding a chopper, but returning alone in blood-stained clothes and with injuries on his left hand. The Coffee Planter P.W. 12 corroborates them on these points. He and P. Ws. 10, 16 to 18 state that the accused made a confession of his having killed Kunjapo. P. Ws. 12 to 15 state that the accused showed the dead body. P.W. 8 and others say that the accused produced a chopper. P.W. 4 is the Doctor who held post mortem examination over the dead body.

4. There is hardly any doubt, as is clear by the evidence of the Doctor P.W. 4, that Kunjapo was brutally murdered, having been cut with a chopper across the front of the neck. The wound extended from ear to ear; all the tissues down to the vertebrae had been cut and all the blood vessels on both sides of the neck bad been severed. The point for consideration is whether it is the accused who caused this injury or not. The circumstances relied on for the prosecution to show that it is the accused who did so are, first the accused, who had taken to heart the refusal of his father- in-law to give his daughter Bikutti in marriage to him, having threatened that any man who marries her would not be in safety, secondly his having taken on the day of the incident Kunjapo with the chopper M. O. 4, thirdly his having sent back his brother-in-law Mydu when he saw him following them, fourthly his having returned alone in blood-stained clothes with injuries in his left palm, fifthly his having produced the chopper which had been hidden in dry leaves under a tree, sixthly his having shown the dead body, and lastly his extra-judicial confession.

5. There is absolutely no reason to doubt the evidence of the close relatives of the accused on the first point. Apart from the evidence of the father-in-law of the accused, there is the evidence of his wife and other relatives on the point and there is no particular reason for disbelieving this evidence. The fact that at first he agreed to the girl marrying Kunjapo does not mean that he did not change his mind later. The Coffee Planter himself has deposed to the accused having asked him to induce his father-in-law to give his younger daughter in marriage to him and to his having refused to intervene in the matter. Accuseds wife has stated that he left the place with Kunjapo, holding the chopper M. O. 4 and that he returned alone later. Then again, there is no reason to doubt the evidence of Mydu who says that he was following the accused and Kunjapo, just before the incident and that he had to get back as the accused asked him to do so. There is the evidence of other witnesses including that of the accuseds wife to show that Mydu returned alone. That the accused had injuries on his left hand is spoken to by a number of witnesses including the Coffee Planter and the Maistry who applied medicine to the injuries. Moreover, there is the evidence of the Doctor P.W. 4. who has doomed to the existence of injuries on the palm of the left hand of the accused. The evidence of P. Ws. 8, 12, 13, 14 and 15 establishes that the accused produced the chopper which had been hidden in dry leaves under a tree. The fact that the accused showed the place where Kunjapo met his unfortunate death has been proved by the evidence of P. Ws. 8 and 12 to 17. Some discrepancy about the exact time at which the accused pointed out the dead body was relied on by the learned counsel for the accused. The Coffee Planter who says that it was 6-30 or 7 P. M. when the accused led them is more accurate about the time than the Patel who says that it was S or 9 P.M. then. It was raining as stated by the Coffee Planter and darkness in the coffee estate must have set in earlier than usual. It is evidently on account of this that the Patel thinks that it must have been 8 or 9 P. M. then. We do not think that any significance can be attached to this discrepancy.

6. It may, therefore, be taken that the following facts are established beyond all reasonable doubt. The accused threatened that the person who marries his wifes sister would not be safe. When his father-in-law refused to give his daughter to him in marriage, he was moody, refused to take food in the house in which he lived with him and went to live in a separate house. On the afternoon of the next day, he sharpened a chopper, went with the deceased Kunjapo, sent back Mydu who was following them and later returned alone with injuries on his left hand. His clothes were stained with blood. He showed the place where the dead body was found and he took out chopper M.O. 4 hidden in dry leaves under a tree. Before considering however the truth of the confession made before the Coffee Planter it is desirable to consider whether the confession was made to a person in authority due to any inducement, threat or promise and as such is irrelevant under S.24, Evidence Act.

7. Section 24, Evidence Act, is as follows: "A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him." The section refers to a confession made by an accused person. It says that such a confession is irrelevant if it appears that it was made under certain circumstances. The circumstances which render the confession made by an accused irrelevant are as follows: first the confession must have been caused by inducement, threat or promise; secondly the inducement, threat or promise must have reference to the charge against the accused person, thirdly it must proceed from a person in authority; fourthly the inducement, threat or promise must be sufficient in the opinion of the Court to give the accused person grounds to suppose that by making the confession he would gain an advantage or avoid an evil of a temporal nature with reference to the proceedings against him.

8. The first point for consideration is when it can be said that the man who made the confession is an accused person. Can it be said that, if a person makes a confession before a complaint is made and investigation begins, it is a confession made by an accused person within the meaning of S.24, Evidence Act. As observed in the Full Bench decision, Santhoki Beldar v. Emperor, 12 Pat. 241: (AIR (20) 1933 pat. 149: 34 Cr. L.J. 349 F. B): "When a person states that he has done certain acts which amount to an offence, he accuses himself of committing the offence and the statement is, therefore, a confession by an accused person within the meaning of S.24." In this case the confession was made before at report was made to the Police and before he was accused of an offence by others. All the same it has to be noticed that the confession must be regarded as one made by an accused, within the meaning of S.24, Evidence Act.

9. The next point that deserves consideration is the word appears in S.24. A confession is irrelevant if it appears to have been caused by any inducement, threat or promise, as stated in S.24. Section 3, Evidence Act, makes it clear that "a fact is said to be proved when after considering the matter before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought to, under the circumstances of the particular case, act upon such probability." It may be added that while for proof in civil proceedings a preponderance of probability is sufficient, the persuasion of guilt must, in criminal oases, amount to "such a moral certainty as convinces minds of the tribunal as reasonable men beyond all reasonable doubt" (R.V. Sterne cited with approval In the commentary on Evidence Act by Woodroff and Ameer Ali). It has however to be stated that S.24 does not contemplate such strict proof as is required by S.3, for holding that the confession was caused by inducement, threat or promise. As observed in Queen-Empress v. Basvantha, 25 Bom. 168. at p. 172: (2 Bom. L.R. 761), "The use of the word appears indicates, it may be argued, a lesser degree of probability than would be necessary if proof had been required. The Court might perhaps in a particular case fairly hesitate to say that it was proved that the confession had been unlawfully obtained and yet might be in a position to say that such appeared to it to have been the case." As observed in Ashothosh v. Emperor, 68 I.C. 413; (AIR (8) 1921 Cal. 458: 23 Cr. L.J. 573), "If in the circumstances of a case it appears to the Court that there is reason to suspect that a confession was obtained by inducement so as to bring it under the provisions of S.24, Evidence Act, the prosecution, to make the confession admissible in evidence against the accused, must show that it was freely made." It may be added that the decision in Biraj Mohan v. Abani Kanta, AIR (25) 1938 Cal. 610: (177 I.C. 935) also supports this view. This is the principle laid down in Reg. v. Warringham, 2 D.N.C.C. 447n, a decision which has been cited with approval in a number of cases in the High Courts of India on different aspects of the provisions of S.24, Evidence Act. 9a. Before considering in this case whether the confession appears to have been caused by any inducement, threat or promise it has to be considered when it could be said that it was caused by an inducement, threat or promise. A large number of cases have considered this aspect, but it is sufficient to observe that the Court must in each case consider from the circumstances of that case to see whether the confession was due to inducement, threat or promise. In Reg. v. Navroji Dadbhai, 9 Bom. H.C.R. 358, the words "you had better pay the money than go to jail" were held to be sufficient to constitute inducement. In R.V. Thomas (1834) 6 C. and P. 353: (172 E. R. 1273), it was held that words "you had better split and not suffer for all of them" amount to threat, inducement or promise. As observed by Erle J. in R. v. Garner, (1849) 2 C. and K. 920: (18 L.J.M.C. 1). "It does not turn upon what may have been the precise words used; but in each case whatever the words used may be, it is for the Judge to consider, before he admits or rejects the evidence, whether the words used were such as to convey to the mind of the person addressed an intimation that it will be better for him to confess that he committed the crime, or worse for him if he does not."

10. In this case the coffee planter P.W. 12 to whom the confession is said to have been made states: "The accused advanced towards me. I asked him to search for Kunjapo as otherwise it would be to him. Accused held my legs. I pulled him up by the shirt and asked him to utter . He said he would utter and that he must be saved I said yes. He said be had cut him. I spoke to him in Thulu and he gave the reply in Thulu". From the above statement, it could be seen that this is clearly a ease in which the confession appears to have been induced both by threat and by a promise. It has to be added that before S.24, Evidence Act, could apply, inducement, threat or promise must have reference to the charge against the accused person, and that it must be sufficient in the opinion of the Court to give the accused person grounds for supposing that by making the confession he would gain an advantage or avoid any evil of a temporal nature in reference to the proceedings against him. In Empress of India v. Mohan Lal, 4 ALL. 46: (1881 A.W.N. 84)), a confession made by accused M and K to panehayatdars who were enquiring into the matter in order to outcast the accused, was held not inadmissible as the members of the panchayathi were not in authority over M and K within the meaning of that section nor was there any threat made having reference to any charge against them. In this case it is clear that if the coffee planter can be said to be a person in authority, the inducement, threat and promise made by him, is with reference to the charge of murder under consideration, and it is such as was clearly sufficient for the accused to have supposed that he would gain an advantage and avoid an evil with reference to the proceedings against him. This is so as the coffee planter made it clear that it would be difficult for the accused if he did not confess and promised to save him in case he confessed.

11. It may be noticed here that the advantage to be gained and the evil to be avoided must be of a temporal nature. If for instance the accused is told that it would be better for him to tell the truth, either on moral grounds or on spiritual grounds, it cannot be said that the accused had reason to suppose that by making the confession he would gain any advantage or avoid any evil of a temporal nature. It may be added that even if-a confession was made on medical grounds it cannot be said that the confession was made to avoid an evil or gain an advantage with reference to the criminal proceedings against him. It was held in Emperor v. Mahomed Buksh, 8 Bom. L. R.507: (4 Cr. L.J. 49), with reference to a confession made to a Medical Officer: "that the Medical Officer was not a person in authority in respect of any proceedings which might be contemplated or taken against the accused who made the confession to him; and that all that he represented to the accused was that on medical grounds it would be for the accuseds benefit if he told the truth as to how he came by the wound." In this case, however, it is clear that the evil to be avoided or advantage to be gained by making the confession was of a temporal nature.

12. The remaining point for consideration in this case is whether the coffee planter to whom the confession was made could be said to be a person in authority within the meaning of the words as used in S.24, Evidence Act. This aspect requires careful consideration as there are some decisions which hold that a person to whom a confession is made is a person in authority merely on the ground that the man making the confession was subordinate to him or merely on the ground that the person was a man of some authority in the locality in which he lives. This evidently is not what is intended in S.24, as inducement, threat or promise proceeding from the person in authority must be such as to make the accused person suppose that he would gain any advantage or avoid any evil with reference to the proceedings against him. Whatever may be the position in life of such a person it cannot be said that he has such authority as to enable him to interfere in the criminal proceedings against the person making the confession to him unless ho is able to influence those proceedings. It is again the case, R. v. Warringham, 2. D.N.C.C. 447n that is relied on in number of cases for guidance on this point also. The expression a person in authority is familiar in English Law, and it is in that limited sense that the expression is used in S.24, Evidence Act. As observed in Reg v. Navroji Dadbhai, 9 Bom. H.C.R. 358, "the test would seem to be, had the person authority to interfere with the matter and any concern or interest in it would appear to be held sufficient to give him that authority as in the Queen v. Warringham, 2 D.N.C.C. 447n where Parke Baron held that the wife of one of the prosecutors and concerned in the management of their business was a person in authority; and we find the rule so laid down in Archibolds Criminal Practice." It is no doubt true that in some oases, persons who are neither complainants nor persons who are acting for them are regarded as persons in authority within the meaning of the expression as used in S. 24, Evidence Act. The decisions in Emperor v. Ganesh Chandra, AIR (10) 1923 Cal. 458:(24 Cr. L.J. 760), Emperor v. Harpiari AIR (13) 1926 ALL. 737: (27 Cr. L.J. 1068 and Kunja Subudhi v. Emperor, AIR (16) 1929 Pat. 275: (30 Cr. L J. 675). have held that a collecting punch, an assistant punch and a Mukhia were persons in authority within the meaning of S. 24, Evidence Act, though it is not clear from those cases that the persons had any power of control or interference in the criminal proceedings against the accused. In Bhojo v. Emperor, AIR (21)1934 Sind. 172: (36 Cr. L J. 223), it was held that the Mukhias to whom the confession was made by the accused in that case were not persons in authority. The above decisions were distinguished on the ground that there must have been in those cases some circumstances which made those punches or Mukhias persons in authority, but that the Mukhia in that case was not shown to be a person who can control or interfere in reference to the prosecution. In Bhagabati Charan v Emperor, AIR (20) 1933 Cal. 644: (34 Cr. L.J. 1187), it was held: "that some kind of inducement was held out by the investigating postal superior officer to his subordinate which had the effect of inducing him to make a confession of his guilt and that the confession was inadmissible." It will be noticed that as observed in that case, "Niladrinath Mukerji who was an Inspector charged with the duty of investigating certain complaints, which were sent to the post office with regard to the packages in question", was the person to whom the confession was made. It is, therefore, clearly a case in which the person to whom the confession was made could be conceived by the person making the confession as a person able to influence the criminal proceedings against him. In the decision reported in Gunga Prosad v. Emperor, AIR (32) 1945 Cal. 360: (46 Cr. L.J. 633), it was also held that the confession made to a supervisor, Post Raid Information Service, was inadmissible as it was made by inducement by a person in authority. This however does not mean that if a person has no authority in relation to any proceedings against the accused it could be said that the confession made to him under any circumstance could be inadmissible. In Emperor v Mahomed Buksh, 8 Bom. L. R.507: (4 Cr. L.J. 49) "The accused made their confession of guilt to the Commissioned Officer of their Regiment, who stated to the accused that he had already obtained information from another person and promised secrecy if they told the truth: Held the Company Officer was not shown to be a person in authority in relation to any proceedings that were to be taken against him; and teat the alleged deception and inducement were covered by the provisions of S. 29, Evidence Act, 1872," There are a number of decisions on the point. It is, however, sufficient to rely on the Full Bench decision in Santoklii Beldar v. Emperor, 12 Pat. 241: (AIR (20) 1933 Pat. 149: 34 Cr L.J. 349 F.B.) in which it was observed as follows: "The words person in authority occurring in S.24, Evidence Act, 1872 have reference to a person who has authority to interfere in the matter under enquiry as, for example, a person engaged in the apprehension, detention or prosecution of the accused, or who is empowered to examine him. The section excludes a confession procured by inducement, threat or promise having reference to the charge, only when the inducement, threat or pro rise is sufficient to give the accused person reasonable grounds for supposing that by making it he will gain any advantage or avoid any evil in reference to the proceedings against him. When the inducement, etc., is by a person who has no power to interfere in the matter under inquiry it is not reasonable for the accused to suppose that he will benefit by confessing Where an extra judicial confession was made to a Tahsildar who was a person of some influence in the village but had no interest in the prosecution of the accused other than the interest which every citizen has in the maintenance of law and order, and the confession was made in consequence of questions put, and a promise made by him. Held: that the Tahsildar not being a person empowered to examine the accused or one who could legitimately influence the course of proceedings, the confession was not excluded by S.24."

13. In this case, whatever authority the coffee planter may have in his estate, it cannot be said, that apart from the interest he has like any other citizen in the maintenance of law and order and as such in reporting the matter to the police, he has such authority as could make the accused suppose that he could interfere in the criminal proceedings against him. As held in the above decision he being not a person who could have influenced the criminal proceedings, the confession made to him is not one that is excluded by S.24, Evidence Act.

14. As regards the question whether the confession was really made to the coffee planter as has been sworn to by him and other witnesses, there is hardly any doubt about the truth of what these witnesses say. The learned counsel Mr. D. M. Chandrasekhar who argued the case on behalf of the accused with marked ability both on points of law and facts, pointed to, what he referred to as variations in the versions given by the different witnesses about the confession. The fact that one witness refers to the accused having demonstrated how the neck of Kunajpo was cut, and the fact that another witness refers to the coffee planter having demonstrated the same when telling other persons what the accused said to him. are not inconsistent,though some witnesses refer only to the demonstration made by one and other witnesses refer only to the demonstration made by the other. No substantial variations could be said to have been pointed out, and such small differences in the versions as might be found in evidence recorded after a long time after the incident are inevitable in all cases however true. There can be hardly any doubt therefore about the truth of the accused having made a confession to the coffee planter in the presence of other witnesses.

15. As regards the Courts acting on confessions which are retracted, it has to be stated that as observed in Ramappa v. Government of Mysore, 39 Mys. H.C.R. 320, "though extra-judicial confessions have to be received with care and caution, there is no reason why they should not be believed when they are clear, consistent and convincing." The decision in 17 Mys. L.J. 491 makes it clear treated it would however be safe not to act on retreated confessions unless the confession is corroborated by other evidence circumstantial or otherwise. As observed in Kunja Subudhi v. Emperor, AIR (16) 1929 Pat. 275: (30 Cr. L.J. 675). "In a proper case a Court may act upon retracted confession alone, but the rule of prudence and safety is to require generally that such confessions should be corroborated in material particulars by some reliable evidence before an accused person is convicted." In this case apart from the fact that the accused sent away his brother-in-law, who was following him and the deceased and the fact that the accused returned later on without the deceased, there is the hard fact that there were blood-stains in his clothes which he took care to get washed immediately. Moreover, there were injuries on his left hand. His explanation that the injuries were due to his pulling a creeper looks at first not to be improbable; but the evidence of the doctor discloses that the injuries on the left band are all incise wounds. This shows that he had something to do with a sharp instrument after he went with the deceased and before he returned alone. The circumstances justify the conclusion arrived at by the learned Sessions Judge that the accused murdered Kunjapo.

16. It was pointed out that the learned Sessions Judge had not put him questions about the confession but has relied on it without doing so. Questions are however intended to be put to enable the accused to explain the important points against him and are not intended to be put to him for obtaining admissions. Too many questions on unimportant points might and in the Judge unconsciously forcing the accused to make damaging statements. While the accused, must have an opportunity to explain the main, points against him the questions put by Court should never tend towards cross-examination. The failure to put a question cannot always be construed to have prejudiced the accused sol long as he had an opportunity to explain the! points against him. In this case, when one reads: the number of questions put and answers elicit. ed by the learned Sessions Judge, it cannot be said that he is one who would omit to put a question even on a minor point if it remained unexplained. In answer to the last question the accused stated: "One Wednesday by 4-30 P.M. my wife came to me and told me that Kunjappi is not to be seen and they are searching him. I also went to fled him out. I had gone nearly two furlongs when I heard some noise as Coo towards my left side. I went there to see what it was. There, I found Sowcar and others. Sowcar was enquiring persons whether they saw Kunjappi. They replied no Sowcar then, asked me. I also replied that I did not see him. Then Sowcar talking in Thulu language told me that some one had murdered Kunjapu in Shekdars forest, the charge might be levelled against me, unless I act up to his words. I told him as to how is it possible to take the guilt on me. He then assured me that I need not be anxious about it and he is there to look after. The Sowcar then made a gesture in his hand as if to out something and showed me that I had done the deed. My father-in-law then fell down, I was caught hold of and taken. I repeated the words which the Sowcar had asked me to say." It is clear that the accused has denied having made a confession, by saying that he repeated the words which the Sowcar had asked him to say. In the light of this it cannot be said that any other question was necessary to be put. I might add that it was observed in 39 Mys. H.C.R. 320, as follows: "All that is obligatory on the Court under S.342, Criminal P C. is to question the accused generally on the case after the witnesses for the prosecution have been examined and before the accused is called on for his defence. A formal question in general terms like what is your defence gives the accused an opportunity of making a statement with his own lips and is thus a sufficient compliance with the mandatory provisions of the section. And such a formal compliance with the section is in the interest of the accused when be is represented by a counsel who can offer explanations on behalf of the accused in the way most favourable and least dangerous to him." There is thus no substance in the contention that no question was put to the accused regarding the confession.

17. The confession of the accused that it is he who killed Kunjapo is corroborated by a large number of facts referred to already. We feel, therefore, no doubt that the accused was rightly convicted of an offence under S.302, Penal Code, and the conviction is therefore up. held. The question of sentence is next to be considered. There do not appear in this case, from the evidence on record, any circumstances for awarding a punishment other than the capital sentence which the accused in cases of this kind generally deserve. But it has to be stated that these is no direct evidence as to what happened when the accused and deceased Kunjapo were alone, though there is hardly any doubt that it is the accused who killed Kunjapo. It looks however from the incised wounds on four fingers of the left hand of the accused that at one time or the other, the handle of a sharp instrument must have been held by Kunjapo and the accused was possibly avoiding a blow by holding his hand with his right hand and trying to wrest the sharp weapon from the clutches of Kunjapo by the left hand; otherwise it is difficult to understand how the injuries with a sharp instrument have been caused on the fingers of the left hand of the accused at the time of the incident. Anyway though it is clear that it was the accused who murdered Kunjapo and it cannot be said that there are materials for making out a case for the accused of his having acted in self- defence, this being the case of none, it is pos. Bible that Kunjapo had the upper hand and at one stage might have attempted to assault the accused.

18. In the circumstances we think that the ends of justice would be met by altering the sentence of death awarded by the learned Sessions Judge to one of transportation for life, and we do order accordingly. Except for this alteration in the sentence, the appeal stands dismissed.

19. We cannot avoid noticing the perfunctory manner in which the case has been dealt with in the lower Court. Special care ought to be taken in murder oases and that is why provision is made for appointment of a standing counsel for the accused to safeguard his interest. This does not mean that the purpose is served by the standing counsel making a show of defence by putting some formal questions in cross-examination. He should study the records of the committal Court and take every care that inadmissible evidence is excluded. The Public Prosecutor himself should take care that no such evidence is let in. Moreover, there is the primary duty of the Court itself to see that the evidence which is not admissible is excluded. In this case a good deal of what the witnesses have heard is allowed to be recorded in evidence. What P.W. 21 Palliamma has, for instance, deposed is mainly hearsay. The accuseds wife is allowed to say what her husband told her, though this offends the provisions of S. 122, Evidence Act. It will be further noticed that the main point for consideration in this case is whether the confession made to the owner of the coffee estate in which the accused is working as a cooly is affected by S. 24, Evidence Act. No consideration is given to this aspect of the matter. Recording of the evidence is not happy, and it is hoped that better attention will be given to these matters in cases of this kind, at any rate, by the learned Sessions Judge. Sentence altered. __________

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